J. S11034/19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : DANIEL SOLER, : No. 650 EDA 2018 : Appellant :
Appeal from the PCRA Order, February 9, 2018, in the Court of Common Pleas of Philadelphia County Criminal Division at No. CP-51-CR-0009434-2012
BEFORE: SHOGAN, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 25, 2019
Daniel Soler appeals pro se from the February 9, 2018 order entered
by the Court of Common Pleas of Philadelphia County denying his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. After careful review, we affirm.
The PCRA court provided the following synopsis of the procedural history
of this case:
On January 14, 2014, following a jury trial before [the trial court, appellant] was convicted of one count each of third degree murder (18 Pa.C.S.[A.] § 2502(c)), arson (18 Pa.C.S.[A.] § 3301), conspiracy to commit arson (18 Pa.C.S.[A.] §§ 903 & 3301), carrying a firearm without a license (18 Pa.C.S.[A.] § 6106), and possession of a firearm by a prohibited person (18 Pa.C.S.[A.] § 6105). [Appellant] was jointly tried with his sister, co-defendant Jacqueline Soler. On March 14, 2014, the [trial court] imposed an aggregate sentence of forty-five to ninety years[’] J. S11034/19
incarceration. [Appellant] was represented at trial, sentencing, and on [direct] appeal by Bruce Wolf, Esquire. On December 2, 2015, the Superior Court affirmed the judgment of sentence, and on April 4, 2016, the Supreme Court [of Pennsylvania] denied allocatur. [See Commonwealth v. Soler, 135 A.3d 648 (Pa.Super. 2015) (unpublished memorandum), appeal denied, 136 A.3d 981 (Pa. 2016).]
On January 18, 2017, [appellant] filed a pro se petition under the [PCRA], and subsequently filed two Amended Petitions on February 17, 2017 and May 18, 2017 (collectively hereinafter, the “PCRA Petition”). David S. Rudenstein, Esquire was appointed to represent [appellant] on July 12, 2017. On October 4, 2017, pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988), Mr. Rudenstein filed a letter stating that there was no merit to [appellant’s] claims for collateral relief (“Finley Letter”). On December 21, 2017, the [PCRA court] issued notice, pursuant to Pa.R.Crim.P. 907 (“907 Notice”) of its intention to dismiss [appellant’s] petition without a hearing. [Appellant] submitted a response to the [PCRA court’s] 907 Notice (“907 Response”) on January 3, 2018. On February 9, 2018, the [PCRA court] dismissed [appellant’s] PCRA Petition and granted Mr. Rudenstein’s motion to withdraw his appearance.
PCRA court opinion, 5/22/18 at 1-2.
Appellant filed a timely notice of appeal to this court on February 27,
2018. On March 2, 2018, the PCRA court ordered appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant timely complied. The PCRA court filed an opinion pursuant to
Pa.R.A.P. 1925(a).
Appellant raises the following issues for our review:
-2- J. S11034/19
1. Did the PCRA court err by failing to find trial counsel ineffective for failing to move to suppress a statement made by [a]ppellant to police who was impaired by the combined effects of alcohol and drugs?
2. Whether the PCRA court erred in its conclusion that trial counsel was not ineffective for agreeing by stipulation to exclude Detective Dove as a witness without [a]ppellant’s knowledge and consent, thus denying him his right to confront and cross-examine Detective Dove in violation of due process?
3. Was trial counsel ineffective for failing to object to the Commonwealth’s stipulation to exclude Detective Dove as a witness and call Detective Dove as a witness concerning the circumstances attendant the taking of [a]ppellant’s statement?
4. Did the PCRA court err by failing to find trial counsel ineffective for not objecting to the Commonwealth’s introduction of highly-inflammatory crime scene photographs at trial which caused an outburst among spectators and disruption in the courtroom?
5. Whether the PCRA court erred in its determination that trial counsel was not ineffective for failing to object to the prosecutrix using herself as a trial prop and allowing the testifying doctor to twice demonstrate where the injuries were on the female victim which was cumulative?
6. Did the PCRA court err in its conclusion that trial counsel was not ineffective for failing to object to the Commonwealth’s evidentiary use of co-defendant Jacqueline Soler’s statement at trial[,] who did not testify which prevented [a]ppellant from confronting and cross-examining her in violation of due process
-3- J. S11034/19
and Bruton v. United States, 391 U.S. 123 (1968)?
7. Did the PCRA court err in its determination that trial counsel was not ineffective for failing to request and/or object to the trial court’s refusal to instruct the jury on the lesser-included offenses of voluntary and involuntary manslaughter?
8. Whether the PCRA court erred by not finding trial counsel ineffective for failing to request a mistrial where the jury had informed the court multiple times that they were hopelessly deadlocked and could not reach a unanimous verdict on the charge of first degree murder?
Appellant’s brief at 4-5.
Having determined, after careful review, that the Honorable Glenn B.
Bronson, in his Rule 1925(a) opinion, ably and comprehensively disposes of
appellant’s issues on appeal, with appropriate reference to the record and
without legal error, we affirm on the basis of that opinion (Finding: trial
counsel did not render ineffective assistance when he withdrew a meritless
suppression motion with appellant’s consent; trial counsel did not agree to a
Commonwealth request to exclude certain testimony, as alleged by appellant;
trial counsel did not render ineffective assistance by failing to object to a
crime scene photograph that, while gruesome, was found by the trial court to
be compelling and essential to demonstrate to the jury appellant’s criminal
intent; trial counsel was not ineffective for failing to object to a demonstration
as to the location of the victim’s gunshot wounds, which the trial court found
was not inflammatory, but rather was a helpful aid to the jury; trial counsel
-4- J. S11034/19
was not ineffective for failing to object to the admission of co-defendant
Jacqueline Soler’s statement, which had been edited to remove all references
to appellant in accordance with Bruton v. United States, 391 U.S. 123
(1968); trial counsel was not ineffective for failing to request a jury instruction
for which he had no basis to object; and trial counsel was not ineffective for
failing to request a mistrial when he had no basis for such a request; therefore,
the PCRA court did not err when it denied appellant’s PCRA petition).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 7/25/19
-5- Circulated 07/10/2019 09:29 AM
FlLED -, IN THE COURT OF COMMON PLEAS FIRST JUDICIAL DISTRICT OF PENNSYLVANIA 2018 MAY 22 PM 3: It. CRIMINAL TRIAL DIVISION OFFICE OF JUDlC!AL RECORDS CRIHIHAL O!ViSiOH FIRST JUDICIAL OlST�MMONWEALTH OF CP-51-CR-00009434-2012 OF PEHNSYLV/\HIA - . PENNSYLVANIA 34.2012 comm.�- Soler. Daniel CP-51-CR·� Opinion
V.
DANIEL SOLER \\\\\\l\\\\\\\\1\1 \\\\\\\ 8113188971
OPINION
BRONSON, J. May 22, 2018
On January 14, 2014, following a jury trial before this Court, defendant Daniel Soler was
convicted of one count each of third degree murder (18 Pa.C.S. § 2502(c)), arson (18 Pa.C.S. §
3301), conspiracy to commit arson (18 Pa.C.S. §§ 903 & 3301), carrying a firearm without a
license (18 Pa.C.S. § 6106), and possession of a firearm by a prohibited person (18 Pa.C.S. §
6105). Defendant was jointly tried with his sister, co-defendant Jacqueline Soler. On March 14,
2014, the Court imposed an aggregate sentence of forty-five to ninety years incarceration.
Defendant was represented at trial, sentencing, and on appeal by Bruce Wolf, Esquire. On
December 2, 2015, the Superior Court affirmed the judgment of sentence, and on April 4, 2016,
the Supreme Court denied allocatur.
On January 18, 2017, defendant filed a prose petition under the Post Conviction Relief
Act ("PCRA"), and subsequently filed two Amended Petitions on February 17, 2017 and May
18, 2017 (collectively hereinafter, the "PCRA Petition"). David S. Rudenstein, Esquire was
appointed to represent defendant on July 12, 2017. On Octa ber 4, 20 I 7, pursuant to
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. l 988), Mr. Rudenstein filed a letter stating
that there was no merit to defendant's claims for collateral relief ("Finley Letter"). On December 21, 2017, the Court issued notice, pursuant to Pa.R.Crim.P. 907 C'907 Notice") of its
intention to dismiss defendant's petition without a hearing. Defendant submitted a response to
the Court's 907 Notice ("907 Response") on January 3, 2018. On February 9, 2018, the Court
dismissed defendant's PCRA Petition and granted Mr. Rudenstein's motion to withdraw his
appearance.
Defendant has now appealed the Court's dismissal of his PCRA Petition, raising ten
issues. See Concise Statement of Matters Complained of on Appeal ("Statement of Matters") at
iJi[ a(l-8)-c. They are listed below in their entirety:
a(l ). Trial counsel rendered ineffective assistance of counsel by failing to move to suppress Defendant's involuntary statement given to police obtained while Defendant was high on drugs and subject to a coercive environment when questioned by former homicide detective, Ronald Dove and Joseph Bamberski;
a(2). Trial counsel acted ineffectively by agreeing to the Commonwealth's request to exclude former Detective Dove as a witness without first consulting with Defendant which impugned [sic] upon his Sixth Amendment and Article I, § 9 rights of confrontation and cross- examination in violation of due process where Dove had interviewed him for hours prior to Detective Bamberski 's arrival. Defendant was not even aware of this agreement until after trial and receipt of his transcript;
a(J). Trial counsel acted ineffectively by failing to object to the prosecutor's informing the Court that she was not putting Detective Dove on the stand because he was the subject of some newspaper articles even though he was one of the lead detectives on the case, thus interfering with Defendant's right to present a defense of his own choosing and right to confront and cross-examine Dove as to the circumstances surrounding his interrogation and giving a statement;
a(4). Trial counsel was ineffective for failing to object to the Commonwealth's admission and use of highly-inflammatory crime scene photographs designed to inflame the jurors and create a fixed hostility, bias and prejudice in the minds of the jurors against Defendant which led to an outburst in the courtroom and caused the trial judge to warn spectators to be quiet or to step out of the courtroom;
2 a(5). Trial counsel acted ineffectively by failing to object when the prosecuting attorney used herself as a human prop permitting the doctor who was testifying to show where the injuries were on the victim who was also a female. There was no need for such a demonstration as the testifying doctor had already conducted his own demonstration for the benefit of the jurors using his own props;
a(6). Trial counsel was ineffective for failing to object to the use of co- defendant Jacqueline Soler's, statement where Defendant was prevented from confronting and cross-examining the witness denying him due process because she did not testify. Despite this fact, the statement was read aloud in court by another corrupt Detective, Detective James Pitts, resulting in a Burton [sic] violation because Defendant was unable to cross-examine the witness concerning the circumstances surrounding and making of the statement to test its veracity;
a(7). Trial counsel acted ineffectively by failing to request and/or object to the trial court's refusal to instruct the jury on the lesser-included offense of involuntary manslaughter;
a(8). Trial counsel was ineffective for not requesting a mistrial where the jurors had informed the Court that they were hopelessly deadlocked on the charge of I st Degree Murder. Defendant avers that a mistrial was warranted and a new trial should have been granted by the trial court, but instead, the jury was pressured by the Court to come up with a verdict. Deadlocked numerous times on First Degree Murder, the Court then specifically instructed the jury to deliberate on 3rd Degree Murder. The Court's intervention resulted in a Third Degree conviction and likely influenced the jury by suggesting Third Degree Murder resulting in a miscarriage of justice.
b. The PCRA Court erred by failing to credit the newly-discovered evidence submitted and filed by the Defendant concerning corrupt Homicide detective, Ronald Dove, after Dove pied guilty to all charges filed against him, including tampering with/fabricating physical evidence on April 26, 2017. Not only is Dove's conviction relevant to the circumstances surrounding the coercive environment attendant [sic] the Defendant's involuntary statement, but this evidence (1) could not have been obtained prior to the conclusion of the trial of this case; (2) is neither corroborative nor cumulative of other evidence presented; (3) would not have been used solely to impeach the credibility of a witness as Dove did not testify as a witness for the Commonwealth concerning his role in the investigation and the taking of the statement; and (4) would likely compel a different verdict if a new trial were granted. Dove's subsequent conviction raises legitimate questions concerning the circumstances and manner in which the statement was obtained.
..., .) c. The PCRA Court erred by failing to credit the Defendant's claims of PCRA counsel ineffectiveness after Defendant forwarded letters of complaint to this Court, and in granting PCRA counsel leave to withdraw, even though PCRA counsel failed to have any meaningful communication with the Defendant prior the filing of a Turner/Finley "no merit" Letter, where PCRA counsel failed to respond to the Defendant's letters attempting to further discuss his claims and the issues he wished to litigate in his PCRA petition in more detail, and where subsequent letters addressed to PCRA counsel asking PCRA counsel to voluntarily withdraw and to this Court requesting the Court to remove Attorney Rudenstein and assign new PCRA counsel where issues of arguable merit were present that required further development at an evidentiary hearing. PCRA counsel's lack of any meaningful communication in this case and failure to amend Defendant's prose claims by filing an amended petition left Defendant effectively uncounseled. Accordingly PCRA counsel rendered ineffective assistance of counsel.
Statement of Matters at 1� a(l-8)-c. For the reasons set forth below, defendant's claims are
without merit, and the PCRA Court's order dismissing his PCRA Petition should be affirmed.
11. FACTUAL BACKGROUND
This Court set forth the relevant facts in its opinion regarding defendant's direct appeal as
follows.
At trial, the Commonwealth presented the testimony of Philadelphia Fire Marshal Lieutenant George Werez, Philadelphia Fire Department Lieutenant Dan Oaks, Philadelphia Firefighter Ismar Burgos, Philadelphia Police Sergeant Gregory Morace, Philadelphia Police Detectives Joseph Bamberski, James Burns, and James Pitts, Philadelphia Police Officers Clyde Frasier, Tiffany Richardson, Edward Slater, and Gregory Welsh, Chief Medical Examiner Dr. Sam Gulino, as well as D.S.', 1 Joseph Coleman, Aura Bernard, Ryan Gallagher, and Tamika McDuffie. Defendant and his co-defendant did not present any evidence at trial. Viewed in the light most favorable to the Commonwealth as the verdict winner, the evidence established the following.
On Saturday, March 31, 2012, Tanisha Carr contacted defendant, with whom she had two children, in order to meet and talk about $500 which she had loaned defendant. N.T. 1/8/14 at 234. Carr and defendant shared custody of their daughter, D.S. and their son, D.S.J., who stayed with Carr during the week and with defendant over the weekends. N.T. 1/7/14 at 168-169. At approximately l 0:30 p.m., before going to meet with Carr, defendant called his children into his
I Minor witnesses are identified by their initials to protect their privacy.
4 room and stated that he would be going somewhere. N.T. 1/7/14 at 171-172. While defendant was talking with his children, D.S.J. reached into defendant's coat, which permitted D.S. to see a concealed gun. N.T. 1/7/14 at 172-173. Defendant stated,"! love you no matter what happens," gave his children a hug and a kiss, and then left the house. N.T. 1/7/14 at 174-175.
Carr had arranged to telephone her sister, Tamika McDuffie, upon arriving at the meet location, which she did at 11 :43 p.m. N.T. 1/8/14 at 234-235, 247. Upon calling McOuffie, Carr stated, "here comes Danny," and then left the phone active, permitting her sister to listen in on their conversation. N.T. 1/8/14 at 235- 236. McDuffie was able to hear Carr state, in a scared tone, "where are we going?" N.T. 1/8/14 at 237. The last words McDuffie heard Carr say was: "Never mind, I don't want the money, just give me my keys so I can go home." N.T. 1/8/14 at 241. Following this statement, the phone went dead and calls by McDuffie were unanswered. N.T. 1/8/14 at 238. Defendant and Carr got into an argument, at which point defendant "snapped," pulled out his gun, and shot Carr multiple times. N.T. 1/9/14 at 62-64. Defendant then drove away, while Carr lay in the passenger seat dying. N.T. 1/9/14 at 65.
Thereafter, defendant called his sister, co-defendant Jacqueline Soler ("Ms. Soler"), informing her that he had just killed a man and arranged to meet with Ms. Soler at their cousin Freddie's home.2 N.T. 1/8/14 at 10-11; 1/9/14 at 66. Defendant parked the vehicle with Carr's body at 4519 North 3rd Street, Philadelphia, which is a mixed commercial and residential area, at 12:30 a.m., April 1, 2012, and arrived at Freddie's home shortly thereafter. N.T. 1/7/14 at 97; 1/8/14 at 14; 1/9/14 at 66, 130, 132-133.
While at Freddie's home, defendant repeatedly commented that he had "fucked up" and that he was "not going to see my kids." N .T. 1/8/14 at 15-16. Defendant asked if Aura Bernard, Freddie's live in girlfriend, had any gas, stating that he intended to burn the car to get rid of the evidence. N .T. I /8/14 at 20-21, 26; 1/9/14 at 66. Bernard and Ms. Soler left the house and bought gas at the local 7- Eleven convenience store. N.T. 1/8/14 at 22-23, 42, 145. Upon their return, Bernard gave the gas to defendant, who returned to the parked vehicle while everyone else remained at the home. N. T. 118/14 at 24-26; 1 /9/14 at 66-67. Defendant poured the gas on the car, on the floor of the car, and on Carr's body before using a lighter to light the gas. N.T. 1/7/14 at 125; 1/9/14 at 66-67, 133- 136; Commonwealth exhibit 84 (surveillance video). Defendant lit the fire at approximately 2: 19 a.m. N.T. 1/9/14 at 67, 133.
Philadelphia Fire Department personnel arrived at the scene of the car fire at 2:28 a.rn., approximately eight minutes after it was lit. N.T. 1/7/14 at 61-62; 1/9/14 at 133. The fire had fully involved the interior passenger compartment and the force of the flame had blown out the vehicle's windows. N.T. 1/7/14 at 62-63, 191.
2 Freddie's real name is Roberto Soler. N.T. 1/8/14 at 9.
5 Upon extinguishing the fire, Carr's body was found slumped across the passenger seat, so badly burned that Fire Department officials could not tell her gender. N.T. 1/7/14 at 65, 192; 1/9/14 at 32. Subsequent investigation revealed that Carr had been shot three times in the torso and once in the chin. N.T. 1/7/14 at 126, 129-133. Carrdiedwithintwoorthreeminutes. N.T. l/7/14at 142-143.
At approximately 5:30 a.m., April 1, 2012, police contacted Carr's parents, informing them that Carr's burned vehicle had been found with a body inside. N.T. 1/7/14 at 205. Later that day, defendant talked with Carr's step-father, Joseph Coleman Jr., on the phone. id. When Coleman informed defendant that Carr's body had been found, defendant responded, "what that got to do with me?" N.T. 1/7/14 at 206. When Coleman confronted defendant about the $500 defendant owed Carr, defendant hung up the phone. N.T. 1/7/14 at 206.
Following his arrest, defendant gave a statement to police, admitting that he had shot Carr multiple times as she was in the vehicle and that she was still breathing as he drove away. N.T. 1/9/14 at 64-65. Defendant further confessed to conspiring with Ms. Soler and Bernard to dispose of Carr's body and that he did so using the gas that Ms. Soler and Bernard heard purchased. N.T. 1/9/14 at 66- 67.
Trial Court Supplemental Opinion, filed March 9, 2015, at pp. 2-4.
III. DISCUSSION
If court-appointed counsel for a PCRA petitioner determines that the issues the petitioner
raises for collateral review are meritless, and the PCRA court concurs, counsel may withdraw
and the petitioner may proceed prose, by privately retained counsel, or not at all. Finley, 550
A.2d at 218. To be permitted to withdraw, petitioner's counsel must file a no-merit letter, or
"Finley letter," detailing the nature and extent of counsel's review and listing each issue the
petitioner wished to raise, with counsel's explanation as to why the issues are meritless.
Commonwealth v. Pills, 981 A.2d 875, 876 n.l (Pa. 2009) (citing Finley, 550 A.2d at 215). After
reviewing a Finley letter, the PCRA court is required to independently review the record to
evaluate the petitioner's claims. Id. A PCRA petition may be dismissed without a hearing if the
Court determines that there are no claims of arguable merit and no purpose would be served by
6 further proceedings. Commonwealth v. Lignons, 971 A.2d 1125, 1143 (Pa. 2009); see
Pa.R.Crim.P. 907(1 ).
In his Finley Letter, Mr. Rudenstein stated his opinion that defendant's claims had no
arguable merit. After an independent review of the record, the Court agrees with Mr.
Rudenstein. Each of defendant's PCRA appellate claims is considered below.
Initially, the Court notes that the majority of defendant's claims are premised upon his
contention that he received ineffective assistance of counsel. Under Pennsylvania law, counsel is
presumed to be effective and the burden to prove otherwise lies with the petitioner.
Commonwealth v. Basemore, 744 A.2d 717, 728 (Pa. 2000), n.10 (citing Commonwealth v.
Copenhefer, 719 A.2d 242, 250 (Pa. 1998)). To obtain collateral relief based on the ineffective
assistance of counsel, a petitioner must show that counsel's representation fell below accepted
standards of advocacy and that as a result thereat: the petitioner was prejudiced. Strickland v.
Washington, 466 U.S. 668, 694 (1984). In Pennsylvania, the Strickland standard is interpreted as
requiring proof that: ( 1) the claim underlying the ineffecti vcness claim had arguable merit; (2)
counsel's actions lacked any reasonable basis; and (3) the ineffectiveness of counsel caused the
petitioner prejudice. Commonwealth v. Miller, 987 A.2d 638, 648 (Pa. 2009); Commonwealth v.
Pierce, 527 A.2d 973, 975 (Pa. 1987). To satisfy the third prong of the test, the petitioner must
prove that, but for counsel's error, there is a reasonable probability that the outcome of the
proceeding would have been different. Commonwealth v. Sneed, 899 A.2d 1067, l 084 (Pa.
2006) (citing Strickland,"466 U.S. at 694). If the PCRA court determines that any one of the
three prongs cannot be met, then the court need not hold an evidentiary hearing as such a hearing
would serve no purpose. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super.), appeal
denied, 956 A.2d 433 (Pa. 2008).
7 A. Failure to Move to Suppress Defendant 's Involuntary Statement
Defendant first claims that trial counsel was ineffective for "failing to move to suppress
Defendant's involuntary statement given to police," when he was high on drugs and subject to a
coercive environment. Statement of Matters at� a( I). This claim is without merit.
"[T]he standard for determining whether a statement is voluntary is based on the totality
of the circumstances and considers, among other things, whether the defendant was coerced or
manipulated or promised something in exchange for his confession; essentially ... whether the
defendant freely made the decision to give the statement." Commonwealth v. Ogrod, 839 A.2d
294, 320 (Pa. 2003); see also Commonwealth v . Johnson, l 07 A.3d 52, 93 (Pa. 2014) (noting
totality of the circumstances also includes defendant's mental and physical condition). "When a
defendant alleges that his wai ver or con fess ion was involuntary, the question 'is not whether the
defendant would have confessed without interrogation, but whether the interrogation was so
manipulative or coercive that it deprived the defendant of his ability to make a free and
unconstrained decision to confess."' Commonwealth v. Sepulveda, 55 A.3d 1108, 1137 (Pa.
2012) (quoting Commonwealth v. Templin, 795 A.2d 959, 966 (Pa. 2002)).
Here, prior to defendant's trial, counsel filed an omnibus motion seeking to suppress the
inculpatory statement defendant made to detectives on April 4, 20 I 2, where he confessed to
shooting the victim multiple times during an argument. See Omnibus Motion, filed December
10, 2013; N.T. 1/9/14 at 64. However, at trial, counsel informed the Court that the motion was
withdrawn. N. T. 1/6/14 at 20-24. At that time, defendant told the Court that he agreed with
counsel's decision to withdraw the motion. N.T. 1/6/14 at 23.
The record demonstrates that even if counsel had not withdrawn the motion to suppress
defendant's statement, the motion would have been denied, as the statement was voluntarily
8 given. First, Detective Bamberski testified that prior to interviewing defendant, he orally, and
again in writing, advised defendant of his Miranda rights, including his right to remain silent.
N.T. 1/9/14 at 50-56. Furthermore, the record is devoid of any evidence that defendant was
abused or mistreated during the interview. Detective Bamberski testified that defendant was
brought to Homicide at approximately 7:30 P.M. on April 4, 2012. N.T. 1/9/14 at 83. His
formal interview began a few hours later, at 12:38 A.M., and concluded at 3:46 A.M. N.T.
1/9/14 at 75. During that time, defendant was given coffee, water, and a hot meal. N.T. 1/9/14
at 60-61, 77-78. Although during the interview, defendant admitted to snorting cocaine a few
hours before, at approximately 5:00 P.M., Detective Bamberski testified that there was no
indication that defendant appeared to be intoxicated, inebriated, suffering from withdrawal, or
suffering from any other medical issue. N.T. 1/9/14 at 58-59, 75. Rather, defendant appeared to
understand everything he was asked and was responsive to those questions. N.T. 1/9/14 at 74-
75. Furthermore, during the interview, defendant denied having any trouble understanding what
was going on or why he was being interviewed. N.T. 1/9/14 at 59.
Accordingly, the record shows that under the totality of the circumstances, defendant
freely made the decision to give his statement to detectives. Therefore, a motion to suppress the
statement would have been meritless and properly denied. As a result, trial counsel was not
ineffective for withdrawing such a motion.
B. Agreement lo Exclude Detective Dove's Testimony
Defendant next claims that trial counsel was ineffective for "agreeing to the
Commonwealth's request to exclude former Detective Dove as a witness without first consulting
with Defendant. ... " Statement of Matters at� a(2). However, there is nothing in the record
suggesting that trial counsel ever agreed to such a request.
9 At trial, the Commonwealth informed the Court that it would not be calling Detective
Dove, who was partnered with Detective Bamberski in interviewing defendant and formalizing
defendant's statement. N.T. 1/9/14 at 6. In addition, the Commonwealth made an oral motion in
limine to exclude any reference to allegations made against Dove, who at the time of defendant's
trial, had been accused of misconduct.3 N.T. 1/9/14 at 5-6. At that time, trial counsel informed
the Court that impugning the detective's credibility was not a part of his trial strategy, since he
was not challenging the voluntariness of defendant's confession. N.T. 1/9/14 at 6. However, he
at no time agreed to exclude Detective Dove as a witness at trial." No relief is due.
C. Failure to Object to the Commonwealth's Decision to not Call Detective Dove as a Witness
Defendant next alleges that trial counsel was ineffective for "failing to object to the
prosecutor's informing the Court that she was not putting Detective Dove on the stand."
Statement of Matters at 1 a(3). Defendant argues that this interfered with his ability to "confront
and cross-examine Dove as to the circumstances surrounding his interrogation and giving a
statement." Id. This claim is without merit.
As discussed above in Section B, at trial, the Commonwealth informed the Court that it
would not be calling Detective Dove as a witness, but would instead introduce defendant's police
statement through the other interviewer, Detective Bamberski. Trial counsel could not have been
ineffective for not objecting to this decision, as there was no basis to do so. There is no rule of
law that permits defense counsel to compel the Commonwealth to call a cumulative witness.
3 As the Court noted when granting the Commonwealth's motion in limine, the allegations made against Detective Dove did not involve the manner in which he conducted interrogations. N.T. 1/9/14 at 7. 4 To the extent that defendant means to contend that trial counsel erred by not objecting to the Commonwealth's decision not to call Detective Dove as a witness, that claim is addressed in Section C, below.
10 While defendant claims that the Commonwealth's decision prevented him from
confronting Detective Dove as to the circumstances surrounding his interrogation, defendant was
free to call Dove as his own witness. Defendant nowhere claims, however, that trial counsel
erred by not doing so. This is likely because he realizes that trial counsel had no reason at all to
believe that Detective Dove would, in any manner, contradict Detective Bamberski's recitation
of the circumstances surrounding defendant's interview and confession, during which both Dove
and Bamberski were present. Defendant has never averred any reason to believe that Dove
would have said anything helpful to the defense. Moreover, the Court would not have allowed
the defense to call Dove solely for the purpose of introducing evidence of Dove's alleged
misconduct, which had no connection whatsoever to defendant's case. No relief is due.
D. Failure to Object to Admission of Crime Scene Photograph
Defendant next claims that trial counsel was ineffective for not objecting to the admission
of "highly-inflammatory crime scene photographs ... which led to an outburst in the courtroom
and caused the trial judge to warn spectators to be quiet or step out of the courtroom." Statement
of Matters at ,r a(4 ). This claim is without merit.
"When considering the admissibility of photographs of a homicide victim, which by their very nature can be unpleasant, disturbing, and even brutal, the trial court must engage in a two-step analysis:
First a [trial] court must determine whether the photograph is inflammatory. If not, it may be admitted if it has relevance and can assist the jury's understanding of the facts. If the photograph is inflammatory, the trial court must decide whether or not the photographs are of such essential evidentiary value that their need clearly outweighs the likelihood of inflaming the minds and passions of the jurors."
Commonwealth v. Johnson, 42 A.3d IO 17, I 033-34 (Pa. 2012) (quoting Commonwealth v. Pruitt,
951 A.2d 307, 3 I 9 (Pa. 2008)). A photograph is inflammatory if "the photo is so gruesome it
11 would tend to cloud the jury's objective assessment of the guilt or innocence of the defendant."
Commonwealth v. Funk, 29 A.3d 28, 33 (Pa. Super.2011) (en bane), appeal denied, 40 A.3d
1234 (Pa. 2012). Further, photographic images of a homicide victim are often relevant to prove
the criminal intent of a defendant. Pruitt, 951 A.2d at 319; Commonwealth v. Solano, 906 A.2d
1180, 1191 (Pa. 2006).
Here, while defendant does not specify which "highly-inflammatory crime scene
photographs" he is referring to in his Statement of Matters, defendant raised an identical claim in
his 907 Response, and therein cited and attached as an exhibit, page 10 I of the January 7, 2014
notes of testimony. There, the Commonwealth introduced exhibit C-9, a photograph that depicts
the victim's burned body lying on the reclined passenger seat of a vehicle and facing the
passenger-side door. See Commonwealth Exhibit C-9, see also N.T. 1/7/14 at 101-102.
The photograph at issue was compelling and essential evidence to demonstrate to the jury
defendant's criminal intent. There were no witnesses to the murder here at issue, since only
defendant and the decedent were in the car. However, the photograph permitted the medical
examiner to opine that the decedent was moving around in the car towards the door as she was
shot four times. In particular, the medical examiner noted that the gunshots, to the underside of
decedent's chin, to the left upper back, to the right lower back, and to the right hip, were of
differing trajectories. That fact, combined with the decedent's final position, as shown in Exhibit
C-9, of being reclined and turned toward the passenger-side door, proved that she was moving
toward the door as the shooter fired four separate times. N .T. l /7 I 14 at 129-13 7. This allowed
the prosecutor to properly argue, as an inference from the evidence, that defendant shot the
decedent in the face and then methodically shot her three more times as she futilely attempted to
escape the car. N.T. 1/10/14 at 90-93. Accordingly, the photograph provided extremely
12 probative evidence of defendant's intent to kill that clearly outweighed any likelihood of
inflaming the minds and passions of the jurors. Accordingly, it was admissible in evidence even
assuming, arguendo, that it was gruesome. See Johnson, 42 A.3d at l 033-1034.
In addition, any potential for unfair prejudice was ameliorated by the Court's jury charge,
which advised the jury of the proper use of the photograph, and admonished the jury not to
. consider it for any improper purpose:
During the trial, ladies and gentlemen, you folks saw photographs in this case of the crime scene that showed the body of the decedent in this case. I admitted these photographs into evidence in order to show the location of the decedent at the crime scene to you. These clearly were not pleasant photographs to look at and you folks should not let them stir up your emotions to the prejudice of either defendant. Your verdict must be based upon a rational and fair consideration of all the evidence and not on passion or prejudice against the defendant, against the Commonwealth, or against anybody else connected with this case.
N.T. 1/10/14 at 132. Because the challenged photograph was admissible, and the Court gave an
appropriate limiting instruction, trial counsel could not have been ineffective for failing to object
to its admission. No relief is due.
E. Failure lo Object to In-Court Demonstration of Victim's Injuries
Defendant next claims that trial counsel "failed to object when the prosecuting attorney
used herself as a human prop permitting the doctor who was testifying to show where the injuries
were on the victim who was also a female." Statement of Matters at ,r a(5). This claim is
without merit.
Demonstrative evidence is offered "for the purpose of rendering other evidence more
comprehensible to the trier of fact." Commonwealth v. Serge, 896 A.2d 1170, 1177 (Pa. 2006).
When determining whether to admit such evidence in a homicide case, "the trial court must first
determine if the evidence is inflammatory." Commonwealth v. Holl ihan, 566 A.2d 254, 259 (Pa.
Super. 1989). If the evidence is inflammatory, "the trial court must then determine if the
13 evidence is of such essential evidentiary value that its need clearly outweighs the likelihood of
inflaming the passions of the jurors." Id.
Here, during the medical examiner's testimony, the assistant district attorney requested
that the examiner step down from the witness stand and point to the assistant district attorney's
body to show the jury the various locations of the victim's gunshot wounds and the trajectory of
the bullets that struck her. N.T. 1/7/14 at 134. This demonstration was clearly not inflammatory,
as the examiner simply pointed to the various locations. Moreover, the demonstration was an
extremely helpful aid for the jury to understand the direction of the injuries, as the differing
directions indicated the victim's movement during the shooting. N.T. 1/7/14 at 136-137.
Because the demonstration was highly relevant and entirely proper, trial counsel could not have
been ineffective for failing to object. No relief is due.
F Failure to object to admission ofco-defendant, Jacqueline Soler 's police statement
Defendant next claims that trial counsel was ineffective for failing to object to "the use of
co-defendant Jacqueline Soler's, statement where Defendant was prevented from confronting
and cross-examining the witness ... " Statement of Matters at� a(6). Defendant alleges that this
resulted in a Bruton violation. Id. This claim is without merit.
Under Bruton v. United States, 391 U.S. 123 (1968), the confession of a co-defendant
that incriminates another defendant at a joint trial may not be admitted as evidence unless the co-
defendant who made the statement takes the stand and is subject to cross-examination.
Otherwise, the Sixth Amendment right to confrontation of the defendant who did not make the
statement would be violated. However, the Confrontation Clause is satisfied if the confession is
redacted in such a manner as to remove facially incriminating references to the other defendant
and the jury is given an appropriate instruction to only consider the statement as evidence against
14 the defendant who made it. Commonwealth v. Daniels, 104 A.3d 267, 294 (Pa. 2014).
Contextual implication will not violate a defendant's rights. So long as neutral pronouns such as
"the other guy" or "him" are substituted for the name of the other defendant, and the jury is
given an appropriate limiting instruction, Bruton is satisfied. Id.
Here, the Commonwealth introduced the statement of co-defendant Jacqueline Soler,
which had been edited in accordance with Bruton. N.T. 1/9/14 at 171-184. In addition, the
Court instructed the jury that they could only consider Jacqueline Solers statement against
Jacqueline Soler, and that the statement was not evidence against defendant. N. T. l/ 10/14 at
128-129. Accordingly, defendant's Sixth Amendment rights were fully protected. Therefore,
trial counsel had no basis for objecting to the admission of the edited statement. As a result, he
could not have been ineffective for failing to do so.
G. Failure lo Request Involuntary Manslaughter Instruction
Defendant next claims that trial counsel was ineffective for failing to "request and/or
object to the trial court's refusal to instruct the jury on the lesser-included offense of involuntary
manslaughter." Statement of Matters at if a(7). This claim is without merit.
"[A] trial court shall only instruct on an offense where the offense has been made an issue
in the case and where the trial evidence reasonably would support such a verdict ... [nstructions
regarding matters which are not before the court or which are not supported by the evidence
serve no purpose other than to confuse the jury." Commonwealth v. Pa/ton, 936 A.2d 1170, 1176
(Pa. Super. 2007), ajj'd, 985 A.2d 1283 (Pa. 2009). Accordingly, an involuntary manslaughter
instruction is warranted when the evidence adduced at trial supports that the defendant caused
the death of another person as a direct result of his or her acting in a reckless or grossly negligent
manner. See 18 Pa.C.S. § 2504.
15 Here, the evidence presented at trial did not support a verdict of involuntary
manslaughter. Defendant confessed to detectives that on the night of the murder, he was arguing
with the victim, when he "snapped" and proceeded to shoot her multiple times, while she tried to
escape. N.T. 1/9/14 at 62-64. As discussed above, the confession was fully supported by the
physical evidence in the case, including the decedent's injuries as documented by the medical
examiner and the crime scene photographs. Such facts are completely inconsistent with
involuntary manslaughter. Accordingly, trial counsel had no basis to request such an instruction.
As a result, he could not have been ineffective for failing to do so.
fl. Failure lo Movefor a Mis/rial
Defendant next claims that trial counsel was ineffective for failing to request a mistrial
when the jury informed the Court that they were deadlocked on the charge of first degree
murder. Statement of Matters at ir a(8). This claim is without merit.
The duration of jury deliberations is a matter within the sound discretion of the trial court, whose decision will not be disturbed unless there is a showing that the court abused its discretion or that the jury's verdict was the product of coercion or fatigue. Relevant factors in this assessment include the charges at issue, the complexity of the issues, the amount of testimony to consider, the length of the trial, the solemnity of the proceedings, and indications from the jury on the possibility of reaching a verdict.
Commonwealth v. Moore, 937 A.2d 1062, 1077 (Pa. 2007), cert. denied, 519 U.S. 827 (1996).
Where the issues are complex and deliberations have been relatively brief, the Court does not
abuse its discretion in ordering further deliberations. Id. Further, where the jury indicates its
inability to reach a verdict, the Court may require that the jury retire for further deliberations.
Commonwealth v. Spencer, 275 A.2d 299, 304-305, 305 n.7 (Pa. 1971). Finally, the Rules of
Criminal Procedure explicitly authorize the Court to take a partial verdict when the jury fails to
agree on a particular charge. See Pa.R.Crim.P. 648(0).
16 In this case, following a four-day jury trial where seventeen witnesses testified, the jury
deliberated for approximately eleven hours before indicating that while it reached a verdict on all
other charges, it was unable to "come to a unanimous decision that the defendant Daniel Soler
[was] guilty of first-degree murder." N.T. 1/10/14 at 173-205; 1/13/14 at 40; 1/14/14 at 8-9. At
that time, the Court properly gave a standard Spencer charge to the jury, instructing it to continue
to deliberate in an effort to reach a verdict. N.T. 1/14/14 at 9-13.5 Approximately three hours
later, the jury indicated that it still had not reached a unanimous verdict. N.T. 1/14/14 at 17.
Therefore, the Court instructed the jury that it could move beyond the first degree murder charge
and consider the remaining charges in the case with a view toward reaching a partial verdict.
N.T. 1/14/14 at 23-25.6 A short time later, the jury inquired whether first degree murder was still
an option. The Court responded that while the jury was not prohibited from reaching a verdict
on first degree murder, if it could not do so, it should determine whether defendant was guilty or
not guilty of third degree murder. N.T. 1/14/14 at 29-30.
Approximately one hour later, the jury informed the Court that it was still unable to reach
a verdict on first degree murder, and that some jurors were unwilling to consider third degree
murder. N.T. 1/14/14 at 32. It was clear from that communication that some jurors who
believed that defendant had the specific intent to kill, were unwilling to consider third degree
murder since the Court had defined it as "a killing with malice where there is no specific intent to
kill." N. T. 1/10/14 at 148. That instruction was derived from the standard jury instructions,
5 A Spencer charge is a standard instruction given to a deadlocked jury that was recommended by the American Bar Association and approved by our Supreme Court in Spencer, supra. See, e.g., Commonwealth v. P. LS, 894 A.2d 120, 125-126 (Pa. Super.), appeal denied, 906 A.2d 542 (Pa. 2006). 6 It was necessary to instruct the jury that it had permission to move beyond first degree murder, because the Court had given the jury a standard "horn icide progression charge," which directs the jury to decide the most serious form of homicide before moving on to any lesser charges. Such an instruction is proper. See Commonwealth v. Washington, 927 A.2d 586, 611 (Pa. 2007).
17 which define third degree murder as "any killing with malice that is not first or second degree
murder." Pa.SSJI § 15.2502C (Crim.). This widely used standard instruction, read literally, is
incorrect, since a defendant can be guilty of third degree murder whether or not he or she has the
specific intent to kill. As our Supreme Court has stated:
[A]bsence of specific intent to kill is not an element of third degree murder; rather, such crime is an intentional act, characterized by malice, that results in death, intended or not. ... True, the intent to kill is a defined clement of first degree murder-this does not mean an element o I' third degree murder is the polar opposite of intent to kill, such that the Commonwealth must prove a lack of intent to kill to convict of third degree murder. The Commonwealth has no such obligation; evidence of intent to kill is simply irrelevant to third degree murder. The elements of third degree murder absolutely include an intentional act, but not an act defined by the statute as intentional murder. The act sufficient for third degree is still a purposeful one, committed with malice, which results in death ....
Commmonweatlh v. Fisher, 80 A.3d 1186, 1191 (Pa. 2013). Accordingly, the Court clarified for
the jury that absence of specific intent to kill was not an element of third degree murder, and that
jurors who believed that defendant had the specific intent to kill were not precluded from
considering the third degree murder charge. N.T. 1 /14/l 4 at 39-41. Because this instruction
accurately set forth the law, trial counsel had no basis to object to it, or to request a mistrial.
Moreover, trial counsel had no strategic reason for requesting a mistrial, even if the law
had given him a basis to do so. Counsel's goal was to avoid a conviction for first degree murder,
given the overwhelming evidence that defendant shot and killed the defenseless decedent.
Counsel attempted to convince the jury that due to defendant's intoxication from drugs and
alcohol, he could not formulate an intent to kill and was only guilty of third degree murder. N.T.
1/10/14 at 25-30. Therefore, a conviction for third degree murder was a victory for the defense;
and certainly preferable to retrying the case for first degree murder following a mistrial.
18 Accordingly, trial counsel could not have been ineffective for failing to request a mistrial
after the jury reported it could not reach a verdict on first degree murder. No relief is due.
I. After-Discovered Evidence
Defendant next claims that the PCRA Court "erred by failing to credit the newly-
discovered evidence submitted and filed by the Defendant concerning corrupt Homicide
Detective, Ronald Dove, after Dove pied guilty to all charges filed against him, including
tampering with/fabricating physical evidence on April 26, 2017." Statement of Matters at� b.
This claim is without merit.
To obtain relief under the PCRA based on after-discovered evidence, defendant must
plead and prove that the evidence: 1) could not have been obtained prior to the conclusion of the
trial by the exercise ofreasonable diligence; 2) is not merely cumulative; 3) will not be used
solely to impeach the credibility of a witness; and 4) would likely compel a different verdict. 42
Pa.C.S. § 9543(a)(2)(vi); Commonwealth v. D 'Amato, 856 A.2d 806, 823 (Pa. 2004).
Defendant's proffered after-discovered evidence fails to entitle him to relief for several reasons.
First, while it is true that on April 26, 2017, Detective Dove pied guilty to one count each
of flight to avoid apprehension, trial, or punishment (18 Pa.C.S. § 5126(a)), conspiracy (18
Pa.C.S. § 903), hindering apprehension or prosecution (18 Pa.C.S. § 5105(a)(1 )), obstructing
governmental operations (18 Pa.C.S. § 5101), unsworn falsification to authorities (18 Pa.C.S. §
4904(a)(l )), and tampering with or fabricating physical evidence (18 Pa.C.S. 4910( 1 )), these
convictions of unrelated criminal conduct would have no probative value apart from impeaching
Dove's credibility. As outlined under the four-part test set forth above, "[a] defendant seeking a
new trial must demonstrate he will not use the alleged after-discovered evidence 'solely to
19 impeach a witness's credibility."' Commonwealth v. Griffin, 137 A.3d 605, 610 (Pa. Super.
2016) (quoting Commonwealth v. Castro, 93 A.3d 818, 821 n.7 (Pa. 2014)).
Moreover, Dove was never called as a witness in the case: his involvement was taking
defendant's confession, and his testimony would have been completely duplicative of Detective
Bamberski, who was also present during defendant's statement. Accordingly, Dove's
convictions would not be admissible in evidence even if defendant's case were retried. No relief
is due.
J PCRA Counsel's Ineffectiveness
Finally, defendant claims that the PCRA Court erred "by failing to credit the defendant's
claims of PCRA counsel ineffectiveness ... " Statement of Matters at� c. Specifically, defendant
complains that PCRA counsel failed to communicate effectively with defendant and failed to
raise claims of arguable merit in an amended petition. However, for the reasons set forth above,
defendant has identified no claims of arguable merit, and PCRA counselwas correct to refuse to
raise defendant's meritless claims in an amended petition. No relief is due.
IV. CONCLUSION
For all of the foregoing reasons, the Court's order dismissing defendant's PCRA petition
should be affirmed.
BY THE COURT:
GLENN B. BRONSON, J.