J-S58018-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARK M. FISHER,
Appellant No. 1992 WDA 2013
Appeal from the PCRA Order Entered November 25, 2013
In the Court of Common Pleas of Washington County
Criminal Division at No(s): CP-63-CR-0002149-2007
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 26, 2014
2013 order denying his petition for relief filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant raises
nine claims of ineffective assistance of counsel (IAC). After careful review,
we affirm.
Following a jury trial in September of 2008, Appellant was convicted of
second-degree murder, two counts of robbery, burglary, aggravated assault,
unlawful restraint, false impersonation of a private employee, reckless
endangerment, and conspiracy.
criminal event that occurred on January 29, 2003. At
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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approximately 1:00 p.m. on the day in question, Thomas Miller,
a retired customer service representative for Equitable Gas
Company, observed three males who appeared to be about
twenty years old and who were wearing outdated Equitable Gas
Company attire. They were walking up the driveway of the
residence of Shannon and Freda Dale on 613 Venetia Road,
Venetia, Washington County. Mr. Dale was eighty-nine years old,
and Mrs. Dale was ninety years old.
Mr. Dale was standing outside his home when he was
approached by a Caucasian male who was wearing the vest of a
utility worker and was between thirty to forty years old. Mr. Dale
allowed the man into his home after the man said that he was
employed by the gas company and needed to enter the house to
perform work. When Mr. Dale entered his house, he saw three
other men assaulting his wife. Mr. Dale and his wife were bound
with duct tape. Mr. Dale then was struck repeatedly on the head
and face, kicked in the torso, and had his finger twisted so that
he would respond to questioning about the location of his
money. The four men proceeded to ransack the Dale home.
At approximately 3:00 p.m., Julia Heppner, a caregiver to
the Dales, arrived at the residence. The garage door was open[],
he kitchen table and [the]
contents had been removed from that item. As Ms. Heppner
looked into the hallway adjacent to the kitchen, she saw Mrs.
Dale lying on the floor bound by duct tape. Ms. Heppner began
to search for a telephone when she heard Mr. Dale cry for help.
She found Mr. Dale badly beaten. The telephone had been pulled
from the wall, so Ms. Heppner drove to a nearby store and
telephoned police from that location.
Peters Township Police Sergeant Donald E. Heinlein and
Peters Township Police Officer Brian Barbour responded to the
call. At that time, there was a substantial amount of snow on the
ground. When the police officers arrived, they discovered that
Mrs. Dale was dead. The coroner testified that she died from a
heart attack that was caused by the attack. Mr. Dale was
bleeding from his face, had cuts and bruises on his face, and had
bruising in his right rib area. Brian Shugar, the EMS supervisor
who arrived at the scene shortly after the police, stated that Mr.
Dale appeared severely beaten and that Mr. Dale told Mr. Shugar
that he had been hit in the head as well as kicked in the chest.
Mr. Dale was transported to the hospital where it was discovered
that three teeth had been knocked from his upper denture plate,
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and he had sustained a significant injury to his right eye, a
fractured rib, a twisted and swollen finger, and multiple prick-
like injuries on his lower legs.
Sergeant Heinlein and Officer Barbour found that the Dale
house, which was always very tidy, had been ransacked. All of
the drawers were pulled from furniture located in the bedroom
and dining room. The contents of the dining room drawers had
been riffled through and thrown into a large pile on the floor.
pile of pape
ankles contained her DNA as well as DNA of a male. The male
DNA could not be excluded as belonging to Appellant in that only
one in 14,000 individuals in the Caucasian population would be
expected to be included as a potential contributor to the mixture
of DNA contained on the duct tape that bound Mrs. Dale. Six
days after the crime, the snow had melted, and police
discovered a cigarette butt just outside the Dale home. Police
ascertained that neither the Dales[,] nor did anyone who came
to their house[,] smoked. Therefore, police took the burnt
cigarette and had it tested for DNA. DNA was recovered from the
nineteen years old on the day of the incident.
Mr. Dale died on February 7, 2008. Prior to his death, he
indicated that he could identify the perpetrator who approached
him on January 29, 2003. Police showed him a photographic
array on March 19, 2003, and he chose the picture of a man
named Michael Marks as that man. Mr. Marks was initially
charged in connection with this crime, but when no other
evidence was found to link him to the incident, those charges
were withdrawn. At trial, Appellant presented an alibi defense.
His mother and sister-in-law testified that he was in Texarkana,
Arkansas, on January 29, 2003.
Commonwealth v. Fisher, No. 49 WDA 2009, unpublished memorandum
at 1-4 (Pa. Super. filed June 7, 2010) (footnote omitted).
After Appellant was convicted of the above-stated offenses, he was
sentenced to an aggregate term of life imprisonment without the possibility
of parole. Appellant filed a timely notice of appeal and, after this Court
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affirmed his judgment of sentence, our Supreme Court denied his petition
for allowance of appeal on February 9, 2011. Commonwealth v. Fisher, 6
A.3d 547 (Pa. Super. 2010) (unpublished memorandum), appeal denied, 15
A.3d 489 (Pa. 2011).
Appellant filed a timely counseled PCRA petition on February 8, 2012,
raising nine IAC claims involving the representation of his trial counsel,
Glenn Alterio, Esq. On February 6, 2013, the PCRA court conducted an
evidentiary hearing, at which Attorney Alterio and Appellant testified. On
petition. He filed a timely notice of appeal and, herein, he raises the
following nine issues for our review:
A. Did the PCRA [c]ourt err in failing to find that [t]rial [c]ounsel
rendered [IAC] when he failed to request a jury instruction
informing the jury on the manner in which they should consider
the presentation of DNA evidence?
B. Did the PCRA [c]ourt err in failing to find that [t]rial [c]ounsel
rendered [IAC] in failing to request a line-up involving
[Appellant] and, thereby, deprived [Appellant] of a fair trial?
C. Did the PCRA [c]ourt err in failing to find that [t]rial [c]ounsel
rendered [IAC] in failing to preserve the testimony of Mr. Dale as
to the identification of the actual perpetrator where the failure
resulted in the exclusion of material evidence indicating that Mr.
Dale had specifically identified Michael Marks[], rather than
[Appellant], as a perpetrator?
D. Did the PCRA [c]ourt err in failing to find that [t]rial [c]ounsel
rendered [IAC] when he failed to request a continuance of trial
and obtain the services of an expert in the fields of DNA analysis
and fingerprint identification?
E. Did the PCRA [c]ourt err in failing to find that [t]rial [c]ounsel
rendered [IAC] in failing to object or file a motion in limine to
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preclude the hearsay testimony of Sergeant Kevin Kolson
fit within any exception to the hearsay rule?
F. Did the PCRA [c]ourt err in failing to find that [t]rial [c]ounsel
rendered [IAC] in failing to object or in failing to file a motion in
limine to preclude the hearsay statements of Mr. Dale brought in
through Sergeant Kevin Kolson, the admission of which were in
violation of the Confrontation Clause, Sixth Amendment[] of the
United States Constitution and Article 1, § 9 of the Pennsylvania
Constitution?
G. Did the PCRA [c]ourt err in failing to find that [t]rial [c]ounsel
rendered [IAC] by failing to argue that the out-of-court
statement of Shannon Dale, concerning his identification of
Michael Marks, was admissible pursuant to the Due Process
exception to the hearsay rule?
H. Did the PCRA [c]ourt err in failing to find that [Appellant] was
denied effective assistance of counsel when [t]rial [c]ounsel
failed to object to misleading questions by the Assistant District
Atto
failure to immediately notify law enforcement officers they were
with [Appellant] on the date of the crime?
I. Did the PCRA [c]ourt err in failing to find that [Appellant] was
denied effective assistance of counsel when [t]rial [c]ounsel
failed to object when the Assistant District Attorney cross[-]
examined alibi witness, Karyl Fisher[,] about her conviction for
hindering the apprehension of a criminal in that the offense was
not crimen falsi?
Ap
standard of review from the grant or denial of post-conviction relief is limited
evidence of Commonwealth v.
Morales, 701 A.2d 516, 520 (Pa. 1997) (citing Commonwealth v.
Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)). Where, as here, a petitioner
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claims that he received ineffective assistance of counsel, our Supreme Court
has stated that:
[A] PCRA petitioner will be granted relief only when he proves,
by a preponderance of the evidence, that his conviction or
which, in the circumstances of the particular case, so
undermined the truth-determining process that no reliable
constitutionally adequate, and counsel will only be deemed
ineffective upon a sufficient showing by the petitioner. To obtain
was deficient and that the deficiency prejudiced the petitioner. A
petitioner establishes prejudice when he demonstrat
unprofessional errors, the result of the proceeding would have
posits that: (1) the underlying legal issue has arguable merit;
omission.
Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations
omitted).
Appellant first contends that Attorney Alterio rendered ineffective
assistance by not requesting a special jury instruction regarding how the
jury should evaluate the DNA evidence presented by the Commonwealth.
sought an instruction similar to the following:
You have heard testimony about frequency estimates calculated
for matches between known reference DNA samples and some of
the DNA evidence items in this case. You have heard testimony
concerning fingerprint evidence on an item at the scene. The
random match probability statistics used by DNA experts and the
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expert testimony regarding the presence of fingerprint evidence
is not the equivalent of a statistic that tells you the likelihood of
whether a defendant actually committed a crime or was involved
in the perpetration of a crime. Neither the presence of DNA or
fingerprint evidence conclusively establishes that the Defendant
was present at the Dale residence on the date of the criminal
activity or that he was a perpetrator in the criminal activity. It is
evidence being submitted to you for the purpose of showing that
DNA and fingerprint evidence were found at the Dale residence
and you, as the finder of fact, must consider and determine what
significance to attach to the testing results and their presence at
the scene.
Id. at 23.
In rejecting this claim, the PCRA court initially concluded that
the evidence to sustain his convictions, which was previously litigated on
direct appeal. See PCRA Court Opinion (PCO), 11/25/13, at 8. The court
further determined that Attorney Alterio had a reasonable explanation for
not requesting a special jury instruction regarding DNA evidence. See id. at
8-
regards.
However, we are compelled to address one argument Appellant raises
on appeal. He states:
At the time of the PCRA proceedings, it was anticipated the
failure of [t]rial [c]ounsel might be excused by the [PCRA]
[c]ourt because there is no case law on point requiring such an
instruction and that such an instruction is not contained in the
standard criminal jury instructions in Pennsylvania. That was
exactly how the PCRA [c]ourt ruled in finding that the prongs of
the ineffective assistance of counsel standard had not been met.
What the PCRA [c]ourt overlooked and what this Honorable
Court should not overlook is that, though the standard jury
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instructions do not provide this specific instruction or there is no
case on point, to summarily render a conclusion that such
instruction is unnecessary is misplaced. Simply because a
standard jury instruction has yet to be provided or an appellate
case may not point out that a particular instruction is required,
that fits the case and, if rejected by the trial court, [to] attempt
to make new law.
ineffectively. It is well-
Commonwealth v. Gribble, 863 A.2d 455, 464 (Pa. 2004) (citing
Commonwealth v. Ogrod, 839 A.2d 294 (Pa. 2003); Commonwealth v.
Carpenter, 725 A.2d 154 (Pa. 1999)). Similarly, we decline to find Attorney
Alterio ineffective for not attempting to instigate a change in the law
regarding jury instructions on DNA evidence. While certainly, counsel could
have requested the above-stated jury instruction, he was not obligated to do
the law as it stands today. See Commonwealth v. Spotz, 896 A.2d 1191,
1238 (Pa. 2006) (declining to find counsel ineffective for failing to request a
jury instruction that was first required by a case decided three years after
t
demonstrate that trial counsel was ineffective under the law in existence at
rendered ineffective representation.
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erio acted
ineffectively by failing to request that Appellant participate in a pre-trial
lineup. After reviewing the briefs of the parties, the record, and the
addresses this claim of ineffectiveness. Accordingly, we adopt the PCRA
See PCO at 9-10.
compel Mr. Dale to
had a reasonable basis for his conduct. Specifically, Attorney Alterio feared
that if Mr. Dale took the stand during the preliminary hearing, he would
identify Appellant as one of the assailants. See N.T. PCRA Hearing, 2/6/13,
at 25-
with the court that Attorney Alterio had a reasonable strategy for not
seeking to have Mr. Dale testify at the preliminary hearing. See PCO at 10-
11.
However, the PCRA court did not address an alternative argument
Attorney Alterio could have moved for Mr. D
preserved prior to trial under Pa.R.Crim.P. 500 (permitting a party to move
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could have waived his right to be present during the taking of such
identify Appellant. As such, Appellant argues that Attorney Alterio had no
reasonable strategy for not seeking
testimony under Rule 500.
Attorney Alterio regarding the Rule 500 issue as follows:
Rule of Criminal Procedure 500, you could have moved the Court
[Attorney Alterio:] Yes.
interject, but
The
want to take a chance that if Mr. Dale got on the stand and saw
your client sitting there that he would [identify] him?
The Court: Okay, I understand. Go on Counsel, thank you.
assisted the defense?
[Attorney Alterio:] Yes.
question as [to] why you did not attempt to preserve his
chance that he might identify [Appellant] as the perpetrator?
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[Attorney Alterio:] Yes, since he had already given his
statements to the police and [they] were part of the official
record.
[Attorney Alterio:] That probably is true. I think that is correct.
PCRA Hearing at 26-27.
to question Attorney Alterio about another unrelated issue. Id. at 27.
It is apparent from this testimony that Appellant did not specifically
confront Attorney Alterio with the fact that Appellant could have waived his
identifying Appellant as one of the perpetrators. Because Appellant did not
raise this specific assertion at the PCRA hearing, Attorney Alterio did not
state whether he considered - or why he declined - the option of invoking
that this Court must presume that Attorney Alterio had a reasonable basis
to prove otherwise. See
Commonwealth v. Williams, 980 A.2d 510, 520 (Pa. 2009) (stating that
reason
record, Appellant has failed to satisfy that burden of proof.
ineffective assistance when he failed to request a continuance of trial to
obtain the services of experts in the fields of DNA and fingerprint analysis.
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See PCO at 11-13.
there were any potential weaknesses in the DNA evidence which he could
that:
A review of Sample Q6, being the sample taken from the duct
mixture of DNA from Mrs. Dale and [Appellant], discloses no
signal or flag in the category for [fibrinogen alpha chain (FGA)].
The lack of any signal in the FGA category is strong evidence
that [Appellant] did not contribute to the mixture.
Id.
Appellant did not present any evidence (such as the testimony of a
- - basis
upon which Attorney Alterio could have cross-examined the
on cross-examination.
Appellant essentially argues that Attorney Alterio erred by not objecting to,
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de the Dale residence during the attack.
The PCRA court concluded, inter alia, that counsel had a reasonable basis for
-reasoned analysis in regard to both of these issues. See
PCO at 13-18.
We add, however, that Appellant has also failed to prove he was
this point is hi
the description of the aftermath[,] was not only prejudicial, but [it was] also
ence regarding the state in which
both victims were found (i.e. lying on the floor bound with duct tape, Mrs.
Dale deceased, and Mr. Dale badly beaten), as well as descriptions of the
injuries suffered by the Dales. In light of this evidence, we fail to see the
Kolson describing that he was bound with duct tape and beaten severely by
the perpetrators as they demanded money and ransacked his home.
Accordingly, even if Attorney Alterio should have objected to the admission
prejudiced by this purported error.
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was ineffective for failing to argue that the out-of-court statement of Mr.
Dale, in which he identified Michael Marks as one of the perpetrators, was
this issue. See PCO at 18-24.
in which he avers that Attorney Alterio acted ineffectively by failing to object
notify law enforcement officers [that] they were with [Appellant] on the date
our own regarding this claim. See PCO at 24-30.
should have objected when the Commonwealth cross-examined Karyl Fisher
regarding her prior conviction for hindering the apprehension of a criminal
issue. See PCO at 30-
Fisher denied her crime involved a false statement to police, Attorney Alterio
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hindering
apprehension conviction.
line of questioning, Appellant has not proven that he was prejudiced by
h
prove that had Attorney Alterio objected, the Commonwealth could not have
responded with proof that Fisher did admit to lying to police when pleading
guilty to that offense. Thus, he has failed to prove that an objection by
Attorney Alterio would have been sustained.
hindering apprehension offense is insufficient to prove prejudice. Appellant
rief at 68.
However, as the Commonwealth points out,
[t]he jury could have discredited the testimony of Karyl Fisher
for a variety of reasons (e.g., her delayed reporting to law
enforcement, her familial relationship with [Appellant] and
obvious motive to lie in order to protect him, the fact that
items both inside and outside of the home, etc.).
-46. Th
We cannot agree with Appellant that there is a reasonable probability the
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hindering apprehension offense. Thus, Appellant failed to prove he was
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/26/2014
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