J-S42011-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RACHEL A. KOZLOFF,
Appellant No. 1067 WDA 2015
Appeal from the PCRA Order July 5, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0001849-2012
BEFORE: SHOGAN, OTT, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED JULY 19, 2016
Appellant, Rachel A. Kozloff, appeals pro se from the Order entered on
July 5, 2015, that denied her petition filed pursuant to the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.
A prior panel of this Court summarized the factual history of this case
as follows:
On April 12, 2012, [A]ppellant shot her boyfriend, Michael
Henry, at his residence in Erie. Henry was a large man, standing
6’5” and weighing 285 pounds. Appellant is 5’4” and weighs 155
pounds. Henry was also a member of the Iron Wings motorcycle
gang and had a reputation for physical violence. As her defense
at trial, [A]ppellant conceded that she shot Henry, but contended
that he was continually physically abusive toward her during
their relationship, and at the time of his killing, he was savagely
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S42011-16
attacking her while she was trying to escape his residence.
Appellant shot Henry five times.
The Commonwealth in its case in chief, presented evidence
that [A]ppellant believed Henry was seeing other women and
wished to break off their relationship. The Commonwealth also
presented evidence that Henry was seated on a futon when he
was shot, and not attacking [A]ppellant.
On December 7, 2012, the jury convicted [A]ppellant of
third degree murder, recklessly endangering another person,
and possessing an instrument of crime. On January 29, 2013,
the court sentenced [A]ppellant to an aggregate term of 18 to
40 years’ imprisonment.
Commonwealth v. Kozloff, 474 WDA 2013, 102 A.3d 538 (Pa. Super filed
April 22, 2014) (unpublished memorandum at 1-2) (footnote omitted).
Appellant filed a timely direct appeal. This Court affirmed Appellant’s
judgment of sentence on April 22, 2014. Commonwealth v. Kozloff, 474
WDA 2013, 102 A.3d 538 (Pa. Super filed April 22, 2014). The Pennsylvania
Supreme Court denied Appellant’s petition for leave to file petition for
allowance of appeal nunc pro tunc on November 6, 2014. Commonwealth
v. Kozloff, 66 WM 2014, Order (Pa. filed November 6, 2014.).
Appellant filed a timely pro se PCRA petition on April 2, 2015. Counsel
was appointed. Order, 5/10/15. Following his review of the case, appointed
counsel file a “no-merit” letter and a petition for leave to withdraw as
counsel. No Merit Letter, 5/11/15, at 1-7; Petition for Leave to Withdraw as
Counsel, 5/11/15, at 1. Following the issuance of a notice of intent to
dismiss the PCRA petition without a hearing on May 2, 2015, the PCRA court
denied Appellant relief by order entered June 19, 2015. Appellant filed a
-2-
J-S42011-16
timely appeal on July 14, 2015. The PCRA court did not order the filing of a
Pa.R.A.P. 1925(b) statement.
Appellant presents the following issues for our review, which we
reproduce here verbatim:
1. Was the motion and appeal on question on admissability of
Defendant’s statement during interrogation erroneously denied
due to ineffective assistance of counsel.
2. Was trial counsel ineffective for failing to provide expert
testimony regarding battered woman syndrome and for not
objecting to the court’s erroneous charge to the jury which
overruled the defense of justification.
a. Government favorable evidence that Mike
Henry was violent and dangerous.
b. Further favorable police evidence of the
violence the Defendant experienced at the hands of
Mike Henry.
3. Was defense counsel ineffective for failing to provide
evidence as whether the decedent was effectively committing
suicide by proxy.
Appellant’s Brief at 2 (full capitalization omitted).
Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court’s determination and whether the PCRA
court’s determination is free of legal error. Commonwealth v. Phillips, 31
A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877
A.2d 479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be
disturbed unless there is no support for the findings in the certified record.
-3-
J-S42011-16
Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.
2001)).
Appellant’s issues on appeal allege ineffective assistance of counsel.
When considering an allegation of ineffective assistance of counsel, we note
that counsel is presumed to have provided effective representation unless
the PCRA petitioner pleads and proves that: (1) the underlying claim is of
arguable merit; (2) counsel had no reasonable basis for his or her conduct;
and (3) appellant was prejudiced by counsel’s action or omission.
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “In order to meet
the prejudice prong of the ineffectiveness standard, a defendant must show
that there is a ‘reasonable probability that but for counsel’s unprofessional
errors, the result of the proceeding would have been different.’”
Commonwealth v. Reed, 42 A.3d 314, 319 (Pa. Super. 2012). A claim of
ineffective assistance of counsel will fail if the petitioner does not meet any
of the three prongs. Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa.
2013). “The burden of proving ineffectiveness rests with Appellant.”
Commonwealth v. Rega, 933 A.2d 997, 1018 (Pa. 2007).
Although inartfully pled, Appellant appears to be arguing in her first
issue that trial counsel was ineffective for failing to object to the admission
at trial of the statements Appellant made to police. Appellant’s Brief at 6.
These statements were made to police during multiple “interviews,” defined
as custodial interrogations by Appellant. Id. at 6-7. Appellant asserts that
-4-
J-S42011-16
she was not given Miranda1 warnings at the first interview conducted at
police headquarters. Id. at 7. Appellant further argues that “[t]he purpose
of the second interrogation was to elicit evidence against the defendant so
that she could be more effectively prosecuted.” Id. at 8-9. The second
interview continued on in time so as to prevent Appellant from picking up
her daughter, resulting in Appellant’s mother being forced to do so. Id. at
9. Appellant argues:
[Appellant] believed she invoked her right to silence in a
custodial interrogation, and her right to leave to pick up her
daughter, but her will was overridden by the coercive actions of
the police particularly Officer Kem[l]ing, but also the group of
officers with whom she consulted. As such the interrogation
violated her due process right to be free of coercive interrogation
and the statements of [Appellant] should be suppressed.
Id. at 9.
We first note that Appellant fails to identify with specificity the
statements that were admitted at trial to which she objects. Appellant fails
to identify where in the record these statements were introduced. Moreover,
she fails to articulate how trial counsel was ineffective. Instead, Appellant
generally argues that the trial court erred in failing to suppress these
statements. Appellant’s Brief at 7-9. Thus, we conclude that Appellant’s
claim that counsel was ineffective is waived. Commonwealth v. Treiber,
121 A.3d 435, 474 (Pa. 2015) (holding that cursory allegations of counsel’s
____________________________________________
1
Miranda v. Arizona, 384 U.S. 436 (1966).
-5-
J-S42011-16
ineffectiveness were waived as a result of appellant’s failure to develop
those claims.).
Moreover, we note that Appellant raised this issue on direct appeal.
On direct appeal, this Court concluded that: “We find that [A]ppellant’s
second statement to police was neither involuntary, nor taken under false
pretenses, nor was there any basis for suppressing it.” Kozloff, 474 WDA
2013, at 4. Accordingly, this Court has already determined that there is no
merit to the underlying claim, and therefore Appellant cannot establish an
ineffectiveness of counsel claim. Spotz, 84 A.3d at 311
In her second issue, Appellant argues that trial counsel was ineffective
for failing to provide expert testimony regarding battered woman syndrome.
Appellant’s Brief at 10, 13. Additionally, Appellant asserts that counsel was
ineffective for failing to object to the trial court’s “erroneous charge to the
jury which overruled the defense of justification.” Id. at 10. Appellant also
maintains that the trial court failed to consider two important pieces of
evidence: that Mike Henry was violent and dangerous and the violence that
Appellant experienced at the hands of Mike Henry. Id. at 12. She asserts
that this evidence is “most favorable to the government.” Id. at 11-12.
Appellant further asserts that counsel should have brought up, in cross-
examination of witness Nicole Spinelli, the she had experienced violence at
the hands of Mike Henry also. Id. at 11.
-6-
J-S42011-16
A review of Appellant’s PCRA petition reveals that Appellant failed to
raise her claims regarding presentation of evidence of battered woman
syndrome and the trial court’s alleged erroneous jury charge on it.2 As a
result, we find these issues waived. See Commonwealth v. Santiago,
855 A.2d 682, 691 (Pa. 2004) (explaining that “a claim not raised in a PCRA
petition cannot be raised for the first time on appeal.”).
In her third issue, Appellant contends that “defense counsel was
ineffective for failing to provide evidence as to whether the decedent was
effectively committing suicide by proxy.” Appellant’s Brief at 14. In support
of this claim, Appellant presents the following argument:
The decedent Mike Henry was so vividly violent and
confrontational, that it is conceivable that his actions, were, on
one level or another identical to that seen in individuals who
confront police and essentially commit “suicide by cop.” In this
case, Mr. Henry clearly feared or hated police to the extent that
he avoided police, and as his motorcycle friends noted, he would
not want any police contacted even after he were dead.
However, his actions could arguably have been designed to end
his life by violence, and in this case he possibly succeeded, not
in committing “suicide by cop” but “suicide by proxy cop” the
woman he assaulted to the point of self-defense, justified killing.
He knew that [Appellant] carried a pistol for self-defense.
Defense counsel did not consider this as a defense, to the
prejudice of [Appellant].
Appellant’s Brief at 14.
____________________________________________
2
We note that as a result of Appellant’s failure to raise this issue in her
PCRA petition, the PCRA court did not address these issues. Opinion and
Notice of Intent to Dismiss PCRA Without Hearing Pursuant to Pa.R.Crim.P.
907(1), 5/21/15 at 1-4.
-7-
J-S42011-16
A review of Appellant’s PCRA petition reflects that Appellant did not
raise this issue in her PCRA petition. As previously noted, a claim not raised
in a PCRA petition cannot be raised on appeal. Santiago, 855 A.2d at 691.
Because this issue was not raised in Appellant’s PCRA petition, the PCRA
court did not have an opportunity to address it. Opinion and Notice of Intent
to Dismiss PCRA Without Hearing Pursuant to Pa.R.Crim.P. 907(1), 5/21/15
at 1-4. Accordingly, we find this issue waived.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/19/2016
-8-