J-S50020-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SAMUEL LAMONT PIERCE :
:
Appellant : No. 1887 WDA 2017
Appeal from the PCRA Order November 13, 2017
In the Court of Common Pleas of Washington County
Criminal Division at No(s): CP-63-CR-0001991-2007
BEFORE: BOWES, J., OTT, J., and KUNSELMAN, J.
MEMORANDUM BY OTT, J.: FILED MARCH 20, 2019
Samuel Lamont Pierce appeals, pro se,1 from the order entered
November 13, 2017, in the Washington County Court of Common Pleas
dismissing his first petition for collateral relief filed pursuant to the Post
Conviction Relief Act (“PCRA”).2 Pierce seeks relief from a sentence of life
imprisonment, imposed after a jury convicted him of first-degree murder.3 On
appeal, Pierce raises claims counsel provided ineffective assistance for failing
to raise the issue of a third DNA profile on the alleged murder weapon before
the jury. For the reasons below, we affirm.
____________________________________________
1 As will be explained infra, Pierce is pro se because PCRA counsel filed a
petition to withdraw with the PCRA court, which allowed counsel to withdraw.
2 42 Pa.C.S. §§ 9541-9546.
3 18 Pa.C.S. § 2502(a).
J-S50020-18
We take the following underlying facts and procedural history from this
Court’s opinion filed on May 10, 2010, on direct appeal:
At approximately 9:00 a.m. on Sunday, January 7, 2001,
Washington City Police Lieutenant Joseph E. Janflone responded
to a radio dispatch to confirm the well-being of an eighty-three-
year-old woman residing in the Maple Terrace apartment complex,
the decedent, Venzella Smith. After arriving at Ms. Smith’s first-
floor apartment, Lieutenant Janflone learned from a neighbor,
John Saffel, that Ms. Smith had not been seen for two days.
Lieutenant Janflone gained entrance to the residence through an
unlocked rear door. Thereafter, accompanied by a second police
officer, Lieutenant Janflone discovered Ms. Smith’s bludgeoned,
bloody body lying on the bed in her bedroom. After confirming
that Ms. Smith was dead, Lieutenant Janflone secured the crime
scene and contacted the supervising investigator, Chief Robert
Redlinger.1 Lieutenant Janflone did not observe signs of forced
entry into or a struggle inside Ms. Smith’s apartment.
__________________
1During 2004, then-Lieutenant Redlinger resigned from the
Washington City Police Department in order to become the
Chief of East Washington Borough’s Police Department.
Herein, we refer to the witness as Chief Redlinger.
__________________
As part of the investigation, Lieutenant Janflone interviewed
tenants in the neighboring apartments, including [Pierce] who
resided in the second-floor apartment directly above Ms. Smith’s
residence. [Pierce] informed Lieutenant Janflone that he had
recently moved into his apartment. He stated that he had seen
Ms. Smith around the apartment complex, but he did not know
her. [Pierce] also indicated that he was home the prior evening
and did not hear noises coming from Ms. Smith’s apartment.
Significantly, [Pierce] did not indicate that he had been in Ms.
Smith’s apartment or mention Kenneth Wheeler, the individual
[Pierce] later alleged to be the assailant.
During the trial, Chief Redlinger testified that upon arriving
at the crime scene, he confirmed that no signs existed of forced
entry or a struggle inside the apartment. Chief Redlinger
observed Ms. Smith’s body lying on her bed with blood on her face
and “a tremendous amount of blood all around and underneath
-2-
J-S50020-18
her.” She had lacerations on her neck and head. The hem of Ms.
Smith’s nightgown was raised above her waist and the bed sheets
and comforter were pulled off the bed. Large amounts of blood
had pooled on her pillows. More of Ms. Smith’s blood was
discovered splattered across the wall behind her bed.
Near Ms. Smith’s headboard, Chief Redlinger observed a
three-foot wooden club that resembled a table leg covered with a
white sock. One end of the sock-covered club had blood on it. A
video recording of the crime scene demonstrated that the club had
been secreted partially under Ms. Smith’s pillow. Chief Redlinger
found two additional wooden clubs covered with black socks lying
on the bed. Further investigation by Pennsylvania State Police
Corporal Beverly Ashton, an expert in blood splatter, revealed that
the white sock-covered club had a void in the splatter pattern of
Ms. Smith’s blood that was consistent with someone gripping the
club during the assault. She also indicated that the samples
submitted to the laboratory for testing had been removed from
the portion of the sock that covered the grip of the club.
Leon Rozin, M.D., a forensic pathologist, testified that he
performed the autopsy on Ms. Smith on January 7, 2001. An
external examination of Ms. Smith revealed multiple stab wounds
in her neck, multiple lacerations of the skull, and signs of
asphyxiation. The internal examination confirmed the slash and
stab wounds of the neck and also revealed a perforated larynx and
pharynx and severe hemorrhaging near the vagaus, which Dr.
Rozin explained was compressing the nerve and blood vessels that
integrate the heart and lungs.
Dr. Rozin indicated that Ms. Smith had fractures on her
fingers and contusions and bruises on both of her hands that were
consistent with defensive trauma incurred while she was recoiling
from the blows. He also discovered large hemorrhages in Ms.
Smith’s eyes that indicated that the airway in her neck had been
compressed with a blunt object. The examination of Ms. Smith’s
head revealed ten subcutaneous injuries consistent with blunt
force trauma.
In sum, Dr. Rozin concluded that Ms. Smith’s death was
caused by a combination of “blunt force trauma of the head,
compression of the neck which caused asphyxiation[,] and sharp
force trauma to the neck.” Dr. Rozin testified that the white-sock-
covered club was capable of causing the blunt force trauma.
-3-
J-S50020-18
Having found the manner of death unnatural and ruled out suicide,
Dr. Rozin concluded that Ms. Smith was the victim of homicide.
Id.
Relating to the physical evidence, Chief Redlinger explained
to the court that the police officers collected and marked the sock-
covered clubs and bedding and transported the evidence to the
police station for investigation by the Pennsylvania State Police
crime laboratory. The police also collected evidence from Ms.
Smith’s autopsy, including oral and vaginal swabs, fingernail
clippings, and clothing. All of the items were submitted to the
State Police crime laboratory during 2001, but there was no
determination of another person’s DNA on the items other than
Ms. Smith’s. The investigation remained open, however, and
following advances in DNA testing technology, the police
department resubmitted certain items for DNA testing during
2003, including the black and white socks that covered two of the
wooden clubs. The second submission revealed a foreign DNA
profile on the white sock. The investigators reviewed the foreign
DNA profile against a DNA database but no matches were
uncovered at that time. The investigation was idle until the fall of
2007, when Washington City Police Detective Daniel Stanek was
informed that the Combined DNA Indexing System (“CODIS”)
registered a DNA match between [Pierce] and the foreign DNA on
the white sock.
During the trial, Pamela J. Call, a forensic scientist employed
by the Commonwealth of Pennsylvania at the State Police DNA
Laboratory in Greensburg, explained how she discovered the DNA
match. [Pierce] stipulated that Ms. Call was an expert witness in
the field of forensic DNA analysis. Ms. Call testified that she
entered the foreign DNA profile into CODIS that eventually
identified [Pierce] in 2007. She later tested a buccal sample from
[Pierce] that Detective Stanek provided to confirm the match to
the foreign DNA found on the white sock. Based upon the results
of the confirmatory tests, Ms. Call calculated the statistical
likelihood that the mixture of DNA found on the white sock was
3.5 trillion times more likely to have come from a combination of
Ms. Smith and [Pierce] than from a combination of Ms. Smith and
any other African American.
Armed with the new DNA evidence, Detective Stanek
traveled to New Haven, Connecticut with an arrest warrant in
order to interview [Pierce] and obtain the buccal sample that
-4-
J-S50020-18
would confirm [Pierce]’s DNA. The New Haven Police arranged for
[Pierce] to come to the police station voluntarily. Detective
Stanek did not alert [Pierce] that he possessed an arrest warrant
predicated upon the CODIS DNA match. Instead, Detective
Stanek advised [Pierce] of his Miranda rights and asked him
general questions about Ms. Smith’s murder. Initially, [Pierce]
reiterated the story he had conveyed to Lieutenant Janflone during
2001; however, after Detective Stanek produced the arrest
warrant, [Pierce] provided a second account wherein he and
Kenneth Wheeler had been inside Ms. Smith’s apartment and that
Mr. Wheeler had committed the murder. [Pierce] stressed that he
did not harm Ms. Smith. [Pierce] asserted that Mr. Wheeler
threatened him during the attack. Furthermore, [Pierce] stated
that he was unsure whether he touched any items during the
incident, which he characterized as crazy, and he indicated that
he could not account for his every move inside the residence.
However, upon waiving extradition and returning to Pennsylvania,
[Pierce] advised Detective Stanek to “hold off” on telling the
district attorney about Mr. Wheeler’s alleged involvement.
The Commonwealth also adduced circumstantial evidence of
[Pierce]’s guilt. During the trial, Mr. Saffel testified that he
occupied a two-story apartment that shared a common wall with
Ms. Smith on the first floor and [Pierce] on the second floor. N.T.,
3/10/09, at 85. Mr. Saffel indicated that he heard loud banging
emanating from Ms. Smith’s bedroom at approximately 1:30 a.m.
Saturday morning. A few minutes later, he heard someone
running up the steps to [Pierce]’s second-floor apartment and
water running in [Pierce]’s bathroom. Mr. Saffel also testified that
he knew Kenneth Wheeler and that he did not observe Mr.
Wheeler in the area that weekend.
Based on the aforementioned evidence, a jury convicted
[Pierce] of first degree murder. On April 28, 2009, the trial court
imposed life imprisonment. [Pierce] did not file post-sentence
motions.
Commonwealth v. Pierce, 4 A.3d 187 [932 WDA 2009] (Pa. Super. 2010)
(unpublished memorandum at 1-8) (record citations omitted).
Pierce filed a direct appeal, raising sufficiency, weight, and suppression
issues. A panel of this Court affirmed Pierce’s judgment of sentence, and the
-5-
J-S50020-18
Pennsylvania Supreme Court denied his petition for allowance of appeal. See
id., appeal denied, 17 A.3d 1253 (Pa. 2011).
The PCRA court set forth the remaining, tortuous procedural history as
follows:
On July 14, 2011, [Pierce] filed a timely pro se PCRA petition. On
July 18, 2011, the trial court appointed Attorney Jeffrey Watson
to represent [Pierce] in PCRA proceedings. Attorney Watson filed
a Turner/Finley no-merit letter on September 26, 2011.
Attorney Watson did not file a contemporaneous motion to
withdraw as counsel and did not seek leave of court to withdraw
within the no-merit letter itself. In addition, Attorney Watson did
not provide proof that he informed [Pierce] of his rights following
the filing of a no–merit letter. On October 11, 2011, former
President Judge Debbie O'Dell Seneca issued a notice of intention
to dismiss [Pierce]’s PCRA petition. [Pierce] filed an undated letter
in response to the trial court’s notice of its intention to dismiss the
PCRA petition. Therein, he raised additional points in support of
his PCRA claims. Attorney Watson filed a supplemental no-merit
letter or, February 1, 2012 and again did not make a request to
withdraw and did not offer proof that he sent [Pierce] a letter
explaining his rights after the filing of a no–merit letter.
On February 20, 2012, the trial court dismissed [Pierce]’s
PCRA petition without a hearing. Attorney Watson continued to
represent [Pierce] and, on March 14, 2012, filed a notice of
appeal. On April 16, 2012, Attorney Watson filed a no-merit brief
with the Superior Court identifying certain issues that [Pierce]
sought to raise. Before reviewing the merits of the underlying
claims, the Superior Court addressed the strict procedure required
of an attorney who files a Turner/Finley no-merit letter with a
PCRA court. The Superior Court found that Attorney Watson did
not comply with that procedure and remanded the case.
On remand from the Superior Court, former President Judge
O’Dell Seneca appointed Attorney Mary Bates as new PCRA
counsel on January 2, 2013. On June 11, 2013, Attorney Bates
filed a Petition to Withdraw as Counsel. Therein, Attorney Bates
stated that she “has concluded that, based upon her review of the
claims asserted and the reasons set forth in the two No Merit
Letters [from Attorney Watson] and this Honorable Court’s ORDER
-6-
J-S50020-18
and Dismissal of [Pierce]’s PCRA Petition, that both of [Pierce]’s
PCRA Petitions are without Merit and [Pierce] may now proceed
pro se, or by privately retained counsel, or not at all.” See Petition
to Withdraw as Counsel, June 11, 2013, ¶ 11. Attorney Bates did
not detail the nature and extent of her review of the case, did not
list the issues that [Pierce] wants to have reviewed, and did not
explain why and how those issues lack merit. There is nothing in
the record detailing a diligent review of [Pierce]’s claims by
Attorney Bates. From the record, it appears to this Court that
Attorney Bates relied on the prior review of others. Former
President Judge O’Dell Seneca granted Attorney Bates’s request
to withdraw as counsel on June 11, 2013, but did not issue a notice
of intent to dismiss [Pierce]’s PCRA petition or take other action.
[Pierce] filed two motions to supplement his PCRA petition,
dated June 18, 2013 and August 20, 1013, respectively. On
September 10, 2013, former President Judge O’Dell Seneca
appointed Attorney Thomas Agrafiotis as new PCRA counsel
without explanation. According to the record, Attorney Agrafiotis
did not file anything with respect to the case for close to three and
a half years. The case was reassigned from former President
Judge O’Dell Seneca to Judge Michael Lucas in 2016. Judge Lucas
subsequently submitted a recusal form – he prosecuted the case
while working in the District Attorney’s Office. The case was
reassigned from Judge Lucas to the undersigned in March 2017.
On March 9, 2017, Attorney Agrafiotis filed a Petition to
Withdraw as Counsel. Therein, Attorney Agrafiotis states that he
“agreed to keep this instant case after the expiration of his
contract with the County as a Conflicts Counsel; said contract
having expired on April 30, 2014.”2 Petition to Withdraw as
Counsel, ¶ 14. Attorney Agrafiotis also states that he has
“continued to represent [Pierce] and research any applicable law
that may have assisted [Pierce]” including requesting additional
evidence and/or facts from [Pierce] “on multiple occasions.” Id.
at ¶¶ 15-17. There is no further information concerning the extent
of the research conducted or the dates of requests made to
[Pierce] and Attorney Agrafiotis does not further explain the
almost three and a half year delay.3 In similar fashion to Attorney
Bates’s Petition to Withdraw, Attorney Agrafiotis states that he
“has concluded based upon his review of the claims asserted and
the reasons set forth in the two No Merit Letters of Attorney
Watson, the Trial Court’s Order dismissing [Pierce]’s PCRA
Petition, and the reasons set forth in Attorney Bates’ Petition to
-7-
J-S50020-18
Withdraw that [Pierce]’s PCRA Petition is without Merit.” Id. at ¶
23. Attorney Agrafiotis does not detail the nature and extent of
his review of the case, does not list the issues that [Pierce] wants
to have addressed, and does not explain why and how those
issues lack merit based on his review. It appears to the Court that
Attorney Agrafiotis incorporates the reasoning of Attorney Watson
by way of reference to Attorney Watson’s no-merit letters.
Attorney Watson did list the nature and extent of his review, did
identify issues [Pierce] wished to raise, and did provide an analysis
for concluding that [Pierce]’s issues lacked merit. As explained
above, however, Attorney Watson failed to comply with all of the
procedural requirements of Turner/Finley in that he did not
make a request to withdraw and did not offer proof that he sent
[Pierce] a letter explaining his rights after the filing of a no-merit
letter.
__________________
2 The Court notes that there is nothing in the record to
indicate that Attorney Agrafiotis filed anything on the case
in the almost 8 months between being assigned the case
and his contract expiring. Moreover, once the trial court
appoints counsel, he is to continue representation
throughout the proceedings unless the court grants counsel
permission to withdraw. Commonwealth v. Quail, 729
A.2d 571 (Pa. Super. Ct. 1999).
3 Counsel must either file an amended petition or prepare
a no-merit letter, helping a petitioner with a pro se petition
is insufficient. Commonwealth v. Duffey, 713 A.2d 63
(Pa. 1998).
__________________
This Court conducted its own independent review of the
record in light of [Pierce]’s initial pro se PCRA petition and
supplemental petitions. The Court identified an issue concerning
the selection of jurors that none of [Pierce]’s appointed counsel
addressed. On April 7, 2017, the Court issued an order directing
Attorney Agrafiotis to submit a detailed letter complying with the
requirements of Turner/Finley or an amended PCRA petition
concerning the issue within 30 days. On May 10, 2017, the Court
granted Attorney Agrafiotis’s Motion for Extension to File
Turner/Finley Letter or Amended PCRA Petition. Attorney
Agrafiotis filed a no-merit letter on July 11, 2017.4
-8-
J-S50020-18
__________________
4The Court disagrees with Attorney Agrafiotis’s comments
that [Pierce]’s PCRA claims must fail because they are
undeveloped in [Pierce]’s pro se petition. The Rules of
Criminal Procedure expressly mandate that a defendant
shall be entitled to legal counsel when filing a first time PCRA
petition. It is the province of appointed counsel to evaluate
and develop a defendant’s claims. See Commonwealth v.
Williams, 782 A.2d 517, 525 (Pa. 2001). If those claims
cannot be developed due to a lack of evidence, a lack of
merit, an uncooperative Defendant, etc., the appropriate
course of action for PCRA counsel is to fully explain this in a
no-merit letter.
__________________
This Court recognizes the procedural irregularities in this case. In
view of Attorney Agrafiotis’s incorporation of Attorney Watson’s
no-merit letters by way of reference, the Court considers the
procedural requirements of Turner/Finley to have been met at a
minimum. The Court is loath to incur further delay of the
proceedings and is mindful of [Pierce]’s right to have his claims
reviewed on the merits. As noted previously, the Court conducted
its own independent review of the record and for the reasons set
forth below finds that [Pierce]’s PCRA petition lacks merit.
PCRA Court Opinion, 8/31/2017, at 5-9.
On August 31, 2017, the PCRA court issued notice of its intent to dismiss
the petition without first conducting an evidentiary hearing pursuant to
Pa.R.Crim.P. 907, and granted counsel’s request to withdraw from the matter.
After receiving an extension, Pierce filed a response, titled “Motion for Leave
of Court to Amend PCRA Petition,” on November 13, 2017. Two days later,
-9-
J-S50020-18
the PCRA court entered an order dismissing Pierce’s petition. This appeal
followed.4
Preliminarily, we note: “[A]lthough this Court is willing to construe
liberally materials filed by a pro se litigant, pro se status generally confers no
special benefit upon an appellant.” Commonwealth v. Lyons, 833 A.2d 245,
252 (Pa. Super. 2003), appeal denied, 879 A.2d 782 (Pa. 2005) (some
citations omitted). “[A]ny layperson choosing to represent himself in a legal
proceeding must, to some reasonable extent, assume the risk that his lack of
expertise and legal training will prove his undoing.” Commonwealth v.
Gray, 608 A.2d 534, 550 (Pa. Super. 1992), quoting Vann v.
Commonwealth Unemployment Compensation Bd. of Review, 494 A.2d
1081, 1086 (Pa. 1985). As such, we cannot serve as Pierce’s counsel and
litigate his claims for him.
While it appears Pierce raised numerous issues in his PCRA petition,
Pierce focuses on one issue for this appeal – that counsel was ineffective for
failing to raise the issue of a third DNA profile on the alleged murder weapon
before the jury and failing to object when the Commonwealth did not inform
the jury of such evidence. Pierce’s Brief at 7-9. Specifically, he states, “Trial
counsel failed to inform the jury that there was another male’s DNA found on
____________________________________________
4 The court did not order Pierce to file a concise statement of errors
complained of on appeal under Pa.R.A.P. 1925(b). On December 26, 2017,
the PCRA court entered a Pa.R.A.P. 1925(a) opinion, incorporating its August
31, 2017, opinion.
- 10 -
J-S50020-18
the white sock. Trial counsel failed to point out that the DNA database
reflected that there was more than one male contributor to the portion of the
DNA samples.” Id. at 7 (citation omitted). Moreover, he argues, “Trial
Counsel lacked any reasonable basis for failing to object when the state did
not inform the jury of the second male’s DNA and where it was found on the
blunt object. Trial counsel’s improper course of conduct was prejudicial
resulting in an adverse effect upon the outcome of the proceedings.” Id. at 8
(citation omitted). Further, Pierce states:
Mr. Saffel a witness for the prosecutor testified that he did
not see [Pierce] that weekend, as well, Saffel further went on to
testify that moments after the loud banging had stopped he heard
someone running up [Pierce]’s stairs and water running in
[Pierce]’s bathroom. Saffel did not testify to who was running up
the stairs, for all Saffel knew someone could have been coming
down those stairs because Saffel did not see anyone at the time
of the homicide.
According to Saffel’s statement he told the police he did not
have any recollection of hearing anything that night and trial
counsel failed to present Saffel with the statement he made to
police the morning after the homicide. This could have been used
as impeachment evidence during [Pierce]’s trial. As the trial court
stated Pam Call testified[] to only where [Pierce]’s DNA was found
on the white sock, but did not testify to the fact that the unknown
male’s DNA was also found on the white sock. Trial counsel failed
to object to that misconduct by the prosecutor.
Id. at 9 (citation omitted).
We begin with our well-settled standard of review:
Our standard of review of a PCRA court’s dismissal of a PCRA
petition is limited to examining whether the PCRA court’s
determination is supported by the evidence of record and free of
legal error. Great deference is granted to the findings of the PCRA
- 11 -
J-S50020-18
court, and these findings will not be disturbed unless they have
no support in the certified record.
In order to prevail on a claim of ineffective assistance of counsel,
an appellant must show three things: that the underlying claim
has arguable merit, that counsel’s performance was not
reasonably designed to effectuate the defendant’s interests, and
that counsel’s unreasonable performance prejudiced the
defendant. A defendant is required to show actual prejudice; that
is, that counsel’s ineffectiveness was of such magnitude that it
could have reasonably had an adverse effect on the outcome of
the proceedings.
Commonwealth v. Sampson, 900 A.2d 887, 890 (Pa. Super. 2006)
(quotations and citations omitted), appeal denied, 907 A.2d 1102 (Pa. 2006).
Here, the PCRA court provided a well-reasoned explanation for denying
Pierce relief:
As set forth in the facts above, a three-foot wooden club
that resembled a table leg covered with a white sock was found at
the crime scene secreted partially under Ms. Smith’s pillow. One
end of the sock-covered club had blood on it. Further
investigation by Corporal Beverly Ashton, an expert in blood
splatter, revealed that the white sock-covered club had a void in
the splatter pattern of Ms. Smith’s blood that was consistent with
someone gripping the club during the assault. Corporal Ashton
also indicated that the samples submitted to the laboratory for
testing had been removed from the portion of the sock that
covered the grip of the club.
During the trial, Ms. Call explained the DNA analysis that
she performed to the jury. Ms. Call testified that sample from the
white sock produced a mixture of DNA of Ms. Smith and an
unknown male. Ms. Call submitted the foreign DNA profile to
CODIS, which ultimately returned a match to [Pierce]. Ms. Call
later tested a buccal sample from [Pierce] to confirm [Pierce]’s
match to the male foreign DNA found on the white sock. Based
on the results of the confirmatory tests, Ms. Call calculated the
statistical likelihood that the mixture of DNA found on the white
sock was 3.5 trillion times more likely to have come from a
combination of Ms. Smith and [Pierce] than from a combination of
- 12 -
J-S50020-18
Ms. Smith and any other African American individual. Ms. Call did
not testify that there was a third DNA profile found on the white
sock.
[Pierce] presented his own expert, William Watson, who
reviewed the testing that was performed by the state’s laboratory.
Mr. Watson explained that a person must physically come into
contact with an item to deposit their DNA thereon. Mr. Watson
testified that the profile from the white sock sample produced a
mixture of DNA of a male and a female and that the profile was
consistent with that of the victim and [Pierce]. Mr. Watson did
not testify that there was evidence of a third DNA profile on the
white sock. See Defense Exhibit F (report of Mr. Watson indicating
that the mixed profile from item Q3 (the white sock) was
consistent with the profiles of the victim and [Pierce]; no other
profile was identified). He did state that there was a problem with
the initial testing of the sample – contamination in a reagent blank
or negative control. However, Mr. Watson acknowledged that
contamination is not uncommon in forensic laboratories. Mr.
Watson testified that to resolve a contamination problem, a new
sample from the original evidence is needed for DNA extraction.
Mr. Watson acknowledged that the Pennsylvania State Police
crime lab did “exactly that” in this case.
Considering that neither forensic expert concluded that
there was a third DNA profile on the white sock, the Court finds
that trial counsel was not ineffective for failing to raise the issue.
Were trial counsel to have asked either Ms. Call or Mr. Watson
about a third DNA profile, a negative response could have further
highlighted [Pierce]’s participation in the crime and forestalled
[Pierce]’s argument that Kenneth Wheeler committed the murder.
Trial counsel subpoenaed Mr. Wheeler to testify at the trial. When
called to the witness stand, the Court provided an oral colloquy to
Mr. Wheeler. After the colloquy, Mr. Wheeler stated that he would
decline to testify.7 Trial counsel cannot be held to be ineffective
for Mr. Wheeler exercising his Fifth Amendment right against self-
incrimination. The Court finds that trial counsel’s actions
concerning the DNA evidence had some reasonable basis designed
to effectuate his client’s interest.
____________________
7Despite the fact that [Pierce] informed the police that Mr.
Wheeler murdered Ms. Smith, he argues in his supplemental
- 13 -
J-S50020-18
pro se PCRA [petition] filed on December 2, 2011 with the
Washington County Clerk of Courts that “an unknown male
is the actual culprate [sic].” See Count 4. It is untenable
for [Pierce] to inform the police and his trial counsel that Mr.
Wheeler committed the murder prior to the trial, but argue
after the trial that counsel was ineffective for failing to
investigate that some unknown person was the culprit.
PCRA Court Opinion, 8/31/2017, at 19-21 (some citations omitted).
Following our review of the record, we agree with the PCRA court’s
analysis that this allegation of ineffectiveness had no merit and counsel’s
performance was reasonably designed to effectuate Pierce’s interests. Neither
expert DNA witness, Call nor Watson, testified that there was a third DNA
profile found on the white sock. Furthermore, Pierce has presented no such
evidence to substantiate his argument, including his assertion regarding
Saffel’s testimony. Accordingly, the PCRA court properly denied Pierce relief
regarding his claim.
We add one additional comment. In his brief, Pierce presents
generalized allegations of ineffectiveness as to prior counsel, Watson, Bates
and Agrafiotis, and their alleged failure to review his case in a diligent manner
and raise the issue of “unknown male DNA” found on the sock. See Pierce’s
Brief at 10-13. While we understand Pierce was appointed a series of
attorneys who, to varying degrees, failed to comply with the requirements of
Turner/Finley, we find this of no consequence based upon the PCRA court’s
mention that it did not want to let this case prolong any further and that it
had conducted its own independent review of the record as well as Pierce’s
- 14 -
J-S50020-18
substantive argument and our above-provided analysis – that there was no
evidence of a third DNA profile found on the sock and therefore, counsel
cannot be deemed ineffective for failing to raise a meritless claim. Moreover,
Pierce does not specify any other issues he wished his attorneys would raise
and failed to do so. Accordingly, we need not address this claim further.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/20/2019
- 15 -