Com. v. Spell, G.

J-S33012-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.

GAYLORD (NMN) SPELL

Appellant No. 1011 WDA 2015

Appeal from the PCRA Order May 26, 2015
in the Court of Common Pleas of Lawrence County Criminal Division
at No(s): CP-37-CR-0000603-2007

BEFORE: GANTMAN, P.J., OLSON, J., and FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 12, 2016

Appellant, Gaylord (NMN) Spell, appeals from the order of the

Lawrence County Court of Common Pleas denying his first Post Conviction

Relief Act1 (“PCRA”) petition following evidentiary hearings. Appellant claims

the PCRA court erred in denying relief on his numerous claims of ineffective

assistance of counsel. We affirm.

The Pennsylvania Supreme Court summarized the facts underlying

Appellant’s convictions in his direct appeal from the imposition of the death

sentence.

In the early morning hours of March 1, 2007, a
custodian at the Lawrence County Career and Technical
Center noticed a van traveling slowly through the school’s
parking lot. Later that morning, a teacher at the Center
found a nude body lying sideways in the parking lot, and

*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
J-S33012-16

called the police. Investigators soon identified the victim
and determined she was last seen alive on the evening of
February 27. Around 3:00 p.m. on March 1, a PennDOT
road crew alerted State Police after discovering clothing
strewn along a roadway in Butler County. State Police
recovered a bra, blue jeans, a sock, a flannel long-sleeve
shirt, thermal bottoms, a black slipper, a sock covered in
blood, a sweatshirt covered in blood, a blood-soaked
pillow, a bloodstained cover for the arm of a couch, and a
blood-covered tablecloth.

Dr. James Smith, a board certified forensic pathologist,
performed an autopsy on the victim’s body, which revealed
ten lacerations on her head and face, including two on
both her left and right temple, three on the back of her
head, and three on her scalp. The victim suffered a
fracture at the base of her skull, a laceration of her brain,
and a fracture on the back of her skull. She also had two
broken ribs and bruising on her head, face, lower back,
and legs. Dr. Smith determined the cause of death was
blunt force trauma to the head. Because the lacerations
looked identical, he opined she had been repeatedly struck
with the same round object.

State Police found material under the victim’s
fingernails and seminal fluid on her body, which allowed
them to produce a DNA profile. The profile was entered
into the Combined DNA Index System, a nationwide
database which includes DNA profiles of convicted felons; a
database in Virginia matched the DNA profile to
[A]ppellant. DNA testing further revealed the blood on the
thermal bottoms and black slipper was the victim’s, while
blood from the tablecloth matched both the victim and
[A]ppellant.

Appellant was interviewed by State Police; he denied
meeting the victim or ever having her in his residence.
State Police executed a search warrant of [A]ppellant’s
residence, and discovered a couch matching the arm cover
recovered on the road. A sequin was found that matched
the bra discovered along the roadway. Bloodstains were
found on [A]ppellant’s mattress and the floor between his
bed and nightstand. State Police also executed a search

-2-
J-S33012-16

warrant for [A]ppellant’s van, and found the victim’s blood
on the driver-side door window.

Investigation revealed [A]ppellant was scheduled to
work February 28, but called his employer to excuse
himself; he returned to work March 1, at 2:47 p.m. The
clothing, found around 3 p.m. that day, was on a route
[A]ppellant could have used to get to his workplace.

Appellant was charged with criminal homicide and
abuse of a corpse [on April 24, 2007, and the
Commonwealth filed a notice of aggravating circumstances
seeking the death penalty].

Commonwealth v. Spell, 28 A.3d 1274, 1277-78 (Pa. 2011).

Appellant was represented by the Public Defender’s Office. His trial

counsel, Harry O. Falls, Esq. (“trial counsel”), was the Chief Defender at that

time and appeared on his behalf at Appellant’s preliminary hearing with co-

counsel, Dennis Elisco, Esq. Trial counsel thereafter resigned as Chief

Defender in February 2008. N.T. PCRA Hr’g I, 4/30/14, at 34. He took a

disability leave from March to August 2008, during which he also sought

inpatient mental health treatment from May 31st to June 9th. Id. at 27, 36.

He returned to the Public Defender’s Office as a part-time Assistant Defender

in August 2008. Id. at 37.

After his return, trial counsel continued to represent Appellant along

with co-counsel. At that time, trial counsel’s caseload included two other

homicide cases: one, which resulted in a plea, and the other, which

proceeded to trial. N.T. PCRA Hr’g I at 18. Trial counsel’s protocol was to

consider each case serially, not simultaneously, and avoid discussing a case

-3-
J-S33012-16

with the defendant until he reviewed discovery. Trial counsel did not review

discovery in Appellant’s case until early 2009. In February 2009, trial

counsel filed a motion for a competency evaluation. According to a prison

log-in sheet, trial counsel met with Appellant on March 25, 2009, for twenty-

five minutes, on March 26, 2009, for fifty minutes, and on April 8, 2009, for

an unknown period of time.

Appellant appeared before the trial court on April 13, 2009, for jury

selection. Appellant requested new counsel, which the trial court denied.

N.T. Voir Dire I, 4/13/09, at 3-16. During the litigation of Appellant’s

request for new counsel, trial counsel indicated that “the closer we’ve gotten

to trial, the less cooperative he’s become.” Id. at 9. Jury selection

commenced that same day.

On April 20, 2009, trial counsel described Appellant as “now being one

hundred percent uncooperative.” N.T. Voir Dire VI, 4/20/09, at 18. Trial

counsel informed the trial court that Appellant intended to testify, but

refused to disclose the substance of his proposed testimony. Id. at 17.

Trial counsel asserted that Appellant authored a note addressed to the

Commonwealth, which Appellant gave to trial counsel. In the note,

Appellant indicated that he intended “to testify at trial that the killing in this

matter was committed by Crystal Black[,”] his girlfriend. Id. at 23.

Appellant accused trial counsel of disclosing the contents of the note and his

trial strategy. Id. Appellant again requested new counsel, which the trial

-4-
J-S33012-16

court denied. Id. at 28. Jury selection continued until April 22nd.

Meanwhile, the prison logs indicated that trial counsel again met with

Appellant on April 21st for thirty minutes.

On April 27, 2009, before opening statements, the District Attorney

disclosed that he was making campaign telephone calls and inadvertently

spoke with a juror empaneled for Appellant’s trial. N.T. Trial I, 4/27/09, at

3. The District Attorney indicated that the juror told him that he “was doing

a pretty good job” and she “was impressed” by him when she was in court.

Id. at 4. The court examined the juror, and the juror stated she

remembered the phone call, but did not recall the substance of her

conversation with the District Attorney. She did not recall relaying a

favorable opinion of the prosecutor and asserted she could remain fair. Id.

at 10, 13-14. Trial counsel did not object or move to replace the juror. Id.

at 16. Following a discussion with Appellant, trial counsel indicated that

Appellant agreed to have the juror sit for trial. Id. at 16. The court ruled

that the juror could continue to serve. Id. That same day, the

Commonwealth and Appellant gave opening statements and the

Commonwealth began presenting its evidence.

As indicated above, the trial evidence against Appellant was largely

circumstantial, but supported by DNA evidence suggesting that Appellant

had physical contact with the victim, disposed of the victim in Lawrence

County, and threw some of his and the victim’s personal items out of his van

-5-
J-S33012-16

in Butler County while driving to work. The Commonwealth’s evidence

included the testimony that the victim worked as a prostitute. Appellant,

against trial counsel’s advice, did not testify and presented no other

evidence.

On April 30, 2009, the jury found Appellant guilty of first-degree

murder and abuse of a corpse. On May 4th, the jury found an aggravating

circumstance, torture, and no mitigating circumstances. On May 15th, the

trial court imposed a sentence of death.

Appellant appealed to the Pennsylvania Supreme Court. The Court

affirmed the conviction, but found the evidence insufficient to sustain the

jury’s finding of torture and remanded for resentencing to a life sentence.

Spell, 28 A.3d at 1284. On December 2, 2011, the trial court resentenced

Appellant to life imprisonment.

On August 15, 2012, Appellant mailed the timely pro se PCRA petition

giving rise to this appeal. The PCRA court appointed present PCRA counsel.

PCRA counsel did not amend Appellant’s PCRA petition or respond to the

numerous pro se amendments Appellant filed with the trial court. After

requesting several continuances, PCRA counsel represented Appellant at

evidentiary hearings on April 30 and August 4, 2014, at which trial counsel

testified. Following the submission of a counseled brief by Appellant, the

PCRA court denied relief on May 26, 2015.

-6-
J-S33012-16

Appellant filed a timely notice of appeal. On June 29, 2015, the PCRA

court entered an order requiring the submission of a Pa.R.A.P. 1925(b)

statement. Appellant did not file a required statement. On September 10,

2015, the PCRA court authored an opinion noting the procedural defect, but

requesting that its order denying the PCRA petition be affirmed. PCRA Ct.

Op., 9/10/15, at 1, 45.

Appellant, in his counseled brief in this appeal, raises the following

questions for review:

Did the [PCRA] court err in finding that Appellant’s trial
counsel was not ineffective for failure to adequately
consult with Appellant and prepare a strategy for trial?

Did the [PCRA] court err in finding that Appellant’s trial
counsel was not ineffective for failure to contest, through
filing of an omnibus pretrial motion, the legality of the
multiple searches of [Appellant’s] residence and vehicle as
well as challenge the execution of the search warrants
issued for the searches?

Did the [PCRA] court err in finding that Appellant’s trial
counsel was not ineffective for failing to hire an expert or
specialist to examine and challenge the Commonwealth’s
physical evidence and expert testimony presented at time
of trial?

Did the [PCRA] court err in finding that Appellant’s trial
counsel was not ineffective for failing to explore an
independent exculpatory statement and secure the
testimony of witness Russell A. Wardman?

Did the [PCRA] court err in finding that Appellant’s trial
counsel was not ineffective for failing to make a timely
objection to preserve for appeal actual telecommunication
between the prosecutor and juror?

-7-
J-S33012-16

Did the [PCRA] court err in finding that Appellant’s trial
counsel was not ineffective for failure to present and
preserve a Batson[2] claim at time of trial?

Did the [PCRA] court err in finding that Appellant’s trial
counsel was not ineffective for failure to recognize, address
and preserve for review a conflict between the Public
Defender’s Office and [Appellant] as a result of former
representation of the victim?

Appellant’s Brief at 7-8.3

Preliminarily, we must consider Appellant’s failure to file a court-

ordered Rule 1925(b) statement. As stated by the Pennsylvania Supreme

Court:

[o]ur jurisprudence is clear and well-settled, and firmly
establishes that: Rule 1925(b) sets out a simple bright-line
rule, which obligates an appellant to file and serve a Rule
1925(b) statement, when so ordered; any issues not
raised in a Rule 1925(b) statement will be deemed waived;
the courts lack the authority to countenance deviations
from the Rule’s terms; the Rule’s provisions are not
subject to ad hoc exceptions or selective enforcement;
appellants and their counsel are responsible for complying
with the Rule’s requirements; Rule 1925 violations may be
raised by the appellate court sua sponte, and the Rule
applies notwithstanding an appellee's request not to
enforce it; and, if Rule 1925 is not clear as to what is
required of an appellant, on-the-record actions taken by
the appellant aimed at compliance may satisfy the Rule.
We yet again repeat the principle first stated in
[Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998)] that
must be applied here: “[I]n order to preserve their claims
for appellate review, [a]ppellants must comply whenever
the trial court orders them to file a Statement of Matters
Complained of on Appeal pursuant to Pa.R.A.P. 1925. Any

2
Batson v. Kentucky, 476 U.S. 79 (1986).
3
The Commonwealth has not filed a responsive brief.

-8-
J-S33012-16

issues not raised in a Pa.R.A.P. 1925(b) statement will be
deemed waived.”

Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (citations and

footnote omitted); accord Commonwealth v. Johnson, 51 A.3d 237, 246

(Pa. Super. 2012) (en banc).

The Pennsylvania Supreme Court, in Hill, addressed waiver under the

former version of Rule 1925. Hill, 16 A.3d at 490 n.11. The Court stated:

We need not determine whether the circumstances
presented would satisfy the terms of amended Rule
1925(c)(3), if the amendment applied. We note, however,
that the amendment speaks of remand only in “criminal
cases.” Technically, the PCRA is civil in nature. See
Commonwealth v. Haag, . . . 809 A.2d 271, 284 ([Pa.]
2002) (“The PCRA system is not part of the criminal
proceeding itself, but civil in nature.”) (citing
Pennsylvania v. Finley, 481 U.S. 551, 557 . . . (1987)).

Id. at 495 n.14.

The Hill Court also addressed a remand procedure under former Rule

1925(b) that adopted “efficiencies in the direct appeal context, involving an

issue frequently arising in Superior Court, and bottomed in existing remedial

caselaw.” Id. at 496 (emphasis added) (discussing the remand procedure

adopted in Commonwealth v. West, 883 A.2d 654 (Pa. Super. 2005) and

codified in current Rule 1925(c)(3)).

The Hill Court further noted:

[I]n the distinct context of a serial PCRA petition, this
Court has recognized the potential cognizability of a claim
of ineffective assistance of counsel premised upon counsel
abandonment. See Commonwealth v. Bennett, 593 Pa.
382, 930 A.2d 1264 (2007) (involving failure to file brief

-9-
J-S33012-16

on PCRA appeal which, under practice since eliminated by
Superior Court, resulted in dismissal of appeal; claim
deemed sufficient to warrant remand for consideration
under exception to PCRA time-bar set forth in 42 Pa.C.S. §
9545(b)(1)(ii) (governing previously unknown facts)).

Id. at 497 n.16.

Thus, the Hill Court applied the “bright line” rule of waiver based on

the former version of Rule 1925. Although it discussed the remand provision

of the current version of Rule 1925 and suggested current Rule 1925(c)(3)

should not apply in a PCRA appeal, that discussion is not mandatory

authority in the present case.

The current version of Rule 1925 contains the following remand

procedures in Subdivision (c):

(1) An appellate court may remand in either a civil or
criminal case for a determination as to whether a
Statement had been filed and/or served or timely filed
and/or served.

(2) Upon application of the appellant and for good cause
shown, an appellate court may remand in a civil case for
the filing nunc pro tunc of a Statement or for amendment
or supplementation of a timely filed and served Statement
and for a concurrent supplemental opinion.

(3) If an appellant in a criminal case was ordered to file a
Statement and failed to do so, such that the appellate
court is convinced that counsel has been per se ineffective,
the appellate court shall remand for the filing of a
Statement nunc pro tunc and for the preparation and filing
of an opinion by the judge.

Pa.R.A.P. 1925(c)(1)-(3).

- 10 -
J-S33012-16

Instantly, the exceptions in Paragraphs (c)(1) and (2) do not apply.

There is no indication that PCRA counsel has attempted to comply with the

PCRA court’s order for a Rule 1925(b) statement. See id. 1925(c)(1).

Further, assuming that a PCRA appeal is civil in nature, PCRA counsel has

not applied for, nor attempted to show good cause for, his failure to do so.

See id. 1925(c)(2). Although the applicability of Paragraph (c)(3) in a PCRA

appeal is in doubt, see Hill, 16 A.3d at 495 n.14, this case presents similar

efficiencies to a criminal direct appeal. Specifically, the failure to submit a

Rule 1925(b) statement results in waiver of all claims, and PCRA counsel’s

abandonment could give rise to a PCRA-time bar exception under Bennett

and a reinstatement of Appellant’s PCRA appeal rights. Notwithstanding

PCRA counsel’s failure to file a Rule 1925(b) statement, the PCRA court

addressed all claims raised in this appeal. Therefore, we decline to find

waiver based on Rule 1925(b)(4)(vii) and will proceed to consider the issues

raised in this appeal.

Our standard of review is as follows:

[A]n appellate court reviews the PCRA court’s
findings of fact to determine whether they are
supported by the record, and reviews its conclusions
of law to determine whether they are free from legal
error. . . .

* * *

. . . Counsel is presumed effective, and to rebut that
presumption, the PCRA petitioner must demonstrate that
counsel’s performance was deficient and that such
deficiency prejudiced him. In Pennsylvania, we have

- 11 -
J-S33012-16

refined the [Strickland v. Washington, 466 U.S. 668
(1984),] performance and prejudice test into a three-part
inquiry. Thus, to prove counsel ineffective, the petitioner
must show that: (1) his underlying claim is of arguable
merit; (2) counsel had no reasonable basis for his action or
inaction; and (3) the petitioner suffered actual prejudice as
a result. If a petitioner fails to prove any of these prongs,
his claim fails. . . . To demonstrate prejudice, the
petitioner must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of
the proceedings would have been different. A reasonable
probability is a probability that is sufficient to undermine
confidence in the outcome of the proceeding.

Commonwealth v. Charleston, 94 A.3d 1012, 1019 (Pa. Super. 2014)

(some citations omitted), appeal denied, 104 A.3d 523 (Pa. 2014).

However, “[a]n accused cannot refuse to cooperate with counsel in

preparation of a particular trial strategy and then argue counsel's

ineffectiveness for failing to pursue that course of action.” Commonwealth

v. Bomar, 826 A.2d 831, 857 (Pa. 2003) (citations and quotation marks

omitted).

Appellant first claims that the PCRA court erred in rejecting his claim

that trial counsel failed to consult with him and prepare a defense. He

asserts that “trial counsel’s complete lack of attentiveness to the case

prevented [trial counsel] from adequately reviewing the voluminous

discovery” and prevented Appellant from assisting in his own defense.

Appellant’s Brief at 12. He concludes, “[T]rial counsel’s irrational and

unsound failure to prepare for a trial of this importance constitutes an

abandonment of the minimum performance required . . . .” Id. at 13.

- 12 -
J-S33012-16

Appellant notes that trial counsel acknowledged the Public Defender’s Office

was understaffed and overworked, and he suffered “adverse physical and

mental health conditions” while representing Appellant. Id. at 13. No relief

is due.

Initially, we note that Appellant’s brief fails to cite any law in support

of his contention. See Pa.R.A.P. 2119(a). With respect to abandonment by

trial counsel, however, it is well settled “that counsel’s failure to prepare for

trial is ‘simply an abdication of the minimum performance required of

defense counsel.’ Moreover, . . . in a death penalty case, ‘it is not possible

to provide a reasonable justification for [defending a case] without thorough

preparation.’” Commonwealth v. Brooks, 839 A.2d 245, 248 (Pa. 2003).

“Brooks essentially announced the minimum action required by counsel to

provide what is deemed constitutionally effective representation in capital

cases: counsel must conduct at least one face-to-face meeting with

his client.” Commonwealth v. Brown, ___ A.3d ___, ___, 2016 WL

4429846 at *5 (Pa. Super. 2016).

However, this Court has noted that Brooks applies when trial counsel

“failed to meet with his client ‘at all.’” Johnson, 51 A.3d at 243. Thus, this

Court has found Brooks inapplicable where trial counsel, in part, “met face-

to-face with Appellant at his preliminary hearing, again at the prison [before

jury selection, but] before trial and performed at least one telephone

consultation.” Id. at 245; see id. at 247 (Wecht, J., concurring).

- 13 -
J-S33012-16

Instantly, trial counsel appeared with Appellant at his preliminary

hearing in May 2007. Although there was a gap of almost two years, trial

counsel filed a motion for a mental health evaluation in February of 2009,

and met with Appellant at prison twice in late March of 2009, once in April

2009 before jury selection, and again after jury selection, but before the

presentation of evidence. The PCRA court noted that “[i]n early 2009,

[Appellant] became dissatisfied with trial counsel and would not provide

counsel with information, which included refusing to discuss the facts of the

case, or his version of what happened on the date when the victim was

killed.” PCRA Ct. Op. at 21. The fact that Appellant refused to cooperate

with trial counsel in 2009 is amply supported by the record.

To the extent Appellant asserts he is entitled to relief based on trial

counsel’s abandonment or abdication of his pretrial duties of preparation and

consultation, we conclude no relief is due. See Johnson, 51 A.3d at 245.

Nevertheless, although Appellant is not entitled to relief based on a Brooks

claim, it is apparent his remaining claims assert individual claims of deficient

preparation. Therefore, we will consider his remaining claims independently

and as arguments in support of trial counsel’s lack of preparation.

Appellant’s second claim focuses on trial counsel’s failure to seek

suppression of evidence obtained under search warrants for his residence

and his van. Appellant’s Brief at 14. He asserts that the warrants were not

timely executed within forty-eight hours. Id. Although this claim implicates

- 14 -
J-S33012-16

trial counsel’s preparation, we agree with the PCRA court that Appellant

cannot establish prejudice resulting from trial counsel’s failure to file a

pretrial motion to suppress. See PCRA Ct. Op. at 24.

A review of the record reveals that the untimely search of the van was

actually litigated during a recess at trial. See N.T. Trial II, 4/28/09, at 81-

93. The trial record, including the impromptu suppression hearing,

established that search warrants were issued for Appellant’s home and van

on April 20, 2007. Id. at 65. State troopers searched Appellant’s home

that same day and seized Appellant’s van. Id. at 65, 88. The van was

stored in a garage in Butler County. Id. at 96. A second warrant was

obtained in Butler County for the search of the van where it was impounded.

An additional warrant was issued for a second search of Appellant’s home,

during which state troopers obtained, inter alia, samples of suspected blood

that was discovered during the April 20th search of his home.

As to Appellant’s home, we note that the record established that the

search was conducted on April 20, 2007, the same day the first warrant was

issued, and additional evidence was obtained during the execution of a

second warrant for his home. The collection of the evidence under the

second warrant was not challenged in the PCRA proceeding. Thus, Appellant

has not established arguable merit to his claim that trial counsel should have

sought suppression of the evidence collected from his home. See

Charleston, 94 A.3d at 1019.

- 15 -
J-S33012-16

As to the van, Appellant focuses on the discrepancy between the

alleged issuance of the Lawrence County warrant on April 20th and the

search that was conducted in Butler County three days later on April 23rd.

Appellant presents no argument that the seizure of the van under the April

20th Lawrence County warrant was improper. He develops no argument

that the April 23rd Butler County warrant was illegal or did not authorize the

search inside his van when the van was impounded in that county.

Therefore, we discern no basis to disturb the PCRA court’s conclusion that

Appellant did not establish prejudice resulting from trial counsel’s failure to

file a timely pretrial suppression motion. See id. at 1019.

Appellant’s third claim focuses on trial counsel’s decision “not to

conduct any comparative analysis or testing of the forensic and DNA

evidence.” Appellant’s Brief at 16. He asserts trial counsel’s failure to

prepare in this regard resulted in a “comprehensive failure to engage in any

basic, skilled, or thorough cross-examination of any of the prosecution’s

witnesses. . . . As such trial counsel was not able to show any weakness or

limitations of any testimony or challenge any witness.” Id. No relief is due.

The PCRA court considered this issue as follows:

[T]rial counsel stated that he did not feel it was necessary
to obtain an expert witness in the field of DNA evidence as
he had experience and education litigating cases
containing that type of evidence. Trial counsel explained
that he was familiar with DNA evidence and he did not
believe that expert testimony would have been beneficial
to [Appellant’s] case. In addition, there is no indication
that an expert in the field of forensics would have been

- 16 -
J-S33012-16

helpful in preparing a defense as nothing was provided to
the Court to demonstrate the testimony presented at trial
by the Commonwealth was inaccurate in any way.
[Appellant] appears to argue that there was evidence of a
long hair that was not consistent with [Appellant] nor the
victim which was found and an expert would have been
helpful in demonstrating the unknown individual was
responsible for the victim’s murder, not [Appellant]. . . .
[T]rial counsel was able to show through cross
examination there was an unrelated hair found which was
not from [Appellant].

PCRA Ct. Op. at 28-29.

We agree with the PCRA court that Appellant has failed to demonstrate

any merit to his contention that further research or testing of the scientific

evidence would have yielded any exculpatory or additional matters relevant

to cross-examination. See Commonwealth v. Chmiel, 30 A.3d 1111,

1143 (Pa. 2011) (“The mere failure to obtain an expert rebuttal witness is

not ineffectiveness. Appellant must demonstrate that an expert witness was

available who would have offered testimony designed to advance appellant’s

cause.” (citation omitted)); Charleston, 94 A.3d at 1019. Similarly, we

have no basis to conclude that Appellant suffered actual prejudice based on

trial counsel’s failure to conduct further research or testing regarding the

scientific evidence. See id. With respect to Appellant’s assertion that trial

counsel completely failed to cross-examine the Commonwealth’s experts,

the record supports the PCRA court’s finding that trial counsel cross-

examined the experts regarding the anomalous hair, as well as the

- 17 -
J-S33012-16

Commonwealth’s failure to test the unrelated hair using mitochondrial DNA

tests. Thus, the PCRA court properly denied relief on this claim.

Appellant, in his fourth claim, asserts that the PCRA court erred in

denying relief on his claim that trial counsel failed to investigate a statement

of a potential witness. No relief is due.

By way of background, this claim relates to a statement by Russell A.

Wardman to the Pennsylvania State Police on March 5, 2007, during the

investigation of the homicide. Wardman told troopers that on February 25,

2007, two days before the victim was last seen alive and four days before

her body was discovered, he saw the victim in an altercation with an

unidentified Caucasian male. According to Wardman, the victim asked the

male, “What you want to do, kill me?” The male replied, “It doesn’t sound

too bad to kill you?” N.T. PCRA Hr’g I at 53.

At the PCRA hearing, trial counsel testified that he was aware of

Wardman’s statement prior to trial, but believed it did not merit further

investigation in light of the DNA evidence linking Appellant to the victim.

Trial counsel reiterated that Appellant refused to discuss the case with him,

which impeded trial counsel’s ability to place Wardman’s statement in the

context of a defense strategy. Id. at 54.

The Pennsylvania Supreme Court considered the interplay between law

governing claims of a failure to investigate and a failure to call a witness.

Counsel has a general duty to undertake reasonable
investigations or make reasonable decisions that render

- 18 -
J-S33012-16

particular investigations unnecessary. Counsel’s
unreasonable failure to prepare for trial is “an abdication of
the minimum performance required of defense counsel.”
[Brooks, 839 A.2d at 248]. The duty to investigate, of
course, may include a duty to interview certain potential
witnesses; and a prejudicial failure to fulfill this duty,
unless pursuant to a reasonable strategic decision, may
lead to a finding of ineffective assistance. Recently . . .
this Court stated that:

[C]ases . . . arguably stand for the proposition that,
at least where there is a limited amount of evidence
of guilt, it is per se unreasonable not to attempt to
investigate and interview known eyewitnesses in
connection with defenses that hinge on the credibility
of other witnesses. They do not stand, however, for
the proposition that such an omission is per se
prejudicial.

Indeed, such a per se failing as to performance, of course,
does not make out a case of prejudice, or overall
entitlement to [PCRA] relief.

When raising a failure to call a potential witness claim,
the PCRA petitioner satisfies the performance and
prejudice requirements . . . by establishing that:

(1) the witness existed; (2) the witness was
available to testify for the defense; (3) counsel knew
of, or should have known of, the existence of the
witness; (4) the witness was willing to testify for the
defense; and (5) the absence of the testimony of the
witness was so prejudicial as to have denied the
defendant a fair trial.

To demonstrate . . . prejudice, the PCRA petitioner “must
show how the uncalled witnesses’ testimony would have
been beneficial under the circumstances of the case.”

Commonwealth v. Johnson, 966 A.2d 523, 535-36 (Pa. 2009) (citations

omitted).

- 19 -
J-S33012-16

Instantly, the PCRA court denied relief on Appellant’s claim for the

following reasons:

[Appellant] has failed to provide . . . a signed certification
stating Russell Allan Wardman was able and willing to
testify on his behalf. Moreover, [Appellant] failed to
provide a certification setting forth the substance of Mr.
Wardman’s proposed testimony. Although, it is apparent
that the witness exists as he provided a statement to the
police officers when they were investigating the victim’s
murder, there is no indication that he was available to
testify or that he was willing to testify on [Appellant’s]
behalf. [Appellant] also failed to present any testimony
from Mr. Wardman during the hearings on the
[Appellant]’s PCRA Petition to demonstrate that his
testimony would have aided [Appellant] at trial.
Therefore, [Appellant] has failed to establish that trial
counsel was ineffective for failing to interview Mr.
Wardman or failing to call him as a witness at trial.

PCRA Ct. Op. at 30-31.

We add that at the PCRA hearing, trial counsel explained his decision

not to pursue an investigation of Mr. Wardman or use his statement to police

in the following exchange with PCRA counsel.

[Trial counsel]: I never did anything with this report
because of subsequent events.

Q What subsequent events?

A The DNA match, the searches, all these things.

Q So because the DNA matched [Appellant], you made an
independent determination that that was sufficient? You
were satisfied with the Commonwealth’s investigation,
that’s it?

A No. Simply—you know, you have to develop a theory of
the case.

- 20 -
J-S33012-16

Q What was your theory?

A You have to probe for—

Q What was your theory, Mr. Falls?

A Well, due to the lack of cooperation from [Appellant], it
was very difficult to garner a theory of the case because
when the time came for him to discuss the evidence in this
case, he was so estranged from me and my office that he
refused to help.

Q So it sounds as if it was [Appellant’s] problem, not your
problem?

A Quite the opposite, it was my problem and not
[Appellant’s] problem.

N.T. PCRA Hr’g I at 54-55.

We further note that in explaining his limited cross-examination of the

Commonwealth’s witnesses, trial counsel noted:

[T]he most I ever got out of [Appellant] or [co-counsel]
ever got out of [Appellant] is, well, I didn’t do it; put me
on the stand and I’ll say what happened. Well, I need to
know what happened. If I start—If I start saying, so, I
can’t develop a theory of the case without once I get an
understanding of what the Commonwealth is going to be,
what is our potential response to that? Is he going to say,
well, you know, I knew she was dead, so I lied about
whether I knew her. You know, I mean, I really—I had to
have something from [Appellant]. What his position was
as to what happened is going to dictate what I’m going to
challenge, what I’m not going to challenge, so I never was
a person to ask a lot of questions, but I was afraid that
any question I asked may be in two days, be contradicted
by [Appellant] himself.

* * *

I couldn’t do anything that might come back to haunt the
defense, and I didn’t know if there was going to be a

- 21 -
J-S33012-16

defense, and if so, what it was going to be, which limited
me.

N.T. PCRA H’rg I at 83, 87.

Lastly, we reiterate that the record established that Appellant initially

intended to testify at trial and assert Crystal Black, his girlfriend, killed the

victim. N.T. Voir Dire VI at 23.

Although Appellant’s frustration with the lack of communication with

trial counsel for nearly two years before trial was understandable, and

certainly highlights the difficulties in implementing the right to counsel, we

are constrained to conclude that Appellant failed to demonstrate

constitutionally deficient assistance of counsel. See Charleston, 94 A.3d at

1019. Trial counsel’s hesitation in developing and implementing a theory of

the case when Appellant indicated he wished to testify but refused to

cooperate with trial counsel was reasonable. See Bomar, 826 A.2d at 857.

Moreover, the record confirms trial counsel’s belief that Appellant initially

intended to testify at trial and inculpate his girlfriend in the killing. Under

these circumstances, Appellant cannot establish that the failure to

investigate the Wardman statement or use the statement at trial was

unreasonable. Accordingly, we discern no basis to conclude that the PCRA

court erred when denying relief based on this claim.

Appellant’s fifth claim focuses on trial counsel’s failure to object to the

seating of the juror whom the District Attorney contacted during a campaign

phone call before trial. Appellant contends that trial counsel’s failure to

- 22 -
J-S33012-16

object resulted in waiver of an issue for direct appeal. Appellant’s Brief at

18. No relief is due.

The PCRA court issued the following opinion on this issue.

In the case sub judice, then District Attorney John J.
Bongivengo, Esquire, reported to the [c]ourt that he was
making general phone calls to registered voters concerning
his reelection campaign for the Democratic primary
election being held on May 19, 2009, when he attempted
to call Edward Fisher around 6:00 p.m. on April 24, 2009.
A female answered the telephone at that time and then
District Attorney Bongivengo identified himself and
explained that he was running for reelection. He also
inquired as to how the woman believed he was performing
as District Attorney. According to Attorney Bongivengo,
she responded by saying that she saw him in court and
was impressed by Attorney Bongivengo. Upon further
inquiry, she explained that she was on the jury for the
[Appellant’s] homicide trial. At that time, Attorney
Bongivengo instructed her that he should not be speaking
with her and the conversation concluded. Attorney
Bongivengo informed the [c]ourt of that occurrence as
soon as he could, which was April 27, 2009.[ ] The juror
was identified as Roberta Fisher. The [c]ourt called Ms.
Fisher into Chambers along with William J. Flannery,
Esquire, co-counsel for the Commonwealth, and trial
counsel. Upon questioning by the [c]ourt, Ms. Fisher
indicated that she spoke with Attorney Bongivengo
concerning his reelection campaign and it had nothing to
do with the [Appellant]’s homicide trial. At that time, she
did not make any expression as to whether she would vote
for Attorney Bongivengo and she did not recall making any
indication as to whether or not Attorney Bongivengo was
doing a good or bad job during jury selection. Ms. Fisher
informed the [c]ourt that the communication between her
and Attorney Bongivengo would not affect her ability to be
a fair and impartial juror and she would not favor one side
over the other due to that communication.

It is apparent from the record that Ms. Fisher’s
impartiality as a juror was not affected by the
communication she had with Attorney Bongivengo as the

- 23 -
J-S33012-16

conversation lasted approximately one minute and was
concluded once it was known that Ms. Fisher was a juror in
[Appellant]’s case. In addition, they did not speak about
the substance of the case in any manner and it must be
noted that testimony did not commence in [Appellant’s]
trial until the following Monday, which was April 27, 2009.
Ms. Fisher also indicated that she was unaffected by the
conversation and initially thought “it might have been a
prank.” She informed the [c]ourt that the conversation
would not affect her ability to be a fair and impartial juror.
Moreover, she explained that she would not be more likely
to favor one side over the other as she works with the
Commonwealth everyday for her job as an online
messenger site for the Pennsylvania Department of
Transportation. There is no indication on the record that
the communication in question influenced Ms. Fisher in any
manner and she was able to act as a fair and impartial
juror. Thus, trial counsel was not ineffective for failing to
request a mistrial on the basis of Ms. Fisher’s contact with
Attorney Bongivengo.

PCRA Ct. Op. at 32-34.

Appellant’s argument, which again lacks any citation to law, fails to

address the standards for disqualifying a juror, and fails to frame any claim

directed toward an abuse of discretion or error in the PCRA court’s ruling.

See Appellant’s Brief at 18-19. In any event, we have reviewed the record

and discern no basis to disturb the trial court’s determination that the juror

was able to remain fair and impartial despite the contact. See

Commonwealth v. Janda, 14 A.3d 147, 162 (Pa. Super. 2011) (reiterating

that “[t]he decision on whether to disqualify is within the discretion of the

trial court and will not be reversed in the absence of a palpable abuse of

discretion” (citation omitted)). Therefore, Appellant’s underlying claim lacks

- 24 -
J-S33012-16

arguable merit and fails to establish any prejudice with respect to Appellant’s

direct appeal. See Charleston, 94 A.3d at 1019.

Appellant’s sixth claim focuses on trial counsel’s failure to develop a

record to assert a Batson challenge. As noted by the PCRA court, this claim

was utterly undeveloped and Appellant failed to establish arguable merit by

presenting any evidence regarding the prospective jurors, the composition of

the jury, or the Commonwealth’s exercise of its strikes. See

Commonwealth v. Johnson, 139 A.3d 1257, 1282 (Pa. 2016) (reiterating

that PCRA petitioner bears burden of establishing prima facie Batson

violation to assert claim of ineffectiveness for failure to object based on

Batson). Thus, we agree with the PCRA court that no relief is due.

Appellant’s final claim is that trial counsel was ineffective for failing to

withdraw from representation based on the Public Defender’s Office’s

representation of the victim in two prior matters. We agree with the PCRA

court that Appellant did not establish merit to this claim.

The Pennsylvania Supreme Court has stated:

“A defendant cannot prevail on a conflict of interest
claim absent a showing of actual prejudice.” In
Commonwealth v. Hawkins, . . . 787 A.2d 292 ([Pa.]
2001), this Court reiterated that while “it is true that
prejudice is presumed when counsel is burdened by an
actual conflict of interest, this is only if the defendant
demonstrates that counsel ‘actively represented conflicting
interests’ and ‘that an actual conflict of interest adversely
affected his lawyer’s performance.’”

- 25 -
J-S33012-16

Commonwealth v. Spotz, 896 A.2d 1191, 1231-32 (Pa. 2006) (citations

omitted).

Instantly, Appellant established that the Public Defender’s Office

previously represented the victim. There was no dual representation.

Aside from his belief that this former representation “adversely impacted his

relationship with trial counsel[,]” Appellant proffers no support for finding

that the former representation impacted trial counsel’s representation in the

present matter. See Appellant’s Brief at 21. Therefore, no relief is due.

In sum, we have reviewed Appellant’s claim of abandonment and his

individual claims of ineffective assistance of counsel and found neither

warrant relief either individually or collectively. Accordingly, we affirm the

order denying Appellant’s PCRA petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/12/2016

- 26 -