Opinion
J. S73013/13 No. 3039 EDA 2012
03-26-2014
COMMONWEALTH OF PENNSYLVANIA v. SHAWN MICHAEL JOHNSON, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order, October 24, 2012,
in the Court of Common Pleas of Delaware County
Criminal Division at No. CP-23-CR-0001599-2007
BEFORE: FORD ELLIOTT, P.J.E., BOWES AND OTT, JJ. MEMORANDUM BY FORD ELLIOTT, P.J.E.:
Appellant appeals from the order dismissing his first petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. Finding no merit in the issues raised on appeal, we affirm.
In preparing its opinion for direct appeal, the trial court accurately summarized the evidence against appellant:
In December 2006, Defendant began working for the victim, Thomas Lennox, at his business, V.I.P. Detailing (hereafter "V.I.P.") in Norwood, Delaware County. N.T. 10/2/07 at 42, 89; N.T. 10/3/07 at 201, 203. Defendant had known Mr. Lennox for about nineteen years, the two men having been neighbors while Defendant was growing up in Upper Darby. N.T. 10/3/07 at 200-201. Defendant continued to work for Mr. Lennox until he was incarcerated in January 2007 for failure to pay child support. Id. at 201, 203.Trial court opinion, 6/28/10 at 2-9.
On February 23, 2007, Defendant, Shawn Johnson, was released from Delaware County Prison after serving approximately thirty-days for failure to pay child support. Id. at 206. While incarcerated, Defendant told Jason Rispoli, a fellow inmate who had known Defendant for approximately 10 years, that he was arguing with his girlfriend, "Mia", about her unwillingness to pick up $200.00 that his boss at V.I.P. Detailing owed to him. Id. at 6-9. Defendant told Mr. Rispoli on more than one occasion that he was going to kill Mia, or kill someone else. Id. at 8-9, 11. While incarcerated, Defendant and Mr. Rispoli also discussed automobiles; Defendant told Mr. Rispoli that he knew a car dealer in Essington and that he was going to get an Acura when he was released from Delaware County Prison. Id. at 9-10.
Mia Zarzycki's videotaped testimony was offered at trial. She testified that she dated the Defendant for four years before their relationship ended in late December of 2006. Id. at 58. While he was incarcerated in January 2007, Defendant called Mia Zarzycki and asked her to pick up his paycheck from V.I.P. Detailing and send him a portion of it. Id. at 58-9. Mia Zarzycki went to V.I.P. Detailing and picked up a check, made out in her name, for $125.00. Id. at 61, 86. She cashed the check and mailed a $20.00 money order to the Delaware County Prison for Defendant. Id. at 61, 86, 133.
At the time of his release, the Defendant owed approximately $20,000 on two separate domestic cases. N.T. 10/2/07 at 167. Defendant testified that when he was released from jail on February 23, 2007, he understood that in order to avoid returning to jail, he had to stay current on his child support payments. N.T. 10/3/07 at 206. In the first of his two cases, Defendant was ordered to pay $247.40 in support, monthly; in the second case, Defendant was ordered to pay $572.00 monthly. N.T. 10/2/07 at 167. If Defendant missed any payment, a warrant
was to be issued for his incarceration for 30 days. Id.
Upon his release from prison, Defendant went to see Mr. Lennox at V.I.P. to inquire whether he could resume working. N.T. 10/3/07 at 217. Mr. Lennox told Defendant to return the following day and work would be available. Id.
After Defendant was released from prison on February 23, he also went to Jessie Zarzycki's house. Id. at 36. Defendant knew Jessie Zarzycki because he had dated Mia Zarzycki, Jessie's cousin. Id. Defendant told Jessie Zarzycki that he was "going to run into a lot of money" and that he had to do "some crazy stuff to get it." Id. at 37-38.
On February 24, 2007, Defendant worked at V.I.P. from approximately noon until 5:00 p.m. Id. at 45-46, 93, 105, 218. Also working that day were Eric Wilson and Daniel Connolly, Mr. Lennox's brother. Id. at 46, 92, 217. Mr. Lennox was also present at V.I.P. that day, and upon completing his work, Defendant stayed at V.I.P. to socialize with Mr. Lennox and Mr. Connolly. N.T. 10/2/07 at 46, 105; N.T. 10/3/07 at 219. Mr. Connolly testified that his brother paid him approximately $385 in cash that day, and that all V.I.P. employees were paid in cash on either Fridays or Saturdays. N.T. 10/2/07 at 107, 109. Defendant was present when Mr. Lennox removed a "thick" wallet from his back pocket, which contained about $500 in cash. Id. at 108, 109-110. After paying his brother, Mr. Lennox put the remaining money back into his wallet, and put the wallet back into his pocket. Id. at 109. Mr. Connelly [sic] also testified that his brother kept his credit and debit cards and his driver's license in his wallet. Id. at 110.
When Mr. Connelly [sic] left V.I.P. at around 6:10 p.m., the Defendant and Mr. Lennox were there alone. Id. Mr. Connelly [sic] left V.I.P. because he had the impression that Mr. Lennox wanted to have some one-on-one time with Defendant since he had
just gotten out of jail and because Mr. Lennox wanted to help him out. Id. at 139. When he drove away from V.I.P., Mr Connelly [sic] saw the silhouette of a person looking out of one of the windows in the garage door; presumably the silhouette was that of Defendant, as Mr. Lennox was not tall enough to look out of the garage door windows. Id. at 122-23.
Eric Wilson, who had left V.I.P. earlier when he finished working at around 5:00 p.m., returned to V.I.P. at around 7:00 p.m. with two friends because one of the friends, Dan Neapolitan, wanted to look at a car at V.I.P. that he was interested in purchasing. Id. at 46. When Mr. Wilson arrived at V.I.P., the lights were off and the doors were closed. Id. at 47. Mr. Wilson unlocked the door, entered the premises and discovered Mr. Lennox lying motionless by the door of the detailing shop. Id. at 47-48. Mr. Lennox's prized possession, his white Acura Integra, which had been at V.I.P. when Mr. Wilson left at 5:00 p.m. and when Mr. Connelly [sic] left at 6:10 p.m., was not there when Mr. Wilson returned at 7:00 p.m. Id. at 49, 120.
Officer Dennis Daly of the Norwood Borough Police Department was the first officer on the scene. He was met by Mr. Wilson, who informed him that Mr. Lennox was inside of V.I.P., bleeding, and that Mr. Lennox's vehicle was missing. Id. at 61, 66. Officer Daly checked Mr. Lennox for a pulse, but found none. Id. at 64. Mr. Wilson provided Officer Daly with a description of Mr. Lennox's vehicle, i.e. that it had a loud exhaust system, blue halogen headlamps, a gutted interior and a black carbon fiber hood. Id. at 65. Officer Daly relayed the description of the vehicle to his dispatcher, who in turn put out a BOLO, a "be on the lookout" message, so that other law enforcement officers could look for Mr. Lennox's Acura. Id. at 66.
Matthew Zarzycki, brother of Mia Zarzycki, received a telephone call from the Defendant at approximately 5:30 p.m. on February 24, 2007. Id.
at 207, 209. The Defendant told Matthew Zarzycki that he would be there to pick him up in fifteen minutes. Id. at 207. Matthew Zarzycki told the Defendant that he would take a shower and then call him back. Id. at 207-08. After the shower, Matthew Zarzycki dialed the number from which Defendant had just called him, and an unknown male answered and gave the phone to the Defendant. Id. at 208. Defendant told Matthew Zarzycki that he would be there to pick him up in fifteen minutes, but he did not arrive. Id. at 209.
At 6:26 p.m. Defendant called Mia Zarzycki's home using Mr. Lennox's cell phone. Id. at 183.
Instead of going to Matthew Zarzycki's house, Defendant went to Jacqueline Zarzycki's house at approximately 6:30 p.m. Id. at 186. Jacqueline Zarzycki testified that she observed Defendant outside of her house, standing next to a white Acura Integra with a black hood. Id. at 187. Defendant told Ms. Zarzycki that he was coming from work and that he "just got jumped". Id. at 188-92. Defendant also mentioned that he had just been in Philadelphia. Id. at 192. He asked Jacqueline Zarzycki if he could wash his hands because they were bloody, and he asked permission to make a phone call, which he did. Id. at 189. Defendant also pulled a "sloppy" pile of money out of his pocket and began quickly counting it. Id. at 189;192.
Defendant eventually arrived at Matthew Zarzycki's house at approximately 7:00 p.m., driving the white Acura Integra. Id. at 209-210. The Defendant told Matthew Zarzycki that they were going to go "pick up drugs" and that he had borrowed the car from a friend who was "out for the night". Id. at 211-212, 214. Defendant then handed Matthew Zarzycki a wallet and asked him to remove the credit cards. Id. at 212.
During the drive to North Philadelphia, Defendant asked Matthew Zarzycki to look through a
black bag that was in the backseat area of the Acura to see if there might be any jewelry inside of it. Id. at 213. Matthew Zarzycki found a digital camera in the vehicle that contained pictures of "hot rods," and asked Defendant if his friend worked on cars for a living, to which the Defendant replied that he did. Id. at 214-15.
At some point during the drive, the Defendant mentioned that he had to smash Mr. Lennox's cell phone. Id. at 213. He borrowed Matthew Zarzycki's cell phone to attempt to call the "dealer" from whom they were going to purchase the drugs, but Matthew Zarzycki's cell phone battery was dead. Id. at 216. The two stopped at a corner store where Defendant purchased two bottles of Yoohoo and one bottle of water. Id. at 215. Defendant also used the pay phone to call the dealer. Id. at 215, 219. While they were inside of the convenience store, Matthew Zarzycki noticed that the front of Defendant's jeans was dirty at the shin area and that there were specks of blood on his shoes. Id. at 216. Defendant used the bottle of water to wash off his shoes, and explained to Matthew Zarzycki that "he had to kick someone in the face." Id. at 216-217. Matthew Zarzycki did not notice any injuries to Defendant's arms or face. Id. at 216.
Defendant and Matthew Zarzycki then drove around the block, met the dealer and Defendant purchased six, 80 mg. Oxycontin pills for $105.00. Id. at 220. Defendant and Matthew Zarzycki each ingested one of the Oxycontin pills. Id. at 220. After stopping at McDonald's to get some food, that Defendant paid for, the two drove to Matthew Zarzycki's apartment, on Torresdale Avenue in Philadelphia. Id. at 220-221.
Defendant asked Matthew Zarzycki for a change of clothes and a trash bag. Id. at 221-224. Defendant left the clothing that he had been wearing (blue jeans, black shirt and hat) in Matthew Zarzycki's bedroom. Id. at 224-225. Defendant emptied out the "contents of the car" into
the trash bag and put the bag outside of Matthew Zarzycki's house. Id. at 216, 224-225. Matthew Zarzycki didn't see Mr. Lennox's wallet or the digital camera again once the two got back into the vehicle. Id. at 225.
Defendant and Matthew Zarzycki left Zarzycki's apartment and went to a Sunoco station where Defendant purchased gas by using Mr. Lennox's debit card. Id. at 226, 227. The two men then drove to the Best Buy store on Columbus Boulevard in Philadelphia to attempt to buy CDs with Mr. Lennox's credit cards. Id. at 226-227. Defendant gave Mr. Lennox's credit cards and driver's license to Matthew Zarzycki to purchase the CDs because Defendant believed Zarzycki resembled Mr. Lennox more than he did. Id. at 227. However, the credit cards were declined and the two men left the Best Buy store. Id. at 226-228.
Defendant and Matthew Zarzycki then traveled to Collingdale to pick up Jennifer Weis, a friend of Zarzycki. They intended to go to another friend's house in Brookhaven. Id. at 229. At this point, Matthew Zarzycki was driving the Acura because Defendant had been "grinding [the] gears". Id. at 228. While driving on Main Street in Collingdale, after picking up Jennifer, Matthew Zarzycki noticed that a police car began driving behind them Id. at 229-230. Defendant became nervous and began looking in the rearview mirror and commenting on the police car's presence. Id. at 230.
Officer Edward Robinson of the Collingdale Borough Police Department, who had heard the BOLO message, observed the white Acura headed toward Darby Borough at approximately 9:56 p.m. and activated his overhead lights in an attempt to stop the vehicle. Id. at 284-88. Defendant told Matthew Zarzycki, "Don't pull over. Don't stop," but Matthew Zarzycki pulled over and he and the Defendant were taken into custody. Id. at 230-31.
Officer Charles Cardell of the Norwood Police Department, who took Defendant into custody, did not notice any injuries or marks on Defendant's hands or arms. Id. at 298-300. The Defendant began whistling, shortly after being placed into Officer Cardell's police vehicle, and continued to do so as he was walked into the police station. Id. at 301-305. Defendant had $10.55 on his person at the time of his arrest. Id. at 314.
At approximately 11:15 p.m., Officer Cardell transported Matthew Zarzycki to his apartment in Philadelphia to collect evidence. Id. at 305-06. Officer Cardell found Defendant's bloody sneakers, his jeans, two flannel shirts, a hat, a letter to Defendant at his prison address from Mia Zarzycki, Defendant's driver's license, Defendant's wallet and items that belonged to the victim. Id. at 307, 309-10, 312-13.
Detective John Slowik of the Delaware County Criminal Investigation Division, who was assigned to the investigation of the homicide of Mr. Lennox, went to Matthew Zarzycki's apartment on February 27, 2007, where he found a white trash bag containing a PennDOT form filled out with Thomas Lennox's name, the victim's wallet and a pair of boots. N.T. 10/3/07 at 123-25, 128. Also recovered from Matthew Zarzycki's apartment was a digital camera. Id. at 129.
Kathryn Cross, a forensic biologist at National Medical Services Labs, testified that she examined blood samples taken from Defendant's shoes and jeans, and determined that the blood was consistent with the DNA profile of the victim and inconsistent with the DNA profile of Defendant. Id. at 87-110, 116-17.
Dr. Bennett G. Preston, an Assistant Medical Examiner for the city of Philadelphia performed an autopsy on Thomas Lennox. Id. at 154. Dr. Preston determined that Mr. Lennox died as a result of multiple severe blunt force injuries to the head, and
that manner of death was a homicide. Id. at 158, 167. In addition to injuries to his face, extremities and hands, Mr. Lennox had three separate injuries to the back of his head consistent with him being struck from behind with a hard blunt object. Id. at 155-57, 159-61. He had severe brain injury with hemorrhage around his entire brain. Id. The back right portion of Mr. Lennox's skull was fractured, and there were lacerations in the inner part of his brain. Id. Mr. Lennox also had petichial hemorrhages on his forehead consistent with either smothering by someone or by lying in a position where his face was against the pavement when he was unconscious. Id. at 158. The petichial hemorrhages are evidence that Mr. Lennox did not die immediately, and may have lived for 10-15 minutes. Id. at 166.
Defendant testified at trial that when he and Mr. Lennox were alone at V.I.P. on the evening of February 24, 2007, Mr. Lennox began "badmouthing" Mia Zarzycki. Id. at 221, 225. Defendant claimed that after a verbal exchange, he was turning to leave and Mr. Lennox punched him in the back of the head. Id at 227. Defendant claimed that a fight ensued and that he hit Mr. Lennox with a metal pole, but that Mr. Lennox was getting up as Defendant ran out the door. Id. at 227-30.
On October 5, 2007, a jury found appellant guilty of first degree murder, and on November 14, 2007, appellant was sentenced to life imprisonment without parole. On February 17, 2011, this court affirmed the judgment of sentence. Commonwealth v. Johnson, 24 A.3d 457 (Pa.Super. 2011). No further appeal was taken to the supreme court.
On January 12, 2012, appellant filed the instant PCRA petition. Counsel was appointed, but counsel ultimately sought to withdraw pursuant to Turner-Finley practice. See Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988); Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc ). On August 31, 2012, the PCRA court entered an order permitting counsel to withdraw, and giving notice to appellant, pursuant to Pa.R.Crim.P., Rule 907, 42 Pa.C.S.A., of its intention to dismiss appellant's petition in 20 days without hearing. As noted above, the court dismissed the petition on October 24, 2012, and this timely appeal followed.
Appellant raises the following issues on appeal:
1. Whether a Violation of Appelants [sic] Constitutional Rights occurred[?]Appellant's brief at i-ii. We will address these issues in the order presented.
2. Whether Abuse of Discretion occurred by the Trial Court and P.C.R.A. Court[?]
3. Whether Trial Counsel was ineffective for not objecting to introduction of evidence that Appellant purchased drugs after the alleged crime[?]
4. Whether Trial Counsel was ineffective in allowing testimony of Mia Zarzycki[?]
5. Whether Trial Counsel was ineffective for failing to challenge and impeach Commonwealths [sic] witness(es) [sic][?]
6. Whether Trial Counsel was ineffective for failing to investigate Appellants [sic] mental health past and childhood[?]
7. Whether Trial counsel was ineffective for failing to seek a defense expert in pathology[?]
8. Whether Trial Counsel failed to ask for a cautionary instruction after expert testimony[?]
9. Whether Trial Counsel abandoned Appellate [sic] by not presenting a defense[?]
10. Whether Trial Counsel was ineffective for failing to file pre-trial motion, specifically motion to suppress[?]
11. Whether Trial Counsel failed to object to the use of polluted testimony[?]
12. Whether Trial Counsel failed to properly investigate[?]
13. Whether Direct Appeal Counsel was ineffective[?]
14. Whether P.C.R.A. Counsel was ineffective[?]
Our standard of review for an order denying post-conviction 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. Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Id.
Moreover, as most of the issues on appeal are stated in terms of ineffective assistance of counsel, we also note that appellant was required to make the following showing in order to succeed with such a claim: (1) that the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and (3) that, but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010). The failure to satisfy any prong of this test will cause the entire claim to fail. Commonwealth v. Daniels, 947 A.2d 795, 798 (Pa.Super. 2008). Finally, counsel is presumed to be effective, and appellant has the burden of proving otherwise. Commonwealth v. Pond, 846 A.2d 699, 708 (Pa.Super. 2003).
In his first issue, appellant complains that his constitutional right to counsel was violated because counsel failed to meet with appellant sufficiently to prepare for trial. While appellant's PCRA petition raised numerous allegations of trial counsel's ineffectiveness, the failure to adequately meet and consult with appellant was not one of them. Appellant is improperly raising this issue for the first time on appeal. Consequently, the issue is waived. Pa.R.A.P., Rule 302(a), 42 Pa.C.S.A. To the extent that appellant raises other instances of counsel's ineffectiveness in the argument section of this issue, we note that they will be addressed infra.
In his second issue, appellant asserts that the PCRA court erred in not conducting an evidentiary hearing.
[T]he right to an evidentiary hearing on a post-conviction petition is not absolute. Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa.Super.2001). It is within the PCRA court's discretion to decline to hold a hearing if the petitioner's claim is patently frivolous and has no support either in the record or other evidence. Id. It is the responsibility of the reviewing court on appeal to examine each issue raised in the PCRA petition in light of the record certified before it inCommonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012), quoting Commonwealth v. Turetsky, 925 A.2d 876, 882 (Pa.Super. 2007), appeal denied, 596 Pa. 707, 940 A.2d 365 (2007).
order to determine if the PCRA court erred in its determination that there were no genuine issues of material fact in controversy and in denying relief without conducting an evidentiary hearing. Commonwealth v. Hardcastle, 549 Pa. 450, 454, 701 A.2d 541, 542-543 (1997).
Instantly, our review reveals that all of appellant's arguments can be resolved without any evidence being taken. Consequently, the PCRA court did not err in failing to hold a hearing.
In his third issue, appellant contends that counsel was ineffective in failing to object to testimony that he purchased drugs after the victim was killed.
Evidence of "other crimes, wrongs, or other acts" is inadmissible solely to show a defendant's bad character or his propensity for committing criminal acts. Pa.R.E. 404(b)(1); Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491 (Pa.1988). Such evidence is admissible, however, when relevant for another purpose, including motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. Pa.R.E. 404(b)(2); Commonwealth v. Chmiel, 585 Pa. 547, 889 A.2d 501, 534 (Pa.2005). This Court has also recognized the res gestae exception, permitting the admission of evidence of other crimes or bad acts to tell "the complete story." Commonwealth v. Williams, 586 Pa. 553, 896 A.2d 523, 539 (Pa.2006); Commonwealth v. Paddy, 800 A.2d 291, 308 (Pa.2002); Lark, 543 A.2d at 497. Such evidence may be admitted, however, "only if the probativeCommonwealth v. Hairston, ___Pa. ___, ___ A.3d ___, 2014 WL 241866 at 4 (2014).
value of the evidence outweighs its potential for unfair prejudice." Pa.R.E. 404(b)(2).
Evidence was presented that appellant was present when the victim produced a thick wallet and displayed its contents. The evidence that appellant bought drugs after the killing of the victim would show motive in that appellant killed the victim to take his money. This is particularly so when the other evidence is considered that appellant was also in need of money to pay support obligations. Since the evidence was admissible to show motive, counsel had no basis to object to its admission and there is no ineffectiveness.
In his fourth issue, appellant posits that counsel was ineffective in failing to object to the presentation of the videotaped testimony of Mia Zarzycki. Appellant argues that his Sixth Amendment right to confront witnesses was violated. Appellant's argument is utterly ridiculous.
First, although Mia Zarzycki's testimony was videotaped, defense counsel was present and rigorously and thoroughly cross-examined her. Among the startling admissions that counsel elicited were the facts that Zarzycki presented false identification to prison officials when she visited appellant in jail because she was wanted on an outstanding warrant. (Notes of testimony, 10/3/07 at 65-69.) Second, this witness offered no incriminating evidence against appellant. At most, she acknowledged that he was in jail, but the jury was already aware of this from a prior witness (Jason Rispoli). There was absolutely no ineffective assistance of counsel in this regard.
In his fifth issue, appellant holds that counsel was ineffective in failing to impeach Commonwealth witnesses. Appellant's complaint here appears to arise from the testimonies of the various members of the Zarzycki family that testified at his trial. Among appellant's complaints are that they were not confronted with their pre-trial statements to police that conflicted with their trial testimony. Unfortunately, appellant does not set out those alleged conflicts and relate how they prejudiced him. We are unable to review such an undeveloped claim and we deem it waived. See Commonwealth v. D'Amato, 579 Pa. 490, 504, 856 A.2d 806, 814 (2004).
Nonetheless, we note that counsel asked Jesse Zarzycki about his pre-trial statement and he admitted on cross-examination that his signed statement to the detectives was not accurate. ( Id. at 51.) Matthew Zarzycki was cross-examined as to his two prior statements to police and he admitted that aspects of his trial testimony were not reflected in those statements. (Notes of testimony, 10/2/07 at 254-262.) Counsel also brought out that Matthew had prior crimen falsi convictions and that he had pleaded guilty to charges in relation to the instant case and was awaiting sentencing that was dependent upon his trial testimony. ( Id. at 236-248.) Clearly, where their pre-trial statements conflicted with their trial testimony, counsel did confront the Zarzycki family members with those statements. Counsel was clearly not ineffective in this regard.
In his sixth issue, appellant maintains that counsel was ineffective in failing to investigate his mental health and troubled childhood. Appellant apparently believes that he may have been able to put forward a diminished capacity defense by doing so. We find that counsel had a valid strategic reason in not employing a diminished capacity defense.
It was appellant's theory at trial that he and the victim became embroiled in an argument and that the victim attacked appellant with a steel pole; during the fight, the victim lost his balance and fell, hitting the back of his head on an air compressor. ( Id. at 37.) Thus, appellant's defenses were both self-defense and a lack of malice and, therefore, complete innocence. "The defense of diminished capacity, whether grounded in mental defect or voluntary intoxication, is an extremely limited defense available only to defendants who admit criminal liability but contest the degree of culpability based upon an inability to formulate the specific intent to kill." Commonwealth v. Sanchez, ___ Pa. ___, ___, 82 A.3d 943, 977 (2013). By requiring appellant to admit criminal liability, the defense of diminished capacity would have conflicted with appellant's planned defense at trial. Counsel wisely did not pursue it and was not ineffective in this regard.
In his seventh issue, appellant argues that counsel was ineffective in failing to obtain a defense expert in pathology. Appellant believes that he was prejudiced by the Commonwealth's expert pathology witness.
In order to prevail on a claim of ineffectiveness for failing to call a witness, a defendant must prove, in addition to meeting the [main ineffectiveness prongs], that: (1) the witness existed; (2) the witness was available to testify for the defense; (3) counsel knew 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 witness's testimony was so prejudicial as to have denied him a fair trial.Commonwealth v. McLaurin, 45 A.3d 1131, 1137 (Pa.Super. 2012), quoting Commonwealth v. Walls, 993 A.2d 289, 302 (Pa.Super.2010).
In order to sustain a claim of trial counsel's ineffectiveness in this regard, appellant must identify an expert witness in pathology, must identify what the expert's testimony would have been, must show how it differed from the Commonwealth's expert, and must show how appellant was prejudiced by its absence. Appellant has completely failed to demonstrate that there was expert testimony available that would have countered the Commonwealth's expert. There is no glimmer of ineffectiveness here.
In his eighth issue, appellant asserts that counsel was ineffective in not requesting a cautionary instruction regarding the testimony of the Commonwealth's expert in pathology where the expert testified outside his area of expertise. Appellant does not identify the exact testimony for which he believes a cautionary instruction was required. Consequently, we must regard this undeveloped issue as waived. D'Amato.
Nonetheless, we do note that appellant's counsel objected when the expert repeatedly referred to the object that caused the victim's injuries as a "weapon" and also to the expert's use of the verb "murder" in reference to what had happened to the victim. (Notes of testimony, 10/3/07 at 160-162.) Although the trial court instructed the expert not to use those terms, we find that the expert's inadvertent use of them was not so prejudicial as to require a cautionary instruction. The expert had already properly testified that the cause of death was homicide caused by three blunt force injuries to the back of the victim's head which fractured his skull and severely injured the brain. ( Id. at 156-158.)
In his ninth issue, appellant presents a hodgepodge of assertions of trial counsel ineffectiveness. Most of the claims are boilerplate and are undeveloped and waived. We will, however, address two matters that are sufficiently developed that we can actually apprehend the claimed error. First, appellant contends that counsel did no pre-trial investigation of the Commonwealth's witnesses, in particular of their reputation for truthfulness, in order to impeach them at trial. Appellant, however, makes no allegation that had counsel done such an investigation, there was evidence to be found that could have been used to impeach certain Commonwealth witnesses. Without a showing that there was evidence to be uncovered, appellant cannot show that he was prejudiced by any failure by counsel and, therefore, cannot demonstrate ineffectiveness.
Second, appellant posits that counsel was ineffective in failing to call Stephen DeFalco to impeach the testimony of Commonwealth witness Jason Rispoli. Stephen DeFalco was not mentioned in appellant's PCRA petition, even where the petition discussed counsel's ineffectiveness in failing to challenge the testimony of Jason Rispoli. Thus, appellant is improperly raising this issue for the first time on appeal. The issue is waived. Pa.R.A.P., Rule 302(a), 42 Pa.C.S.A. Moreover, even if not waived, the issued is not properly supported.
Appellant does not aver that DeFalco was available and ready to testify in his defense and that counsel knew about him. McLaurin. Appellant also fails to provide the required affidavit from DeFalco stating that he was available and would have testified in appellant's defense. McLaurin, 45 A.3d at 1137. Appellant does attach an affidavit from DeFalco to his appellate brief, however, we may not consider it as it is not part of the official record. Commonwealth v. Kennedy, 868 A.2d 582, 592-593 (Pa.Super. 2005). Furthermore, the affidavit does not make the requisite assertions that DeFalco was available at the time of trial and would have offered testimony on appellant's behalf. There is no merit here.
In his tenth issue, appellant holds that counsel was ineffective in failing to file any pre-trial motion to suppress. While again raising mostly boilerplate, two claims are sufficiently raised in enough detail to address. First, appellant argues that the evidence of his whistling should have been suppressed. At trial, Officer Charles W. Cardwell of the Norwood police department testified that after they apprehended appellant, appellant was whistling the entire time while riding in the police vehicle en route to the police station. (Notes of testimony, 10/2/07 at 301-304.) Counsel for appellant did, in fact, object and ask that the testimony be stricken. ( Id. ) However, the court allowed the testimony because whistling did not constitute a statement to the police. ( Id. ) While counsel did not seek suppression of the whistling evidence in the pre-trial motion, he did attempt to strike it at trial. Moreover, we agree with the trial court that the whistling evidence was not subject to suppression as it did not constitute a statement to police. There was no ineffective assistance in this regard.
In fact, on May 14, 2007, appellant's trial counsel did file an omnibus pre-trial motion that did include motions to suppress. Those motions did not seek suppression of the matters we will review here.
Second, appellant maintains that trial counsel should have sought to suppress the evidence that appellant was in jail for failure to pay support in two domestic relations cases and was at risk for further jail time in relation to those cases. Actually, that issue was litigated pre-trial pursuant to a motion in limine filed by the Commonwealth. Appellant's trial counsel appeared at that hearing and argued against allowing that evidence to be presented and offered case authority that supported his position. (Notes of testimony, 9/5/07 at 10.) Clearly, counsel was not ineffective in this regard.
On appeal, appellant cites Commonwealth v. Barkelbaugh, 526 Pa. 133, 584 A.2d 927 (1990), for the proposition that evidence of a defendant's debt is inadmissible to prove motive for a crime. We note that Barkelbaugh relied on the same case appellant's counsel raised at the hearing on the motion in limine, Commonwealth v. Haight, 514 Pa. 438, 525 A.2d 1199 (1987). In Barkelbaugh, the court ruled that the Commonwealth could not use evidence of the defendant's unemployment as a motive for the robbery of which he was accused. Barkelbaugh relied upon Haight, which in turn relied upon Commonwealth v. Williams, 470 Pa. 172, 368 A.2d 249 (1977), for the proposition that "one in need of money is more likely to steal is impermissible evidence." Barkelbaugh, 526 Pa. at 929, 584 A.2d at 137. This court subsequently analyzed Haight in Commonwealth v. Atwood, 601 A.2d 277 (Pa.Super. 1991), appeal denied, 530 Pa. 638, 607 A.2d 249 (1992). Therein, we observed that Haight essentially used a probative value versus prejudicial effect analysis. Atwood, 601 A.2d at 282. The Atwood court analyzed that while a mere lack of money would have little probative value, evidence of specific and substantial debts would have sufficient probative value to overcome any prejudicial effect. Id. at 282-283. Instantly, at the hearing on the motion in limine, the Commonwealth testified that appellant had support debt in excess of $19,000. (Notes of testimony, 9/5/07 at 4.) Moreover, appellant was at risk of incarceration if this debt was not paid. Clearly, the probative value of this evidence overcame any prejudicial effect. Thus, even though trial counsel properly contested the admission of this evidence, the trial court's admission of this evidence was proper also.
In his eleventh issue, appellant argues that counsel was ineffective in failing to request a "corrupt and polluted source" instruction as to the testimony of Matthew Zarzycki.
It is well-settled that where an accomplice implicates the defendant, the trial court should instruct the jury that the accomplice is a corrupt and polluted source whose testimony should beCommonwealth v. Busanet, ___ Pa. ___, ___, 54 A.3d 35, 69-70 (2012).
considered with caution. [ Commonwealth v. ] Hanible, [612 Pa. 183,] 30 A.3d at 462 [(2011)]; Commonwealth v. Williams, 557 Pa. 207, 732 A.2d 1167, 1181 (1999). The charge is warranted where the evidence is sufficient to present a jury question with respect to whether the Commonwealth's witness is an accomplice. Id. at 1181. An accomplice is one who aids or agrees or attempts to aid another person in planning or committing the offense. 18 Pa.C.S. § 306(c)(1)(ii).
Instantly, there was no evidence that Zarzycki helped plan or participate in the murder appellant committed; thus, Zarzycki was not an accomplice to that crime. While it is true that Zarzycki was an accomplice with appellant in the crime of receiving stolen property and would have been a corrupt source had appellant been prosecuted for that offense, his testimony as to the murder was not from an accomplice. Moreover, the jury was fully aware that Zarzycki's testimony was potentially tainted. Testimony was given by a deputy district attorney that Zarzycki entered a plea agreement as to his participation in this case and was permitted to plead guilty to one count of receiving stolen property in exchange for his testimony in this case. (Notes of testimony, 10/2/07 at 273-277.) Counsel was not ineffective because no corrupt source charge was necessary and the jury already had reason to regard Zarzycki's testimony with suspicion.
In fact, by appellant's own account at trial, the fight with the victim was spontaneous and Zarzycki was not present.
Appellant was prosecuted only on the homicide charges; all other charges, including receiving stolen property, were withdrawn.
In his twelfth issue on appeal, appellant asserts that counsel was ineffective in failing to investigate whether appellant's fingerprints appeared on the victim's wallet or on light switches or door knobs at the place of the murder. This argument is specious. Appellant admitted to being present at the crime scene and Zarzycki was in possession of the wallet. Moreover, even if appellant's fingerprints did not appear on the objects described, there is an appropriate legal adage:
Moreover, it is acknowledged that the mere absence of appellant's DNA on any of the tested items will not provide compelling evidence of his innocence. See: Commonwealth v. Heilman, supra, 867 A.2d [542] at 547 [Pa.Super. 2005] ("In DNA as in other areas, an absence of evidence is not evidence of absence.").Commonwealth v. Conway, 14 A.3d 101, 110 (Pa.Super. 2011) (underlining emphasis added), appeal denied, 612 Pa. 687, 29 A.3d 795 (2011). There is no basis here for finding trial counsel to be ineffective.
In his thirteenth issue, appellant contends that direct appeal counsel was ineffective in failing to properly raise the issue of sufficiency of the evidence on appeal, and for failing to appeal the issue of the weight of the evidence. These issues were not raised in the PCRA petition and are waived. Pa.R.A.P., Rule 302(a), 42 Pa.C.S.A.
In his fourteenth issue, appellant posits that PCRA counsel was ineffective in essentially providing him with no representation. Appellant preserved this issue in a motion filed on September 21, 2012, in opposition to PCRA counsel's petition to withdraw. See Commonwealth v. Pitts, 603 Pa. 1, 981 A.2d 875 (2009). Nonetheless, having now reviewed appellant's various issues and having found all of them to be without merit, we find that PCRA counsel applied the correct analysis and was not ineffective.
Accordingly, having found no merit in the issues on appeal, we will affirm the order below.
Order affirmed. Judgment Entered. __________
Joseph D. Seletyn, Esq.
Prothonotary