Com. v. Shauf, J. ( 2018 )

J-S09042-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JASON C. SHAUF :
:
Appellant : No. 1160 MDA 2017
Appeal from the PCRA Order June 23, 2017
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0000007-2013
BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 16, 2018
Appellant, Jason C. Shauf, appeals from the order entered in the
Franklin County Court of Common Pleas, denying his first petition filed
pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
In its opinions, the PCRA court accurately set forth the relevant facts
and procedural history of this case. Therefore, we have no reason to restate
them.
Appellant raises the following issues for our review:
(1) WHETHER THE PCRA COURT ERRED BY DENYING
APPELLANT’S PCRA CLAIM OF INEFFECTIVE ASSISTANCE
OF PRE-TRIAL COUNSEL WHERE PRE-TRIAL COUNSEL
FAILED TO FILE A MOTION TO SUPPRESS APPELLANT’S
STATEMENT TO THE POLICE ON THE BASIS THAT
____________________________________________
1 42 Pa.C.S.A. §§ 9541-9546.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S09042-18
APPELLANT DID NOT MAKE A KNOWING AND INTELLIGENT
WAIVER OF HIS MIRANDA[2] RIGHTS?
(2) WHETHER THE PCRA COURT ERRED BY DENYING
APPELLANT’S PCRA CLAIM OF INEFFECTIVE ASSISTANCE
OF PRE-TRIAL COUNSEL WHERE PRE-TRIAL COUNSEL
FAILED TO FILE A MOTION TO SUPPRESS APPELLANT’S
STATEMENT TO THE POLICE ON THE BASIS THAT
APPELLANT HAD BEEN ARRESTED WITHOUT PROBABLE
CAUSE AT THE TIME THE STATEMENT WAS MADE?
(3) WHETHER THE PCRA COURT ERRED BY DENYING
APPELLANT’S PCRA CLAIM OF INEFFECTIVE ASSISTANCE
OF PRE-TRIAL COUNSEL WHERE PRE-TRIAL COUNSEL
FAILED TO FILE A MOTION TO SUPPRESS THE SEARCH
WARRANT FOR APPELLANT’S HOME AND VEHICLE ON THE
BASIS THAT (1) THERE WAS NO NEXUS BETWEEN THE
HOMICIDE THE POLICE WERE INVESTIGATING AND THE
PLACES TO BE SEARCHED AND (2) IT FAILED TO
DISCLOSE FACTS BEARING ON THE UNRELIABILITY OF
THE IDENTIFICATION OF APPELLANT?
(4) WHETHER THE PCRA COURT ERRED BY DENYING
APPELLANT’S PCRA CLAIM OF INEFFECTIVE ASSISTANCE
OF PRE-TRIAL COUNSEL WHERE PRE-TRIAL COUNSEL
FAILED TO FILE A MOTION TO SUPPRESS A WITNESS
IDENTIFICATION THAT WAS BASED ON AN OVERLY
SUGGESTIVE PHOTO ARRAY?
(5) WHETHER THE PCRA COURT ERRED BY DENYING
APPELLANT’S PCRA CLAIM OF A VIOLATION OF HIS RIGHT
TO TRIAL BY AN IMPARTIAL JURY UNDER BOTH THE
UNITED STATES AND PENNSYLVANIA CONSTITUTIONS
WHERE JUROR #2 WAS PRESUMED BIASED AND
THEREFORE THE JURY WAS NOT IMPARTIAL?
(6) WHETHER THE PCRA COURT ERRED BY DENYING
APPELLANT’S PCRA CLAIM OF INEFFECTIVE ASSISTANCE
OF TRIAL COUNSEL WHERE TRIAL COUNSEL FAILED TO
REQUEST THAT A BIASED JUROR BE STRICKEN FROM THE
____________________________________________
2 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
-2-
J-S09042-18
JURY FOR CAUSE?
(7) WHETHER THE PCRA COURT ERRED BY DENYING
APPELLANT’S PCRA CLAIM OF INEFFECTIVE ASSISTANCE
OF TRIAL COUNSEL WHERE TRIAL COUNSEL FAILED TO
OBJECT TO IMPROPER CHARACTER TESTIMONY
DESCRIBING APPELLANT AS VIOLENT?
(8) WHETHER THE PCRA COURT ERRED BY DENYING
APPELLANT’S PCRA CLAIM OF INEFFECTIVE ASSISTANCE
OF TRIAL COUNSEL WHERE TRIAL COUNSEL
INTENTIONALLY ELICITED TESTIMONY SUGGESTING THAT
APPELLANT HAD A PROPENSITY FOR VIOLENCE,
INCLUDING TESTIMONY THAT APPELLANT HAD A
PROTECTION FROM ABUSE ORDER ENTERED AGAINST HIM
WHERE NO SUCH ORDER EXISTED?
(9) WHETHER THE PCRA COURT ERRED BY DENYING
APPELLANT’S PCRA CLAIM OF INEFFECTIVE ASSISTANCE
OF TRIAL COUNSEL WHERE TRIAL COUNSEL FAILED TO
OBJECT TO IRRELEVANT AND INADMISSIBLE TESTIMONY
ABOUT APPELLANT’S PAST DRUG USE?
(10) WHETHER THE PCRA COURT ERRED BY DENYING
APPELLANT’S PCRA CLAIM OF INEFFECTIVE ASSISTANCE
OF TRIAL COUNSEL WHERE TRIAL COUNSEL FAILED TO
OBJECT TO THE ADMISSION OF PHOTOGRAPHS OF THE
HOMICIDE VICTIM WHILE HE WAS STILL LIVING AND THE
USE OF THOSE PHOTOGRAPHS IN THE COMMONWEALTH’S
CLOSING ARGUMENT WHERE THE PHOTOGRAPHS WERE
NOT RELEVANT AND INTRODUCED FOR THE PURPOSE OF
ENGENDERING SYMPATHY FOR THE VICTIM?
(11) WHETHER THE PCRA COURT ERRED BY DENYING
APPELLANT’S PCRA CLAIM OF INEFFECTIVE ASSISTANCE
OF TRIAL COUNSEL WHERE TRIAL COUNSEL FAILED TO
OBJECT TO VICTIM-IMPACT TESTIMONY DURING THE
GUILT PHASE OF APPELLANT’S TRIAL?
(12) WHETHER THE PCRA COURT ERRED BY DENYING
APPELLANT’S PCRA CLAIM OF INEFFECTIVE ASSISTANCE
OF TRIAL COUNSEL WHERE TRIAL COUNSEL FAILED TO
OBJECT TO TESTIMONY FROM MULTIPLE POLICE
DETECTIVES OFFERING A PERSONAL OPINION AS TO THE
-3-
J-S09042-18
TRUTHFULNESS AND VERACITY OF APPELLANT’S
STATEMENT TO POLICE?
(13) WHETHER THE PCRA COURT ERRED BY DENYING
APPELLANT’S PCRA CLAIM OF INEFFECTIVE ASSISTANCE
OF TRIAL COUNSEL WHERE TRIAL COUNSEL FAILED TO
OBJECT TO NUMEROUS HEARSAY STATEMENTS
THROUGHOUT THE TRIAL, INCLUDING AN OUT-OF-COURT
IDENTIFICATION OF APPELLANT BY AN INDIVIDUAL WHO
DID NOT IDENTIFY APPELLANT AT TRIAL?
(14) WHETHER THE PCRA COURT ERRED BY DENYING
APPELLANT’S PCRA CLAIM OF INEFFECTIVE ASSISTANCE
OF TRIAL COUNSEL WHERE TRIAL COUNSEL FAILED TO
OBJECT TO MULTIPLE STATEMENTS IN THE DISTRICT
ATTORNEY’S CLOSING ARGUMENT DESIGNED TO APPEAL
TO THE EMOTIONS OF THE JURY RATHER THAN
SUGGESTING A DISPASSIONATE REVIEW OF THE FACTS
OF THE CASE?
(15) WHETHER THE PCRA COURT ERRED BY DENYING
APPELLANT’S PCRA CLAIM OF INEFFECTIVE ASSISTANCE
OF COUNSEL WHERE THE PERFORMANCE OF PRE-TRIAL
COUNSEL AND TRIAL COUNSEL, WHEN VIEWED IN TOTO,
INCLUDING THE NUMBER OF ERRORS OR FAILURES TO
ACT, PREJUDICED APPELLANT?
(Appellant’s Brief at 4-6).3
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinions of the Honorable Carol L. Van
Horn, we conclude Appellant’s issues merit no relief. The PCRA court
opinions comprehensively discuss and properly dispose of the questions
presented. (See Opinion in Support of Order Denying PCRA Relief, filed
June 23, 2017, at 9-70) (finding: (1) (pp. 12-16) pre-trial counsel testified
____________________________________________
3 For purposes of disposition, we have re-ordered some of Appellant’s issues.
-4-
J-S09042-18
Appellant’s statement to police was more helpful than harmful; if Appellant
decided not to testify at trial, counsel wanted to be able to produce
statement so jury could hear Appellant’s version of events; other evidence
besides Appellant’s statement placed Appellant at crime scene; Appellant’s
statement also showed his cooperation with police; counsel had reasonable
basis for his actions; (2) (pp. 16-20) one victim/witness identified Appellant
as perpetrator and someone that victim/witness had seen before; other
victims/witnesses gave physical descriptions of one of perpetrators, which
matched Appellant’s characteristics; police had probable cause to arrest
Appellant, so his claim lacks arguable merit; (3) (pp. 20-25) search warrant
indicated that one of victims/witnesses identified Appellant as perpetrator;
search warrant also stated Appellant’s neighbor reported seeing Appellant
and his cohort at Appellant’s residence on day after murder; information
contained in search warrant created sufficient nexus between homicide and
places to be searched; Appellant’s claim lacks arguable merit; (4) (pp. 25-
28) police showed victim/witness, who ultimately identified Appellant, two
sets of photo arrays; victim/witness did not identify Appellant in first photo
array even though Appellant was in that picture; later on same day, police
showed witness second photo array containing more recent picture of
Appellant, and victim/witness was able to identify Appellant as one of
perpetrators; pre-trial counsel testified he could not even identify Appellant
from first photo array because photo in that spread did not have clear
-5-
J-S09042-18
likeness to Appellant; in any event, counsel said he did not plan to contest
Appellant’s presence at scene, as part of trial strategy; photo array was not
unduly suggestive, and Appellant’s claim lacks arguable merit; (5-6) (pp.
28-31; 68-70) prior to opening arguments, juror #2 informed court she
remembered Appellant because she had hired him for roofing job that
Appellant did not complete; following questioning from court, juror
confirmed she “harbor[ed] no ill feelings” toward Appellant and could be fair
and impartial; Appellant failed to show that removal of juror #2 was
constitutionally required, where juror confirmed she could be fair and
impartial; Appellant’s related ineffectiveness claim lacks arguable merit; (7)
(pp. 31-34) through trial counsel’s questioning of Appellant’s former
girlfriend on cross-examination about whether she knew Appellant to have
guns, defense counsel opened door for Commonwealth to pursue on re-
direct questions related to Appellant’s character/propensity for violence;4
thus, trial counsel was not ineffective for failing to object to
Commonwealth’s question on re-direct; moreover, trial counsel testified that
part of trial strategy was to show Appellant was known to use his fists in
altercations, not guns; counsel had reasonable basis for not objecting to
____________________________________________
4 Appellant now complains trial counsel was ineffective for “opening the
door” to the line of questioning about guns. Nevertheless, Appellant did not
specify this claim in his PCRA petition, so it is waived. See Commonwealth
v. Washington, 592 Pa. 698, 927 A.2d 586 (2007) (explaining general rule
that any claim not raised in PCRA petition is waived on appeal).
-6-
J-S09042-18
Commonwealth’s inquiry on re-direct; (8) (pp. 34-36) at PCRA hearing, trial
counsel explained it was important to offer jury reason for why Appellant
parked his truck away from residence where murder took place; counsel
elicited testimony that Appellant did not park his vehicle on that street
because protection from abuse (“PFA”) order precluded Appellant from
parking there;5 apparently, PFA order did not exist; nevertheless, counsel
had reasonable basis for his trial strategy; (9) (pp. 37-40) trial counsel
testified he did not object to testimony about Appellant’s drug use because it
was not significant enough to warrant objection, counsel generally declines
to object to matters which do not harm defense trial strategy, and incessant
objections draw more attention to subject of objection; counsel had
reasonable basis for his actions; (10) (pp. 40-45) Commonwealth presented
substantial evidence of Appellant’s guilt, and Appellant cannot show
prejudice from counsel’s failure to object to pictures of murder Victim
presented at trial; (11) (pp. 46-52) Appellant fails to demonstrate that
challenged testimony constitutes “victim impact testimony”; moreover,
counsel testified that defense strategy was Appellant’s cohort killed Victim,
and to interrupt flow of trial to object during testimony about Victim would
not have aided Appellant’s trial strategy; further, Appellant makes only
____________________________________________
5 Trial counsel testified that Appellant told him there was a PFA order in
effect which had precluded him from parking on the street where the murder
occurred.
-7-
J-S09042-18
boilerplate prejudice allegations regarding this ineffectiveness claim, which
do not afford him relief; (12) (pp. 52-58) Commonwealth elicited testimony
concerning two detectives’ perceptions of Appellant’s credibility, which was
improper; nevertheless, detectives’ testimony focused on investigative
process and challenged testimony consists of fleeting statements in context
of eight-day trial; Appellant cannot show prejudice; (13) (pp. 58-63)
challenged statements were not offered for truth of matter asserted but to
explain detective’s investigation process; Appellant’s ineffectiveness claim
lacks arguable merit; (14) (pp. 63-68) prosecutor’s closing argument did
not exceed passionate rhetoric; moreover, trial counsel testified he did not
object because court instructs jury that arguments by counsel are not
evidence, and jurors’ recollection of facts/evidence controls; counsel had
reasonable basis for his actions). (See Rule 1925(a) Opinion, filed August
22, 2017, at 10-12)6 (finding: (15) given PCRA court’s disposition of
Appellant’s individual ineffectiveness of counsel claims, Appellant’s bald
averment of “cumulative prejudice” does not merit relief). Accordingly, we
affirm on the basis of the PCRA court’s opinions.
Order affirmed.
____________________________________________
6 We add to the court’s recitation of the scope and standard of review that if
the record supports a post-conviction court’s credibility determination, it is
binding on the appellate court. Commonwealth v. Dennis, 609 Pa. 442,
17 A.3d 297 (2011).
-8-
J-S09042-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/16/2018
-9-
Circulated 10/01/2018 02:36 PM
IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL
DISTRICT OF PENNSYLVANIA- FRANKLIN COUNTY BRANCH
Commonwealth of Pennsylvania Criminal Action
I
v. Case No. 7-2013
Jason C. Shauf, PCRA
Petitioner
The Honorable Carol L. Van Hom
OPINION sur PA. R.A.P.1925(a) AND ORDER OF COURT
Filed AUG 2 2 201]
Before Van Horn, P.J• q� �Clerk
-
/
.
/&d
IN THE COURT OF COMMON PLEAS OF THE 39™ JUDICIAL
DISTRICT OF PENNSYLVANIA- FRANKLIN COUNTY BRANCH
Commonwealth of Pennsylvania Criminal Action
V. Case No. 7-2013
Jason C. Shauf, PCRA
Petitioner
The Honorable Carol L. Van Hom
STATEMENT OF THE CASE
On December 17, 2014, a jury found the above-captioned Petitioner, Jason
C. Shauf ("Petitioner"), guilty of various charges including Second Degree
'
Murder, - Burglary.' six (6) counts of
Robbery;' ten (10) counts ofKidnapping,4 five (5) counts of Unlawful Restraint.i ,
Criminal Conspiracy to Robbery,6 and Criminal Conspiracy to Burglary.7
Petitioner was represented in the pretrial process by Attorney Mark Bayley, and by
Attorney Shane Kope at trial. On January 7, 2015, the Petitioner was sentenced to
life in prison in addition to an aggregate term of 42 to 84 years. Petitioner filed a
timely Post-Sentence Motion on January 2 o, 2015. A hearing was originally
1
18 Pa.C.S. § 2502(b).
2
18 Pa.C.S. § 3502(c)(l).
3
18 Pa.C.S. § 3701(a)(l)(i)-(iii).
4
18 Pa.C.S. § 2901(a)(2), (3).
5
18 Pa.C.S. § 2902(a)(l).
6
18 Pa.C.S. § 903 to 18 Pa. C.S. § 3701(a)(l)(i).
7
18 Pa.C.S. § 903 to 18 Pa. C.S. § 3502(a)(l).
2
scheduled before the Petitioner requested that the Motion be decided on briefs
alone. Petitioner filed his Brief in Support on February 20, 2015. The
Commonwealth filed its Brief in Opposition on March 17, 2015.
An April 13, 2015 Opinion and Order by this Court denied the Defendant's
Post-Sentence Motion. That same day, this Court granted Petitioner's previous
counsel's Motion to Withdraw. The Petitioner was subsequently appointed legal
representation through the Franklin County Public Defender's Office. On May 7,
2015, the Franklin County Public Defender's Office filed a Motion for
Appointment of Counsel Because of Conflict of Interest. This Court granted the
Motion and subsequently appointed Jens C. Wagner to represent the Petitioner on
appeal. On June 11, 2015, the Petitioner filed a Notice of Appeal and this Court
issued its Concise Statement Order.8 On July 2, 2015, Petitioner filed his Concise
Statement of Matters Complained of on Appeal. On July 17, 2015, this Court
responded to Petitioner's Concise Statement, and transmitted the Record to the
Superior Court. On November 5, 2015, upon consideration ofan application to
discontinue appeal, the Superior Court entered an Order discontinuing Petitioner's
appeal.
8
The Court notes that the Petitioner attempted to file a pro se Notice of Appeal through a letter
he filed on May 11, 2015. Given the confusion surrounding his legal representation after his trial
counsel who filed his Post-Sentence Motion withdrew, this Court finds it proper to consider his
actual Notice of Appeal filed on June 11, 2015, timely.
3
On February 29, 2016, Petitioner filed a prose Motion for Post-Conviction
Collateral Relief. On March 1, 2016, the Court appointed Attorney Nathaniel
Spang as counsel for Petitioner. Counsel for Petitioner then filed an Amended
Petition for Post-Conviction Collateral Relief on June 27, 2016. Subsequently, an
evidentiary hearing was held before this Court on November 17, 2016. Following
the hearing, this Court directed both parties to file briefs. On February 28, 2017,
Petitioner filed his Brief in Support of Previously Filed Amended PCRA Petition.
The Commonwealth filed its Brief on February 28, 2017.
On June 23, 2017, this Court issued an Opinion and Order denying
Appellant's requested relief and dismissing his PCRA Petition. Appellant filed a
timely Notice of Appeal on July 20, 2017. On July 21, 2017, this Court ordered
the Appellant file a Concise Statement of Matters Complained of on Appeal.
Appellant filed his Concise Statement on August 9, 2017. This Court will now
respond to Petitioner's claims of error in this Opinion and Order of Court pursuant
to Pa.R.A.P. 1925(a).
BACKGROUND
On October 22, 2012, a murder occurred at 310 East King Street,
Chambersburg, Pennsylvania. Numerous individuals lived in the residence and
were present at the time of the incident including Juan Miguel Herrera Marquez,
Genaro Gonzalez Chavez, Arturo Rubio Perez, Victor Campos Olguin (Hugo), and
4
Jose Trinidad Sanchez Herrea. Two other individuals, one named Sergio and
another named Ignacio, lived in the residence but were not present on the night in
question. Additionally, another individual, Augustin Macias Marquez, did not live
in the residence but was present on the night the murder occurred.
At roughly 9:30 p.m. on that evening, two individuals forced their way into
310 East King Street brandishing firearms. The first individual, Carl Varner,
wielded a .22 Magnum Rohm single action revolver. The other individual, the
Petitioner, displayed a H. Coon .410 snake charmer shotgun. The two suspects
began yelling and demanded to see an individual named "El Gallo." It is important
to note that the six victims present spoke Spanish and almost no English. Upon
observing the two suspects enter the residence Juan bolted into a nearby bedroom
and hid in the closet. Genaro and Augustin, who were also downstairs at the time
the suspects entered, were forced upstairs at gunpoint. They were subsequently
separated into different bedrooms. Genaro was forced into a bedroom in which
Arturo was already present. Petitioner then found Jose in the bathroom preparing
to take a shower and placed him in that bedroom as well. At this point, the
Petitioner took money from Arturo at gunpoint and continued to demand to see "El
Gallo." When his demands went unfulfilled, the Petitioner fired a shot into the
ceiling and then reloaded his shotgun.
5
Meanwhile Carl Vamer had forced Augustin into the other bedroom in
which Hugo was already located. He then proceeded to rob the two at gunpoint.
Next, Varner led Hugo and Augustin down the hallway before knocking Augustin
to the floor. Varner then placed his .22 caliber revolver by Hugo's neck and fired.
As a result, Hugo stumbled into the bathroom, fell into the bathtub and later died
from his injury. Following the shot, both suspects fled the scene. Police were then
called and an initial investigation was conducted. Police were able to identify the
Petitioner and Carl Varner as suspects and they were later arrested. Following a
properly executed search warrant, both the .22 revolver and .410 snake charmer
shotgun were found wrapped in a bandana in Varner' s basement. An empty box of
.410 snake charmer shotguns shells were found in the Petitioner's truck.
At trial, Petitioner admitted that he did accompany Varner to 310 East King
Street that night. However, the Petitioner argued that he had no idea that the
Petitioner intended to rob and murder anyone. Instead, the Petitioner claimed he
believed they were simply going to the residence to pick up money that was owed
to Varner. Petitioner also testified that Vamer brandished both the .22 revolver
and the .410 snake charmer shotgun and that he only brought a stick he found on
the ground for protection. Most importantly, Petitioner testified that at no time did
he go upstairs with Varner and that he simply stayed downstairs with his stick.
Petitioner testified that following the shots he fled with Varner and drove home.
6
Unconvinced, the jury convicted the Petitioner on all counts including Second
Degree Murder,
ISSUES:
In his Concise Statement, Appellant questions whether this Court erred in
denying the ineffective assistance of counsel claim brought before it in Appellant's
PCRA Petition. Specifically, Appellant raises the following issues:
I. Whether the Trial Court erred in denying relief on claim that Petitioner's
Constitutional right to an unbiased jury was violated because Juror
Number 2 was presumably biased against Petitioner.
II. Whether the Trial Court erred in denying relief on claim that pre-trial
counsel's failed to file a Motion to Suppress Petitioner's Statement to the
police on the basis that he did not make a knowing and intelligent waiver
of his Miranda rights.
III. Whether the Trial Court erred in denying relief on claim that pre-trial
counsel's failed to file a Motion to Suppress Petitioner's statement to the
police on the basis that Petitioner had been arrested without probable
cause at the time he made the statement.
IV. Whether the Trial Court erred in denying relief on claim that pre-trial
counsel's failed to file a Motion to Suppress the search warrant for
Petitioner's home and vehicle on the basis that (I) it failed to provide a
7
nexus between the homicide the police were investigating and the places
to be searched and (2) it failed to disclose facts bearing on the
unreliability of the identification of Petitioner.
V. Whether the Trial Court erred in denying relief on claim that pre-trial
counsel's failed to file a Motion to Suppress a witness identification
based on an overly suggestive photo array.
VI. Whether the Trial Court erred in denying relief on claim that trial
counsel's failed to move that Juror Number 2 be stricken for cause.
VII. Whether the Trial Court erred in denying relief on claim that trial
counsel's failed to object to improper character testimony describing
Petitioner as violent.
VIII. Whether the Trial Court erred in denying relief on claim that trial
counsel's decision to elicit testimony suggesting Petitioner had a
propensity for violence, including testimony that Petitioner had a
Protection from Abuse ("PFA") entered against him where no such order
existed.
IX. Whether the Trial Court erred in denying relief on claim that trial
counsel's failed to object to irrelevant and inadmissible testimony about
Petitioner's past drug use.
8
X. Whether the Trial Court erred in denying relief on claim that trial
counsel's failed to object to the admission of photographs of the
homicide victim while he was still living and the use of those
photographs in the Commonwealth's closing argument where the
photographs were not relevant and introduced for the purpose of
engendering sympathy for the victim.
XI. Whether the Trial Court erred in denying relief on claim that trial
counsel's failed to object to victim-impact testimony during the guilt
phase of the trial.
XII. Whether the Trial Court erred in denying relief on claim that trial
counsel's failed to object to testimony from multiple police detectives
offering a personal opinion as to the truthfulness and veracity of
Petitioner's statement.
XIII. Whether the Trial Court erred in denying relief on claim that trial
counsel's failed to object to numerous hearsay statements throughout the
trial, including an out-of-court identification of Petitioner by an
individual who did not identify Petitioner at trial.
XIV. Whether the Trial Court erred in denying relief on claim that trial
counsel's failedto object to multiple statements in the District Attorney's
9
closing argument designed to appeal to the emotions of the jury rather
than suggesting a dispassionate review of the facts of the case.
XV. Whether the Trial Court erred in denying relief on Petitioner's PCRA
claim of ineffective assistance of counsel where the performance of pre-
trial counsel and trial counsel, when viewed in toto, including the number
9
of errors or failures to act, prejudiced Petitioner.
STANDARD OF REVIEW
Our appellate courts review an order dismissing a petition filed under the
PCRA to determine whether the decision "of the PCRA court is supported by
evidence of record and is free of legal error." Commonwealth v. Rivera, 10 A.3d
1276, 1279 (Pa. Super. 2010) (citations omitted). The "scope of review is limited
to the findings of the PCRA court and the evidence of record, viewed in the light
most favorable to the prevailing party at the trial level." Id. The decision of the
PCRA court may be affirmed "on any grounds if it is supported by the record." Id.In the case of a purely legal question, the standard of review is de novo, and the
scope of review is plenary. See Commonwealth v. Patton, 985 A.2d 1283, 1286
(Pa. 2009).
9 Concise Statement of Matters Complained of on Appeal, August 9, 2017.
10
DISCUSSION
All but one of the issues raised by Appellant mirror the issues raised in his
PCRA Petition, and addressed by this Court in our June 23, 2017 Opinion and
Order of Court which is attached. Accordingly, this Court declines to address
those issues previously raised again here, and we refer the Superior Court to the
reasoned analysis set forth in our previous Opinion.
In his Concise Statement, the sole new issued raised by Petitioner is as
follows:
Whether the Trial Court erred in denying relief on
Petitioner's PCRA claim of ineffective assistance of
counsel where the performance of pre-trial counsel and
trial counsel, when viewed in toto, including the number
of errors or failures to act, prejudiced Petitioner.
(Concise Statement, at 2). Petitioner, therefore, contends that the cumulative effect
of counsel's errors deprived him of his Sixth Amendment right to effective
assistance of counsel. Like Petitioner, in Commonwealth v. Hutchinson, the
appellant argued that the cumulative errors of counsel deprived him of due process.
Commonwealth v. Hutchinson, 25 A.3d 277, 318 (Pa. 2011 ). The Pennsylvania
Supreme Court has provided that "[W]here a claimant has failed to prove prejudice
as the result of any individual errors, he cannot prevail on a cumulative effect
claim unless he demonstrates how the particular cumulative requires a different
analysis." Id. at 318-19 (quoting Commonwealth v. Wright, 961 A.2d 119, 158
11
(Pa. 2008)). "Although cumulative prejudice from individual claims may be
properly assessed in the aggregate when the individual claims have failed due to
lack of prejudice, nothing in our precedent relieves an appellant who claims
cumulative prejudice from setting forth a specific, reasoned, and legally and
factually supported argument for the claim." Hutchinson, 25 A.3d at 319. The
Pennsylvania Supreme Court explained that "In its entirety, [the appellant's] claim
comprises [a basis recital of appellant's previously raised claims], no [persuasive]
citations to authority or to the record, no specifics, and no argument." Id. at 318.
In the instant case, Petitioner fails to provide a "specific, reasoned, and legally and
factually supported" argument. Hutchinson, 25 A.3d at 319. Instead, Petitioner
merely offers a "bald averment of cumulative prejudice". Id. For these reasons,
Petitioner's instant claim of cumulative prejudice is meritless.
Ultimately, the Court finds the Appellant's ineffective assistance of counsel
claims to be without merit, and respectfully requests that the Superior Court affirm
our June 23, 2017 Order dismissing Appellant's claims.
12
IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL
DISTRICT OF PENNSYLVANIA - FRANKLIN COUNTY BRANCH
Commonwealth of Pennsylvania Criminal Action
v. Case No. 7-2013
Jason C. Shauf, PCRA
Petitioner
The Honorable Carol L. Van Hom
ORDER OF COURT
AND NOW THIS�DAY OF August, 2017, pursuant to Pa. R.A.P.
193 l(c),
IT IS HEREBY ORDERED THAT the Clerk of Courts of Franklin
County shall promptly transmit to the Prothonotary of the Superior Court the
record in this matter along with the attached Opinion sur Pa. R.A.P. 1925(a).
Pursuant to Pa. R. Crim. P. 114, the Clerk of Courts shall immediately
docket this Opinion and Order of Court and record in the docket the date it was
made. The Clerk shallforthwith furnish a copy ofthe Opinion and Order of Court,
by mail or personal delivery, to each party or attorney, and shall record in the
docket the time and manner thereof
By the Court,
Carol L.Van Hom, P.J.
copies:
Franklin County District Attorney's Office
Nathaniel F. Spang, Esq., Counsel for Appellant
13
Jason C. Shauf
7 of2013
Aug. 22, 2017, served a copy of the OPINION & ORDER OF COURT dated Aug. 22,
2017 signed by Judge Van Hom filed Aug. 22, 2017, by placing a copy of the same in the
Inter Office Mail to the following,
District Attorney
Nathaniel F. Spang, Esq.
Circulated 10/01/2018 02:36 PM
IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL
DISTRICT OF PENNSYLVANIA-FRANKLIN COUNTY BRANCH
--------------------------------·· _
Commonwealth of Pennsylvania Criminal Action
v. Case No. 7-2013 ./
Jason C. Shauf, PCRA
Petitioner
The Honorable Carol L. Van Hom
OPINION AND ORDER OF COURT
Filed
Before Van Horn, P.J.
�<�� ;,, Clerk
. / 15}
IN THE COURT OF COMMON PLEAS OF THE 39tH JUDICIAL
DISTRICT OF PENNSYLVANIA - FRANKLIN COUNTY BRANCH
Commonwealth of Pennsylvania Criminal Action
v. Case No. 7-2013
Jason C. Shauf, PCRA
Petitioner
The Honorable Carol L. Van Hom
STATEMENT OF THE CASE
On December 17, 2014, a jury found the above-captioned Petitioner, Jason
C. Shauf ("Petitioner"), guilty of various charges including Second Degree
Burglary.i six (6) counts of
Robbery,3 ten (10) counts of Kidnapping," five (5) counts ofUnlawful Restraint,'
Criminal Conspiracy to Robbery, 6 and Criminal Conspiracy to Burglary. 7
Petitioner was represented in the pretrial process by Attorney Mark Bayley, and by
Attorney Shane Kope at trial. On January 7, 2015, the Petitioner was sentenced to
life in prison in addition to an aggregate term of 42 to 84 years. Petitioner filed a
timely Post-Sentence Motion on January 201. 2015. A hearing was originally
1
18 Pa.C.S. § 2502(b).
2
18 Pa.C.S. § 3502(c)(l).
3
18 Pa.C.S. § 3701(a)(l)(i)-(iii).
4
18 Pa.C.S. § 2901(a)(2), (3). .
5
18 Pa.C.S. § 2902(a)(l).
618 Pa.C.S.
§ 903 to 18 Pa. C.S. § 370l(a)(l)(i).
7
18 Pa.C.S. § 903 to 18 Pa. C.S. § 3502(a)(l).
2
scheduled before the Petitioner requested.that the Motion be decided on briefs
alone. Petitioner filed his Brief in Support on February 20, 2015. The
Commonwealth filed its Brief in Opposition on March 17, 2015.
An April 13, 2015 Opinion and Order by this Court denied the Defendant's
Post-Sentence Motion. That same day, this Court granted Petitioner's previous
counsel's Motion to Withdraw. The Petitioner was subsequently appointed legal
representation through the Franklin County Public Defender's Office. On May 7,
2015, the FranklinCounty Public Defender's Office filed a Motion for
Appointment of Counsel Because of Conflict of Interest. This Court granted the
Motion and subsequently appointed Jens C. Wagner to represent the Petitioner on
appeal. On June 11, 2015, the Petitioner filed a Notice of Appeal and this Court
issued its Concise Statement Order.8 On July 2, 2015, Petitioner filed his Concise
Statement of Matters Complained of on Appeal. On July 17, 2015, this Court
responded to Petitioner's Concise Statement, and transmitted the Record to the
Superior Court. On November 5, 2015, upon consideration of an application to
discontinue appeal, the Superior Court entered an Order discontinuing Petitioner's
appeal.
8
The Court notes that the Petitioner attempted to file a prose Notice of Appeal through a letter
he filed on May 11, 2015. Given the confusion surrounding his legal representation after his trial
counsel who filed-his Post-Sentence Motion withdrew, this Court finds it proper to consider his
actual Notice of Appeal filed on June 11, 2015, timely,
3
On February 29, 2016, Petitioner filed a prose Motion for Post-Conviction·
Collateral Relief. On March 1, 2016, the Court appointed Attorney Nathaniel
Spang as counsel for Petitioner. Counsel for Petitioner then filed an Amended
Petition for Post-Conviction Collateral Relief on June 27, 2016. Subsequently, .an
evidentiary hearing was held before this Court on November 17, 2016. Following
the hearing, this Court directed both parties to file briefs. On February 28, 2017,
Petitioner filed his Brief in Support of Previously Filed Amended PCRA Petition.
The Commonwealth filed its Brief on February 28, 2017. The issue is now-ripe for
decision in this Opinion and Order of Court.
BACKGROUND
On October 22, 2012, a murder occurred at 310 East King Street,
Chambersburg, Pennsylvania. Numerous individuals lived in the residence and
were present at the time of the incident including Juan Miguel Herrera Marquez,
Genaro Gonzalez Chavez, Arturo Rubio Perez, Victor Campos Olguin (Hugo), and
Jose Trinidad Sanchez Herrea. Two other individuals, one named Sergio and
another named Ignacio, lived in the residence but were not present on the night in
question, Additionally, another individual, Augustin Macias Marquez, did not live
in the residence but was present on the night the murder occurred.
At roughly 9:30 p.m. on that evening, two individuals forced their way into
310 East King Street brandishing firearms. The first individual, Carl Varner,
4
wielded a .22 Magnum Rohm single action revolver. The other individual, the
Petitioner, displayed a H. Coon .2JTOsii.akecliarmer shotgun. The two suspects
began yelling and demanded to see an individual named "El Gallo." It is important
to note that the six victims preserit spoke Spanish and almost no English. Upon
observing the two suspects enter the residence Juan bolted into a nearby bedroom
and hid in the closet. Genaro and Augustin, who were also downstairs at the time
the suspects entered, were forced upstairs at gunpoint. They were subsequently
separated into different bedrooms. Genaro was forced into a bedroom in which
Arturo was already present. Petitioner then found Jose in the bathroom preparing
to take a shower and placed him in that bedroom as well. At this point, the
Petitioner took moriey from Arturo at gunpoint and continued to demand to see "El
Gallo." When his demands went unfulfilled, the Petitioner fired a shot into the
ceiling and then reloaded his shotgun.
Meanwhile Carl Varner had forced Augustin into the other bedroom in
which Hugo was already located. He then proceeded to rob the two at gunpoint.
Next, Varner led Hugo and Augustin down the hallway before knocking Augustin
to the floor. Varner then placed his .22 caliber revolver by Hugo's neck and fired.
As a result, Hugo stumbled into the bathroom, fell into the bathtub and later died
from his injury. Following the shot, both suspects fled the scene. Police were then
called and an initial investigation was conducted. Police were able to identify the
5
Petitioner and Carl Varner as suspects and they were later arrested.. Following a
- properly execureo searcn warrant�-both the .22 revolver-anclATU snake charmer
shotgun were found wrapped in a bandana in Vamer's basement. An empty box of
.410 snake charmer shotguns shells were found in the Petitioner's truck.
At trial, Petitioner admitted that he did accompany Vamer to 310 East King
Street that night. However, the Petitioner argued that he had no idea that the
Petitioner intended to rob and murder anyone. Instead, the Petitioner claimed he
believed they were simply going to the residence to pick up money that was owed
to Varner. Petitioner also testified that Varner brandished both the .22 revolver
and the .410 snake charmer shotgun and that he only brought a stick he found on
the ground for protection. Most importantly, Petitioner testified that at no time did
he go upstairs with Varner and that he simply stayed downstairs with his stick.
Petitioner testified that following the shots he fled with Varner and drove home.
Unconvinced, the jury convicted the Petitioner on all counts including Second
Degree Murder.
6
ISSUES:
In themstanrPCRA.-Petitiori.," Petitioner raises severarmeffective assistance
of counsel claims against Attorney Mark Bayley and Attorney Shane Kope.
Petitioner claims that Attorney Bayley was ineffective for the following reasons:
I. Failure to file a Motion to Suppress Petitioner's Statement to the police
on the basis that he did not make a knowing and intelligent waiver of his
Miranda rights.
II. Failure to file a Motion to Suppress Petitioner's statement to the police
on the basis that Petitioner had been arrested without probable cause at
the time he made the statement.
III. Failure to file a Motion to Suppress the search warrant for Petitioner's
home and vehicle on the basis that (1) it failed to provide a nexus
between the homicide the police were investigating and the places to be
searched and (2) it failed to disclose facts bearing on the unreliability of
the identification of Petitioner.
IV. Failure to file a Motion to Suppress a witness identification based on an
overly suggestive photo array.
Petitioner claims that Attorney Kope was ineffective for the following reasons:
I. Failure to move that Juror Number 2 be stricken for cause.
7
II. Failure to object to improper character testimony describing Petitioner as
v10lent.
III. Trial counsel's decision to elicit testimony suggesting Petitioner had a
propensity for violence, including testimony that Petitioner had a
Protection from Abuse ("PFA") entered against him where no such order
existed.
IV. Failure to object to irrelevant and inadmissible testimony about
Petitioner's past drug use.
V. Failure to object to the admission of photographs of the homicide victim
while he was still living and the use of those photographs in the
Commonwealth's closing argument where the photographs were not
relevant and introduced for the purpose of engendering sympathy for the
victim.
VI. Failure to object to victim-impact testimony during the guilt phase of the
trial.
VII. Failure to object to testimony from multiple police detectives offering a
personal opinion as to the truthfulness and veracity of Petitioner's
statement.
8
VIII. Failure to object to numerous hearsay statements throughout the trial,
----·- -------incluifiri1fan out-of�court identification of Petitioner oy an individual -
who did not identify Petitioner at trial.
IX. Failure to object to multiple statements in the District Attorney's closing
argument designed to appeal to the emotions of the jury rather than
suggesting a dispassionate review of the facts of the case.
Petitioner also raises the following issue:
I. Petitioner's Constitutional right to an unbiased jury was violated because
Juror Number 2 was presumably biased against Petitioner.9
DISCUSSION
The Post Conviction Relief Act (PCRA) was enacted to provide individuals
who are convicted of crimes for which they are innocent, or those serving illegal
sentences, with a means to obtain collateral relief. See 42 Pa.C.S. § 9543. First,
the petitioner must demonstrate he was convicted of a crime under the law of
Pennsylvania, and that he is currently serving a sentence or waiting to do so. See
42 Pa. C.S. §9543(a)(l). Second, the petitioner must prove, by a preponderance of
the evidence, that his conviction or sentence resulted from one or more of the
enumerated statutory factors. See 42 Pa. C.S. §9543(a)(2). Third, a petitioner
must demonstrate the issues raised under the Act have not been previously litigated
9
Petitioner's PCRA Brief, February 28, 2017.
9
or waived, and finally, that the failure to litigate such .issues could not have
resulted-from a rational, strategic; oftactical decision by counsel. See id. at
§9543(a)(l), (3)-(4). "Inherent in this pleading and proof requirement is that the
petitioner must not only state what his issues are, but also he must demonstrate in
his pleadings and briefs how the issues will be proved." Commonwealth v. Rivers,
786 A.2d 923, 927 (Pa. 2001).
I. Claims for Ineffective Assistance of Counsel
Among the statutory factors from which a conviction or sentence may have
resulted in creating an entitlement to post-conviction relief is the ineffective
assistance of counsel. 42 Pa.C.S. §9543(a)(2)(ii). In light of the particular
circumstances of a case, the ineffective assistance of counsel must have so
undermined the truth-determining process that "no reliable adjudication of guilt or
innocence could have taken place." Id.
The assistance of counsel is presumed effective. See Commonwealth v.
Martin, 5 A.3d 177, 183 (Pa. 2010). Petitioner bears the burden of proving
otherwise, accomplished by satisfying the three-pronged test laid out by our
appellate courts in Pierce. See Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa.
2001 ). As explained in Pierce, Petitioner must establish that the underlying claim
of ineffectiveness has (1) arguable merit, (2) that counsel's act or omission had no
10
reasonable basis to advance the Petitioner's interests, and (3) that the Petitioner
-- suffered actual prejudice due to.the trial counsel's act or omission. Id. at 212.
Failure to satisfy any of the three prongs of the Pierce test will result in
denial of the claimed ineffective assistance. See Pierce, 786 A.2d at 221-22. The
inquiry mirrors that set forth by the United States Supreme Court, requiring both a
showing that counsel's performance was deficient, and that such deficiency was
prejudicial. See Strickland v. Washington, 466 U.S. 668, 687-91 (1984).
Significantly, a Petitioner raising a claim of ineffectiveness must demonstrate
actual prejudice-vthat 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. Charleston, 94 A.3d 1012, 1019 (Pa.Super.
2014) (quoting Pierce, 527 A.2d at 977). The Pennsylvania Supreme Court has
provided that "as a general and practical matter, it is more difficult for a defendant
to prevail on a claim litigated through the lens of counsel ineffectiveness, rather
than as a preserved claim of trial court error." Commonwealth v. Spotz, 84A.3d
294, 315 (Pa. 2014) (citing Commonwealth v. Gribble, 863 A.2d 455, 472 (Pa.
2004)).
Pursuant to the above standards, this Court now analyzes each issue raised
by the Petitioner in turn.
11
A. Petitioner's Claims Regarding Attorney Hayley's Ineffectiveness
Attorney Bayley represented Petitioner from approximately June 20, 2013 to
November 6, 2013, essentially from right before Mandatory Arraignment through
the time that Attorney Shane Kope entered his appearance in November of 2013.
All of the IAC allegations against Attorney Bayley are based on Attorney Bayley's
decision not to file a Motion to Suppress on behalf of Petitioner.
i. Failure to file a Motion to Suppress Petitioner's Statement to the
police on the basis that he did not make a knowing and intelligent
waiver of his Miranda rights.
In the instant case, Petitioner argues that Attorney Bayley was ineffective as
a result of his failure to file a Motion to Suppress Petitioner's statement to the
police on the basis that Petitioner did not make a knowing and intelligent waiver of
his Miranda rights. (Petitioner's PCRA Brief, February 28, 2017, at 6).
a. Arguable Merit
First, the defendant must show the underlying substantive claim has arguable
merit. "Arguable merit exists when the factual statements are accurate and 'could
establish cause for relief."' Commonwealth v. Barnett, 121 A.3d 534, 540 (Pa.
Super. 2015) (quoting Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super.
2013)). Counsel cannot be held ineffective for failing to raise a meritless claim or
.a non-existent theory. See Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. Super.
2014); Commonwealth v. Skurkis, 348 A.2d 894, 896 (Pa. 1975).
12
In the suppression realm, the Pennsylvania Supreme Court has provided:
-----------[-
" ]-
t eh -a.ilure
f to file a."suppress1oii.'"motion may be evidenceoffneffective assistance _
of counsel. However, if the grounds underpinning the suppression motion or
objection are without merit, counsel will not be deemed to have beeri ineffective in
failing to so move or object." Commonwealth v. Ransome, 402 A.2d l':3'19, 1381-
82 (Pa. 1979).
Petitioner avers that this claim could establish cause for relief through his
argument that he did not make a knowing and intelligent waiver of his Miranda
rights. (Petitioner's PCRA Brief, at 7). Accordingly, the question of whether the
instant claim has arguable merit rests on a determination of whether or not
Petitioner's Miranda waiver was knowing and intelligent.
A Miranda waiver is only valid if it is done in a knowing and intelligent
fashion. Commonwealth v. Dixon, 379 A111d 553, 556 (Pa. 1977). The
Pennsylvania Supreme Court has provided that a Miranda waiver is not "knowing
and intelligent" unless the suspect has an awareness of the "general nature of the
transaction giving rise to the investigation." Id.At the PCRA hearing, Attorney Bayley was questioned regarding the
applicability of Commonwealth v. Dixon on the Defendant's case. (T.P. PCRA
Hearing, November 17, 2016, at 13). He indicated that while he was not aware of
the Dixon case prior to the instant case, that when he did become aware of its
13
holding "[he] realized that there was an issue with regard to suppression and Mr.
---- - -Shauf s statement thaiihafha,rpotential merit"; he also-indicated that he "thouglif- - -· ..
long and hard about whether or not a favorable suppression ruling would advance
Mr. Shaufs cause." (Id.). Through this testimony, it appears that Attorney
Bayley, and the Commonwealth in its Brief in Opposition to Defendant's Post
Conviction Relief Act Petition by citing this testimony, concede that there were
grounds upon which a suppression motion could have been made. Therefore, this
Court finds that "the grounds underpinning the suppression motion" have merit.
See Ransome, 402 A.2d at 1-;S 1-82. Petitioner therefore satisfies the first Pierce
prong by demonstrating that this claim could establish cause for relief. See
Barnett, 121 A.3d at 540.
b. Reasonable Basis
While Petitioner's instant claim that counsel's failure to file a suppression
motion constituted ineffective assistance of counsel has arguable merit, Petitioner's
claim fails as trial counsel had a reasonable basis for his failure to file the motion.
To succeed on an IAC claim, the Petitioner must demonstrate that counsel did not
have any reasonable basis for their acts or failure to act designed to effectuate the
client's interest. See Pierce, 786 A.2d at 213. "In considering whether counsel
acted reasonably, we look to 'whether no competent counsel would have chosen
that action or inaction, or, the alternative, not chosen, offered a significantly
14
greater potential chance of success.'" Barnett, 121 A.3d at 540 (quoting Stewart,
-g-4-A.-JaaI707}.---��[J]udicial scrutiny of counsel's perfomiaiice-musf6e-hTghTy -
deferential", Commonwealth v. Perry, 128 A. 3d 1285, 1290 (Pa. Super. 2015), and
"[c]ounsel's decisions will be considered reasonable if they effectuated his client's
interests. We do not employ a hindsight analysis in comparing trial counsel's
actions with other efforts he may have taken." Barnett, 121 A.3d at 540 (quoting
Stewart, 84 A.3d at 707).
At the PCRA hearing, Attorney Bayley testified as to his rationale for
ultimately deciding not to file a suppression motion. Attorney Bayley explained
that while he did consider filing a motion to suppress based on inadequate Miranda
warnings, he ultimately determined that the good in the statement outweighed the
bad. (T.P. PCRA Hearing, at 13). Attorney Bayley further stated that by not
challenging the Petitioner's statement, if the Petitioner decided not to testify at
trial, the jury would still hear what the Petitioner claimed to be a truthful and
accurate version of events that occurred on the night of the crime. (Id. at 14-15).
Attorney Bayley also explained that he considered the admission of the Petitioner's
statement to be rendered less important than it otherwise might be, because he
believed that the Commonwealth would be able to place the Petitioner at the scene
of the crime "without any problem". (Id. at 15). Finally, Attorney Bayley testified
. that anod1er beneficial aspect of Petitioner's statement was that:
15
It showed cooperation as well. There could be ari
argument made from a defense standpoint that people
wlio cooperate and give statements are potentially more
likely to be innocent, that would not be an uncommon
theory to propose in some form to a jury.
(Id. at 18).
As noted above, this Court must exercise great deference when assessing
counsel's performance. Perry, 128 A.3d at 1290. Attorney Bayley's testimony at
the PCRA hearing indicates to this Court that trial counsel had a reasonable basis
for deciding not to file a suppression motion. Accordingly, Petitioner's instant
claim for ineffectiveness fails the second Pierce prong.
ii. Failure to file a Motion to Suppress Petitioner's statement to the
police on the basis that Petitioner had been arrested without
probable cause at the time he made the statement.
In the instant case, Petitioner avers that Attorney Bayley was ineffective for
failing to file a Motion to Suppress Petitioner's statement to the police on the basis
that petitioner had been arrested without probable cause at the time he made the
statement. (Petitioner's PCRA Brief, at 10). ·
a. Arguable Merit
As noted above, to establish a meritorious ineffectiveness claim, Petitioner
must first establish that her claim has arguable merit by showing that "the factual
statements are accurate and 'could establish cause for relief.'" Barnett, 121 A.3d
at 540. Moreover, counsel will not be deemed ineffective for failing to file a
16
Motion to Suppress where the "grounds underpinning the suppression motion or
objection are without merit". Ransome, 402 A.2d at � "3� 1-82.
Here, Petitioner avers that this claim could establish cause for relief through
his argument that the police lacked probable cause to effectuate his arrest.
(Petitioner's PCRA Brief, at 10). Accordingly, the question of whether the instant
claim has arguable merit rests on a determination of whether or not probable cause
existed at the time of arrest.
Both the Federal Constitution and the Pennsylvania Constitution serve to
protect citizens from unreasonable searches and seizures. See U.S. Const. Amend.
IV; Pa. Const. art. I,§ 8; Commonwealth v. Chase, 960 A.2d 108, 112-13 (Pa.
2008) (citing In the Interest ofD.M, 781 A.2d 1161, 1163 (Pa. 2001)). (The key
question in determining if a seizure is constitutional under the Fourth Amendment
is if it is reasonable." Chase, 960 A.2d at 113 (internal citations omitted).
Evidence obtained from unreasonable, illegal seizures is inadmissible and must be
suppressed. Commonwealth v. Key, 789 A.2d 282, 290 (Pa. Super. 2001).
Investigative detentions and custodial detentions are two types of encounters
between police and citizens that constitute a seizure of a person. See
Commonwealth v. Freeman, 757 A.2d 903, 908 (Pa. 2000); see generally
Commonwealth v. Lovette, 450 A.2d 975 (Pa. 1982). Investigative detentions carry
"an official compulsion to stop and respond, but the detention is temporary, unless
17
it results in the formation of probable cause for arrest, and does not possess the
coercive conditions consistent with a formal arrest." Commonwealth v. DeHart,
745 A.2d 633, 636 (Pa. Super. 2000) (citations omitted).
"[A] custodial detention occurs when the nature, duration and conditions of
an investigative detention become so coercive as to be, practically speaking, the
functional equivalent of an arrest." DeHart, 745 A.2d at 636. To effectuate a
warrantless arrest, the police must have probable cause to believe both (I) that a
crime has been committed and (2) that the person being arrested was the person
who committed it. Commonwealth v. Clark, 735 A.2d 1248 (Pa. 1999). This
standard is more stringent than reasonable suspicion. Ranson, 103 A.3d at 77.
Probable cause exists when the facts and circumstances within the knowledge of
the officer is sufficient to warrant an officer of reasonable caution in the belief that
the suspect has committed or is committing a crime. Commonwealth v. Thompson, .
985 A.2d 928, 931 (Pa. 2009). "[Pjrobable cause does not require certainty, but
rather exists when criminality is one reasonable inference, not necessarily even the
most likely inference." Commonwealth. v. Spieler, 887 A.2d 1271, 1275 (Pa.
Super. 2005) (citations omitted). A totality of the circumstances analysis is
required to determine whether an officer had either reasonable suspicion to detain
or probable cause to arrest. Commonwealth. v. Myers, 728 A.2d 960, 962 (Pa.
Super.1999).
18
At the PCRA Hearing, when questioned about why he did not file a Motion
to Suppress on the Petitioner's behalf based on Petitioner being arrested without
probable cause, Attorney Bayley testified:
I believed then and believe now there was probable cause
to arrest him. So, I didn't identify any issues that I
believed had any merit or would advance his case. The
other thing I reviewed was the search warrant. I didn't
see any viable issues with regard to attacking the search
warrant.
(T.P. PCRA Hearing, at 21). When questioned whether he believed probable cause ·
existed when only one out of five individuals identified Petitioner, Attorney
Bayley testified:
I think all it would take was one to make probable cause.
And, the other interesting thing about identification that
the one witness made, it wasn't your routine
identification where the first time the person had ever
seen Shauf or the perpetrator was while the crime was
being committed and then the police 'came up with a
suspect, gave them a photo array and all of a sudden he
connects the person from the actual crime scene. This
was a situation where the one witness had actually seen
Shauf previous to the crime and remembered him from
being in a bar or a restaurant and been pointed out to him
by, I believe, Erika beard who had previously been
associated with Mr. Shauf.
So, this was a situation. It wasn't just a two-point
identification where he's seeing the perpetrator during
the crime and during the photo array. It's a situation
where, it's a three-point identification. He's seeing him
previously [sic] at the time of the crime and during the
· photo array.
19
(T.P. PCRA Hearing, at 22-23). Further, Attorney Bayley indicated.that while the
four other individuals in the residence on the night of the murder could not pick the
Petitioner o�t of a line up, all four individuals did give physical descriptions
pertaining to one of the perpetrators of the murder that were roughly accurate when
compared to the Petitioner. (Id. at 26).
This Court is persuaded that the one witness identification of the Petitioner,
and the four witness' descriptions that were roughly accurate when compared to
the Petitioner was sufficient to warrant an officer of reasonable caution in the
belief that the suspect has committed or is committing a crime. Thompson,' 985
A.2d at 931. Therefore, the grounds underpinning a potential Motion to Suppress
the Petitioner's statements to the police on the basis of lack of probable cause to
arrest Petitioner were meritless. Accordingly, Petitioner's instant claim for
ineffectiveness has no arguable merit, thereby failing the first Pierce prong.
iii. Failure to file a Motion to Suppress the search warrant for
Petitioner's home and vehicle on the basis that (1) it failed to provide
a nexus between the homicide the police were investigatine and the
pJaces to be searched and (2) it failed to disclose facts bearing on the
unreliability of the identification of Petitioner.
In the instant case, Petitioner avers that Attorney Bayley was ineffective for
failing to file a Motion to Suppress the search warrant for Petitioner's home and
vehicle on the basis that (1) it failed to provide a nexus between the homicide the
police were investigating and the places to be searched and (2) it failed to disclose
20
facts bearing on the unreliability of the identification of Petitioner. (Petitioner's
PCRA Brief, at 11).
a. Ar1n1able Merit
As noted above, to establish a meritorious ineffectiveness claim, Petitioner
must first establish that her claim has arguable merit by showing that "the factual
statements are accurate and 'could establish cause for relief?" Barnett, 121 A.3d
at 540. Moreover, counsel will not be deemed ineffective for failing to file a
Motion to Suppress where the "grounds underpinning the suppression motion or
objection are without merit". Ransome, 402 A.2d at �381-82. Here, Petitioner
avers that this claim could establish cause for relief through his argument that the
search warrant for Petitioner's home and vehicle (1) failed to provide a nexus
between the homicide the police were investigating and the places to be searched
and (2) failed to disclose facts bearing on the unreliability of the identification of
Petitioner. (Petitioner's PCRA Brief, at 11 ).
Under both the Federal Constitution and Pennsylvania Constitution, a
totality of the circumstances analysis is required to determine whether probable
cause exists for the issuance of a search warrant. See U.S. Const. Amend. IV; Pa.
Const. art. I,§ 8; Commonwealth v. Gray, 503 A.2d 921 (Pa. 1985) (adopting the
standard set forth in Illinois v. Gates, 462 U.S. 213 (1983)). Under a totality of the
circumstances analysis, the task of the issuing authority is:
21
[S]imply to make a practical, common-sense decision
whether, given all the circumstances, set forth in the
affidavit before him, including the 'veracity' and 'basis
of knowledge' of persons supplying hearsay information,
there is a fair probability that contraband or evidence of a
crime will be found in a particular place.
Commonwealth v. Smith, 784 A.2d 182, 185 (Pa. Super. 2001) (quoting
Commonwealth v. Coleman, 769 A.2d 462, 464 (Pa. Super. 2001) (internal
citations omitted)). "However, if a search warrant is based on an affidavit
containing deliberate or knowing misstatements of material fact, the search warrant
is invalid." Commonwealth v. Clark, 602 A.2d 1323, 1325 (Pa. Super. 1992)
(citations omitted); "To succeed in attacking a warrant, a defendant must come
forward with 'allegations of deliberate falsehood or of reckless disregard for the
truth, and those allegations must be accompanied by an offer of proof.'" See
Commonwealth/ Gomolekoff, 910 A.2d 710, 715 (Pa. Super. 2006) (quoting
Franks v. Delaware, 438 U.S.154, 171 (1978)).
In the instant case, a search warrant was executed on Petitioner's residence
and his vehicle. Petitioner first argues that Attorney Bayley was ineffective for
tailing to file a Motion to Suppress the search warrant, because the search warrant
failed to provide a nexus between the homicide the police were investigating and
the places to be searched. (Petitioner's PCRA Brief, at 11).
At the PCRA Hearing, Attorney Bayley agreed with PCRA counsel that
there mustbe a nexus between the crime being investigated and the place being
22
searched. (T.P. PCRA Hearing, at 27). Attorney Bayley explained why he
believed the search warrant was supported by probable cause:
He is identified as a suspect and I believe that the search
warrants provide probable cause that he was involved in
the situation ... And, that is enough, I believe, under the
circumstances to search his house the next day and his
vehicle that's sitting right next to it.
(Id. at 29-30). Attorney Bayley also indicated, when questioned on cross-
examination, that he did not believe it was unusual for the police to execute a
search warrant on a suspect's residence in the hopes of locating a murder weapon
when a weapon was used in the commission of a murder, and further noted that it
thought it would be unusual if the police acting differently. (Id. at 40).
Review of the search warrant indicates that it included information that the
Petitioner was recognized by one of the witnesses as one of the two suspects to
enter the residence on the night of the murder, "as he knew him to be associated .
with a female named Erica whom had been to the residence in the past." (Search
Warrant, October 23, 2012, at 2). The search warrant also provided that:
On [the day after the incident giving rise to the instant
case] information was developed that Jason C. Shauf
resided at 117 Sollenberger Road in Chambersburg. A
check of the residence revealed that a vehicle associated
with and registered to Jason C. Shauf ... was parked in
the driveway of said residence.
A neighbor reported seeing Jason C. Shauf and Carl
Varner at 117 Sollenberger Road in the early morning hrs
of this same date.
23
(Id.). Under a totality of the circumstances analysis, the information contained in
the search warrant, in tandem with the testimony provided by Attorney Bayley,
persuade this Court that there was a nexus between the homicide the police were
investigating and the places to be searched. Therefore, the Court concludes the
first basis raised by Petitioner in support of his argument that Attorney Bayley was
ineffective for failing to file a suppression motion regarding the search warrant-
that it failed to provide a nexus between the homicide the police were investigating
and the places to be searched-is meritless.
The Court is likewise persuaded that the second basis Petitioner argues
should have led Attorney Bayley to file a Motion to Suppress of the search
warrant-that the search warrant failed to disclose facts bearing on the unreliability
of the identification of Petitioner-lacks arguable merit. In support of the instant
issue, Petitioner points to the fact that only one of the five witnesses present at the
residence on the night of the murder identified Petitioner as one of the two
suspects. However, at the PCRA hearing, Attorney Bayley testified that while
Petitioner is correct that only one witness positively identified Petitioner as a
suspect, the other four witnesses gave descriptions matching the Petitioner. (T.P.
PCRA Hearing, at 30-32). Attorney Bayley continued, explaining that the four
witnesses:
24
[C]ouldn't identify him from the standpoint of having
seen him before knowing who he was. I think negative
information would be if you have four other witnesses
saying, suspect number 2 was somebody else, identified
him as entirely being some other individual as opposed to
just simply not knowing his name or having seen him
before.
(Id. at 31).
It is true that a search warrant is rendered invalid if it is based on "an
affidavit containing deliberate or knowing misstatements of material fact". Clark,
602 A.2d at 1325. However, the Court, like Attorney Bayley, is not persuaded that
the search warrant's failure to indicate that there were five witnesses, and only one
witness identified Petitioner, rises to the level of "deliberate or knowing
misstatements of material fact", id., or "allegations of deliberate falsehood or
reckless disregard for the truth", Gomolekoff, 910 A.2d at 715 (quoting Franks,
438 U.S. at 171). Accordingly, Petitioner's second basis raised in support of his
instant ineffectiveness claim lacks arguable merit, thereby failing the first Pierce
prong.
iv. Failure to file a Motion to Suppress a witness identification based on
an overly suggestive photo array.
In the instant case, Petitioner avers that Attorney Bayley was ineffective for
failing to file a Motion to Suppress a witness identification based on an overly
suggestive photo array. (Petitioner's PCRA Brief, at 14).
25
a. Anrnable Merit
As noted above, to establish a meritorious ineffectiveness claim, Petitioner
must first establish that her claim has arguable merit by showing that "the factual
statements are accurate and 'could establish cause for relief?" Barnett, 121 A.3d
at 540. Moreover, counsel will not be deemed ineffective for failing to file a
Motion to Suppress where the "grounds underpinning the suppression motion or
objection are without merit". Ransome, 402 A.2d at 11,1-82. Here, Petitioner
avers that this claim could establish cause for relief through his argument that the
photo array whereby the witness identified Petitioner was overly suggestive.
(Petitioner's PCRA Brief, at 14).
"A pictorial identification is unduly suggestive when it gives rise to a
substantial likelihood of irreparable misidentification." See Commonwealth v.
Hughes, 555 A.2d 1264, 1272 (Pa. 1989). In the instant case, the witness who
ultimately identified Petitioner as one of the intruders was shown two sets of photo
arrays. Prior to having been shown either set of photos, but after the murder
occurred, the witness was interviewed by the Chambersburg Police. The witness
described two suspects, and indicated that he was familiar with the first suspect,
but did not know his name. After having been shown the �rst photo array which
included Petitioner, the witness indicated that he did not recognize anyone related
to the incident, but did state that the first suspect was thinner and did not have
26
facial hair. Later on that same date, the witness was shown a second photo array
that included a more recent photo of Petitioner than the first photo array. The
witness pointed to Petitioner's photo in this second photo array, and indicated that
was one of the murder suspects, and specifically the man he had previously
indicated he was familiar with.
At the PCRA hearing, as noted above, Attorney Bayley testified that he did
not believe there was a reasonable possibility that the District Attorney could not
place Petitioner at the house at the time the crime occurred. (T.P. PCRA Hearing,
at 34). Consequently, Attorney Bayley explained that he planned on conceding
that Petitioner was present in the house at the time of the murder. (Id. at 35).
When questioned about the manner in which the photo array was shown to the
· witness, Attorney Bayley also testified:
And, I remember vividly, when I first looked at the photo
array, the initial photo array that the witness was
provided, where he couldn't identify Shauf, when I first
looked at that photo array, I could not clearly pick Mr.
Shauf out of that photo array and that-and I looked at
that photo array shortly after being face to face with Mr.
Shauf at the prison. And, there is something about that
first photo array in-his picture in that first photo array
that is just-it was not a good likeness of him at the time
and in fact the second photo array I looked at, that
interestingly the victim identified him in, I picked him
out right away. And, I don't know what the difference
was.
I remember he had facial hair in the first one, but there
were other differences. I myself couldn't pick him out.
27
So, I was not surprised that the victim couldn't pick him
out.
(Id. at 23-24).
Given AttorneyBayley's testimony, and the fact that the witness who
identified Petitioner had previous familiarity with him, this Court is not persuaded
that the photo array was overly suggestive. Therefore, the grounds underpinning
the suppression motion are meritless. Accordingly, Petitioner's instant
ineffectiveness claim lacks arguable merit, thereby failing the first Pierce prong.
B. Petitioner's Claims Regarding Attorney Kope's Ineffectiveness
Attorney Kope entered his appearance in November of 2013,"taking over
Petitioner's legal representation from Attorney Bayley. Attorney Kope represented
Petitioner during his jury trial.
i. . Failure to move that Juror Number 2 be stricken for cause.
In the instant case, Petitioner avers that Attorney Kope was ineffective as a
result of his failure to move that Juror Number 2 be stricken for cause. (See
Petitioner's PCRA Brief, at 6). Prior to opening statements at trial, Juror Number
2 advised the Court that she remembered Petitioner because she and her husband
had hired and paid him to complete a roofing job which he never finished. (T.P.
Trial, Day 1, December 8, 2014, at 4-9). Consequently, the following questioning
occurred:
28
[Court] Now, the question I would ask you, ma'am, is
after considering this fact, would you still be able to sit as
a fair and impartial juror in this case?
[Juror] I think I would be able to. That's in the past.
Whether or not what he's accused of he did, I would only
make a fair decision after hearing all information.
[Attorney Kope] [J]ust to repeat, in a different way the
question by the Judge-would that affect your ability to
judge his credibility or are you going to have a bias
toward his credibility and think, He's [sic] just not telling
the truth because of what had happened to us?
[Juror] I pray I wouldn't. I don't think I would because I
want to be fair. I just want to listen to the facts from all
parties even Mr. Shauf, you know, before I would make a
decision. That's in the past. I harbor no ill feelings.
[Attorney Kope] I understand. And so when you say you
don't think you could, I mean, you believe you could
listen to his version and judge him based on what he says
and his credibility at the time he says it. Do you feel you
can do that without any bias?
[Juror] I feel like I could. I feel like I could.
(Id.).
a. Arguable Merit
As noted above, to establish a meritorious ineffectiveness claim, Petitioner
must first establish that her claim has arguable merit by showing that "the factual
statements are accurate and 'could establish cause for relief."' Barnett, 121 A.3d
at 540. Pursuant to Article I, Section 9 of the Pennsylvania Constitution and the 6th
29
Amendment of the United States Constitution, the criminally accused are explicitly
granted the right to an impartial jury. "[C]laims of impartiality by prospective
jurors are subject to scrutiny for credibility and reliability as is any testimony."
Commonwealth v. Ellison, 902 A.2d 419, 424 (Pa. 2006). However, disclosure of
possible conflicts does not automatically require juror disqualification. As stated
by the Pennsylvania Supreme Court "[t]he test for determining whether a
prospective juror should be disqualified is whether he is willing and able to
eliminate the influence of any scruples and render a verdict according to the
evidence, and this is to be determined on the basis of answers to questions and
demeanor." Commonwealth v. Koehler, 36 A.3d 121, 143 (Pa.2012) (internal
citations omitted). The decision of whether to excuse a juror is within the
discretion of the trial court, and is subject to review only for an abuse of discretion.
Id. at 144.
In Koehler, an alternate juror informed the court that she may have
previously encountered the defendant approximately one year before the trial. Id.
at 143. Upon the Court's inquiry as to the juror's ability to serve fairly, the juror
initially indicated that she was uncertain about her ability to serve impartially. Id.However, after additional questions, the juror concluded this encounter would not
affect her ability to be a fair and impartial juror. Id.30
In the case at bar, like the juror in Koehler, Juror Number 2 responded that
she believed she would be able to serve impartially. (See T.P. Trial, day 1, at 4-9).
Consequently, this Court is not persuaded by Petitioner's argument that trial
counsel should have requested the juror's excusal, rendering the instant claim of
ineffectiveness void of arguable merit. Petitioner therefore fails the first Pierce
prong as to his IAC claim for trial counsel's failure to request Juror Number 2's
excusal from trial.
ii. Failure to obiect to improper character testimony describing
Petitioner as violent. ,
In the instant case, Petitioner avers that Attorney Kope was ineffective as a
result of his failure to object to improper character testimony describing Petitioner
as violent. (See Petitioner's PCRA Brief, at 15). At trial, the Commonwealth
called Erica Beard, Petitioner's former girlfriend, as a witness. On cross-
examination by Attorney Kope, Ms. Beard provided the following testimony:
[Q]. Now, also during this second interview with
Detective Mummert, do you believe or do you
remember--excuse me-telling the detective that you've
never seen Jason with guns or known him to have guns?
[A]. No. I've not known or seen him with a gun ever.
[Q]. Now, also during that same conversation, you had
told the detectives that you would never expect Jason to
shoot anyone; is that correct?
31
[A]. That is correct.
(See T.P. Trial, Day 3, December 10, 2014, at 26-27). During re-direct, the
Commonwealth asked Ms. Beard the following questions:
[Q]. Did you know [Petitioner] to be violent?
[A]. I mean, we had physical altercations when we were
in a relationship.
[Q]. Did you ever know him to get into fights with other
people?
[A]. Yes.
(See id. at 34). Attorney Kope did not object to this line of questioning.
a. Arguable Merit
As noted above, to establish a meritorious ineffectiveness claim, Petitioner
must first establish that her claim has arguable merit by showing that "the factual
statements are accurate and 'could establish cause for relief,"' Barnett, 121 A.3d
at 540. Under the Pennsylvania Rules of Evidence, "[e]vidence of a person's
character or character trait is not admissible to prove that on a particular occasion
the person acted in accordance with the character or trait." Pa.R.E. 404(a).
Moreover, "[ejvidenceof a crime, wrong, or other act is not admissible to prove a
person's character in order to show that on a particular occasion the person acted in
accordance with the character." Pa.R.E. 404(b)(2). "This rule of evidence
encompasses the principle that, 'Generally, evidence of prior bad acts or unrelated
32
criminal activity is inadmissible to show that a defendant acted in conformity with
those past acts or to show criminal propensity." See Commonwealth v. Nypaver,
69 A.3d 708, 716 (Pa. Super. 2013) (quoting Commonwealth v. Ross, 57 A.3d 85,
98 (Pa. Super. 2012) ( quoting Commonwealth v. Sherwood, 603 Pa. 92, 982 A.2d
483(2009))). However, a litigant may "open the door" to such inadmissible
evidence; "(a] litigant opens the door to inadmissible evidence by presenting proof
that creates a false impression refuted by the otherwise prohibited evidence." See
Nypaver, 69 A.3d at 716.
Here, through his questions regarding whether Ms. Beard had seen the
Defendant with guns or known the Defendant to own guns, Attorney Kope opened
the door to the line of questioning pursued by the Commonwealth on redirect, as
these questions related to the Defendant's character or trait for violence.
Consequently, Attorney Kope was not ineffective for failing to thereafter object to
the Commonwealth's questions. Petitioner therefore fails the first Pierce prong as
to his IAC claim for trial counsel's failure to object to character testimony
describing Petitioner as violent.
b. Reasonable Basis
Even were this Court to find arguable merit in this particular
ineffectiveness claim, the claim fails the second Pierce prong of reasonable basis.
As set forth previously, the decisions made by trial counsel will be deemed
33
"reasonable if they effectuated his. client's interests." Barnett, 121 A.3d at 540
(quoting Stewart, 84 A.3d at 707).
During the PCRA hearing, Attorney Kope indicated that:
[P]art of our trial strategy with Mr. Shauf was that he was
known-and I believe in one of the officers had said this
to him, but he was known to use his fist in altercation,
not weapons and he's not known to have guns and things
of that nature. . . ; that if he ever got into fight, he never
used a weapon. That was the theory.
(T.P. PCRA Hearing, at 74). Moreover, this Court must exercise great deference
when assessing counsel's performance. Perry, 128 A.3d·at 1290. To accept
Petitioner's arguments would be to wholly disregard trial counsel's explanations.
Attorney Kope's testimony at the PCRA hearing indicates to this Court that
trial counsel had a reasonable basis for deciding not to object to the respective
character testimony. Accordingly, Petitioner's instant claim for ineffectiveness
fails the second Pierce prong.
iii. Trial counsel's decision to elicit testimony suggesting Petitioner had
a propensity for violence, including testimony that Petitioner had a
Protection from Abuse ("PFA") entered against him where no such
order existed.
In the instant case, Petitioner avers that Attorney Kope was ineffective as a
result of his decision to elicit testimony suggesting Petitioner had a propensity for
violence, including testimony that Petitioner had a PFA entered against him where
no such order existed. (See Petitioner's PCRA Brief, at 17).
34
a. Argua hie Merit
As noted above, to establish a meritorious ineffectiveness claim, Petitioner
must first establish that her claim has arguable merit by showing that "the factual
statements are accurate and 'could establish cause for relief."' Barnett, 121 A.3d
at 540.
Here, Petitioner avers that trial counsel "elicited testimony from Petitioner
which indicated that PFA order was entered against him at the time of this incident
[when i]n fact, no such order was ever in place nor could ithave been as the
individual who was supposed [sic] protected party had no relation to Petitioner."
(Petitioner's PCRA Brief, at 17). However, Petitioner fails to offer any legal
authority supporting his claim that trial counsel's questioning was inappropriate.
(See generally, Petitioner's PCRA Brief). In contrast, the Commonwealth
highlights Attorney Kope' s testimony at the PCRA hearing, that even though no
PFA was filed against Petitioner at the time of the incident, that it was important to
offer the jury a description of Petitioner's perception at the time-that he believed
he could not be on the street based on a PFA. (Commonwealth's Brief, at 13; see
also T.P. PCRA Hearing, at 79).
Petitioner has therefore failed to establish that the instant claim has any
arguable merit. Accordingly, the claim is dismissed.
b. Reasonable Basis
35
Were this Court to find arguable merit in the instant claim, Petitioner still
fails the second Pierce prong of reasonable basis. As set forth previously, the
decisions made by trial counsel will be deemed "reasonable if they effectuated his
client's interests." Barnett, 121 A.3d at 540 (quoting Stewart, 84 A.3d at 707).
At the PCRA Hearing, Attorney Kope explained that he felt it important to
offer to the jury a reason for Petitioner parking his truck on a street other than the
street the residence where the murder occurred was located; Attorney Kope further
expressed his concern that simply telling the jury that the Petitioner parked where
he did as a result of street congestion was "too flimsy" of an explanation. (T.P.
PCRA Hearing, at 79).
Moreover, Petitioner has failed to cite any authority by which this Court
would be persuaded that trial counsel had no reasonable basis as a result of the
above noted testimony. The Court notes that, pursuant to case law issued by the
Pennsylvania Supreme Court, "boilerplate allegations and bald assertions of no
reasonable basis and/or ensuing prejudice. cannot satisfy a petitioner's burden to
prove that counsel was ineffective." Commonwealth v. Chmiel, 30 A.3d 1111,
1128 (Pa. 2011) (quoting Commonwealth v. Paddy, l 5 A.3d 431, 443 (Pa. 2011 )).
For the above noted reasons, Petitioner has failed to meet the second Pierce
prong. Accordingly, the instant IAC claim is dismissed.
36
iv. Failure to obiect to irrelevant and inadmissible testimony about
Petitioner's past drug use. ·
In the instant case, Petitioner avers that Attorney Kope was ineffective as a
result of his failure to object to irrelevant and inadmissible testimony about
Petitioner's past drug use. (See Petitioner's PCRA Brief, at 18).
a. Arguable Merit
As noted above, to establish a meritorious ineffectiveness claim, Petitioner
must first establish that herclaim has arguable merit by showing that "the factual
statements are accurate and 'could establish cause for relief."' Barnett, 121 A.3d
at 540.
Here, Petitioner asserts that at trial, testimony concerning Petitioner's
previous use of illegal drugs was presented to the jury numerous times.
(Petitioner's PCRA Brief, at 18-19). Petitioner specifically argues:
[T]estimony regarding past drug use is not admissible
"unless the party offering such evidence can specifically
tie it to. the charged conduct." Commonwealth v.
Chapman, 763 A.2d 895 (Pa. Super. 2000). It is
inadmissible because it has a prejudicial effect of
creating an image in the minds of jurors that Petitioner is
a "bad person." Id.(Petitioner's PCRA Brief, at 19). When offering the above rationale in
Commonwealth v. Chapman, the Superior Court of Pennsylvania quotes the lower
court's opinion which cites to Rule 404 of the Pennsylvania Rules of Evidence,
37
relating to character evidence and crimes or other acts. Chapman, 763 A.2d at
902.
The Pennsylvania Supreme Court has also weighed in on Pa.R.E. Rule 404:
While evidence of prior bad acts is inadmissible to prove
the character of a person in order to show conduct in
conformity therewith, evidence of prior bad acts may be
admissible when offered to prove some other relevant
fact, such as motive, opportunity, · intent, preparation,
plan, knowledge, identity, and absence of mistake or
accident.
Commonwealth v. Busanet, 54 A.3d 35, 60 (Pa. 2012) (citing Pa.R.E. Rule
404(b )(2)).
Given applicable case law, this Court is persuaded that trial counsel could
have objected to the testimony, as it is not clear how the testimony was tied
specifically to the murder in the instant case. Accordingly, Petitioner has
established the instant claim has arguable merit.
b. Reasonable Basis
Having concluded the instant claim has arguable merit, Petitioner must also
demonstrate the second Pierce prong-that trial counsel had no reasonable basis
for his actions or lack thereof at trial. Petitioner avers that trial counsel has no
reasonable basis for failin� to object to trial testimony concerning Petitioner's
illegal drug use. (Petitioner's PCRA Brief, at 18-19).
38
At the PCRA Hearing, Attorney Kope gave the following answers the
questions concerning his failure to object to the testimony concerning Petitioner's
previous use of illegal drugs:
[Q]. Other things that you didn't raise objections to, such
as drug use by Mr. Shauf?
[A]. Yes. I think one of the witnesses had said that
she-against, I don't remember exactly. I think she said
she had thought she had seen-I don't know if it was
Carl or Jason using drugs or cocaine that evening or it if
was a previous occasion. Again, I didn't find that
significant enough at the time because our whole trial
strategy, because he was drinking with Carl Varner
before they went over there. And, I think Carl Varner
may have at one point said they were using drugs.
Again, it wasn't significant enough to me to raise an
objection to.
[Q]. So, you didn't think the-let's put it this way. If
you had objected to the fact that he had previously used
drugs, do you think that was objectionable? In other
words, if you had raised an objection that it would have
been a sound objection that the Court would have
considered?
[A]. I really don't know. I mean, is it something you
could ultimately object on? You can object on anything
that you feel is-I mean, we've all been in trials where
you have an attorney that objects to every little thing that
comes up. I tend to, if it's not significant or if I felt its
harmless to our strategy, I won't object to it.
Not everybody can foresee every little thing that a
witness may say and just I tend not to object to every
little thing, draw all the more attention to the issue. And
quite franklin, you know, it breaks up the course of the
39
case to standup and object to every, you know, thing that
could be objectionable. So, quite often, if it doesn't
effect our overall strategy of the case or what we are
trying to accomplish, I will often not object to things that
I feel are just not significant enough to warrant it.·
(T.P. PCRA Hearing, at 76-78).
While this Court may agree that it would have been proper for trial counsel
to object to the testimony concerning Petitioner's illegal drug use, this Court must
exercise great deference when assessing counsel's performance. Perry, 128 A.3d
at 1290. To accept Petitioner's arguments would be to wholly disregard trial
counsel's explanations.
Consequently, Petitioner has failed to persuade this Court that there existed
no reasonable basis for trial counsel's failure to object to the testimony concerning
Petitioner's illegal drug use. Accordingly, the instant claim is dismissed for failure
to meet the second Pierce prong.
v. Failure to object to the admission of photographs of the homicide
victim while 'he was still living and the use of those photographs in
the Commonwealth's closine argument where the photographs were
not relevant and introduced for the purpose of engendering
sympathy for the victim.
In the instant case, Petitioner avers that Attorney Kope was ineffective as a
result of his failure to object to the admission of photographs of the homicide
victim while he was still living and the use of those photographs in the
Commonwealth's closing argument where the photographs were not relevant and
_40
introduced for the purpose of engendering sympathy for the victim. (See
Petitioner's PCRA Brief, at 19).
At trial, the Commonwealth introduced photographs of the victim while he
was still living. Trial counsel did not object to the admission of these photographs,
and they were thereafter displayed during the testimony of one of the victim's
friends, Augustin Marcias Marquez, 10 and during the Commonwealth's summation
to the jury.
a. Arguable Merit
As noted above, to establish a meritorious ineffectiveness claim, Petitioner
must first establish that her claim has arguable merit by showing that "the factual
statements are accurate and 'could establish cause for relief?" Barnett, 121 A.3d
at 540.
Here, Petitioner avers that the introduction of the photographs of the victim
was improper, as the victim's character and physical abilities were not at issue,
thereby rendering trial counsel's assistance ineffective due to his failure to object
to the photographs' introduction at trial. (Petitioner's PCRA Brief, at 19-21).
It is well settled that the "[a]dmission of evidence is within the sound
discretion of the trial court and will be reversed only upon a showing that the trial
10
The record indicates that the photograph was shown at the end of Mr. Marquez's direct
testimony, and the Commonwealth asked the witness if the victim had had family that lived in
the United States, and ifhe missed the victim: (T.P. Trial, Day 1, December 8, 2014, at 156).
41
court clearly abused its discretion." Commonwealth v. Tyson, 119 A.3d 353,3 57
(Pa. Super. 2015) (internal citations omitted). Moreover, "[a]n abuse of discretion
is not merely an error ofjudgment, but is rather the overriding or misapplication of
the law, or the exercise of judgment that is manifestly unreasonable, or the result of
bias, prejudice, ill-will or partiality, as shown by the evidence of the record." Id.(internal citations omitted). "The trial court will not be found to have abused that
discretion unless the essential evidentiary value of the photograph is clearly
outweighed by the inflammatory effect the picture will have upon the minds and
passions of the jurors." Commonwealth v. Rivers, 644 A.2d 710, 716 (Pa. 1994).
During the guilt phase of a murder trial, certain "life-in-being testimony" is
admissible, to show that the victim was alive prior to the murder. Commonwealth
v. Jordan, 65 A.3d 318, 333 (Pa. 2013). However, the Pennsylvania Supreme
"Court has made clear, however, that the manner of presenting life-in-being
evidence is subject to some restraints." Id. (citing Rivers, 644 A.2d at 716). In
Commonwealth v, Rivers, the Pennsylvania Supreme Court provided that while
photographs of the victim may be admissible when the "victim's character and
physical abilities are called into question", that photographs "introduced for the
purpose of engendering sympathy for the victim with the intent of creating an
atmosphere of prejudice against the defendant ... is error." Rivers, 644 A.2d at
716.
42
As the victim's character and physical abilities were not at issue, this Court
finds Petitioner has demonstrated the instant claim's arguable merit.
b. Actual Prejudice
As the victim's character and physical abilities were not at issue, this Court
finds Petitioner has demonstrated the instant claim's arguable merit.
While this Court may agree with Petitioner that the instant claim has
arguable merit, Petitioner must also demonstrate actual prejudice resulted from
counsel's inadequate performance. See Pierce, 786 A.2d at 213. A petitioner
demonstrates prejudice where he proves that "there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding would have
been different." Commonwealth v. Spatz, 84A.3d 294, 315 (Pa. 2014) (quoting
Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012)). "To properly determine
whether prejudice resulted from the quality of counsel's representation, we must
focus on counsel's overall trial strategy and view his performance as a whole."
Hull, 982 A.2d at 1026 (quoting Weiss, 606 A.2d at 443). The Pennsylvania
Supreme Court has further explained the difference:
This standard is different from the harmless error
analysis that is typically applied when determining
whether the trial court erred in taking or failing to take
certain action. The harmless error standard, as set forth
by this Court in Commonwealth v. Story, states that
" [w]henever there is a 'reasonable possibility' that an
error 'might have contributed to the conviction,' the error
is not harmless." This standard, which places the burden
43
)
on the Commonwealth to show that the error did not
contribute to the verdict beyond a reasonable doubt, is a
lesser standard than the Pierce prejudice standard, which
requires the defendant to show that counsel's conduct had
an actual adverse effect on the outcome of the
proceedings. This distinction appropriately arises from
the difference between a direct attack on .error occurring
at trial and a collateral attack on the stewardship of
counsel. In a collateral attack, we first presume that
counsel is effective, and that not every error by counsel
can or will result in a constitutional violation. of a
defendant's Sixth Amendment right to counsel.
Spatz, 84 A.3d at 315 ( quoting Gribble, 863 A.2d at 4 72) (internal citations
omitted).
In this instance, Petitioner cites Rivers for its reference to the "atmosphere or
prejudice" that may be created by photographs of the victim while still alive.
(Petitioner's PCRA Brief, at 20-21). However, after finding that admission of the
photograph of the decedent prior to death was improper, the Rivers Court then
considered whether the error was harmless:
An error is harmless when the Commonwealth can
establish "that . the evidence of guilt was so
overwhelming, and the error ... so insignificant by
comparison, that the error was harmless beyond a
reasonable doubt." Story, 476 Pa. at 417, 383 A.2d at
169: In Story, the Commonwealth had introduced two
photographs of the victim, one of which depicted him
with his wife and their crippled daughter. The widow was
called as a witness to identify the photographs and she
went on at great length to describe for the jury how the
victim's death had devastated the lives of her and her
daughter.
44
In· the instant case the photograph was identified by the
decedent's daughter, who merely related when and where
the photograph was taken and verified that it was an
accurate depiction of her mother immediately prior to her
death. The testimony surrounding the photograph in this
case was limited. Further, the actual polaroid snapshot of
the victim does not portray her as particularly old or frail
. . .. Although admission of the photograph was clearly
improper and irrelevant, in light of the overwhelming
circumstantial evidence of the appellant's guilt, we
conclude that the error was harmless.
Id. At 716. Like Rivers, this Court finds that notwithstanding the photographs in
question, the Commonwealth presented substantial evidence establishing
Petitioner's guilt. (See generally Commonwealth v. Shauf, Opinion and Order,
April 13, 2015 (denying Petitioner's Post-Sentence Motion that alleged the jury
verdict was against the weight of the evidence)). Moreover, given the result
reached in Rivers-that admitting photographs of the victims while alive was
merely harmless error-in tandem with the higher burden imposed on a petitioner
in demonstrating actual prejudice, Petitioner fails to persuade this Court that
introduction of photographs of the victim while alive in the instant case actually
prejudiced Petitioner.
For the above noted reasons, Petitioner has failed to meet the third Pierce
prong. Accordingly, the instant claim is dismissed. ·
45
vi, Failure to obiect to victim-impact testimony during the guilt phase of
the trial.
In the instant case, Petitioner avers that Attorney Kope was ineffective as a
result of his failure to object to victim-impact testimony during the guilt phase of
the trial. (See Petitioner's PCRA Brief, at 21-22).
The Commonwealth issued the following line of questions from Juan Miguel
Herrera Marquez:
[Q]. He was your friend?
[A]. In December, it would have been a year we knew
each other that he came to live in the house.
[ Q]. How did you feel when you went to the bathroom
and saw him there?
[A]. I don't know. I didn't even know that he was in the
house. I thought he was working. I thought somebody
kill Arturo because Arturo was there in the house. When
I saw him, he used to tell me he had a little girl. And you
can just imagine.
(T.P. Trial, Day 1, December 8, 2014, at 130-31). The Commonwealth also
elicited the following testimony from Augustin Macias Marquez:
[Q]. Okay. Finally, Augustin, how long has you known
Hugo before he was killed?
[A]. Three years.
'[Q]. You were good friends?
[A]. Yes. We were very good friends.
46
[Q]. And is that Hugo onthe screen?
[A]. Yes.
[Q]. Did he have family that lived here in the United
States?
[A]. I didn't know any family here.
[Q]. Okay. Do you miss him?
[A]. Yes.·
[Q]. Thank you, that's all I have.
(T.P. Trial, Day 1, December 8, 2014, at 156).
a. Arguable Merit
As noted above, to establish a meritorious ineffectiveness claim, Petitioner
must first establish that her claim has arguable merit by showing that "the factual
statements are accurate and 'could establish cause for relief."' Barnett, 121 A.3d
at 540.
Here, Petitioner argues that trial counsel's assistance was rendered
ineffective by his failure to object to victim-impact testimony during the guilt
phase of the trial. (Petitioner's PCRA Brief, at 21-22). Petitioner cites
Commonwealthv. Jordan, 65 A.3d 318, 333 (Pa. 2013), for the proposition that
47
"victim-impact testimony during the guilt phase of a homicide trial is irrelevant
and inadmissible." (Petitioner's PCRA Brief, at 22).11
"As defined by our Sentencing Code, victim impact evidence is information
concerning the victim and the impact the victim's death has had on the family of
the victim." Commonwealth v. Carson, 913 A.2d 220, 237 (Pa. 2006) (citing 42
Pa.C.S. § 971 l(a)(2)). In both Commonwealth v. Freeman, 827 A.2d 385 (Pa.
2003), and Commonealth v. Rollins, 738 A.2d 435 (Pa. 1999), the Pennsylvania
Supreme Court considered the issue of victim impact testimony. In Freeman, the
Court considered testimony that victim was a "peaceful" woman and that she was
"nice" when she was in the witness's company; the Court reasoned:
[W]e cannot determine that the line of inquiry was
necessarily invalid, nor would we assume that an attorney
intends the worst possible interpretation of an event. In
any event, even assuming arguendo that this very brief,
non-specific testimony that, prior to her murder, [the
victim] was a "peaceful" woman, and that she was "nice"
when she was in [the witness's] company
constituted victim impact testimony, it was so fleeting
and general that it cannot be said that it rendered the jury
incapable of returning a fair and impartial sentencing
verdict.
Freeman, 827 A .. 2d at 414. In Rollins, the Court provided:
11
The Court notes that Petitioner cites "Commonwealth v. Jordan, 65 A.3d 318, 3 33 (Pa. 2013)
(citing Robinson, supra)". Notwithstanding the impropriety in the citation-using supra in a
case citation-and given the Court's own diligent review of the Petitioner's PCRA Brief, as well
as the Jordan Opinion, this Court is unable to ascertain to what "Robinson, supra" refers.
Therefore, the rationale provided above by this Court bears no reference to Robinson.
48
Appellant raises the cursory argument that victim impact
testimony was improperly admitted during the guilt phase
of his trial. This argument is so sketchily presented that
its contours are difficult to discern. Appellant apparently
is reasoning that [the witness]'s brief comment during the
guilt phase of trial that her son, who had witnessed the
crime, is now afraid of toy guns, constitutes victim
impact testimony. Even assuming arguendo that this
comment constituted victim impact testimony, it was so
fleeting that it cannot be said that it affected the outcome
of this matter; thus, Appellant has failed to establish that
he has been prejudiced.
Rollins, 738 A.2d at 447.
In the instant case, Petitioner has failed to demonstrate that the above noted
testimony constitutes victim impact testimony; the Court notes that while the
instant claim submitted by Petitioner is premised on the concept of victim impact
testimony, he has not articulated what victim impact testimony is, or why this
Court should be persuaded that the above noted testimony qualifies as such.
Therefore, like the Pennsylvania Supreme Court in both' Freeman and Rollins, this
Court is not persuaded that the instant claim has any arguable merit. Accordingly,
the instant IAC claim fails.
b. Reasonable Basis
Even were Petitioner able to demonstrate that the instant claim has arguable
merit, Petitioner must also demonstrate the second Pierce prong-that trial counsel
had no reasonable basis for his actions or lack thereof at trial.
49
Here, Petitioner argues that "there are numerous ways [trial counsel] could
have objected [to the testimony] without alienating the jury." (Petitioner's PCRA
Brief, at 22). However, Petitioner fails to identify any such way. Moreover,
Petitioner fails to provide any case law or other authority supporting his averments.
Furthermore, at the PCRA hearing, Attorney Kope was questioned regarding
his failure to object to the above noted testimony. Attorney Kope explained that:
I do remember the questioning by one of the victim's
friend, I think he was at the residence about, you know,
he thinks of his daughter, the victim's daughter or
something and it makes him sad or something to that
effect. But, again, going back to trial strategy, somebody
died here. People are going to be sad that somebody died
and friends, and roommates, and neighbors are going to
be sad and they're going to think about their children.
Again, our trial strategy is focusing on the fact that Mr.
Vamer did this, not [Petitioner]. And nor did [Petitioner]
have any idea that Mr. Varner was going to go to these r
extremes. And that's where we focused our trial strategy.
Again, to interrupt the flow of the trial and to draw all the
more attention to that issue when it's just really riot
significant enough to warrant an objection in my opinion.
(T .P. PCRA Hearing, at 95-96). As noted above, this Court must exercise great
deference when assessing counsel's performance. Perry, 128 A.3d at 1290. To
accept Petitioner's arguments would be to wholly disregard trial counsel's
explanations.
50
Consequently, Petitioner has failed to persuade this Court that there existed
no reasonable basis for trial counsel's failure to object to the testimony.
Accordingly, the instant claim is dismissed for failure to meet the second Pierce
prong.
c. Actual Prejudice
For the sake of completeness, we will address the final Pierce prong. As
noted previously, to show actual prejudice, a Petitioner must prove that "there is a
reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Spotz, 84 A.3d at 315 (internal citations
omitted).
Here, Petitioner merely asserts that "[w]hile the admission of such testimony
can be deemed harmless in certain circumstances, trial counsel's failure to object to
it cannot be deemed harmless in this case." (Petitioner's PCRA Brief, at 22).
However, Petitioner fails to articulate how he was actually prejudiced by this
testimony. Moreover, Petitioner has failed to cite any authority by which this
Court would be persuaded that he was actually prejudiced as a result of the above
noted testimony. As noted above, "boilerplate allegations and bald assertions of
no reasonable basis and/or ensuing prejudice cannot satisfy a petitioner's burden to
prove that counsel was ineffective." Commonwealth v. Chmiel, 30 A.3d 1111,
1128 (Pa. 2011) (quoting Commonwealth v. Paddy, 15 A.3d 431, 443 (Pa. 2011)).
51
For the above noted reasons, Petitioner has failed to meet the third Pierce
prong. Accordingly, the instant IAC claim is dismissed.
vii. Failure to obied to testimony from multiple police detectives offering
a personal opinion as to the truthfulness and veracity of Petitioner's
statement.
In the instant case, Petitioner avers that Attorney Kope was ineffective as a
result of his failure to object to testimony from multiple police detective offering a
personal opinion as to the truthfulness and veracity of Petitioner's statement. (See
Petitioner's PCRA Brief, at 22-23). Petitioner cites the following instances from
Detective Mummert:
[Commonwealth]. During the interview, was he asked
whether he had been at 310 East King Street the evening
prior?
[Detective Mummert]. Yes, he was.
[Commonwealth]. What was his response?
[Detective Mummert]. Initialy, he denied any
information or knowledge or any involvement or of an
incident at 310 East King Street.
[Commonwealth]. Was that immediate?
[Detective Mummert]. From the very beginning of the
interview, correct.
[Commonwealth]. During the course of the interview,
was he generally forthcoming?
{Detective Mummert]. After about 10 or IS minutes
· once he was advised of the severity of the incident and
52
what we were dealing with, he started to disclose some
information.
[Commonwealth]. In general, can you generally describe .
his demeanor and behavior during the interview?
[Detective Mummert]. Excited, somewhat deceptive at
the beginning and throughout. And as detectives would
ask him things, he started to come up with ways to
explain what it was tat we were interpreting from the
evidence we and seen to that point.
[Attorney Kope]. Now, your response to one o the
questions asked by [the Commonwealth] is that you in·
your opinion, Mr. Shauf did not appear shocked at the
news of Hugo's death. Did I understand that correctly?
[Detective Mummert]. In my opinion?
[ Attorney Kope]. Yes.
[Detective Mummert]. He feigned being shocked, acted. ·
(T.P. Trial, Day 3, December 10, 2014, at 72, 159). Petitioner cites the following
instance from Detective Baker:
[Commonwealth]. As I said, we had an opportunity to
watch the interview [with Petitioner] yesterday. It
appears you were frustrated at the time. What was the
source of your frustration?
[Detective Baker]. I don't believe he was telling us the
truth when asked questions.
[Commonwealth].Okay. Did it appear to you at that time
as he was presented with more physical evidence that he
· had that he became a bit more forthcoming?
53
[Detective Baker]. Yes.
[Attorney Kope]. Would you categorize it that he
became more truthful once he realized the event of the
investigation or extent of what happened during the
investigation?
[Detective Baker]. I believe he changed his · story some.
I don't know if it was totally truthful.
[Attorney Kope]. If Mummert, Detective Mummert had
categorized Jason as becoming more truthful after he
learned the extent of what happened, would you disagree
with that?
[Detective Baker]. No. I would say he became more
truthful than what he was initially .
. [Commonwealth]. Attorney Kope asked you about what
you thought about the truthfulness of what Jason Shauf
told you. He said he never went upstairs. Do you recall
that?
[Detective Baker]. Yes.
[Commonwealth]. Based upon the physical evidence and
witness statements, did you believe that was truthful?
[Detective Baker]. No, I did not.
[Commonwealth]. He said he heard a bang. Back up
when he was first advised that someone had died,
describe his reaction to that.
[Detective Baker]. He animatedly said, Oh, my gosh.
54
[Commonwealth]. Did you believe that was a truthful
reaction?
[Detective Baker]. Didn't come across that way to me.
[Commonwealth]. How did it come across to you?
[Detective Baker]. Staged or acted.
(J.P. Trial, Day 4, December 11, 2014, at 43, 51, 54).
a. Ari:uable Merit
As noted above, to establish a meritorious ineffectiveness claim, Petitioner
must first establish that her claim has arguable merit by showing that "the factual
statements are accurate and 'could
. establish cause
.
for relief."' Barnett, . 121 A.3d
at 540 ..
Here, Petitioner avers that trial counsel was ineffective as a result of his
failure. to object to testimony offering a personal opinion as to the truthfulness and
veracity of Petitioner's statement. (Petitioner's PCRA Brief, at 22).
"Under Pennsylvania law, only evidence of a general reputation for
truthfulness in the community is admissible as character testimony."
Commonwealth v. Smith, 567 A.2d 1080, 1082 (Pa. Super. 1989). "Determinations
of credibility, however, are exclusively the province of the jury." Commonwealth
v. Gallagher, 547 A.2d 355, 357 (Pa. 1988).
Petitioner cites both Smith and Gallagher, avering:
55
Opinion evidence with regard to the credibility of
witnesses and statements is prohibited under
Pennsylvania law. Credibility is a matter left solely to
the finder of fact. Impermissible opinion testimony
regarding credibility infringes on [sic] duty of the finder
of fact to determine credibility and weigh the evidence.
(Petitioner's PCRA Brief, at 23 (internal citations omitted)).
Given the above noted testimony from both Detective Mummert and
Detective Baker, the Court is persuaded that both Detectives offered testimony
pertaining to the Petitioner's truthfulness. Accordingly, Petitioner has established
the instant claim's arguable merit, satisfying the first Pierce prong.
b. Actual Prejudice
To succeed on an IAC claim, a petitioner must demonstrate that he suffered
actual prejudice as a result of counsel's questioned behavior. As noted previously,
to show actual prejudice, a Petitioner must prove that "there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Spatz, 84 A.3d at 315 (internal citations
omitted).
Petitioner first cites Gallagher, for the proposition that testimony concerning
the credibility of witnesses infringes on the duty of the jury to determine credibility
and weigh the evidence. (Petitioner's PCRA Brief, at23). Petitioner also cites
. Smith, avering that "Pennsylvania appellate courts in the past have found that the
failure to object to improper testimony renders trial counsel ineffective and is
56
prejudicial to the. accused because it invades the jury's 'sacred domain.?'
(Petitioner's PCRA Brief, at 23).
However, while it is true that in both cases cited by Petitioner the
Pennsylvania appellate courts determined the defendant was prejudiced by the
questioned testimony, neither case created a per se rule of prejudice when such
testimony occurs. Moreover, the instant case is factually distinguished from both
Smith and Gallagher, where the challenged testimony was elicited from expert
witnesses whose testimony was 'offered purely for the purpose of rendering an
opinion as to truthfulness. See Smith, 567 A.2d at I 083 (providing that the expert
witness' testimony concerning the child's character for telling the truth usurped the
credibility determining function of the jury, and finding it improper for "an expert
witness, or any witness for that matter, takes the witness stand and under the guise
of 'rehabilitation' proceeds to testify as to the credibility of the child/witness.");
Gallagher, 547 A.2d at 356 (finding that an expert witness' testimony regarding
the victim's affliction with 'rape trauma syndrome' was inadmissible, and
reasoning that "the only purpose of the expert testimony was to enhance the
credibility of the victim.") (emphasis in original). In contrast, the testimony of the
detectives in the instant case focused on the investigative process; the testimony
concerning truthfulness consisted of fleeting statements in the context of an eight
57
(8) day trial. 12 Therefore, Petitioner has failed to persuade this Court that it should
deviate from the Pierce actual prejudice framework applied to IAC claims.
Furthermore, Petitioner has failed to articulate how he was actually
prejudiced by the testimony in question. As noted above, "boilerplate allegations
and bald assertions of no reasonable basis and/or ensuing prejudice cannot satisfy a
petitioner's burden toprove that counsel was ineffective." Commonwealth v.
Chmiel, 30 A.3d 1111, 1128 (Pa. 2011) (quoting Commonwealth v. Paddy, 15 A.3d
431, 443 (Pa. 2011)).
The factual disparity between the instant case and the two cases cited by
Petitioner, in tandem with Petitioner's failure to demonstrate actual prejudice,
leaves this Court to find that Petitioner has failed to meet the third Pierce prong.
Accordingly, the instant IAC claim is dismissed ..
viii. Failure to obiect to numerous hearsay statements throuehout the
trial, including an out-of-court identification of Petitioner by an
individual who did not identify Petitioner at.trial.
In the instant case, Petitioner avers that Attorney Kope was ineffective as a
result of his failure to object to numerous hearsay statements throughout the trial,
including an out-of-court identification of Petitioner by an individual who did not
identify Petitioner at trial. (See Petitioner's PCRA Brief, at 23-24).
12
The Court notes that Detective Mummert began his testimony prior to the brief recess taken by
this Court at 10:39 a.m. on December 10, 2014, and ran until the very end of that trial day,
concluding at 5:08 p.m.; Detective Baker's testimony ran for a significant portion of the morning
on Day 4, December 11, 2014, resulting in over twenty (20) transcript pages.
58
a. Arguable Merit
As noted above, to establish a meritorious ineffectiveness claim, Petitioner
must first establish that her claim has arguable merit by showing that "the factual
statements are accurate and 'could establish cause for relief?" Barnett, 121 A.3d
at 540.
Petitioner cites two specific instances where he avers trial counsel should
have objected. (Petitioner's PCRA Brief, at 23-24). First, Petitioner cites
testimony given by Detective Mummert concerning Erika Beard and Petitioner; the
following is an excerpt from Detective Mummer's testimony, including the
statement alleged to have been hearsay by Petitioner:
[Q]. So I want to take you back to the early stages of this
investigation, sometime in the morning of October 23rd.
You were led to Erika Beard directly by one of the
residents who was in the house at 310 East King Street,
correct?
[A]. That's correct.
[Q]. And she as interviewed-well, was she interviewd
by you that morning or someone else?
[A]. Myself and Detective Frisby spoke with her that
morning in her living room.
[Q]. And was she interviewed at a later date as well?
[A]. She was.
[Q]. And did she inform you that she did, in fact, know
an individual named El Gallo, correct?
59
[A]. She did.
[Q]. And that she was familiar with the fact that El Gallo
visited 310 East King Street, correct?
[A]. That's correct.
[Q]. Do you recall Erika giving you any information that
· she would have received through a black male about Mr.
Shaufhaving guns?
[A]. When I asked her ifshe knew Jason ever to possess
any guns, she stated that she did notwhich is what she
testified to this morning. � But during our conversation,
she referenced an incident that occurred some years ago
with an unidentified male subject who she stated was a
black male {sic] had told her some information
concerning Mr. Shaufand a weapon.
T.P. Trial, Day 3, December 10, 2014, at 114-16). In his brief, Petitioner refers
only to the end of this excerpt. (Petitioner's Brief, at 23-24) (referring to the
italicized portion of the above excerpt).
For the second instance, the Court notes that Petitioner fails to refer to a
particular statement he considers to be hearsay; rather, Petitioner vaguely cites a
two page expanse of testimony, and avers that: "Detective Mummert was asked
about an out-of-court identification of Petitioner made by one of the witnesses at
his preliminary hearing. The witness was not able to identify Petitioner at trial."
(Petitioner's PCRA Brief, at 24). The Court presumes Petitioner refers to the
following testimony:
60
[Q]. January 9th, 2013, you did attend that preliminary
hearing, correct?
[A]. Yes.
[Q]. And were you present in the courtroom when
Augustin on that day in court identified Mr. Shauf?
[A]. Yes.
(T.P. Trial, December 10, 2014, at 126-127). Petitioner does not offer argument,
or provide any case law or authority as to why the Court should consider this line
of questioning hearsay.
Under the Pennsylvania rules of Evidence, hearsay evidence is generally
inadmissible at trial unless it falls within a recognized exception. See Pa.R.E. 802;
Carson, 913 A.2d at 254 (Pa._2006). Hearsay is defined as an out of court statement
"offer[ed] in evidence to prove the truth of the matter asserted". See Pa.R.E.
80l(c). The Superior Court of Pennsylvania has explained:
"Out-of-court statements are traditionally excluded
because they lack the conventional indicia of reliability:
they are usually not made under oath or other
circumstances that impress the speaker with the
solemnity of his statements; the declarant's word is not
subject to cross-examination; and he is not available in
order that his demeanor and credibility may be assessed
by the jury." Commonwealth v. Bracero, 528 A.2d 936,
939 (Pa. 1987) (citations omitted). For these reasons, our
Supreme Court "has long adhered to the principle that the
use of hearsay evidence is to be discouraged, and [the]
policy against its use is generally recognized as
particularly strong." Heddings v. Steele, 514 Pa. 569, 526
A.2d 349, 351 (1987) (footnote omitted).
61
Commonwealth v. Thomas, 908 A.2d 351, 354 (Pa. Super. 2006). However, "it.is
well established that certain out-of-court statements offered to explain the course
of police conduct are admissible because they are offered not for the truth of the
matters asserted but rather to show the information upon which police acted."
Chmiel, 889 A.2d at 532.
In Chmiel, the appellant argued that testimony offered by a trooper at trial
was hearsay evidence which therefore should not have been admitted at trial. (Id.
at 533). The Pennsylvania Supreme Court reasoned:
A review of the testimony reveals that Trooper Gaetano
referred to statements he had taken from Martin and
recounted the steps taken in the investigation and the
information that accumulated. The nature of the
testimony was limited to the course of conduct because it
provided the jury with a complete picture of the
investigation and did not go beyond what was reasonably
necessary to explain this conduct. We agree with the trial
court that the course-of-conduct testimony was
particularly appropriate because defense counsel had
attacked the adequacy of the police investigation.
Id. Ultimately, the Court held that the trooper's testimony regarding the course of
conduct of the investigation was· properly admitted at trial. Id. at 534.
Here, the Court is not persuaded that the statements made by Detective
Mummert were offered for the truth of the matter asserted. Like Chmiel, the
statements offered by Detective Mummert at trial were offered for the purpose of
explaining the investigation process. The similarity between the instant case and
62
Chmiel is further underscored by Petitioner's attempt at trial to challenge the
integrity of the police investigation. See supra IX. FAILURE TO OBJECT TO MULTIPLE
STATEMENTS IN THE DISTRICT ATTORNEY'S CLOSING ARGUMENT DESIGNED TO
APPEAL TO THE EMOTIONS OF THE JURY RATHER THAN SUGGESTING A DISPASSIONATE
REVIEW OF THE FACTS OF THE CASE.
Consequently, the statements were properly admitted at trial. Accordingly,
Petitioner has failed to demonstrate the first Pierce prong, and the instant IAC
claim is dismissed.
ix. Failure to object to multiple statements 'in the District Attorney's
closing argument designed to appeal to the emotions of the iury
rather than suggesting a dispassionate review of the facts of the case.
In the instant case, Petitioner avers that Attorney Kope was ineffective as a
result of his failure to object to multiple statements in the District Attorney's
closing argument designed to appeal to the emotions of the jury rather than
suggesting a dispassionate review of the facts of thecase. (See Petitioner's PCRA
Brief, at 24-25).
The following is a portion of the Commonwealth's closing argument that
Petitioner contends was improper:
There's three kinds of people in the world. In my
military experience, I've heard a lot of illustrations I
think this is useful today. There's three types of people.
First are sheep. It's about 98 percent of the population.
63
I don't know all of you personally. I suspect most, if not
all of you, are sheep. That's not a pejorative term at all.
It's someone who has a prosocial behavior, who Iives
their lives to benefit others, to stay peaceful, mind their
own business, do their job, support their friends and
family, keep their nose clean, don't have much
interaction with criminals and evil. Most people, about
98 percent.
There's lpercent who are wolves. They prey on the
sheep. That's either something that law enforcement has
to deal with or the military. There's 1 percent out there
whose jobs in their minds is to prey on the sheep,
someone weaker and not prepared to meet the challenge,
defend themselves.
Thankfully, there's another 1 percent. Sheepdogs. The
sheepdogs' job is to protect the sheep. They fight the
wolf. They're kind of similar sometimes-and they have
to be--in the sense the violence the wolf brings to the
sheep has to be met with violence to meet that, right?
The difference between the two is right here. It's
integrity, and it's morality.
I saw a picture once of a man, a Port Authority officer.
He was standing on ground Zero on September 11th,
2001. He's covered in dust. And he has three civilians
around him all covered in dust. You look at his face.
You can't find his face on the Internet. I was shown his
face in the context of this illustration. Abject fear. Not a
movie. It's not an actor. Look at the fear. It's abject
fear.
He's been up n the tower one, two, three times already.
Ground Zero, New York. September 11th. People he just
hustled out of the building. People jumping out on fire,
smoke everywhere. He's been up there three times in the
tower. Back down. Covered in dust.
64
That was after his third trip in the building. He went in a
fourth time. He didn't come out. He didn't do that
because he was tough, masculine, full of testosterone.
That officer did that out of love, out of love for the sheep,
for the flock, for the morality involved in that.
It is disgusting for these two, both of them, to denigrate
this community's police officers and say they planted
evidence so we could happen to pin a murder on
someone. It's disgusting.
If you want to believe cops planted evidence in this case
for some reason to nail these two for some vendetta they
may have for some reason, acquit them.
{T.P. Trial, Day 8, December 17, 2014, at 118-20).
a. Arguable Merit
As noted above, to establish a meritorious ineffectiveness claim, Petitioner
must first establish that her claim has arguable merit by showing that "the factual
statements are accurate and 'could establish cause for relief."' Barnett, 121 A.3d
at 540.
Here, Petitioner argues that the Commonwealth "on numerous occasions
referred to the [Petitioner] and his co-defendant in a derogatory fashion, called the
line of argument made by trial counsel 'disgusting' and improperly referred to the
September 11, 2001 terrorist attacks." (Petitioner's PCRA Brief, at 25). Petitioner
submits that the above actions were improper, rendering trial counsel's assistance
ineffective as a result of his failure to object. (Id.).
The Pennsylvania Supreme Court has provided, in pertinent part:
65
It is well established that a prosecutor must have
reasonable latitude 'in presenting a case to the jury, and
must be free to present arguments with "logical force and
vigor." Counsel may comment upon "fair deductions and
legitimate inferences from the evidence presented during
the testimony." Although a prosecutor may argue to the
jury that the evidence establishes the defendant's guilt,
arguments from personal opinion as to the guilt of the
accused are not proper. Moreover, not every remark by
the prosecutor, even assuming it is intemperate or
uncalled for, requires a new trial. A prosecutor's
comments do not amount to reversible error unless the
"unavoidable effect of such comments would be to
prejudice the jury, forming in their minds fixed bias and
hostility toward the defendant so that they could not
weigh the evidence objectively and render a true
verdict."
Commonwealth v. Chamberlain, 30 A.3d 381, 407-08 (Pa. 2011) (internal citations
omitted). "A prosecutor does not engage in misconduct when his statements are
based on the evidence or made with oratorical flair. Additionally, a prosecutor
must be permitted to respond to arguments made by the defense." Carson, 913
A.2d at 237.
Here, Petitioner has failed to persuade this Court that the Commonwealth's
closing argument went beyond passionate rhetoric. Rather, t�e rhetoric relating to
September 11 t\ in the context of the rest of the Commonwealth's closing
argument, was a discussion that referred to the significant job police officers
undertake when they are on the clock; this was the Commonwealth's response to
the Petitioner's trial strategy of insinuating that the police had planted evidence.
66
For the above noted reasons, Petitioner has failed to demonstrate the first
. Pierce prong. Accordingly, the instant IAC claim is dismissed.
b. Reasona hie Basis
Even were Petitioner able to demonstrate that the instant claim has arguable
merit, Petitioner must also demonstrate the second Pierce prong-that trial counsel
had no reasonable basis for his actions or lack thereof at trial.
Here, Petitioner asserts that trial counsel's failure to object to the
Commonwealth's closing argument renders trial counsel's assistance ineffective.
(Petitioner's PCRA Brief, at 24-25). Petitioner further submits that trial counsel
had no reasonable basis for failing to object to the Commonwealth's closing
argument. (Id.).
At the PCRA hearing, Attorney Kope was questioned regarding his failure to ·
object to the above noted statements made by the Commonwealth:
I feel like the feel the Judge in every trial makes an effort
to instruct the jury that their feelings about any particular
attorney, that any passionate argument that the attorney
makes, it's not the controlling issue. The controlling
issue is their recollection of the facts and their application
of the facts. And so, I as a standard rule do not object to
closing arguments or opening arguments. Man, many
attorneys, and good attorneys, and good district attorneys
will make passionate arguments, opening and closing and
I typically don't object to that. .
Because I do the same thing.
67
I do not and would not-I did not and would not object
to that argument made by Mr. Fogal or any other district
attorney in their closings or openings for the reasons I've
stated.
(T.P. PCRA Hearing, at 93-95). As noted above, this Court must exercise great
deference when assessing counsel's performance. Perry, 128 A.3d at 1290. To
accept Petitioner's arguments would be to wholly disregard trial counsel's
explanations.
Attorney Kope's testimony at the PCRA hearing indicates to this Court that
trial counsel had a reasonable basis for deciding not to object to the respective
character testimony. Accordingly, Petitioner's instant claim for ineffectiveness
fails the second Pierce prong.
II. Claims of Violations of Constitutional Violations
Also among the statutory factors from which a conviction or sentence may
have resulted creating an entitlement to post-conviction relief is a violation of the
Constitution of this Commonwealth or the Constitution or laws of the United
States. 42 Pa. C.S. §9543(a)(2)(i). Such a violation must have "so undermined the
truth-determining process that no reliable adjudication of guilt or innocence could
have taken place." Id.
In the instant case, Petitioner argues that Juror Number 2 was presumably
biased against him. (Petitioner's PCRA Brief, at 3-6). Petitioner further argues
68
that "[b]ecause Juror No. 2 was seated on the Petitioner's jury, his conviction was
the result of a violation of both the United States and Pennsylvania Constitutions."
(Id.).
As noted previously, prior to opening statements at trial, Juror Number 2
advised the Court that she remembered Petitioner because she and her husband had
hired and paid him to complete a roofing job which he never finished. (T.P. Trial,
December 8, 2014, at 4-9). Ultimately, Juror Number 2 responded that she
believed she would be able to serve impartially. (See T.P. Trial, day 1, at 4-9).
As discussed thoroughly above, Petitioner has failed to demonstrate that
Juror Number 2's excusal from trial was constitutionally required. See supra
SECTION I. FAILURE TO MOVE THAT JUROR NUMBER 2 BE STRICKEN FOR CAUSE.
Petitioner's recitation of his Sixth Amendment and Article, Section 9 rights is not
questioned by this Court. (See Petitioner's Brief, at 4). However, Petitioner has
failed to provide any authority or case law on the specific issue alleged by which
this Court could be guided; Petitioner himself even acknowledges that "[tjhere is
admittedly very little case law regarding this specific issue of a criminal defendant
on. an unrelated crime that is a crime of dishonesty being seated on that defendant's
jury". (Petitioner's PCRA Brief, at 4). Significantly, the Court notes that
Petitioner further fails to reconcile his argument with rationale provided by the
Pennsylvania Supreme Court in Koehler. Koehler, 36 A.3d at 143 ("The test for
69
determining whether a prospective juror should be disqualified is whether he is
willing and .able to eliminate the influence of any scruples and render a verdict
according to the evidence, and this is to be determined on the basis of answers to
questions and demeanor.).
As noted above, the decision of whether to excuse a juror is within the
discretion of the trial court, and is subject to review only for an abuse of discretion.
Id. at 144. This Court finds that Petitioner has failed to demonstrate violation of
his constitutional rights warranting a new trial. Accordingly, the instant claim is
· dismissed.
CONCLUSION
After careful and diligent review, the Court finds that in each claim alleging
IAC, Petitioner has failed to meet the three pronged test provided in Pierce. This
Court also finds Petitioner has failed to.demonstrate a constitutional violation
warranting post-conviction relief. Pursuant to the attached Order, Petitioner's
PCRA Petition is DENIED.
70