Com. v. Zimmerman, M. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MATTHEW ZIMMERMAN
Appellant No. 2433 EDA 2015
Appeal from the PCRA Order July 17, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1204831-2003
CP-51-CR-1204841-2003
BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*
MEMORANDUM BY LAZARUS, J.: FILED MAY 08, 2017
Matthew Zimmerman appeals from the order, entered in the Court of
Common Pleas of Philadelphia County, dismissing his petition filed pursuant
to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546.
After careful review, we affirm.
On March 19, 2007, after a nonjury trial, Zimmerman was convicted of
two counts of first -degree murder and related crimes stemming from the
shooting deaths of his parents in 1997. On July 10, 2007, the court
sentenced Zimmerman to an aggregate term of life in prison. The judgment
of sentence was affirmed by this Court on March 9, 2009, and our Supreme
Court denied allowance of appeal on August 13, 2009.
* Former Justice specially assigned to the Superior Court.
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On November 1, 2010, Zimmerman, through current counsel, filed a
timely first PCRA petition, raising multiple complaints of ineffectiveness of
counsel. Zimmerman also filed two motions for discovery, seeking the
"complete" autopsy report for the victims; information pertaining to two
Commonwealth witnesses; and production of an unidentified fingerprint
found at the crime scene. The PCRA court denied discovery and, after
issuing a Pa.R.C.P. 907 notice of intent to dismiss and considering
Zimmerman's response thereto, dismissed Zimmerman's petition without a
hearing on July 17, 2015. This timely appeal follows, in which Zimmerman
raises the following issues for our review:
1. Whether the PCRA court erred and violated due process when
it refused to grant discovery of Brady/Giglio[1] material and
failed to hold an evidentiary hearing to resolve genuine issues of
fact material to the claims of ineffective assistance of counsel for
failure to investigate and actual, factual innocence arising from
new reliable evidence of an alibi defense?
2. Whether the PCRA court erred in finding that . . Zimmerman
received effective assistance of trial counsel?
Brief of Appellant, at 2.
We begin by noting our scope and standard or review:
On appeal from the denial of PCRA relief, our standard and scope
of review is limited to determining whether the PCRA court's
findings are supported by the record and without legal error.
Our scope of review is limited to the findings of the PCRA court
and the evidence of record, viewed in the light most favorable to
1Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405
U.S. 150 (1972).
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the prevailing party at the PCRA court level. The PCRA court's
credibility determinations, when supported by the record, are
binding on this Court. However, this Court applies a de novo
standard of review to the PCRA court's legal conclusions.
Commonwealth v. Medina, 92 A.3d 1210, 1214-15 (Pa. Super. 2014)
(citations and quotation marks omitted).
We will address Zimmerman's ineffectiveness of counsel claims first.
To obtain PCRA relief on such a claim, a petitioner must establish that his
conviction or sentence resulted from "[i]neffective assistance of counsel
which, in the circumstances of the particular case, so undermined the truth -
determining process that no reliable adjudication of guilt or innocence could
have taken place." 42 Pa.C.S.A. § 9543(a)(2)(ii). Counsel is presumed to
be effective; to rebut that presumption, the petitioner must demonstrate
counsel's performance was deficient and that such deficiency prejudiced him.
Commonwealth v. Cola vita, 993 A.2d 874, 886 (Pa. 2010); Strickland v.
Washington, 466 U.S. 668 (1984). Prejudice requires proof that, absent
the allegedly deficient performance, the outcome of trial would likely have
been different. Commonwealth v. Daniels, 104 A.3d 267, 285 (Pa. 2014).
When asserting a claim of ineffective assistance of counsel, an appellant is
required to make the following showing: (1) the underlying claim is of
arguable merit; (2) counsel had no reasonable strategic basis for his action
or inaction; and, (3) but for the errors and omissions of counsel, there is a
reasonable probability that the outcome of the proceedings would have been
different. Commonwealth v. Kelley, 136 A.3d 1007, 1012 (Pa. Super.
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2016). The failure to satisfy any prong of the test for ineffectiveness will
cause the claim to fail. Id.Zimmerman identifies five areas in which he believes trial counsel was
ineffective. First, we will address his assertion that counsel was ineffective
in failing to render accurate advice regarding the advantages and
disadvantages of waiving his right to a jury trial. Zimmerman asserts that
trial counsel allowed him to sign a "misleading" written jury waiver form
stating as follows:
Do you understand that instead of a jury trial you can choose to
be tried by a Judge sitting without a jury in which case you will
have all the same rights you would have at a jury trial except
that the Judge sitting alone will decide whether or not you are
guilty?
Brief of Appellant, at 43. Zimmerman claims, without citation to authority,
that this portion of the standard waiver form is misleading "because a bench
trial does not afford the same protections as a jury trial." Id. Zimmerman
further asserts - also without support - that, had he opted for a jury trial,
he would have been entitled to a mistrial based on prosecutorial misconduct.
"We have repeatedly held that failure to develop an argument with citation
to, and analysis of, relevant authority waives the issue on review."
Commonwealth v. Plante, 914 A.2d 916, 924 (Pa. Super. 2006) (citation
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omitted). Because Zimmerman has failed to support these bald assertions
with citation to authority, he has waived this claim.2
Moreover, Zimmerman was colloquied extensively by the trial court
regarding his decision to waive a jury trial. See N.T. Trial, 3/6/07, at 5-24.
The trial court advised Zimmerman of "[the] essential ingredients, basic to
the concept of a jury trial[:] that the jury be chosen from members of the
community (a jury of one's peers), that the verdict be unanimous, and that
the accused be allowed to participate in the selection of the jury panel."
Commonwealth v. Williams, 312 A.2d 597, 600 (Pa. 1973). Based upon
the totality of relevant circumstances, see Commonwealth v. Mallory, 941
A.2d 686, 698 (Pa. 2008), Zimmerman's decision to waive his right to a jury
was knowing and intelligent. Accordingly, because the underlying claim that
his waiver was not knowing and intelligent is without merit, counsel cannot
be deemed ineffective. Kelley, supra.
Next, Zimmerman claims that trial counsel was ineffective for failing to
object to the Commonwealth's violation of the Interstate Agreement on
2 To the extent that Zimmerman's claim is based on a belief that, because a
trial court sitting as fact -finder is presumed to ignore prejudicial material,
see Commonwealth v. Irwin, 639 A.2d 52, 54 (Pa. Super. 1994), he
would not have been entitled to a mistrial had the prosecution committed
prejudicial misconduct, his belief is misplaced. Prosecutorial misconduct
may form the basis for a mistrial not only in jury trials, but also in bench
trials. See Commonwealth v. Francis, 665 A.2d 821, 825 (Pa. Super.
1995) (mistrial granted in nonjury trial where prosecution's improper
references were prejudicial to defendant).
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Detainers, 42 Pa.C.S.A. §§ 9101-9108 ("IAD"). Pursuant to the IAD, a State
that obtains a prisoner for purposes of trial must try him within 120 days of
his arrival and, if it returns him to his original place of imprisonment prior to
that trial, charges shall be dismissed with prejudice. Alabama v.
Bozeman, 533 U.S. 146, 146 (2001). Zimmerman claims that the
Commonwealth returned him to federal custody without holding a trial and,
thus, he was entitled to a dismissal of charges. This claim is patently
meritless.
On September 2, 2005, through counsel, Zimmerman filed a "Motion
to Dismiss Pursuant to the Interstate Agreement on Detainers" in which he
raised the claim now presented on appeal. On March 7, 2007, the motion
was denied by the trial court, which concluded that Zimmerman's transfer
did not occur pursuant to the IAD, but rather via a writ of habeas corpus ad
prosequendum.3 Because Zimmerman's counsel did raise this issue prior to
trial, his ineffectiveness claim must fail.
Zimmerman next alleges that trial counsel was ineffective for failing to
move to dismiss the charges based on the allegedly unreasonable delay that
3
The IAD "does not apply when custody [is] obtained by means of writ of
habeas corpus ad prosequendum." Commonwealth v. Diggs, 416 A.2d
1119, 1120 (Pa. Super. 1979), citing United States v. Mauro, 436 U.S.
340 (1978).
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occurred between the time the murders were committed in 1997 and the
date he was arrested in 2003. This claim is meritless.
"To prevail on a claim of deprivation of due process based on pre -
indictment delay, a defendant must establish: (1) that the delay caused him
or her actual prejudice, and (2) that the Commonwealth's reasons for the
delay were improper." Commonwealth v. Louden, 803 A.2d 1181, 1184
(Pa. 2002).
In order for a defendant to show actual prejudice, he or she
must show that he or she was meaningfully impaired in his or
her ability to defend against the state's charges to such an
extent that the disposition of the criminal proceedings was likely
affected. This kind of prejudice is commonly demonstrated by
the loss of documentary evidence or the unavailability of a key
witness. It is not sufficient for a defendant to make speculative
or conclusory claims of possible prejudice as a result of the
passage of time. When a defendant claims prejudice through
the absence of witnesses, he or she must show in what specific
manner missing witnesses would have aided the defense.
Furthermore, it is the defendant's burden to show that the lost
testimony or information is not available through other means.
Id. (internal citations omitted).
Here, Zimmerman asserts that, had the Commonwealth been more
diligent in its prosecution, he could have "gathered the alibi witnesses,
obtained the complete autopsy report and retained an expert witness to
establish the time of death with greater precision." Brief of Appellant, at 53.
However, Zimmerman fails to demonstrate how the delay in prosecution
actually prejudiced him. Indeed, this claim is belied by the affidavits of
alleged alibi witnesses Zimmerman attached to his opposition to the
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Commonwealth's motion to dismiss his PCRA petition, which were obtained
in 2011 - twelve years after the murders occurred and four years after his
trial occurred. Moreover, Zimmerman provides absolutely no foundation for
his assertion that he was not given the complete autopsy report of the
victims at the time of his trial. Rather, he inexplicably asserts that because
the Commonwealth has not denied the existence of a more complete report,
it must exist. In fact, the Commonwealth states in its brief that Zimmerman
"was provided with the one and only report." Brief of Appellee, at 15.
Because Zimmerman has failed to demonstrate that he was prejudiced by
the delay in his prosecution, Louden, supra, he is entitled to no relief.4
Finally, Zimmerman claims that trial counsel was ineffective because
he "made no effort to fix the time of death[,] which was essential to
establish the alibi defense," Brief of Appellant, at 41, and failed to engage
an expert witness to "confirm that the time of death was between 5 a.m.
Sunday and 5 p.m. Sunday, in which case Zimmerman would have had an
alibi out of the mouths of the prosecution's own witnesses." Id. at 55.
4 Zimmerman has also failed to demonstrate that the Commonwealth's
reasons for the delay were improper. Zimmerman baldly asserts that "[t]he
Commonwealth had no more evidence against Zimmerman in 2003 than it
had on February 4, 1997 when it discovered the bodies[.]" Brief of
Appellant, at 53. The record belies this statement. In 2003, a fellow inmate
named Carl Cobbs came forward with information that he had overheard
Zimmerman admit to murdering his parents for money. Cobbs subsequently
testified at Zimmerman's trial. Moreover, Zimmerman does not explain
what possible "tactical advantage" the Commonwealth gained by allegedly
intentionally delaying his prosecution.
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To prevail on a claim for ineffective assistance of counsel for failure to
call an expert witness, a petitioner must demonstrate:
(1) that the witness[] existed; (2) that the witness[ was]
available; (3) that counsel was informed of the existence
of the witness[] or should have known of the witness[']
existence; (4) that the witness[ was] available and
prepared to cooperate and would have testified on
Appellant's behalf; and (5) that the absence of the
testimony prejudiced the Appellant.
Commonwealth v. Lawson, [] 762 A.2d 753, 756 (Pa. Super.
2000) citing Commonwealth v. Pursell, [] 724 A.2d 293 ([Pa.]
1999). Our Supreme Court has also made clear that: "[w]hen a
defendant claims that some sort of expert testimony should have
been introduced at trial, the defendant must articulate what
evidence was available and identify the witness who was willing
to offer such evidence." Commonwealth v. Williams, [] 640
A.2d 1251, 1265 ([Pa.] 1994) citing Commonwealth v.
Holloway, [] 572 A.2d 687 ([Pa.] 1990). This is consistent with
our Supreme Court's previous mandate that to justify an
evidentiary hearing with respect to assertions of ineffectiveness
of trial counsel, it is required that an offer of proof be made that
alleges sufficient facts upon which a reviewing court can
conclude that trial counsel may have been ineffective.
Commonwealth v. Durst, [] 559 A.2d 504, 505 ([Pa.] 1989).
Claims of ineffectiveness of trial counsel cannot be considered in
a vacuum. Id.Commonwealth v. Lowery, 784 A.2d 795, 800-01 (Pa. Super. 2001),
quoting Commonwealth v. Steward, 775 A.2d 819, 831-32 (Pa. Super.
2001).
Here, Zimmerman identifies a potential expert witness, whom he
"believes . . . will testify that the time of death was sometime [on] Sunday,
February 2, 1997, between 5 a.m. and 5 p.m." Memorandum of Law
Supporting PCRA Petition, 11/1/10, "Request for an Evidentiary Hearing"
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(emphasis added). However, Zimmerman neither presents an affidavit from
this expert confirming his willingness to testify to those facts, nor does he
aver that the expert was available and would have testified at trial. As such,
he has failed to demonstrate that trial counsel was ineffective for failing to
call an expert witness. Lowery, supra. Accordingly, his claim lacks merit.
Finally, Zimmerman claims that the PCRA court erred in refusing to
grant discovery and declining to hold an evidentiary hearing on the claims
raised in his PCRA petition. These claims are meritless.
Zimmerman asserts that the PCRA court erred by not granting him
discovery of the "complete" autopsy report, as well as information regarding
any agreements the Commonwealth reached with two trial witnesses.
Zimmerman also requested the "rap sheets" of those witnesses.
Pennsylvania Rule of Criminal Procedure 902 provides that "[e]xcept
[in certain death penalty cases], no discovery shall be permitted at any
stage of [PCRA] proceedings, except upon leave of court after a showing of
exceptional circumstances." Pa.R.Crim.P. 902(E)(1). Neither the PCRA nor
the Pennsylvania Rules of Criminal Procedure define the term "exceptional
circumstances." Commonwealth v. Watley, 153 A.3d 1034, 1048 (Pa.
Super. 2016), citing Commonwealth v. Frey, 41 A.3d 605, 611 (Pa. Super.
2012). This Court, however, has held that "the trial court, in its discretion"
determines whether a case is exceptional and warrants discovery. Id.Thus, we will not disturb a PCRA court's determination regarding the
existence of exceptional circumstances unless the court abused its
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discretion. Id. An abuse of discretion may not be found merely because an
appellate court might have reached a different conclusion, but requires a
result of manifest unreasonableness, or partiality, prejudice, bias or ill -will,
or such lack of support as to be clearly erroneous. Commonwealth v.
Kneller, 999 A.2d 608, 614 (Pa. Super. 2010) (citation omitted).
Here, the PCRA court explained its decision not to grant discovery as
follows:
[W]e reviewed each and every request made by [Zimmerman] in
each of his discovery requests and found that no exceptional
circumstances existed for any of those requests. To the
contrary[,] each request was in the nature of a "fishing
expedition" hoping to discover some exculpatory evidence.
Accordingly, this [c]ourt properly followed Rule 902 and denied
the discovery requests.
PCRA Court Opinion, 4/20/16, at 12.
We can discern no abuse of discretion on the part of the PCRA court.
Zimmerman's requests were grounded in mere speculation that the evidence
he sought may exist. He failed to proffer anything, such as affidavits from
the two Commonwealth witnesses, tending to prove that his hunches have
any basis in fact. As such, the PCRA court was within its discretion to
conclude that Zimmerman's discovery requests were nothing more than
fishing expeditions that did not constitute "exceptional circumstances" as
required under Rule 902.
Zimmerman's claim that he was entitled to an evidentiary hearing is
equally unavailing. Zimmerman asserts that such a hearing was necessary
to "resolve matters of credibility" regarding the alibi witnesses who "were
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ready, willing and able to give [Zimmerman] an alibi Saturday night." Brief
of Appellant, at 14. We disagree.
Pennsylvania Rule of Criminal Procedure 907 provides that the PCRA
court has the discretion to dismiss a petition without a hearing when the
court is satisfied "that there are no genuine issues concerning any material
fact, the defendant is not entitled to post -conviction collateral relief, and no
purpose would be served by any further proceedings[.]" Pa.R.Crim.P.
907(1). "[T]o obtain reversal of a PCRA court's decision to dismiss a petition
without a hearing, an appellant must show that he raised a genuine issue of
fact which, if resolved in his favor, would have entitled him to relief, or that
the court otherwise abused its discretion in denying a hearing."
Commonwealth v. Hanible, 30 A.3d 426, 452-53 (Pa. 2011), quoting
Commonwealth v. D'Amato, 856 A.2d 806,820 (Pa. 2004).
Here, Zimmerman has failed to satisfy this burden. Zimmerman
provided affidavits from four purported alibi witnesses. See Opposition to
Commonwealth's Motion to Dismiss PCRA, 10/5/11, at Exhibits AA -DD. The
first witness, Richard Antipuna, stated, in relevant part, that he saw
Zimmerman at a party on the night of Saturday, February 1, 1997. Given
that Zimmerman believes the murders occurred between 5 a.m. and 5 p.m.
on Sunday, Antipuna's testimony would be irrelevant. Second, Mark
Hoffman stated that he saw Zimmerman at a friend's house between 3 p.m.
and 6 p.m. on the Sunday of the murders. Even if the murders occurred
during the timeframe Zimmerman postulates, Hoffman only provides an alibi
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for two out of twelve relevant hours. The final two witnesses, Dawn Kile and
James Holton, claim also to have seen Zimmerman at the party on Saturday
evening. Again, however, given Zimmerman's theory of the case, these
statements fail to supply Zimmerman with an alibi for the relevant time
period.
Because none of the proffered statements actually provide
Zimmerman with an alibi, the PCRA court properly concluded that he failed
to raise a genuine issue concerning a material fact that warrants an
evidentiary hearing.
Order affirmed.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 5/8/2017
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