Com. v. Helmick, P. ( 2018 )

J-S25005-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
PAUL CHARLES HELMICK :
:
Appellant : No. 785 WDA 2017
Appeal from the PCRA Order April 25, 2017
In the Court of Common Pleas of Washington County
Criminal Division at No(s): CP-63-CR-0000552-2012
BEFORE: GANTMAN, P.J., PANELLA, J., and OTT, J.
MEMORANDUM BY GANTMAN, P.J.: FILED AUGUST 15, 2018
Appellant, Paul Charles Helmick, appeals pro se from the order entered
in the Washington County Court of Common Pleas, which denied his first
petition brought pursuant to the Post-Conviction Relief Act (“PCRA”).1 We
affirm.
In its opinions, the PCRA court fully and correctly set forth the relevant
facts and most of the procedural history of this case.2 Therefore, we have no
reason to restate them. We add that on April 18, 2017, Appellant responded
____________________________________________
1 42 Pa.C.S.A. §§ 9541-9546.
2On page 9, line 19, of the PCRA court’s Rule 907 notice opinion, the citation
should be a full cite to Commonwealth v. Charles Pierce, 515 Pa. 153, 158,
527 A.2d 973, 975 (1987), to distinguish it from Commonwealth v. Michael
Pierce, 567 Pa. 186, 203, 786 A.2d 203, 213 (2001), cited earlier on that
page of the court’s opinion, which was later abrogated on other grounds by
Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002).
J-S25005-18
pro se to the PCRA court’s Pa.R.Crim.P. 907 notice. The PCRA court denied
PCRA relief on April 25, 2017. On May 25, 2017, Appellant timely filed a pro
se notice of appeal. The PCRA court did not order and Appellant did not file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b).
Appellant raises the following issues for our review:
1) WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO
SECURE THE SERVICES OF A MEDICAL/FORENSIC EXPERT
TO REVIEW THE VICTIM’S INJURIES AND BLOOD SPATTER
EVIDENCE AND CALL AN EXPERT AT TRIAL AFTER THE
TRIAL COURT HAD APPROVED THE RELEASE OF FUNDS FOR
THAT PURPOSE?
2) WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO
SEEK TO SUPPRESS AND/OR EXCLUDE OR OTHERWISE
OBJECT TO THE COMMONWEALTH’S USE OF AN
UNRELIABLE STATEMENT MADE BY [APPELLANT] WHILE HE
WAS IN A HIGHLY INTOXICATED STATE THAT WAS
EXPLOITED BY THE COMMONWEALTH AT TRIAL?
3) DID TRIAL COUNSEL PERFORM INEFFECTIVELY BY
FAILING TO CALL OTHER FACT WITNESSES TO THE STAND
PREVIOUSLY IDENTIFIED BY [APPELLANT] CAPABLE OF
REFUTING THE LAY WITNESS TESTIMONY OFFERED BY THE
COMMONWEALTH WITH REGARDS TO THE SERIOUSNESS
OF [VICTIM’S] INJURIES AFTER THE ACCIDENT THAT WERE
EXAGGERATED AT TRIAL TO NEGATE SERIOUS BODILY
INJURY?
4) WAS TRIAL COUNSEL INEFFECTIVE FOR OBJECTING TO
THE COMMONWEALTH’S REQUEST TO REMOVE JUROR #2
FOR CAUSE WITHOUT FIRST CONSULTING WITH
[APPELLANT] AND INSISTING UPON VOIR DIRE OF THE
JUROR IN A SEPARATE HEARING WHERE THE JUROR WAS
INATTENTIVE THROUGHOUT THE ENTIRE TRIAL AND
IGNORING EVIDENCE BEING PRESENTED?
5) DID TRIAL COUNSEL PERFORM INEFFECTIVELY BY
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FAILING TO OBJECT TO THE ADMISSION OF PRIOR BAD
ACTS TESTIMONY FROM [VICTIM] AGAINST [APPELLANT]
ABSENT A SUFFICIENT OFFER OF PROOF WHERE SAID ACTS
WERE NEVER CRIMINALLY CHARGED?
6) WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO
RECALL [APPELLANT], TAMMY SPROWLS AND JAMES
HOBAN TO THE STAND IN SURREBUTTAL TO REFUTE
[VICTIM’S] DAMAGING PRIOR BAD ACTS TESTIMONY
DENYING [APPELLANT] HIS RIGHT TO TESTIFY IN HIS OWN
DEFENSE AND A FAIR TRIAL?
7) WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO
OBJECT TO THE TRIAL COURT’S GIVING OF AN
UNWARRANTED JURY CHARGE ON VOLUNTARY
INTOXICATION WHERE A VOLUNTARY INTOXICATION
DEFENSE WAS NOT PRESENTED AT TRIAL [APPELLANT]
WAS PREVENTED BY THE COURT FROM USING
INTOXICATION TO EXPLAIN THE MAKING OF AN
UNRELIABLE STATEMENT?
8) IS THE ORDER OF APRIL 25, 2017[,] DENYING PCRA
RELIEF WITHOUT A HEARING A FINAL ORDER WHERE NOT
ALL ISSUES WERE ADDRESSED BY THE PCRA COURT?
(Appellant’s Brief at 4-5).
As a prefatory matter, “issues not raised in the [PCRA] court are waived
and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a);
Commonwealth v. Mason, 634 Pa. 359, 130 A.3d 601 (2015) (stating failure
to include issue in PCRA petition or in court-approved amendment to petition
constitutes waiver). Instantly, in his supplemental PCRA petition, Appellant
raised an issue of trial court error for giving a voluntary intoxication instruction
to the jury. In his appellate brief, however, Appellant styled issue seven under
the framework of ineffective assistance of counsel for failing to object to the
trial court’s jury instruction of voluntary intoxication. Therefore, this issue is
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waived because Appellant did not raise this distinct claim before the PCRA
court in the first instance. See id.
Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s determination
and whether its decision is free of legal error. Commonwealth v. Conway,
14 A.3d 101, 109 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795
(2011). This Court grants great deference to the findings of the PCRA court if
the record contains any support for those findings. Commonwealth v. Boyd,
923 A.2d 513, 515 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d
74 (2007). We give no such deference, however, to the court’s legal
conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super.
2012). Further, a petitioner is not entitled to a PCRA hearing as a matter of
right; the PCRA court can decline to hold a hearing if there is no genuine issue
concerning any material fact, the petitioner is not entitled to PCRA relief, and
no purpose would be served by any further proceedings. Commonwealth v.
Wah, 42 A.3d 335, 338 (Pa.Super. 2012); Pa.R.Crim.P. 907.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinions of the Honorable Gary M.
Gilman, we conclude Appellant’s issues merit no relief. The PCRA court
opinions comprehensively discuss and properly dispose of the questions
presented. (See PCRA Court Rule 907 Order and Notice Opinion, filed March
8, 2017, at 10-18, 23) (finding: (1) (pgs 10-12) Appellant did not identify
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potential expert witness and rests his ineffective assistance claim solely on
speculation that such witness might have existed and opined favorably to
advance Appellant’s defense; Appellant’s bald assertion and speculation does
not constitute ineffective assistance of counsel; further, after colloquy,
Appellant voluntarily withdrew trial continuance request on July 9, 2012, with
knowledge that potential expert might not have time to review evidence
properly or testify at trial;3 (2) (pgs 15-16) Appellant’s own statement, “I
killed that bitch dead,” made on night of incident, falls under hearsay rule
exception of admission by party-opponent; Appellant would not have prevailed
on motion to suppress statement, and counsel cannot be ineffective for failing
to pursue meritless claim; (3) (pgs 12-15) regarding Appellant’s claim that
trial counsel failed to call Linda Barton, Tasha Garcia, Christy Garcia, and Ryan
Gallagher, police report indicated that all four witnesses heard Appellant
“beating on the door, but did not witness anything”; Appellant’s conjecture
that these potential witnesses would have offered favorable evidence to
defense does not merit relief; Appellant’s complaint that trial counsel failed to
call other witnesses cannot satisfy prejudice prong of ineffective assistance
____________________________________________
3To the extent the PCRA court also discusses trial counsel’s “reasonable basis”
regarding the forensic evidence admitted at trial, we decline to affirm on that
ground, because the PCRA court did not hold an evidentiary hearing. See
Commonwealth v. Hanible, 612 Pa. 183, 211, 30 A.3d 426, 442 (2011),
cert. denied, 568 U.S. 1091, 133 S. Ct. 835, 184 L. Ed. 2d 662 (2013) (stating
PCRA court generally “should not glean from record whether counsel had a
reasonable basis for his action or inaction absent evidentiary hearing).
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test because those witnesses were not eyewitnesses and Appellant cannot
show there is reasonable probability that their testimony would have changed
outcome of trial; (5-6) (pgs 17-18) Appellant employs hindsight analysis in
argument, which does not satisfy test for ineffective assistance of counsel;
Appellant discusses several instances where he believes counsel should have
objected or recalled witnesses, but Appellant does not demonstrate prejudice;
(8) (pg 23) Appellant did not raise any genuine issue of material fact in his
PCRA petition to warrant evidentiary hearing or PCRA relief). See also PCRA
Court Order and Opinion, filed April 25, 2017, at 2-3 (finding: (4) at trial,
Commonwealth moved to strike Juror #2 based on observations that Juror
was looking at ground throughout trial, did not make eye contact with
attorneys or witnesses, and generally appeared hostile; defense counsel
objected to Commonwealth’s motion based on counsel’s observations that
Juror had made eye contact and appeared attentive; defense counsel noted
that while Juror “seems somewhat on the hostile side…[d]efensively, it’s a
tactic that can work for me”; there was insufficient evidence to remove Juror;
trial court noted both attorneys accepted Juror through voir dire, and there
was no evidence of sleeping, dozing, or not paying attention to testimony;
Appellant’s ineffective assistance of counsel claim for this issue lacks arguable
merit). The record supports the PCRA court’s reasoning. Accordingly, we
affirm on the basis of the PCRA court opinions.
Appellant has also filed a motion to compel the preservation of all
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evidence in this criminal matter, pending the exhaustion of appellate
remedies. We grant Appellant’s motion for the preservation of evidence at
this time. Upon the resolution of all appeals, the Commonwealth can move
the trial court for permission to dispose of the preserved criminal evidence in
due course.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/15/2018
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Circulated 07/30/2018 01:51 PM
.. IN TBE COURT OF COMMON PLEAS QE WASRJNGIQN CQJINIY, PENNSYI VANIA
CRIMINAL DIVISION
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COMMONWEALTH OF PENNSYLVANIA )
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v. ) No. CR 552 - 2012
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y
)
PAUL CHARLES HELMICK )
Defendant. )
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ORDER and NOTICE
AND NOW, this 7th day of MARCH, 2017, upon consideration of the Motion to
Withdraw as Counsel, it is hereby ORDERED, ADJUDGED, and DECREED that the Motion is
GRANTED and it is further ORDERED that the appearance of Stephen Paul, Esq., on behalf of
the Defendant be withdrawn from the record in the above-captioned case.
It is further ORDERED that the Defendant is served notice of the Court's intention to
dismiss his Post-Conviction Relief Act Petition without a hearing because the Court agrees that
there are no genuine issues of material fact in the claims raised by the Defendant and said claims
do not entitle the Defendant to post-conviction collateral relief as further described below and in
the no-merit letter filed by his former court-appointed counsel, Stephen Paul, Esq.
It is further ORDERED that the Defendant's petition will be dismissed on April 6, 2017,
which is no less than 30 days from the date of this Order and Notice, in accordance with
Pennsylvania Rule of Criminal Procedure 907 unless the Defendant, either representing himself
or through privately retained legal counsel, responds to this Order and Notice demonstrating why
the Court should not dismiss the Defendant's prose petition for relief under the Past-Caovictiao
Relief Act.
This Court performed an independent review of the record and appointed counsel's
Turner/Finley letter. This court's reasoning regarding the issues the Defendant raised in his
PCRA petition is below.
Factual Background and Procedural History
The Superior Court has previously laid out the facts of this case in detail. Consequently,
this Court need not reinvent the wheel and will present the facts as the Superior Court did in its
Memorandum dated November 12, 2013.1
This case stems from the victim, Lori Phillips, being struck in the head with a
- sledgehammer by the Defendant on the morning of January 29, 2012. The victim
testified that her two-year relationship with the Defendant ended a few weeks
before the incident occurred but stated that they remained friends. [Transcript of
Jury Trial Held on July 17, 2012] at p. 34. She testified that the Defendant had
asked to speak with the victim on a daily basis so he could hear her voice to help
him get over the break up. Id. at p. 35.
The victim testified that on January 28, 2012 she invited the Defendant to her
apartment after he called her upset over the break up. When the Defendant
arrived, the victim's friend, Tammy Sprowls ("Sprowls"), was also at the
apartment. Id. The victim could not recall how long the Defendant was there as
she had experienced memory loss since the incident. Id at p. 36-37. However, she
did remember instructing the Defendant and Sprowls to leave after the Defendant
spilled vodka on her during an argument. The Defendant and Sprowls left after
the victim threatened to call the police.
Louis "Louie" Phillips ("Louie"), the victim's ex-brother-in-law, visited her at the
apartment around 5 :00 a.m. The Defendant and Sprowls then began repeatedly
calling the victim. Id. at 39. Louie eventually quit answering the phone, but not
before the Defendant told the victim "I know there is somebody up there, I'm
going to kill you." Id. at 40. Soon after this phone call, the victim heard a loud
vehicle in the parking lot which she thought sounded like the Defendant's pickup
I
For consistency purposes, this Court has replaced the term "appellant" as used in the Superior Court's
Memorandum dated November 12, 2013, 1600 WDA 2012, with the term "Defendant" in the above factual
background. In addition, this Court notes that the 1925(a) opinion of the trial court at the time of the Defendant's
direct appeal contains a lengthy and detailed recitation of the facts.
2
truck. She looked out the window of her apartment and saw the Defendant park
his truck, exit the truck, and grab a sledgehammer while saying "I'm coming to
get you." Id. at 41.
The Defendant made his way into the apartment building where he proceeded to
strike the victim's apartment door with the sledgehammer. The victim testified
that she remained in the middle of the entranceway that led up to her front door,
and that she never got near the front door while the Defendant was hitting it with
the sledgehammer. The Defendant broke the door down when the sledgehammer
connected on its third hit. Id at p. 42. The last thing the victim remembers while
being in her apartment was the Defendant standing in her front door after he broke
it open. The next thing she remembered was waking up in a medical helicopter,
feeling blood trickling down the back of her head, and hearing the flight medic
say "You're not going to die on my shift.'' Id.
The victim was flown to UPMC Presbyterian Hospital where she remained for
eleven days. She testified that her injuries were significant and consisted of a right
side skull fracture, six staples in her head, trauma in the middle ear, calcium
deposits in her ear due to broken bones, consistent ringing in her right ear, a
cracked rib, and a blood clot in the left side of her head. She stayed at her
mother's house for about two weeks after being released from the hospital. The
victim still experiences dizzy spells, headaches, her jaw cracking, her ear feeling
like it is full of cotton, and persistent ringing in her right ear. Id. at 43-44.
On cross-examination, the victim testified that she was with the Defendant and
Sprowls the night before the injury drinking vodka mixed with Coke; the victim
.drank about three glasses but was still aware of what was going on around her.
The victim testified that she thought the incident may have been an "accident"
due to the involvement of alcohol. Id at 49. The victim does not remember seeing
a sledgehammer when the Defendant broke down the door, and may have turned
around with the Defendant entered her apartment. Id at 50-51.
Trisha Church ("Church"), the victim's neighbor, also testified for the
Commonwealth. Church recalled that she had previously seen the Defendant in
the building. Id at 64-65. On the morning of January 29, 2012, she heard three or
four loud bangs on the victim's front door accompanied by screaming. She
recalled hearing someone say "I killed the bitch dead" right before she exited her
apartment and entered the hallway. Id. at 66. She stayed with the victim until
paramedics arrived. On cross-examination, she testified that she had told a state
trooper that during the banging she heard a male voice say, "Where's Louie, I'm
going to find him and kill him." Id. at 69.
Tara Whiteman ("Whiteman") lived directly across the hall from the victim.
Whiteman testified that while sleeping on the night of January 29, 2012, she
awoke to the sound of four very loud banging or pounding sounds about 30 feet
from her bedroom. Id. at 75- 76. Whiteman left her bedroom and walked out into
3
the huj)dioe ha))wa.y where she saw the Oefeodaot, wba sbe bad koawu roast a£
her life, walk out of the victim's apartment with a sledgehammer and close the
door slowly behind him. When Whiteman asked what he was doing, the
Defendant responded, "I killed that bitch dead" as he proceeded to leave the
apartment building. Id. at 78. Whiteman then pushed open the victim's door and
found the victim lying face down at the end of an entryway in a pool of blood
with her feet pointing towards the front door.
Photographs were taken of the dented front door, the stairwell leading up to the
hallway, the broken dead bolt and door frame, a pool of blood on the floor toward
the end of the entranceway, and blood spatter marks on the wall next to the pool
of blood. The Defendant was apprehended and his truck was seized. The
sledgehammer was found behind the seat. The Defendant's clothing and shoes
were also placed into evidence and sent for DNA testing.
Video surveillance footage of the apartment complex was obtained and depicted
the Defendant's truck, the Defendant carrying an object with a long handle, and
the Defendant wearing clothing matching what was recovered from his person.
The footage showed the Defendant walking on the sidewalk and going up the
stairs which lead to the side door near the victim's apartment. Based on the video,
the Defendant was in the building for 90 seconds; he was seen returning to his
truck and placing something in his truck bed.
The Defendant testified on his own behalf. He detailed his romantic relationship
with the victim and denied her characterization of their break up, averring that she
lied about his request for daily telephone calls. Id at p. 206-07.[21 He
characterized their relationship as "friends with benefits." [Id. at p. 237.] The
Defendant averred that he had never laid a hand on the victim. [Id at p. 243.J
[The Defendant testified that] on Saturday, January 28th, he was at the victim's
apartment drinking vodka with her and Sprowls until one or two in the morning.
A verbal argument took place and the victim asked the Defendant and Sprowls to
leave. Id. at p. 209-13. The Defendant and Sprowls left but continued drinking
together; he testified that at this point he had been awake for 30 to 36 hours. The
Defendant explained that phone calls with the victim and Louie ensued and they
all began to argue. The Defendant alleged that Louie threatened to damage his
truck by placing ball bearings in his gas tank. Id. at p. 218. The Defendant noted
the problems he had with Louie in the past. Id at p. 214-17. The Defendant
testified that his anger toward Louie motivated him to return to the victim's
apartment in an effort to confront Louie and "smack him around a little bit." Id at
p. 221.
2
This Court notes that the trial transcript contains a second cover page on page 19 8. This cover page marks the
beginning of the defense's case and is titled "Jury Trial in the Above-Entitled Cause Before the Honorable Janet
Moschetta Bell, Judge, Held on July 18, 2012 in Courtroom No. 6." For purposes of consistency and because of the
continuous pagination, this Court references the trial transcript under the title of the first cover page--i. e.,
"Transcript ofJury Trial Held on July 17, 2012".
4
The Defendant went to the victim's apartment before noon on the 29th and took
his sledgehammer with him in case Louie refused to come out of the apartment.
The Defendant testified he only intended to use the sledgehammer to knock the
door down, not as a weapon. The Defendant stated that he began to hit the door
with the sledgehammer and yelling, "where the His Louie at ... where you at, b-
i-t-c-h, where you at, where you at Louis .... " Id. at p. 223. When the door
finally broke open, the Defendant recalled seeing the victim approximately three
to four feet in front of him. He testified that he used the sledgehammer to "push
her out of the way" with a shoving motion; the Defendant denied hitting her with
the sledgehammer. Id. at p. 224. He claimed the victim was about three or four
feet away from the door. The Defendant testified that he did not realize the victim
was hurt. Id. at p. 228. After deciding Louie was not there, the Defendant left. The
Defendant testified that when he saw Whiteman in the hallway he sarcastically
told her, "I killed the bitch dead" in reference to Louie. Id. at p. 228-29.
On cross-examination, the Defendant stated that he did not know if Louie was still
in the apartment when he began striking the door. When asked "did the
sledgehammer make any contact with her?" the Defendant responded, "evidently
it did, but I didn't realize it did." Id. at p. 234. After looking at one of the
Commonwealth's exhibits, the Defendant agreed that the bloodstain in the
entranceway is farther than three to four feet, the distance he claimed the victim
was standing when he entered the apartment. Id. at p. 231-37. The Defendant
described the incident as an "accident." Id. at p. 237-40.
The Commonwealth then called the victim in rebuttal. She testified that the
Defendant's statement that he had never laid a hand on her was not true. She
recalled that the Defendant had punched her in the face about a year earlier. She
also recalled two separate occasions in 2011 when the Defendant poured beer
over her head, once in the company of Sprowls. Id. at p. 278-81.
Following the jury trial, the Defendant was convicted of criminal attempt-homicide, two
counts of aggravated assault, and burglary. On October 10, 2012, he was sentenced to an
aggregate sentence of 15 to 30 years of incarceration. On October 11, 2012, the Defendant filed a
timely notice of appeal. The following issues were presented to the Superior Court for review:
1. Whether the Court erred/abused its discretion in not allowing the defense to call
witnesses to rebut the testimony of the victim during cross-examination that the reason
she told others the incident in question was an accident was because she felt alcohol had
played a role?
5
2. Whether the Court erred/abused its dlscretiau in a))awiog the prnsecutiao ta ca]) tbe
victim as a rebuttal witness to testify to specific instances in the past where the Defendant
was physically violent towards her?
3. Whether the Defendant's sentence is reasonable in light of the circumstances?
On November 12, 2013, the Superior Court affirmed the trial court's judgment of sentence
finding the Defendant's first claim to be meritless and the second and third claims to be waived.
In response, on December 12, 2013, the Defendant filed a Petition for Allowance of Appeal from
the Order of the Superior Court. The Supreme Court denied that petition on June 2, 2014. The
Defendant filed a timely prose PCRA petition on December 26, 2014. On January 5, 2015, the
Washington Court of Common Pleas appointed Mary Bates, Esq. to represent the Defendant on
his first petition for post-conviction relief. On March 11, 2015, Stephen Paul, Esq. was appointed
to represent the Defendant thereby replacing Attorney Bates. On November 10, 2016, Attorney
Paul presented a motion to withdraw as counsel to this Court in conjunction with a Turner/Finley
letter. The Defendant submitted a pro se response to appointed counsel's motion and letter,
which the Court received on November 30, 2016.
Discussion of Law and Claims
The Defendant's PCRA petition is voluminous and contains a plethora of complaints.
After careful review, it appears to the Court that a large part of the 126-page petition consists of
a play-by-play appraisal of the trial by the Defendant. The Defendant examines the testimony of
each witness, provides his take on that testimony, points out what he perceives as flaws or holes
in the prosecution's case, asserts which facts are significant, discusses how those facts should
have been interpreted, and so forth. These observations do not present grounds for relief under
the PCRA. Subsumed within the Defendant's analysis, however, are claims of ineffective
6
'assistance of counsel for various actions or inactions of Thomas Cooke wba represented tbe
Defendant at trial. The Court will address these claims in turn.
The Defendant first raises a claim of ineffective assistance of trial counsel for failure to
obtain a forensic/medical expert.3 See Petition for Post-Conviction Collateral Relief from
criminal Conviction Pursuant to the Post-Conviction Relief Act, p. 71 (hereafter "PCRA
Petition"). The record reflects that prior to trial, Mr. Cooke filed a Petition to Retain Expert
Witness in which he requested funds to secure the services of a DNA expert to explore any
possible defenses. On May 24, 2012, Judge Janet Moschetta Bell signed an order authorizing Mr.
Cooke to retain a DNA expert as an expert witness for a fee not to exceed $1,500. No expert
witness was called on behalf of the Defendant at trial. Mr. Cooke has since passed away
rendering it impossible to directly gain his insights into the trial strategy regarding this issue. A
careful review of the record, however, reveals an Application for Continuance submitted by Mr.
Cooke which states the following:
And now, July 5, 2012, Defense Attorney, Thomas H. Cooke Esq. hereby requests
a continuance as counsel asserts that the defendant has provided this office with
numerous witnesses to interview before trial, medical data has not been received
nor reviewed by defendant and possible experts and further DNA evidence has
not been received and when received will take time to be reviewed by defense
experts. Failure to exercise this aspect of legal representation for the defendant
would be manifest injustice.
Beneath this request on the face of the continuance form, there is a handwritten notation: "7/9/12
withdrawn by defendant and counsel after colloquy on the record." The transcript of those
proceedings is illustrative. Mr. Cooke indicates that he had since been provided with the medical
reports that documented the nature of the victim's injuries and that he had reviewed them.
Transcript of Hearing on Commonwealth's Motion to Amend and Defendant's Motion for
3
The Court notes that the Defendant separates his first claim of ineffective assistance into three subsections, all of
which concern obtaining and consulting with a forensic expert.
7
Continuance Held on July 9, 2012, gp. 2-3. Mr. Cooke then states that he does not have the DNA
results and that his expert review might not come in due to timing. Id. at p. 4-5. In response to
the trial court's question about how long it would take for his expert to review the DNA results,
Mr. Cooke replied: "I'm not sure, because I'm not sure when-my expert is not available. We
would not be able to pick a jury and go to trial." Id. at p. 5. Knowing that the Commonwealth
had forensic evidence and that the defense's expert may not be available, the Defendant
indicated that he still wished to pick a jury on July 9, 2012 and go to trial.4 Id. at p. 4, 5.
Consequently, Mr. Cooke withdrew the motion for continuance. Id. at p. 5.
Notwithstanding the July 9, 2012 proceedings concerning withdrawal of his request for a
continuance, the Defendant claims in his PCRA petition that Mr. Cooke was ineffective for
failing to consult with and call a forensic expert at trial. The Defendant argues that a forensic
expert may have supported his defense that he accidentally struck the victim in the head with a
sledgehammer. According to the Defendant, "[h]ad Attorney Cooke consulted a forensic/medical
expert prior to trial, he would have been prepared to meaningfully challenge the
Commonwealth's version of events and cast doubt on the evidence presented." PCRA Petition, p.
75.
The PCRA provides relief to those individuals whose convictions or sentences 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. § 9543(a)(2)(ii). The Pennsylvania Supreme Court "has
interpreted this to mean that in order to obtain relief on a claim alleging ineffective assistance of
counsel, a petitioner must prove that (1) the claim underlying the ineffectiveness claim has
4
This Court notes a trial court order dated June 7, 2012. In that order, the trial court states that a plea offer was made
to the Defendant on the record. The Defendant rejected that offer and "specifically requested trial as soon as
possible."
8
ar�uable' merit; (2) counsel's actions lacked any reasaoah)e basis; and (3) cmmseJ's actiaos
resulted in prejudice to petitioner." Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009)
(citations omitted). "Where it is clear that a petitioner has failed to meet any of the three, distinct
prongs ... the claim may be disposed of on that basis alone, without a determination of whether
the other two prongs have been met." Commonwealth v. Steele, 961 A.2d 786, 797 (Pa. 2008).
"[T]he law presumes that counsel was effective and the burden of proving that this presumption
is false rests with the petitioner." Cox, 983 A.2d at 678.
"Prejudice in the context of ineffective assistance of counsel means demonstrating that
there is a reasonable probability that, but for counsel's error, the outcome of the proceeding
would have been different." Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001). "Where
matters of strategy and tactics are concerned, counsel's assistance is deemed constitutionally
effective if he chose a particular course that had some reasonable basis designed to effectuate his
client's interests." Commonwealth v. Sneed, 45 A.3d 1096, 1107 (Pa. 2012) (citing
Commonwealth v. Colavita, 993 A.2d 874, 887). "A chosen strategy will not be found to have
lacked a reasonable basis unless it is proven 'that an alternative not chosen offered a potential for
success substantially greater than the course actually pursued."' Commonwealth v. Williams, 899
A.2d 1060, 1064 (Pa. 2.006) (quoting Commonwealth v. Howard, 719 A.2d 233, 237 (Pa. 1998)).
"The test is not whether other alternatives were more reasonable, employing a hindsight
omitte�.-Put
evaluation of the record."§erce, 527 A.2d at 975 (citations simply, a Defendant is
not entitled to relief merely because a chosen strategy is unsuccessful.
When an allegation of ineffectiveness is based upon counsel's failure to call a witness,
the petitioner must establish that: "(l) the witness existed; (2) the witness was available to testify
for the defense; (3) counsel knew of, or should have known of, the existence of the witness; (4)
9
th.e witness was willin� to testify for the defense; and (5) the absence afthe testimony oftbe
witness was so prejudicial as to have denied the defendant a fair trial." Sneed, 45 A.3d at 1109.
This test pertains equally to expert witness testimony. Commonwealth v. Chmiel, 30 A.3d 1111
(Pa. 2011). "The mere failure to obtain an expert rebuttal witness is not ineffectiveness.
Appellant must demonstrate that an expert witness was available who would have offered
testimony designed to advance appellant's cause." Commonwealth v. Wayne, 720 A.2d 456, 470-
71 (Pa. 1998). "Trial counsel need not introduce expert testimony on his client's behalf if he is
able effectively to cross-examine prosecution witnesses and elicit helpful testimony.
Additionally, trial counsel will not be deemed ineffective for failing to call a medical, forensic,
or scientific expert merely to critically evaluate expert testimony [that] was presented by the
prosecution. Thus, the question becomes whether or not [ defense counsel] effectively cross-
examined [the Commonwealth's expert witness]." Chmiel, 30 A.3d at 1143 (quoting
Commonwealth v. Marinelli, 810 A.2d 1257, 1269 (Pa. 2002)).
In the present case, the Defendant acknowledges that he is unable to meet the above five-
prong test. See PCRA Petition, p. 87. The Defendant has failed to identify an expert witness and
rests his claim of ineffective assistance of counsel solely on speculation that such witness may
have existed and may have opined favorably to advance his defense. Without more to support the
Defendant's claim than bald assertions and speculation, we cannot find counsel's failure to call
an expert witness constitutes ineffective assistance. Further, the Defendant voluntarily withdrew
the continuance request on July 9, 2012 knowing that a defense expert may not have time to
review the evidence prior to trial and may not be available to testify. The Court finds it
contradictory to now claim ineffective assistance of counsel on these grounds.
10
Wi'th respect to the forensic evidence presented at trial-namely, the DNA analysis-the
Court notes that finding the victim's blood on the sledgehammer and the Defendant's shoes
would be expected under the facts. The brief testimony of the Commonwealth's DNA expert,
Angela DiFiore, simply verified that the samples taken from the sledgehammer and the
Defendant's shoes matched the reference sample taken from the victim. As the Defendant points
out in his PCRA petition, the fact that he hit the victim in the head with a sledgehammer is not in
dispute. See id at p. 74; see also Petitioner's Response to PCRA Counsel's (Stephen Paul's)
Turner/Finley Letter and Motion to Withdraw as PCRA Counsel, p. 4 ("[T]he basis of the case is
not if Petitioner hit Lori Phillips with a sledgehammer or not. ... Petitioner freely admitted that he
struck Ms. Phillips."). Accordingly, the introduction of an additional DNA expert by Mr. Cooke
would have provided no beneficial testimony. Mr. Cooke did, however, press the Defendant's
defense through cross examination. See, e.g., Transcript of Jury Trial Held on July 17, 2012 at
pp. 131-32, 170, 181. Contrary to the Defendant's assertion and as apparent from cross
examination, Mr. Cooke did not depend solely on the Defendant's testimony. Moreover, a
review of the trial transcript reveals that much of the defense relied upon highlighting certain
forensic evidence not presented by the Commonwealth. For example, Mr. Cooke emphasized
that the Commonwealth did not introduce evidence of any blood spatter on the Defendant's shirt
or top of his shoes and that there had been no evidence of any tissue, skin, or hair on the
sledgehammer. See, e.g., id at pp. 129, 131-33, 181, 290-93. According to the defense, the
reason this evidence was not presented was because the blow to the victim's head was an
accidental glancing blow and not intentional. By not calling additional experts, Mr. Cooke
avoided duplicative testimony and furthered his client's defense by drawing attention to a lack of
11
' forensics. In other words, this strategy had some reasonable basis designed to effectuate the
Defendant's interests.
In view of the above and considering that the Defendant did not meet his burden,the
Court finds the Defendant's first claim of ineffective assistance of counsel fails. The Court
reiterates that the law presumes that counsel was effective and that a Defendant is not entitled to
relief merely because a chosen strategy is unsuccessful.
Turning to the second claim, the Defendant's argument that Mr. Cooke was ineffective
for not "fully investigat[ingJ the facts and circumstances" of the case fails as being undeveloped.
See PCRA Petition, p. 78. The Defendant does not cite to anything in the record to support his
many allegations that Mr. Cooke was unprepared for trial. The Defendant likewise does not state
how these purported inactions prejudiced him such that there was a reasonable probability that
the outcome of the trial would have been different. In other words, the Defendant has failed to
set forth his claim pursuant to the three-prong test for establishing an ineffective assistance of
counsel claim. The Defendant only makes bald assertions that Mr. Cooke's investigation fell
below an objective standard ofreasonableness. Our Supreme Court has held that "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. Paddy, 15 AJd
431, 443 (Pa. 2011). Thus, the Court has no basis on which to conclude that Mr. Cooke was
ineffective for failing to "fully investigate" the facts.
As part of his argument that Mr. Cooke was "grossly unprepared," the Defendant also
claims that Mr. Cooke did not investigate and interview witnesses. "Neglecting to call a witness
differs from failing to investigate a witness in a subtle but important way." Commonwealth v.
Stewart, 84 A.3d 701, 712 (Pa. Super. Ct. 2013). It can be unreasonable to conduct no
12
investigation into known witnesses Id Tmpnrtaotl,'. a petitioner sti11 roust demonstrate prejudice
Id "To demonstrate prejudice where the allegation is the failure to interview a witness, the
petitioner must show that there is a reasonable probability that the testimony the witness would
have provided would have led to a different outcome at trial." Commonwealth v. Pander, 100
A.3d 626, 639 (Pa. Super. Ct. 2014) (citation omitted). In this respect, as explained by the
Superior Court, a failure to investigate and interview a witness claim overlaps with declining to
call a witness since the petitioner must prove: (1) the witness existed; (2) the witness was
available to testify; (3) counsel knew of, or should have known of, the existence of the witness;
(4) the witness was willing to testify; and (5) the absence of the testimony was so prejudicial as
to have denied the defendant a fair trial. Id (citation omitted).
The Defendant's claim regarding expert witnesses is repetitive and was addressed by the
Court above. With respect to the Commonwealth's witnesses, it appears that it is the Defendant's
position that trial counsel is responsible for interviewing every Commonwealth witness prior to
cross-examining him or her at trial. Similarly, the Defendant contends that Mr. Cooke should
have interviewed individuals that potentially could have been called as witnesses, but were not.
The Defendant, however, does i:iot support this position with any legal argument or citation. In
fact, our Supreme Court has stated that "we have never held that trial counsel is obligated to
interview every Commonwealth witness prior to trial." Commonwealth v. Washington, 927 A.2d
586, 5416 A.2d 986, 987-88 (Pa. 1980). Here, the potential witnesses
identified by the Defendant-Linda Barton, Tasha Garcia, Christy Garcia, and Ryan Gallagher-
were presentin Whiteman's apartment on January 29, 2012. As set forth above, Whiteman lived
13
across the hall from the victim. According to the police report of the incident, which was drafted
by responding officer Trooper Brian Jordan and was provided to Mr. Cooke, all four individuals
heard the Defendant "beating on the door, but did not witness anything." Based on this, Mr.
Cooke could reasonably conclude that Linda Barton's, Tasha Garcia's, Christy Garcia's, and
Ryan Gallagher's testimony would be ofno value or would damage the defense's case. Indeed,
Whiteman' s testimony at trial bears this conclusion out-she testified that her friends "believed
that the man across the hall was beating up his girlfriend. "5 See Transcript of Jury Trial Held on
July 17, 2012 at p. 76. In any event, the Defendant's conjecture in his PCRA petition that the
potential witnesses did not disclose exculpatory information at the time of the police interview
because they simply did not like the police or perhaps were involved in some form of illegal
activity does not provide a basis for relief under the PCRA.
Finally, the Defendant asserts within his second claim of ineffective assistance that Mr.
Cooke failed to investigate and interview certain lay witnesses identified by the Defendant prior
to trial. The Defendant contends that Mr. Cooke's failure to investigate and interview these
witnesses is "apparent on the face of the record where, when preparing to sequester witnesses at
the start of the trial, Attorney Cooke had no idea who Mr. Helmick's witnesses were, as
evidenced by his own testimony." PCRA Petition, p. 83. The Defendant points to the following
statement made by Mr. Cooke: "Since my subpoenas are for tomorrow afternoon, they are all
family. I don't know who these people are." Id; see also Transcript of Jury Trial Held on July
17,2012atp.17.
The Defendant's reliance on Mr. Cooke's statement to establish ineffective assistance is
misplaced. When considered in context in the full conversation among the attorneys and the trial
s The Court notes that Mr. Cooke objected to Whiteman's statement as hearsay. The trial court sustained the
objection and instructed the jurors not to consider what Whiteman said regarding statements made by her friends.
Transcript of Jury Trial Held on July 17, 2012 at p. 76.
14
court, it establishes only that there was a crowd of people in the courtroom that were likely
family members who would not be testifying. Transcript of Jury Trial Held on July 17, 2012 at
pp. 17-18. Mr. Cooke's statement does not prove that he did not review or take into account the
information provided by the Defendant. Moreover, after an independent review of that
information, the Court finds that Mr. Cooke could have concluded prior to interviewing the
individuals on the Defendant's list that the proffered testimony would be of no value, would
damage the defense, or simply would not be admissible.6 See Appendix of Exhibits to PCRA
Petition, Exhibits A, B. In connection with this, the Court finds that the Defendant has not shown
prejudice. Stated differently, the Defendant has not shown that there is a reasonable probability
that the testimony each respective witness would have provided would have led to a different
outcome at trial. Considering that the Defendant did not meet his burden, the Court finds the
Defendant's second claim of ineffective assistance of counsel fails.
The Defendant next claims that Mr. Cooke should have filed a suppression motion
regarding the statement, "I killed that bitch dead," made by the Defendant at the scene of the
incident. See PCRA Petition, p. 88. The Defendant made the statement to Whiteman in response
to her asking him what he was doing as he walked out of the victim's apartment carrying the
sledgehammer. The statement was also heard by Church, the victim's neighbor.
The short answer to the Defendant's claim is that the Defendant's out of court statement
was an admission by a party-opponent, which is a settled exception to the hearsay rule. See
Pa.RE. 803(25); see also Commonwealth v. Edwards, 903 A.2d 1139 (Pa. 2006). Therefore, the
Court concludes that the Defendant has not established that he could have prevailed in a motion
to suppress the statement. Mr. Cooke did not provide ineffective assistance of counsel by failing
6
The Court notes that none of the witnesses identified by the Defendant were eyewitnesses. The Court also notes
that Mr. Cooke issued ten subpoenas of which, seven were still active at the time of trial. Id at p. 202. Appended to
the Defendant's PCRA petition as Exhibit B are affidavits of seven intended witnesses.
15
to file a suppression motion because the Defendant's su1wression claim would have been
meritless. See Commonwealth v. Luster, 71 A.3d 1029, 1052 (Pa. Super. Ct. 2013) (holding
counsel "cannot be found ineffective for failing to pursue [ aJ baseless suppression claim").
The Defendant's fourth claim of ineffective assistance of counsel revisits his argument
concerning lay witnesses identified by the Defendant, but not called at trial by Mr. Cooke. See
PCRA Petition, p. 89. Here, the Defendant focuses on witnesses that would have testified that
they observed the victim "functioning normally" after her release from the hospital. According to
the Defendant, had the jury been presented with testimony that the victim drove herself to the
trial and walked normally into court, they would have concluded that the victim had not
sustained serious bodily injury.
Section 2301 defines "serious bodily injury" as "[b Jodily injury which creates a
substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or
impairment of the function of any bodily member or organ." 18 Pa.C.S. § 2301. The paramedic
that responded at the time of the incident testified that the victim was flown by medical
helicopter to a trauma center rather than being transported by ground to the hospital because her
condition began to deteriorate and she was at substantial risk of death. Transcript of Jury Trial
Held on July 17, 2012 at p. 98. The victim testified that she remained in hospital for eleven days.
She also testified that her injuries consisted of a right side skull fracture, six staples in her head,
trauma in the middle ear, calcium deposits in her ear due to broken bones, consistent ringing in
her right ear, a cracked rib, and a blood clot in the left side of her head. Id. at p. 43. At the time
of trial, the victim still experienced dizzy spells, headaches, her jaw cracking, her ear feeling like
it is full of cotton, and persistent ringing in her right ear. Id at p. 44.
16
Based on this testimony, the Court finds it improbable that the jUQ' would conclude that
the victim had not suffered serious bodily injury merely because she had been observed by lay
persons "functioning normally" in the time span between being released from the hospital and
attending the trial. Assertions that the victim drove to trial and walked up and downhill on her
way into court does not negate that she was at substantial risk of death some six months prior.
Further, the proffered testimony of a lay witness observing the victim driving, waking, or
dancing does not disprove that the victim now suffers from memory loss after being struck by a
sledgehammer in the head. Moreover, the Defendant's own testimony belies his claim. On cross
examination, the prosecution asked the Defendant, "Would you agree that if someone were to be
hit over the head with a sledgehammer, that would put them at risk of death?" Id. at p. 241. The
Defendant responded, "Yeah. If it was done on purpose, certainly would. Even by accident, you
know." Id The Court concludes that the Defendant has not shown that the absence of the
testimony of the lay witnesses was so prejudicial as to have denied him a fair trial. Accordingly,
the Defendant's fourth claim of ineffective assistance of counsel fails.
Claims five through ten in the Defendant's PCRA petition involve assertions of
ineffective assistance of counsel that relate to trial strategy-not asking certain questions, not
making various objections including to the admittance of lab reports, not introducing "complete"
surveillance footage, and, again, not calling certain witnesses. See PCRA Petition, pp. 91-103.
The Defendant's argument throughout appears to employ a hindsight approach and does not
satisfy the ineffectiveness analysis required by Pennsylvania law. The Court reiterates that "an
evaluation of counsel's performance is highly deferential, and the reasonableness of counsel's
decisions cannot be based upon the distorting effects of hindsight." Commonwealth v. Rolan, 964
A.2d 398, 406 (Pa. Super. Ct. 2008) (quoting Commonwealth v. Basemore, 744 A.2d 717, 735
17
(Pa. 20b0)). Although the Defendant points out various instances where he believes Mr Cooke
should have made an objection or should have recalled witnesses, the Defendant does not
demonstrate prejudice such that the outcome of the proceeding would have been different. To
illustrate this, the Defendant claims that Mr. Cooke was ineffective for failing to object to the
admittance of the lab report concerning fingerprint analysis of the sledgehammer. That lab
report, however, concludes that the technician did not find any fingerprints on the sledgehammer.
Accordingly, the Defendant was not prejudiced by the introduction of the report and an objection
to its introduction by Mr. Cooke would serve little purpose. After careful review of the PCRA
Petition and record, the Court finds that claims five through ten fail.
The Defendant next alleges that the prosecutor, Darren Newberry, committed misconduct
during trial and Mr. Cooke did not object. See PCRA Petition, p. 107. The Pennsylvania
Supreme Court in Commonwealth v. Tedford, 960 A.2d 1 (Pa. 2008), has outlined what a
defendant must prove to successfully raise an ineffectiveness claim for failure to object to a
prosecutor's comments. The court in Tedford stated, "ineffectiveness claims stemming from a
failure to object to a prosecutor's conduct may succeed when the petitioner demonstrates that the
prosecutor's actions violated a constitutionally or statutorily protected right, such as the Fifth
Amendment privilege against compulsory self-incrimination or the Sixth Amendment right to a
fair trial, or a constitutional interest such as due process." Tedford, 960 A.2d at 29. Additionally,
the prosecutorial misconduct must be of sufficient significance to result in the denial of the
petitioner's right to a fair trial. A prosecutor's comments will only be reversible error when the
comments effect is to unavoidably prejudice the jury, "forming in their minds a fixed bias and
hostility toward the defendant such that they could not weigh the evidence objectively and render
a fair verdict." Id. at 33. If a prosecutor's comments "are based on the evidence or proper
18
inferences therefrom, or represent mere oratorical flair," they are not objectjonab)e. Id; see also
Commonwealth v. Jones, 811 A.2d 994, 1006 (Pa. 2002). Counsel could properly determine a
comment did not require an objection if the jury is instructed that a prosecutor's comments are
not evidence. See Tedford, 960 A.2d 1.
Here, the Defendant lists six comments made by Mr. Newberry during his closing
argument that the Defendant claims misrepresented the evidence in violation of due process. The
Defendant argues that Mr. Cooke's failure to object permitted false facts to be considered by the
jury. The Defendant, however, does not address that the trial court instructed the jury during the
opening charge that the statements and/or questions of counsel are not evidence. Transcript of
Jury Trial Held on July 17, 2012 at p. 26. The jury also received the following detailed
instruction from the trial court during the final jury instructions:
Now, regarding the arguments of counsel, both Mr. Newberry and Mr. Cooke
gave strong and thoughtful, cogent closing arguments, and you may consider
them during your deliberations. However, the arguments of counsel are not part of
the evidence and you should not consider them as such. However, in deciding the
case, you should carefully consider the evidence in light of the various reasons
and arguments that each lawyer made. It is the right and duty of each lawyer to
discuss the evidence in a manner that is most favorable to the side he or she
represents. You should be guided by each lawyer's arguments to the extent they
are supported by the evidence and insofar as they aid you in applying your own
reason and common sense. However, you are not required to accept the arguments
of either lawyer. It is for you and you alone to decide the case based on the
evidence as it was presented from the witness stand and in accordance with these
instructions. Anything that counsel may have said in any opening statements or
closing arguments or any personal opinions that may have been expressed, if they
misstated · any facts or evidence or added any alleged facts not in evidence, you
should disregard that, because it is your recollections, individually and
collectively, that count and nothing else.
Transcript of Jury Trial Held on July 18, 2012 at pp. 34-35.
Based on the above instruction that the arguments of Mr. Newberry are not evidence, Mr. Cooke
could properly determine that the comments made during the prosecution's closing argument did
19
· not require an objection. Further, a review of the six comments identified b.y the Defendant
shows that all of the comments are based on the evidence or proper inferences therefrom. Mr.
Newberry is not required to discuss the evidence in a light most favorable to the Defendant. Nor
is Mr. Newberry required to highlight conflicting testimony. The Defendant has not
demonstrated how Mr. Newberry's discussion of the evidence in a manner favorable to the
prosecution resulted in the creation of "false facts" that unavoidably prejudiced the jury.
Accordingly, the Court finds that Mr. Cooke was not ineffective for not objecting and the
Defendant's eleventh claim fails.
The Defendant's twelfth and thirteenth claims are interrelated. The Defendant claims that
Mr. Cooke was ineffective for failing to object to a supplemental jury instruction on transferred
intent and for failing to object to the Defendant's absence when that instruction was given,
respectively. See PCRA Petition, pp. 110, 116. By way of further explanation, while the jury was
deliberating, the trial court received a question from the jury, "Question: Criminal Attempt-
Murder, does intent refer strictly to Lori Phillips or to anyone?" Transcript of Jury Trial Held on
July 17, 2012 at p. 316. The attorneys met with Judge Moschetta Bell in chambers to address the
question at which time Mr. Newberry requested that the jurors be instructed on transferred intent.
A discussion among the attorneys and Judge Moschetta Bell ensued concerning the propriety of
such an instruction. See Transcript of Excerpt of Jury Trial Held on July 18, 2012. A review of
the transcript of this discussion reveals that the jury returned a verdict prior to any response
being given to the jury's question. Id. at p. 23. As such, the Defendant's claims are moot.
The remaining claims in the Defendant's PCRA petition involve post-sentencing and
appellate issues. In his fourteenth claim, the Defendant asserts ineffective assistance of trial
counsel for failure to preserve issues for post-sentence motions or appellate review relating to the
20
djscretjon.ary aspects of the Defendant's sentence. See PCRA Petition, p, 117, In his fifteenth,
and final, claim, the Defendant asserts ineffective assistance of post-trial counsel for failure to
timely consult with the Defendant post-sentence for purposes of challenging the discretionary
aspects of his sentence, failure to petition the court for funds to employ a forensic expert, failure
to file post-sentence motions concerning weight and/or sufficiency of the evidence, and failure to
preserve issues for appellate review related to the discretionary aspects of the Defendant's
sentence. Id. at p. 121.
The Court repeats that in order to be entitled to relief on these ineffectiveness claims, the
Defendant must prove the underlying claim is of arguable merit, counsel's performance lacked a
reasonable basis, and counsel's ineffectiveness caused him prejudice. Counsel will not be
ineffective for failing to preserve a baseless claim. Commonwealth v. Cotton, 487 A.2d 830 (Pa.
Super. Ct. 1984). To prevail upon a layered ineffectiveness claim, a defendant "must plead in his
PCRA petition that his prior counsel, whose alleged ineffectiveness is at issue, was ineffective
for failing to raise the claim that counsel who preceded him was ineffective in taking or omitting
some action." Commonwealth v. Reaves, 923 A.2d 1119, 1127 (Pa. 2007) (citation omitted).
Additionally, a defendant must present argument on the three prongs of the ineffectiveness test
as to each relevant layer of representation. Id
After careful review of the PCRA Petition and record, the Court finds that the Defendant
has not established that the underlying claims have merit or that he was prejudiced by trial
counsel or post-trial counsel-i.e., that but for trial counsel or post-trial counsel's failure to
preserve issues, there was a reasonable possibility that a new trial or new sentencing would have
been awarded. Although the Superior Court deemed the reasonableness of the Defendant's
sentence to be waived on direct appeal, the trial court addressed this issue on its merits in its
21
1·925(aJ. opinion. The trial court noted that the Defendant was sentenced within the standard
range of the guidelines. See 1925(a) Opinion, p. 21 (filed January 2, 2013). Further, the trial
court explained that in crafting the Defendant's sentence, the court reviewed the pre-sentence
investigation and highlighted many factors supporting the sentence. Id at p. 21-22. "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 so as to be clearly erroneous." Commonwealth v. Moury, 992
A.2d 162, 169-70 (Pa. Super. Ct. 2010). In view of this, this Court finds that the Defendant's
underlying claim regarding the discretionary aspects of his sentence is without merit.
Consequently, counsel cannot be held ineffective for failing to preserve this sentencing issue.
Similarly, counsel cannot be held ineffective for failure to file various post-sentence
motions on grounds of sufficiency or weight or for failure to undertake certain actions to develop
such motions (i.e., petition the court for funds to obtain a forensic expert). The legal standards
regarding sufficiency and weight of the evidence are well settled. "[I)n evaluating a challenge to
the sufficiency of the evidence, [the trial court) must determine whether, viewing the evidence in
the light most favorable to the Commonwealth as verdict winner, together with all reasonable
inferences therefrom, the trier of fact could have found that each and every element of the crimes
charged was established by beyond a reasonable doubt." Commonwealth v. Little, 879 A.2d 293,
296-97 (Pa. Super. Ct. 2005). It is the fact finder's jurisdiction to determine the credibility of
witnesses and the weight to be accorded the evidence, and the fact finder is allowed to believe
all, part, or none of the evidence. Commonwealth v. Koehler, 914 A.2d 427, 436 (Pa. Super. Ct.
2006). Unless the evidence presented at trial is "so weak and inconclusive that, as a matter of
law, no probability of fact can be drawn fromthe combined circumstances," the verdict is not to
22
be.chan�ed on appeal. Commonwealth v Davis, 199 A 2d 860, 866 (Pa Super Ct 2002)
(quoting Commonwealth v. Seibert, 622 A.2d 361, 363 (Pa. Super. Ct. 1993)). With respect to
weight of the evidence, a trial court may award a new trial on the basis that the verdict was
contrary to the weight of the evidence "only where the verdict is so contrary to the evidence as to
shock one's sense of justice and make the award of a new trial imperative." Commonwealth v.
Auker, 681 A.2d 1305, 1316 (Pa. 1996); see also Commonwealth v. Mason, 741 A.2d 708, 715
(Pa. 1999).
In the present case, the Defendant has not argued that the evidence presented at trial was
so weak and inconclusive that as a matter of law, no probability of fact can be drawn from the
combined circumstances. Nor has the Defendant argued that the verdict was so contrary to the
evidence as to shock one's sense of justice. Rather, it appears to be the Defendant's position that
a forensic expert may have assisted post-trial counsel to show that the evidence could possibly
have been interpreted by the jury more favorably after the fact. This position is without merit as
previously discussed. See infra pp. 8-12.
For the above-mentioned reasons, this Court finds that there are no genuine issues of
material fact in the claims raised by the Defendant and said claims do not entitle the Defendant
to post-conviction collateral relief.
BY THE COURT,
{l
Date
23
Circulated 07/30/2018 01:51 PM
'· IN THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY, PENNSYLVANIA
·')
CRIMINAL DIVISION
)
COMMONWEALTH OF PENNSYLVANIA )
)
)
v. ) No. CR 552 - 2012
)
)
PAUL HELMICK )
Defendant. )
)
ORDER
AND NOW, this 25th day of APRIL, 2017, after reviewing the Defendant's Response to
Pa.R.Crim.P. 907 Notice of Intent to Dismiss, it is hereby ORDERED, ADJUDGED, and
DECREED that the Defendant's PCRA is DISMISSED. Pursuant to Rule 910 of the
Pennsylvania Rules of Criminal Procedure, the Defendant has the right to file an appeal to the
Superior Court within thirty (30) days of this date of this order. The appeal must be filed with the
Washington County Clerk of Courts. PURSUANT TO RULE 908(E), THE DEFENDANT
SHALL BE SERVED WITH NOTICE OF THIS ORDER BY CERTIFIED MAIL, RETURN
RECEIPT REQUESTED.
This Court provided notice to the Defendant by way of an Order and Notice dated March
7, 2017 that it intended to dismiss the Defendant's PCRA petition without a hearing. The Court
found no genuine issues of material fact based upon the reasons set forth in the Order and �tice.
�CJ !:::
The Defendant filed a timely response to the Court's notice of intent to dismiss. T'i[Qourt"ti.nds"'' ·•"'
§: ��::· ;�; j H
that its March ih Order and Notice addresses the issues raised in both the Defehi}a,�.t's�Rf\�'·:·:
O u
��:.:I:.i.sf s!
C.)
rrr::
:'l:;1·,;•,,_..,
:-0 --1 S? '\,.,.}
pe,·-; 0
\D
:fletiti�n and response. Consequently, the Court need not reiterate its reasoning in detail and will
address the Defendant's response in abridged fashion below solely with respect to Claim 7.
In Claim 7, the Defendant contends that he was "denied his right to the effective
assistance of counsel, right to be tried by twelve interested jurors, and due process of law ...
where trial counsel failed to object and seek the removal of Juror #2 for cause where the Juror
was not actively engaged in the proceedings throughout the trial and the Court refused to remove
the Juror on the motion made by the Commonwealth." See Petition for Post-Conviction
Collateral Relief from criminal Conviction Pursuant to the Post-Conviction Relief Act, p. 99.
During trial, the Commonwealth made a motion in chambers to strike Juror number 2 based on
observations that the Juror was looking at the ground throughout the trial, did not make eye
contact with the attorneys or witnesses, and generally appeared hostile. Transcript of Jury Trial
Held on July 17, 2012 at pp. 143-49. The Defendant's counsel, Mr. Cooke, objected to the
motion based on his observations that the Juror had made eye contact and appeared to be looking
and watching during the trial. Mr. Cooke noted that while the Juror "seems somewhat on the
hostile side ... (d]efensively, it's a tactic that can work for me." Id. at p. 145.
Rule 645 governs the seating and retention of alternate jurors. Pursuant to that rule,
"[a]ltemate jurors, in the order in which they are called, shall replace principal jurors who
become unable or disqualified to perform their duties." Pa.R.Crim.P 645(A). "The discharge of a
juror is within the sound discretion of the trial court. Absent a palpable abuse of that discretion,
the court's determination will not be reversed." Commonwealth v. Jacobs, 639 A.2d 786, 790
(Pa. 1994). The Pennsylvania Supreme Court has explained that "the exercise of this judgment
must be based upon a sufficient record of competent evidence to sustain removal."
Commonwealth v. Saxton, 353 A.2d 434, 442 (Pa. 1976). Here, the trial court found that there
2
·vas not a sufficient record of competent evidence to sustain removal of Juror number 2. The trial
I
court noted that the Juror was acceptable to both attorneys through voir dire and that "[t]here has
been no evidence presented or observed that she was sleeping, dozing or not paying attention to
testimony." Transcript of Jury Trial Held on July 17, 2012 at p. 201. Having reviewed the record,
this PCRA Court finds no competent evidence in the record to support the conclusion that Juror
number 2 was unable to perform as a juror. This Court reiterates that absent a palpable abuse of
its discretion, a trial court's determination regarding the discharge of a juror will not be reversed.
The Defendant has failed to prove that the claim underlying his ineffectiveness claim has
arguable merit and that trial counsel's actions lacked any reasonable basis. Accordingly, Claim 7
is denied.
CL�
BY THE COURT,
3