Com. v. Markijohn, J. ( 2023 )

J-S17036-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JOSEPH ANTHONY MARKIJOHN, II :
:
Appellant : No. 489 WDA 2022
Appeal from the PCRA Order Entered April 22, 2022
In the Court of Common Pleas of Lawrence County
Criminal Division at No(s): CP-37-CR-0000445-2015
BEFORE: LAZARUS, J., OLSON, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: OCTOBER 3, 2023
Appellant, Joseph Anthony Markijohn, II, appeals from the order entered
in the Lawrence County Court of Common Pleas, which dismissed his first
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), at 42
Pa.C.S.A. §§ 9541-9546. We affirm.
A prior panel of this Court set forth the relevant facts of this case as
follows:
On December 28, 2014, Kaitlyn Kerezsi and Appellant, her
boyfriend at the time, had planned to visit his friend, Joseph
Pagley (the “Decedent”), in New Castle. The Decedent
supplied Appellant with marijuana. However, when Ms.
Kerezsi woke that morning, Appellant informed her that only
he would be traveling to New Castle. He packed a bag with
a change of clothes and left in his green Jeep Cherokee
around 1 p.m.
Between 5:30 and 6:00 p.m., wearing a new sweatshirt,
Appellant returned from New Castle with five pounds of
marijuana and a large amount of cash. The pair went to a
J-S17036-23
local Walmart, purchased a safe and glass jars, returned
home, and proceeded to repackage the marijuana.
Appellant began selling this marijuana to friends the
following day.
This was more marijuana than Ms. Kerezsi had seen
previously in Appellant’s possession. When asked about the
large quantity, Appellant suggested to Ms. Kerezsi that he
and the Decedent had robbed a rival marijuana growing
operation. According to Appellant, he had used a small
pistol to shoot a lock on the shed containing the marijuana.
Appellant told Ms. Kerezsi that he disposed of the gun and
that she should deny he had possessed one.
Earlier that day, the Decedent informed his girlfriend,
Shayna Magno, that he had plans to meet someone from
out of town at his house and that, therefore, she had to
leave. Ms. Magno left, met a friend, and began using heroin.
Apparently, the Decedent concluded that Ms. Magno was
using heroin, which precipitated an argument between the
two via text messaging and cellphone calls. However, at
3:32 p.m., the Decedent’s phone was turned off, and Ms.
Magno had no further contact with him.
Sometime between 3:00 and 4:00 p.m., Appellant met the
Decedent at the Roupp residence. Surveillance video later
recovered from a local business showed Appellant’s Jeep
Cherokee following the Decedent’s vehicle in the direction
of the Decedent’s house at 3:44 p.m.
Over the next several hours, Ms. Magno tried repeatedly but
unsuccessfully to contact the Decedent. Eventually, at
10:40 p.m., Ms. Magno was able to reach a mutual friend,
David Roupp. She inquired as to the Decedent’s
whereabouts, but Mr. Roupp had not seen or heard from
him.
Ms. Magno returned to the Decedent’s house. His vehicle
was parked outside; the front door was unlocked; however,
the home was unlit, and he did not appear to be there.
Unnerved by this, Ms. Magno again called Mr. Roupp, who
came to the house. Upon searching the basement, Mr.
Roupp discovered the Decedent’s dead body.
-2-
J-S17036-23
An investigation ensued. Police recovered three .25 caliber
shell casings in the basement surrounding the Decedent’s
body. In addition, an autopsy determined that the cause of
his death was three gunshot wounds to the head, and the
manner of death was homicide. Each of the three .25 caliber
slugs recovered from his head had been fired from the same
weapon.
Although he would later deny it, Appellant possessed a .25
caliber pistol. Appellant’s mother gave him such a pistol for
protection sometime in 2014. Ms. Kerezsi observed a small
pistol hidden underneath Appellant’s mattress. In addition,
Mr. Roupp had witnessed Appellant threaten another friend
with a small, black pistol during an argument. Finally,
Appellant had posted pictures of a .25 caliber pistol on social
media. Following his arrest, Appellant directed Ms. Kerezsi
to shut down his social media accounts, and she complied.
On December 30, 2014, Terrance Albright, a random
passer-by, found an iPhone under a guardrail close to the
Smolen-Gulf Bridge in Ashtabula, Ohio, where Appellant
resided. Guessing the manufacturer’s default password and
unlocking the phone, Mr. Albright learned that it belonged
to the Decedent. He contacted the Decedent’s father, who
in turn contacted the police. The bridge is approximately
3.5 miles from Appellant’s home and 85 miles from the
Decedent’s house.
On December 31, 2014, executing a search warrant on
Appellant’s home, police discovered and seized several
pounds of marijuana. The marijuana was stored in jars
labelled “Blue Dream” and “Fu Dawg.” Text messages
exchanged between Appellant and the Decedent, prior to
their meeting, referenced these particular brands. Further,
notwithstanding his story of the rival robbery, Appellant
acknowledged that he had been present in the Decedent’s
house as late as 4 p.m. on the date of the murder and that
the marijuana seized from his home had come from the
Decedent’s house.
Police arrested Appellant and charged him with murder and
robbery. …
Commonwealth v. Markijohn, No. 827 WDA 2019, unpublished
-3-
J-S17036-23
memorandum at 1-5 (Pa.Super. filed January 22, 2020) (internal citations and
footnotes omitted), appeal denied, 661 Pa. 484, 236 A.3d 1052 (2020).
A jury convicted Appellant of first-degree murder and robbery. On
December 5, 2018, the trial court sentenced Appellant to life imprisonment.
This Court affirmed Appellant’s judgment of sentence on January 22, 2020,
and our Supreme Court denied Appellant’s petition for allowance of appeal on
June 29, 2020. See id.Appellant filed a timely PCRA petition on December 18, 2020. The court
conducted hearings on May 25, 2021, September 9, 2021, and November 1,
2021. The PCRA court summarized the testimony from the PCRA hearings as
follows:
[On May 25, 2021, Appellant] presented the testimony of
his trial counsel, Steven Valsamidis, Esquire, concerning
numerous aspects of his representation of [Appellant].
Attorney Valsamidis recalled having conversations about
retaining a private investigator. However, it was unlikely a
private investigator would have been able to locate the grow
shed robbed by [Appellant] and Decedent as [Appellant]
could not recall the route they traveled to get to that
location. Attorney Valsamidis believed that could be used
by the Commonwealth to damage [Appellant’s] credibility if
he hired a private investigator and they were unable to
locate the shed. At the conclusion of that conversation with
[Appellant], Attorney Valsamidis asked [Appellant] if the
private investigator would find the grow shed and if he
wanted to hire a private investigator. [Appellant] remained
silent and Attorney Valsamidis understood that to mean he
did not wish to hire a private investigator at that time.
Attorney Valsamidis also did not believe hiring a private
investigator to investigate Ms. Magno would have been
productive as the defense was based upon someone
associated with the grow shed being the perpetrator and Ms.
Magno was not involved with that operation. Although,
-4-
J-S17036-23
Attorney Valsamidis acknowledged Ms. Magno was a person
of interest in the homicide based upon the testimony of one
of the Pennsylvania State Troopers.
Attorney Valsamidis also explained he did not feel it was
necessary to file a notice of alibi defense as Defendant’s
version of events left the possibility he was in New Castle at
the time of the homicide. Under those circumstances,
Attorney Valsamidis did not believe an alibi defense or
instruction to the jury was necessary.
[Appellant’s] counsel inquired as to why Attorney Valsamidis
did not file a motion in limine as it pertained to [Appellant’s]
lip tattoo of the word “Kill.” It was his opinion that tattoo is
easily explainable because [Appellant] was a Marine years
earlier and he believed it demonstrated desperation on
behalf of the Commonwealth to emphasize the tattoo. In
relation to a prior incident in which another individual
became upset at [Appellant’s] mother’s residence and
began destroying her bedroom causing [Appellant] to
brandish a .25 caliber pistol, Attorney Valsamidis did not file
an objection as there was no basis to do so because the
Commonwealth was introducing it for the legitimate purpose
of demonstrating [Appellant] possessed a firearm to
impeach his prior statement to the Troopers denying
possession of a firearm. At the time that was presented to
the jury, the Commonwealth did not know whether
[Appellant] was going to testify.
When questioned about calling character witnesses to testify
on [Appellant’s] behalf, Attorney Valsamidis indicated they
attempted to locate witnesses. He had conversations with
several of [Appellant’s] friends from his time in the military
about appearing at trial, but they had not been around
[Appellant] for an extended period of time. [Appellant]
identified several potential character witnesses and Attorney
Valsamidis recalled having conversations with at least two
of them. He then explained two of the witnesses he spoke
with had not been in [Appellant’s] company for a “significant
period of time”. In addition, Attorney Valsamidis recalled
one of those individuals, Hunter Bernard, left a message for
Attorney Valsamidis indicating he was unavailable for trial.
Attorney Valsamidis did not subpoena Mr. Bernard based
upon his belief subpoenaing a witness who is supposed to
-5-
J-S17036-23
be favorable but is not cooperative often will not result in
favorable testimony.
Another hearing was scheduled for September 9, 2021, to
allow for further testimony to be presented. On that date,
[Appellant] testified concerning his statement to Troopers
Gustafson and Birckbichler on December 31, 2014.
[Appellant] admitted he lied to them about possessing the
firearm because he feared he would get into trouble for
providing it to Decedent. Following the interview,
[Appellant] was arrested and transported to Lawrence
County, Pennsylvania. Initially, [Appellant] was
represented by Lawrence J. Keith, Esquire, and Dennis A.
Eliseo, Esquire, of the Lawrence County Public Defender’s
Office; however, [Appellant] wanted a change of counsel
due to not receiving responses to his inquiries. The [c]ourt
then appointed John J. Bongivengo, Esquire, to represent
[Appellant], who [Appellant] never actually met because he
privately retained Attorney Valsamidis. They thoroughly
discussed the events of December 28, 2014, which included
[Appellant’s] reasoning for providing the firearm to
Decedent. [Appellant] indicated he lied about it to the
Troopers as Decedent had a felony conviction and it is illegal
to provide a firearm to a convicted felon. [Appellant] also
indicated Attorney Valsamidis was aware of his description
concerning the location of the shed he and Decedent broke
into and from which they stole marijuana.
According to [Appellant], he and Attorney Valsamidis never
discussed hiring a private investigator or about cell phone
technology. Conversely, they spoke about potential
character witnesses and, according to [Appellant], he
provided Attorney Valsamidis with the names Hunter
Bernard, Coralyn Thompson and Edward Crawford, II.
[Appellant] stated those individuals were willing to testify
on his behalf as character witnesses.
Another hearing was held on November 1, 2021, to permit
[Appellant] to present the testimony of two of his proposed
character witnesses, Edward Crawford, II, and Coralyn
Thompson. Mr. Crawford testified he has never been
convicted of a felony or any crime of dishonesty. He is
familiar with [Appellant] as they previously worked together
at Ringer Screen Print in approximately 2013. Their families
-6-
J-S17036-23
were friends and [Appellant] used to “hang out” at his house
when they were younger. Mr. Crawford and [Appellant]
would often socialize after work until [Appellant] was
arrested for Decedent’s homicide. Eventually, [Appellant’s]
mother, Anna Dixon, contacted Mr. Crawford to ask him to
testify on [Appellant’s] behalf as a character witness, but he
did not recall receiving a telephone call from Attorney
Valsamidis. Mr. Crawford testified he was ready, willing and
able to testify to [Appellant’s] good character at trial.
However, Mr. Crawford was never subpoenaed by Attorney
Valsamidis to appear at trial. On cross-examination, Mr.
Crawford stated he probably would not have traveled here
to testify at trial as “this is all nervous to me, I guess, you
know, nerve wracking....” He also explained he would have
been upset if he were compelled to testify at trial. Mr.
Crawford indicated he was in [Appellant’s] presence when
he used and sold marijuana.
Ms. Thompson also testified at that hearing and explained
she has been a friend of [Appellant] since [Appellant] was
in the first grade. The last time she saw [Appellant] was in
2013 at her brother’s funeral, but they kept in touch through
regular communications via the telephone. They lost touch
briefly then [Appellant] began contacting her by telephone
during his incarceration. As trial was approaching,
[Appellant] and Ms. Dixon asked Ms. Thompson if she would
be willing to be a character witness for [Appellant].
Attorney Valsamidis did not contact Ms. Thompson
concerning her willingness to testify at trial. Ms. Thompson
indicated she has not been convicted of any felonies or
crimes of dishonesty. She stated she was ready, willing and
able to testify on [Appellant’s] behalf as a character witness.
On cross-examination, Ms. Thompson testified she did not
appear at trial because she was not compelled to do so but
would have attended if she received a subpoena. She also
indicated she knew [Appellant] was a marijuana user but did
not know he dealt marijuana.
(PCRA Court Opinion, filed 5/20/22, at 8-12).
On April 22, 2022, the PCRA court issued its order denying PCRA relief.
Appellant timely filed a notice of appeal on April 28, 2022. The PCRA court
-7-
J-S17036-23
subsequently ordered Appellant to file a concise statement of errors
complained of on appeal, and Appellant complied on May 12, 2022.
Appellant raises the following nine issues on appeal:
1. Whether the PCRA court erred by denying Appellant a
new trial based on ineffective assistance of counsel because
trial counsel unreasonably failed to call character witnesses
on Appellant’s behalf at trial?
2. Whether the PCRA court erred by denying Appellant a
new trial on the basis of ineffective assistance of trial
counsel for failing to file a notice of alibi and pursue that
defense at trial by requesting an alibi jury instruction?
3. Whether the PCRA court erred in denying Appellant a new
trial based on ineffective assistance of trial counsel because
of trial counsel’s concessions (twice) during closing
argument establishing the window of time when death
occurred when the Commonwealth could not establish a
time of death and said concessions contradicted the defense
that Appellant was not the last person to see the decedent
alive?
4. Whether the PCRA court erred in denying Appellant a new
trial for trial counsel’s failure to hire a private investigator
to explore various issues crucial to preparing and presenting
a defense at trial?
5. Whether the PCRA court erred when it failed to grant
Appellant a new trial based on ineffective assistance of
counsel when trial counsel failed to file a motion in limine or
object on record at trial to prejudicial evidence introduced
by the Commonwealth?
6. Whether the PCRA court erred by denying Appellant relief
in the form of a new trial for its findings of facts are not
supported by the record and its conclusions a product of
legal error, on the issue of trial counsel’s testimony that
decedent’s killer(s) followed Appellant home and planted a
cell phone, when no such theory or evidence was ever
presented at trial?
-8-
J-S17036-23
7. Whether PCRA counsel [was] ineffective for failing to
properly preserve issues related to DNA testing of physical
evidence in his concise statement of matters complained of
on appeal?
8. Whether the [PCRA] court erred in not appointing an
expert to conduct DNA testing on the cigarette butt found
at the crime scene?
9. Whether this Court should remand the case to the [PCRA]
court to allow DNA testing of a cigarette butt pursuant to 42
Pa.C.S.A. § 9543.1(d)(1)?
(Appellant’s Brief at 1-2).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the record evidence supports the court’s determination
and whether the court’s decision is free of legal error. Commonwealth v.
Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d
319 (2008). 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 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932
A.2d 74 (2007). 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).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Craig Cox, we
conclude Appellants first through sixth issues on appeal merit no relief. The
PCRA court opinion comprehensively discusses and properly disposes of those
claims. (See PCRA Court Opinion at 13-21, 23-24) (finding: (1) trial counsel
-9-
J-S17036-23
had reasonable basis not to call character witness who was unwilling or
reluctant to testify, and counsel had reasonable basis not to call witness whom
he was unaware of at time of trial and who did not know Appellant well in any
event; (2) counsel was not ineffective for declining to file notice of alibi when
Appellant testified he was with Decedent on day of homicide; timeframe of
events set forth by Appellant did not render it impossible for him to have been
with Decedent at time Decedent was killed; thus, alibi instruction would not
have been appropriate; (3) counsel had reasonable basis for arguing that time
of Decedent’s death was between 3:30 p.m. and 6:30 p.m. because such
timeline aligned with defense theory of case that perpetrators followed
Appellant after murder to Ashtabula, Ohio, where they disposed of Decedent’s
cell phone; (4) counsel was not ineffective for failing to hire private
investigator to locate grow shed where Appellant was unable to provide
adequate explanation of location of grow shed, which could have called into
question Appellant’s version of events from day of murder; further, Appellant
did not establish how investigation into Ms. Magno and her associates would
be helpful to his defense; (5) counsel was not ineffective for failing to object
to or file motion in limine concerning evidence of Appellant’s lip tattoo reading
“KILL” or his Twitter post about shooting guns, where evidence was introduced
to impeach Appellant’s testimony that he was peaceful and loving “hippie”;
counsel also acted reasonably in failing to object to testimony concerning
unrelated incident of Appellant brandishing firearm because Commonwealth
- 10 -
J-S17036-23
introduced that testimony to show that Appellant had possessed firearm;
moreover, court gave curative instruction concerning this testimony (6) trial
counsel testified at PCRA hearing that defense presented at trial was
predicated upon involvement of owners of grow shed, and that Decedent’s
death was act of retribution for Appellant and Decedent robbing shed;
although Appellant now claims that trial counsel provided “false narrative”
about owners of shed occupying vehicle that followed Appellant to Ohio after
murder, Appellant was well aware of defense throughout trial and he testified
consistently with defense theory of case; PCRA court found trial counsel’s
testimony credible concerning defense strategy at trial based on testimony
and evidence of record). The record supports the PCRA court’s analysis of
Appellant’s first through sixth issues, and we affirm on the basis of the PCRA
court’s opinion concerning those claims of error. See Ford, supra. See also
Dennis, supra.In his seventh issue, Appellant raises a layered claim of ineffective
assistance of counsel. He argues that PCRA counsel was ineffective for failing
to include in the concise statement of errors complained of on appeal,
Appellant’s claim that trial counsel was ineffective for failing to pursue DNA
testing of a cigarette butt found near Decedent’s body. Appellant
acknowledges that PCRA counsel raised the issue of trial counsel’s
ineffectiveness on this ground in his PCRA petition, but Appellant insists PCRA
counsel was ineffective for failing to include this issue in his Rule 1925(b)
- 11 -
J-S17036-23
statement, constituting waiver of the claim on appeal.1
As to the underlying claim of trial counsel’s ineffectiveness, Appellant
argues that he smoked a different brand of cigarette than the one found near
Decedent’s body and that testing of the cigarette butt would reveal
exculpatory evidence of the identity of the true killer. Appellant contends trial
counsel had no reasonable basis for failing to seek DNA testing and counsel’s
refusal to pursue such testing prevented Appellant from establishing a third-
party culpability defense. Appellant concludes trial counsel was ineffective on
this basis, and PCRA counsel was ineffective for failing to preserve this claim
of error on appeal. We disagree.
“Counsel is presumed to have rendered effective assistance.”
Commonwealth v. Hopkins, 231 A.3d 855, 871 (Pa.Super. 2020), appeal
denied, 663 Pa. 418, 242 A.3d 908 (2020).
[T]o establish a claim of ineffective assistance of counsel, a
defendant must show, by a preponderance of the evidence,
ineffective 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. The burden is on the defendant to
prove all three of the following prongs: (1) the underlying
claim is of arguable merit; (2) that counsel had no
reasonable strategic basis for his or her action or inaction;
and (3) but for the errors and omissions of counsel, there is
____________________________________________
1 Appellant presented his claim of PCRA counsel’s ineffectiveness at the first
opportunity to do so. We will review this claim based on our Supreme Court’s
decision in Commonwealth v. Bradley, ___ Pa. ___, ___ 261 A.3d 381, 400
(2021) (holding “that a PCRA petitioner may, after a PCRA court denies relief,
and after obtaining new counsel or acting pro se, raise claims of PCRA
counsel’s ineffectiveness at the first opportunity to do so, even if on appeal”).
- 12 -
J-S17036-23
a reasonable probability that the outcome of the
proceedings would have been different.
Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa.Super. 2019),
appeal denied, 654 Pa. 568, 216 A.3d 1029 (2019) (internal citations and
quotation marks omitted). The failure to satisfy any prong of the test for
ineffectiveness will cause the claim to fail. Commonwealth v. Chmiel, 612
Pa. 333, 30 A.3d 1111 (2011).
The test for deciding whether counsel had a reasonable
basis for his action or inaction is whether no competent
counsel would have chosen that action or inaction, or, the
alternative, not chosen, offered a significantly greater
potential chance of success. Counsel’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.
Commonwealth v. King, 259 A.3d 511, 520 (Pa.Super. 2021) (quoting
Sandusky, supra at 1043-44).
“[I]t is axiomatic that [trial] counsel will not be considered ineffective
for failing to pursue meritless claims.” Commonwealth v. Rivera, 816 A.2d
282, 292 (Pa.Super. 2003), appeal denied, 573 Pa. 715, 828 A.2d 350 (2003)
(quoting Commonwealth v. Pursell, 555 Pa. 233, 724 A.2d 293, 304
(1999)). Consequently, “[p]ost-trial counsel will not be deemed ineffective
for failing to raise and preserve meritless challenges to the effectiveness of
trial counsel.” Id. (quoting Commonwealth v. Thuy, 623 A.2d 327, 335
(Pa.Super. 1993)).
Instantly, the PCRA court evaluated Appellant’s claim of trial counsel’s
- 13 -
J-S17036-23
ineffectiveness for not pursuing DNA testing. In its opinion denying PCRA
relief, the court explained:
[Trial counsel,] Attorney Valsamidis[,] did not believe it was
prudent to test the Camel cigarette for DNA for fear it may
contain [Appellant’s] DNA. Moreover, Attorney Valsamidis
wanted to leave the door open to attack the lack of DNA
testing of the Camel cigarette butt as part of the overarching
narrative [that] the investigation conducted in this case was
done in a “sloppy” manner. The [c]ourt recognizes the risks
and benefits of testing the DNA on the Camel cigarette butt.
Attorney Valsamidis made a reasonable decision to forego
seeking a DNA expert concerning the cigarette butt in lieu
of continuing the narrative [that] the investigators did not
conduct a thorough investigation despite this being a
homicide case. Plus, [Appellant] testified he smoked a
different brand of cigarettes which supported his rendition
of events that someone else killed Decedent and left the
cigarette butt. The [c]ourt will not second guess Attorney
Valsamidis’s trial strategy when his decisions had
reasonable grounds contained within the record.
(PCRA Court Opinion, filed 4/22/22, at 23-24).
The record supports the PCRA court’s analysis that trial counsel had a
reasonable basis not to pursue DNA testing of the cigarette butt. See Boyd,
supra. See also Dennis, supra. Trial counsel did not overlook the cigarette
butt as evidence; rather, he incorporated it into the defense strategy.
Although Appellant’s current counsel insists that the strategy employed was
wrong, we do not judge the reasonableness of trial counsel’s approach in
hindsight. See King, supra. As PCRA counsel cannot be deemed ineffective
for failing to preserve a meritless claim, we conclude that Appellant is not
entitled to relief on this layered claim of ineffectiveness. See Rivera, supra.In his final two issues, Appellant argues the PCRA court erred when it
- 14 -
J-S17036-23
denied his motion for DNA testing,2 which Appellant filed during the pendency
of this appeal, on August 4, 2022. Because the order on appeal concerns the
denial of PCRA relief and not a ruling on Appellant’s August 4, 2022 motion,
any claims concerning this motion are not properly before us at this time.3
Accordingly, we affirm the order denying PCRA relief.
Order affirmed.
DATE: 10/3/2023
____________________________________________
2 We note that although a motion for DNA testing “falls under the aegis” of
the PCRA, this Court has long differentiated between petitions for relief under
section 9534 of the PCRA and motions for DNA testing under section 9543.1
of the PCRA. Commonwealth v. Kunco, 173 A.3d 817, 823 (Pa.Super.
2017). A motion for DNA testing under section 9543.1 is not a PCRA petition,
“[r]ather, it allows for a convicted individual to first obtain DNA testing which
could then be used within a PCRA petition.” Commonwealth v. Tyler, 234
A.3d 750, 753 (Pa.Super. 2020) (citations and internal quotation marks
omitted). “[A]lthough the legislature placed section 9543.1 within the larger
statutory framework of the PCRA, the litigation of a motion for DNA testing is,
in substance, a wholly separate proceeding from litigation of a PCRA petition.”
Id. (citations and internal quotation marks omitted).
3 We note that, according to the docket entries, the PCRA court has not ruled
on Appellant’s August 4, 2022 motion. On August 12, 2022, Appellant filed a
motion in this Court to remand for DNA testing, which this Court denied on
August 29, 2022, without prejudice to Appellant’s right to argue any properly
preserved issues in his appellate brief. As the August 4, 2022 motion for DNA
testing is not properly before us and is still pending before the PCRA court, we
decline Appellant’s request for remand.
- 15 -
Circulated 09/07/2023 01:33 PM
COMMONWEALTH OF PENNSYLVANIA :: IN THE COURT OF COMMON PLEAS
VS. :: LAWRENCE COUNTY, PENNSYLVANIA
JOSEPH ANTHONY MARKIJOHN, II, :: CRIMINAL DIVISION
Defendant. :: NO. 445 of 2015
If'>
-·-'
-"
APPEARANCES
For The Commonwealth: R Miller, Esq.
Jonathan R.
Lawrence County District Attorney --- .
430 Court Street
16101
New Castle, PA 16101
For The Defendant: Christopher P. Lacich, Esquire
100 East Federal Street, Suite 600
Youngstown, OH 44503
OPINION
COX, J.
COX,J. May 20, 2022
In the instant matter, the defendant Joseph Anthony Markijohn, II, filed a timely
Notice of Appeal on April 28, 2022, concerning the Order of Court and Opinion filed on
April 22, 2022, denying his Petition for Post-Conviction Relief ("PCRA"). On appeal,
Defendant contends this Court erred in failing to find his trial counsel was ineffective for
the following reasons:
I. Failure to call character witnesses on behalf of Defendant;
ti.
II. Failure to properly investigate alibi defense, file a notice of alibi defense and
request the Court provide the jury with an alibi instruction;
53RD
53D Ill. Counsel was ineffective when he conceded twice during his closing argument
JUDICIAL the Decedent's death occurred between 3:30 p.m. and 6:30 p.m.;
pisTRCT
DISTRICT
LAWRENCE COUNTY
P£NN5YLVANJA
PENNYLVANA
IV. Failure to file a motion in limine or object at trial to the Commonwealth asking
about and then showing Defendant's lip tattoo which read "KILL";
"KILLn;
V. Failure to file a motion in limine or object at trial to the Commonwealth
presenting testimony concerning a post on Defendant's Twitter page which
stated, "One day I'm finally going to be calm and l'lf
I'll be surrounded by shell
casings";
VI. Failure to file a motion in limine or object at trial to testimony concerning a prior
incident in which Defendant pulled a firearm on a houseguest who took
umbrage at being prematurely awakened and started destroying his mother's
bedroom;
bedroom:
VI I.
VII. Failure to hire an investigator to explore various issues crucial to preparing and
presenting a defense at trial;
VIII.
VIit. Failure to admit and publish to the jury a photograph taken by Decedent's
girlfriend of Decedent's body and the voicemail Defendant left for Decedent
when he arrived in Ashtabula, Ohio; and
IX. Defendant's trial counsel testified at the proceedings for Defendant's PCRA
Petition concerning a false narrative Defendant informed him the owners of the
shed he and the victim robbed killed the victim and followed Defendant to
Ashtabula, Ohio.
On December 28, 2014, Defendant and the decedent Joseph Pagley made plans,
so Defendant and his girlfriend Kaitlyn Kerezsi intended to drive from Ashtabula, Ohio, to
New Castle, Lawrence County. Pennsylvania. Defendant was going to obtain marijuana
from Decedent and pay Decedent a lump sum of money for a previous debt. On that day,
Defendant advised Ms. Kerezsi Decedent did not want her to accompany him even
1 :00
though she went with him in the past. Defendant left his residence at approximately 1
p.m. and took a change of clothes with him, which he informed Ms. Kerezsi he was taking
them "just in case he got dirty".
Defendant arrived in New Castle and went to a residence occupied by Keith Roupp
o meet with Decedent at approximately 3:00 p.m. Defendant testified at trial he and
53RD
53R0
JUDICIAL
DISTRICT Decedent then perpetrated a theft from a marijuana grow operation. They transported
LAWRENCE COUNTY
PENNSYLYANtA.
PENNSYLVANtA
z2
the stolen marijuana to Decedent's residence and brought it to the basement. Once that
marijuana was stored, Decedent opened a safe and provided Defendant with five pounds
of marijuana. According to Defendant, they then went upstairs and Defendant wrote a
check in the amount of $8,200.00 as a promise to pay for the marijuana. That check was
discovered by law enforcement resting on top of the opened safe when Decedent's body
was discovered. Defendant explained he provided Decedent with a .25 caliber pistol for
his protection because they just robbed a grow operation and Defendant left to return
home to Ashtabula. Defendant testified he departed Decedent's residence at 4:00 p.m.
and returned to his home in Ashtabula at approximately 5:30 or 6:00 p.m. When he
arrived at his house, Defendant was wearing a different sweatshirt than he wore when he
left according to Ms. Kerezsi and she did not see him bring back a change of clothes.
Decedent's girlfriend, Shayna Magno, resided with Decedent but did not have a
key to enter as she was not allowed to be there alone due to her heroin addiction. On the
morning of December 28, 2014, Decedent informed her he was meeting someone from
out of town and she had to leave. As a result, Ms. Magno left Decedent's residence before
3:00 p.m. and she went to use heroin with an acquaintance. Decedent observed Ms.
Magno with the acquaintance, and he became angry which caused an argument between
the two of them via text messaging. They sent multiple texts to each other between 3:08
p.m. and 3:32 p.m. After that time, Ms. Magno attempted to send another text message
to Decedent, but his phone was turned off. Later that day, Ms. Magno sent Decedent a
text asking if she could come to his residence to hang out. but Decedent did not respond
to her. Ms. Magno then called Decedent twice in quick succession with no answer. Ms.
53RD
3RD
JUDICIAL
JuDC1AL Magno called David Roupp at 6:30 p.m., who she would routinely contact when unable to
DISTRICT
LAWRENCE COUNTY
PENNSYLVANIA
3
Raupp missed the call. Ms. Magno attempted to call Decedent
reach Decedent, but Mr. Roupp
at 6:31 p.m., 8:09 p.m., 8:13 p.m., 9:50 p.m. and twice in quick succession at 10:38 p.m.
At 10:40 p.m., Ms. Magno spoke with Mr. Roupp,
Raupp, who indicated he had not spoken with
Decedent since 2:00 p.m.
Ms. Magno decided to go to Decedent's residence to see if he was there. When
she arrived she observed Decedent's vehicle in the driveway. She then entered the
residence, which was unlocked. She walked around the house calling Decedent's name
with no response. However, she did not enter the basement because it was pitch black.
Ms. Magno went outside to smoke a cigarette and called Mr. Roupp to come to
Decedent's residence. Upon his arrival, Mr. Roupp found Ms. Magno outside with
Decedent's dog. He went inside to search for Decedent. Eventually, Mr. Roupp
discovered Decedent in the basement and he instructed Ms. Magno to call 911, which
11:.26
she did at 11 :26 p.m. Ms. Magno was screaming when speaking with the 911 operator,
who asked to speak with someone else, so Mr. Roupp got on the phone. The operator
instructed Mr. Roupp to check to see if the body was cold and it was. Ms. Magno then
took a photograph of the body and they waited for police to arrive.
Investigator Harry S. Gustafson, Jr., of the Pennsylvania State Police collected
surveillance video from Preston Motors, which was near Decedent's residence. An
employee for Preston Motors indicated the timestamp on the video would show seven
minutes later than it actually was. At 3:44 p.m., the Preston Motors surveillance video
revealed Defendant's vehicle following Decedent's vehicle driving down Kenneth Avenue
towards Decedent's residence. In addition, Decedent's cell phone records indicate his
53RD
53m0
JUDICIAL last incoming call received was from Keith Roupp at 3:09 p.m. and the last text message
DISTRICT
LAWRENCE COUNTY
PENNSYLVANIA
4
sent from his phone was to Ms. Magno at 3:32 p.m. Decedent's phone also received and
read 8 iMessages between 2:33 p.m. and 3:58 p.m.
Bullet fragments removed from Decedent's body were found to be .25 caliber and
law enforcement discovered three .25 caliber casings in Decedent's basement. Prior to
December 28, 2014, Defendant possessed a .25 caliber pistol as Ms. Kerezsi saw the
firearm a week prior under his mattress at Defendant's residence in Ashtabula, Ohio. In
the event anyone asked about the firearm, Defendant informed Ms. Kerezsi to say they
never had a firearm and he stated he "threw
uthrew it". Defendant did not explain to Ms. Kerezsi
where he threw the firearm.
Defendant and Ms. Kerezsi then repackaged the marijuana and stored it.
Defendant engaged in reselling and distributing the marijuana to five friends. Prior to
December 28, 2014, Defendant did not sell large amounts of marijuana as the largest
amount Ms. Kerezsi saw him possess was an ounce. Defendant testified he would be
given up to two pounds at a time. Defendant sold the marijuana to Brian Westbrook and
Zach McClung, who each testified they never saw Defendant with large quantities of
marijuana to sell.
On December 30, 2014, Terrance Albright got into an argument with his girlfriend
and went for a walk to cool down. He drove to Smolen Bridge in Ashtabula and began
alking. He discovered a cell phone under a guardrail and he guessed the password of
0000 which was correct. It was Decedent's missing cell phone and Mr. Albright contacted
Decedent's father to tell him he found the phone. Decedent's phone was discovered 3.5
miles from Defendant's residence and 85 miles from Decedent's residence.
53RD
53mD
JUDICIAL
DISTRICT
LAWRENCE COUNTY
PENNSYLVANIA
PENNSYLVANIA
5
A warrant was executed on Defendant's residence, which led to the discovery and
seizure of several pounds of marijuana. Commonwealth's Exhibit 73 was admitted at trial
which depicted some of the jars of marijuana which Ms. Kerezsi and Defendant packaged
when he returned to Ashtabula. Some of the jars were labeled "Blue Dream" and "Fu
Dawg". Commonwealth's Exhibit 59 was admitted during the testimony of Trooper
Gustafson. It depicts the text messages received and sent by Decedent on December
28, 2014. The exhibit shows Decedent received a text at 2:31 p.m., prior to meeting with
Defendant, which states: "Need to c u im ready for tthem
hem 2 zippo of Blue dream". Decedent
then agreed to meet the sender of this message. This was entirely before Defendant and
Decedent met on December 28th. Commonwealth's Exhibit 57 also was admitted during
the testimony of Trooper Gustafson. Among other things, it depicts an iMessage sent
from Decedent's phone, asking the question "How's that fu dawg hitting?" Defendant
admitted the marijuana at his residence was the same Decedent sold, although he said
he purchased it rather than stole it.
On December 31, 2014, Defendant was interviewed by Trooper Gustafson and
Trooper Chris Birckbichler at the Ashtabula County Sheriffs Office. Defendant
acknowledged he met Decedent at Mr. Roupp's residence on December 28, 2014, and
he received two ounces of marijuana from Decedent, which was untrue as he returned to
shtabula with five pounds of marijuana. Defendant initially provided the Troopers with
an inaccurate recitation of the route he used to return home from New Castle, but changed
his story when confronted with the possibility the Troopers would check surveillance
ideos. Defendant also was untruthful when he informed them he did not possess aa
530
53RO
JUDICIAL
oisrRICT
DISTRICT
LAWRENCE COUNTY
EN4sYLVANIA
PENNSVL.VANJA
6
firearm despite having been in possession of the .25 caliber pistol which he posted about
on lnstagram. Following that interview, Defendant was arrested.
On July 6, 2015, the Commonwealth filed an Information charging Defendant with
1, Robbery-Inflicts Serious Bodily lnjury2 Theft
Injury,
Homicide',
Criminal Homicide , by Unlawful Taking or
Property?3 and Receiving Stolen Property'.
Disposition-Movable Property Property4. Defendant's trial
commenced on October 22, 2018, and concluded on October 26, 2018, which resulted in
a jury convicting Defendant on the charges of Murder of the First Degree and Robbery.
On December 5, 2018, Defendant was sentenced to a term of incarceration for the
remainder of his natural life for the charge of Murder of the First Degree and a term of
incarceration of not less than six (6) years nor more than twenty (20) years for the charge
of Robbery.
Defendant filed a Motion for Post-Sentence Relief on December 13, 2018,
consisting of a Motion for New Trial and/or Judgment of Acquittal, Motion in Arrest of
Judgment, Motion for Appointment of Counsel and a Motion to File Supplemental
Authority and/or Additional Grounds for Relief. On the same date, the Court granted the
request to file a Motion for Supplemental Authority and/or Additional Grounds for Relief
and the appearance of Defendant's trial counsel, Steven Valsamidis, Esquire, was
ithdrawn. The Court also appointed Dennis W. Mccurdy,
McCurdy, Esquire, to represent
Defendant. On May 10, 2019, the Court filed an Order of Court denying the remaining
portions of Defendant's Motion for Post-Sentence Relief. An Opinion explaining the
Court's rationale for denying Defendant's Motion was filed on May 24, 2019. Defendant
53RD 1'18Pa.C.S.A. 5
18 Pa.C.S.A. § 2501(a).
JUDICIAL 2 18 Pa.C.S.A. §
$ 3701(a)(1)(i).
3701(a)(1)().
DISTRICT 3
318 Pa.C.S.A § 3921(a).
18 Pa.C.S.A.
Pa.CS.A §5 3925(a).
18 Pa.C.S.A.
LAWRENCE COUNTY
PENNSYLVANIA 7
filed aa timely
filed Notice of
timely Notice of Appeal
Appeal to
to the
the Superior
Superior Court
Court and
and aa Concise
Concise Statement
Statement of
of Errors
Errors
of on
Complained of
Complained on Appeal
Appeal on June
June 4,
4, 2019.
2019. The
The Superior
Superior Court
Court affirmed
affirmed this
this Court's
Court's
decision to
decision to deny
deny Defendant's
Defendant's Motion
Motion for
for Post-Sentence
Post-Sentence Relief
Relief by Memorandum Opinion
by Memorandum Opinion
filed on
filed on January 22, 2020.
January 22, 2020. Defendant
Defendant filed
filed aa Petition
Petition for
for Allowance
Allowance of
of Appeal
Appeal to
to the
the
Supreme Court,
Pennsylvania Supreme
Pennsylvania Court, which
which was
was denied
denied on
on June
June 29,
29, 2020.
2020.
Attorney Mccurdy
Attorney then filed
Mccurdy then filed aa Motion
Motion to
to Withdraw
Withdraw Representation
Representation on
on July
July 9, 2020,
9, 2020,
which was granted on the same
which same date. The Court
Court appointed
appointed Christopher
Christopher P.
P. Lacich,
Lacich,
to represent
Esquire, to
Esquire, represent Defendant
Defendant for
for future proceedings. subsequently filed aa
proceedings. Defendant subsequently
Motion to
Motion to Restore
Restore Direct
Direct Appeal
Appeal Rights
Rights Nunc
Nunc Pro
Pro Tune on August
Tune on 28, 2020,
August 28, 2020, which was
by Order
withdrawn by Order of Court
Court filed on September 8, 2020.
2020. Defendant
Defendant filed
filed the current
PCRA Petition on December
PCRA December 18,
18, 2020, raising
raising various
various claims
claims of ineffective
ineffective assistance of
of
his trial and
his and appellate
appellate counsel. Next, Defendant filed
filed a Motion
Motion for Appointment of
Status Conference on December 18, 2020, and the
Request for Status
Investigator/Experts and Request
Court filed an Order on January 8, 2021, scheduling this matter for a Status Conference
1, 2021. The Motion for Appointment of Investigator/Experts was held
on February 1, held in
abeyance. Following that conference, a hearing was scheduled on Defendant's PCRA
Petition for May 25, 2021.
On that date, Defendant presented the testimony of his trial counsel, Steven
alsamidis, Esquire, concerning numerous aspects of his representation of Defendant.
Valsamidis,
ttorney Valsamidis recalled having conversations about retaining a private investigator.
However, it was unlikely a private investigator would have been able to locate the grow
shed robbed by Defendant and Decedent as Defendant could not recall the route they
53m0
53RD
JUDICIAL
raveled to get to that location. Attorney Valsamidis believed that could be used by the
DIsTICT
DISTRICT
LAWRENCE COUNTY
PENNSYLVANIA
8
Commonwealth to damage Defendant's credibility if he hired a private investigator and
they were unable to locate the shed. At the conclusion of that conversation with
Defendant, Attorney Valsamidis asked Defendant if the private investigator would find the
grow shed and if he wanted to hire a private investigator. Defendant remained silent and
Attorney Valsamidis understood that to mean he did not wish to hire a private investigator
at that time. Attorney Valsamidis also did not believe hiring a private investigator to
investigate Ms. Magno would have been productive as the defense was based upon
someone associated with the grow shed being the perpetrator and Ms. Magno was not
Vatsamidis acknowledged Ms. Magno
involved with that operation. Although, Attorney Valsamidis
was a person of interest in the homicide based upon the testimony of one of the
Pennsylvania State Troopers.
Attorney Valsamidis also explained he did not feel it was necessary to file a notice
of alibi defense as Defendant's version of events left the possibility he was in New Castle
at the time of the homicide. Under those circumstances, Attorney Valsamidis did not
believe an alibi defense or instruction to the jury was necessary.
Defendant's counsel inquired as to why Attorney Valsamidis did not file a motion
in limine as it pertained to Defendant's lip tattoo of the word "Kill". It was his opinion that
tattoo is easily explainable because Defendant was a Marine years earlier and he
believed it demonstrated desperation on behalf of the Commonwealth to emphasize the
attoo. In relation to a prior incident in which another individual became upset at
Defendant's mother's residence and began destroying her bedroom causing Defendant
o brandish a .25 caliber pistol, Attorney Valsamidis did not file an objection as there was
53RD
JUDICIAL no basis to do so because the Commonwealth was introducing it for the legitimate
DISTRICT
LAWRENCE COUNTY
PENNSYLVANIA
9
purpose of demonstrating Defendant possessed a firearm to impeach his prior statement
to the Troopers denying possession of a firearm. At the time that was presented to the
·ury, the Commonwealth did not know whether Defendant was going to testify.
When questioned about calling character witnesses to testify on Defendant's
behalf, Attorney Valsamidis indicated they attempted to locate witnesses. He had
conversations with several of Defendant's friends from his time in the military about
appearing at trial, but they had not been around Defendant for an extended period of time.
Defendant identified several potential character witnesses and Attorney Valsamidis
recalled having conversations with at least two of them. He then explained two of the
witnesses he spoke with had not been in Defendant's company for a "significant period of
time". In addition, Attorney Valsamidis recalled one of those individuals, Hunter Bernard,
left a message for Attorney Valsamidis indicating he was unavailable for trial. Attorney
Valsamidis did not subpoena Mr. Bernard based upon his belief subpoenaing a witness
who is supposed to be favorable but is not cooperative often will not result in favorable
testimony.
Another hearing was scheduled for September 9, 2021, to allow for further
testimony to be presented. On that date, Defendant testified concerning his statement to
Troopers Gustafson and Birckbichler on December 31, 2014. Defendant admitted he lied
to them about possessing the firearm because he feared he would get into trouble for
providing it to Decedent. Following the interview, Defendant was arrested and
ransported to Lawrence County, Pennsylvania. Initially, Defendant was represented by
Lawrence J. Keith, Esquire, and Dennis A
A. Eliseo, Esquire, of the Lawrence County Public
531'10
53D
JUOICIAL
JUDICIAL
Defender's Office; however, Defendant wanted a change of counsel due to not receiving
OISTRICT
DISTRICT
LAWRENCE COUNTY
PENNSYLVANIA
10
responses to his inquiries. The Court then appointed John J. Bongivengo, Esquire, to
represent Defendant, who Defendant never actually met because he privately retained
Attorney Valsamidis. They thoroughly discussed the events of December 28, 2014, which
included Defendant's reasoning for providing the firearm to Decedent. Defendant
indicated he lied about it to the Troopers as Decedent had aa felony conviction and it is
illegal to provide a firearm to a convicted felon. Defendant also indicated Attorney
Valsamidis was aware of his description concerning the location of the shed he and
Decedent broke into and from which they stole marijuana.
According to Defendant, he and Attorney Valsamidis never discussed hiring aa
private investigator or about cell phone technology. Conversely, they spoke about
potential character witnesses and, according to Defendant, he provided Attorney
Valsamidis with the names Hunter Bernard, Coralyn Thompson and Edward Crawford, II.
Defendant stated those individuals were willing to testify on his behalf as character
witnesses.
Another hearing was held on November 1, 2021, to permit Defendant to present
the testimony of two of his proposed character witnesses, Edward Crawford, II,
11, and
Coralyn Thompson. Mr. Crawford testified he has never been convicted of aa felony or
any crime of dishonesty. He is familiar with Defendant as they previously worked together
at Ringer Screen Print in approximately 2013. Their families were friends and Defendant
used to "hang out" at his house when they were younger. Mr. Crawford and Defendant
would often socialize after work until Defendant was arrested for Decedent's homicide.
Eventually, Defendant's mother, Anna Dixon, contacted Mr. Crawford to ask him to testify
53RD
JUDICIAL on Defendant's behalf as a character witness, but he did not recall receiving a telephone
DISTRICT
LAWRENCE COUNTY
,-CNNSYLVANIA
PENNSYLVANIA
11
call from Attorney Valsamidis. Mr. Crawford testified he was ready, willing and able to
testify to Defendant's good character at trial. However, Mr. Crawford was never
subpoenaed by Attorney Valsamidis to appear at trial. On cross-examination, Mr.
Crawford stated he probably would not have traveled here to testify at trial as "this is all
nervous to me, I guess, you know, nerve wracking ...
..."" He also explained he would have
been upset if he were compelled to testify at trial. Mr. Crawford indicated he was in
Defendant's presence when he used and sold marijuana.
Ms. Thompson also testified at that hearing and explained she has been aa friend
of Defendant since Defendant was in the first grade. The last time she saw Defendant
was in 2013 at her brother's funeral, but they kept in touch through regular
communications via the telephone. They lost touch briefly then Defendant began
contacting her by telephone during his incarceration. As trial was approaching, Defendant
and Ms. Dixon asked Ms. Thompson if she would be willing to be aa character witness for
Defendant. Attorney Valsamidis did not contact Ms. Thompson concerning her
willingness to testify at trial. Ms. Thompson indicated she has not been convicted of any
felonies or crimes of dishonesty. She stated she was ready.
ready, willing and able to testify on
Defendant's behalf as a character witness. On cross-examination, Ms. Thompson
testified she did not appear at trial because she was not compelled to do so but would
have attended if she received a subpoena. She also indicated she knew Defendant was
a marijuana user but did not know he dealt marijuana.
The Court is required to examine Defendant's various claims pertaining to his trial
counsel's ineffectiveness.
53RD
.JUDICIAL
JUDICIAL
DISTRICT
LAWRENCE COUNTY
PENNSYLVANIA
12
To establish a claim for ineffective assistance of counsel, a defendant must prove
each of the following: "1) an underlying claim of arguable merit; 2) no reasonable basis
for counsel's act or omission; and 3) prejudice as a result, that is, a reasonable
probability that but for counsel's act or omission, the outcome of the proceeding would
have been different." Commonwealth y.
v. Cooper, 941 A.2d 655, 664 (Pa. 2007) (citing
655,664
Commonwealth v. Carpenter, 555 Pa. 434, 725 A.2d 154, 161 (1999)). Counsel is
presumed to be effective and the burden is on the defendant to prove otherwise.
Commonwealth v. Jones, 942 A.2d 903,
903,906
906 (Pa. Super. 2008) (citing Commonwealth
v. Pond, 846 A.2d 699 (Pa. Super. 2004)). "A failure to satisfy any prong of the test for
ineffectiveness will require rejection of the claim." Commonwealth v. Sneed, 587 Pa.
318, 899 A.2d 1067 (2006) (citing Commonwealth v. (Michael) Pierce, 567 Pa. 186, 786
A.2d 203, 221·223 v. Albrecht, 554 Pa. 31, 720A.2d
221-223 (2001); Commonwealth y.Albrecht, 720 A.2d 693, 701
(1998)).
Counsel is effective if the Court can determine that the course of action has some
reasonable basis designed to effectuate the client's interest. Commonwealth y.
v. Sisco,
482 Pa. 459, 462, 393 A.2d 1197, 1199 (1978). The test for ineffective assistance of
counsel sets forth that the defendant must prove each of the following: (1) counsel's
performance was deficient and (2) the deficient performance prejudiced the defense.
Commonwealth v. Bolden, 512 Pa. 468, 517 A.2d 935 (1986) (quoting Strickland,
supra.). The prejudice requires the defendant show that, but for his counsel's
ineffectiveness, the result would have been different. Commonwealth v. Pierce, 515 Pa.
153, 161, 527 A.2d 973, 976 (1987). It must be noted that there is a presumption that
53RD
JUDICIAL counsel was effective. Id,
Id., 515 Pa. at 159, 527 A.2d at 975.
DISTRICT
LAWRENCE:
LAWRENCE COUNTY
PENNSYLVANIA
13
First, Defendant asserted his trial counsel was ineffective for failing to call
character witnesses to testify at trial.
Trial counsel's failure to call character witnesses may constitute ineffective
assistance of counsel. Commonwealth v. Hull, 982 A.2d 1020, 1023 (Pa. Super. 2009)
(citing Commonwealth v. Harris, 785 A2d
A.2d 998 (Pa. Super. 2001)).
2001 )). First, the defendant
1) the witness existed; (2) the witness was available to testify for the
"(1)
must prove: "(
defense; (3) counsel knew or should have known of the existence of the witness; (4) the
witness was willing to testify for the defense; and (5) the absence of the witness's
testimony was so prejudicial as to have denied him a fair trial." Commonwealth v.
Mclaurin, 45 A.3d 1131, 1137 (Pa. Super. 2012) (quoting Commonwealth v. Walls, 993
A.2d 289, 302 (Pa. Super. 2010)). At an evidentiary hearing for the defendant's claim of
ineffectiveness, he or she must provide evidence, such as an affidavit, that the alleged
witness was available to testify and is willing to cooperate with the defense. Id. (quoting
Commonwealth v. Khalil, 806 A.2d 415, 422 (Pa. Super. 2002)). If the defendant is able
415,422
to demonstrate the witness is willing to testify, the Court must apply a reasonable basis
test to determine if counsel's chosen course was designed to effectuate the client's
kl "If [the Court] conclude[s] that tthe
interests. ld. he particular course chosen by counsel
had some reasonable basis, our inquiry ceases and counsel's assistance is deemed
v. Weiss, 530 Pa. 1, 5-6, 606 A.2d 439, 441-442 (1992)
effective." Commonwealth y.
(citing Commonwealth ex rel. Washington y Maroney, 427 Pa. 599, 235 A.2d 349v.Maroney,
(1967)). "If we determine that there was no reasonable basis for counsel's
counsers chosen
urse then the accused must demonstrate that counsel's ineffectiveness worked to his
53RD
JUDICIAL prejudice." Weiss, 530 Pa. at 6, 606 A.2d at 442 (citing Pierce, 527 A.2d 973). It is
DISTRICT
LAWRENCE COUNTY
PENNSYLVANIA
14
important to note that the defendant bears the burden of demonstrating his trial counsel
was ineffective as there is a presumption that counsel was effective. kl
ht. (citing
Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985)).
In the current case, Attorney Valsamidis testified Defendant provided him with
two individuals who were potential character witnesses, which included Mr. Bernard. He
attempted to contact those witnesses about their willingness to testify on Defendant's
behalf at trial but was unable to speak with them. Moreover, Mr. Bernard left a message
stating he was unwilling to voluntarily testify on Defendant's behalf. In Attorney
Valsamidis's professional opinion, it would have been potentially detrimental to compel
a character witness to testify at trial.
Defendant presented the testimony of two prospective character witnesses he
wanted to testify at trial, Mr. Crawford and Ms. Thompson. While Mr. Crawford was
willing to attest to Defendant's good character and peaceful nature, he expressed a
reluctance to testify at trial as he considered it "nerve wracking". In addition, he stated
Defendant was a marijuana user and dealer, who performed both of those acts in Mr.
Crawford's presence. Mr. Crawford was never asked about Defendant's reputation in
the local community in regards to his character.
As it relates to Ms. Thompson, she expressed her complete willingness to testify
on Defendant's behalf as a character witness without hesitation stating, "He's a great
human being". Despite having been self-described lifelong friends with Defendant, she
has not spent significant time in the company of the Defendant prior to his incarceration
nor has she spent much time in the local community in Ashtabula, Ohio. Ms. Thompson
53RD
JUDICIAL graduated high school in 2004 and moved to Indiana for college. She returned to the
DisrRICT
DISTRICT
LAWRENCE COUNTY
PENNSYI..VANJA
PENNsYLVAN!A
15
Ashtabula, Ohio, area briefly in 2007 before moving to her current location of Colorado
Springs, Colorado, in 2008. She had not been in Defendant's presence since seeing
him at her brother's funeral in 2013. They did not communicate frequently thereafter
until Defendant was arrested on the current charges and he began contacting her by
telephone. It would be difficult for Ms. Thompson to testify convincingly about his
character or reputation as she has not spent much time around him and there were long
periods of time they did not regularly communicate with each other.
Based upon the testimony of record, there is no indication Attorney Valsamidis was
aware of Ms. Thompson's willingness to testify at trial and the only witness he clearly was
aware of, Mr. Bernard, did not show an interest in testifying on Defendant's behalf.
Moreover, Mr. Crawford displayed a distinct hesitancy to testify at trial as stated in his
testimony concerning Defendant's PCRA Petition. Attorney Valsamidis exercised his
professional judgment as a seasoned criminal defense attorney to advise Defendant
presenting character witnesses at trial would not be in his best interest.
Additionally, there is nothing of record to indicate the testimony of Mr. Crawford or
Ms. Thompson would have remedied many of the issues Defendant faced at trial, such
as the false statement to the Troopers about being in possession of a firearm. In fact,
Defendant admitted in his testimony he lied to the Troopers about the firearm as he feared
legal repercussions for providing a firearm to a convicted felon. Similarly, Defendant
admitted he was a marijuana user and regularly sold marijuana. Furthermore, there is
nothing the aforementioned witnesses could have told the jury to alleviate the harm
aused by testimony relating to Defendant's less than honorable discharge from the
53RO
53R0
JUDICIAL.
JUDICIAL Marines, the incident at his mother's residence involving threatening another person with
DISTRICT
LAWRENCE COUNTY
PENNSYLVANIA
16
the .25 caliber pistol or the tattoo on his lip of the word "Kill". As such, Defendant failed
to demonstrate he was prejudiced by Attorney Valsamidis's failure to call character
witnesses on his behalf at trial.
Next, Defendant contended his trial counsel was ineffective for failing to properly
investigate an alibi defense, file a notice of alibi defense and request the Court provide
the jury with an alibi instruction.
An unexplained failure to request an alibi jury instruction after presenting alibi
evidence demonstrates ineffective assistance of counsel. Commonwealth y_
v. Nauman,
498 A.2d 913, 916 (Pa. Super. 1985). An alibi defense "places the defendant at the
relevant time in a different place than the scene involved and so removed therefrom as to
render it impossible for him to be the guilty party." Commonwealth v. Dennis, 17 A.3d
297, 302 (Pa. 2011). "All that is required is that, due to separation, it is impossible for the
defendant to have committed the crime." Id. If a defendant resorts to an alibi defense,
the evidence must show it was impossible for the defendant to be present at the
commission of the crime. Commonwealth v. Saldutte, 7 A.2d 121, 123 (Pa. Super. 1939).
"An alibi which leaves it possible for the accused to be guilty, is no alibi at all."
y.Larue,
Commonwealth v. Larue, 44 A.2d 535, 536 (Pa. Super. 1945). In order to create an alibi
defense there must be consistency between the date and time of the crime and that of
defendant's alibi. Commonwealth y.
v. Ali, 10 A.3d 282, 316 (Pa. 2010) (The Court denied
the appellant's claim of ineffective assistance of counsel for failing to present alleged alibi
witness's statement as it was inadmissible hearsay and did not support an alibi because
it failed to account for the appellant's whereabouts during all times at which the murder
53RD
JUDICIAL could have occurred).
DISTRICT
LAWRENCE COUNTY
PENNSYLVANIA
RENN$YLVANIA
17
In the current case, Attorney Valsamidis testified he did not file a notice of alibi
defense and did not request an alibi instruction for the jury because Defendant's testimony
indicated he was with Decedent on the day of the homicide and was in the basement of
Defendant's residence. Defendant, by his own admission, left Decedent's residence at
approximately 4:00 p.m. and returned to Ashtabula around 5:30 or 6:00 p.m. The
timeframe set forth by Defendant's testimony does not render it impossible for him to have
been present when Decedent was killed. His testimony does not constitute an alibi
defense and an alibi defense instruction would not have been appropriate at trial. Hence,
Attorney Valsamidis was not ineffective for failing to file a notice of alibi defense and for
failing to request an alibi jury instruction.
Defendant also asserted his trial counsel was ineffective when he conceded twice
during his closing argument the Decedent's death occurred between 3:30 p.m. and 6:30
p.m. Attorney Valsamidis believed that statement was helpful in establishing the defense
presented at trial as Defendant indicated the perpetrators followed him toward Ashtabula
where they disposed of Decedent's cell phone. This would be consistent with those
individuals having committed the homicide prior to following Defendant, which is in
accordance with the timeframe referenced by Attorney Valsamidis. Thus, Attorney
Valsamidis had a reasonable basis for making those statements in closing argument and
he was not ineffective for doing the same. Moreover, Defendant failed to demonstrate he
was prejudiced by his trial counsel's statement and how omitting that statement would
have resulted in an acquittal.
Next, Defendant contended trial counsel was ineffective for failing to file a motion
53RD
JUDICIAL in limine or object at trial to the Commonwealth asking about and then showing
DISTRICT
LAWRENCE COUNTY
PENNSYLVANIA
18
Defendant's lip tattoo which read "KILL", testimony concerning a post on Defendant's
Twitter page which stated, "One day I'm finally going to be calm and I'll be surrounded by
shell casings" and evidence of a prior incident at Defendant's mother's house in which
Defendant brandished the .25 caliber pistol due to another individual destroying a
bedroom.
Evidence of crimes or other acts are inadmissible to prove a person's character in
order to show the person acted in accordance with that character trait. Pa.R.E.
Pa.RE. 404(b)(1 ).
404(b)(1).
However, that evidence is admissible for another purpose such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or Jack
lack of
Pa.R.E. 404(b)(2). The aforementioned list is not exclusive as it relates to
accident. Pa.RE.
legitimate purposes for admitting evidence of crimes or other acts. Commonwealth v.
Brown, 52 A.3d 320, 325 (Pa. Super. 2012). The Pennsylvania Courts also have
recognized that evidence may be used when there is a logical connection between the
crimes that proof of one will naturally tend to show the accused committed the other. Id,
Id.,A. 3d at 326. Similarly, that type of evidence may be admitted to impeach a defendant's
52 A.3d
credibility as the defendant is not insulated from being discredited merely because the
proof involves other crimes or bad acts. Commonwealth y.Hood,
v. Hood, 872 A.2d 175, 185 (Pa.
v. Nypaver, 69 A.3d 708, 716-717 (Pa. Super. 2013).
Super. 2005); Commonwealth v.Nypaver,
The Commonwealth questioned Defendant concerning his Twitter post containing
the quote "One day I'm finally going to be calm and I'll be surrounded by shell casings"
and referred to the "Kill" tattoo on his lip to impeach his testimony in which he referred to
himself as a "hippie" who collects vinyl and smokes weed. He also indicated he is a
53RD
JUDICIAL peaceful and loving person. While that evidence would not ordinarily be admissible to
DISTRICT
LAWRENCE COUNTY
Pl!NNSYLVANIA
PENNSYLVANIA
19
demonstrate he had a propensity for violence, it was available to impeach his testimony
when he declared he had a peaceful nature in the form of characterizing himself as a
"hippie".
"hippie" It must be noted Attorney Valsamidis requested a sidebar prior to the admission
of that evidence to obtain an offer of proof. The Commonwealth explained it was being
used for impeachment purposes. As a result of the Commonwealth presenting this
evidence for the legitimate purpose of impeaching Defendant's testimony relating to his
peaceful nature, Attorney Valsamidis acted reasonably in failing to object as that evidence
was admissible.
Attorney Valsamidis also acted reasonably in failing to object to evidence
pertaining to the incident in which an individual was destroying Defendant's mother's
bedroom and Defendant brandished a .25 caliber pistol to deter that behavior. At the time
it was presented, the Commonwealth did not know whether Defendant was going to testify
at trial and it was required to demonstrate Defendant possessed a firearm, especially in
light of his statement to the Troopers denying possession of a firearm. Again, the
Commonwealth used this evidence to impeach the credibility of the statement provided
by Defendant and his possession of the firearm was relevant to his ability to commit the
crime at issue. The Court provided an instruction to the jury stating that evidence was
admitted for a limited purpose tending to show motive, opportunity, intent, preparation,
plan, knowledge, identity and absence of mistake or accident. The Court clearly informed
the jury that evidence was not to be interpreted as showing Defendant is a person of bad
character or has criminal tendencies from which they would be inclined to infer guilt.
Hence, Attorney Valsamidis was not ineffective for failing to object to that evidence.
53RD
53D
JUDICIAL
DISTRICT
LAWRENCE COUNTY
PENNSYLVANIA
20
Defendant argued his trial counsel was ineffective for failure to hire an
investigator to explore various issues crucial to preparing and presenting a defense at
trial. However, trial counsel is under no duty to hire an investigator where the defendant
fails to demonstrate the investigator would have affected the outcome of the trial, which
renders this claim without merit. See Commonwealth v. Murray, 488 A.2d 45, 47 (Pa.
Super. 1985).
In the current matter, Defendant contends a private investigator could have been
useful in locating the grow shed where Defendant and Decedent removed the marijuana
prior to Decedent's death. However, Defendant was unable to provide an adequate
explanation of the location of the grow shed to Attorney Valsamidis causing him concern
as to whether the shed would be located by an investigator. It also raised concerns the
Commonwealth would become aware Defendant could not recall the location of the
grow shed, which would be utilized to call into question his version of events from that
day. Defendant believes a private investigator could have located associates of Ms.
Magno along with her criminal history. Unfortunately, Defendant failed to demonstrate
how that information would have been helpful in presenting a defense at trial.
Moreover, an investigation into Ms. Magno and her associates did not correlate with
Defendant's version of events which point to the individuals in the vehicle who followed
him to Ashtabula being the perpetrators. Thus, Defendant's claim for ineffective
assistance of counsel concerning the failure to retain a private investigator was denied.
Next, Defendant argued his trial counsel was ineffective for failing to admit and
publish to the jury a photograph taken by Decedent's girlfriend of Decedent's body and
53RD
JUDICIAL the voicemail Defendant left for Decedent when he arrived in Ashtabula, Ohio.
DISTRICT
LAWRENCE COUNTY
PENNSYLVANIA
21
Upon questioning by Defendant's counsel, Attorney Valsamidis was unable to
recall whether the photograph of Decedent's body was admitted into evidence and
published to the jury at Defendant's trial. There is nothing to indicate the omission of
that photograph prejudiced Defendant in any way. Ms. Magno taking a picture of
Decedent's body does not make Defendant's guilt more or less likely. The jury was well
aware Ms. Magno went to Decedent's residence after not receiving a response to her
text messages and telephone calls and she went inside of the residence because the
door was unlocked. The jury also heard testimony Ms. Magno called Mr. Roupp, who
arrived at the residence shortly thereafter and discovered Decedent's body in the
basement. In addition, Ms. Magno placed the phone call reporting Decedent's death. It
in no way exonerates Defendant merely because Ms. Magno took a photograph of
Decedent's body with her cell phone. In fact, the jury was aware of Ms. Magno's
strange behavior as she admitted to taking the photograph during her testimony at trial.
Hence, Defendant has not established he was prejudiced in any manner due to trial
counsel's failure to admit and publish the photograph of Decedent's body taken by Ms.
Magno.
Attorney Valsamidis acknowledged he did not play the voicemail message
Defendant left on Decedent's cell phone as he was not even sure he had a recording of
it. However, Attorney Valsamidis felt the voicemail having not been played for the jury
furthered a portion of the defense based upon the "sloppiness" of the Commonwealth's
investigation demonstrating investigators "not having crossed all their T's and dotted
their l's". Attorney Valsamidis explained the records he received concerning
53RD
53R0
JUDICIAL Defendant's cell phone correlated with Defendant's testimony regarding calls he made
DISTRICT
LAWRENCE COUNTY
PENNSYLVANIA
22
to Decedent and their duration. It was a reasonable strategy for Attorney Valsamidis to
forego seeking the voicemail recording as its absence pointed to a lack of thoroughness
to the investigation while Defendant's phone records support Defendant's testimony
relating to the calls he made to Decedent. Additionally, the audio on the voicemail could
have been interpreted by the jury as being self-serving and the jury merely being aware
the call was made was sufficient for assisting to establish the defense presented at trial.
There is nothing in the record to indicate playing a recording of the voicemail from
Defendant to Decedent would have made a significant impact on the decision rendered
by the jury as they were aware Defendant placed the call to Decedent. Hence, Attorney
Valsamidis was not ineffective for failing to play the voicemail from Defendant to
Decedent.
Defendant claims Attorney Valsamidis testified at the proceedings for Defendant's
PCRA Petition concerning a false narrative that Defendant informed him the owners of
the shed he and the victim robbed killed the victim and followed Defendant to Ashtabula,
Ohio. The Court finds Attorney Valsamidis's testimony as it relates to his discussions with
Defendant pertaining to the vehicle following Defendant to Ashtabula to be credible based
upon the testimony and evidence of record. The defense presented at trial was predicated
upon the involvement of the owners of the shed and the victim's death was an act of
retribution for Defendant and the victim robbing the shed. Defendant was well aware of
that defense at trial and he perpetuated the same through his testimony in which he
explained he provided the victim with the .25 caliber pistol to be used as protection from
the owners of the shed. In his Final Memorandum in Support of PCRA, Defendant
53RD
JUDICIAL
contends Attorney Valsamidis was ineffective for failing to hire an investigator to make
DISTRICT
DIsTRICT
LAWRENCE COUNTY
PENNSYLVANIA
PENN9YLANtA
23
further inquiries into the owners of the shed as it was the defense's theory at trial those
were the individuals who killed the victim with the .25 caliber pistol Defendant provided to
the victim. It was not until after the Court denied Defendant's PCRA Petition and he filed
his Concise Statement of Errors did Defendant claim Attorney Valsamidis raised a false
narrative about the owners of the shed occupying the vehicle which followed him to
Ashtabula, Ohio. Hence, the Court cannot find any basis to grant the relief requested by
Defendant based upon his assertion Attorney Valsamidis fabricated the narrative
concerning the owners of the shed following him to Ashtabula.
Based upon the foregoing, Defendant Appeal should be denied in its entirety.
U")
Lo
c
C
£
53RD
3RD
JUDICIAL
DISTRICT
LAWRENCE COUNTY
PENNSVL'\IA.NlA
PENNSYLVANtA
24