Com. v. Kinnard, R., II ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD W. KINNARD, II :
:
Appellant : No. 857 MDA 2022
Appeal from the PCRA Order Entered May 9, 2022
In the Court of Common Pleas of Lebanon County Criminal Division at
No(s): CP-38-CR-0000443-2016
BEFORE: BOWES, J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY NICHOLS, J.: FILED: OCTOBER 23, 2023
Appellant Richard W. Kinnard, II appeals from the order denying his
timely first Post Conviction Relief Act1 (PCRA) petition. Appellant raises
numerous ineffectiveness claims against trial counsel and prior PCRA counsel
and also challenges the trial court’s refusal to give a requested jury instruction
and the PCRA court’s denial of his request for a continuance. We affirm.
The underlying facts of this matter are well known to the parties. See
Commonwealth v. Kinnard, 1296 MDA 2017, 2018 WL 4560454, at *1-2
(Pa. Super. filed Sept. 24, 2018) (unpublished mem.). Briefly, on the night
of September 18 to September 19, 2015, Appellant, Michael Rivera, and
several others were drinking at a house in York, Pennsylvania. Rivera added
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
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MDMA (a.k.a. “Molly”) to a bottle of alcohol. Appellant did not see Rivera do
this, and Appellant subsequently drank a shot from that bottle. Appellant’s
group then went to Vinny’s Good Time Night Club (Vinny’s) in Lebanon,
Pennsylvania to continue drinking.
Later that evening, Corey Bryan, a security guard, expelled Appellant
and another man from Vinny’s. Appellant returned to Vinny’s a short time
later and several gunshots rang out. Bryan was hit by three bullets and killed.
Another bullet wounded a patron inside Vinny’s who survived her injuries. The
Commonwealth charged Appellant with first-degree murder, third-degree
murder, two counts of aggravated assault, possession of firearm prohibited,
receiving stolen property, discharge of a firearm into an occupied structure,
flight to avoid apprehension, recklessly endangering another person, and five
counts of conspiracy.2
At trial, psychiatrist Jerome Gottlieb, M.D., testified as an expert
regarding the effects of a combination of alcohol and MDMA/Molly. N.T. Trial,
2/10/17, at 600-08. Specifically, Dr. Gottlieb explained that MDMA/Molly is a
synthetic street drug that has strong stimulant properties and a mild
hallucinogenic effect, which lasts approximately four hours. Id. at 601, 606.
He further stated that “if an individual is taking Molly and alcohol, they are
taking two drugs which effectively disinhibits them. If they have a tendency
towards aggression or violence or impulsivity, those are going to be greatly
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2 18 Pa.C.S. §§ 2502(a), 2502(c), 2702(a)(1), 2702(a)(4), 6105(a)(1),
3925(a), 2707.1(a), 5126(a), 2705, and 903, respectively.
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magnified by this combination of drugs.” Id. at 603. Dr. Gottlieb did not
personally examine Appellant or review any toxicology or blood test results
for Appellant. Id. at 603-04. Nicholas Sidelnick, Esq., and Elizabeth Judd,
Esq., (collectively, “trial counsel”) represented Appellant at trial and on direct
appeal.
Appellant requested permission from the trial court to present defenses
based on voluntary intoxication and involuntary intoxication. On February 13,
2017, the trial court denied Appellant’s request to present involuntary
intoxication defense. Trial Ct. Op. & Order, 2/13/17, at 1, 9-15. The trial
court ruled that Appellant could present a voluntary intoxication as a
diminished capacity defense and stated: “So long as his attorney does not
argue that [Appellant] is innocent in his closing statement, [Appellant] shall
be entitled to an instruction on voluntary intoxication and shall be permitted
to argue the concept to the jury in his closing argument.” Id. at 2; see also
N.T. Trial, 2/13/17, at 666-67. During closing arguments, trial counsel
explicitly stated that Appellant was not presenting a voluntary intoxication
defense and instead argued that Appellant did not commit the murder. N.T.
Trial, 2/13/17, at 672-73. The jury subsequently convicted Appellant of all
charges.
On March 22, 2017, the trial court imposed an aggregate sentence of
life imprisonment without the possibility of parole. On direct appeal, this Court
affirmed the judgment of sentence, and our Supreme Court denied Appellant’s
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petition for allowance of appeal on March 12, 2019. See Kinnard, 2018 WL
4560454, appeal denied, 204 A.3d 362 (Pa. 2019).
On January 22, 2020, Appellant filed a timely pro se first PCRA petition.
The PCRA court appointed Matthew Karinch, Esq., (prior PCRA counsel) to
represent Appellant. Attorney Karinch subsequently filed an amended PCRA
petition raising several claims of ineffective assistance of trial counsel. On
March 11, 2022, the PCRA court held an evidentiary hearing at which
Appellant, Attorney Sidelnick, and Attorney Judd testified.
On May 9, 2022, the PCRA court entered an order denying Appellant’s
PCRA petition. On May 24, 2022, Appellant filed a motion to proceed pro se.
Prior PCRA counsel filed a timely notice of appeal, a court-ordered Rule
1925(b) statement, and a petition for leave to withdraw as counsel in June
2022. The PCRA court scheduled a Grazier3 hearing for September 27, 2022.
On July 5, 2022, Appellant filed a pro se motion for extension of time to
file a Rule 1925(b) statement. On July 14, 2022, the PCRA court entered an
order granting that pro se motion, stating the PCRA court would accept a pro
se Rule 1925(b) statement filed on or before September 1, 2022, and directing
prior PCRA counsel to assist Appellant in drafting the statement. See PCRA
Ct. Order, 7/14/22, at 2-3 (unpaginated). Appellant filed a pro se Rule
1925(b) statement on August 29, 2022, in which he raised, for the first time,
several claims of ineffective assistance of prior PCRA counsel. The PCRA court
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3 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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issued a Rule 1925(a) opinion on September 14, 2022, which addressed the
issues Appellant raised in his pro se Rule 1925(b) statement and adopted the
reasoning of its May 9, 2022 order. See PCRA Ct. Op., 9/14/22.
The PCRA court held a Grazier hearing September 27, 2022, in which
Appellant indicated that he desired counseled representation to pursue his
PCRA claims.4 After the Grazier hearing, the PCRA court vacated Attorney
Karinch’s appointment as Appellant’s counsel and appointed present counsel
to represent Appellant on appeal. PCRA Ct. Order, 9/27/22, at 1-2
(unpaginated). The PCRA court did not order present counsel to file a
supplemental Rule 1925(b) statement nunc pro tunc and present counsel did
not request permission to file one.
On appeal, Appellant raises eleven issues,5 which we reorder as follows:
1. Did the trial court err in ruling that trial counsel was not
permitted to offer a defense of involuntary intoxication?
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4 The transcript of the September 27, 2022 Grazier hearing is not included in
certified record. However, because Appellant is not challenging the PCRA
court’s ruling in the Grazier hearing, the absence of the transcript does not
impede our review.
5 We refer to the oft-cited quote from the late Judge Aldisert of the Third
Circuit:
With a decade and a half of federal appellate court experience
behind me, I can say that even when we reverse a trial court, it is
rare that a brief successfully demonstrates that the trial court
committed more than one or two reversible errors. . . . When I
read an appellant’s brief that contains ten or twelve points, a
presumption arises that there is no merit to any of them. I do not
(Footnote Continued Next Page)
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2. Did the [PCRA] court err in ruling that trial counsel was not
ineffective for failing to question Dr. Gottl[ie]b about the
symptoms or actions that other witnesses testified that
Appellant was exhibiting on the night of the alleged crimes
and whether such symptoms or actions would show him to be
under the influence of intoxicating substances that could have
left him with a diminished capacity?
3. Did the [PCRA] court err in ruling that trial counsel was not
ineffective for failing to pursue a claim of diminished capacity
based upon voluntary intoxication, which could have reduced
Appellant’s first-degree murder conviction to third-degree
murder?
4. Did the [PCRA] court err in ruling that trial counsel was not
ineffective for failing to request a limiting instruction
regarding Appellant’s prior criminal record?
5. Was [prior] PCRA counsel ineffective in failing to have
Appellant examined by Dr. Gottl[ie]b or another toxicology
expert in support of his involuntary intoxication defense?
6. Did the [PCRA] court err in failing to continue Appellant’s
PCRA hearing so that Appellant could meet with Dr. Gottl[ie]b
or another toxicology expert?
7. Was [prior] PCRA counsel ineffective in failing to argue that
trial counsel was ineffective for failing to challenge the
constitutionality of 18 Pa.C.S. § 1102(a) as void pursuant to
the federal due process void for vagueness doctrine?
8. Was [prior] PCRA counsel ineffective in failing to argue that
trial counsel was ineffective for failing to argue that 18
Pa.C.S. § 1102(a) has been repealed by implication under
Hudson v. Pennsylvania Board of Probation & Parole,
204 A.[3]d 392 (Pa. 2019)?
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say that this is an irrebuttable presumption, but it is a
presumption nevertheless that reduces the effectiveness of
appellate advocacy. Appellate advocacy is measured by
effectiveness, not loquaciousness.
Commonwealth v. Lutes, 793 A.2d 949, 955 n.1 (Pa. Super. 2002)
(citations omitted).
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9. Was [prior] PCRA counsel ineffective in failing to argue that
trial counsel was ineffective in failing to argue that the
evidence was insufficient to support a conviction under 18
Pa.C.S. § 2707.1 pursuant to Commonwealth v. McCoy,
962 A.2d 1160 (Pa. 2009) and its progeny?
10. Was [prior] PCRA counsel ineffective in failing to argue that
trial counsel was ineffective for failing to object to the
violation of the sequestration order when Detective Keith
Uhrich testified four times after hearing the testimony of
other witnesses on the same subject?
11. Was [prior] PCRA counsel ineffective in failing to argue that
trial counsel was ineffective for failing to request a jury
instruction on manslaughter?
Appellant’s Brief at 5-7 (some formatting altered).6
Waived Claims
In his first issue, Appellant argues that the trial court erred by not
instructing the jury on the defense of involuntary intoxication. Appellant’s
Brief at 25-26. In his second issue, Appellant contends that trial counsel was
ineffective in her examination of Dr. Gottlieb. Id. at 28-30.
Before we address the merits of these claims, we must determine
whether Appellant has preserved them for appeal. This Court may raise this
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6 We note that in his counseled Rule 1925(b) statement, Appellant also
claimed that trial counsel was ineffective for waiving Appellant’s preliminary
hearing. See Rule 1925(b) Statement, 6/27/22, at 1 (unpaginated).
Additionally, Appellant argues that prior PCRA counsel was ineffective during
the PCRA evidentiary hearing because he failed to ask trial counsel if they
requested that Dr. Gottlieb examine Appellant prior to trial. See Appellant’s
Brief at 36-37. However, Appellant did not include these claims in his
statement of questions involved. See Pa.R.A.P. 2116(a) (stating that “[n]o
question will be considered unless it is stated in the statement of questions
involved or is fairly suggested thereby”). Therefore, we conclude that these
claims are waived. See id.; see also Commonwealth v. Hodge, 144 A.3d
170, 172 n.4 (Pa. Super. 2016).
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issue of waiver sua sponte. See Commonwealth v. Wholaver, 903 A.2d
1178, 1184 (Pa. 2006). “[T]he applicability of waiver principles . . . is a
question of law, over which our standard of review is de novo and our scope
of review is plenary.” Commonwealth v. Barbour, 189 A.3d 944, 954 (Pa.
2018) (citations omitted).
“Issues not raised before the trial court are waived and cannot be raised
for the first time on appeal.” Pa.R.A.P. 302(a); see also Commonwealth v.
Reid, 259 A.3d 395, 413-14 (Pa. 2021) (concluding that an issue that was
not raised in the defendant’s PCRA petition was waived).
Our review of the record indicates that Appellant did not raise either of
these issues in his amended PCRA petition. Therefore, they are waived. See
Reid, 259 A.3d at 413-14; Pa.R.A.P. 302(a).
Trial Counsel’s Ineffectiveness
Diminished Capacity Defense
In his third issue, Appellant argues that trial counsel was ineffective for
failing to present a defense of diminished capacity based on voluntary
intoxication. Appellant’s Brief at 21-25. Appellant contends that his trial
strategy was based on the defenses of diminished capacity due to voluntary
intoxication and involuntary intoxication. Id. at 23. Appellant asserts that he
never discussed pursuing a defense of actual innocence with trial counsel. Id.
at 24. Appellant notes that the PCRA court recognized that if trial counsel had
presented a diminished capacity defense, Appellant had “a better opportunity
to receive a verdict of third-degree murder instead of first-degree murder.”
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Id. (quoting PCRA Ct. Order, 5/6/22, at 5) (formatting altered). Appellant
concludes that trial counsel lacked a reasonable basis for pursuing an actual
innocence defense instead of a diminished capacity defense, and that
Appellant was prejudiced as a result.
Our standard of review from the denial of a PCRA petition “is limited to
examining whether the PCRA court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
Sandusky, 203 A.3d 1033, 1043 (Pa. Super. 2019) (citation omitted). This
Court applies a de novo standard of review to the PCRA court’s legal
conclusions. Commonwealth v. Hutchinson, 25 A.3d 277, 284 (Pa. 2011).
A PCRA court’s credibility determinations, however, are binding on this Court
when such determinations are supported by the record. Id.; see also
Commonwealth v. Davis, 262 A.3d 589, 595 (Pa. Super. 2021) (stating that
“[t]his Court grants great deference to the findings of the PCRA court if the
record contains any support for those findings” (citation omitted)).
[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 a reasonable probability that the outcome of the
proceedings would have been different.
We have explained that a claim has arguable merit where the
factual averments, if accurate, could establish cause for relief.
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Whether the facts rise to the level of arguable merit is a legal
determination.
The test for deciding whether counsel had a reasonable basis for
his [or her] 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 [or her] client’s interests. We do not employ a
hindsight analysis in comparing trial counsel’s actions with other
efforts he may have taken.
Prejudice is established if there is a reasonable probability that,
but for counsel’s errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.
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. Moreover, a failure to satisfy
any prong of the ineffectiveness test requires rejection of the
claim of ineffectiveness.
Sandusky, 203 A.3d at 1043-44 (citations omitted and formatting altered).
“Under the traditional ineffectiveness test, the threshold inquiry in
ineffectiveness claims is whether the issue/argument/tactic which counsel has
foregone and which forms the basis for the assertion of ineffectiveness is of
arguable merit. Counsel cannot be found ineffective for failing to pursue a
baseless or meritless claim.” Davis, 204 A.3d at 596 (citations omitted and
formatting altered).
Our Supreme Court has stated:
A defense of diminished capacity, whether grounded in mental
defect or voluntary intoxication, is an extremely limited defense
available only to those defendants who admit criminal liability but
contest the degree of culpability based upon an inability to
formulate the specific intent to kill. If a defendant does not admit
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that he killed the victim, but rather advances an innocence
defense, then evidence on diminished capacity is inadmissible.
A diminished capacity defense does not exculpate the defendant
from criminal liability entirely, but instead negates the element of
specific intent. For a defendant who proves a diminished capacity
defense, first-degree murder is mitigated to third-degree murder.
To establish a diminished capacity defense, a defendant must
prove that his cognitive abilities of deliberation and premeditation
were so compromised, by mental defect or voluntary intoxication,
that he was unable to formulate the specific intent to kill. . . .
In numerous prior cases before this Court, defendants who had
maintained their innocence during trial have subsequently raised
post-conviction claims of ineffective assistance of trial counsel for
failure to present and/or to investigate a defense of diminished
capacity. We have consistently declined to hold that trial counsel
was ineffective for failing to advance a defense that directly and
irreconcilably conflicted with the accused’s claims of innocence. .
..
Finally, we have held that the authority to concede criminal
liability and to authorize the presentation of a diminished capacity
defense rests solely with the accused.
Hutchinson, 25 A.3d at 312-13 (citations omitted, formatting altered, and
emphasis in original).
Therefore, the Hutchinson Court concluded that because the defendant
“did not admit [to] killing the victim, but rather maintained his innocence, a
diminished capacity defense was not available to him, . . . and trial counsel
will not be held ineffective for failing to present an unavailable defense.” Id.
at 313.
Here, the PCRA court explained:
As it relates to [Appellant’s] argument that trial counsel should
have allowed him to pursue a defense of diminished capacity, we
have considered the following:
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At no time prior to or during trial did [Appellant] agree that his
attorney should employ a diminished capacity defense. In fact,
[trial] counsel recommended the diminished capacity defense and
that recommendation was rejected by [Appellant].
Following the conclusion of trial testimony, the [trial] court
decided that it would instruct the jury regarding the question of
diminished capacity so long as [Appellant] himself did not argue
that someone else was shooter. We issued this ruling because
[trial] counsel very skillfully avoided a claim of actual innocence
during the trial itself. Thus, [Appellant] had actual knowledge[,]
following testimony and prior to closing arguments[,] that he
would be able to employ a diminished capacity defense. Trial
counsel advised [Appellant] that this was an option for him.
[Appellant] specifically instructed trial counsel not to argue
diminished capacity and instead aim for a complete acquittal.
We have little doubt that a diminished capacity argument would
in retrospect have given [Appellant] a better opportunity to
receive a verdict of third-degree murder instead of first-degree
murder. However, trial counsel was bound by the instructions
given by his client and those instructions specifically prohibited
trial counsel from employing a diminished capacity argument.
PCRA Ct. Order, 5/9/22, at 4-5 (footnote omitted and formatting altered); see
also PCRA Ct. Op., 9/14/22, at 5 (concluding that “trial counsel
recommended that [Appellant] pursue a diminished capacity defense.
[Appellant] himself rejected this recommendation” (emphasis in original)).
Based on our review of the record, we conclude that the PCRA court’s
conclusions are supported by the record and free of legal error. See
Sandusky, 203 A.3d at 1043. The PCRA court implicitly credited the
testimony of Attorney Sidelnick and Attorney Judd that they advised Appellant
that he could pursue a diminished capacity defense, Appellant rejected their
advice, and that Appellant instead directed trial counsel to pursue an
innocence defense. See PCRA Ct. Order, 5/9/22, at 4-5. Because the PCRA
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court’s credibility determinations are supported by the record, they are
binding on this Court. See Hutchinson, 25 A.3d at 284. Therefore, Appellant
has failed to establish that trial counsel was ineffective for failing to pursue a
diminished capacity defense, which “directly and irreconcilably conflicted” with
Appellant’s chosen innocence defense. See id. at 312-13 (citations omitted).
For these reasons, Appellant is not entitled to relief on this claim.
Limiting Instruction
In his fourth issue, Appellant argues that both trial counsel were
ineffective because they failed to request that the trial court issue a limiting
instruction regarding Appellant’s prior criminal record. Appellant’s Brief at 26-
27. Appellant notes that trial counsel and the Commonwealth stipulated that
Appellant had a prior conviction which precluded him from possessing a
firearm. Id. at 27. Appellant asserts that trial counsel should have requested
that the trial court instruct the jurors that they could only consider that
stipulation for a limited purpose. Id.
“[W]hen evidence of a defendant’s prior criminal conduct or bad acts is
admitted, the defendant is entitled upon request to a jury instruction
explaining the limited purpose of such evidence.” Hutchinson, 25 A.3d at
305 (citation omitted). This Court has explained that “counsel’s failure to
request a cautionary instruction regarding evidence of other crimes or prior
bad acts does not constitute per se ineffectiveness; rather, in order to obtain
relief under such a claim, a defendant must still satisfy each of the three
prongs of the test for ineffective assistance of counsel.” Commonwealth v.
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Johnson, 179 A.3d 1105, 1119 (Pa. Super. 2018) (citation omitted and
formatting altered). Further, “the decision whether to seek a jury instruction
implicates a matter of trial strategy. . . . [T]rial counsel may reasonably
decline to request a limiting instruction with regard to prior criminal
misconduct where such an instruction might have served to emphasize what
might otherwise have gone relatively unnoticed by the jury.” Id. (citations
and quotation marks omitted); see also Hutchinson, 25 A.3d at 306
(concluding that defense counsel who did not request a limiting instruction
regarding the defendant’s prior bad acts was not ineffective because “[u]nder
these circumstances, an instruction as to the bad acts evidence may very well
have served only to re-emphasize the evidence to the jury”). Additionally,
the Hutchinson Court held that the defendant failed to establish prejudice
resulting from his counsel’s failure to request a limiting instruction. Id.
Instantly, the PCRA court explained:
Trial counsel was wary about undertaking any action that would
repeat, emphasize[,] or call the jury’s attention to [Appellant’s]
inability to possess a firearm. That is why [trial] counsel
stipulated to [Appellant’s] disqualification from possessing
firearms in a way [they] perceived to be as innocuous as possible.
Had the [trial] court given more detailed instructions about
[Appellant’s] disqualification, it would have served to emphasize
the fact of [Appellant’s] disqualification and trial counsel did not
perceive that to be in his client’s best interest.
We have located no Pennsylvania case that has declared that the
stipulation such as the one entered into by [Appellant] in this case
is improper or requires a cautionary instruction.
Even assuming, for the arguendo, that a cautionary instruction of
some sort should have been given, the lack of such instruction
was at most harmless error because the stipulation related to a
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fact that was clearly collateral to the decision that the jury was
asked to make.
PCRA Ct. Order, 5/9/22, at 6 (formatting altered).
Based on our review of the record, we conclude that the PCRA court’s
conclusions are supported by the record and free of legal error. See
Sandusky, 203 A.3d at 1043. Further, Appellant has failed to explain how
trial counsel’s failure to request a limiting instruction affected the outcome of
the trial. See Hutchinson, 25 A.3d at 306; see also Johnson, 179 A.3d
1105, 1119. Because Appellant has failed to develop the prejudice prong of
the ineffective assistance of counsel standard, he is not entitled to relief on
this claim. See Sandusky, 203 A.3d at 1043-44.
Prior PCRA Counsel’s Ineffectiveness
In his fifth issue, Appellant argues that prior PCRA counsel was
ineffective for failing to request that Dr. Gottlieb, or another toxicology expert,
examine Appellant prior to the PCRA evidentiary hearing.7 Appellant’s Brief
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7 We note that Appellant raised the instant claim in a pro se filing while he
was still represented by prior PCRA counsel. It is well-established that
defendants “in criminal cases possess no constitutional right to hybrid
representation, and thus, any pro se [filings] that they may file while
represented by counsel will not be considered.” Commonwealth v. Jette,
23 A.3d 1032, 1036 (Pa. 2011) (citations omitted); see also
Commonwealth v. Willis, 29 A.3d 393, 400 (Pa. Super. 2011) (concluding
that “the [PCRA] court erred in permitting [hybrid] representation during the
disposition of [the defendant’s] PCRA petition”). Therefore, Appellant’s pro se
filings are legal nullities and the PCRA court erred by permitting Appellant to
engage in hybrid representation. Nevertheless, present counsel has adopted
the instant claim in his brief. See Commonwealth v. Mason, 130 A.3d 601,
671 (Pa. 2015) (noting that a court may “acknowledge and give force to a pro
(Footnote Continued Next Page)
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at 36-39. Appellant claims that he subsequently retained Dr. Lawrence
Guzzardi to prepare a preliminary report regarding Dr. Gottlieb’s performance
as an expert witness at trial. Id. at 38; see also id. at Ex. C (Letter from Dr.
Guzzardi to present counsel). Appellant asserts that Dr. Guzzardi’s report
supports his claim that prior PCRA counsel’s failure to obtain an evaluation by
toxicology expert prejudiced Appellant. Id. at 38-39. Appellant requests that
this Court remand this matter to the PCRA court for a new evidentiary hearing.
Initially, it is well settled that “counsel cannot raise his or her own
ineffectiveness[.]” Commonwealth v. Bennett, 930 A.2d 1264, 1274 (Pa.
2007) (citation omitted). In Bradley, our Supreme Court adopted a new rule
allowing PCRA petitioners to “raise claims of ineffective PCRA counsel at the
first opportunity, even if on appeal.” Bradley, 261 A.3d at 405; see also
Commonwealth v. Crumbley, 270 A.3d 1171, 1181 (Pa. Super. 2022)
(explaining that pursuant to Bradley, this Court could address the merits of
the defendant’s claims of PCRA counsel’s ineffectiveness because the
defendant “raised his claims of ineffective PCRA counsel at the first practical
opportunity, albeit on appeal from the denial of his PCRA petition”), appeal
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se filing from a counseled defendant where . . . counsel ultimately adopted it”
(citation omitted)). In any event, claims of ineffective assistance of PCRA
counsel may be raised “at the first opportunity, even if on appeal.”
Commonwealth v. Bradley, 261 A.3d 381, 405 (Pa. 2021). Therefore, even
if we were to treat Appellant’s pro se Rule 1925(b) statement as a legal nullity,
present counsel could raise claims of prior PCRA counsel’s ineffectiveness for
the first time on appeal. For these reasons, we conclude that Appellant has
not waived his claims of prior PCRA counsel’s ineffectiveness and will address
them in the instant appeal.
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denied, 284 A.3d 884 (Pa. 2022). In reaching that conclusion, the Bradley
Court emphasized the need to preserve a petitioner’s right to effective PCRA
counsel. Bradley, 261 A.3d at 405.
The Bradley Court also reaffirmed our Supreme Court’s preference for
evidentiary hearings in PCRA matters, and explained:
In some instances, the record before the appellate court will be
sufficient to allow for disposition of any newly-raised
ineffectiveness claims. However, in other cases, the appellate
court may need to remand to the PCRA court for further
development of the record and for the PCRA court to consider such
claims as an initial matter. Consistent with our prior case law, to
advance a request for remand, a petition would be required to
provide more than mere boilerplate assertions of PCRA counsel’s
ineffectiveness; however, where there are material facts at issue
concerning claims challenging counsel’s stewardship and relief is
not plainly unavailable as a matter of law, the remand should be
afforded.
Id. at 402 (citations and footnote omitted and formatting altered); see also
Commonwealth v. Colavita, 993 A.2d 874, 895 (Pa. 2010) (stating that, as
“a general rule, a lawyer should not be held ineffective without first having an
opportunity to address the accusation in some fashion” and noting the
Supreme Court’s “strong preference that counsel be heard from before being
found ineffective”), abrogated on other grounds by Bradley, 261 A.3d at 401.
“A failure to call a witness is not per se ineffective assistance of counsel
for such decision usually involves matters of trial strategy.” Commonwealth
v. Sneed, 45 A.3d 1096, 1109 (Pa. 2012) (citation and quotation marks
omitted).
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With respect to a claim of ineffective assistance of counsel for failing to
call a potential witness, the defendant must establish that
(1) the witness existed; (2) the witness was available to testify
for the defense; (3) counsel knew, or should have known, of the
existence of the witness; (4) the witness was willing to testify for
the defense; and (5) the absence of the testimony of the witness
was so prejudicial as to have denied the defendant a fair
[hearing].
Commonwealth v. Wantz, 84 A.3d 324, 331 (Pa. Super. 2014) (citations
omitted).
Here, the PCRA addressed Appellant’s ineffectiveness claims against
prior PCRA counsel as follows:
These claims of so-called “layered ineffectiveness” cannot be
raised in an appeal from our denial of [Appellant’s] PCRA claim.
At the time of the PCRA hearing, [prior PCRA counsel] represented
[Appellant]. At no point during that hearing did [prior PCRA
counsel] allege his own ineffectiveness, nor did [Appellant]
complain about [prior PCRA counsel’s] ineffectiveness. The appeal
filed by [Appellant] to our court order of May 6, 2022 is simply not
the place or the method by which a claim of layered
ineffectiveness against [prior PCRA counsel] could be properly
pursued.
PCRA Ct. Op., 9/14/22, at 4 (formatting altered).8
____________________________________________
8 We also note that in his motion to proceed pro se, Appellant indicated that
he intended to raise claims of ineffective assistance of prior PCRA counsel.
See Mot. to Proceed Pro Se, 5/27/22, at 1 (unpaginated). In its order granting
Appellant’s pro se motion for an extension of time, the PCRA court directed
prior PCRA counsel to assist Appellant in drafting his pro se Rule 1925(b)
statement. See PCRA Ct. Order, 7/14/22, at 2-3 (unpaginated). “[C]ounsel
cannot raise his or her own ineffectiveness[.]” Bennett, 930 A.2d at 1274
(citation omitted). Further, “requiring counsel to do so creates an inherent
(Footnote Continued Next Page)
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In light of Bradley, we are constrained to disagree with the PCRA court’s
conclusion that Appellant could not raise the instant ineffectiveness claims on
appeal. See Bradley, 261 A.3d at 405. Further, because prior PCRA counsel
could not have raised his own ineffectiveness, see Bennett, 930 A.2d at
1274, Appellant properly raised his claims of prior PCRA counsel’s
ineffectiveness at the earliest opportunity, i.e., in his pro se Rule 1925(b)
statement and in his appellate brief. See Bradley, 261 A.3d at 405.
However, we conclude that Appellant has failed to sufficiently develop
his claim that prior PCRA counsel was ineffective for failing to request that Dr.
Gottlieb or a toxicology expert evaluate Appellant. Here, Appellant offers only
bald assertions that prior PCRA counsel lacked a reasonable basis for failing
to request an evaluation. See Bradley, 261 A.3d at 402 (explaining that an
appellant must “provide more than mere boilerplate assertions of PCRA
counsel’s ineffectiveness” to obtain relief on a such a claim or for this Court to
remand the matter to the PCRA court (citation and quotation marks omitted));
see also Sandusky, 203 A.3d at 1044. Further, Appellant has not
established prejudice because he has not shown that Dr. Gottlieb or a
____________________________________________
conflict of interest.” Bradley, 261 A.3d at 398. Here, the PCRA court was
aware that Appellant intended to raise claims of prior PCRA counsel’s
ineffectiveness; therefore, the PCRA court erred by both allowing Appellant to
engage in hybrid representation and by directing prior PCRA counsel to assist
Appellant in drafting a pro se Rule 1925(b) statement asserting his own
ineffectiveness. See id.; Bennett, 930 A.2d at 1274; Willis, 29 A.3d at 400.
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toxicology expert9 was willing to testify at the PCRA hearing. See Wantz, 84
A.3d at 331. For these reasons, we conclude that Appellant is not entitled to
relief on this claim.
Denial of Continuance
In a related claim, Appellant argues that the PCRA court erred in denying
his request for a continuance of the evidentiary hearing so that Appellant could
meet with Dr. Gottlieb or another toxicology expert. Appellant’s Brief at 30.
Appellant asserts that a continuance would not have prejudiced the
Commonwealth. Id. Appellant requests that this Court remand for a new
PCRA evidentiary hearing after Appellant has had time to consult with Dr.
Gottlieb or obtain the report of another toxicology expert.
This Court has explained that
the grant or denial of a motion for a continuance is within the
sound discretion of the trial court and will be reversed only upon
a showing of an abuse of discretion. An abuse of discretion is not
merely an error of judgment; rather, discretion is abused when
the law is overridden or misapplied, or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice,
bias, or ill-will, as shown by the evidence or the record. A bald
allegation of an insufficient amount of time to prepare will not
provide a basis for reversal of the denial of a continuance motion.
Instead, an appellant must be able to show specifically in what
manner he was unable to prepare his defense or how he would
have prepared differently had he been given more time. We will
not reverse a denial of a motion for continuance in the absence of
prejudice.
____________________________________________
9 We may not consider the unsigned letter from Dr. Guzzardi included in
Appellant’s brief because that letter is not part of the certified record. See
Commonwealth v. Preston, 904 A.2d 1, 6-7 (Pa. Super. 2006) (en banc).
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Commonwealth v. Ross, 57 A.3d 85, 91 (Pa. Super. 2012) (en banc)
(citations omitted and formatting altered).
When reviewing a decision to deny a request for a continuance, this
Court considers the following:
(1) the necessity of the witness to strengthen the defendant’s
case;
(2) the essentiality of the witness to the defendant’s [case];
(3) the diligence exercised to procure his or her presence at [the
proceeding];
(4) the facts to which he or she could testify; and
(5) the likelihood that he or she could be produced at court if a
continuance were granted.
Commonwealth v. Bozic, 997 A.2d 1211, 1225 (Pa. Super. 2010) (citation
omitted).
Here, the PCRA court explained:
Related to his diminished capacity claim is the argument proffered
by [Appellant] that we erred by failing to give him time to meet
with Dr. Gottlieb prior to the PCRA hearing. As it relates to that
issue, there were two primary reasons why we refused
[Appellant’s] request for a continuance. We noted that
[Appellant’s] PCRA hearing was scheduled on November 12, 2021.
Despite having four (4) months to prepare for the hearing,
[Appellant] waited until the day of the hearing itself in order to
request a postponement. We considered the request to be
untimely.
More important, this court did not perceive how a meeting
between [Appellant] and Dr. Gottlieb would or could have
materially advanced the issues that were presented to the court.
From the outset of the litigation, [Appellant] claimed that MDMA
(“Molly”) was surreptitiously slipped into a drink that he consumed
in York, PA. By definition, the involuntary consumption of this
substance was accomplished without [Appellant’s] knowledge or
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consent. As such, [Appellant] would not have known precisely
when or in what amount the Molly was ingested. Moreover, Dr.
Gottlieb did meet with [Appellant] prior to trial and was no doubt
told about the purported surreptitious administering of “Molly.”
There is no possible way that a meeting between [Appellant] and
Dr. Gottlieb prior to the PCRA hearing would have enabled Dr.
Gottlieb to specifically articulate how the “Molly” would or could
have affected [Appellant’s] state of mind.
The court did permit Dr. Gottlieb to testify generally about the
effects of “Molly” on a human being and how “Molly” could
combine with alcohol to impact human behavior. Thus, within the
constraints imposed by [Appellant] upon his trial counsel, i.e., no
“diminished capacity argument”, trial counsel was able to present
as much information as could reasonably have been expected.
There is no way that an additional meeting between [Appellant]
and Dr. Gottlieb would or could have changed the outcome of
either the PCRA proceeding or trial itself.
PCRA Ct. Op., 9/14/22, at 6-7 (some formatting altered).
Based on our review of the record, we discern no abuse of discretion by
the PCRA court. See Ross, 57 A.3d at 91. As stated above, Appellant failed
to establish that Dr. Gottlieb or a toxicologist was willing to testify at the PCRA
hearing. Further, Appellant fails to describe what testimony a toxicology
expert could have given at the PCRA hearing and why that testimony was
necessary to support his claims, especially in light of the constraints Appellant
placed on trial counsel, whom he instructed not to argue the diminished
capacity defense, as noted by the PCRA court. See id.; Bozic, 997 A.2d at
1225. Lastly, Appellant fails to explain how the denial of the continuance
prejudiced him. See Ross, 57 A.3d at 91. For these reasons, we conclude
that Appellant is not entitled to relief on this claim.
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Layered Ineffectiveness Claims
In his last five issues, Appellant claims that prior PCRA counsel was
ineffective for failing to litigate additional claims of ineffective assistance of
trial counsel. Appellant’s Brief at 31-35, 39. Specifically, Appellant claims
that prior PCRA counsel failed to argue that trial counsel were ineffective
because they: (1) failed to argue that 18 Pa.C.S. § 1102(a) was void for
vagueness; (2) failed to argue that 18 Pa.C.S. § 1102(a) has been implicitly
repealed; (3) failed to challenge the sufficiency of the evidence supporting
Appellant’s conviction for discharge of a firearm into an occupied structure;
(4) failed to argue that Detective Keith Uhrich violated the trial court’s
sequestration order; and (5) failed to request a jury instruction on
manslaughter. Id.
Following Bradley, our Supreme Court held that a defendant
“adequately raised and preserved his layered claim of the ineffective
assistance of trial and initial PCRA counsel by raising it at the first opportunity
to do so, specifically in his Corrected 1925(b) Statement and in his [appellate]
brief . . . .” Commonwealth v. Parrish, 273 A.3d 989, 1002 (Pa. 2022).
“Where a petitioner alleges multiple layers of ineffectiveness, he is required
to plead and prove, by a preponderance of the evidence, each of the three
prongs of ineffectiveness relevant to each layer of representation.” Id. at
1004 n.11 (citation omitted).
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Specifically, our Supreme Court has explained:
To be eligible for relief on [layered claims of ineffective assistance
of counsel, a petitioner] must plead and prove that: (1) trial
counsel was ineffective for a certain action or failure to act; and
(2) [subsequent] counsel was ineffective for failing to raise trial
counsel’s ineffectiveness. As to each relevant layer of
representation, [a petitioner] must meet all three prongs of the
Pierce[10] test for ineffectiveness. A failure to satisfy any of the
three prongs of the Pierce test requires rejection of a claim of
ineffective assistance of trial counsel, which, in turn, requires
rejection of a layered claim of ineffective assistance of
[subsequent] counsel.
Thus, if the petitioner cannot prove the underlying claim of trial
counsel ineffectiveness, then petitioner’s derivative claim of
[subsequent] counsel ineffectiveness of necessity must fail, and it
is not necessary for the court to address the other two prongs of
the Pierce test [i.e., the reasonable basis and prejudice prongs]
as applied to [subsequent] counsel.
Commonwealth v. Chmiel, 30 A.3d 1111, 1128 (Pa. 2011) (citations
omitted and formatting altered).
As we have stated herein, the PCRA court erred in concluding that
Appellant could not raise claims of ineffective assistance of prior PCRA counsel
for the first time in his pro se Rule 1925(b) statement. See PCRA Ct. Op.,
9/14/22, at 4; cf. Parrish, 273 A.3d at 1002; Bradley, 261 A.3d at 405.
However, we conclude that Appellant failed to properly develop his
layered ineffective assistance of counsel claims. Notably, Appellant failed to
discuss the reasonable basis and prejudice prongs of the legal standard to
establish counsel’s ineffectiveness with respect to trial counsel’s alleged
____________________________________________
10 Commonwealth v. Pierce, 527 A.2d 973, 975-76 (Pa. 1987); see also
Sandusky, 203 A.3d at 1043 (same).
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omissions for each of Appellant’s PCRA claims. See Parrish, 273 A.3d at
1004 n.11. Appellant’s failure to develop his underlying claims of trial counsel
ineffectiveness in and of itself provides sufficient legal support for this Court
to conclude that Appellant is not entitled to relief.11 See Chmiel, 30 A.3d at
1128. We further observe that Appellant has failed to present any argument
as to the reasonable basis and prejudice prongs regarding prior PCRA counsel
for all of his claims. Accordingly, Appellant’s five layered ineffectiveness
claims fail because Appellant has not developed his assertions beyond bald
____________________________________________
11 Additionally, Appellant waived the arguable merit prong to establish
ineffectiveness as part of his layered ineffectiveness claim concerning the
legality of his sentence against both trial counsel. Appellant’s counsel
attempts to incorporate by reference, twenty-five pages of Appellant’s
rambling pro se 1925(b) statement concerning his apparent challenge to the
validity and constitutionality of 18 Pa.C.S. §1102, which Appellant contends
would void any authority for his continued incarceration imposed by his life
sentence. Counsel concedes that Appellant’s pro se arguments are not clear
and sought to incorporate portions of Appellant’s pro se Rule 1925(b)
Statement in lieu of developing these issues in the counseled brief. See
Appellant’s Brief at 31-33; see also Rule 1925(b) Statement, 8/29/22, at 6-
30 (unpaginated). Therefore, these two issues are also waived because
Appellant violated the prohibition against incorporating additional documents
into an appellate brief by reference. See Commonwealth v. Briggs, 12 A.3d
291, 343 (Pa. 2011) (holding that “our appellate rules do not allow
incorporation by reference of arguments contained in briefs filed with other
tribunals, or briefs attached as appendices, as a substitute for the proper
presentation of arguments in the body of the appellate brief” and violation of
these rules results in waiver). Further, as counsel has acknowledged,
Appellant’s pro se arguments are confusing and unclear, therefore these
unintelligible claims are incapable of our appellate review in that this Court
will not develop Appellant’s arguments for him. See Commonwealth v.
Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) (stating that “[t]his Court will
not act as counsel and will not develop arguments on behalf of an appellant”
(citation omitted)). Accordingly, no relief is due.
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allegations. See Bradley, 261 A.3d at 402; see also Parrish, 273 A.3d at
1004 n.11; Sandusky, 203 A.3d at 1043-44.
Accordingly, we conclude that Appellant is not entitled to relief on any
of his claims of layered ineffectiveness.
Conclusion
For these reasons, we discern no error nor abuse of discretion by the
PCRA court in denying Appellant’s petition and affirm the PCRA court’s order
denying relief.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 10/23/2023
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