Com. v. Hall, E.

J-S73023-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
ERIC J. HALL,
Appellant No. 595 WDA 2018
Appeal from the PCRA Order Entered March 23, 2018
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0000006-2012
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 30, 2019
Appellant, Eric J. Hall, appeals from the post-conviction court’s March
23, 2018 order denying his timely petition filed under the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.
Rather than reiterating the facts of Appellant’s underlying convictions,
we rely on the detailed summary set forth by the PCRA court in its February
9, 2017 opinion. See PCRA Court Opinion (PCO), 2/9/17, at 2-11. On
September 18, 2013, a jury convicted Appellant of two counts of first-degree
murder and related offenses. On December 17, 2013, he was sentenced to
two, consecutive life terms of incarceration, without the possibility of parole.
He filed a timely direct appeal and, after this Court affirmed his judgment of
sentence, our Supreme Court denied his subsequent petition for allowance of
appeal. Commonwealth v. Hall, No. 131 WDA 2014, unpublished
J-S73023-18
memorandum (Pa. Super. Dec. 16, 2014), appeal denied, 116 A.3d 603 (Pa.
2015).
Appellant filed a timely, pro se PCRA petition and counsel was appointed.
An amended petition was filed by counsel on June 30, 2016, and the court
conducted an evidentiary hearing on November 15, 2016. There, Appellant
abandoned all but one claim of trial counsel’s ineffectiveness, involving
counsel’s failure to call Appellant’s mother to the stand at trial. On February
9, 2017, the PCRA court issued an opinion that notified Appellant of its intent
to deny this ineffectiveness claim. In response, Appellant filed a pro se motion
to amend his petition and dismiss his PCRA counsel. The PCRA court granted
Appellant’s motion to amend, and withdrew the representation of his court-
appointed PCRA counsel.
Thereafter, Appellant retained private counsel, who filed an amended
petition on his behalf on December 1, 2017, raising a second claim of trial
counsel’s ineffectiveness, arguing that counsel erred by not requesting a
certain jury instruction in response to a question posed by the jury. On March
23, 2018, the court issued an order explaining that it was dismissing that claim
without a hearing, and also formally dismissing the other claims raised in
Appellant’s first amended petition, on which a hearing had been held.1
____________________________________________
1 The PCRA court did not issue a Pa.R.Crim.P. 907 notice of its intent to
dismiss, without a hearing, the ineffectiveness claim raised in Appellant’s
second amended petition. However, because Appellant does not object to that
omission on appeal, he has waived it for our review. See Commonwealth
v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (“The failure to challenge the
absence of a Rule 907 notice constitutes waiver.”) (citation omitted).
-2-
J-S73023-18
Appellant filed a timely notice of appeal, and he also timely complied
with the court’s order to file a Pa.R.A.P. 1925(b) statement of errors
complained of on appeal. In lieu of a Rule 1925(a) opinion, the PCRA court
issued a statement indicating that it was relying on the rationale set forth in
its February 9, 2017 opinion and March 23, 2018 order.
Herein, Appellant raises two issues for our review:
I. Whether trial counsel was ineffective for failing to call
Appellant’s mother, Deborah Finley, who would have
testified that she did not give her son the handgun discussed
during the trial as the possible murder weapon until two
days after the murders?
II. Whether trial counsel was ineffective for failing to request
the alternative hypothesis instruction where the
Commonwealth’s case was based solely on circumstantial
evidence?
Appellant’s Brief at 1.
We have reviewed the certified record, the briefs of the parties, and the
applicable law. Additionally, we have reviewed the thorough and well-crafted
decisions of the Honorable Rita Donovan Hathaway, President Judge of the
Court of Common Pleas of Westmoreland County. We conclude that President
Judge Hathaway’s extensive, well-reasoned opinion issued on February 9,
2017, accurately disposes of the first issue presented by Appellant. See PCO
at 12-21. Additionally, President Judge Hathaway’s March 23, 2018 order
offers a legally sound explanation for rejecting the second claim Appellant
raises herein. See PCRA Court Order, 3/23/18, at 1-6. Accordingly, we adopt
-3-
J-S73023-18
those decisions as our own and affirm the order denying Appellant’s petition
for the reasons set forth therein.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/30/2019
-4-
Circulated 01/17/2019 01:54 PM
IN THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTY,
PENNSYLVANIA-CRIMINAL DIVISION
COMl\10N\VEALTH OF PENNSYLVANIA )
)
vs. )
) No. 6 C 2012
ERIC 1. HALL, )
)
Defendant. )
ORDER OF COURT
AND NOW, this u� day of March, 2018, upon consideration of Defendant's
response to the Court's Notice of Intent to Dismiss, and for the reasons already set forth
in this Cami's Order of Court and Notice of Intent to Dismiss, attached hereto,
Defendant's petition for post-conviction relief is hereby DISMISSED.
This Court issued a Notice of Intent to Dismiss Defendant's petition for post-
conviction relief on February 9, 2017, after an evidentiary hearing. Defendant filed a
motion to amend his petition on March 7, 2017. The Court granted Defendant's motion,
withdrawing court-appointed Attorney Timothy Andrews' appearance in the case. Private
counsel Chris Eyster entered his appearance on or about the same date. Defendant filed
an amended petition on December 1, 2017, in which he averred that trial counsel was
ineffective for failing to request a specific jury instruction during trial.
Defendant's claim is in reference to a question submitted by the jury to the Court
during deliberations. The question was as follows:
Can we say guilty if our common sense says guilty, but the
State's case doesn't tie up all loose ends and leaves some
doubt?
(IT 1329).
In response to the question, the Court reiterated the following standards regarding
presumption of innocence and reasonable doubt:
Ladies and gentlemen, I'm going to read again for you the
definition of presumption of innocence and burden of proof
and reasonable doubt, and rm sure that will clarify the
answer for you.
A fundamental principle of our system of criminal law is that
the defendant is presumed to be innocent. The mere fact that
he was arrested and is accused of a crime is not evidence
against him. Furthermore, the defendant is presumed innocent
throughout the trial and unless and until you conclude, based
on careful and impartial consideration of the evidence, that
the Commonwealth has proved him guilty beyond a
reasonable doubt.
It is not the defendant's burden to prove that he is not guilty.
Instead, it is the Commonwealth that always has the burden of
proving each and every element of the crime charged and the
defendant is guilty of that crime beyond a reasonable doubt.
The person accused of a crime is not required to present
evidence or prove anything in his own defense. If the
Commonwealth's evidence fails to meet its burden, then the
verdict must be not guilty. On the other hand, if the
Commonwealth's evidence does prove beyond a reasonable
doubt that the defendant is guilty, then your verdict should be
guilty.
Although the Commonwealth has the burden of proving that
the defendant is guilty, this does not mean that the
Commonwealth must prove its case beyond all doubt and to a
mathematical certainty, nor must it demonstrate the complete
impossibility of innocence. A reasonable doubt is a doubt that
would cause a reasonably careful and sensible person to
hesitate before acting upon a matter of importance in his or
her own affairs. A reasonable doubt must fairly arise out of
the evidence that was presented or out of the lack of evidence
presented with respect to some element of the crime. A
2
reasonable doubt must be a real doubt. It may not be an
imagined one, nor may it be a doubt manufactured to avoid
carrying out an unpleasant duty.
So, to summarize, you may not find the ( defendant] guilty
based on a mere suspicion of guilt. The Commonwealth has
the burden of proving the defendant guilty beyond a
reasonable doubt. If it meets that burden, then the defendant
is no longer presumed innocent and you should find him
guilty. On the other hand, if the Commonwealth does not
meet its burden, you must find him not guilty.
(TT 1329-31).
Defendant, in his amended petition, states that the jurors' question "should have
prompted trial counsel to request" the following instruction:
Before you may rely on circumstantial evidence to conclude
that a fact necessary to find the defendant guilty has been
proved, you must be convinced that the Commonwealth has
proved each fact essential to that conclusion beyond a
reasonable doubt. Also, before you may rely on
circumstantial evidence to find the defendant guilty, you must
be convinced that the only reasonable conclusion supported
by the circumstantial evidence is that the defendant is guilty.
If you can draw two or more reasonable conclusions from the
circumstantial evidence and one of those reasonable
conclusions points to innocence and another to guilt, you
must accept the one that points to innocence.
Defendant further states that when the jury asked the aforementioned question, the Court
had a sua sponte duty under the due process clause of the U.S. and Pennsylvania
Constitutions to instruct the jury on how to evaluate circumstantial evidence when the
prosecution "substantially relied on circumstantial evidence to establish any element of
its case." In support of this contention, Defendant cites two California Supreme Court
cases, which relied on standard California criminal jury instructions, and one Connecticut
3
Supreme Court case, which also relied on relevant State-specific criminal jury
instructions. Defendant did not list any case law from this Commonwealth to support his
claim.
In order to successfully raise a claim of ineffective assistance of counsel in a
petition for post-conviction relief, a defendant must plead and prove, by a preponderance
of the evidence:
(1) the underlying claim has arguable merit; (2) no
reasonable basis existed for counsel's actions or failure to act;
and (3) petitioner suffered prejudice as a result
of counsel's error such that there is a reasonable probability
that the result of the proceeding would have been different
absent such error.
Comm. v. Reed, 971 A.2d 1216, 1221 (Pa.
2009) (citing Comm. v. Pierce, 527 A.2d 973, 975 (Pa.
1987)).
As a threshold matter, there is no arguable merit to Defendant's claim. The Court
notes that the jurors' question made no reference to circumstantial evidence, and
addressed only "some doubt" they had while deliberating. Moreover, Defendant's
contention ignores the "unquestionable maxim of law ... that a trial comt had broad
discretion in phrasing its instructions, and may choose its own wording so long as the law
is clearly, adequately, and accurately presented to the jury for its consideration." Comm.
v. Antidormi, 84 A.3d 736 (Pa.Super. 2014). Defendant does not in any way aver that the
Court's instruction was inaccurate or improper.
Finally, the Court could not find any support in Pennsylvania jurisprudence for
Defendant's proposed jury instruction. Again, it appears that Defendant is relying on a
4
standard jury instruction from California. Specifically, Standard California Criminal Jury
Instruction 224 reads as follows:
Before you may rely on circumstantial evidence to conclude
that a fact necessary to find the defendant guilty, you must be
convinced that the People have proved each fact essential to
that conclusion beyond a reasonable doubt.
Also, before you may rely on circumstantial evidence to find
the defendant guilty, you must be convinced that the only
reasonable conclusion supported by the circumstantial
evidence is that the defendant is guilty. If you can draw two
or more reasonable conclusions from the circumstantial
evidence, and one of the reasonable conclusions points to
innocence and another to guilt, you must accept the one that
points to innocence. However, when considering
circumstantial evidence, you must accept only reasonable
conclusions and reject any that are unreasonable.1
There is no arguable merit to the claim that defense counsel should have requested
a standard jury instruction from another jurisdiction in response to an unrelated question.
The Court also notes that it did read the standard Pennsylvania jury instruction regarding
circumstantial evidence. (TT 1289�9 l ). Had the jury asked a question concerning
circumstantial evidence, or the relationship between direct and circumstantial evidence,
the Court certainly would have again read the jury instructions commonly used in this
Commonwealth, or considered any instruction proposed by either the Commonwealth or
defense counsel.
I
The Bench Notes attached to that instruction also note that California trial courts have a sua sponte duty to instruct
on how to evaluate circumstantial evidence if the prosecution substantially relies on circumstantial evidence to
establish any element of the case. That Bench Note also cites to the two California Supreme Court cases (Bloyd and
Heishman) that are also cited by Defendant.
5
As Defendant's claim cannot pass the first prong of the ineffectiveness test
described, supra, his argument is without merit, and must fail. The Court has already
determined that the claims initially introduced in Defendant's pro-se petition, and
adopted in the amended petition filed by Attorney Timothy Andrews, are also without
merit.
THE DEFENDANT IS NOTIFIED THAT ANY APPEAL TO THE SUPERIOR
COURT OF PEI\TNSYLVANIA FROM THIS COURT'S DISMISSAL OF ms PCRA
PETITION MUST BE FILED .WITHIN TIDRTY (30) DAYS FROM THE DATE OF
TIDS ORDER OF COURT.
BY THE COURT:
c==_���}cv.-N,S:zi, 7/ ;T"'-�;
.-------flita Donovai1 Hathaway, President Judge #
Clerk of Courts
cc: File
John W. Peck, Esq., District Attorney
Chris Eyster, Esq., Counsel for Defendant
3242 Babcock Boulevard, Pittsburgh, PA 15237
Pamela Neiderhiser, Esq., Court Administrator's Office
6
Circulated 01/17/2019 01:54 PM
('.<)
IN THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTY,
PENNSYLVANIA - CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA )
)
vs. )
) No. 6 c 2012
ERIC J. HALL, )
)
Defendant. )
OPINION OF THE COURT
AND NOTICE OF INTENT TO DISMISS
AND NOW, this --2_ day of February, 2017, upon consideration of Defendant's
petition filed pursuant to the Post Conviction Relief Act, (42 Pa.C.S. §9541, et seq.) and
upon consideration of the amended PCRA petition submitted by Timothy Andrews, Esq.,
court-appointed PCRA counsel for Defendant, as well as the testimony and briefs
submitted in support of that petition, it appears to the Court that there may be no genuine
issue of material fact, no entitlement to relief and no purpose to be served in further
proceedings for the following reasons:
I. FACTUAL AND PROCEDURAL HISTORY OF THE CASE
Eric J. Hall ("Defendant") was convicted on September 18, 2013 of two counts of
Criminal Homicide and related charges after a jury trial. He was sentenced on December
17, 2013 to two consecutive life sentences. Defendant timely filed a Notice of Appeal to
the Pennsylvania Superior Court on January 15, 2014. The Pennsylvania Superior Court
1
9a
affirmed the Court's Judgment of Sentence on December 16, 2014. The Pennsylvania
Supreme Court denied Defendant' s Petition for Allowance of Appeal on May 12, 2015.
Defendant filed a timely pro-se PCRA petition on November 30, 2015. The Court
appointed Attorney Timothy Andrews to represent Defendant. Attorney Andrews initially
filed a No-Merit Letter on February 25, 2016. After pro-se correspondence sent to the
Court by Defendant indicating certain alibi issues not addressed in the No-Merit Letter,
the Court granted Attorney Andrews an extension to file an amended PCRA petition
based on facts contained in the correspondence and upon further review with Defendant.
Attorney Andrews filed an amended PCRA petition on June 30, 2016. A hearing
was held on November 15, 2016 to determine the merits of the petition.
FACTUAL HISTORY:
The evidence presented at trial established the following: Anthony ("Tony")
Henderson and Noelle Richards were a young couple residing on Fox Road in
Washington Township, Westmoreland County. The property was rural and not
immediately accessible from SR 66, the nearest main road. On August 28, 2011, at
approximately 8:00 p.m., Tony and Noelle drove to Dairy Queen in nearby Delmont to
purchase food and an ice cream cake. (TT 422-3 7, 1024-25). They left the restaurant and
1
traveled back to their home at 8:08 p.m. (TT 1025).
At approximately 8:30 p.m., Michael DiVincenzo, Greg DiVincenzo and Sam
Denillo traveled to Tony and Noelle's house to purchase marijuana from Tony. Michael
1
Numerals in parenthesis preceded by the letters "TT" refer to specific pages of the transcript of the trial of this
matter, held September 9-13 and 16-18, 2013 before this Court, and made a part of the record herein.
2
1 Oa
testified that Sam Denillo drove the three of them to Washington Township in his black
Jeep. Michael testified that on a prior occasion the gate at the top of the lengthy
driveway had been closed. On this trip, however, the gate was already open, and they
· proceeded directly down the driveway to the rear of the house. (TT 81-88, 178).
Michael DiVincenzo and Denillo approached the sliding glass doors near the back
patio and knocked, but neither Tony nor Noelle answered the door. He noticed light
emanating from a television but because the sliding glass door was covered by vertical
shades, he could not determine whether anyone was inside. (TI 89-90). Michael
continued to knock at the sliding glass door, and also checked around the perimeter of the
house to try to locate Tony. He decided to call Paul Hoover, who also resided at the
location, to see if he knew whether Tony was home. As he was speaking with Hoover, he
noticed that someone was approaching the door from inside the home. (TI 90-92). The
sliding glass door opened, and an unfamiliar man emerged brandishing a baseball bat.2
He immediately swung the baseball bat and hit Sam Denillo on the side of his head.
Denillo fell to the ground. The man then started toward Gregory DiVincenzo, swinging
the bat at him as well. Gregory was able to block the blow with his arm. Michael told him
that they would leave the residence, but the man chased after Michael, who ran to escape
from him. The individual with the bat gave up the chase after a short time, and went back
inside the house. Intending to flee the area, Michael and Gregory DiVincenzo managed to
help Sam Denillo back into the vehicle. Michael realized that he had lost his cell phone.
Gregory dialed Michael's number on his own phone in an attempt to locate it. Michael
2
Michael DiVincenzo described the bat as beingyellow and somewhat pinkish on the end.
11 a
then noticed that the man had come back outside the house and was laying flat on his
stomach as if he was searching for something. He stood up, and Michael could hear what
sounded like his cell phone ringing from an area near the man's midsection. Michael
asked the man to toss him his cell phone, and stated that they would leave thereafter, but
the man stared at him blankly. (TT 92-100, 183-89).
The trio left the Henderson property, driving on Fox Road toward its intersection
with SR 66, while Gregory DiVincenzo called 9-1-1 from the vehicle to summon medical
help for Sam Denillo. The call was received by Westmoreland 9-1-1 at 8:44 p.m. (TT
1024). Denillo was groggy and bleeding from his mouth. While they were waiting for
the police and an ambulance, a dark colored Jeep Grand Cherokee drove past them at a
high rate of speed, made a left tum onto SR 66 without stopping at the stop sign, and
drove toward Delmont. Believing it to be the same person who had assaulted them,
Gregory DiVincenzo called 9- 1-1 again and reported his observations about the vehicle.
(TT 101-03, 190-93). The second call was received by Westmoreland 9-1-1 at 8:49 p.m.
(TT 1024). Denillo was flown by medical helicopter to Allegheny General Hospital in
Pittsburgh, where he was admitted for three days, underwent surgery for a broken jaw,
and was treated for a concussion and bleeding in his ear. (TT 156-67).
Michael DiVincenzo later identified Defendant from a series of photos as the bat-
wielding individual who attempted to assault him and his brother, and who assaulted Sam
Denillo. Sam Denillo had little or no memory of the events. Gregory DiVincenzo was
unable to positively identify Defendant's photograph from the series of photos shown to
12a
4
him by the police, but he was able to make a positive identification at the preliminary
hearing and at trial. (TT 110-12, 157-69, 193-95).
As the DiVincenzo brothers and Sam Denillo were waiting on the side of Fox
Road for an ambulance, Corey Lutz and his friend Joe Giarusso, in separate vehicles,
were turning from SR 66 onto Fox Road on their way to Anthony Henderson's house.
Lutz noticed the three men in the Jeep parked at the intersection. (262-65, 275-76).
When Lutz arrived at the Henderson home, he first noticed that the gate at the top of the
driveway was not locked as it customarily was, and that it appeared to be damaged.
When he reached the rear of the house, he noticed that the grill had been overturned in
the driveway, furniture was out of place, there were broken items on the patio, and the
sliding glass door was open. (TT 265-269).
Lutz entered into the house through the sliding glass door and discovered the
bodies of Anthony Henderson and Noelle Richards in the finished basement living area.
(TT 270- 72, 284-86). Lutz indicated that he believed that Noelle might have been
breathing slightly, but that she would not respond to him. He observed that she had blood
on her head and was slumped over on the couch. He related that he saw Tony
Henderson's body lying on the floor by the coffee table in front of the fireplace in a large
pool of blood. (TI 270- 74). The food from Dairy Queen was still on the coffee table,
and Lutz recalled that he could smell "fresh food, like, a hamburger with a bite taken out
of it, a thing of French fries that wasn't even dipped into the ketchup yet. .. I remember
looking down and noticing that they didn't even get to eat." (TT 273). He immediately
called 9-1-1; the police received the dispatch while they were assisting the DiVincenzos
and Sam Denillo at the intersection of Fox Road and SR 66. (TT 106-07). Lutz's call
was received by Westmoreland 9-1-1 at 8:56 p.m. (TT 1024).
Forensic Pathologist Dr. Cyril Wecht testified that Tony Henderson had sustained
three gunshot wounds-two to his head and one to his forearm-and also had a multitude
of wounds to his head that suggested he had been beaten with some sort of instrument
with blunt force. (TT 611-25). Indeed, Dr. Wecht testified that the injuries suggested that
he had received repeated blows, administered with substantial force, to the back of his
head, consistent with the use of a baseball bat as the weapon. (TT 643-44). Dr. Wecht
opined that these injuries would not have necessarily been fatal had Tony Henderson
received prompt medical intervention and neurological treatment. (TT 629-30). Dr.
Wecht explained that the cause of death would have been "the multiplicity of all injuries
producing an adverse effect ... the two gunshot wounds of the head would have been the
major injuries contributed to by the multiple lacerations leading to loss of blood and
thereby hastening the development of shock and death." (TT 631).
Dr. Wecht also performed an autopsy on the body of Noelle Richards. Dr. Wecht
explained that she had also sustained three gunshot wounds, all to her head, as well as a
laceration around her right ear that was caused by blunt force instrumentality, (TT 633-
40). He opined that Noelle would have died within thirty minutes .of sustaining the fatal
gunshot wounds to the head. (TT 640). Dr. Wecht testified that Noelle Richards' cause of
death was "the three gunshot wounds of the head and face with some contribution from
the laceration caused by a blunt force instrument of some kind in the right temporal
14a
6
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I
region. AU of those producing that trans-sellar fracture would have been the cause of her
death." (TT 640-41 ).
During the initial investigation into the deaths of Anthony Henderson and Noelle
Richards, law enforcement had no suspects, as neither DiVincenzo brother nor Sam
Denillo knew the identity of the bat-wielding man who attacked them. However, on
August 29, 2011, Anna Stouffer found a black tri-fold wallet on the ground to the rear of
her van, which was parked on the street outside her residence at 221 Church Street in
Ligonier Borough. She knew that the vehicle parked there the night before was associated
with the residents of 217 Church Street. (TT 656-59, 671). Ms. Stouffer looked inside
the wallet in an attempt to identify the owner, and saw that the license belonged to
Anthony James Henderson. She then took the wallet to the Ligonier Borough Police
Department at 2:25 p.m. (TT 659-67).
Jeremy Springer, who worked with Defendant and his brother, Jay, testified that
on August 28, 2011, Defendant had assisted him in removing a roof at his residence.
Defendant arrived at approximately 7:00 a.m. in a green Jeep, and his brother arrived
separately. As they worked on Springer's roof, Defendant kept receiving text messages
on his cell phone. When asked who was contacting him, he stated it was his "guy from
Delmont." (TI 957). Springer recalled that after Defendant had left for the day, he texted
Defendant around 7 :00 p.m. to thank him for helping with the roof. He noted that he did
not receive a prompt response as usual, and did not receive another text from Defendant
until approximately 9:45 p.m. (TT 955-59).
Springer also related that the next day, on August 29, 2011, Hall reported for work
as usual. Over the lunch break, when Springer and Defendant were eating, Defendant
began telling Springer what had happened to him the night prior, and stated, "You won't
believe what happened to me last night." (TT 962). Defendant proceeded to tell Springer
that he had gone to see his friend in Delmont, and that when he arrived, there were two
dead people in the house. He said that he had gone to the back door when he did not
receive a response to his knocking at the front door. He then walked into the back door
and saw Tony on the floor with what he thought was a gunshot wound, and Tony's
girlfriend lying on the couch with dried blood on the side of her face.
Defendant told Springer that he was afraid that the intruder was still in the
vicinity, so he locked the back door. He then stated that he heard a car drive up, was
afraid, and decided to hide inside the home. He told Springer that he heard Tony's phone
ringing, and as he was hiding, happened upon a baseball bat that was lying on the ground.
He stated that he picked up the bat, unlocked the door, and greeted the men he saw at the
back door. Defendant told Springer that he thought he could get away, so he came out
swinging the bat and thought he hit the bigger man in the head. He related that the men
scattered, and he grabbed what one of them dropped and ran back inside the house.
Defendant told Springer that he also grabbed Tony's phone and wallet. (IT 962-69).
Defendant told Springer that he left the house and drove toward Ligonier. He
stated that on his way, he stopped at Donegal Lake, removed the batteries from the two
cell phones that he had taken from the house, and threw them into the lake. He did this,
he said, because he had seen on television that if the battery was removed from a phone,
168
the phone could not be traced. He also informed Springer that he had removed all of his
clothing, including his shoes, had thrown them and the wallet into a garbage bag, and
discarded them at a dumpster behind a methadone clinic. He also related that he stopped
at Walmart on the way home to buy Clorox and wiped his Jeep down in case there were
any blood traces from his shoes or the clothing he had been wearing. He stated that he
still had the bat, but days· later told Springer that he had thrown it into the woods.
Springer urged Defendant to speak with law enforcement, but Defendant stated that he
wanted to wait to do that. (TI 969- 78). Jeremy Springer testified that, after consulting
with his attorney and telling her what Defendant had revealed to him, he contacted the
County Detectives Bureau and told them about Defendant's story.
Law enforcement verified that Defendant had visited the methadone clinic on
Monday, August 29, 2011 at approximately 5:43 a.m. (TT 1002-03). The
Commonwealth also presented video footage from the Latrobe Walmart, showing that
Defendant visited that store at approximately 6:24 a.m., purchased cleaning materials,
and extensively cleaned his car in the parking lot. (TI 895-910). The bottle of Soft Scrub
cleanser that Defendant purchased was recovered in a search of the Jeep Cherokee that
was driven by Defendant on the night of August 28, 2011. (TT 682-84). Also recovered
from the Jeep were numerous blood samples, which were later matched through DNA
analysis to Sam Denillo and Anthony Henderson. (TT 733-41). Analysis of text messages
on Defendant's phone indicated that he had borrowed a 9mm Taurus firearm from his
mother and had discarded it after the murders. (TT 1018-20). Analysis of the bullet
17a9
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the vehicle before picking his brother up for work. (TT 1123-30). Defendant also
admitted that he had thrown away the 9mm Taurus handgun that he had borrowed from
his mother so that the police would not find it. (TT 1135-38, 1204-12).
ELIGIBILITY FOR RELIEF:
The requirements for eligibility for relief under the Post-Conviction Relief Act are
set forth both in the Act itself (42 Pa.C.S. §9541, et. seq.) and in the Rules of Criminal
Procedure (Pa.R. Crim.P. Rules 901 and 902). Generally speaking,
PCRA petitioners, to be eligible for relief, must, inter alia, plead and
prove their assertions by a preponderance of the evidence. Section
9543(a). Inherent in this pleading and proof requirement is that the
petitioner must not only state what his issues are, but also he must
demonstrate in his pleadings and briefs how the issues will be
proved. Moreover, allegations of constitutional violation or of
ineffectiveness of counsel must be discussed "in the circumstances
of the case." Section 9543(a)(2)(i-ii). Additionally, the petitioner
must establish by a preponderance of evidence that because of the
alleged constitutional violation or ineffectiveness, "no reliable
adjudication of guilt or innocence could have taken place." Section
9543(a)(2)(i-ii). Finally, petitioner must plead and prove that the
issue has not been waived or finally litigated, §9543(a)(3), and if the
issue has not been litigated earlier, the petitioner must plead and
prove that the failure to litigate "could not have been the result of
any rational, strategic or tactical decision by counsel." Section
9543(a)(4).
Comm. v. Rivers, 786 A.2d 923, 927 (Pa. 2001).
Additionally, because Defendant has raised an allegation of ineffective assistance
of counsel, he must plead and prove, by a preponderance of the evidence:
(1) that there is merit to the underlying claim; (2) that counsel had no
reasonable basis for his or her course of conduct; and (3) that there is
1 q;i 11
a reasonable probability that, but for the act or omission challenged,
the outcome of the proceeding would have been different. Comm. v.
Jones, 683 A.2d 1181, 1188 (Pa. 1996). Counsel is presumed to be
effective and Appellant has the burden of proving otherwise. Comm.
v. Marshall, 633 A.2d 1100 (Pa. 1993). Additionally, counsel cannot
be considered ineffective for failing to raise a claim that is without
merit. Comm. v. Peterkin, 649 A.2d 121 (Pa. 1994).
ta, citing Comm. v. Holloway, 739 A.2d 1039, 1044 (Pa. 1999).
Defendant's sole contention is that trial counsel, Michael Dernatt, Esq., was
ineffective for failing to call Defendant's mother, Deborah Finley, as a witness.
Defendant avers that had she been called to testify, she would have stated that she loaned
her son the gun-identified as the murder weapon at trial-at least two days after the
murders occurred. Defendant initially presented two other arguments in his petition, but
formally withdrew them at the evidentiary hearing. (PT 29).3
1. WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO CALL
DEBORAH FINLEY AS A WITNESS?
When raising a failure to call a potential witness claim, the PCRA petitioner
satisfies the reasonable basis and prejudice requirements of the ineffectiveness of counsel
test by establishing that: (I) the witness existed; (2) the witness was available to testify
for the defense; (3) counsel knew of, or should have known of, the existence of the
witness; (4) 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 trial.
Comm. v. Washington, 927 A.2d 586, 599 (Pa. 2007). To demonstrate prejudice,
Defendant "must show how the uncalled witnesses' testimony would have been beneficial
3
Numerals in parenthesis preceded by the letters "PT" refer to specific pages of the transcript of the PCRA hearing
in this matter, held November J 5, 2016 before this Court, and made a part of the record herein.
20a 12
under the circumstances of the case." Comm. v. Gibson, 951 A.2d 1110, 1134 (Pa. 2008);
see also Comm. v. Chmiel, 889 A.2d 501, 546 (Pa. 2005).
Trial counsel will not be found ineffective for failing to investigate or call a
witness unless there is some showing by Defendant that the witness's testimony would
have been helpful to the defense. Comm. v. Brown, 767 A.2d 576, 582 (Pa.Super. 2001);
see also Comm. v. Sneed, 45 A.3d 1096, 1108-09 (Pa.Super. 2013). Failure to call a
certain witness "is not per se ineffective assistance of counsel for such decision usually
involves matters of trial strategy." Sneed, 45 A.3d at 1108-09. Thus, it is Defendant's
burden to demonstrate that trial counsel had no reasonable basis for declining to call
Finley as a witness. Comm. v. Washington, 927 A.2d 586, 599 (Pa. 2007).
Evidence presented at trial established that the Taurus 9.mm handgun was loaned
to Defendant by his mother, Deborah Finley. Larry Lipton, records manager at Gander
Mountain, testified that on September 2, 2009, Charles Finley (Defendant's stepfather)
purchased a Taurus PT709 Slim at their Greensburg store. (TT 863-64). Charles Finley
died on June 30, �011. (TI 882).
The Commonwealth introduced text messages between Defendant and his mother
concerning the handgun. On September 3, 2011, Deborah Finley sent a text message to
Defendant reading, "I need my gun back. I found case for it." (TI 1202). Defendant
replied on September 7, 2011, "Next time I go to Greensburg I'll get your gun out of
Carly's dad's safe for ya. We put it there before the move so it wouldn't get lost." (TI
1202).
Further, on September 13, 2011, the following text message exchanged occurred
between Defendant and his mother:
Finley: Where was my gun from time you first took it.
Finley: Why won't you answer me. Who had my gun in their
· hands besides you.
Defendant: Mom, I have to wait now before I tell anyone
anything. I have nothing to hide, but everything can be used
against me now.
Finley: You let someone borrow my gun didn 't you.
Defendant: Your gun did not do anything.
Finley: Okay.
Defendant: ICs just a coincidence, and they want to clear it
for sure.
Finley: Okay.
Defendant: I had more to tell you that day, but after you
contacted [Officer) Amber [Noel] I knew I couldn't tell you
anything else ... For our safety.
Finley: Because my loved ones and dear friends are being
drug into this dammit so if you know something spill it and
end it.
Defendant: They shouldn't have been in the first place.
Finley: Well, they are all now because you did a dumb thing
by throwing my gun away so don't blame me. I trusted you to
be responsible with it and I was not getting in trouble for my
gun being out in some field to be used in a crime or to hurt
someone.
Defendant: Well, I have the police breathing down my beck,
probably trying to give me the death penalty if they get a
chance because I'm the next best thing.
Defendant: The police aren't my friends. I don't trust them.
(TT 1018-20).
Defendant testified at trial that he borrowed the gun from his mother after the
murders. He stated:
Defendant: [A]fter the incident, after the night of the
murders, the next day I was really paranoid about being able
- those guys being able to find me so I went and bought locks
for my house. I probably put three or four padlocks on my
front door and another two or three padlocks on my back
.. - ..· :. - ... ·. ;." �
' .• <, ·.. .-·-�··" ·-
door. I was still not comfortable with ·the· security·· bf th�· .
apartment. At night I would leave things in the .hallwaysoI
could hear somebody falling over in case they tried to do
something. I wasn't sleeping too well. I went to my mom's.
My grandmother was over there. I'm pretty sure it was the
Tuesday after -
Attorney DeMatt: So within a day or so ...
Defendant: ... of September 1st.
(TT 1134).
He further testified that approximately one week after September 1, Westmoreland
County Detectives executed a search warrant on his residence. (TT 1135). He stated that
the handgun was in his residence at that time, "in a case under a vent." (TT 1135). He
testified:
Defendant: There was a vent cover and it was sitting
underneath that in the dining room. I was on probation. There
was alcohol in the refrigerator and I thought I'm going to jail
until I help them or do something because Detective Weaver
sat down with me and I told him that I wanted a lawyer so he
asked me if I could please help him in any way ... (TT 1135-
36).
He stated that detectives did not locate the handgun during their search. (TT 1136). He
stated that as soon as they left, he retrieved the gun, put it in a plastic bag, and placed it in
the neighbor's garbage can. (TT 1137). He noted that the garbage was to be picked up the
next morning. (TT 1137). He relayed that he meant to retrieve the handgun from the
garbage can in the morning, but that the garbage had already been picked up. (TT 1137).
At the evidentiary hearing for the instant PCRA petition, Finley testified that she
loaned her son the handgun on August 30, 2011. She testified that several months after
the crime, she checked her desk calendar to determine whether she had noted the date in
question on the calendar. She stated:
·�. . .
Finley: Sometime later I had gone to work and every month
we keep a calendar, a desk calendar on our desks, a blotter,
and I always would write things down so I didn't forget about
it. By chance I thought to look at them. We kept them in a
cabinet in our office, and I pulled out the calendar for that
year and looked back to the date and I had written it down.
(PT 6).
The desk calendar was introduced into evidence. Attorney Andrews then inquired as to
why it occurred to Finley to reference the calendars:
Attorney Andrews: And you indicated I believe previously
that something on that calendar refreshed your memory or
made you remember the day in which you loaned the weapon
that you discussed, the Taurus, to your son. What on that
calendar refreshed your memory of that?
Finley: The date. I was at home thinking about it and I
thought - I remembered the date of the murders ... I thought
to go to work and to look - by chance look at this calendar to
see if I might have written something down.
Attorney Andrews: And did you write anything down on the
30th?
Finley: Yes, I did ... I have on there what was going on for
the day at my job, but I had also wrote down that [Defendant]
borrowed the gun from me that day.
Attorney Andrews: Did you write anything on the 28th, the
date the murders took place?
Finley: Yes, I marked that day when I found out about the
murders.
Attorney Andrews: Now, obviously, ma'am, there is nothing
on there to indicate whether you wrote that down on August
30, 2011, or whether you wrote that down five months later,
ten months later, or yesterday, right?
Finley: No.
Attorney Andrews: But it's your testimony that you wrote
that down on August 30, 2011 just to mark the date that you
loaned your son this weapon?
Finley: Yes
(PT 8-10).
241\6
·,)'·' ;·,.·.,.-.·:· :.,·.,·;···.
She also testified that she never informed Attorney DeMatt of her discovery. She
did state that she informed Defendant prior to trial that she would be available as a
witness to testify about the date she loaned him the handgun. (PT 10). Under cross-
examination by District Attorney John Peck, she stated her reasons for not specifically
informing Attorney Dematt about her knowledge of the date in question. Peck inquired:
District Attorney: So why didn't you tell Mr. DeMatt, since
you knew that the Commonwealth was hying to establish the
murder was committed with a 9mm weapon, that your son
had a 9mm weapon and that the implication would be that he
has killed them with that gun that you had given him, that you
didn't give him the gun because you had it until August 30th?
Finley: I didn't tell him because I assumed that [Defendant]
had updated him and told him about it.
District Attorney: Did [Defendant] know about this calendar
that you kept?
Finley: No, he did not.
(PT 19).
Peck also inquired as to why Finley had written down the date of the murders on
her desk calendar:
District Attorney: My question is, for some reason you also
write the word murders on August 28?
Finley: Yes.
District Attorney: You didn't know who the victims were,
did you?
Finley: No.
District Attorney: But somehow you related the gun to the
murders?
Finley: No.
District Attorney: Well, why did you write on the same date
murders and [Defendant] borrowed the gun -
Finley: I don't know.
District Attorney: If you didn't think they were related?
Finley: I don't know.
(PT 23).
25a
17
· .....
·:·
Peck noted that Finley had been interviewed by Detectives Terrance Kuhns and
Robert Weaver soon after the crime. Finley informed them that her husband died on June
30, 2011, and that she had loaned her son the Taurus 9mm handgun approximately one
month later. (PT 24). Finley denied making the statement. (PT 24). Peck also asked
whether she recalled the date that she told Officer Amber Noel she loaned Defendant the
handgun; she stated that she did not recall. (PT 25). Officer Noel's report stated that
Finley provided Defendant with the handgun approximately two weeks before September
8, 2011, a date prior to the murders. (PT 46-47).
Finley then testified that she had discovered the desk calendar in March 2012,
more than one year before the trial. (PT 19-20). When asked again by District Attorney
Peck why she did not bring the evidence forward to Attorney DeMatt, she stated: HI
didn't believe at trial it was stated that weapon could have, you know, done anything."
(PT 20).
Defendant testified at the evidentiary hearing that he had borrowed the Taurus
9rnm handgun from his mother on August 30, 2011. (PT 28). He stated that he informed
trial counsel that his mother would be available to testify that she had loaned him the
handgun on that date. (PT 28).
Attorney DeMatt testified that while Defendant told him that he had not received
the handgun from his mother until after the crime occurred, he was unsure if Defendant
specifically identified his mother as a potential witness to bolster his claim. (PT 43).
DeMatt, testified, however, that:
,
,. _
.
.
.
.. .· ·..
.
'.t
Attorney DeMa tt: I know I had several cq1i�ersations' with- · .
:f
I
l Ms. Finley during my representation of [Defendant] about a
number of different issues and my recollection of what was
contained in discovery was that she had indicated to the
police, in particular I believe it was Amber Noel, that she had
given the gun to [Defendant] at some time prior to the
homicide so I didn't feel that it would - she would have been
a good witness to call so I never really even approached that -
approached her regarding testifying at trial.
Attorney Andrews: So then, based upon your review of the
police reports of Officer Noel, you were concerned and
determined not to call Ms. Finley as a witness for fear that the
testimony of the officer regarding her statements about when
her son got the handgun would be discredited?
Attorney DeMatt: My concern was that it would blow up in
our face, because as his mother she was obviously a biased
witness. And then to have police reports that would be
contradicting what she says before a jury, which you can very
easily be cross-examined on and impeached on, I had grave
concerns about that so I saw no reason to call her as a
witness.
Attorney Andrews: And were you aware at all about this
calendar that she kept and made notes on?
Attorney DeMatt: The first time I ever heard anything about
it was this morning when she mentioned it.
(PT 44-45).
Although the testimony presented at the evidentiary hearing established that Finley
was an available witness, that she would have testified for the defense, and that defense
counsel may have known of her existence regarding her testimony (excluding the desk
calendar), the absence of her testimony was not prejudicial to Defendant. Indeed,
Attorney DeMatt noted his reasons for not calling Deborah Finley as a witness. Because
of discovery tending to prove that Finley had informed officers that she had loaned
Defendant the handgun months or weeks before the murders, and the fact that she would
,
&
�
,.'··:..:·:.··;··
t
t
I
appear to be a biased witness, DeMatt was concerned that such testimony would "blow
I
up in our face." (PT 45).
(
)
'
i
I
!
This Court further finds that Attorney Delvlatt's testimony was highly credible. As
he noted, Finley could easily have been impeached with her statements to officers, and
Attorney DeMatt determined that based on these inconsistent statements, her testimony
would not be in his client's best interest. Defense counsel's decision represents a trial
strategy as outlined in cases such as Comm. v. Sneed, 45 A.3d 1096, p08-09 (Pa.Super.
2013). DeMatt noted that he met with Finley in person approximately three to five times,
I
and spoke with her on the telephone approximately a dozen times. (PT 45-46). While he
was unsure if Finley unequivocally stated that she had loaned her son the handgun before
the murders, he testified that Defendant informed him of this fact. (PT 46). Finley also
testified that she never informed DeMatt about the existence of the desk calendar, and
.,
.·;
DeMatt confirmed that fact in his own testimony. (PT 19, 45). Thus, DeMatt made a
conscious decision, based on the information available to him, that Finley would not be a
reliable witness.
Conversely, this Court finds that Deborah Finley was not a credible witness. It
finds troublesome the fact that Finley wrote "murders" on her calendar two days before
her entry that states that she loaned Defendant the handgun. At thetime, she did not know
the victims of the crime, nor was she aware that any connection existed between the two
events. When District Attorney Peck inquired as to when Finley wrote "murders," she
stated: "I think I wrote it at the same time that I wrote that the gun - about the gun so I
could remember." (PT 22). Finley also denied informing officers that she loaned her son
28gQ
-----·-
. ·.· . . ,;:.
�· .. ·.· ..
the handgun prior to the murders, although her statements were con�iried in police
reports. (PT 24). Finley testified that while she was present for every day of the trial, she
did not recall hearing certain evidence linking her son to the Taurus 9mm, and did not
feel that her testimony regarding the existence of the desk calendar would be helpful to
Defendant at trial. (PT 17, 20).
Defendant, then, has not met his burden in establishing that there was no
reasonable basis for failing to call Finley as a witness. Finley's incongruous statements to
officers and the Court do not reflect that her testimony would have been beneficial for
Defendant, and Attorney DeMatt had a reasonable basis for not producing her as a
witness at trial. Based on the testimony and claims discussed, supra, Attorney DeMatt
was not ineffective as a result of this determination, and Defendant's claim must fail.
NOTICE OF INTENT TO DISMISS:
Accordingly, the Court hereby notifies the parties of its intention to dismiss
Defendant's amended post-conviction petition.
THE DEFENDANT MAY FILE A WRITTEN RESPONSE TO THIS
NOTICE. SUCH A RESPONSE MUST BE FILED WITHIN 20 DAYS FROM
THE DATE OF TIDS NOTICE. IF NO RESPONSE IS FILED, TIDS COURT
SHALL DISMISS THE PETITION.
If a response is filed, this Court may, instead, upon consideration of the response,
grant leave to file an amended petition or otherwise direct that the proceedings continue.
Any response should address specifically the areas of defect delineated within the body
of this Order of Court.
If no response is filed, the Court shall dismiss the Defendant's PCRA Petition. If
a response is filed, the Court may, upon consideration of the response, dismiss the
Petition, grant leave to file an amended Petition or otherwise direct that the proceedings
continue.
Defendant may, if he chooses, avail himself of the assistance of PCRA counsel in
the preparation of this response, or he may elect to file the required response pro-se.
·��
· = 2zv,,3!�
futa Donovan Hathaway, Judge
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30a