Citation Numbers： 71 A.3d 1029, 2013 Pa. Super. 204, 2013 WL 3808039, 2013 Pa. Super. LEXIS 1675
Judges： Allen, Bender, Bowes, Donohue, Gantman, Olson, Ott, Stevens, Wecht
Filed Date： 7/23/2013
Status： Precedential
Modified Date： 10/26/2024
OPINION BY
Aaron Thomas Luster (“Appellant”) appeals from the trial court’s order denying his petition for relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq. Claiming ineffective assistance of counsel, Appellant seeks relief from an aggregate sentence of 14 to 28 years’ imprisonment, which was imposed following his conviction by a jury of third degree murder and murder of an unborn child.
We glean the following facts and procedural history from the record. ' On January 28, 2003, at approximately 2:30 a.m., the corpse of Christine Karcher, (“victim”), was discovered by police on Route 60 in the Moon Township/Coraopolis-area of Allegheny County. At that time, the victim was approximately seven months pregnant. She was romantically involved with Appellant, but lived -with Chester Bell. Bell had been the victim’s boyfriend for ten years. She had informed Bell that Appellant was the father of her unborn child.
On January 27, 2003, at approximately 9:00 p.m., Bell had a drink with the victim at a Coraopolis bar known as the Black Stones. The victim was a drug user and a heavy drinker. The victim left the bar stating that she was going to play cards with some friends. About one hour later, Bell went home and fell asleep. At approximately 3:30 a.m. on January 28, 2003, Bell awoke and discovered that the'door to his residence was open, and that his Dodge Dynasty, cell phone, and a red Toyota Camry belonging to his employer were missing. Bell assumed that the victim had borrowed the missing items and went back to sleep. When he awoke the following morning, the items were still missing. Bell was unable to reach the victim on the cell phone. Bell contacted his employer, and the red Toyota Camry was reported as Stolen. Later that day, Bell learned that the police wanted to speak with him in connection with the victim’s death.
At .approximately 10:30 p.m., on January 27, 2003, Eric Branaugh, the. victim’s friend, was walking home after work when he encountered the victim driving the Dodge Dynasty. The victim appeared drunk, nervous, and afraid. The victim explained to Branaugh that she and Appellant had argued, and that she feared Appellant was planning to harm her. Although Branaugh refused the victim’s request to accompany her to a bar, he gave her his telephone number and told her that she could call him.
Between 10:00 p.m. and 11:00 p.m. on January 27, 2003, Michael Smith arrived at Chez Lounge, a bar near the Black Stones. Smith knew the . victim and Appellant. Smith saw the victim drinking at Chez Lounge. " Sometime before 1:00 a.m. on
Following her departure with Appellant, the victim made several calls to 911 with Bell’s cell phone. The conversations with the 911 operator began at 1:52 a.m. on January 28, 2003. During the 911 calls, the victim was either moaning and crying, or desperately pleading for help while a male voice was heard in the background. The recordings of those 911 calls were played for the jury and they lasted twelve to fifteen minutes. Bell listened to the 911 calls and identified the male voice as belonging to Appellant. Id. at 377. On January 28, 2003 at 2:09 a.m., state police in the area of Route 60 were advised.“to be on the lookout for a red Toyota Camry with a female possibly being assaulted on the interstate.” Id. at 190.
The victim also telephoned Branaugh. In that 'telephone conversation, the victim told Branaugh that Appellant was trying to kill her. Branaugh overheard Appellant in the background threatening to kill the victim. Branaugh was unable to ascertain where the victim was calling' from and he did not obtain help for her.
At approximately 2:15 a.m. on January 28, 2003,, the victim was lying prone on Route 60 when she was struck by a vehicle driven by James Caleffi. Caleffi had a few beers prior to the incident and thought that he had hit a deer or other object. He stopped his vehicle in a hotel parking lot nearby. Caleffi phoned 911 to report that theré was an obstrúction on the road. Police discovered the victim’s corpse on Route 60 at approximately 2:30 a.m. Most of the victim’s brain was on the road next to her body. Her unborn child had died as well. A police accident reconstructionist was immediately' dispatched to the scene, and his subsequent investigation included a review of the accident scene, Caleffi’s car, and the red Toyota Camry. He concluded that Caleffi ran over the victim’s head while she was lying on ' the road.
Sometime in the early morning hours of January 28, 2003, Appellant gave the red Toyota Camry to James Dixon in exchange for crack cocaine. During the same time frame, Appellant used Bell’s cell phone to call his wife, Cherry! Ann Luster (“Wife”). Appellant asked his wife, “will you love me no matter what I did[?]” Id. at 132. Wife answered affirmatively, but Appellant refused to tell her what he had done. Later in the day on January 28, 2003, Wife saw Appellant at his mother’s home. Wife testified that she observed Appellant kneeling over a. bed with his hands on his face.
Appellant gave two statements to police. On January 28, 2003, at approximately 5:00 p.m., State Trooper Kevin S. Scott went to Appellant’s home. Appellant agreed to accompany Trooper Scott to the police station. Trooper Scott testified that during the trip, Appellant asked Trooper Scott whether the investigation was “about the girl that got hit on 60 last night.” Id. at 399. Trooper Scott responded affirmatively and said that police were attempting to ascertain a timeline of the victim’s whereabouts the previous night.
Tropper Scott further testified that Appellant stated he had been “partying in Coraopolis” with the victim, that they had gone to Bell’s home “to get some money for crack,” and that the victim had left Appellant at Bell’s home. Id. Appellant reported to Trooper Scott that following the victim’s departure, Appellant took the keys to the red Toyota Camry and Bell’s cell phone and began looking for her. Id. at 399-400. Appellant told Trooper Scott that Appellant found the victim with another man. Id. at 400. Trooper Scott testified that Appellant explained that “there was an argument” and Appellant “put [the victim] into the Camry and said we’re going to go to Carnegie [where Appellant and the victim had an apartment together] to try to work things out”' Id. Appellant explained to Trooper Scott that the “fighting intensified” while they were on the way to Carnegie. Id. According to Trooper Scott, Appellant “said that [the victim]'didn’t want to "go to Carnegie so he was going to put her out of the car.” Id. Trooper Scott stated that Appellant’s exact words were that he planned to “put her out of the car.” Id. Appellant relayed that at that point, Appellant and the victim observed a police car and “the fighting relaxed,” but as soon as they “passed the police car; the fighting got more intense.” Id. at 40(M:01. Appellant “said that is when he put her out of the car. Slammed the gear shift into park and put her out of the car.” Id. Appellant offered to show Trooper Scott “where he put her out of the car.” Id. at 401. “After [Appellant] told [Trooper Scott] that he put her out of the car four times, then he showed [Trooper Scott] where it occurred.” Id. at 401. Appellant showed Trooper Scott that Appellant removed the victim from the Camry at the point where the victim’s body was found. Id. Appellant concluded his conversation with Trooper Scott by relating that after he removed the victim from the car, he went to another section of Pittsburgh to purchase crack cocaine. Id. at 401-402.
State Trooper Pierre Wilson testified that Appellant agreed to speak with police once Appellant arrived at the police station. A tape recording of this interview was played for the jury at trial. Id. at 379. That interview was not placed in the trial transcript, but trial counsel’s closing arguments indicate that Appellant told police that Appellant and the victim were arguing while they were traveling along Route 60 in the red Toyota Camry. Id. at 455. According to Appellant, the victim “threw the car into park,” propelling Appellant and the victim “forward.” Id. at 455. The victim “banged her face into [the] dashboard.” Id. Appellant reported that the victim then left the car of her own accord and ran away. Id. at 453.
In the course of their investigation, police found the victim’s blood on Appellant’s clothing and on three different locations inside the red Toyota Camry. A hair matching the victim’s DNA was discovered wrapped around a bar located on the rear passenger side of the undercarriage of the Toyota.
Appellant was charged with the aforementioned murder crimes. On March 19, 2004, following a weeklong • trial, a jury found- - Appellant guilty of third degree murder in both the death of the victim and her unborn child. Two months later, Appellant was sentenced to two consecutive terms of imprisonment of seven to 14 years, for an aggregate term of-imprisonment of 14 to 28 years. Appellant filed a timely direct appeal challenging''the sufficiency of the evidence, the trial court’s jury instructions on causation and the trial court’s ruling which permitted the Commonwealth to play the 911 tape recording to the jury. On April 17, 2006, this Court affirmed the judgment of sentence. Commonwealth v. Luster, 902 A.2d 979 (Pa.Super.2006) (unpublished memorandum). On February 27, 2007, the Pennsylvania Supreme Court denied Appellant’s petition for allowance of appeal. Commonwealth v. Luster, 591 Pa. 681, 917 A.2d 313 (2007). Appellant filed a timely pro se PCRA petition on July 5, 2007. Counsel was appointed, but on February 11, 2008, counsel filed a petition to withdraw his appearance, and a no-merit letter pursuant to' Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988). Two days later, the PCRA court granted counsel’s petition to withdraw.' On April 4, 2008, the trial court denied Appellant’s PCRÁ petition without holding, an evidentiary hearing. Appellant filed a pro. se appeal to this Court. On September 21, 2009, a panel of this Court concluded that at least seven of .the issues raised by Appellant in his PCRA petition were, potentially, of arguable merit. Thus, we reversed the order of the PCRA court and remanded the case “with directions for the trial court to reinstate [Appellant’s] PCRA petition, and appoint new counsel to assist him in his pursuit of PCRA relief.” Commonwealth v. Luster, 986 A.2d 1259 (Pa.Super.2009) (unpublished memorandum at 31). ■
. Appellant presents the following issues for our review:
1. DID THE TRIAL COURT ERR IN DENYING APPELLANT’S PCRA PETITION SINCE TRIAL COUNSEL FOREMAN WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE HEARSAY TESTIMONY OF COMMONWEALTH WITNESS ERIC BRANAUGH?
2. DID THE TRIAL COURT ERR IN DENYING APPELLANT’S PCRA PETITION SINCE TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO CROSS-EXAMINE BRANAUGH REGARDING TRIAL TESTIMONY THAT WAS INCONSISTENT WITH A STATEMENT THAT HE HAD GIVEN TO POLICE?
3. DID THE TRIAL COURT ERR IN DENYING APPELLANT’S PCRA PETITION SINCE APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO CHALLENGE THE TESTIMONY OF APPELLANT’S WIFE REGARDING COMMENTS THAT HE ALLEGEDLY MADE TO HER FOLLOWING THE INDECENT [sic] WITH [THE VICTIM]?
4. DID THE TRIAL COURT ERR IN DENYING APPELLANT’S PCRA PETITION SINCE TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO RETAIN A FORENSICS EXPERT TO COUNTER THE COMMONWEALTH’S ADVANCED THEORY THAT APPELLANT HAD STRUCK [THE VICTIM] WITH HIS CAR AFTER FORCING HER OUT OF THE CAR, OR TO COUNTER THE COMMONWEALTH’S THEORY THAT THE VICTIM WAS LYING ON THE ROADWAY WHEN HIT BY CALEFFI [SHE MAY HAVE BEEN ALERT AND WALKING, OR NOT EVEN ON THE ROADWAY (ON THE BERM), WHEN STRUCK AND KILLED BY CALEFFI]?
5. DID THE TRIAL COURT ERR IN DENYING APPELLANT’S PCRA PETITION SINCE TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE PROSECUTOR’S MISCONDUCT IN ALLEGING IN CLOSING ARGUMENT THAT APPELLANT RAN OVER AND [sic] INCAPACITATED [VICTIM]; THERE WAS NO EVIDENCE OF RECORD TO SUPPORT SUCH AN ASSERTION?
6. DID THE TRIAL COURT ERR IN DENYING APPELLANT’S PCRA PETITION SINCE TRIAL COUNSEL AND/OR APPELLATE COUNSEL WERE INEFFECTIVE FOR FAILING TO RAISE A WEIGHT OF THE EVIDENCE CLAIM, REGARDING THE THIRD-DEGREE MURDER CONVICTIONS, IN POST SENTENCING MOTIONS/DIRECT APPEAL?
7. DID THE TRIAL COURT ERR IN DENYING APPELLANT’S PCRA PETITION SINCE APPELLATE*1039 COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE A CLAIM REGARDING THE TRIAL COURT ERROR IN ADMITTING THE IRRELEVANT AND PREJUDICIAL TESTIMONY OF ROBERT PENNY-BAKER, AND TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO INCLUDE AS PART OF HIS OBJECTION A CLAIM THAT THE TESTIMONY CONSTITUTED PREJUDICIAL PRIOR BAD ACTS OF APPELLANT?
8. DID THE TRIAL COURT ERR IN DENYING APPELLANT’S PCRA PETITION SINCE TRIAL COUNSEL Was ineffective for failing TO FILE A SUPPRESSION MOTION REGARDING. APPELLANT’S STATEMENT TO TROOPER SCOTT WHILE BEING TRANSPORTED SINCE APPELLANT WAS NEVER GIVEN MIRANDA WARNINGS?
9. DID THE TRIAL COURT ERR IN DENYING APPELLANT’S PCRA PETITION SINCE TRIAL .COUNSEL WAS INEFFECTIVE FOR PRESENTING A “FRIVOLOUS AND MEANINGLESS DEFENSE” TO THE HOMICIDE CHARGES?
10. DID THE TRIAL COURT ERR IN DENYING APPELLANT’S PCRA PETITION SINCE TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE TESTIMONY OF ERIC BRANAUGH INDICATING THAT HE HEARD APPELLANT’S VOICE IN THE BACKGROUND DURING A TELEPHONE CALL BETWEEN BRANAUGH AND [THE VICTIM]?
11. DID THE TRIAL COURT ERR IN DENYING APPELLANT’S PCRA PETITION SINCE TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO IMPEACH CORONER DR. LEON ROZIN REGARDING HIS “CONTRADICTORY TESTIMONY”?
12. DID THE TRIAL COURT ERR IN DENYING APPELLANT’S PCRA PETITION SINCE TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING [TO] OBJECT TO TELEPHONE RECORDS . INTRODUCED INTO EVIDENCE SINCE THEY WERE NOT ACCOMPANIED BY TESTIMONY FROM THE CUSTODIAN OF THOSE TELEPHONE RECORDS?
13. DID THE TRIAL COURT ERR IN DENYING. APPELLANT’S PCRA PETITION SINCE TRIAL COUNSEL WAS INEFFECTIVE FOR “FAILING TO CHALLENGE THE CAUSATION RULE AT EVERY LEVEL OF TRIAL”?
Appellant’s Brief at 3-4.
When reviewing the denial of PCRA relief, “we must determine whether the ruling of the PCRA court is supported by the record and is free of legal error.” Commonwealth v. Chmiel, 612 Pa. 333, 30 A.3d 11-11, 1127 (2011) (internal citation omitted). Here, all of Appellant’s claims allege the ineffectivenéss of prior counsel.
To prevail on an ineffective assistance claim, a defendant must establish “(1) [the] underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his [client’s] interests; and (3) but for counsel’s ineffectiveness, there is a reasonable probability-that the outcome of the proceedings would have been different.” A failure to satisfy any prong of the test for ineffectiveness will require rejection of the claim.
Commonwealth v. Johnson, 27 A.3d 244, 247 (Pa.Super.2011) (internal citations omitted). The Pennsylvania Supreme Court'has emphasized, “ ‘[i]f it is clear that [the petitioner] has not demonstrated that
Appellant’s first, second, and tenth issues involve Branaugh’s testimony. Because these issues are interrelated, we will address them together. Branaugh testified that he was walking home from work at approximately 10:30 p.m., on the evening of January 27, 2003, when the victim pulled up in the Dodge Dynasty. Bra-naugh described the victim as “nervous and scared,” and noted that “[s]he sounded like she had been drinking.” N.T., 3/15— 19/04, at 100. Branaugh testified that the victim told him that she and Appellant “had an argument that night and [Appellant] was going to do something real -bad to her and she was ... really scared.” Id. at 100-101. The victim then asked Bra-naugh to have a drink and “hang out with her to make sure that nothing happened] to her.” Id. at 101. Branaugh declined but gave her his cell phone number, and told her to call him “a little later.” Id. Branaugh testified that approximately an hour later he received a call from the victim, which he described as follows:
At that time when she called me ... she was in a car. She says she was with [Appellant], she was scared. She was crying. I heard [Appellant] in the background screaming and cussing at her. She was telling me that he’s trying to kill me. He’s trying to kill me.
Id. at 102. Branaugh testified specifically that during the phone call, he heard Appellant “cussing and screaming” at the victim, saying things such as “[y]ou bitch,-mother f[ ]er and I’m going to kill you, bitch, and a couple just obscenities.” N.T., 3/15-19/04, at 102. Branaugh estimated that the call lasted approximately three to four minutes before “the phone went dead”. Id. at 102-103.
Appellant challenges trial counsel’s effectiveness for (1) failing to object to Bra-naugh’s identification of Appellant’s voice, (2) failing to object to the testimony as inadmissible hearsay, and (3) failing to cross-examine Branaugh with a prior inconsistent statement. ' ■
Appellant contends that Bra-naugh acknowledged that he did not know Appellant well and that he had not talked with him much, rather only to “say hi.” N.T.', 3/15-19/04, at 103. However, Bra-naugh’s identification of Appellant was not based upon his recognition of Appellant’s voice, but rather upon the fact that the victim told him that she was in a car with Appellant. ' Branaugh testified that the victim told him that “she was in a car ... with [Appellant] ...” Id. at 102. Significantly, trial counsel-testified at the PCRA hearing as follows:
[Branaugh’s] testimony was based on possible assertions by [the victim] that she was with [Appellant], and that he was doing these terrible things to her, and then [Branaugh] said he overheard in the background certain things threats or expletives being used. It was fairly clear I believe that [Branaugh] believed based on his conversation that it was [Appellant]. [Branaugh] didn’t say it was based on voice identification. [Brankugh] said it was based upon what [the victim] had told him and what he heard on the phone call.
N.T., 1/11/11, at 29 (emphasis supplied). We agree, and do not find that Branaugh’s identification of Appellant was based on Appellant’s voice. Further, considering that Appellant admitted he was in a car with the victim that evening, and that the
Appellant' also argues that trial counsel was ineffective for failing to object to Branaugh’s testimony as hearsay. Hearsay testimony is “a statement, other than one made by the declarant ... offered in evidence to prove the truth of the matter asserted,” and is generally, inadmissible at trial. Pa.R.E. 801(c), 802. However, excited utterances and statements relating to the declarant’s existing state of mind are admissible exceptions to the hearsay rule. See Pa.R.E. 803(2), (3). Branaugh’s testimony concerning the victim’s statements to him (1) on the street when she stated that she was fearful that Appellant “was going to do something real bad to her,” and (2) in Appellant’s car when she stated that she was “scared” and that Appellant was “trying to kill” her, both constitute hearsay. N.T., 3/15-19/04, at 100-101. Therefore, we must determine whether they qualify as exceptions to the hearsay rule.
In its opinion, the PCRA court .found that the victim’s statements “fit squarely” into the “state of mind” and “excited utterance” exceptions to the hearsay rule. PCRA Court Opinion, 2/28/11, at 3. We disagree with the trial court’s determination that the victim’s statement to Bra-naugh on the street that she was scared that Appellant “was going to do something real bad to her” was an excited utterance. The victim was not under the stress of a startling event at the time that she made that statement. See Pa.R.E. 803(2). However, we find that this statement fell under the “state of mind” exception to the hearsay rule.
Rule 803(3) provides an exception to the preclusion of evidence under the hearsay rule for “[a] statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain arid bodily health.” Pa.R.E. 803(3). As a panel of this Court noted in the prior PCRA appeal, “[t]he- admissibility of statements such as those by Branaugh ... have been subject of considerable discussion in Pennsylvania jurisprudence.” Commonwealth v. Luster, 986 A.2d 1259 (Pa.Super.2009) (unpublished memorandum at 13). Generally, our appellate courts have held that out-of-court statements by homicide victims are admissible when the statements are relevant for some other purpose, such as proof of motive or malice. See Commonwealth v. Puksar, 559 Pa. 358, 740 A.2d 219, 225 (1999), cert. denied, 531 U.S. 829, 121 S.Ct. 79, 148 L.Ed.2d 42 (2000) (victim’s statements that he did not trust defendant/brother and that he believed-that defendant was trying to pass off replica model trains as originals were admissible to prove motive and ill will between brothers). Here, the victim’s statement that she feared Appellant and he was going to harm her is admissible because it shows Appellant’s ill will and malice toward the victim. Id. at 225. Further, the statement explains why the victim did not want to accompany Appellant to Carnegie to address their relationship, a rejection which, according to Appellant, prompted him to remove the victim from the car.
We recognize that hearsay evidence concerning the victim’s state of mind is admissible only where the victim’s state of mind is. a “factor in issue” at trial. Commonwealth v. Laich, 566 Pa. 19, 777 A.2d 1057, 1061 (2001). Appellant’s trial counsel, when presented at the PCRA
The prosecution’s theory, as I understood it at the time, was that the [victim] was being held against her will, and that goes to the question of whether she voluntarily left the car, and again, it’s all tied into the root question of causation, and the [trial] [c]ourt made it clear that it was going to hold admissible anything that tended to show what her state of mind was at the time of the incident, and in fact, what her state of mind might have been remote to the incident.
N.T., 1/11/11, at 7.
We similarly do not find that Laich supports Appellant’s contention that the victim’s statements concerning her fear and apprehension of Appellant were inadmissible hearsay. In Laich, the defendant admitted his guilt, and therefore our Pennsylvania Supreme Court determined that the victim’s statements regarding defendant’s jealous threats to kill her were “simply not relevant given appellant’s defense” of sudden provocation. Laich, 111 A.2d at 1062. In contrast, Appellant has repeatedly denied his guilt, has not claimed any sudden provocation relative to the victim, and has denied acting with malice.
Even if we accept Appellant’s contention that the victim’s statement that she feared Appellant and that Appellant was going to harm her was irrelevant to the disputed issues of causation or malice, we conclude that the hearsay statement was merely cumulative of other evidence discussed more fully below, and was harmless error. See Commonwealth v. Thornton, 494 Pa. 260, 431 A.2d 248, 251-252 (1981) (While the trial court erred in admitting statement that murder victim carried a gun for protection against defendant and his siblings who were “after” victim because “the victim’s state of mind was not a matter in issue in the case,” the admission was harmless error due to the overwhelming evidence of the appellant’s guilt and the lack of support for the appellant’s defenses of self-defense and provocation.).
With respect to Branaugh’s testimony regarding the victim’s cell phone call that occurred while she was riding in the car with Appellant, Branaugh testified that the victim was crying when she called him, and that she said she was scared and that Appellant was “trying to kill” her. N.T., 3/15 — 19/04, at 102. Pennsylvania Rule of Evidence 803(2) defines an excited utterance as “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” The Pennsylvania Supreme Court has explained that “it must be shown first, that [the declarant] had witnessed an event sufficiently startling and so close in point of time as to render her reflective thought processes inoperable and, second, that her declarations were a spontaneous reaction to that startling event.” Commonwealth v. Sherwood, 603 Pa. 92, 982 A.2d 483, 496 (2009), cert denied, 559 U.S. 1111, 130 S.Ct. 2415, 176 L.Ed.2d 932 (2010) (internal citation omitted).
Here, Branaugh testified that as the victim was crying and telling him that Appellant was “trying to kill” her, he could hear Appellant in the background “cussing and screaming at her,” saying “[y]ou bitch, mother f[]er and I’m going to kill you, bitch....” N.T., 3/15-19/04, at 102. Thus, the victim’s statement to Branaugh was made at a time when she believed that Appellant was trying to hurt her, regardless of whether Appellant was actually trying to kill her. As such, we agree with the trial court that the victim’s statement in the car qualifies as an “excited utterance,”
Appellant additionally argues that trial counsel was ineffective for failing to cross-examine Branaugh with a prior inconsistent statement he gave to Pennsylvania State Trooper Pierre Wilson the day after the victim was killed. Trooper Wilson memorialized the statement in his Homicide Investigation Report as follows:
On 01/29/03 at approx. 1205 hrs. I received a call from Eric Maurice BRA-NAUGH. ... BRANAUGH related the following. I was dropped off by the Uni-Mart on Fifth Ave. in Coraopolis by a friend after work. I guess this was around 10-10:30 P.M. on 01/27/03. As I started walking toward home, [the victim] pulled up and asked me to hang out with her. She was alone and said she was afraid that [Appellant] was going to hurt her or do something real bad to her. I told her that I was just getting off of work and needed to go home and get a shower. I told her to call me later and maybe I’ll come back out. At that point she drove away. At approx. 11:30 P.M.- — 12:00 (Mid-Night) [the victim] called me back from a cell phone. She asked me if I would come out and have a beer with her. I said aren’t you pregnant? She said yes, but I’m really scared and nervous. I noticed that she was crying and her voice was trembling. She sounded drunk, slurring and such. I told her that I was in bed and that I wasn’t coming back out. I hung the phone up and that was the last time I heard from her.
No Merit Letter, dated 2/28/08, Exhibit, Homicide Investigation Report (emphasis supplied).
Branaugh’s statement to Trooper Wilson did not include an account of the cell phone call from the victim, in which he could hear Appellant screaming at her as she was crying and telling Branaugh that Appellant was “trying to kill” her. Pennsylvania Rule of Evidence 613 provides, in relevant part:
A witness may be examined concerning a prior inconsistent statement made by the witness, whether written or not, and the statement need not be shown or its contents disclosed to the 'witness at that time, but on request the statement or contents shall be shown or disclosed to opposing counsel.
Pa.R.E. 613(a) (emphasis in original). This Court has clarified that “[m]ere dissimilarities or omissions in prior statements ... do not suffice as impeaching evidence; the dissimilarities or omissions must be substantial enough to- cast doubt on a witness’ testimony to be admissible as prior inconsistent statements.”. McManamon v. Washko, 906 A.2d 1259, 1268 (Pa.Super.2006), appeal denied, 591 Pa. 736, 921 A.2d 497 (2007), quoting Commonwealth v. Bailey, 322 Pa.Super. 249, 469 A.2d 604, 611 (1983).
Here, even if Branaugh "had been cross-examined on his failure to inform Trooper Wilson regarding the sum- and substance of the victim’s call, this omission would not have cast substantial doubt on the veracity of Branaugh’s trial testimony because: (1) the 911 tapes which were played for the jury independently established that the male in the car with the victim was assaulting the victim and threatening to kill her; (2) Appellant’s statements to police established that he was the male in the car with the victim and that their argument had .been intense; and (3) Dr. Rozin’s testimony documented the violent nature of the argument based on the physical evidence of manual assault and strangulation
Moreover, in McManamon, we explained:
“[A] summary of a witness’ statement cannot be used for impeachment purposes absent adoption of the statement by' the witness as his/her own.” Id. [Commonwealth v. Woods, 710 A.2d 626 (Pa.Super.1998) ] The rationale for this rule is: “[I]t would be unfair to allow a witness to be impeached on a police officer’s interpretation of what was said •’rather than the witness’ verbatim words.” Commonwealth v. Simmons, 541 Pa. 211, 245, 662 A.2d 621, 638 (1995).
McManamon, 906 A.2d at 1268. In this case, trial counsel conceded that Trooper Wilson’s report was a “summary [of a] phone conversation,” and it did not “appear that [Branaugh] himself had signed ... adopted ... or reviewed it in any manner.” N.T., 1/11/11, at 44-45. Given the foregoing, we do not find that the omission of information by Branaugh as reflected in' the police report was “substantial enough to cast doubt on [Branaugh’s] testimony.” McManamon, 906 A.2d at 1268: Additionally, Trooper Wilson’s homicide investigation report was merely a summary of the telephone conversation, was not a formal witness examination, and Trooper Wilson’s record of same was not written or signed by Branaugh. See Homicide Investigation Action Report, Incident No. B3-1306859, 1/29/03, at 1. Accordingly, these factors militate against any inconsistencies between Trooper Wilson’s summary of his conversation with Branaugh and Branaugh’s trial testimony, and thus undermine Appellant’s claim that trial counsel was ineffective for not cross-examining Branaugh on possible inconsistencies. See Commonwealth v. Foglia, 979 A.2d 357, 362-363 (Pa.Super.2009) (en banc) (counsel not ineffective for failing to cross-examine witness with inconsistencies between police report and testimony where report was cursory and non-ehronological outline of facts).
In his third issue, Appellant contends that his direct appeal counsel was ineffective for failing to challenge the trial court’s admission of Wife’s testimony on behalf of the Commonwealth. Appellant contends that his wife testified to confidential communications in violation of 42 Pa. C.S. § 5914, which provides that “in a criminal proceeding neither husband nor wife shall be competent or permitted to testify to confidential communications made by one to the other, unless this privilege is waived upon the trial.”
Prior to Wife’s testimony, trial counsel objected to the admission based upon the spousal privilege set forth in Section 5914. The Commonwealth countered that Section 5914 had to be read in conjunction with 42 Pa.C.S. § 5913. Specifically, Section 5913 reads, in relevant part,
Except as otherwise provided in this subchapter, in a criminal proceeding a person shall have the privilege, which he or she may waive, not to testify against his or her then lawful spouse except that there shall be no such privilege:
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*1045 (4) in a criminal proceeding in which one of the charges pending against the defendant includes murder, involuntary deviate sexual intercourse or rape.
42 Pa.C.S. § 5913(4). Over trial counsel’s objection, Wife was permitted to testify for the Commonwealth.
Wife testified that she and Appellant were married in July of 1999, and separated in March of 2002. She stated that in the early morning hours of January 28, 2003, she received a phone call from Appellant in which he asked her “will you still love me no matter what I did,” to which she responded “yes.” N.T., 3/15-19/2004, at 132. Although she asked him what he was talking about, Appellant would not tell her. Wife testified that she saw Appellant later that evening at his mother’s house, and that he was “leaning over [a] bed with his hands over his face and his knees on the floor.” Id. at 136. Again, she asked him what was wrong, and he refused to answer her. Id.
In Commonwealth v. Small, 602 Pa. 425, 980 A.2d 549 (2009), the Pennsylvania Supreme Court clarified that Sections 5913 and 5914 “are separate rules, and § 5913’s exception preventing a spouse from asserting the privilege in certain criminal proceedings does not trump § 5914.” Id. at 561. Section 5914 renders a spouse incompetent to testify against another spouse in a criminal prosecution regarding confidential communications. The privilege set forth in Section 5914 is personal to the defendant spouse, and therefore, “waivable only by the spouse asserting the privilege.” Id. at 561 (holding that wife could not waive Section 5914 privilege in prosecution against husband).
When considering whether appellate counsel had a reasonable basis for her actions, “we do not question whether there were other more logical courses of action which counsel could have pursued: rather, we must examine whether counsel’s decisions had any reasonable basis.” Commonwealth v. Rios, 591 Pa. 583, 920 A.2d 790, 799 (2007). “We- will conclude that counsel’s chosen strategy lacked a reasonable basis only if Appellant proves that ‘an alternative not chosen offered a potential for success substantially greater than the course actually pursued'.’ ” Commonwealth v. Paddy, 609 Pa. 272, 15 A.3d 431, 442 (2011) (citation omitted).
During the PCRA hearing, ' appellate counsel acknowledged that-she had initially included the spousal immunity challenge in her concise statement of reasons- relied upon for appeal. N.T., 1/11/11, at 53. However, she decided to omit the issue from the appellate brief because she felt that it was not as strong an argument as the other three issues she included in her brief. Id. She admitted that she believed the claim “might have merit,” but that “it might be harmless error” and “wasn’t that important to the ultimate issue.” Id. at 54: We agree. See Commonwealth v. Showers, 782 A.2d 1010, 1016 (Pa.Super.2001) (internal citations omitted) (“It is the obligation of appellate counsel to present issues, which in' counsel’s professional judgment, ‘go for the jugular’ and ... not [to] get lost in a mound of other colorable, non-frivolous issues which are of lesser merit.”).
. We recognize that “[c]ommuni-cations between spouses are presumed to be confidential, and the party opposing application of the rule disqualifying such testimony bears the burden of overcoming this presumption.” Commonwealth v. McBurrows, 779 A.2d 509, 514 (Pa.Super.2001) (internal citation omitted). The privilege under 42 Pa.C.S,A. § 5914 prevents a spouse from testifying against the declarant-defendant spouse regarding “any communications which were confidential w
•Here; the record shows that Appellant and his wife were separated prior to January 28,' 2003, when the victim was killed, and that their contact was centered on their children. N.T., 3/15-19/04, at ISO-131. Wife had not even spoken with Appellant for a month prior to Appellant calling her on January 28, 2003. Id. at 132. Appellant was involved in a romantic relationship with the victim, who had told Bell that Appellant was the father of her unborn child. Appellant utilized a cell phone that did not belong to him to call his wife. Further, Wife was living with her sister when Appellant called her. Id. at 131. The state of the marital relationship, the lack of regular contact between the spouses, and the way Appellant contacted his wife, weighs against an expectation of confidentiality by Appellant concerning his statement to Wife. See Burrows, 779 A.2d at 514. Indeed, we find that the “nature of the communication [was] not imbued with an aura of a sharing disclosure precipitated largely due to the closeness spouses share,” and therefore the statement was not privileged. Id. at 514. We also note that Wife’s observation of Appellant’s act of kneeling with his head in his hands did not involve any communication at all. Moreover, Appellant’s implication to his wife that he had done something wrong was merely cumulative of other trial evidence, such that the admission of Wife’s testimony did not prejudice Appellant. Prejudice requires proof that “but for counsel’s ineffectiveness, there is a reasonable probability that the outcome of the proceedings would have been different.” Commonwealth v. Johnson, 27 A.3d 244, 247 (Pa.Super.2011) (internal citations omitted).
We have explained:
[A]n error may be considered harmless only when the Commonwealth proves beyond a reasonable doubt that the error could not have contributed to the verdict. Whenever there is a “reasonable possibility” that an error “could have contributed to the verdict,” the error is not harmless.
Commonwealth v. Koch, 39 A.3d 996, 1006-1007 (Pa.Super.2011) (internal citation omitted). In Small, supra, our Supreme Court expressed that “[e]ven if privileged testimony under [42 Pa.C.S.A.] § 5914 is erroneously admitted into evidence, it is harmless error if it is merely cumulative of other admissible testimony.” Small, 980 A.2d at 562 (internal citation omitted). Likewise, we expressed that the “properly admitted testimony” of a third party regarding the topic of declarant-de-fendant’s disclosures to his spouse, “rendered [testifying spouse’s] testimony cumulative on that particular point ... [and] [t]hus, any error possibly associated with the admission of [testifying spouse’s testimony] ... was harmless.” Commonwealth v. Reese, 31 A.3d 708, 720 (Pa.Super.2011) (internal citation omitted). Here, Trooper Scott testified that he observed Appellant in' a similarly penitent position after Appellant learned from Trooper Scott that the victim had been struck in the roadway where Appellant had removed her from the car. See N.T., 3/15-19/04, at 402. Specifically, Trooper Scott indicated that Appellant “just held
The record contains overwhelming evidence of Appellant’s guilt, which militates against a finding that the outcome of the trial would have changed if Wife’s testimony had been excluded. Appellant admitted that the victim was in his car the night of her death. Branaugh’s testimony, which we deem admissible, was that Appellant was arguing with, and “cussing and screaming” at the victim while she was in the car. Appellant admitted leaving the victim on the interstate where she was later found dead. The victim’s 911 call from the car records Appellant saying he has “nothing to lose” and that he was going to “power blast” the victim — statements which show the malice necessary for Appellant’s murder convictions. N.T., 8/15-19/04, at 216. The victim’s hair was found in the undercarriage of the car, indicating Appellant may have run over the victim with the vehicle. Id. at 487. There was additionally forensic evidence and medical testimony about strangulation marks on the victim’s neck, and of her having sustained bruises to her arms, chest, and abdominal area the night of her death. Id. at 329-353. Given the overwhelming evidence of Appellant’s guilt, we conclude that even if Wife’s testimony was inadmissible, the admission of her testimony at trial did not constitute harmful error entitling Appellant to a new trial.
Appellant’s fourth issue asserts that trial counsel was ineffective for failing to retain a forensics expert to counter the Commonwealth’s theories: (1) that Appellant struck the victim with his car before Caleffi struck her, and (2) that the victim was lying on the roadway when Caleffi struck her. In order to demonstrate counsel’s ineffectiveness for failure to call a witness, a petitioner must prove that “the witness[] existed, the witness [was] ready and willing to testify, and the absence of the witnessf] testimony prejudiced petitioner and denied him a fair trial.” Johnson, 27 A.3d at 247 (internal citation omitted). In' particular, when challenging trial counsel’s failure to produce expert • testimony, “the- defendant must articulate what evidence was available and identify the witness who was willing to offer such evidence.” Commonwealth v. Bryant, 579 Pa. 119, 855 A.2d 726, 745 (2004) (internal citation omitted). Also, “[t]rial counsel need not introduce expert testimony on his client’s behalf if he is able effectively to cross-examine prosecution witnesses and elicit helpful testimony.” Commonwealth v. Copenhefer, 553 Pa. 285, 719 A.2d 242, 253 (1998); accord Commonwealth v. Williams, 537 Pa. 1, 640 A.2d 1251, 1265 (1994). Finally, “trial counsel will not be deemed ineffective for failing to call a medical, forensic, or scientific expert merely to critically evaluate expert testimony which was presented by the prosecution.” Copenhefer, 719 A.2d at 253, n. 12.
Appellant has failed to identify any forensics expert who would have provided testimony to counter the Commonwealth’s theory of the case. Gur review of the record reflects that trial counsel effectively cross-examined the Commonwealth’s forensic expert. Significantly, trial counsel stated that he had “specifically questioned [Dr. Rozin] ... and brought to his attention differences in his testimony or changes that he had made in his testimony ... between March 7, 2003, which was the Coroner’s inquest and at trial[.]” N.T., 1/11/11, at 49. Moreover, trial counsel testified that he met with Dr. Rozin in preparation for trial to specifically discuss the positioning of the victim’s body. Id. at 15. Trial counsel testified that, after their conversation, he “was convinced that the evidence showed that [the victim] was in fact
Appellant’s fifth issue focuses on trial counsel’s failure to object to purported prosecutorial misconduct during the Commonwealth’s closing argument to the jury. Specifically, Appellant challenges the following portion of the Commonwealth’s closing argument:
Those tire tracks on the right side of her body most likely are Caleffi’s. You look at the picture of her left arm. You are allowed to use your common sense. You don’t need an expert to tell you that those tracks are going in the other direction. Her arm is broken in two places. It’s not an unlikely and reasonable [sic] inference from this evidence that the car was stopped. He [Appellant] was choking her, beating her, whatever was going on, had her over the side of the car. One of her hairs got up under the undercarriage. He put, her out and ran over her arm and sped away and then along comes Caleffi. There is no question that she was out of that car there and she didn’t go anywhere.
N.T., 3/15-19/04, at 487.
It is well established that a prosecutor is permitted to “vigorously argue his case so long as his comments are supported by the evidence or constitute legitimate inferences arising from that evidence.” Commonwealth v. Smith, 604 Pa. 126, 985 A.2d 886, 907 (2009), cert. denied, — U.S. -, 131 S.Ct. 77, 178 L.Ed.2d 50 (2010).
In considering a claim of prosecutorial misconduct, our inquiry is centered on whether the defendant was deprived of a fair trial, not deprived of a perfect one. Thus, a prosecutor’s remarks do not constitute reversible error unless their unavoidable effect ... [was] to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict. Further, the allegedly improper remarks must be viewed in the context of the closing argument as a whole.
Id. at 907 (internal citations omitted).
Trial counsel testified that he did not object to the prosecutor’s argument because “[trial counsel] felt it was [the prosecutor’s] right to make such an argument as to what he wanted the jury to interpret from the evidence and it was proper.” N.T., 1/11/11, at 18. Following review, we agree and conclude that the prosecutor’s argument constituted a fair inference based upon the evidence presented at trial. For example, the Commonwealth presented evidence that a hair, found on the underside of the Toyota Canary, matched the victim’s DNA. See N.T., 3/15-19/04, at 258-260 (testimony of accident reconstructionist) and at 321-323 (testimony of forensic examiner). Furthermore, although Dr. Rozin testified that the victim’s body showed two major areas of compression related to car tires, the “[m]id and upper torso,” he also stated there was a tire compression. on “[o]ne of the upper extremities.” Id. at 354; 362 (referring to “pattern injuries” on the victim’s left upper extremities). Since we conclude the Commonwealth’s closing argument was a fair inference based upon the evidence presented at trial, Appellant’s claim lacks merit.
In his sixth issue, Appellant contends that both trial and appellate counsel were ineffective for failing to raise a challenge to the weight of the evidence.
Since no challenge to the weight of the evidence was raised before the trial court either before sentencing or in a post-sentence motion, appellate counsel was precluded from raising a challenge on appeal, as any claim would have been waived. See Pa.R.Crim.P. 607. Thus, appellate counsel was not ineffective. With regard to trial counsel, during the PCRA hearing, trial counsel testified about his reasons for not challenging the weight of the evidence:
I didn’t raise a weight of the evidence claim basically because I believed that in .addition to the evidentiary issues raised, the real issue here was probably framed as the sufficiency of the evidence. It wasn’t so much a misapprehension of the facts by the fact finder. I was more concerned that it was a misapplication of the law.
N.T., 1/11/11, .at 19.
Trial counsel articulated a reasonable basis for not raising a weight claim. Moreover, the PCRA court determined that even if the claim had been raised, it would have found that “the jury’s verdict was not so contrary to the evidence as to shock one’s sense of justice” and that it “would not have granted a new trial on a weight of the evidence argument.” PCRA Court Opinion, 2/28/11, at 4-5 (emphasis supplied). Therefore, Appellant is not entitled to relief on this claim.
In his seventh issue, Appellant criticizes both trial and appellate counsel for their failure to object to the testimony of witness Robert- Pennybaker.' Specifically, Appellant argues that trial counsel was ineffective for failing to challenge Penny-baker’s testimony relative to prior bad acts, and that appellate counsel was ineffective for failing to challenge the trial court’s ruling permitting Pennybaker to testify.
Pennybaker lived in the same apartment building as Bell. He knew the victim and Appellant. Pennybaker testified that when Bell would leave for work, often for days at a time, Appellant would come to the apartment while the victim was there. Pennybaker also testified that approximately “six or seven times” between July
'The fighting went on mainly during late night. They would come back from the bar and they would be outside or downstairs arguing and I really didn’t hear what the argument was about, but they would be down there fighting and arguing.
N.T., 3/15-19/04, at 50. Trial counsel objected to Pennybaker’s testimony as irrelevant, but the Commonwealth argued that testimony went to “the tumultuous nature and history of the relationship ...- [t]o the malice, the ill will, hostility.” Id. at 49. The trial court overruled defense counsel’s objection.
Appellant contends that trial counsel should have specifically objected to Pennybaker’s testimony as inadmissible evidence of Appellant’s prior bad acts. “It is axiomatic that evidence of prior crimes [or bad acts] is not admissible for the sole purpose of demonstrating a criminal defendant’s propensity to commit crimes.” Commonwealth v. Jackson, 900 A.2d 936, 940 (Pa.Super.2006) (internal citations omitted). See Pa.R.E. 404(b)(1). However, it is well-settled that such evidence may be admissible for other purposes such as proof of motive or identity. Commonwealth v. Powell, 598 Pa. 224, 956 A.2d 406, 419 (2008), cert. denied, — U.S. -, 129 S.Ct. 1613, 173 L.Ed.2d 1000 (2009); see also Pa.R.E. 404(b)(2).
We conclude there is no merit to Appellant’s argument. Indeed, we fail to see how Pennybaker’s testimony could be characterized as evidence of “prior bad acts.” Pennybaker merely testified that Appellant and the victim often argued. While Appellant asserts that this testimony tended to convey to the jury that he was a “violent person [who] likely physically abused [the victim],” Appellant’s Brief at 44, nothing in Pennybaker’s description of the couple’s arguments referenced physical abuse or violence. Trial counsel strategically objected to Pennybaker’s testimony on the basis of relevance, which was a proper, albeit ultimately unsuccessful, argument.
Further, with respect to Appellant’s claim that appellate counsel was ineffective for failing to challenge the trial court’s admission of this evidence, we similarly conclude that Appellant is entitled to no relief. See Powell, 956 A.2d at 406, 419 (“Rulings on the admissibility of evidence are within the discretion of the trial judge, and such rulings form no basis for a grant of appellate relief absent an abuse of discretion.”). Appellant has not demonstrated the trial court’s ruling was an abuse of discretion, or that he was prejudiced by the admission of Pennybaker’s testimony. It was undisputed at trial that the victim was romantically involved with Appellant, although she still lived with and maintained a relationship with Bell. Moreover, Smith’s testimony of his encounter with Appellant the evening of January 27, 2008 at the Chez Lounge, portrayed Appellant as angry and potentially violent. See N.T., 3/15-19/04, at 111-114. Therefore, Appellant has failed to prove that the trial court erred in admitting Pennybaker’s testimony, or that he was unduly prejudiced by the admission of that testimony.
Appellant in his eighth issue asserts that trial counsel was ineffective for failing to file a motion to suppress the statements he made to police while being transported to the police station on the evening ,of January 28, 2003.
Custodial interrogation has been defined as questioning initiated by the police after a person has been taken into custody or otherwise deprived of his or her freedom of action in any significant way. Further, an “interrogation” occurs when the police “should know that their words or actions are reasonably likely to elicit an incriminating response from the suspect.” Miranda warnings must precede a custodial interrogation.
Commonwealth v. Clinton, 905 A.2d 1026, 1032 (Pa.Super.2006), appeal denied, 594 Pa. 685, 934 A.2d 71 (2007) (internal citations and emphasis'omitted).
Appellant offers no meaningful argument that he was subjected to a “custodial interrogation” during the ride to the police station. In fact, Appellant simply asserts that “[tjrial counsel should have filed a motion to suppress the highly incul-patory and prejudicial statements to police since Defendant was a suspect and was being questioned about the homicides and never given Miranda warnings.” Appellant’s Brief at 47. We disagree. At Appellant’s request, his sister was permitted to accompany him to the police barracks. N.T., 3/15-19/04, at 396-397. Trooper Scott described Appellant as “very cooperative.” Id. at 396. Our review of the record further reveals that Appellant (1) voluntarily agreed to accompany Trooper Scott to the state police barracks for questioning, and (2) initiated a conversation in the patrol car regarding the events of the previous evening. Specifically, en route to the police barracks, Appellant asked Trooper Scott if “this [was] about the girl that got hit on 60 last night,” to which the trooper replied, “yes, sir.” Id. at 399. Trooper Scott described their subsequent conversation:
He [Appellant] then stated was it [the victim]. Was the girl pregnant? The girl was pregnant. It was [the victim] because she’s pregnant with my seven month old son. I explained to him that I was only to transport him to the barracks and he would be questioned further when he got to the barracks. I told him we were trying to find out a time line for her the night before, ascertain her whereabouts, who she was with. If that is all you need to know, I can tell you that. She was with me last night. We were partying in Coraopolis. We went over to Chester Bell’s house to get some money for crack. [The victim] had then left [Appellant] at Chester Bell’s house.
Id. Appellant proceeded to detail the events of the prior evening, including the fact that, while they were on Route 60, he “put [the victim] out of the car.” Id. at 400. In fact, Appellant showed Trooper Scott where he left the victim, since the drive from Appellant’s residence to the police barracks passed the site of the incident. Trooper Scott further testified that as they neared the police barracks, Appellant “turned and asked me where did the girl get hit last night and I said right where you put [the victim] out of the car.” Id. at 402. Trooper Scott stated that Appellant then “just held his head in his hands and didn’t say anything else.” Id.
Trooper Scott’s testimony indicates that Appellant was not subject to a custodial interrogation when he spoke to Trooper Scott in the patrol car. Appellant agreed to go to the police barracks for questioning, he was not handcuffed, and he was accompanied by his sister. More importantly, Trooper Scott did not initiate any
In his ninth issue, Appellant claims that trial counsel was ineffective for presenting a “frivolous and meaningless defense.” Appellant’s Brief at 48.. .Appellant’s one paragraph “argument” on this issue consists of his bald allegation that counsel failed to demonstrate that Caleffi’s actions, in striking the victim with his vehicle, constituted a superseding/intervening cause that “interfered with the events that [Appellant] initiated.” Id. Appellant provides no citation to relevant authority. Appellant’s only citations are to the PCRA statute, and a case which sets forth the standard for reviewing an ineffectiveness claim under the PCRA. See Appellant’s Brief at 48. Further, Appellant does not provide any explanation as to how trial counsel could have better presented this defense. Thus, this claim is waived. See Commonwealth v. Johnson, 604 Pa. 176, 985 A.2d 915, 924 (2009), cert. denied, — U.S. -, 131 S.Ct. 250, 178 L.Ed.2d 165 (U.S.2010) (finding capital defendant waived two challenges to evidentiary rulings that failed to provide any discussion of claims, reasoned development of why testimony was prejudicial, and citation to authority).
Appellant’s eleventh issue argues that trial counsel was ineffective for failing to impeach Dr. Rozin with prior testimony that he had provided at the coronér’s inquest. Dr. Rozin’s trial testimony regarding the victim’s cause of death was consistent with his testimony at the coroner’s inquest — the victim died as a result of trauma to her head and chest, not as a result of the neck injury. See N.T., 3/15— 19/04, at 354. However, at trial, Dr. Rozin testified that the victim was “compromised” when she was out of the car by two factors, compression of her neck (allegedly caused by Appellant having strangled her in the car) and alcohol intoxication. Id. at 352. Appellant emphasizes that during the coroner’s inquest in March of 2003, Dr. Rozin testified that the victim did not die from the neck injury, and was not “compromised by the injury.”
Our review of trial counsel’s cross-examination of Dr. Rozin reveals that counsel did impeach Dr. Rozin with his testimony from the coroner’s inquest. Indeed, trial counsel confronted Dr. Rozin with his pri- or testimony that the victim did not die as a result of the manual neck injury, and that the injury would not have prevented her from walking. See N.T., 3/15-19/04, at 347-348. Moreover, Dr. Rozin admitted that he had previously testified that, the victim was “not incapacitated” by her neck injury and alcohol intoxication. Id. at 353.
In his twelfth issue, Appellant claims trial counsel rendered ineffective assistance when he failed to object to the introduction of telephone records that had not been properly authenticated. Preliminarily, we note that while Appellant ostensibly challenges the introduction of telephone records from the cell phones of Wife, Appellant, and Branaugh, the record, as cited by Appellant, reveals only the admission of the records from Wife’s cell phone and from the cell phone that Appellant was using on the night of the incident. See N.T., 3/15-19/04, at 371-377. . Thus, Appellant’s allegation concerning the admission of the records from Branaugh’s cell phone is moot. Moreover, while trial counsel admitted at the PCRA hearing that he “didn’t make an independent investigation or inquiry” regarding the authenticity of the cell phone records, N.T., 1/11/11, at 35, Appellant offers no evidence or argument that the records admitted at trial were not authentic. Indeed, he does not even assert, let alone prove, that the telephone records admitted,at trial did not accurately reflect the calls made and received from those cell phones. Furthermore, Wife testified that she received two phone calls from Appellant in the early morning hours of January 28, 2003. N.T., 3/15-19/04, at 132-134. Trooper Wilson confirmed that he saw the telephone number of the cell phone Appellant was using on Wife’s caller ID. Therefore, Appellant has failed to demonstrate that he wás prejudiced by trial counsel’s failure to object to the admission of the cell phone records, and he is entitled to no relief.
Finally, Appellant in his thirteenth issue offers the generalized argument that trial counsel was ineffective for “failing to challenge the.causation rule at every level of trial.” Appellant’s Brief at 53. Appellant contends that Caleffi’s “unlawful act” in striking the victim with his car, was a “superseding and/or intervening cause that broke the chain of events” so that Caleffi should have been held solely responsible for the victim’s death. Id. However, as the PCRA court correctly explained, trial counsel raised the “ ‘superseding cause’ issue at all stages of the case,” including “at the preliminary hearing, in pre-trial motions, in post-trial motions, and on appeal.” PCRA Court Opinion, 2/28/11, at 7. No relief is warranted on this claim.
Based on the foregoing, we conclude that Appellant is not entitled to a new trial based upon his thirteen claims of the ineffective assistance of trial and appellate counsel. Accordingly, we affirm the order of the PCRA court.
Order affirmed.
Judge GANTMAN concurs in the result.
Judge OTT files a concurring and dissenting opinion in which Judge DONOHUE and Judge WECHT join.
. 18 Pa.C.S. §§ 2502(c) and 2604, respectively.
. Appellant subsequently provided a taped statement to police after waiving his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He has not challenged the admissibility of the taped statement.
. It bears mention that the notes of testimony from the coroner’s inquest are not included in the certified record. However, there is no disagreement between the parties as to the content of Dr. Rozin's testimony at the coroner’s inquest.