Com. v. Trapp, S.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SHAKOOR R. TRAPP :
:
Appellant : No. 1785 MDA 2019
Appeal from the PCRA Order Entered October 2, 2019
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0000866-2011
BEFORE: KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY KING, J.: FILED JULY 27, 2020
Appellant, Shakoor R. Trapp, appeals from the order entered in the
Lycoming County Court of Common Pleas, which dismissed his first petition
brought under the Post-Conviction Relief Act (“PCRA”).1 We affirm.
The relevant facts and procedural history of this case are as follows.
During the early morning hours of May 29, 2011, Appellant broke into Victim’s
home, entered her bedroom while she was asleep, and choked, stabbed, and
shot Victim. During the investigation into the incident, police executed a
search warrant of Appellant’s residence. There, officers recovered a bloody
sock in the living room. In Appellant’s bedroom, police found a pair of
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* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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Timberland boots and a broken knife with blood on the blade and handle.
Police also collected a blood sample from the front doorway of Victim’s home
and DNA buccal swab samples from Appellant and Victim. As well, police
collected a buccal swab sample from Victim’s paramour, Shakeen Taylor, and
conducted on him a Scanning Electronic Microscopy (“SEM”) kit to test for
gunshot residue. Investigating police sent much of the forensic evidence to
the Pennsylvania State Police (“PSP”) DNA laboratory for testing; police did
not submit Mr. Taylor’s buccal swab and SEM kit. The PSP lab did not perform
DNA testing of human hairs found on the bloody sock and the Timberland
boots.
The Commonwealth ultimately charged Appellant with attempted
murder, aggravated assault, burglary, and related offenses, as well as several
violations of the Uniform Firearms Act. Prior to Appellant’s first jury trial, the
court severed the persons not to possess firearms charge to be decided at a
bench trial. Appellant’s first jury trial resulted in a mistrial in June 2012, but
the court convicted Appellant of persons not to possess firearms.
Appellant’s second jury trial commenced on September 10, 2014. The
Commonwealth presented the testimony of, inter alia, Timothy Gavel, a
forensic scientist in the PSP DNA lab. Mr. Gavel testified that he analyzes
items the PSP lab receives for DNA testing and compares the genetic material
from those items with samples of individuals’ DNA. Mr. Gavel discussed his
examination of the blood sample from Victim’s doorway, as well as the knife
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blade, bloody sock, and boots police recovered from Appellant’s home. Mr.
Gavel identified Victim’s DNA on the bloody sock, the blood stain from Victim’s
front door threshold, and the knife blade. Those DNA samples have a chance
of a coincidental exact match with another individual in the African American
community2 of 1 in 320 quintillion. Mr. Gavel added that Appellant’s DNA is a
“major component” of genetic material on the sock, and the chance of a
coincidental match of Appellant’s DNA on the sock with another African
American is 1 in 25 septillion. Mr. Gavel explained the bloody sock also
contains a mixture of DNA of several individuals. He noted the amount of DNA
from an unknown contributor to the sock is very small, such that a DNA
comparison is impossible. Mr. Gavel said the back and laces of the Timberland
boots also contain a mixture of genetic material, the major component of
which is Appellant’s DNA. The DNA from the boots also has 1 in 25 septillion
odds of matching with another African American. (N.T. Trial, 9/11/14, at 99-
120).
On September 12, 2014, the jury convicted Appellant of one count each
of attempted murder, aggravated assault, burglary, criminal trespass,
possession of an instrument of crime, reckless endangerment of another
person, and simple assault. The court sentenced Appellant on April 8, 2015,
to an aggregate term of thirty-two and one-half (32½) to sixty-five (65) years’
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2 Victim and Appellant are African American.
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incarceration. This Court affirmed the judgment of sentence on July 13, 2016.
See Commonwealth v. Trapp, 154 A.3d 854 (Pa.Super. 2016) (unpublished
memorandum). Appellant sought no further direct review.
On November 4, 2016, Appellant timely filed pro se his first and current
PCRA petition, and the court subsequently appointed counsel. Appellant filed
an amended petition on December 6, 2017, and a second amended petition
on February 16, 2018, asserting claims of trial counsel ineffectiveness
regarding counsel’s failure to seek an independent investigation into the
Commonwealth’s forensic evidence.
In the February 16th filing, Appellant asked the court to compel the
Commonwealth to provide its forensic data from trial to a third-party lab,
Cybergenetics, for a free preliminary screening and DNA comparison. In
particular, Appellant sought the electronic data reflecting the results of the
PSP lab’s analysis of the DNA on the bloody sock. Appellant also sought to
submit to Cybergenetics forensic evidence samples the PSP lab did not receive
or test. The PCRA court granted in part and denied in part Appellant’s petition
on June 19, 2019. Specifically, the court ordered the Commonwealth to
provide to Cybergenetics the PSP lab’s electronic data from the DNA testing it
performed. The court denied, however, Appellant’s request for a forensic
examination of items the PSP lab did not test, including human hairs on the
bloody sock and Timberland boots, and Mr. Taylor’s buccal swab and SEM kit.
Regarding the remaining ineffectiveness claims, the PCRA court issued
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notice of its intent to dismiss Appellant’s PCRA petition without a hearing per
Pa.R.Crim.P. 907 on July 24, 2019, and dismissed the petition on October 2,
2019. Appellant filed a timely notice of appeal on October 25, 2019. On
November 1, 2019, the PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal per Pa.R.A.P. 1925(b); Appellant
timely complied on November 20, 2019.
Appellant raises the following issues for our review:
Whether the [PCRA] court erred by dismissing without a
hearing [Appellant]’s claim for post-conviction relief that he
was prejudiced by the ineffective assistance of [second trial]
counsel who failed to retain the services of an expert to
review the findings and conclusions of the [PSP] Bureau of
Forensic Services, testify on behalf of the defense and/or
conduct independent forensic analysis of the materials
submitted to the [PSP] Bureau of Forensic Services?
Whether the [PCRA] court erred by dismissing without a
hearing [Appellant]’s claim for post-conviction relief that he
was prejudiced by the ineffective assistance of [second trial]
counsel who failed to retain the services of an expert or to
otherwise investigate and conduct forensic analysis of
potentially exculpatory evidence that the defense knew to
be in the possession of the Commonwealth that the
Commonwealth chose not to submit to the [PSP] Bureau of
Forensic Services for testing?
(Appellant’s Brief at 8).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the record evidence supports the court’s determination
and whether the court’s decision is free of legal error. Commonwealth v. H.
Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d
319 (2008). This Court grants great deference to the findings of the PCRA
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court if the record contains any support for those findings. Commonwealth
v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932
A.2d 74 (2007). We give no such deference, however, to the court’s legal
conclusions. Commonwealth v. J. Ford, 44 A.3d 1190 (Pa.Super. 2012).
Further, a petitioner is not entitled to a PCRA hearing as a matter of right; the
PCRA court can decline to hold a hearing if there is no genuine issue
concerning any material fact, the petitioner is not entitled to PCRA relief, and
no purpose would be served by any further proceedings. Commonwealth v.
Wah, 42 A.3d 335 (Pa.Super. 2012).
In his issues combined, Appellant argues trial counsel rendered
ineffective assistance when prior to the second trial, counsel failed to seek
funds for: (1) additional testing of the Commonwealth’s DNA comparison data
of the genetic material on the sock; and (2) a forensics expert witness to
conduct/review the additional analysis and rebut Mr. Gavel’s testimony.
Appellant submits counsel also should have submitted samples from the
bloody sock to Cybergenetics, whose free preliminary test was available prior
to the second trial. Appellant avers the free preliminary analysis
Cybergenetics performed during PCRA proceedings revealed that the source
of an unknown individual’s DNA on the bloody sock is identifiable, contrary to
Mr. Gavel’s testimony. Appellant posits that had trial counsel sought
additional comparative testing of the DNA on the sock, and had an expert
witness testify to those results, the defense could have uncovered and
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introduced at trial exculpatory evidence.
Appellant also claims trial counsel was ineffective for failing to submit to
Cybergenetics potential pieces of forensic evidence the PSP lab did not
analyze. Appellant maintains counsel also could have, but did not, seek funds
for an independent forensic expert to test the samples the PSP did not review
and testify to the results at trial. Appellant asserts that DNA examination and
comparison of hairs recovered from the bloody sock and Timberland boots and
Mr. Taylor’s buccal swab and SEM kit would have yielded exculpatory evidence
if counsel had procured additional testing. Appellant concludes his
ineffectiveness claims warranted an evidentiary hearing. We disagree.
The law presumes counsel has rendered effective assistance.
Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). To prevail
on a claim of ineffective assistance of counsel, a petitioner bears the burden
to prove his claims by a preponderance of the evidence. Commonwealth v.
Turetsky, 925 A.2d 876 (Pa.Super. 2007), appeal denied, 596 Pa. 707, 940
A.2d 365 (2007). The petitioner must demonstrate: (1) the underlying claim
has arguable merit; (2) counsel had no reasonable strategic basis for the
asserted action or inaction; and (3) but for the errors and omissions of
counsel, there is a reasonable probability that the outcome of the proceedings
would have been different. Id.
“The threshold inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has foregone and which forms the basis
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for the assertion of ineffectiveness is of arguable merit….” Commonwealth
v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot be
found ineffective for failing to pursue a baseless or meritless claim.”
Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004).
Once this threshold is met, we apply the “reasonable basis”
test to determine whether counsel’s chosen course was
designed to effectuate his client’s interests. If we conclude
that the particular course chosen by counsel had some
reasonable basis, our inquiry ceases and counsel’s
assistance is deemed effective.
Pierce, supra at 524, 645 A.2d at 194-95.
Prejudice is established when [an appellant] demonstrates
that counsel’s chosen course of action had an adverse effect
on the outcome of the proceedings. The [appellant] must
show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome. In Commonwealth v. Kimball, 555 Pa. 299,
724 A.2d 326 (1999), we held that a criminal [appellant]
alleging prejudice must show that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.
Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883 (2002)
(quotation marks and some internal citations omitted). Significantly, “[w]here
it is clear that a petitioner has failed to meet any of the three, distinct prongs
of the [ineffectiveness] test, the claim may be disposed of on that basis alone,
without a determination of whether the other two prongs have been met.”
Commonwealth v. Steele, 599 Pa. 341, 360, 961 A.2d 786, 797 (2008).
Additionally:
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[T]o prevail on a claim of ineffectiveness for failing to call a
witness, a [petitioner] must prove, in addition to meeting
the three Pierce requirements, that: (1) the witness
existed; (2) the witness was available to testify for the
defense; (3) counsel knew or should have known of the
existence of the witness; (4) the witness was willing to
testify for the defense; and (5) the absence of the [witness’]
testimony was so prejudicial as to have denied him a fair
trial.
Commonwealth v. Wright, 599 Pa. 270, 331, 961 A.2d 119, 155 (2008). A
petitioner’s failure to identify or present potential witnesses is grounds for
denial of relief. Commonwealth v. Treiber, 632 Pa. 449, 498, 121 A.3d
435, 464 (2015).
To demonstrate…prejudice, a petitioner must show how the
uncalled [witness’] testimony would have been beneficial
under the circumstances of the case. Thus, counsel will not
be found ineffective for failing to call a witness unless the
petitioner can show that the [witness’] testimony would
have been helpful to the defense. A failure to call a witness
is not per se ineffective assistance of counsel for such
decision usually involves matters of trial strategy.
Commonwealth v. Sneed, 616 Pa. 1, 23, 45 A.3d 1069, 1109 (2012)
(internal citations and quotation marks omitted). Generally, “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.” Commonwealth v. Marinelli, 570 Pa. 622, 644, 810 A.2d
1257, 1269 (2002).
Further:
[A]s an appellate court, our review is limited by the contents
of the certified record. Pa.R.A.P. 1921; Commonwealth v.
Young, 456 Pa. 102, [115,] 317 A.2d 258, 264 (1974)
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(“only the facts that appear in [the] record may be
considered by a court”). See also Ritter v. Ritter, [518
A.2d 319, 323 (Pa.Super. 1986)] (“the appellate court can
only look at the certified record on appeal when reviewing a
case”). … Additionally, [an a]ppellant has the duty to
ensure that all documents essential to his case are included
in the certified record. Fiore v. Oakwood Plaza Shopping
Ctr., [585 A.2d 1012, 1019 (Pa.Super. 1991)] (“It is the
obligation of the appellant to make sure that the record
forwarded to an appellate court contains those documents
necessary to allow a complete and judicious assessment of
the issues raised on appeal”). If a document is not in the
certified record then this Court cannot take it into account.
Commonwealth v. Walker, 878 A.2d 887, 888 (Pa.Super. 2005).
Instantly, as an initial matter, the certified record does not contain any
documentation of the results of Cybergenetics’ free preliminary test Appellant
procured during PCRA proceedings. Thus, to the extent Appellant’s claims are
based on a comparison of the results of Cybergenetics’ examination with the
forensic data the Commonwealth presented at Appellant’s second trial, those
arguments are waived. See id.
Even if Appellant had properly preserved his claims related to a
comparison of Cybergentics’ examination, they would still merit no relief.
Regarding Appellant’s claim that trial counsel was ineffective for failing to
procure additional testing of the bloody sock, the PCRA court reasoned:3
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3 In its opinion, the PCRA court discusses the results of Cybergenetics’
preliminary test, indicating the court received and reviewed the results. The
Commonwealth has not objected to Appellant’s or the PCRA court’s discussion
of the outcome of Cybergenetics’ examination. For the purposes of discussing
whether Appellant’s claim would have merited relief if properly preserved, we
accept the PCRA’s court account of Cybergenetics’ test results.
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…PCRA counsel submitted the PSP’s data from its DNA
testing to Cybergenetics for a free screening and preliminary
report. The preliminary report indicated that [V]ictim’s DNA
was present in the blood stain on the sock with a DNA match
statistic of 19 zeroes after the 1 (i.e., ten quintillion) and
[Appellant]’s DNA was present on the cutting from the
cuff/leg of the sock with a match statistic of 23 zeroes after
the 1 (i.e., 100 sextillion). While the preliminary report also
indicated the presence of DNA from an unknown person in
the blood stain and on the cuff/leg cutting of the sock, the
match statistics were much lower—only 5 zeroes after the
one (100,000) for the blood stain and 8 zeroes after the 1
(100 million) for the cuff/leg area.
Timothy Gavel, a forensic scientist at the PSP DNA
laboratory, testified at trial that the blood on the sock
matched [V]ictim’s DNA, the chance of a coincidental match
in the African American population is one in 320 quintillion,
and a quintillion has 18 zeroes in it. He also testified that
DNA from the elastic portion of the cuff and leg of the sock
matched [Appellant]’s DNA and the chance of a coincidental
match in the African American population would be
approximately one in 25 septillion, which has 24 zeroes.
Furthermore, the PSP findings and conclusions
acknowledged that there was a DNA mixture but that
[Appellant] was the “major co[mponent].”
In other words, the preliminary report from Cybergenetics
did not refute the PSP’s analysis, but rather was consistent
with it, as both found [V]ictim’s blood and [Appellant]’s DNA
on the sock recovered from [Appellant]’s bedroom with
similar match statistics.
(Rule 907 Notice Order and Opinion, filed July 24, 2019, at 6) (internal
citations to record omitted). We agree with the PCRA court’s conclusion.
Based upon the PCRA court’s description of the Cybergenetics’ test data,
the examination did not entirely contradict Mr. Gavel’s testimony. Both Mr.
Gavel’s analysis and Cybergenetics’ test acknowledged the existence of DNA
of an unknown source on the sock. The Cybergenetics’ examination adds only
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that the source of that genetic material is identifiable; but it did not identify
the additional individual whose DNA is on the sock. Appellant baldly states
the identification of the unknown DNA contributor would have been
exculpatory at trial. Nevertheless, the presence of another individual’s DNA
on the sock would not eliminate the presence of Appellant’s DNA on the sock
to yield exculpatory results. Thus, Appellant fails to establish there is a
reasonable probability that results from an independent forensic analysis of
the bloody sock would have changed the outcome of trial. See Chambers,
supra; Pierce, supra.
Likewise, Appellant baldly asserts that forensic testing of the human
hairs on the bloody sock and Timberland boots, as well as Mr. Taylor’s buccal
swab and SEM kit, would have produced exculpatory evidence. Again,
Appellant does not establish how an analysis of these items would have
yielded exculpatory evidence and produced a reasonable probability of a
different outcome at trial. See Chambers, supra; Pierce, supra.
Further, Appellant’s assertion that counsel’s failure to present expert
forensic witness testimony to oppose the Commonwealth’s expert testimony
amounts to ineffectiveness fails. See Marinelli, supra. Appellant also fails
to show: (1) such a forensic expert witness existed; (2) was available to
testify; (3) trial counsel knew or should have known about the witness; and
(4) the forensic expert was willing to testify for Appellant. See Treiber,
supra; Wright, supra.
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In any event, Appellant does not show how the proposed expert
testimony to rebut Mr. Gavel’s trial testimony would have altered the trial
results. See Chambers, supra. As this Court described on direct appeal,
the Commonwealth presented overwhelming evidence to support Appellant’s
convictions, beyond the DNA evidence. See Trapp, supra (explaining that
Victim positively and reliably identified Appellant as assailant during police
investigation and at trial; Appellant broke into Victim’s home as she slept, and
stabbed and shot her; neighbor’s testimony placed Appellant near Victim’s
home around time of attack, and established Appellant had access to handgun
similar to weapon Victim described her assailant using; and Appellant was
hiding when police apprehended him, demonstrating his consciousness of
guilt). Based upon the foregoing, Appellant’s ineffectiveness claims fail, and
the PCRA court did not abuse its discretion when it declined to hold an
evidentiary hearing. See Steele, supra; Turetsky, supra; Wah, supra.
Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/27/2020
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