Com. v. Woodson, S.

J-S11007-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEVEN WOODSON :
:
Appellant : No. 947 EDA 2022
Appeal from the PCRA Order Entered February 28, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001287-2015
BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY OLSON, J.: FILED JULY 13, 2023
Appellant, Steven Woodson, appeals from the February 28, 2022 order
entered in the Court of Common Pleas of Philadelphia County, denying his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§ 9541-9546. We affirm.
The PCRA court summarized the factual history as follows:
On January 1, 2015, [at] 10:37 a.m., [the victim, a woman,] went
into the parking garage [located next to the intersection of North]
17th [Street] and Callowhill Street[ in the City of Philadelphia,
Pennsylvania,] to retrieve her [vehicle]. She [] parked [in the
parking garage] the previous night while celebrating New Year's
Eve with some friends [] and [returned to the parking garage to
retrieve her vehicle] so [] she could drive home [] that morning.
As [the victim exited] the parking garage's elevator on the sixth
floor, she suddenly felt someone grab her from behind. A hand
wrapped around her mouth, and a hard object[,] which felt like a
gun[,] pressed into her lower back. [Appellant told the victim,]
“Give me all of your money[.”]
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[The victim] tried to give her purse to [Appellant], but [he] said
he wanted cash. [The victim] was fumbling through her wallet,
frantically looking for money, when [Appellant] suddenly hit her.
He struck her jaw hard and tried to snap her neck. As she begged
for her life, “telling him that she had two small children, please
don't kill me,” [Appellant] closed his hands around her neck and
choked her into unconsciousness[.]
When [the victim regained] consciousness, she could taste vomit
and blood in her throat. She was lying on her stomach, on the
ground between two [vehicles] in the parking garage[. The victim
was] in so much pain from her twisted neck that she was afraid to
check for other injuries. She turned her neck slightly and saw
[Appellant] standing behind her, rummaging through her purse.
When [Appellant] saw [the victim stand-up], he pushed her back
between the cars and began screaming at her to [take] the battery
out of her [cellular telephone], which [the victim] knew was
impossible.
[Appellant] addressed [the victim] by her name. She asked how
he knew her name, and he pointed to her [employer identification
badge], which had fallen to the ground while he was going through
her purse. [The victim] looked at [Appellant] “to see who he was,
because his face was right here.” When she looked at his face,
however, [Appellant] became angry. He told her that he “was
going to make sure she can't see,” and then struck her repeatedly
in the face with an orange key ring while she desperately tried to
shield herself with her left hand. Again [the victim] began to lose
consciousness; her awareness was “like an old [television] screen
that would flash in and out.”
Just then, a group of people [exited] the parking garage elevator
and went to their [vehicles. Appellant] covered [the victim] with
his black puffy coat and pretended to be making a [telephone] call
on her [cellular telephone]. The people walked past without
noticing [the victim] or her plight, and [the victim] realized at that
point that she “was not going to leave that garage alive.”
[The victim] tried to escape by trying desperately to crawl over
the [parking] garage's cement barrier toward an exit stairwell, but
[Appellant] dragged her back. He told her “to take off all her
clothes, or he was going to try to kill her again.” She said, “Please
don't rape me,” to which he replied that he would try to kill her if
she did not remove her clothes.
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Once [the victim] disrobed, [Appellant] turned her around so that
he was behind her. [It was at this point that Appellant penetrated
the victim with his fingers vaginally and anally. The victim then]
heard [Appellant] unbuckle his belt and [she] began “looking all
around for cars, flashes of lights, anything to escape at this point
because she knew [Appellant] was going to rape and kill her.”
Shortly after she heard [Appellant] unfasten his belt buckle, she
felt his penis press painfully into her anus.
Just then, [the victim] glimpsed headlights and heard a [vehicle]
coming around the corner. She “knew that her only chance, if this
was a [vehicle], was to throw [her]self in front of it and risk [that
the vehicle would not stop in time before hitting her.]” She
sprinted away from [Appellant] as quickly as she could. Naked
and wounded, [the victim] threw herself in [the travel path] of the
[vehicle], screaming, “he tried to rape me, that man tried to kill
me and rape me.”
[A husband and wife] were in that [vehicle]. They had driven []
from New Jersey that morning to take [the husband’s] mother out
for a New Year's Day brunch. As they pulled into the parking
garage, they were startled to see a naked, injured woman hurl
herself in front of their [vehicle], screaming, “Please help me, he's
going to kill me.”
Both [the husband and the wife] got out of their [vehicle] and put
[the victim] inside [the vehicle]. They saw [Appellant] “emerge,
sort of, from behind the cars” and look directly at them.
[Appellant] took off running, so [the husband] chased him, while
[the wife] retrieved a fleece jacket and a blanket from the back of
their [vehicle] to wrap around [the victim], as it was a very cold
day and [the victim was naked]. After tending to the victim, the
wife] called 911 [emergency services].
[Meanwhile, the husband] chased [Appellant] out of the parking
garage and up [North] 17th Street. As [Appellant] ran, he started
“cursing at [the husband], telling [the husband] to stay away from
him or he'd hurt him.” During the pursuit, [the husband] was on
[his cellular telephone] with a 911 dispatcher, and had the
opportunity to observe[, and report,] that [Appellant] was wearing
“a dark blue or black three-quarter-length jacket [] and a hat with
a distinctive, about three-quarter-inch [wide], yellow stripe
around the band.” [The husband] chased [Appellant] into a walled
parking lot near Philadelphia Community College [(“PCC”)], but
stopped [before entering the parking lot] because [the husband]
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did not want to be alone with a violent individual away from public
view.
Officer Frank Binns [(“Officer Binns”)] was on duty [at]
10:45 [a.m.] that morning when he received a [radio dispatch]
call of a rape in progress. The flash information transmitted over
police radio indicated that the suspect was a “black male, black
jacket, black hat with a yellow stripe, blue jeans and white
sneakers, leaving a garage at [the intersection of North] 17th
[Street] and Callowhill [Street] heading north on [North] 17th
Street.” Moments after receiving this information, Officer Binns
observed [Appellant] walking northbound on [North] 17th Street.
[Appellant] was wearing blue jeans and white sneakers, but had
no coat and no hat on, [despite the fact that] it was a very cold
day. Officer Binns [stopped his police cruiser] and asked
[Appellant] where his coat was, and what his name was.
[Appellant provided Officer Binns with] several names, all of which
proved to be false. Meanwhile, [a] police radio broadcast
[provided] additional information that the suspect had a scruffy
beard. [Appellant] had such a beard.
Officer Erick Garnett [(“Officer Garnett”)], along with other police
officers, searched the area of [North] 17th [Street] and Callowhill
Street[] for possible evidence. In the PCC parking lot on the 400
block of [North 17th] Street - the same parking lot where [the
husband] stopped his pursuit of [Appellant] moments
earlier - Officer Garnett found a black puffy jacket, an
“orange/reddish” keychain, and a black hat with a yellow stripe.
Officer Binns stopped [Appellant] until police brought [the
husband] over to identify him. It was only “a couple of minutes
tops, maybe a minute” from the time that [the husband] chased
[Appellant] into the PCC parking lot until police asked [the
husband] whether he could identify [Appellant] as the man he []
chased. [The husband] replied that he “thought so, but he
couldn't be sure because the hat wasn't right and there was no
jacket.” However, when police showed him the puffy jacket and
yellow-striped black hat that they [] recovered from the ground,
[the husband] was “100 percent sure” that those articles had been
worn by the man he was chasing.
Officer Anthony Lazzaro [(“Officer Lazzaro”)] also responded to
the call of a rape in progress. Upon arriving at the scene, Officer
Lazzaro encountered [the victim], who was “extremely distraught.
She was crying, she was shaking, she had cuts and scratches and
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red marks all over her body. She was very afraid.” Officer Lazzaro
sat in the back of his police [cruiser] with [the victim] and tried to
calm her down enough to get an initial statement from her, which
“took a few minutes, probably a little longer because she was very
upset, she was crying, she was just very scared.” However, [the
victim] eventually was able to give a brief account of the attack
and a description of her attacker. Officer Lazzaro told her that
other police officers [] stopped a suspect and asked her whether
she would be able to make an identification. In response, [the
victim] “looked down and it was just a look of fear that went over
her, and she said that she didn't want to see him. We drove over
to the area, and I was sitting next to her. As soon as we got even
close to the area, she latched onto my uniform, and she wouldn't
even - she wouldn't look up. I explained to her that that was the
male who was stopped as the possible offender of this crime. She
just sobbed, and she was afraid to even lift her head and look.
She gave a quick glance, and she was just crying, there was no
way I was going to get her to make an identification one way or
the other out there. She was just afraid.”
Sergeant Thomas Reichner of the Philadelphia K9 Unit [(“Sergeant
Reichner”)] was in the area of [North] 17th [Street] and Callowhill
Street[] when the police radio call went out. [Sergeant] Reichner
went to the parking garage and asked his [K9], Koda, to begin
tracking the suspect from the site of the attack. Koda followed
the track down the steps where [the husband] chased the fleeing
suspect, took a left on Callowhill [Street] to [North] 17th Street,
and continued northbound on [North] 17th Street to the PCC
parking lot. There, Koda bit a black puffy jacket and a black hat
with a yellow stripe on it, signaling that these items had been worn
by the person he was tracking. These were the same two articles
that Officer Garnett [] flagged as potentially belonging to the
suspect, and that [the husband] said he was “100 percent sure”
that the suspect had worn. Koda also bit a sweatshirt lying on the
ground near the other two articles. Koda continued to track the
suspect's trail from the discarded clothing toward the area where
[Appellant] was standing after having been stopped by police. As
they neared [Appellant, Sergeant] Reichner terminated the track,
because Koda's reward for successfully completing a track “is to
bite,” and [Sergeant] Reichner “didn't want him biting someone
who is already in custody.”
Based on the totality of these circumstances, Officer Binns decided
to transport [Appellant] to the 9th District [police precinct] for
identification.[FN2] Before transporting [Appellant], Officer Binns
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searched him and found various items including two credit [or]
debit cards with different names on them. [Appellant] was not
carrying any other contraband or weapons. One of the debit cards
in his possession had [the victim’s] name on the front and
signature on the back.
[Footnote 2: Upon ascertaining [Appellant’s] real name,
police [officers] determined that he had an outstanding
warrant in Pittsburgh[, Pennsylvania,] for indecent
exposure, and placed him under arrest.]
Police [officers] found other evidence, including a torn-out clump
of [the victim’s] hair, a broken [cellular telephone], and [the
victim’s] discarded purse, in the parking garage where [the
victim] was attacked.
On February 3, 2015, [the victim] attended a [police] line-up.
Before entering the room where the line-up was to be conducted,
or seeing anyone in it, she filled out a written description form
that noted that her assailant had "a scar near the right eyebrow."
[Appellant] did, in fact, have a scar above his right eye. After [the
victim] filled out the form, she went into the line[-]up room.
Despite the fact that she was “crying heavily as she entered and
during the entire line[-]up process,” she was able to immediately
identify [Appellant] as her attacker. Her identification was so swift
and certain that Detective Bill Urban, who was conducting the
line[-]up, “didn't even have to move the people” by asking any of
them to step forward or turn to the side, as he ordinarily would.
[The] police obtained a search warrant for [Appellant’s cellular
telephone]. The only relevant material on that [telephone] was a
December 4, 2014 [photograph] of [Appellant] wearing the black
puffy jacket that was recovered from the PCC parking lot on the
day of the attack.
Bloodstained fabric samples from the black puffy jacket and
sweatshirt recovered from the PCC parking lot were submitted for
[Deoxyribonucleic acid (“DNA”)] analysis, which confirmed that
the blood on that clothing [belonged to the victim]. The DNA
analysis was also consistent with [Appellant] having worn the
items. This forensic evidence corroborated [the victim’s] account
of [Appellant] hiding her from passersby by covering her with his
jacket while she was bleeding.
[The victim] was given a rape kit at [the hospital], where medical
professionals also documented her extensive injuries. None of the
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swabs taken from [the victim’s] body showed DNA belonging to
any individual other than [the victim]. A skin swab from
[Appellant’s hand] returned only his own DNA, with no DNA from
any other individual detected. However, both the forensic
scientist who analyzed the DNA and the doctor who conducted the
rape kit testified that, in the “vast majority of the cases,” only the
primary individual's DNA was recovered from such samples, and
that this result was “not surprising.”
[Appellant] testified on his own behalf at trial. He testified that
he had been out all night at a private party with a friend named
“Taz,” whose real name he declined to provide. According to
[Appellant], Taz opted to sleep in his car outside [Appellant’s]
grandfather's house [on the night prior to the attack], so
[Appellant] lent Taz his black puffy jacket and yellow-striped black
hat because it was a cold night. The next morning, Taz offered to
drive [Appellant] to visit his other grandfather[, who was] in the
hospital. On the way to the hospital, Taz told [Appellant], “hold
on, listen, I need to do something real quick,” and stopped outside
the parking garage [where the attack occurred]. After Taz went
into the parking garage, [Appellant] “heard some yelling” and
went to investigate.
At that point, [Appellant] testified, he saw “a lady laid out flat on
the ground,” with Taz brandishing a gun above her. [Appellant]
testified that he had a “tussle” with Taz, in the course of which he
managed to remove the bullets from Taz's gun and put them in
his pocket for safekeeping. He then walked away from the
altercation.
[Appellant] admitted that he had not mentioned Taz or his rescue
of [the victim], when he was interviewed by police shortly after
his arrest. Instead, he said that he had gotten lost on his way to
the hospital and was trying to visit his grandfather when he was
stopped by Officer Binns on [North] 17th Street.
Mr. Woodson acknowledged his history of crimen falsi offenses.
PCRA Court Opinion, 7/18/22, at 3-10 (original brackets, extraneous
capitalization, and ellipses omitted).
The PCRA court summarized the procedural history as follows:
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On March 9, 2017, following a trial by jury, [Appellant] was found
guilty of attempted rape, aggravated assault, involuntary deviate
sexual intercourse [(“IDSI”) – forcible compulsion], robbery,
sexual assault, and aggravated indecent assault without
consent.[1] On June 15, 2017, [Appellant] was sentenced to an
aggregate period of [40] to [80] years of state incarceration.
[Appellant] was designated a sexually violent predator.
[Appellant] filed a post-sentence motion, which was denied.
[Appellant] filed a timely appeal to [this Court], which affirmed
the judgment of [] sentence on January 10, 2019.
Commonwealth v. Woodson, [209 A.3d 491, 2019 WL 156544(Pa. Super. filed Jan. 10, 2019) (unpublished memorandum).
Appellant] filed a timely petition for allowance of appeal [with our
Supreme Court] on February 8, 2019, which was denied on July
23, 2019. [Commonwealth v. Woodson, 216 A.3d 1024 (Pa.
2019). Appellant did not seek discretionary review with the
Supreme Court of the United States. Consequently, Appellant’s
judgment of sentence became final on October 21, 2019, upon
expiration of the time in which to seek discretionary review with
the Supreme Court of the United States. See U.S. Sup. Ct. R.
13(1); see also 42 Pa.C.S.A. § 9545(b)(3).
Appellant] filed a timely [PCRA] petition for [collateral] relief on
June 23, 2020. [On] January 3, 2022, the parties were given
notice of [the PCRA] court's intent to dismiss the PCRA Petition
without a hearing pursuant to [Pennsylvania Rule of Criminal
Procedure] 907. [Appellant did not file a] response to the [Rule
907] notice[. On] February 28, 2022, the PCRA [court denied the]
petition[.]
PCRA Court Opinion, 7/18/22, at 1-2 (extraneous capitalization and original
footnote omitted). This appeal followed.2
Appellant raises the following issues for our review:
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1 18 Pa.C.S.A. §§ 901(a) (and 3121(a)(1)), 2702(a), 3123(a)(1),
3701(a)(1)(iii), 3124.1, and 3125(a)(1), respectively.
2 Both Appellant and the PCRA court complied with Pennsylvania Rule of
Appellate Procedure 1925.
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1. Whether the PCRA court erred by dismissing the PCRA
petition when clear and convincing evidence was presented
that trial counsel was ineffective for failing to subpoena and
present [Appellant’s cellular telephone] records, adequately
cross-examine the DNA expert, prove the fabrication of
evidence by the arresting [police] officer, and protect
[Appellant’s] constitutional rights[?]
2. Whether the PCRA court erred by dismissing the PCRA
petition when clear and convincing evidence was presented
that appellate counsel was ineffective for failing to raise and
preserve [Appellant’s] requested claim on appeal, thereby
constituting a complete foreclosure of appellate review[?]
3. Whether the PCRA court erred by dismissing the PCRA
petition when clear and convincing evidence was presented
to establish violations of [Appellant’s] constitutional rights;
including an unlawful search and seizure under both the
United States and Pennsylvania constitutions, violations of
his due process rights based on several instances of
prosecutorial misconduct, as well [as] the right to effective
representation at trial and on appeal[?]
4. Whether the PCRA court erred by failing to grant an
evidentiary hearing[?]
Appellant’s Brief at 9.3
In addressing Appellant’s issues, we are mindful of our well-settled
standard and scope of review of an order denying a PCRA petition. Proper
appellate review of a PCRA court’s dismissal of a petition is limited to an
examination of “whether the PCRA court’s determination is supported by the
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3 We note that Appellant’s brief fails to conform to Pennsylvania Rule of
Appellate Procedure 2135(c), which requires the size and other physical
characteristics of a brief to comply with Pennsylvania Rule of Appellate
Procedure 124. Pa.R.A.P. 2135(c). Rule 124 requires, inter alia, text to be
double spaced. Pa.R.A.P. 124. The text appearing in Appellant’s brief is not
double spaced. See Appellant’s Brief at 6-25.
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record and free of legal error.” Commonwealth v. Miller, 102 A.3d 988,
992 (Pa. Super. 2014) (citation omitted). “The PCRA court’s findings will not
be disturbed unless there is no support for the findings in the certified record.”
Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citations
omitted). “This Court grants great deference to the findings of the PCRA court,
and we will not disturb those findings merely because the record could support
a contrary holding.” Commonwealth v. Hickman, 799 A.2d 136, 140
(Pa. Super. 2002) (citation omitted). In contrast, we review the PCRA court’s
legal conclusions de novo. Commonwealth v. Henkel, 90 A.3d 16, 20
(Pa. Super. 2014) (en banc), appeal denied, 101 A.3d 785 (Pa. 2014).
Appellant’s first issue raises a claim alleging that trial counsel provided
ineffective assistance. Appellant’s Brief at 14-19. Specifically, Appellant
alleges that trial counsel was ineffective for failing to (1) subpoena, and
present at trial, Appellant’s cellular telephone records; (2) adequately
cross-examine the Commonwealth’s DNA expert, who testified at trial; (3)
establish, at trial, that the arresting officer fabricated evidence; and (4)
protect his constitutional rights, including his right against unlawful searches
and seizures, his due process rights, and the right to effective counsel. Id.“It is well-established that counsel is presumed effective[.]”
Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012), citing Strickland
v. Washington, 466 U.S. 668, 687-691 (1984). To plead and prove a claim
of ineffective assistance of counsel, “a petitioner must establish: (1) that the
underlying issue has arguable merit; (2) counsel's actions lacked an
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objective[ly] reasonable basis; and (3) actual prejudice resulted from
counsel's act or failure to act.” Commonwealth v. Stewart, 84 A.3d 701,
706 (Pa. Super. 2013) (en banc), appeal denied, 93 A.3d 463 (Pa. 2014). “A
claim of ineffectiveness will be denied if the petitioner's evidence fails to meet
any of these prongs.” Commonwealth v. Martin, 5 A.3d 177, 183 (Pa.
2010). “In determining whether counsel's action was reasonable, we do not
question whether there were other more logical courses of action which
counsel could have pursued[. R]ather, we must examine whether counsel's
decision[] had any reasonable basis.” Commonwealth v. Washington, 927
A.2d 586, 594 (Pa. 2007). A petitioner establishes prejudice when he or she
demonstrates “that there is a reasonable probability that, but for counsel's
[acts or omissions], the result of the proceeding would have been different.”
Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009).
Here, Appellant asserts that trial counsel was ineffective for failing to
subpoena his cellular telephone records from his cellular service provider and
present those records as exculpatory evidence at trial. Appellant’s Brief at 15.
Appellant asserts that the records detailed communication between Appellant
and a third party via textual messaging at the time of the attack. Id.Appellant contends that he described what he observed at the time of the
attack in text messages sent to a third party. Id. Appellant avers that his
communications with the third party would have demonstrated that “another
male, ‘Taz,’ was in the midst of engaging in the criminal assault upon the
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[victim] and was the true perpetrator of the crime for which [Appellant] was
[convicted].”4 Id.In denying Appellant’s ineffectiveness claim on this ground, the PCRA
court explained,
[Appellant] provided no evidence of the text messages presumed
to show a contemporaneous conversation between [Appellant]
and a third-party not present at the scene [in] which [Appellant]
described his observations during the attack. The evidence is
directly contradicted by [Appellant’s] testimony at trial, during
which [Appellant] claimed he was entirely unaware of the attack
until he “heard some yelling” and went into the parking garage to
investigate. Counsel cannot be ineffective for failing to argue
incompatible scenarios.
Additionally, the police examined [Appellant’s cellular telephone].
They found no relevant material other than a photograph of
[Appellant] wearing the same-style jacket that was recovered
from the PCC parking lot with the victim's blood on it.
PCRA Court Opinion, 7/18/22, at 12 (citations omitted).
A review of the record demonstrates that Appellant asserted in a
supplemental amended PCRA petition that trial counsel was ineffective for
failing “to subpoena and present [Appellant’s cellular telephone] records.”
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4 At trial, Appellant testified that “Taz” was the name of a male he associated
with on New Year’s Eve, and that at the end of the evening, Taz provided
Appellant a ride to the apartment where Appellant was spending the night.
N.T., 3/7/17, at 82-84. Taz agreed to provide Appellant with a ride the
following day to visit a relative in the hospital. Id. at 84. Appellant further
testified that Taz slept overnight in a vehicle he owned which was parked in
front of the apartment building where Appellant changed his clothes, brushed
his teeth, and “recharge[d] for a little bit.” Id. at 84-86. Appellant alleges
he gave Taz the black jacket and hat with the yellow strip that were later
recovered from the PCC parking lot because the temperature outside was cold,
and Taz was sleeping overnight in his vehicle. Id. at 85.
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Supplemental Amended PCRA Petition, 9/14/21, at ¶6. Appellant further
asserted that he “presented trial counsel with his [cellular telephone] number
and carrier information, and requested that [trial] counsel subpoena the
records, specifically the text communications between [Appellant] and [the
third party].” Memorandum of Law in Support of Supplemental Amended
PCRA Petition, 9/14/21, at 4 (unpaginated). Despite the passage of more
than three years since his conviction at trial, Appellant did not attach a
transcript of the cellular telephone text messages to his petition.
Pennsylvania Rule of Criminal Procedure 902(D) requires a petitioner to
“attach to the petition any affidavits, records, documents, or other evidence
which show the facts stated in support of the grounds for relief, or the petition
shall state why they are not attached.” Pa.R.Crim.P. 902(D); see also
Commonwealth v. Carson, 913 A.2d 220, 251 (Pa. 2006) (stating that, a
PCRA petition is required “to attach supporting documentary evidence for
[the] claims or an explanation as to why such evidence was unavailable”).
The filing of a PCRA petition and a request for an evidentiary hearing “is not
meant to function as a fishing expedition for any possible evidence that may
support some speculative claim of ineffectiveness.” Commonwealth v.
Roney, 79 A.3d 595, 605 (Pa. 2013). In the case sub judice, Appellant did
not attach to his PCRA petition evidence in support of his claim, i.e., a
transcript of his cellular telephone text messages with a third-party at the time
of the attack or an affidavit from the third-party who allegedly received the
text messages. Moreover, Appellant never explained in his petition why such
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evidence was unavailable. See Supplemental Amended PCRA Petition,
9/14/21; see also PCRA Court Opinion, 7/18/22, at 12. As such, we concur
with the PCRA court that this aspect of Appellant’s ineffectiveness claim is
without arguable merit. PCRA Court Opinion, 7/18/22, at 12.5
____________________________________________
5 Moreover, we concur with the PCRA court that Appellant’s allegations
regarding communications allegedly sent while the attack occurred conflicted
with Appellant’s testimony at trial. At trial, Appellant testified as follows
regarding events prior to the attack, during the attack, and after the attack:
[Prior to the attack on the victim,] as [Taz is] driving he tells me
hold on, listen, I need to go do something real quick, wait outside
for me. So, I'm like all right. Me, knowing how we do or how I
used to be - well, put it this way, me knowing my homies, I knew
not to ask questions. If he wanted to tell me, he would've told
me. So, if he didn't, he didn't. I didn't know exactly what he was
doing. I thought that he might be going to pick up something or
whatever he was doing.
So, I just went outside, and he pulled up - let me see, he pulled
up, I went outside, I stood outside the garage that unfortunately
the situation happened in. He went in. I'm talking on my [cellular
telephone], smoking a cigarette, texting off and on, and he don't
show up again, so I'm like what's up.
I hear some yelling, I go upstairs, about to go up, you know, inside
the stairwell inside the parking garage, [because] you can see on
both sides of the parking garage if you look in, and I really don't
see anything, but, you know, I'm hearing.
I go over to see what's up with my homie, and there's a lady laid
out flat on the ground. I'm like, yo, dude, seriously though. He's
like - he's like, damn, dog, I told you hold on man. So, me
and - like, he's grabbing her, I'm tussl[ing] with him a little bit, I
[] take - yeah, he did have a gun. I emptied them joints
[(bullets)] out, I'm like, listen, I'm gone, you trippin, I'm be - I'm
out. So, I go outside.
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Next, Appellant asserts that trial counsel was ineffective for failing to
adequately cross-examine the Commonwealth’s DNA expert. Appellant’s Brief
at 16. Appellant contends that,
The DNA expert’s report established that there was no evidence
of [the victim’s] vaginal fluid on [Appellant’s] hands or body.
Additionally, there was no evidence of [Appellant’s] DNA on the
[victim’s] body. However, trial counsel failed to question the
[expert] witness about this issue and elicit testimony to establish
that the lack of DNA evidence is strongly indicative of [Appellant’s]
innocence.
Id.In determining that Appellant failed to demonstrate the prejudice prong
of the three-part ineffectiveness test, the PCRA court explained,
[Appellant] claims [trial counsel was] ineffective[] for failing to
question the [Commonwealth’s] DNA expert witness about the
lack of [Appellant’s] DNA on the [victim’s] body. Additionally,
[Appellant] claims that [trial] counsel was ineffective [for failing
to elicit] testimony from the witnesses that the lack of DNA
evidence is strongly indicative of innocence. Trial counsel was
____________________________________________
Now, I'm on the [telephone] leaving a message now like yo,
like, dude trippin, like ah, ah, ah, man, I'm about to get locked
up, ya'll know I'm gonna run already, like this is crazy. Next thing
you know, [Taz] flies passed me and then another dude flies
passed me. Now I'm like damn, I'm gonna have to go - like, that's
my homie, I'm not approving [of] what he did, but like we - we
have a right or wrong, good or bad, that's my man. So, I'll stay
around to see what was up. I sit around and I see [Taz], he dips
off to the side. I see the dude peeking, and then he comes back,
and that's when I start walking down - down the street.
N.T., 3/7/17, at 88-89 (emphasis added). Trial counsel cannot be ineffective
for failing to present evidence at trial that directly contradicts Appellant’s own
testimony of the events.
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unable to elicit that testimony specifically because the
[Commonwealth] witnesses both indicated that the absence of
such evidence was not indicative of innocence and was, in fact,
quite common in sexual assault cases. [Appellant’s] trial counsel
also called an expert witness for the defense who testified [that,]
in his opinion, one would expect to find the victim's DNA on
[Appellant’s] hands if the assault had occurred as described [by
the victim.]
PCRA Court Opinion, 7/18/22, at 13.
The record demonstrates that Lynn Haimowitz testified on behalf of the
Commonwealth as an expert in the field of forensic science and DNA analysis.
N.T., 3/2/17, at 143. Haimowitz testified that the swabs collected from
various parts of the victim’s body, which comprised the “rape kit,” showed the
presence of only the victim’s DNA.6 Id. at 150, 179-180. Haimowitz further
testified that the swabs collected from Appellant’s hands showed the presence
of only his DNA. Id. at 150-151; 178. When presented with the hypothetical,
“if I touch your hand with my hand and then someone down the road swabs
your hand and then you test it to see if my DNA shows up on your hand, are
you surprised if [my DNA] doesn't [show up]?,” Haimowitz responded that she
would not be surprised that the DNA of the person touching her hand would
not appear in an analysis of a swab sample taken from her hand. Id. at 151.
Haimowitz explained,
when they're swabbing someone's hands, there's obviously going
to be a lot of DNA from the person whose hand it is. You're going
____________________________________________
6 The swabs that comprised the “rape kit” consisted for swabs from the right
side of the victim’s neck, from the left side of the victim’s neck, a rectal swab,
a perianal swab, a vulvar swab, and a vaginal swab. N.T., 3/2/17, at 179.
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to have - most of what you're picking up from that swab is going
to be skin cells of the hand. If there is any DNA from another
person, chances are there's much less of it present than the
person whose hand it is. And because of that, it's probably not
going to be detected with the processes we use. It's also
depending on how much contact there was with that hand. We
don't know how much DNA they left behind to begin with. So, if
it was a small amount of DNA to begin with and then some time
passed, it's not surprising that you can't get DNA from that second
individual.
Id. (paragraph formatting omitted). On cross-examination, Haimowitz
confirmed, through a series of questions posed by Appellant’s trial counsel,
that the analysis of the swabs collected from the victim showed the presence
of only the victim’s DNA and no additional individuals, and the analysis of the
swabs collected from Appellant’s hands showed the presence of only
Appellant’s DNA, and no additional individuals. Id. at 180.
During Appellant’s case-in-chief, Arthur Young testified as an expert in
the field of identification of biological elements, DNA analysis, and biological
forensic sciences. N.T., 3/7/17, at 132. Young agreed with Haimowitz’s
conclusions that the DNA discovered on the swab samples from the victim was
consistent with originating from the victim and that the DNA discovered on
the swab samples of Appellant’s hands was consistent with originating from
Appellant. Id. at 134-135. Young stated that he would expect to find the
presence of Appellant’s DNA on the swab samples from the victim if Appellant
penetrated the victim vaginally with his hand, and similarly, he would expect
to find the victim’s DNA on the swab sample taken from Appellant’s hand. Id.
at 135-136. When asked to explain his statement, Young stated,
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modern DNA analysis is extremely sensitive. If you were to give
me a drop of blood the size of a period, I could get you a DNA
profile and give you back about three quarters of that blood stain
as change. That's how little I need.
However, not all biological fluids are rich in DNA. If you gave me
a sweat stain the size of a period, I probably could not get DNA
out of that because most of sweat is just water. There's very little
cells, and therefore very little DNA in that.
Saliva is fairly rich. I would need about half of that stain. Vaginal
fluid, however is extremely rich. It's extremely rich in DNA. So,
about the same level as blood. So, I wouldn't need a whole lot of
sample in order to get a DNA profile. And if a finger had been
inserted into [the victim’s] vagina, I would expect that somewhere
that DNA would have shown up.
In addition, we're talking about the laboratory having detected
[Appellant’s] DNA off of his own hand. Now, he may have his own
DNA on his hand, for example if he coughs or sneezes and blocks
it with his [hand] that would put his DNA on his hand, but his hand
is also comprised of cells which have his DNA.
So, if there was something on it, and especially if it was bodily
fluid like a vaginal fluid of somebody else, if you could get
[Appellant’s] DNA from his fingers, you should be able to get
anything that was on top of his hand just by the simple act of
swabbing, and there was no such thing.
Id.
Upon review, we concur with the PCRA court that Appellant failed to
demonstrate how he was prejudiced by trial counsel’s performance. PCRA
Court Opinion, 7/18/22, at 13. Trial Counsel elicited testimony from the
Commonwealth’s DNA expert that Appellant’s DNA was not discovered in an
analysis of the swabs taken from the victim and that the victim’s DNA was not
discovered in an analysis of the swabs taken from Appellant’s hands. N.T.,
3/2/17, at 180. Appellant’s own expert witness testified that, in his opinion,
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if the events of the assault occurred as described by the victim, i.e. if Appellant
penetrated the victim vaginally with his finger, the victim’s DNA should have
been detected in an analysis of the swabs taken from Appellant’s hands
because vaginal fluid is “extremely rich” in the presence of DNA. N.T, 3/7/17,
at 135-136. As such, we find no abuse of discretion or error of law in the
PCRA court’s dismissal of Appellant’s petition on this ground.
Appellant next asserts that trial counsel was ineffective for failing to
prove the fabrication of evidence by Officer Binns and Detective Brian Meissler
(“Detective Meissler”). Appellant’s Brief at 17. Appellant asserts that the two
police officers fabricated a police report and property receipt form showing
that the victim’s credit card had been discovered on Appellant’s person at the
time of his arrest. Id. Appellant argues,
All standard police reports and documentation in this case support
[Appellant’s] assertion that the credit cards [discovered on his
person and admitted at trial] were not recovered from him at the
time of his arrest. The initial 75-48A report indicates that nothing
was recovered from [Appellant]. All of [Appellant’s] personal
items were photographed, inventoried[,] and placed on a property
receipt [form] at the time of his arrest. The credit cards were not
included in the 75-48A [report]. No photographic evidence of the
[credit] cards was included in the documentation of [Appellant’s]
personal items or in the property receipts for the personal items
of [Appellant]. The arresting [police] officer generated a property
receipt subsequent to [Appellant’s] arrest, which was not properly
witnessed by another [police] officer and a proper chain of custody
was never established.
Id.
In denying Appellant’s petition on this ground, the PCRA court stated,
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[Appellant] failed to provide evidence of police fabrication of the
[victim’s] credit cards in [Appellant’s] personal possessions, which
had been put in a police evidence bag after his arrest. [Appellant]
relies on a lack of inclusion of the [victim’s credit] cards on the
initial [75-48A report] and lack of a property receipt for [credit]
cards or any other items found on [Appellant] by Officer Binns.
Officer Binns and Detective Meissler were extensively
cross-examined on the failure to include the [victim’s credit] card
on the initial property paperwork. Furthermore, the [victim]
testified that she specifically offered that [credit] card to
[Appellant] because she knew it was unusable. Finally, the
[victim] identified the [credit] card in a police evidence envelope
and testified that detectives showed her the same [credit] card
while she was being treated at [the hospital. Appellant] has not
demonstrated that [his] fabricated evidence claim has any
underlying merit.
Additionally, [Appellant] has not shown that trial counsel made an
unreasonable strategic decision in pursuing a suppression motion
on Fourth Amendment grounds, then arguing the credibility of that
evidence, both during cross-examination and closing
[arguments].
PCRA Court Opinion, 7/18/22, at 13-14.
The record demonstrates that in the 75-84A report prepared by Officer
Binns after the events on January 1, 2015, he noted that during a pat-down
of Appellant’s person he discovered two credit cards in the front right pocket
of Appellant’s pants. N.T., 3/6/17, at 31, 51. Each credit card contained a
different name, and neither name was the name provided by Appellant. Id.
at 31. At this point, Officer Binns was unaware of the victim’s name. Id. at
32. Officer Binns stated that the credit cards were later provided to another
police officer at the police precinct. Id. at 35. On cross-examination, Officer
Binns acknowledged that, in statements provided to the investigating officer
from the special victims unit, he reported that two credit cards had been
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recovered from Appellant’s person but that his partner reported nothing had
been discovered on Appellant’s person. Id. at 48. When asked about the
differing statements made to the investigating officer regarding the credit
cards, Officer Binns explained that he, and not his partner, was the police
officer who performed the pat-down of Appellant’s person. Id. at 50.
Detective Meissler testified that he was the police officer responsible for
inventorying Appellant’s belongings once the items arrived at the police
precinct. N.T., 3/7/17, at 11. Detective Meissler stated that Appellant’s items,
including the two credit cards, arrived at the precinct in a police property bag.
Id. at 12. One of the credit cards inventoried by Detective Meissler was a
temporary credit card bearing the victim’s signature on the back of the credit
card. Id. at 13. On cross-examination, Detective Meissler acknowledged that,
unlike the property receipts used to inventory Appellant’s other belongings,
the property receipt used to inventory the victim’s credit card did not contain
the signature of another police officer who witnessed Detective Meissler’s
inventorying of the credit card. Id. at 26. Detective Meissler further
acknowledged on cross-examination that while several photographs were
introduced showing the various items that he inventoried as discovered on
Appellant’s person, he was unable to locate a photograph depicting the credit
card at the time it was inventoried.
Upon review, we concur with the PCRA court that Appellant’s
ineffectiveness claim based on trial counsel’s failure to demonstrate that the
police officers fabricated evidence of the victim’s credit card being discovered
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on Appellant’s person is without merit. Trial counsel cross-examined both
Officer Binns and Detective Meissler extensively about the inconsistencies and
discrepancies in the collection and recording of the victim’s credit card
recovered from Appellant’s person. Absent an admission by one of the police
officers that the evidence was fabricated, which trial counsel was unlikely to
obtain, trial counsel reasonably challenged the veracity of the evidence on
cross-examination. It was within the purview of the jury to weigh this
evidence and assign credibility to it. As such, we discern no abuse of discretion
or error of law in the PCRA court’s dismissal of Appellant’s petition on this
ground.
Finally, Appellant asserts that trial counsel was ineffective for failing to
“protect [his] constitutional rights.” Appellant’s Brief at 14. A review of
Appellant’s supplemental amended PCRA petition appears to raise a claim for
collateral relief pursuant to Section 9543(a)(2)(ii) (ineffective assistance of
counsel) on the ground that he “was denied effective assistance of counsel at
trial [] as guaranteed by the Sixth Amendment of the United States
Constitution and the analogous provisions of the Pennsylvania Constitution.”
Supplemental Amended PCRA Petition, 9/14/21, at ¶6. It is well-established
that a defendant enjoys a constitutional right to effective assistance of
counsel. See Commonwealth v. Washington, 880 A.2d 536, 578 (Pa.
2005); see also Pierce, 527 A.2d 973, 979 (Pa. 1987) (Nix, C.J. concurrence)
(stating, “[t]he right to assistance of competent counsel at trial as recognized
at this time, in this Commonwealth, is a critical element of the panoply of
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rights encompassed in the concept of a fair trial”). As Appellant failed to
establish that trial counsel was ineffective as discussed supra, we discern no
abuse of discretion or error of law in the PCRA court’s dismissal of this claim.
In his second issue, Appellant challenges the PCRA court’s dismissal of
his petition on the ground that direct appeal counsel was ineffective for failing
to raise a requested claim. Appellant’s Brief at 19-21. Appellant contends
that he asked direct appeal counsel to “include the claim relating to the
introduction of fabricated evidence.”7 Id. at 20.
Appellant’s instant claim alleges that appellate counsel was ineffective
for failing to raise, on direct appeal, a claim that trial counsel was ineffective
for failing to object to the introduction of the fabricated evidence.8 It is
well-settled that claims of trial counsel’s ineffectiveness are to be raised in
____________________________________________
7 Although Appellant does not specifically identify the “fabricated evidence” in
his appellate brief, we presume, based upon the argument in support of his
first issue therein, that “fabricated evidence” refers to Appellant’s allegations
pertaining to the victim’s credit card. See Appellant’s Brief at 17 (discussing
“fabricated evidence” as the evidence of the victim’s credit card being found
on Appellant’s person at the time of arrest). Moreover, it is unclear from a
review of Appellant’s brief in support of his second issue, what specific
challenge relating to the fabricated evidence Appellant asked counsel to raise
on direct appeal. Id. at 20 (stating, “the [appellate] brief [filed on direct
appeal] did not include the claim relating to the introduction of fabricated
evidence”). Based upon a reading of Appellant’s argument in support of his
first issue, however, Appellant’s challenge to the performance of direct appeal
counsel appears to center upon “trial counsel’s failure to object to the
introduction of the [victim’s] credit cards as evidence at trial[.]” Id. at 17.
8Appellant contends, and the record supports, that trial counsel did not object,
at trial, to the introduction of evidence involving the victim’s credit card.
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collateral proceedings and may not be raised on direct appeal.
Commonwealth v. Bradley, 261 A.3d 381, 391 (Pa. 2021); see also 42
Pa.C.S.A. § 9543(a)(2)(ii). As such, direct appeal counsel cannot be
ineffective for failing to raise, prematurely, a claim on direct appeal that is
properly reserved for collateral proceedings. Moreover, we note that trial
counsel and direct appeal counsel were the same attorney. An attorney
cannot raise a claim involving his or her own ineffectiveness.
Commonwealth v. Basemore, 744 A.2d 717, 726 (Pa. 2000) (stating that,
“as a general rule, counsel cannot raise his[, or her,] own ineffectiveness”).
To the extent, however, that Appellant asserts a claim challenging the
effectiveness of trial counsel for failing to object to the introduction of the
victim’s credit card as evidence at trial, we find this issue to be without merit.
We concur with the PCRA court that, as part of his instant petition, Appellant
failed to establish that the evidence, namely the 75-48A form and the property
receipt, were fabricated by Officer Binns and Detective Meissler. Rather,
Appellant relied on mere assertions that Officer Binns fabricated the 75-48A
form because Officer Binns’ partner stated that no items were recovered from
Appellant whereas Officer Binns reported on the 75-48A form that the victim’s
credit card was discovered on Appellant’s person. Appellant speculates that
Detective Meissler fabricated the property receipt showing that the victim’s
credit card was discovered on Appellant’s person because the property receipt
did not contain a witness signature. Therefore, Appellant failed to
demonstrate that the underlying claim – that the property receipt was
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fabricated - was meritorious. As such, trial counsel cannot be deemed
ineffective for failing to lodge a meritless objection. Instead, absent direct
proof that the evidence was fabricated, trial counsel pursued a line of
questioning on cross-examination that raised questions as to the veracity of
the evidence based upon the idea that the evidence was fabricated in order to
discredit the evidence in the eyes of the jury, as fact-finder. Consequently,
we find Appellant’s claim that trial counsel was ineffective for failing to lodge
an objection to the alleged fabricated evidence to be without merit.9
In his third issue, Appellant asserts that the PCRA court erred in denying
his request for collateral relief on the ground that “violations of his due process
constitutional rights [] so undermined the truth-determining process that no
reliable adjudication of guilt or innocence could have taken place.” Appellant’s
Brief at 21-23; see also 42 Pa.C.S.A. § 9543(a)(2)(i). Appellant argues that
the Commonwealth’s introduction of fabricated evidence, i.e. the victim’s
credit card, and the use of perjured testimony from the victim constituted
prosecutorial misconduct and violated his due process rights.10 Appellant’s
____________________________________________
9 Insofar as Appellant asserts that he was denied “a complete foreclosure of
appellate review,” we find this assertion to be of no avail. Appellant was
afforded direct review by this Court. See Woodson, 209 A.3d 491, 2019 WL
156544.
10To the extend Appellant asserts that his constitutional rights were violated
because trial counsel failed to provide effective representation, we find this
assertion to be without merit for the reasons discussed supra regarding
Appellant’s claims of ineffective assistance of trial counsel.
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Brief at 22. Appellant contends that his due process rights were violated
because the Commonwealth knowingly allowed materially false testimony and
evidence to stand uncorrected. Id.
As discussed supra, Appellant failed to demonstrate that the evidence
of the victim’s credit card being found on Appellant’s person was fabricated.
See Pa.R.Crim.P. 902(D); see also Carson, 913 A.2d at 251. Regarding the
allegation that the victim perjured her testimony (see Appellant’s Brief at 22),
Appellant fails to develop an argument to support his assertion, including
citation to the specific testimony provided by the victim, at trial, that Appellant
believes constituted perjury. PCRA Court Opinion, 7/18/22, at 16 (stating,
Appellant “failed to provide evidence of perjured testimony”). Appellant baldly
asserts that the Commonwealth “use[d] perjured testimony from the
[victim.]” Appellant’s Brief at 22. Therefore, we find the assertion involving
perjured testimony to be waived.11 Commonwealth v. Taylor, 277 A.3d
____________________________________________Moreover, Appellant asserts that his due process rights were violated because
the Commonwealth failed “to prove each element of the crimes charged
beyond a reasonable doubt.” Appellant’s Brief at 22. We find that Appellant
has waived a claim of insufficient evidence to support his conviction for failure
to raise this claim before trial, at trial, or on direct appeal. 42 Pa.C.S.A.
§ 9544(b) (stating, “an issue is waived if the petitioner could have raised it
but failed to do so before trial, at trial, during unitary review, on appeal”); see
also 42 Pa.C.S.A. § 9543(a)(3) (stating that, in order to be eligible for relieve
under the PCRA, the allegation of error cannot be waived).
11 Moreover, Appellant failed to raise this argument involving perjured
testimony before the PCRA court. See Supplemental Amended PCRA Petition,
9/14/21, at ¶¶6-8 (setting forth allegations in support of his request for
collateral relief without mention of perjured testimony). Appellant cannot
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577, 591 (Pa. Super. 2022) (stating that, “[w]hen issues are not properly
raised and developed in briefs, or when the briefs are wholly inadequate to
present specific issues for review, [this] Court will not consider the merits
thereof” and the issue is waived (citation and original quotation marks
omitted)).
In his final issue, Appellant asserts that the PCRA court erred in
dismissing his petition without granting him an evidentiary hearing.
Appellant’s Brief at 24.
It is well-established that a “a petitioner is not entitled to a PCRA hearing
as a matter of right[. T]he PCRA court can decline to hold a hearing if there
is no genuine issue concerning any material fact and the petitioner is not
entitled to post-conviction collateral relief, and no purpose would be served
by any further proceedings.” Commonwealth v. Taylor, 933 A.2d 1035,
1041 (Pa. Super. 2007), appeal denied, 951 A.2d 1163 (Pa. 2008); see also
Pa.R.Crim.P. 907(1) (stating that, the PCRA court may dispose of a petition
without a hearing when the PCRA court is “satisfied from [its] review that
there are no genuine issues concerning any material fact and that the
[petitioner] is not entitled to post-conviction collateral relief, and no purpose
would be served by any further proceedings”). Moreover, “PCRA hearings are
not discovery expeditions; rather, they are conducted when necessary to offer
____________________________________________
raise a claim of perjured testimony for the first time on appeal. Pa.R.A.P.
302(a) (stating, “[i]ssues not raised in the [PCRA] court are waived and
cannot be raised for the first time on appeal”).
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the petitioner an opportunity to prove that which he already [] asserted, and
only when his proffer establishes a colorable claim about which there remains
a material issue of fact.” Commonwealth v. Sneed, 45 A.3d 1096, 1107
(Pa. 2012). “To obtain reversal of a PCRA court's decision to dismiss a petition
without a hearing, an appellant must show that he[, or she,] raised a genuine
issue of fact which, if resolved in his[, or her,] favor, would have entitled him[,
or her,] to relief, or that the [PCRA] court otherwise abused its discretion in
denying a hearing.” Id. at 1106 (citation, original quotation marks, and
brackets omitted).
For the reasons discussed herein, we find Appellant failed to establish a
colorable claim about which there remained a material issue of fact. As such,
we discern no error or abuse of discretion in the PCRA court’s dismissal of
Appellant’s petition without an evidentiary hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/13/2023
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