Com. v. Kohr, D.

J-S32043-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DEVEN TYLER KOHR :
:
Appellant : No. 184 MDA 2023
Appeal from the PCRA Order Entered January 4, 2023
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-CR-0003593-2016
BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED: DECEMBER 28, 2023
Appellant Deven Tyler Kohr appeals from the order denying his timely
first Post Conviction Relief Act1 (PCRA) petition. Appellant argues that his trial
counsel, John Shugars, Esq. (trial counsel) was ineffective for failing to
properly question witnesses and providing erroneous advice to Appellant
concerning his juvenile record, which interfered with his right to testify in his
own defense at trial. After careful review, affirm.
A prior panel of this Court summarized the relevant facts and procedural
history of this matter as follows:
On May 14, 2016, [Appellant] called 911 after finding his
daughter, six-month-old Desirae Kohr [(Victim)], unresponsive
and not breathing. When police arrived, Kevinlee Kirsch,
[Victim’s] grandfather, was in the process of administering CPR.
[Victim] was transported to Harrisburg Hospital by ambulance,
____________________________________________
1 42 Pa.C.S. §§ 9541-9546.
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along with [Appellant]. At the hospital, [Victim] never regained
consciousness, and was declared dead.
Two days prior to her death, on May 12, 2016, [Appellant] and
Paula Kirsch [(Mother)], noticed that [Victim] seemed to be ill.
Specifically, [Victim] was sleeping more than normal and
vomiting. [Mother] took her to a physician who advised her it was
likely a “bug.” The physician instructed [Mother] to keep [Victim]
hydrated with Pedialyte.
Even though [Victim] was sick, [Mother] decided to travel to New
Jersey the day following [Victim’s] doctor’s appointment, as
earlier in the year she had made plans to celebrate her sister’s
twenty-first birthday in Atlantic City that weekend. While initially
reluctant to follow through with her plans, she ultimately did go,
and left her children in [Appellant’s] care. [Mother’s] decision to
go to Atlantic City upset [Appellant] for various reasons, including
his concerns of potential infidelity; however, he insisted on
watching the children.
On the evening of May 14, 2016, [Appellant] called [Mother] to
inform her that [Victim] was not breathing. [Mother] told
[Appellant] to call an ambulance and left New Jersey for
Pennsylvania almost immediately. While en route to
Pennsylvania, [Mother] was unable to contact [Appellant] despite
numerous attempts; she then tried calling Kevinlee, who was
unreachable due to an uncharged cell phone battery. Eventually,
[Mother] contacted Josh, her sister’s boyfriend, who in turn
informed Kevinlee what had happened. While the three men —
[Appellant], Kevinlee, and Josh — were in the home at the time
of the event, [Appellant] was the only adult present in the room
when [Victim] became unresponsive.
Matthew Stoner, the Chief Deputy Coroner for the Cumberland
County Coroner’s Office, responded to Harrisburg Hospital, where
he pronounced [Victim] dead from her injuries. The family was
subsequently instructed not to remove the endotracheal tube
inserted in [Victim’s] mouth, even though she was no longer alive;
[Appellant] removed it anyway. After talking to the family,
members of the New Cumberland Borough Police Department and
the coroner returned to the house to attempt to develop a better
understanding of what had happened prior to [Victim’s] death.
While in the home, officers found unopened Pedialyte on the
kitchen counter. Upon noticing the unopened bottle, [Appellant]
reached for the bottle to attempt to open it, but was stopped by
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one of the officers. [Appellant] then told law enforcement that he
had given [Victim] a Pedialyte popsicle, instead of the actual
Pedialyte.
Dr. Wayne Ross, a forensic pathologist with the Cumberland
County Coroner’s Office, performed an autopsy on [Victim’s] body.
Dr. Ross concluded, within a reasonable degree of medical
certainty, that her death was caused by suffocation or traumatic
asphyxiation. While performing the autopsy, Dr. Ross found rib
impressions on [Victim’s] liver, as well as congestion or bleeding,
suggesting her chest was compressed down to her liver before she
died. He also found bleeds in her head that ranged from zero to
eight days old. These bleeds were consistent with injuries from
high forces of deceleration from actions such as throwing the child
into the bed. Dr. Ross further testified that traumatic brain injury
could be the cause of nausea and vomiting, and that there was no
indication that [Victim] was ill.
Sergeant Caroline Weber interviewed the family members
individually after [Victim]’s death. Upon being confronted with the
autopsy report and cause of death, [Appellant] revealed to
Sergeant Weber that he dropped [Victim] in her swing and she hit
her head. He said that he then picked her up and squeezed her.
[Appellant] said that he thought that “the squeezing of her is what
did it to her.” However, Dr. Ross testified that this explanation
was neither scientifically nor medically possible.
[Appellant] was arrested and charged with murder (first and third
degree), aggravated assault, [endangering the welfare of a child
(EWOC)], and simple assault.[FN1] The case proceeded to a jury
trial, and, on November 3, 2017, the jury found [Appellant] guilty
of third-degree murder, EWOC, and simple assault.[FN2] With
regard to the charge of EWOC, the jury specifically determined
[that Appellant] was guilty of engaging in a “course of conduct.”
On January 23, 2018, the trial court sentenced [Appellant] as
follows: (1) on the count of third-degree murder, a term of 20 to
40 years’ imprisonment; (2) on the count of [EWOC], a
consecutive term of two to five years’ imprisonment; and (3) on
the count of simple assault, a concurrent term of one to two years’
imprisonment.
See 18 Pa.C.S. §§ 2502(a) and (c), 2702(a)(1),
[FN1]
4304(a)(1), and 2701(a)(1), respectively.
The jury found [Appellant] not guilty of first-degree
[FN2]
murder and aggravated assault.
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[Appellant] filed a timely post-sentence motion in which he (1)
challenged the sufficiency of the evidence supporting his
convictions, (2) asserted the Commonwealth committed
prosecutorial misconduct and deprived him of a fair trial, and (3)
requested the court modify or reconsider his sentence. Following
argument on March 2, 2018, the trial court entered an order
finding [Appellant’s] prosecutorial misconduct and fair trial claims
waived. After reviewing briefs by the parties on the remaining
issues, the trial court entered an order and opinion on July 5,
2018, denying [Appellant’s] post-sentence motions.
Commonwealth v. Kohr, 1252 MDA 2018, 2019 WL 2486762, at *1-2 (Pa.
Super. filed Jun. 14, 2019) (Kohr I) (unpublished mem.) (footnote and
citations omitted and some formatting altered). Appellant filed a timely
appeal, and this Court affirmed Appellant’s judgment of sentence. See id. at
*9. Our Supreme Court denied Appellant’s petition for allowance of appeal on
November 19, 2019. See Commonwealth v. Kohr, 220 A.3d 531 (Pa. 2019)
(Kohr II).
Appellant filed a timely pro se first PCRA petition on September 25,
2020. The PCRA court appointed Jacob Jividen, Esq., to represent Appellant,
and Attorney Jividen filed a counseled PCRA petition on February 3, 2021. On
March 24, 2021, the PCRA court vacated the appointment of Attorney Jividen
and appointed William Braught, Esq., to represent Appellant. On August 9,
2021, Attorney Braught filed an amended PCRA petition. The PCRA court held
a hearing on September 22, 2022, and on January 4, 2023, the PCRA court
denied Appellant’s PCRA petition. This timely appeal followed. Both the PCRA
court and Appellant have complied with Pa.R.A.P. 1925.
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On appeal, Appellant raises the following issues:
1. Trial [C]ounsel’s advice that Appellant’s prior juvenile robbery
adjudication conviction would be admissible if he were to testify
to show that he was a bad and violent person was so
unreasonable that Appellant did not and could not have made
a knowing and intelligent decision to not testify at trial.
2. Trial [C]ounsel ineffectively cross-examined witnesses in such
a manner as to deny Appellant a fair trial and thereby denying
his right to due process.
a. Trial [C]ounsel failed to elicit testimony from [Mother]
regarding her medical care, or lack thereof, for [Victim], and
to enter into evidence [Victim’s] medical records, thus
depriving Appellant’s jury of this exculpatory information.
b. Trial [C]ounsel failed to elicit testimony from Wayne Ross,
M.D. regarding his claim that [Victim] was blind 24 to 48
hours prior to her death thus depriving Appellant’s jury of
this exculpatory information.
3. Trial [C]ounsel ineffectively examined Appellant’s own witness,
Douglas Kohr, in such a manner as to deny Appellant a fair trial
and thereby denying his right to due process.
Appellant’s Brief at 4 (some formatting altered).
Our standard of review from the denial of a PCRA petition “is limited to
examining whether the PCRA court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
Sandusky, 203 A.3d 1033, 1043 (Pa. Super. 2019) (citation omitted). This
Court applies a de novo standard of review to the PCRA court’s legal
conclusions. Commonwealth v. Hutchinson, 25 A.3d 277, 284 (Pa. 2011).
A PCRA court’s credibility determinations, however, are binding on this Court
when such determinations are supported by the record. Id.; see also
Commonwealth v. Davis, 262 A.3d 589, 595 (Pa. Super. 2021) (stating that
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“[t]his Court grants great deference to the findings of the PCRA court if the
record contains any support for those findings” (citation omitted)).
[T]o establish a claim of ineffective assistance of counsel, a
defendant must show, by a preponderance of the evidence,
ineffective assistance of counsel which, in the circumstances of
the particular case, so undermined the truth-determining process
that no reliable adjudication of guilt or innocence could have taken
place. The burden is on the defendant to prove all three of the
following prongs: (1) the underlying claim is of arguable merit;
(2) that counsel had no reasonable strategic basis for his or her
action or inaction; and (3) but for the errors and omissions of
counsel, there is a reasonable probability that the outcome of the
proceedings would have been different.
We have explained that a claim has arguable merit where the
factual averments, if accurate, could establish cause for relief.
Whether the facts rise to the level of arguable merit is a legal
determination.
The test for deciding whether counsel had a reasonable basis for
his [or her] action or inaction is whether no competent counsel
would have chosen that action or inaction, or, the alternative, not
chosen, offered a significantly greater potential chance of success.
Counsel’s decisions will be considered reasonable if they
effectuated his [or her] client’s interests. We do not employ a
hindsight analysis in comparing trial counsel’s actions with other
efforts he may have taken.
Prejudice is established if there is a reasonable probability that,
but for counsel’s errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.
Boilerplate allegations and bald assertions of no reasonable basis
and/or ensuing prejudice cannot satisfy a petitioner’s burden to
prove that counsel was ineffective. Moreover, a failure to satisfy
any prong of the ineffectiveness test requires rejection of the
claim of ineffectiveness.
Sandusky, 203 A.3d at 1043-44 (citations omitted and formatting altered).
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Prior Adjudication
Appellant first argues that trial counsel rendered ineffective assistance
by advising Appellant that if he chose to testify, a prior juvenile adjudication
for robbery, would be used against him as crimen falsi. Specifically, Appellant
argues that trial counsel never explained that the crimen falsi adjudication
could only be used by the jury to assess Appellant’s credibility and that the
trial court would give the jury an instruction explaining that limitation. See
Appellant’s Brief at 14-16. Appellant asserts that trial counsel’s advice was
inaccurate and unreasonable, and it precluded Appellant from being able to
make a knowing and intelligent decision to waive his right to testify at trial.
See id. at 15-16.
The Commonwealth contends that trial counsel was not ineffective
because he made a reasonable strategic decision and advised Appellant not to
testify because the Commonwealth would have cross-examined Appellant
regarding contradictory statements he made to the police concerning the
source of Victim’s fatal injuries. See Commonwealth’s Brief at 13. The
Commonwealth further notes that Appellant’s on-the-record colloquy reflects
that he voluntarily waived his right to testify. See id. at 13-14. Further, the
Commonwealth asserts that Appellant testified that the admissibility of his
juvenile record was only one factor in his choice not to testify. See id. at 14.
This Court has explained:
The decision of whether or not to testify on one’s own behalf
is ultimately to be made by the defendant after full
consultation with counsel. In order to sustain a claim that
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counsel was ineffective for failing to advise the appellant of
his rights in this regard, the appellant must demonstrate
either that counsel interfered with his right to testify, or that
counsel gave specific advice so unreasonable as to vitiate
a knowing and intelligent decision to testify on his own
behalf.
[Commonwealth v.] Nieves, 746 A.2d [1102,] 1104 [(Pa.
2000)] (internal citations omitted).
[T]he appropriate standard for assessing whether a
defendant was prejudiced by trial counsel’s ineffectiveness
regarding the waiver of his right to testify is whether the
result of the waiver proceeding would have been different
absent counsel’s ineffectiveness, not whether the outcome
of the trial itself would have been more favorable had the
defendant taken the stand.
Commonwealth v. Walker, 110 A.3d 1000, 1005 (Pa. Super.
2015), appeal denied, 125 A.3d 777 (Pa. 2015) (emphasis in
original).
A trial court is not required to conduct a colloquy to determine
whether a defendant has made a knowing, intelligent and
voluntary waiver of his right to testify. Commonwealth v. Todd,
820 A.2d 707, 712 (Pa. Super. 2003). Nevertheless, a criminal
defendant must understand his decision not to testify if not by
colloquy, then by the presumed competent advice of counsel. See
id. (holding appellant’s waiver of right to testify was knowing,
intelligent and voluntary, where court credited counsel’s
testimony that he discussed right to testify with appellant on
numerous occasions and counsel’s advice was reasonable).
Commonwealth v. Washington, 269 A.3d 1255, 1264 (Pa. Super. 2022)
(en banc) (footnote omitted and some formatting altered), appeal denied, 283
A.3d 1249 (Pa. 2022).
In Washington, the appellant’s attorney erroneously advised the
appellant not to testify because evidence of a prior conviction for aggravated
assault would be admissible, and the jury would hear the details of that prior
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conviction. See Washington, 269 A.3d at 1261. The appellant’s attorney
admitted telling the appellant: “I don’t want you to get on the stand because
the prosecutor could bring up the aggravated assault conviction and then the
jury . . . will think you’re violent.” Id. at 1260 (citation omitted). The
appellant’s attorney failed to advise the appellant that because aggravated
assault was not a crimen falsi, it would not have been automatically
admissible. Id. at 1262-63. The attorney “made clear at the PCRA hearing
that his advice against testifying was based solely on fear of [the a]ppellant’s
prior aggravated assault conviction coming in for impeachment purposes and
the jury hearing details about that offense.” Id. at 1267 (citation omitted and
emphasis in original). Therefore, in Washington, the appellant’s attorney
clearly admitted providing inaccurate and erroneous legal advice. See id.
Instantly, we conclude that Appellant’s claim is meritless. In his PCRA
petition and at the PCRA hearing, Appellant asserted that he would have
testified on his own behalf if trial counsel informed him that the
Commonwealth’s use of the prior adjudication would have been limited. See
Am. PCRA Pet., 8/9/21, at ¶12; N.T., 9/22/22, at 103-10. At the PCRA
hearing, Appellant testified that he believed that his prior adjudication would
have been used to show that he had a violent nature, and he was concerned
that the jury would hear more facts about the robbery. See N.T., 9/22/22, at
106. However, despite Appellant’s claim that trial counsel provided
incomplete information concerning his prior adjudication, trial counsel credibly
rebuffed Appellant’s accusation. The PCRA court credited trial counsel’s
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testimony that counsel could not remember the specifics of the conversation,
but that he did discuss with Appellant, the potential positives and negatives
of Appellant taking the stand as a witness. See N.T., 9/22/22, at 16-18, 73.
Further, the record reflects that the trial court conducted a colloquy
addressing Appellant’s waiver of his right to testify:
THE COURT: Yes. Now, [Appellant], I just need to go over a
couple of things with you. I trust that you have had ample time
to consider whether or not you will take the stand in this case. I
know that you have had an opportunity to discuss this with
counsel. And now I must make sure that any decision you are
making is knowing and voluntary. Initially can you tell me how
far you went in school?
[APPELLANT]: Twelfth grade.
THE COURT: Did you graduate high school?
[APPELLANT]: Yes.
THE COURT: And do you understand that you are not required to
take the stand and testify in your own behalf?
[APPELLANT]: Yes.
THE COURT: Do you understand that you have a Constitutional
right not to take the stand and testify?
[APPELLANT]: Yes.
THE COURT: And do you understand that you may exercise that
right for any[]one of a number of reasons?
[APPELLANT]: Yes.
THE COURT: Do you understand that if you decide not to testify,
I will instruct the jury that they are not permitted to speculate on
your reasons, nor may they draw any inference of guilt or any
other adverse inference to you by virtue of the fact that you do
not testify?
[APPELLANT]: Yes.
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THE COURT: Do you understand everything that I have said so
far?
[APPELLANT]: Yes.
THE COURT: Do you have a clear mind today?
[APPELLANT]: Yes.
THE: COURT: And you have been paying attention throughout the
case, and making notes and talking with [trial counsel]. Are you
under the influence of alcohol or any substance that might impair
your ability to make the decision as to whether or not you should
testify?
[APPELLANT]: No.
THE COURT: Have you had sufficient time to discuss this matter
with [trial counsel]?
[APPELLANT]: Yes.
THE COURT: Do you understand that ultimately it is your
decision as to whether or not you should testify and not
[trial counsel’s]?
[APPELLANT]: Yes.
THE COURT: Knowing all of this, have you personally
reached a decision regarding your desire to testify?
[APPELLANT]: Yes.
THE COURT: And what is your intention?
[APPELLANT]: I will not.
THE COURT: [Trial counsel], anything you want to add to that?
[APPELLANT]: No, Judge. Other than that my client and I had
discussed it. That was my recommendation to him as well. I am
not going to get into any individual discussion.
THE COURT: Then, [Appellant], I find that your decision not to
testify was made knowingly and voluntarily after you had this
opportunity to discuss that with your counsel.
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N.T. Trial, 10/30/17-11/3/17, at 451-454 (emphases added). Appellant
testified unequivocally that he was voluntarily waiving his constitutional right
to testify and understood that ultimately, it was his decision to make, and not
for counsel to decide. See id.
After review, we conclude that Appellant’s baseless allegations are
insufficient to support his claim that trial counsel interfered with his right to
testify. See Commonwealth v. Baker, 507 A.2d 872, 874 (Pa. Super. 1986)
(stating that “self-serving or uncorroborated statements on petitioner’s behalf
do not shift and do not necessarily sustain petitioner’s burden of proof, even
when the Commonwealth presents no rebuttal evidence” (citation omitted)).
Nothing in this record supports the conclusion that trial counsel’s specific
advice was so unreasonable that it precluded Appellant from making a
knowing and intelligent decision concerning whether to testify. See Nieves,
746 A.2d at 1104. Therefore, Appellant’s claim is meritless. Accordingly,
Appellant is not entitled to relief.
Cross-examination
Next, Appellant argues that trial counsel was ineffective in his cross-
examination of two witnesses. Appellant claims that Mother was Victim’s
primary care giver, and proper cross-examination could have cast Mother as
an alternate suspect. Appellant’s Brief at 18. Further, Appellant argues that
trial counsel failed to elicit testimony from Dr. Ross that Victim’s primary
physician did not document Victim’s blindness the day prior to her death. Id.
at 20.
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We note that “[t]he scope and vigor of cross-examination is a matter
which falls within the ambit of sound trial strategy to be exercised by trial
counsel alone.” Commonwealth v. Molina, 516 A.2d 752, 757 (Pa. Super.
1986) (citation omitted). Here, the PCRA court addressed Appellant’s
argument as follows:
[Appellant] next contends that [trial counsel] was ineffective for
failing to properly cross-examine [Mother] and Dr. Wayne K. Ross
regarding their testimony at trial. Specifically, with respect to
[Mother], [Appellant] contends that [trial counsel] failed to
adequately question her regarding whether she sought proper
prenatal and postnatal care for Victim, as well as questioning her
regarding her mental health in the weeks leading up to Victim’s
death, with the goal of advancing the theory that [Mother] was
responsible for Victim’s death. With respect to Dr. Ross,
[Appellant] contends that [trial counsel] failed to question him
regarding the Commonwealth’s timeline of events, pointing out
that the evidence of Victim’s antemortem blindness was not
reflected during a doctor’s visit [Mother] took Victim to on the day
before her death. [Appellant] submits that evidence would call
into question the findings by Dr. Ross and bring his credibility into
doubt.
Regarding [Mother], the record reflects first that [trial counsel]
did cross-examine her regarding whether she properly sought
postnatal care for Victim. Notably, [trial counsel] introduced
testimony that [Mother] failed to bring Victim to several postnatal
care appointments, and that a letter reflecting those failures was
mailed to her by Victim’s doctor’s office. Because this testimony
was part of the record and available for the jury to consider, [trial
counsel] was not ineffective for failing to cross-examine [Mother]
regarding her purported failure to seek proper postnatal care.
Regarding the failure of [Mother] to seek proper prenatal care for
Victim, as well as [Mother] self-reporting feelings of depression
prior to Victim’s death, [Appellant] failed to meet his burden to
demonstrate that he is entitled to relief. [Appellant] failed to show
that this claim had arguable merit, failed to show that [trial
counsel] lacked a reasonable basis for failing to cross-examine
[Mother] regarding prenatal care and her mental health, and failed
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to show that he suffered prejudice as a result. In terms of
arguable merit, [Appellant] failed to demonstrate that there was
any connection between [Mother]’s failure to seek proper medical
care for Victim, or her mental health prior to Victim’s death, and
the traumatic asphyxiation of Victim, which occurred while
[Mother] was in New Jersey. Regarding [trial counsel’s]
reasonable basis in not pursuing this line of questioning,
[Appellant] failed to demonstrate that the failure by [Mother] to
receive proper prenatal medical care was anything but repetitive
of her failure to ensure that Victim received proper postnatal
medical care, which was placed on the record for the jury to
consider. [Appellant] also failed to demonstrate that [trial
counsel] lacked a reasonable basis for not cross-examining
[Mother] regarding her feelings of depression in the weeks leading
up to Victim’s death. Notably, the autopsy demonstrated that
Victim’s cause of death was either suffocation or traumatic
asphyxiation, and it was uncontested that Victim passed away
while [Mother] was in New Jersey, making the lack of prenatal
medical care and [Mother’s] mental health irrelevant to Victim’s
demise. Likewise, [Appellant] failed to demonstrate that he
suffered any prejudice from [trial counsel] failing to pursue this
line of questioning, as again, it was uncontested that Victim
passed away while [Mother] was in another state. Therefore, [trial
counsel] was not ineffective for failing to cross-examine [Mother]
regarding prenatal and postnatal medical care for Victim, as well
as her mental health in the weeks leading up to Victim’s death.
Regarding Dr. Ross, [Appellant] focuses his challenge on the
testimony that Victim was blinded in the 24 to 48 hours preceding
her death, while the doctor’s notes from an appointment the day
before her death did not document that Victim was blind or note
that she had any problems with her eyesight. [Appellant’s] theory
was that if Dr. Ross was incorrect about the blindness, it would
call into question his other conclusions about Victim’s death.
Challenging Dr. Ross’ conclusions regarding Victim’s death does
present an issue of arguable merit, as it could call into doubt
[Appellant’s] culpability for Victim’s retinal bleeding and blindness,
clearing the first prong of the [test for ineffectiveness] i.e., that
the underlying claim had arguable merit.
However, the record reflects that [trial counsel] did inquire into
Victim’s blindness, with Dr. Ross testifying that he needed to
perform the autopsy of Victim to discover it. Specifically, Dr. Ross
stated that he needed to remove and then dissect Victim’s eyes to
reveal the bleeding and blood clots in her retinas that rendered
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her blind. Further, Dr. Ross testified that the presence of blood in
the retinas, rather than iron deposits left by older, healed injuries,
indicated that the blindness occurred within 24 to 48 hours prior
to death, and not that the injury happened at least 24 to 48 hours
before death, as [Appellant] argues. Because the testimony and
evidence at trial demonstrated that Dr. Ross’ findings were
consistent with the report from Victim’s doctor’s appointment from
the day before her death, [trial counsel] acted reasonably based
on the information available to him at trial.
Additionally, [Appellant] failed to demonstrate that he was
prejudiced by the testimony regarding Victim’s blindness, as the
ultimate medical conclusion was that the fatal asphyxia began
approximately five minutes prior to death, and [Appellant] did not
present any evidence challenging that conclusion. Instead, all the
testimony and evidence submitted at trial was consistent with
Victim being alive when [Appellant] took over caring for her, and
that Victim passed away while in [Appellant’s] custody due to
injuries she sustained. Importantly, this finding tracks with the
doctor’s report that [Appellant] attempted to rely on, because that
report reflected that Victim was in relatively good health while
with [Mother]. Therefore, [Appellant] failed to meet his burden
with respect to the cross-examinations of [Mother] and Dr. Ross,
and he is not entitled to relief on this claim.
PCRA Ct. Op., 1/4/23, at 12-15 (footnotes omitted).
We conclude that the PCRA court’s findings are supported by the record
and free from legal error. See Sandusky, 203 A.3d at 1043. The record
reflects that the cause of Victim’s death was suffocation or traumatic
asphyxiation, and it was uncontested that Mother was in another state when
Victim died. We agree with the PCRA court that cross-examination concerning
pre- and post-natal care was immaterial to casting blame on Mother, therefore
Appellant’s claim lacks merit.
With respect to Dr. Ross, the record reveals that Victim was alive when
Appellant began caring for her, and that Victim’s blindness occurred within
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24 to 48 hours prior to death, as opposed to more than 24 to 48 hours before
Victim’s death. See N.T. Trial, 10/30/17-11/3/17, at 381. Further, trial
counsel did question Dr. Ross about Victim’s blindness. See id. at 404-05.
Dr. Ross testified that an autopsy was necessary to discover Victim was blind
and to see the bleeding in Victim’s retinas. See id. at 380-81, 404-405, 414.
There is no merit to Appellant’s claim that Dr. Ross overlooked the Victim’s
blindness. Rather, Dr. Ross specifically testified that he had to remove and
dissect Victim’s eyes to uncover the bleeding and blood clots in her retinas
that rendered Victim blind, and that the injuries occurred within 24 to 48 hours
of the Victim’s death.
On this record, we conclude that that Appellant has failed to establish
that trial counsel was ineffective in his cross-examination of Mother or Dr.
Ross. See Sandusky, 203 A.3d at 1043; Molina, 516 A.2d at 757. Appellant
is not entitled to relief on these claims.
Direct Examination
In his final issue, Appellant argues that trial counsel was ineffective
when he questioned Appellant’s father, Douglas Kohr, who testified for the
defense. Appellant’s Brief at 22. Appellant contends that trial counsel was
not prepared to elicit testimony from Douglas Kohr concerning Appellant’s
parenting skills, Mother’s behavior toward Victim, and the fact that Appellant
was not “overwhelmed” by Victim’s needs and that Appellant was not an
“overwhelmed” parent. See id. at 22-23.
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The Commonwealth argues that trial counsel was not ineffective in
pursuing this line of questioning, and trial counsel’s strategy was reasonable.
Commonwealth’s Brief at 18. The Commonwealth notes that if trial counsel
had pursued the idea that Appellant was not overwhelmed, “it would have
opened the door for the Commonwealth to change strategies and paint
Appellant as a cold, premeditating killer, and would help establish the
elements necessary for first-degree murder.” Id.
The PCRA court addressed this issue as follows:
At the PCRA hearing, Douglas Kohr testified that prior to Victim’s
death, [Appellant] had not been at the house for seven weeks, but
that he (Douglas Kohr) and his wife “were there every day” and
“knew [Victim] was sick.” Specifically, Douglas Kohr said that
[Appellant] was staying in a room at “Old Fashioned Heat”[2] for
the seven and half weeks prior to Victim’s death, returning the
Wednesday before she died. Mr. Kohr said that he was “pretty
positive” that he had given this information to [trial counsel]
before he testified.
According to the evidence produced at trial, Victim was taken to
the hospital on Saturday, May 14, 2016. Crediting Douglas Kohr’s
testimony as truthful, [Appellant] was still at the house for four
days with [Victim], Wednesday through Saturday; before she was
taken by ambulance [to a hospital] and ultimately pronounced
dead. Furthermore, [Mother] took [Victim] to the doctor’s office
on Friday, the day before [Victim] died, and none of the injuries
discovered in the autopsy were observed or recorded by Victim’s
physician. [Mother] then left for Atlantic City, leaving [Victim]
with [Appellant], where she died approximately 24 hours later.
The absence of [Appellant] from Victim’s presence in the seven
____________________________________________
2 “Old Fashioned Heat” is a chimney cleaning and wood stove installation
company in New Cumberland, Pennsylvania, and it is Douglas Kohr’s
employer. See N.T. Trial, 10/30/17-11/3/17, at 431. The record reveals that
Appellant rented a room in the same building as Old Fashioned Heat. See
N.T., 9/22/22, at 96.
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weeks prior to her death is irrelevant in the face of the evidence
that he was present with her in the four days immediately
preceding her death.
Douglas Kohr also testified at the PCRA hearing that he and
[Appellant’s] mother were in the area during the days leading up
to Victim’s death, and [Appellant’s] mother actually was at the
house with [Appellant] and Victim until around ten o’clock on
Friday evening before her death. [Appellant] argues that the
availability of his family to help him with Victim’s care is
significant, because one of the Commonwealth’s arguments was
that [Appellant] was overwhelmed by caring for Victim, and those
feelings led to his inflicting the injuries which ultimately caused
her death.
The court is not convinced that Douglas Kohr’s testimony, as he
testified at the PCRA hearing, would have aided [Appellant] at
trial. While he testified that [Appellant] was not involved with
Victim for almost two months prior to her death, Douglas Kohr
also testified that [Appellant] returned to the house with Victim
for the four days leading up to her death, including the 24 hours
before her death, when she was in [Appellant’s] primary care.
That time frame was consistent with Dr. Ross’ findings that the
injuries leading to Victim’s blindness were inflicted no more than
24 to 48 hours prior to death, and that the fatal asphyxiation
began within approximately five minutes prior to death, when
[Appellant] was directly caring for Victim. Clearly, this testimony
is not necessarily exculpatory, and [trial counsel’s] decision not to
elicit this testimony from [Douglas Kohr] was not unreasonable,
nor was the lack of this testimony so prejudicial as to have denied
[Appellant] a fair trial. Therefore, [Appellant] is not entitled to
relief on this claim.
PCRA Ct. Op., 1/4/23, at 16-18 (footnotes omitted).
We discern no error in the PCRA court’s conclusion. The record reflects
that trial counsel questioned Douglas Kohr to show that Appellant provided
Victim food, played with her, and cared for her prior to her death. See N.T.
Trial, 10/30/17-11/3/17, at 432. We discern no prejudice to Appellant by trial
counsel not questioning Douglas Kohr about Appellant’s parenting skills,
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Mother’s behavior toward Victim, and whether Appellant was an overwhelmed
parent, because we cannot conclude that if Douglas Kohr testified to the claims
Appellant now raises, the result of the trial would have been different. See
Sandusky, 203 A.3d at 1043-44. The evidence at trial revealed that Mother
was out of town, Victim was uninjured when she was first placed in Appellant’s
care, and Victim was in Appellant’s care when the fatal injuries occurred.
Further, we agree with the PCRA court that on this record, Douglas Kohr’s
observations concerning Appellant’s whereabouts in the two months preceding
Victim’s death are not exculpatory because the fatal asphyxiation began within
approximately five minutes prior to death, when Appellant was directly caring
for Victim. Additionally, trial counsel testified that if he argued that Appellant
was not an overwhelmed parent, it might have precluded the third-degree
murder conviction, which could have resulted in Appellant’s conviction for
first-degree murder. See N.T., 9/22/22, at 57. On this record, we conclude
that Appellant is not entitled to relief.
Conclusion
For the reasons set forth above, Appellant is not entitled to relief on his
claims. Accordingly, we affirm the PCRA court’s order.
Order affirmed. Jurisdiction relinquished.
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Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 12/28/2023
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