J-S78005-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ROBERT FENNELL,

                            Appellant                 No. 1280 WDA 2015


               Appeal from the PCRA Order Entered July 21, 2015
                In the Court of Common Pleas of Cambria County
              Criminal Division at No(s): CP-11-CR-0001935-2009


COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ROBERT FENNELL,

                            Appellant                 No. 1379 WDA 2015


               Appeal from the PCRA Order Entered July 27, 2015
                In the Court of Common Pleas of Cambria County
              Criminal Division at No(s): CP-11-CR-0001935-2009


BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                     FILED DECEMBER 02, 2016

        Appellant, Robert Fennell, appeals from the July 27, 2015 order

denying his petition filed under the Post Conviction Relief Act, 42 Pa.C.S. §§

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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9541-9546.1      Appellant raises multiple issues, including several claims of

ineffective assistance of counsel (IAC). After careful review, we affirm the

order entered at docket 1379 WDA 2015, and quash the appeal docketed at

1280 WDA 2015.

       This Court previously summarized the facts underlying Appellant’s

case, as follows:

             On January 24, 2009, Appellant, while a prisoner in the
       State Correctional Institution [(“SCI”)] at Cresson, Pennsylvania,
       punched a Corrections Officer, Russell Bollinger [(“C.O.
       Bollinger”)], in the face. This assault was not only witnessed by
       several people, but also recorded on a security camera
       videotape. At trial, [C.O.] Bollinger testified that he was struck
       in the jaw by Appellant, the force of which caused him to fall
       down onto a nearby metal bench. A “ruckus” ensued, during
       which time Appellant “managed to get an arm round [C.O.
       Bollinger’s] neck to try to choke” him. The melee ended with
       correction officers wrestling Appellant to the floor, and
       restraining him with handcuffs. As a result of this incident,
       [C.O.] Bollinger “tore the muscles in the right side of [his] back.”
       He further testified that as a result of his injuries he could not
       get off his “couch for about three days,” and missed “about two
       weeks” of work.


____________________________________________


1
  Appellant filed two notices of appeal - one from an order purportedly
entered on July 21, 2015, and one from the PCRA court’s order entered on
July 27, 2015. Those notices of appeal were docketed at 1280 WDA 2015
and 1379 WDA 2015, respectively. This Court sua sponte consolidated
Appellant’s appeals on October 19, 2015. Our review of the certified record
confirms that the PCRA court did not enter any order on July 21, 2015.
Rather, the order denying Appellant’s petition was entered on July 27, 2015.
All of Appellant’s issues relate to the July 27, 2015 order denying his
petition. Consequently, we quash Appellant’s appeal docketed at 1280 WDA
2015, and our disposition herein relates only to his appeal docketed at 1379
WDA 2015.



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              At trial, Appellant offered a somewhat hybrid defense,
       alternately claiming that he was either justified or under duress
       when he assaulted [C.O.] Bollinger. He asserted that he had
       previously been a target of retaliatory conduct from corrections
       officers, during which time they had abused him, and that that
       conduct precipitated his striking of [C.O.] Bollinger.

Commonwealth           v.    Fennell,      No.   186   WDA   2011,   unpublished

memorandum at 1-2 (filed March 19, 2012) (citations to the record

omitted).

       Based on these facts, Appellant was convicted, following a nonjury

trial, of two counts of aggravated assault, and one count each of simple

assault, assault by a prisoner, resisting arrest, and recklessly endangering

another person.      On August 10, 2010, he was sentenced to an aggregate

term of 10 to 20 years’ incarceration. Appellant filed a timely direct appeal,

and we affirmed his convictions. See Fennell, supra.2 Appellant did not

file a petition for allowance of appeal with our Supreme Court. However, he

later sought reinstatement of his right to do so in a timely-filed PCRA

petition, which the PCRA court granted. Id. Appellant then filed a nunc pro
____________________________________________


2
   We did, however, vacate Appellant’s sentence for simple assault,
concluding that that offense merged, for sentencing purposes, with
Appellant’s conviction of aggravated assault on C.O. Bollinger. See Fennell,
No. 186 WDA 2011, unpublished memorandum at 12. We also vacated the
sentence imposed by the court for Appellant’s second count of aggravated
assault, concluding that the trial court had improperly “imposed separate
sentences upon Appellant for the same conduct based upon the conclusions
that [he] violated two separate subsections of the aggravated assault
statute[,] … which constitutes an illegal sentence.” Id. at 12-13. Our
decision to vacate Appellant’s sentences for simple assault and one count of
aggravated assault did not alter his aggregate term of 10 to 20 years’
imprisonment; thus, we did not remand for resentencing. Id. at 14 n.7.



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tunc petition for allowance of appeal, and the Supreme Court ultimately

denied that petition. Commonwealth v. Fennell, 72 A.3d 600 (Pa. 2013).

      On May 9, 2014, Appellant filed the pro se PCRA petition that underlies

the present appeal. Counsel was appointed, and an amended petition was

filed in August of 2014 presenting, inter alia, multiple IAC claims. A PCRA

hearing was conducted on May 20, 2015. Appellant was the only witness to

testify at that proceeding.   On July 27, 2015, the PCRA court entered an

order denying Appellant’s petition, concluding that he “failed to satisfy his

burden of demonstrating ineffectiveness because he failed to produce

evidence that counsel’s chosen course of action lacked a reasonable basis

designed to effectuate [Appellant’s] interests.” PCRA Court Order, 7/27/15,

at 1-2 (citation omitted).

      Appellant filed a timely notice of appeal, and also timely complied with

the PCRA court’s order to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal. Herein, Appellant raises the following seven

questions for our review:

      A. Whether the PCRA [c]ourt erred and abused its discretion by
      failing to find Appellant’s constitutional rights were violated by
      his arrest through summons?

      B. Whether the PCRA [c]ourt erred and abused its discretion by
      failing to find [that] Appellant’s trial counsel was ineffective for
      failing to call witnesses on his behalf?

      C. Whether the PCRA [c]ourt erred and abused its discretion by
      failing to find [that] Appellant’s trial counsel was ineffective for
      failing to properly investigate the abuse perpetrated upon
      Appellant by the correctional officers at SCI Cresson?



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      D. Whether the PCRA [c]ourt erred and abused its discretion by
      failing to find [that] Appellant’s trial counsel [was] ineffective for
      failing to move the court to limit the introduction of surveillance
      video against Appellant?

      E. Whether the PCRA [c]ourt erred and abused its discretion by
      failing to find [that] Appellant’s trial counsel failed to properly
      impeach [C.O.] Bollinger regarding his interaction with Appellant
      in the months before the incident?

      F. Whether the PCRA [c]ourt erred and abused its discretion by
      failing to find [that] Appellant’s trial counsel was ineffective for
      failing to remove himself from Appellant’s case, as he had a
      personal relationship with the alleged victim?

      G. Whether the PCRA [c]ourt erred and abused its discretion by
      failing to grant Appellant’s request for discovery contained within
      his [a]mended [PCRA] [p]etition…?

Appellant’s Brief at 4-5.

      To begin, our standard of review regarding an order denying post-

conviction relief under the PCRA is whether the determination of the court is

supported   by   the   evidence   of   record   and   is   free   of   legal   error.

Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007).                   The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001).

      In Appellant’s first issue, he contends that “the procedure used to

secure his appearance at his preliminary hearing was unlawful.” Appellant’s

Brief at 10. Specifically, Appellant asserts that because he was charged with

felony offenses, Pennsylvania Rule of Criminal Procedure 509 required that a

warrant for his arrest be issued, yet he only “received a summons in the

mail advising him to report to the preliminary hearing.” Appellant’s Brief at


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11; see also Pa.R.Crim.P. 509(2)(a) (requiring the issuing authority to issue

a warrant for arrest when “one or more of the offenses charged is a felony or

murder”).

       Appellant does not offer any meaningful discussion of how his

constitutional rights were violated by the issuance of a summons, rather

than a warrant for his arrest. He also does not explain why this claim could

not have been raised at the preliminary hearing, before the trial court, or on

direct appeal. Consequently, we conclude that he has waived his challenge

to the purported deficiency in how he was summoned to attend the

preliminary hearing.3       See 42 Pa.C.S. § 9543(a)(3) (stating that, to be

eligible for PCRA relief, the petitioner must plead and prove “[t]hat the

allegation of error has not been previously litigated or waived”); 42 Pa.C.S.

§ 9544(b) (stating that “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, or

in a prior state post[-]conviction proceeding”).




____________________________________________


3
  To the extent Appellant suggests that his trial counsel was ineffective for
not raising this ostensible deficiency, see Appellant’s Brief at 11, that claim
was not raised in his Rule 1925(b) statement. Therefore, for that reason, it
is also waived. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the
Statement and/or not raised in accordance with the provisions of this
paragraph (b)(4) are waived.”).




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     Appellant’s next five issues allege [the] ineffective assistance of his

trial counsel, Kenneth Sottile, Esq.    We review such claims under the

following standard:

     [A] PCRA petitioner will be granted relief [on such a claim] only
     when he proves, by a preponderance of the evidence, that his
     conviction or sentence resulted from the “[i]neffective 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.” 42
     Pa.C.S. § 9543(a)(2)(ii). “Counsel is presumed effective, and to
     rebut that presumption, the PCRA petitioner must demonstrate
     that counsel's performance was deficient and that such
     deficiency prejudiced him.” [Commonwealth v.] Colavita, 606
     Pa. [1,] 21, 993 A.2d [874,] 886 [(Pa. 2010)] (citing
     Strickland[ v. Washington, 104 S.Ct. 2053 (1984)]). In
     Pennsylvania, we have refined the Strickland performance and
     prejudice test into a three-part inquiry. See [Commonwealth
     v.] Pierce, [515 Pa. 153, 527 A.2d 973 (Pa. 1987)]. Thus, to
     prove counsel ineffective, the petitioner must show that: (1) his
     underlying claim is of arguable merit; (2) counsel had no
     reasonable basis for his action or inaction; and (3) the petitioner
     suffered actual prejudice as a result. Commonwealth v. Ali,
     608 Pa. 71, 86, 10 A.3d 282, 291 (2010). “If a petitioner fails to
     prove any of these prongs, his claim fails.” Commonwealth v.
     Simpson, [620] Pa. [60, 73], 66 A.3d 253, 260 (2013) (citation
     omitted).      Generally,   counsel's   assistance    is  deemed
     constitutionally effective if he chose a particular course of
     conduct that had some reasonable basis designed to effectuate
     his client's interests. See Ali, supra. Where matters of strategy
     and tactics are concerned, “[a] finding that a chosen strategy
     lacked a reasonable basis is not warranted unless it can be
     concluded that an alternative not chosen offered a potential for
     success substantially greater than the course actually pursued.”
     Colavita, 606 Pa. at 21, 993 A.2d at 887 (quotation and
     quotation marks omitted). To demonstrate prejudice, the
     petitioner must show that “there is a reasonable probability that,
     but for counsel's unprofessional errors, the result of the
     proceedings would have been different.” Commonwealth v.
     King, 618 Pa. 405, 57 A.3d 607, 613 (2012) (quotation,
     quotation marks, and citation omitted). “‘[A] reasonable


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      probability is a probability that is sufficient to undermine
      confidence in the outcome of the proceeding.’” Ali, 608 Pa. at
      86–87, 10 A.3d at 291 (quoting Commonwealth v. Collins,
      598 Pa. 397, 957 A.2d 237, 244 (2008) (citing Strickland, 466
      U.S. at 694, 104 S.Ct. 2052)).

Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).

      In Appellant’s second issue on appeal, he maintains that Attorney

Sottile acted ineffectively by not calling “Ms. Alderman, [Appellant’s]

counselor[,]” as a witness at trial. Appellant’s Brief at 12. Appellant claims

that he told Ms. Alderman about the abuse he suffered at the hands of

correctional officers and, therefore, “[h]er [testimony] would have been

instrumental in explaining to the court why [Appellant] felt the need to use

force in protecting himself against the correctional officers.” Id. Appellant

speculates that “Attorney Sottile took no steps in seeking [this witness] out.”

Id.   Appellant also stresses that “Attorney Sottile did not subpoena Ms.

Alderman, and was not present at the evidentiary hearing to explain his

inaction.” Id.

      Appellant’s argument fails for several reasons. Initially, he did not call

Ms. Alderman to the stand at the PCRA hearing to verify that she would have

been willing to testify at his trial, and that her testimony would have

benefitted his defense. Accordingly, Appellant has not proven that Attorney

Sottile was ineffective for failing to call her to the stand at trial.     See

Commonwealth v. Washington, 927 A.2d 586, 599 (Pa. 2007) (“To

establish that counsel was ineffective for failing to call a witness, [an]

[a]ppellant must demonstrate that: (1) the witness existed; (2) the witness


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was available to testify for the defense; (3) counsel knew of, or should have

known of, the existence of the witness; (4) the witness was willing to

testify for the defense; and (5) the absence of the testimony of the

witness was so prejudicial as to have denied the defendant a fair

trial.”) (citation omitted; emphasis added).

      Additionally, Appellant seemingly suggests that Attorney Sottile had a

duty to attend the PCRA hearing and defend his decision not to call Ms.

Alderman to the stand. Appellant is incorrect; it is well-established that we

presume that Attorney Sottile acted effectively, and the burden rests solely

with Appellant to prove otherwise.      See Washington, 927 A.2d at 599

(“Failure to call a witness is not per se ineffective assistance of counsel, for

such a decision implicates matters of trial strategy. It is [the] [a]ppellant’s

burden to demonstrate that trial counsel had no reasonable basis for

declining to call [the] … witness.”).      Here, Appellant chose not to call

Attorney Sottile to the stand at the PCRA hearing.      Nothing in the record

suggests that Attorney Sottile was unavailable to testify at that proceeding.

Instead, Appellant’s PCRA counsel stated at the end of the hearing that he

believed he was “not required to call” Attorney Sottile to prove Appellant’s

IAC claims.   N.T. PCRA Hearing, 5/20/15, at 58.        PCRA counsel instead

believed that he could solely rely on Appellant’s testimony to establish

counsel’s ineffectiveness. Id.

      Unfortunately for Appellant, his testimony alone is insufficient to prove

that Attorney Sottile’s decision not to call Ms. Alderman to the stand

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amounted to ineffective representation. As the Commonwealth points out,

Attorney Sottile “may have believed that [Ms. Alderman’s testimony] would

ultimately hurt [Appellant’s] case by not supporting his fanciful allegations of

abuse” by the correctional officers.        Commonwealth’s Brief at 6.     Because

Appellant failed to call Attorney Sottile to testify at the PCRA hearing, there

was no evidence regarding why counsel chose not to call Ms. Alderman, nor

any way to determine if his decision was unreasonable.                Consequently,

Appellant’s first IAC claim fails.

      The same is true for Appellant’s next claim of ineffectiveness, in which

he argues that Attorney Sottile failed to properly investigate the abuse that

Appellant claims he suffered at the hands of correctional officers at SCI

Cresson.      Appellant again speculates that Attorney Sottile failed to

investigate    his   abuse   allegations,    stating   that   “[t]o   [Appellant’s]

knowledge, Attorney Sottile did not seek out any information regarding the

abuse….”      Appellant’s Brief at 14 (emphasis added).         Appellant failed to

present any evidence at the PCRA hearing to support his bald assertion that

Attorney Sottile failed to sufficiently investigate his claims of abuse. Indeed,

he even attached to his amended petition a document that proves the

opposite conclusion. Specifically, Appellant attached a letter drafted by the

Department of Corrections (DOC) in response to a request from Attorney

Sottile for various documents, including any records of abuse complaints

made by Appellant and/or other inmates against correctional officers. See

Attachments to Appellant’s Amended PCRA Petition/Petition for Discovery,

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filed 8/13/14.   Therefore, Appellant’s own petition belies his unsupported

assertion that Attorney Sottile failed to investigate his allegations that he

was abused by correctional officers.

      In Appellant’s fourth issue, he asserts that Attorney Sottile was

ineffective because counsel “took no action to limit introduction of the video

of the incident.” Appellant’s Brief at 15. According to Appellant, the video

should have been suppressed because “there were elements [of] the

[incident] that the video did not show, such as the presence of a[ Restrictive

Housing Unit] team member who was previously present during the prior

abuse of [Appellant]. [The video] also did not show [Appellant’s] offering to

‘lock-in’ in his cell, in an effort to avoid further confrontation with the

correctional officers.” Id.

      Other than his own self-serving testimony, Appellant proffered no

evidence to establish that the video admitted by the Commonwealth was

distorted or manipulated; therefore, he has not proven that Attorney Sottile

had any basis on which to seek suppression of that video.                See

Commonwealth v. Jones, 942 A.2d 903, 909 (Pa. Super. 2008) (“[W]here

an assertion of ineffective assistance of counsel is based upon the failure to

pursue a suppression motion, proof of the merit of the underlying

suppression claim is necessary to establish the merit of the ineffective




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assistance of counsel claim.”) (internal quotation marks and citation

omitted).4

       Next, Appellant contends that Attorney Sottile was ineffective because

he “did not question the victim about any specific prior interaction he had

had with [Appellant], nor did he inquire about how the victim had treated

him prior to [the] January 2009 assault.            Attorney Sottile simply accepted

that the victim asserted [that] he did not recall having contact with

[Appellant].”     Appellant’s Brief at 16.         Appellant goes on to state: “Not

having testified at the evidentiary hearing, Attorney Sottile could offer no

reasonable explanation for not having inquired into the subject more during

his cross-examination of the victim.” Id.

       Again, Appellant’s decision not to call Attorney Sottile to the stand at

the PCRA hearing does not now permit him to argue that counsel had no

reasonable basis for the way in which he cross-examined C.O. Bollinger. In

any event, Appellant acknowledges that Attorney Sottile asked C.O. Bollinger

____________________________________________


4
  Within this same issue, Appellant also contends that Attorney Sottile acted
ineffectively because there is no “evidence that he attempted to obtain views
from other cameras on the block for a more complete version of the
incident.” Appellant’s Brief at 15 (emphasis added). This specific assertion
was not raised in, nor suggested by, Appellant’s Rule 1925(b) statement,
which only declared that “trial counsel [was] ineffective for failing to move
the court to limit the introduction of surveillance video against [Appellant].”
Pa.R.A.P. 1925(b) Statement, 9/17/15, at 1 (unnumbered). Therefore, this
argument is waived. See Pa.R.A.P. 1925(b)(4)(vii).




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if he had had any prior contact with Appellant, to which the officer stated,

“No, I can’t remember ever having any kind of interaction with him.” N.T.

Trial, 6/24/10, at 44. Attorney Sottile then asked the officer if he had ever

written Appellant up or searched his cell. Id. C.O. Bollinger replied that it

was possible, but again stated that he could not “remember [Appellant] at

all.” Id. Nothing in the record of the trial, nor the evidence presented at

the PCRA hearing, suggests that C.O. Bollinger would have admitted to

previously abusing Appellant, if only Attorney Sottile had specifically

questioned him about that alleged abuse. Thus, Appellant has not proven

that counsel acted unreasonably by not asking C.O. Bollinger such questions,

or that he was prejudiced by Attorney Sottile’s failure to do so.

       In Appellant’s fifth issue, he contends that Attorney Sottile was

ineffective for not withdrawing when counsel had “an actual - rather than

mere[ly] potential - conflict of interest.” Appellant’s Brief at 16. According

to Appellant, Attorney Sottile sent him a letter prior to trial informing

Appellant that counsel had a “personal relationship” with the victim. Id. at

17.    Appellant claims that he “voiced his concern about the conflict, but

Attorney Sottile ignored his complaint.”       Id. (citing N.T. PCRA Hearing at

39).   Appellant avers that “Attorney Sottile should have withdrawn after

discovering he knew the victim.” Id.

       Initially, Appellant overstates that Attorney Sottile’s letter indicated he

had a ‘personal relationship’ with C.O. Bollinger.        In the letter, counsel

stated:

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             The last thing I wanted to bring up is that in reviewing the
      file I recalled that C.O. Bollinger used to be a section boss at a
      coalmine [sic] where I was the mine payroll clerk. I know him
      as one of the bosses, occasionally spoke to him at the mine but
      never socialized with him or saw him outside the mine. That
      was over 25 years ago and I did not see him since then. I don’t
      believe it is a problem but I felt it appropriate to point it out to
      you to see if you would have a problem or concern about it.

See N.T. PCRA Hearing at Exhibit No. 1 (attached to transcript).

      We disagree with Appellant that this letter demonstrates an ‘actual

conflict’ in Attorney Sottile’s representation of him. Attorney Sottile stated

that he worked for the same company as C.O. Bollinger 25 years earlier, and

that he ‘occasionally’ spoke to the officer, but did not socialize with him

outside of work.   This does not support Appellant’s claim that a ‘personal

relationship’ existed between C.O. Bollinger and Attorney Sottile at the point

when they worked together, let alone 25 years later when Attorney Sottile

represented Appellant. Thus, Appellant has not demonstrated that counsel

“actively represented conflicting interests….”    Commonwealth v. Collins,

957 A.2d 237, 251 (Pa. 2008) (“To show an actual conflict of interest, the

appellant   must   demonstrate    that:   (1)   counsel   “actively   represented

conflicting interests”; and (2) those conflicting interests “adversely affected

his lawyer's performance.”) (citation omitted).

      Additionally, Appellant also cannot show that Attorney Sottile’s

performance was “adversely affected” by this perceived conflict of interest.

Id. Appellant states that, “Attorney Sottile failed to properly cross-examine

[C.O. Bollinger] at trial; his personal relationship with the victim may have



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played a role in this failure.” Appellant’s Brief at 17. Appellant’s speculation

about Attorney Sottile’s motives in cross-examining C.O. Bollinger fails to

meet his burden of proving he was prejudiced by the purported conflict of

interest between the officer and counsel.      Thus, Attorney Sottile was not

ineffective for not withdrawing from representing Appellant due to this

alleged conflict of interest.

      In Appellant’s final issue on appeal, he avers that the PCRA court erred

by denying his petition for discovery.

            In PCRA proceedings, discovery is only permitted upon
      leave of court after a showing of exceptional circumstances. 42
      Pa.C.S.A. § 9545(d)(2); Pa.R.Crim.P. 902(E)(1). The PCRA and
      the criminal rules do not define the term “exceptional
      circumstances.” Rather, it is for the trial court, in its discretion,
      to determine whether a case is exceptional and discovery is
      therefore warranted. Commonwealth v. Dickerson, 900 A.2d
      407, 412 (Pa. Super. 2006).

             We will not disturb a court's determination regarding the
      existence of exceptional circumstances unless the court abused
      its discretion. Commonwealth v. Lark, 560 Pa. 487, 746 A.2d
      585, 591 (2000). An abuse of discretion is not a mere error in
      judgment. Commonwealth v. Riley, 19 A.3d 1146, 1149 (Pa.
      Super. 2011). Instead, it is a decision based on bias, ill will,
      partiality,    prejudice,   manifest     unreasonableness,     or
      misapplication of law. Id. Moreover, we recall that the appellant
      has the duty to convince us an abuse occurred. Commonwealth
      v. Bennett, 19 A.3d 541, 543 (Pa. Super. 2011).

Commonwealth v. Frey, 41 A.3d 605, 611 (Pa. Super. 2012).

      In this case, Appellant claims that the ‘exceptional circumstance’

warranting discovery is a report issued by the U.S. Department of Justice

(DOJ), in which the DOJ found that inmates suffering from ‘serious mental



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illness’ had been mistreated at SCI Cresson, specifically through the

institution’s use of isolation, excessive force, and other abusive tactics. See

“Investigation of the State Correctional Institution at Cresson and Notice of

Expanded Investigation,” 5/31/13 (attached to Appellant’s “Petition for

Discovery Pursuant to Pa.R.Crim.Pro. 902(E)(1), filed 8/13/14).      Based on

the DOJ’s report, Appellant requested discovery of various documents,

including,

      background reports on the correctional officers, the investigative
      reports of the incident, any reports of assaults on staff members
      or other inmates at SCI Cresson in 2009 and 2010, personnel
      files of the correctional officers involved in the incident, shift
      assignment sheets of the officers, pictures of the cell [Appellant]
      was taken to in the restricted housing unit (RHU), and the full
      video of the incident.

Appellant’s Brief at 18.    According to Appellant, had the court granted

discovery of these items, he “would have been able to demonstrate the

abusive nature of the correctional officers involved, thus bolstering his claim

that he needed to use force to defend himself.” Id.

      After conducting a hearing on Appellant’s petition for discovery, the

PCRA court ultimately concluded that the DOJ report did not constitute an

‘exceptional circumstance’ warranting discovery of the materials requested

by Appellant. We ascertain no abuse of discretion in that decision. The DOJ

report relied upon by Appellant was issued over four years after the incident

underlying his convictions. The report addressed abuse inflicted on inmates

designated by SCI Cresson officials as suffering from ‘serious mental illness.’

Appellant has never alleged, nor presented any evidence to prove, that he

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suffers from a serious mental illness, or that he was designated as such by

SCI Cresson officials.    Consequently, the PCRA court did not abuse its

discretion in concluding that the DOJ report did not constitute an

‘exceptional circumstance’ warranting discovery in this case.

      In any event, we also point out that even if the PCRA court had

granted Appellant’s discovery request, any evidence he would have

unearthed could not possibly support a claim of self-defense.            We have

reviewed   the   video   recording   of   the   incident   underlying   Appellant’s

convictions. That video shows two correctional officers approach Appellant

and exchange words with him, after which the officers walk down a staircase

and out of the camera’s view. For the next few minutes, Appellant - who is

6’8” tall and weighs 280 pounds - walks in and out of a cell. Appellant then

walks down the steps and toward the two officers, who are standing at a

desk and talking.   Appellant walks up to C.O. Bollinger and punches the

officer in the face. C.O. Bollinger falls to the ground as two other officers

converge on Appellant.     Appellant resists the officers’ attempts to subdue

him, and when C.O. Bollinger then joins in on the struggle, Appellant puts

him into a headlock. It takes several minutes, and the assistance of multiple

officers, to finally subdue and handcuff Appellant.

      Based on this video, we fail to see - and Appellant does not explain -

how evidence that C.O. Bollinger had previously abused him would assist

Appellant in proving that his attack on C.O. Bollinger was justified in the

moment in which Appellant struck the unsuspecting officer. See 18 Pa.C.S.

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§ 505(a) (“The use of force upon or toward another person is justifiable

when the actor believes that such force is immediately necessary for the

purpose of protecting himself against the use of unlawful force by such other

person on the present occasion.”).     Consequently, the PCRA court did not

abuse its discretion in denying Appellant’s request for discovery in order to

uncover evidence that such abuse occurred.

      In sum, none of Appellant’s seven claims on appeal demonstrates that

the PCRA court erred or abused its discretion in denying his petition for post-

conviction relief. Accordingly, we affirm the court’s order.

      Order entered at docket 1379 WDA 2015 affirmed. Appeal docketed at

1280 WDA 2015 quashed.

      Judge Ott joins this memorandum.

      Justice Fitzgerald concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/2/2016




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