J-S19027-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DONNA MARIE KRUPP                          :
                                               :
                       Appellant               :   No. 1970 EDA 2019

              Appeal from the PCRA Order Entered June 14, 2019
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0000407-2015


BEFORE: BOWES, J., McCAFFERY, J., and MUSMANNO, J.

MEMORANDUM BY McCAFFERY, J.:                              FILED MAY 20, 2020

       Donna Marie Krupp (Appellant) appeals from the order dismissing her

petition for collateral relief filed pursuant to the Post Conviction Relief Act1

(PCRA). On appeal, she contends the PCRA court erred by (1) denying relief

on her claim that trial counsel provided ineffective assistance when he failed

to seek dismissal of a possibly biased juror, and (2) failing to conduct an

evidentiary hearing. We affirm.

       The relevant facts and procedural history of this matter were set forth

in a prior memorandum of this Court, affirming Appellant’s judgment of

sentence on direct appeal:

            [Appellant] intentionally set fire to the home of her next
       door neighbors, the Morris family, in the early morning hours of
       December 4, 2014, by using a lighter with an extended wand and
       newspaper to ignite Christmas decorations on the front porch of
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1   42 Pa.C.S.§§ 9541-9546.
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     the home. The fire destroyed the home, which was located at 71
     Commons Drive in Pottstown, Montgomery County.

           The Morris family — Limerick Township Police Detective
     Ernie Morris, his wife and their two minor daughters — were on
     vacation in Florida at the time of the fire. The family’s cat perished
     in the blaze.

           [Appellant] set the fire after learning on December 2, 2014,
     that her son would not be released from jail that day. Her son
     had been incarcerated since June 2014, following his
     apprehension on an active arrest warrant for fleeing from police
     and consequent detention for allegedly violating his existing
     probation.     [Appellant] blamed Detective Morris, and law
     enforcement in general, for her son’s ongoing contacts with the
     criminal justice system. She had a well-known disdain for law
     enforcement officials and believed a tip from Detective Morris was
     the reason her son had been located and arrested on the active
     warrant.

            Prior to the fire, and because of an on-going pattern of
     harassing behavior by [Appellant] toward the Morris family due to
     Detective Morris’ status as a police officer, the family had a video
     surveillance system installed around the perimeter of their home.
     The system became operational shortly before the Morris family
     left in late November 2014 for a two-week trip to Disney World.

           Surveillance video from the time of the fire captured a
     person     matching     [Appellant’s]  physical   characteristics
     approaching the Morris home from the direction of [Appellant’s]
     house. The person set the fire and left the scene, going back in
     the direction of [Appellant’s] house.

           Later on the same day as the fire, law enforcement
     personnel who had watched the surveillance footage came to
     believe the person seen in the video matched [Appellant], whom
     they had observed outside her house at various times during the
     course of the fire investigation. [Appellant] agreed to speak with
     police and, after being driven to the station by her husband, gave
     a statement in which she denied any ill-feelings toward the
     Morrises and any responsibility for the fire.

          A search of [Appellant’s] house, conducted pursuant to a
     warrant, revealed, inter alia, two extended wand lighters and

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     clothing, including a grey XXL hooded sweatshirt, that appeared
     to match items worn by the person seen in the surveillance video.
     Analysis of particles found on the sweatshirt tested positive for
     the presence of amorphous carbon, also known as soot or ash,
     which generally is consistent with a material that has been
     subjected to high heat.

           [Appellant] was arrested on December 5, 2014, and later
     charged in an Information with four counts of arson-related
     offenses,3 one count of causing a catastrophe,4 one count of
     reckless burning or exploding, 5 three counts of criminal mischief,6
     one count of failure to control or report a dangerous fire,7 one
     count of possession of an instrument of crime,8 two counts of
     recklessly endangering another person9 and one count of cruelty
     to animals.10

           After a trial, at which [Appellant] testified, the jury found
     her guilty of all charges.11 . . .
     _____________________________
     3   18 Pa.C.S. § [3301(a)(1)(i)-(ii), (c)(2), (d)(2)].

     4   18 Pa.C.S. § 3302(a).

     5   18 Pa.C.S. § 3301(d)(1).

     6   18 Pa.C.S. § [3304(a)(1), (2), (5)].

     7   18 Pa.C.S. § 3301(e)(2).

     8   18 Pa.C.S. § 907(a).

     9   18 Pa.C.S. § 2705.

     10   18 Pa.C.S. § 5511(a)(2.1)(i)(a).

     11The Commonwealth withdrew at trial one of the charges
     of recklessly endangering another person.

Commonwealth v. Krupp, 2892 EDA 2016 (unpub. memo. at 1-4) (Pa.

Super. 2017) (record citations and some footnotes omitted). On April 14,

2016, the trial court sentenced Appellant to an aggregate term of 10 to 20



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years’ imprisonment, followed by 2 years’ probation. On August 4, 2017, this

Court affirmed the judgment of sentence on direct appeal. Id.

       On June 4, 2018, Appellant filed a timely, pro se PCRA petition. The

PCRA court appointed counsel, who after requesting an extension of time, filed

an amended petition on January 3, 2019. On May 23, 2019, the PCRA court

issued notice of its intent to dismiss the petition without conducting an

evidentiary hearing pursuant to Pa.R.Crim.P. 907. Appellant did not respond

to the court’s Rule 907 notice, and, on June 14, 2019, the PCRA court entered

an order dismissing her petition.

       Appellant timely filed a notice of appeal. On July 16, 2019, the PCRA

court directed Appellant to file a concise statement of matters complained of

on appeal pursuant to Pa.R.A.P. 1925(b).         Appellant complied, and filed a

concise statement on July 25, 2019.2
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2 In its opinion, the PCRA court explains that although a concise statement
was docketed, and the certificate of service indicates the statement was
mailed to the court, the court “has no record of receiving the concise
statement and, indeed, only learned of the filing during a routine check of the
docket.” PCRA Ct. Op., 9/5/19, at 4-5. The court emphasizes that Rule
1925(b)(1) requires an appellant to both file the statement and serve it on
the trial judge in order to preserve issues on appeal.          See Pa.R.A.P.
1925(b)(1). Because the statement was never served in this case, the court
suggests this appeal should be dismissed. PCRA Ct. Op. at 5.

       However, Rule 1925(c)(3) provides:

       If an appellant represented by counsel in a criminal case was
       ordered to file a Statement and failed to do so or filed an untimely
       Statement, such that the appellate court is convinced that counsel
       has been per se ineffective, and the trial court did not file an



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       Appellant presents two issues for our review:

       A. Did the PCRA court err by dismissing Appellant’s PCRA claim
       alleging that trial counsel was ineffective for failing to further
       explore whether a juror who knew a key witness in the case could
       be fair and impartial and for failing to move to strike the juror
       because the record shows that the juror never definitively stated
       that he could be fair and impartial?

       B. Did the PCRA court err by dismissing Appellant’s PCRA petition
       without an evidentiary hearing because there were factual issues
       present herein that required resolution before the matter could be
       dismissed?

Appellant’ Brief at 3.

       Our standard of review for dismissal of a PCRA order is well-established:

       We must examine whether the record supports the PCRA court’s
       determination, and whether the PCRA court’s determination is free
       of legal error. The PCRA court’s findings will not be disturbed
       unless there is no support for the findings in the certified record.

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (citations

omitted). “The scope of review is limited to the findings of the PCRA court

and the evidence of record, viewed in the light most favorable to the prevailing

____________________________________________


       opinion, the appellate court may remand for appointment of new
       counsel, the filing of a Statement nunc pro tunc, and the
       preparation and filing of an opinion by the judge.

Pa.R.A.P. 1925(c)(3). Here, we find counsel’s failure to timely serve the
statement on the PCRA court constitutes ineffectiveness per se, and, pursuant
to subsection (c)(3), Appellant would be entitled to a remand for the
opportunity to file a concise statement nunc pro tunc. Nevertheless, where,
as here, a PCRA court addresses the merits of the claims raised in an untimely
or improperly served statement, “we need not remand and may address the
merits of the issues presented.” See Commonwealth v. Presley, 193 A.3d
436, 442 (Pa. Super 2018) (citation omitted).


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party at the trial level.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.

2014). Moreover, “[t]here is no absolute right to an evidentiary hearing on a

PCRA petition, and if the PCRA court can determine from the record that no

genuine issues of material fact exist, then a hearing is not necessary.”

Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008) (citation

omitted). A PCRA court’s decision to deny a request for an evidentiary hearing

“is within the discretion of the PCRA court and will not be overturned absent

an abuse of discretion.” Commonwealth v. Mason, 130 A.3d 601, 617 (Pa.

2015) (citation omitted).

      Further,

      It is well-established that counsel is presumed to have provided
      effective representation unless the PCRA petitioner pleads and
      proves all of the following: (1) the underlying legal claim is of
      arguable merit; (2) counsel’s action or inaction lacked any
      objectively reasonable basis designed to effectuate his client’s
      interest; and (3) prejudice, to the effect that there was a
      reasonable probability of a different outcome if not for counsel’s
      error. The PCRA court may deny an ineffectiveness claim if the
      petitioner’s evidence fails to meet a single one of these prongs.
      Moreover, a PCRA petitioner bears the burden of demonstrating
      counsel’s ineffectiveness.

Franklin, 990 A.2d at 797 (citations omitted). A “defendant [raising a claim

of ineffective assistance of counsel] is required to show actual prejudice; that

is, that counsel’s ineffectiveness was of such magnitude that ‘it could have

reasonably had an adverse effect on the outcome of the proceedings.’” Spotz,

84 A.3d at 315 (citation omitted).




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       Appellant first avers the trial court erred in dismissing her PCRA petition

where trial counsel was ineffective “by not further investigating . . . and then

not moving for the removal of” a seated juror who knew one of the

Commonwealth’s witness “personally.” Appellant’s Brief at 11. During trial,

Juror #11, a volunteer fireman, informed the court’s tipstaff that he “knew

[one of the testifying detectives] in a professional capacity from seeing the

detective at fire scenes and from engaging in fundraising activities with him

and from the detective’s prior position as a police officer.” N.T. Jury Trial,

11/17/15, at 64-65.         Appellant contends this “. . . was a circumstance

involving a [juror’s] genuine, personal relationship, with the witness given the

joint fund raising activities and the fact [Juror #11] knew so much about the

witness.” Appellant’s Brief at 19. Appellant maintains Juror #11’s equivocal

testimony that he could be impartial did not cure the presumption of

prejudice.3 Id. at 21. Instead, Appellant contends the witness’s bias, and

inability to be fair and impartial, prejudiced her and violated her constitutional

right to an impartial jury under Article 1 § 9 of the Pennsylvania Constitution

and the Sixth Amendment to the U.S. Constitution. Id. at 16.

       Our Supreme Court has set forth the standard for review of a biased

juror claim:



____________________________________________


3 Appellant claims Juror #11’s testimony is equivocal because, when
questioned whether he could be fair and impartial, he responded “I think —
yes, I think I can.” Appellant’s Brief at 21.

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            The test for determining whether a prospective juror should
      be disqualified is whether he is willing and able to eliminate the
      influence of any scruples and render a verdict according to the
      evidence, and this is to be determined on the basis of answers to
      questions and demeanor. . . . It must be determined whether any
      biases or prejudices can be put aside on proper instruction of the
      court. . . .

Commonwealth v. Briggs, 12 A.3d 291, 333 (Pa. 2011). The same analysis

is employed in cases where a question arises about a juror’s impartiality during

trial. Commonwealth v. Rush, 162 A.3d 530, 538 (Pa. Super. 2017). “The

decision to discharge a juror is within the sound discretion of the trial court

and will not be disturbed absent an abuse of that discretion.” Id. at 537.

      Here, the PCRA court addressed Appellant’s ineffectiveness claim as

follows:

      During trial, Juror #11 informed a member of the courtroom staff
      immediately before the testimony of a Commonwealth witness,
      Montgomery County Detective Mark Azeff, that he knew the
      witness. During an in camera colloquy of Juror #11 conducted
      prior to the witness testifying, the juror stated he knew the
      witness from volunteer fire service, fundraising activities and
      when the witness was a Whitpain Township police officer. When
      first asked by this court whether his knowledge of the witness
      would affect his ability to be fair and impartial, the juror responded
      “I don't think so.” When questioned further by this court and trial
      counsel about whether he could be fair and impartial, the juror
      responded “I think I could” and “I think — yes, I think I can.” The
      juror also stated that he could remain open-minded and
      responded “absolutely” when asked if he would follow this court’s
      instructions with regard to the law in the case. The juror further
      stated that he and the witness had never discussed the incident.
      The issue, therefore, is meritless because the record shows the
      juror could remain fair and impartial and would follow this court’s
      instructions. In addition, with regard to the issue of prejudice,
      this court would not have stricken the juror under the
      circumstances described above, even had trial counsel made such


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      a request. As such, [Appellant] is not entitled to post-conviction
      relief.

PCRA Ct. Op. at 7-8 (citations and footnote omitted).

      Our review of the record reveals no basis to disturb the PCRA court’s

ruling. First, we agree with the PCRA court that Appellant’s claim regarding

counsel’s ineffectiveness for failing to “explore the juror issue further” is

waived because it was not included in her amended PCRA petition.            See

Pa.R.Crim.P. 902(B) (stating failure to include a claim in the petition precludes

it from being raised in a post-conviction proceeding); PCRA Ct. Op. at 7.

Rather, Appellant alleged only trial counsel was ineffective for not objecting to

the juror remaining on the jury and not requesting the juror be removed and

replaced with an alternate. Appellant’s Amended PCRA Petition, 1/3/19, at ¶¶

8, 10. Thus, this portion of Appellant’s argument is waived.

      With regard to whether counsel should have moved to strike the juror,

Appellant relies on Commonwealth v. Perry 657 A.2d 989 (Pa. Super.

1995), to support her averment that a close relationship between a testifying

witness and a juror is presumptively prejudicial. Appellant’s Brief at 20. We

note that unlike in Perry, Juror #11’s prior relationship with the testifying

witness was not presumptively prejudicial.     In Perry, the challenged juror

testified he and the witness were best friends, who had known each other for

over 20 years, and socialized together at least once a week. Perry, 657 A.2d

at 991.   Despite his statement that he could be impartial, the juror also

testified that the witness was an “honorable man,” he had no doubts about

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the witness’s veracity, and his personal experiences “would possibly” affect

his ability to evaluate the witness’s testimony. Id. Thus, this Court concluded

the trial court erred in refusing to strike the juror from the panel. Id. Here,

however, Juror #11 and the testifying witness were acquainted with one

another on select occasions, in a professional setting, and in different

professional capacities. Moreover, under questioning by the trial court, Juror

#11 responded unequivocally that he could sit as an impartial juror. 4 N.T. at

66. Accordingly, Appellant failed to prove her underlying claim has arguable

merit. See Briggs, 12 A.3d at 333; Franklin, 990 A.2d at 797.

       Furthermore, Appellant cannot demonstrate she was prejudiced by

counsel’s failure to seek removal of the juror. The trial court specifically stated

that if counsel had moved for dismissal of Juror #11, the court would have

denied the request. Trial Ct. Op. at 8. As a result, Appellant is not entitled to

relief. See Rush, 162 A.3d at 537; Franklin, 990 A.2d at 797.

       In her second issue, Appellant maintains the PCRA court erred by

dismissing her petition without first conducting an evidentiary hearing when

there were outstanding factual issues concerning whether counsel had a

reasonable basis for neglecting to question the juror further. Appellant’s Brief

at 24-25. Appellant argues “[h]ad a hearing been granted, [she] would have



____________________________________________


4 More so, when the trial court asked trial counsel if he thought the juror
questioning was satisfactory, trial counsel responded, “Yep.” N.T. at 66.


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been able to demonstrate that counsel did not attempt to establish that the

juror and the Commonwealth witness had more than a passing relationship

and that the juror could not really be fair.” Id. at 26. However, Appellant

provides no support for her assertion that Juror #11 and the testifying witness

had more than a passing relationship. Appellant’s claim is speculative and

functions as fishing expedition. See Commonwealth v. Roney, 79 A.3d 595,

605 (Pa. 2013) (stressing that an evidentiary hearing “is not meant to function

as a fishing expedition for any possible evidence that may support some

speculative claim of ineffectiveness”) (citation omitted).

      The PCRA court addressed the evidentiary hearing issue in terms of

Appellant’s argument that trial counsel was ineffective for failing to question

and dismiss a possibly biased juror.       PCRA Ct. Op. at 7-8.     The court

determined that no genuine issues of material fact existed and Appellant failed

to prove prejudice. Id. We agree; thus, no relief is due. See Mason, 130

A.3d at 617.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/20/2020

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