J-S13005-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                         Appellee

                    v.

STEVEN TIELSCH

                         Appellant                      No. 1912 WDA 2012


             Appeal from the PCRA Order November 16, 2012
            In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0003990-2000


BEFORE: PANELLA, J., MUNDY, J., and STABILE, J.

MEMORANDUM BY PANELLA, J.                                 FILED MAY 15, 2015

      Appellant,   Steven   Tielsch,   appeals   from   the   order   entered on

November 16, 2012, in the Court of Common Pleas of Allegheny County,

which denied his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      As we write primarily for the parties, who are familiar with the factual

context and legal history of this case, we set forth only so much of the facts

and procedural history as is necessary to our analysis.

             On April 17, 1986, Tielsch and Kevin Ohm were driving
      around the Squirrel Hill section of Pittsburgh in a black Corvette.
      At approximately 9:15 p.m., the victim, Neil S. Rosenbaum, a
      rabbinical student from Canada, was walking toward the
      intersection of Phillips and Pittcock Avenues when Tielsch and
      Ohm pulled up in the Corvette. The pair asked the victim for
      directions. As the victim approached the vehicle, Tielsch opened
      fire and shot the victim four to five times. Immediately after the
      shooting, Tielsch and Ohm drove off. Shortly thereafter, before
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     he passed away, the victim told Officer Albert Stegena that a
     black Corvette had pulled up to him and that two white males
     had been in the vehicle.

           The victim had bullet wounds to his chest, right elbow,
     right buttock, left buttock, and right wrist. Leon Rozin, M.D., the
     chief forensic pathologist for Allegheny County, testified that it
     was possible that the bullet which entered the victim's chest also
     caused the wound to the elbow. See N.T., Trial 4, 9/4/02, at
     218–219.

           Although an intensive investigation took place, little was
     learned as to the killer’s identity until early 1988 when
     representatives from the District Attorney’s Office and the local
     police department met with Sanford Gordon. Gordon told the
     police that Tielsch had bragged about the killing while the two
     had been housed at the Allegheny County Jail.

           Additional evidence came to the Commonwealth’s attention
     through Michael Starr. While Starr was under federal indictment,
     he related to the authorities that he was involved in an incident
     in the summer of 1991. Starr had been at a nightclub in the
     Strip District of Pittsburgh when he got into an altercation with
     Tielsch. According to Starr, Tielsch eventually pulled his jacket to
     the side and exposed the butt of a gun to Starr, and said: “I
     wacked some Jew f—k and I would have no trouble doing you
     too.”

           Tielsch was subsequently arrested for the victim's murder
     on February 17, 2000. On January 23, 2001, the first jury trial
     commenced. On February 13, 2001, the jury informed the trial
     court that it was hopelessly deadlocked; a mistrial was
     eventually declared. On November 26, 2001, the second jury
     trial began, but again the result was a mistrial due to a
     deadlocked jury. On May 13, 2002, the third jury trial began, but
     once again, the jury informed the trial court that it was
     deadlocked without hope for a unanimous verdict.

            As stated above, this appeal is a result of the fourth jury
     trial, which began on August 27, 2002, and ended on September
     13, 2002, when the jury returned its verdict finding Tielsch guilty
     of third-degree murder.




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            Following his conviction at the fourth trial, Tielsch was
      sentenced, on November 13, 2002, to a term of imprisonment of
      ten to twenty years on the conviction for third-degree murder.

Commonwealth v. Tielsch, 934 A.2d 81, 83-84 (Pa. Super. 2007)

(Panella, J.) (footnotes omitted).

      This Court affirmed Tielsch’s judgment of sentence. The Pennsylvania

Supreme Court denied an appeal; the United States Supreme Court denied

certiorari.   Tielsch filed a timely pro se PCRA petition.    The PCRA court

appointed counsel who later withdrew and the PCRA court appointed Patrick

Kenneth Nightingale, Esquire. Tielsch then filed, pro se, an “addendum” to

his PCRA petition and then shortly thereafter another pro se amended

petition. On September 23, 2011, counsel filed an amended PCRA petition

and on January 25, 2012, filed a supplement to the petition. The PCRA court

dismissed the petition without a hearing. This timely appeal followed.

      This case has been in this Court for some time. Tielsch’s relationship

with his initial collateral appellate attorney, Patrick Kenneth Nightingale,

Esquire, disintegrated and on March 11, 2014, this Court remanded the

matter to the PCRA court for a determination of whether Tielsch was entitled

to the appointment of new counsel.       Prior to that there was a delay in

receiving the record from the PCRA court and each side made requests for

extensions of time in which to file briefs, which were granted.

      On April 25, 2014, Robert E. Mielnicki, Esquire, entered his appearance

on Tielsch’s behalf. The panel granted two applications for extension of time


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for Attorney Mielnicki to file a brief, which he filed on July 28, 2014—91 days

after entering his appearance in this Court. The brief raises 32 issues1 and

is 85 pages.       The day after filing the brief, Attorney Mielnicki filed an

application to amend the brief.          The panel granted that request by order

entered on August 25, 2014, and directed counsel to file a new brief by

September 22, 2014.

        The panel also offered advice. We noted, “[t]he grant of Appellant’s

motion should in no way be construed as permission to expand either the

length of the brief or the number of issues.            The grant is to prune not to

enlarge.” Order, 8/25/14. We also reminded counsel that “selecting the few

most important issues succinctly stated presents the greatest likelihood of

success.”     Id. (citation omitted).       And we “strongly advise[d]” counsel to

review certain Rules of Appellate Procedure prior to filing the amended brief.

Id.

        Counsel took none of the advice.           Instead, Attorney Mielnicki filed a

letter, in which he notes that “[i]n light of the cautionary language and/or

advisory language contained in the order” he “decided not to file such [i.e.,

an amended brief].” Letter, 9/23/14. He then explains, “given the time he

had to write” the brief, and the fact that he typed it himself, that it contains

“a few typographical errors.”         Id.      It is interesting to consider that had

____________________________________________


1
    The brief identifies 33 issues, but omits issue ten.



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Attorney Mielnicki decided to file an amended brief on September 22, 2014,

that would have been 147 days since he entered his appearance in this

Court and 56 days after the filing of his brief.

      Preliminarily, we must comment on the brief.        As noted, the brief

raises 32 issues and is 85 pages.         It contains, by Attorney Mielnicki’s

admission, typographical errors.      He is correct; it does.   As we warned

counsel in our order, length in a brief does not necessarily correlate to

effective advocacy.    “Experienced advocates since time beyond memory

have emphasized the importance of winnowing out weaker arguments on

appeal and focusing on one central issue if possible, or at most on a few key

issues.”   Jones v. Barnes, 463 U.S. 745, 751-752 (1983).         “Most cases

present only one, two, or three significant questions[.]” Id., at 752 (citation

omitted). See also 20A West’s Pa. Prac., Appellate Practice § 2135:4.

      Attorney Mielnicki failed to comply with Rule 2135 of the Rules of

Appellate Procedure.    See generally Commonwealth v. Spuck, 86 A.3d

870, 872-874 (Pa. Super. 2014). That rule provides that a principal brief is

limited to 14,000 words and that “[a] party shall file a certificate of

compliance with the word count limit if the principal brief is longer than 30

pages….” Pa.R.A.P. 2135(a). We caution counsel that this Court can dismiss

an appeal for failure to comply with our Rules of Appellate Procedure. See

Pa.R.A.P. 2101.




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      Before we proceed to the merits, we can summarily dispose of

numerous issues. In the very first issue, Attorney Mielnicki explains why the

issue fails. See Appellant’s Brief, at 32-34. There are many other issues

that we can immediately find waived as Attorney Mielnicki explicitly identifies

them as meritless or they are completely undeveloped and serve merely to

identify an issue.   We are puzzled as to why these issues are even in the

brief. See Pa.R.A.P. 2119(a) (each point treated in an argument must be

“followed by such discussion and citation of authorities as are deemed

pertinent”); Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009)

(“[W]here an appellate brief fails to provide any discussion of a claim with

citation to relevant authority or fails to develop the issue in any other

meaningful fashion capable of review, that claim is waived.”).     The issues

are 5, 12-19, 21-24, 26-27, 29-30, 32-33. See Appellant’s Brief, at 61, 72-

75, 77-78, 82-85.

      There seems to be some confusion on Tielsch’s behalf as to whether

this case requires layered ineffectiveness claims. See Appellant’s Brief, at

28-29. Tielsch filed his direct appeal on December 12, 2002, just before our

Supreme Court’s decision in Commonwealth v. Grant, 813 A.2d 726 (Pa.

2002), which held that as a general rule claims of ineffective assistance of

counsel should be deferred until collateral review.      The amended PCRA

petition filed by counsel and the PCRA court both treated the case as




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presenting layered ineffectiveness claims. In other words, pre-Grant. We

shall do the same.

       Tielsch may not now raise and prevail on a claim of his trial counsel’s

ineffectiveness.     Pursuant to the PCRA, once his counsel on direct appeal

failed to raise the issue of trial counsel’s ineffectiveness, any claim of trial

counsel’s ineffectiveness was waived. See Commonwealth v. McGill, 832

A.2d 1014, 1021 (Pa. 2003).             The only claim of counsel ineffectiveness

Tielsch can presently raise is that of his counsel on direct appeal for failing to

claim that trial counsel was ineffective. See id. This type of claim is known

as a “layered ineffectiveness” claim. Id., at 1022.

       To preserve and prevail on a layered ineffectivenss claim, a petitioner

must have first pled in his petition that counsel on direct appeal was

ineffective for failing to allege trial counsel’s ineffectiveness. See id. The

PCRA petitioner must then present argument on each prong of the Pierce2

test with respect to appellate counsel. See id. In other words, in order to

establish that appellate counsel was ineffective for failing to allege that trial

counsel was ineffective, the following elements must be proven:          “(1) the

underlying claim of trial counsel’s ineffectiveness has arguable merit; (2)

appellate counsel had no reasonable basis for failing to pursue the claim;

and (3) but for appellate counsel’s ineffectiveness, the result on direct

____________________________________________


2
    Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).



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appeal would have differed.” Commonwealth v. Lopez, 854 A.2d 465, 469

(Pa. 2004).

     We first direct our attention to the performance of trial counsel

because

     [a]n assessment of this prong requires appellant to establish
     each Pierce prong with respect to trial counsel's performance;
     failure to establish any one of the prongs will defeat the entire
     claim. Commonwealth v. Basemore, 560 Pa. 258, 744 A.2d
     717, 738 n. 23 (2000) (citing Commonwealth v. Rollin, 558
     Pa. 532, 738 A.2d 435, 441 (1999)). This “merit” prong has
     been referred to as containing a “nested” argument—trial
     counsel’s performance must be addressed in order to determine
     whether appellate counsel was ineffective for failing to argue
     trial counsel's ineffectiveness.

Id., at 469 n.5. Thus, an appellant must present argument on the following

elements: (1) arguable merit to the underlying legal issue that is the basis

of the contention that trial counsel is ineffective; (2) trial counsel had no

reasonable basis for acting or failing to act; and (3) the defendant was

prejudiced by the action or omission of trial counsel. See McGill, 832 A.2d

at 1022-1023.

     If an appellant fails to establish any of the Pierce prongs as to trial

counsel’s performance, the entire claim fails. Lopez, 854 A.2d at 469 n.5;

see also, McGill, 832 A.2d at 1023 (“Only if all three prongs as to the claim

of trial counsel’s ineffectiveness are established, do prongs 2 and 3 of the

Pierce    test as to the claim of appellate counsel’s ineffectiveness have

relevance….”). We proceed to the merits.




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      “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.”         Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied,

Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013).

      Tielsch first maintains that appellate counsel was ineffective for failing

to raise trial counsel’s ineffectiveness for failing to move to suppress

Tielsch’s statements made to law enforcement after his illegal arrest.

      The affidavit of probable cause set forth that Tielsch admitted to two

witnesses that he was the shooter. One of these witnesses, not identified by

name in the affidavit, was Darrin Razimczyk. The affidavit also set forth that

the witnesses would testify at the coroner’s inquest.         At the coroner’s

inquest, however, Razimczyk did not testify, claiming the Fifth Amendment

privilege against self-incrimination.

      Tielsch contends that trial counsel was ineffective for failing to seek

suppression of his post-arrest statements based on Razimczyk’s refusal to

testify—that the refusal to testify rendered the arrest made without probable

cause. See Appellant’s Brief, at 36 ¶¶ 53-54. Tielsch also argues that the

Commonwealth was in possession of evidence that directly contradicted

Razimczyk’s statement, but that the Commonwealth “sought an arrest

warrant it knew that or most certainly should have known the information in

the arrest warrant” was false. Id., at 37 ¶ 58.


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      As   for   the   evidence   in   the   Commonwealth’s     possession    that

contradicted the affidavit, Tielsch offers nothing but conjecture. He cites no

evidence—or to anything at all—to support this claim. It is simply his bald

statement. That is simply not enough to sustain this claim.

      His claim that the affidavit is invalid given the later refusal to testify is

unsupported by citation to any legal authority.        Accordingly, we find this

claim waived.    See Commonwealth v. Williams, 959 A.2d 1252, 1258

(Pa. Super. 2008); Pa.R.A.P. 2119(a). We refuse to develop Tielsch’s claims

for him.

      Tielsch next contends that appellate counsel was ineffective for failing

to raise trial counsel’s ineffectiveness for failing to call a forensic expert in

the field of tool mark identification.    At trial, the Commonwealth called an

expert to testify that the weapon found was the weapon used to kill the

victim and that the barrel of the gun had been changed. Tielsch maintains

that “[a]n expert who could have challenged the manner the Commonwealth

determined that the gun found in 1996 was the gun used to Kill Rosenbaum,

through tool mark analysis or identification, would have hampered part of

the Commonwealth’s case.” Appellant’s Brief, at 41.

      To succeed on a claim of counsel’s ineffectiveness for failure to call a

witness

      a petitioner must prove that “the witness [ ] existed, the witness
      [was] ready and willing to testify, and the absence of the witness
      [’] testimony prejudiced petitioner and denied him a fair trial.”
      In particular, when challenging trial counsel’s failure to produce

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       expert testimony, “the defendant must articulate what evidence
       was available and identify the witness who was willing to offer
       such evidence.”

Commonwealth v. Luster, 71 A.3d 1029, 1047 (Pa. Super. 2013) (en

banc) (citations omitted; brackets in original).

       Here, Tielsch has completely failed to identify an expert witness who

was willing to testify at trial.3 Therefore, this claim fails.

       In his next claim, Tielsch claims that trial counsel was ineffective for

failing to call certain witnesses. See Appellant’s Brief, at 47. Again, Tielsch

cannot succeed merely on a claim of trial counsel’s ineffectiveness.         See

McGill, 832 A.2d at 1021.           Unlike his prior claim, however, Tielsch has

identified numerous witnesses. See Appellant’s Brief, at 49-58.

       There are two requirements to sustain this claim.            The first is

procedural. To be eligible for an evidentiary hearing on a claim of ineffective

assistance for failing to call a witness a petitioner must include in his petition

“a signed certification as to each intended witness stating the witness’s

name, address, date of birth and substance of testimony.” Commonwealth

v. Reid, 99 A.3d 427, 438 (Pa. 2014) (citations omitted).            The second

requirement is substantive. Namely,

       a petitioner must establish that: (1) the witness existed; (2) the
       witness was available; (3) counsel was informed or should have
____________________________________________


3
   The PCRA court notes that trial counsel attempted to locate an expert
witness to contradict the Commonwealth’s expert witness, but was unable to
find one. See PCRA Court Opinion, 5/2/13, at 4.



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       known of the existence of the witness; (4) the witness was
       prepared to cooperate and would have testified on defendant’s
       behalf; and (5) the absence of such testimony prejudiced him
       and denied him a fair trial.

Id. (citation omitted).

       As noted, there are numerous potential witnesses listed in the brief.

Tielsch fails to claim, among other things, that any of these witnesses were

available to testify at trial.      There is only one witness for whom counsel

provided a signed certification.         Counsel signed a certification for James

Wymard, Esquire.        In the signed certification, counsel notes that Attorney

Wymard informed him that he “did not move to suppress an arrest warrant”

and “did not follow up with any ‘investigation’ relative to the PennDOT

records because I was no longer counsel for Mr. Tielsch[,]” but that he “did

… build a record with the trial court setting forth allegations of prosecutorial

misconduct.”        Certified    Statement     of   James   Wymard,    Esquire,   filed

11/21/11, at ¶¶ 4-5.        In his brief, Tielsch focuses exclusively on Attorney

Wymard’s potential testimony in relation to the informant, Sanford Gordon—

a subject not even mentioned in the signed certification.             See Appellant’s

Brief, at 55 ¶ k.          Given the procedural and substantive deficiencies

mentioned above, this claim fails.4

____________________________________________


4
  Also in this claim, Tielsch “again reminds” us of the “Tielsch To Do Notes”
appended to his amended petition and notes that counsel was ineffective for
investigating the items listed therein. Appellant’s Brief, at 60. That is the
substance of the argument. The “Tielsch To Do Notes” are 76 handwritten
(Footnote Continued Next Page)


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      In issue 31, Tielsch raises another claim of ineffective assistance for

failing to call a witness.       He argues that trial counsel was ineffective for

failing to have Chris Conrad, Esquire, testify about how the Commonwealth

misplaced documents. According to Tielsch, Conrad is the assistant district

attorney who handled the case until 1999.           Again, Tielsch cannot succeed

merely on claims of trial counsel’s ineffectiveness. See McGill, 832 A.2d at

1021. In any event, this claim fails procedurally and substantively. There is

no signed certification regarding this witness and no claim that counsel knew

of this witness or that the witness was available to testify.

      Tielsch next claims that appellate counsel was ineffective for failing to

raise trial counsel’s ineffectiveness for advising him not to testify on his own

behalf.   To prevail on this claim, Tielsch “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. Alderman, 811 A.2d 592,

596 (Pa. Super. 2002) (citation omitted).

      At trial, the trial court informed Tielsch that he had “a constitutional

right to testify [o]n your own behalf regardless of your lawyer’s advice. If

you were to choose, you would have the absolute right. You are aware of

that.” N.T., Trial 4, at 945-946. Tielsch answered, “[y]es” and declined to
                       _______________________
(Footnote Continued)

items, spanning ten pages. We decline to develop this claim for Tielsch; it is
waived.



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testify. Id., at 946. The trial court then informed Tielsch that the decision

“whether to forego your right to testify is one that you feel is in your best

interest and after consultation with Mr. Diefenderfer, you are making your

decision knowingly, intelligently and voluntarily?”   Id.   Tielsch answered,

“[y]es.” Id. The trial court then asked if trial counsel “hasn’t promised you

anything or forced you or no one else has forced you to give up your right?”

Id.   Tielsch answered, “[n]o.”     Id.   Accordingly, based on Tielsch’s own

admissions at trial, there is no evidence that trial counsel interfered with

Tielsch’s right to testify on his own behalf.

      Alternatively, we must inquire whether counsel gave specific advice so

unreasonable as to vitiate a knowing and intelligent decision to testify on his

own behalf. Tielsch explains that Attorney Diefenderfer advised him not to

testify on his own behalf as it would open the door to his federal conviction

and the circumstances surrounding Kevin Ohm’s death.          See Appellant’s

Brief, at 61-62.   Taking Tielsch’s explanation as true, counsel’s advice is

reasonable; we fail to see how it vitiates a knowing and intelligent decision

to testify on his own behalf.

      In any event, Tielsch notes baldly that he would have simply claimed

he did not commit the crime and that he would have “provide[d] testimony

to directly contradict Mr. Gordon’s claims that Appellant made inculpatory

statements to him in 1987.” Appellant’s Brief, at 62. But he does not offer

any further details. See Alderman, 81 A.2d at 596 (rejecting claim where


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appellant baldly stated that he would have refuted the charges, but failed to

indicate precisely how he would have done so). Accordingly, this claim fails.

      Tielsch next argues that appellate counsel was ineffective for failing to

raise trial counsel’s ineffectiveness for failing to investigate “Exhibit 31”

presented at his first trial. The first trial ended in a mistrial when the jury

declared they were hopelessly deadlocked. We explained the circumstances

underlying Exhibit 31 on direct appeal as follows.

         At the first trial, the Commonwealth introduced Exhibit 31, a
      certified copy of the title history of a 1977 Corvette, which
      indicated that the vehicle had been first titled in Pennsylvania on
      May 5, 1977, and registered to Tielsch, and that the registration
      had expired on April 30, 1986. During the Commonwealth’s
      closing argument, the prosecutor told the jury that Exhibit 31
      indicated that Tielsch’s uncle, Francis Tielsch, an insurance
      agent, had the Corvette destroyed in 1998, thus evidencing
      actions taken to hide Tielsch’s guilt. In so informing the jury, the
      prosecutor relied not on the actual exhibit, but a loose-leaf copy
      from a detective's file. It turned out that the page the prosecutor
      relied on was from another unrelated report. The prosecutor
      accordingly admitted his error after the mistake was discovered.

         After Tielsch’s motion for a mistrial was denied, the trial court
      appropriately provided a curative instruction to the jury telling
      them that “the parties agree that the insurance claim referred on
      that page of Exhibit 31 was actually made by Francis T. Tielsch
      on a Chrysler automobile” and to disregard the Commonwealth's
      comment that Tielsch’s uncle had disposed of the vehicle. N.T.,
      Trial 1, at 1842.

         As Tielsch acknowledges in his brief, the prosecutor “claimed
      that he made an honest mistake due to confusion by a missing
      page in Exhibit 31.” Appellant's Brief, at 77. Tielsch maintains,
      however, that the aforementioned conduct requires a new trial
      “as an experienced prosecutor ... knows” that the Vehicle Code
      requires that “the defendant would have had to put the title for
      the Corvette into his uncle’s name or a salvor's name,” in order
      for Tielsch's uncle to have arranged for the car to be destroyed.

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     Appellant's Brief, at 77–78. Tielsch also notes that Francis
     Tielsch had been contacted by police investigators two times
     before the prosecutor made his final argument and had informed
     the police that he had not made a claim, nor had any claim been
     filed through his agency, for the Corvette.FN8 See id., at 77. In
     addition, Tielsch contends that the veteran prosecutor “knew or
     should have known that he could not utilize the loose leaf papers
     from a detective’s file....” Reply Brief, at 1 (emphasis added).

       FN8. Tielsch seems to concede that the prosecutor was
       unaware of the police investigators' activity with regards to
       Francis Tielsch. See Appellant’s Brief, at 22–23. In short,
       Tielsch does not claim that at trial the Commonwealth was
       aware of Francis Tielsch’s statements to the police
       investigators.

        The record simply does not support Tielsch’s contention that
     the Commonwealth acted intentionally in describing Exhibit 31 to
     prejudice Tielsch. See Smith, 532 Pa. at 186, 615 A.2d at 325
     (holding that the double jeopardy clause bars retrial when the
     Commonwealth “intentionally undertake[s] to prejudice the
     defendant to the point of the denial of a fair trial.”). Although the
     prosecutor was mistaken in his assertion, there is absolutely no
     evidence of a deliberate misstatement. Tielsch’s unsupported
     theory is insufficient to show a deliberate trial tactic adopted by
     the prosecutor. As such, Tielsch’s claim fails. See, e.g.,
     Commonwealth v. Simmons, 541 Pa. 211, 248, 662 A.2d 621,
     639 (1995) (finding no prosecutorial misconduct where evidence
     did not show that misstatement of fact was deliberate); FN9
     Commonwealth v. Brown, 489 Pa. 285, 298–299, 414 A.2d
     70, 77 (1980) (misstatement of fact by prosecutor in closing did
     not constitute error or warrant a new trial because evidence did
     not show that misstatement was deliberately done). Because we
     find no suggestion that the Commonwealth deliberately
     undertook trial strategies to prejudice Tielsch, we cannot
     conclude that any double jeopardy violation occurred in this
     regard.

       FN9. In his statement of the question presented, Tielsch
       claims that this “misconduct ... continued through all four
       trials....” Appellant's Brief, at 3. Tielsch, however, provides
       no citation to the notes of testimony where this alleged
       misconduct occurred in the other trials. Accordingly, there is
       no evidence of prohibited prosecutorial overreaching

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        “designed to harass the defendant through successive
        prosecutions....” Commonwealth v. Martorano, 559 Pa.
        533, 538, 741 A.2d 1221, 1223 (1999).

Tielsch, 934 A.2d at 85-86.

      Tielsch raises this issue on collateral review as trial counsel’s failure to

properly investigate alleged prosecutorial misconduct occurring during the

first trial. See Appellant’s Brief, at 66 (“The fact is that ADA Fitzsimmons

introduced a ‘bogus’ document to the court. … There is a clear indication that

prosecutorial misconduct may have occurred here.”). The resolution of this

issue on direct appeal, however, refutes this claim. Tielsch is simply trying

to relitigate a claim that he lost on direct appeal.

      Tielsch next contends that appellate counsel was ineffective for failing

to raise trial counsel’s ineffectiveness for failing to properly litigate the issue

of ADA Fitzsimmons’s prosecutorial misconduct.         The alleged prosecutorial

misconduct is the Commonwealth’s “efforts to present evidence that

Appellant’s license was suspended on the day of the Rosenbaum murder and

the day Trooper Wiles stopped Appellant’s car when Appellant had a valid

license.” Appellant’s Brief, at 69-70.

      There are numerous problems with Tielsch’s convoluted argument.

Among the most egregious is that Tielsch never argues how this alleged

misconduct prejudiced him. He also notes that “[t]he issue of whether this

was prosecutorial misconduct … was addressed in Appellant’s direct appeal.”




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Appellant’s Brief, at 69. On direct appeal, the panel found this claim had no

merit. See Tielsch, 934 A.2d at 85 n.7. This claim fails.

      In his next two issues, issues 9 and 11, Tielsch argues trial counsel’s

ineffectiveness.   Again, Tielsch cannot succeed on claims of trial counsel’s

ineffectiveness. See McGill, 832 A.2d at 1021. In any event, at the time

Tielsch filed this petition he had counsel. The pro se filing is nothing more

than an unauthorized supplemental petition.      We find the claims alleged

therein waived.    See Commonwealth v. Reid, 99 A.3d 427, 437 (Pa.

2014).

      Tielsch next maintains that he is entitled to relief based on the

“cumulative prejudice established by all other claims.” Appellant’s Brief, at

75.   Tielsch notes that this claim was raised in his pro se amended PCRA

petition. At the time Tielsch filed this petition he had counsel. The pro se

filing is nothing more than an unauthorized supplemental petition. We find

the claim raised therein waived.   See Reid, 99 A.3d at 437.      Tielsch also

raises a claim in issue 28 that he only raised in his pro se amended PCRA

petition. That claim is also waived. See id.

      Tielsch next claims that appellate counsel was ineffective for failing to

raise on appeal that Charles Musselwhite’s excluded statement was

admissible under the excited utterance exception to the hearsay rule.

Tielsch fails to cite any pertinent legal authority to support this claim.




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J-S13005-14


Accordingly, we find the issue waived.     See Williams, 959 A.2d at 1258;

Pa.R.A.P. 2119(a).

     Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/15/2015




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