J-S81015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ELVIS AARON RICCARDI                       :
                                               :
                       Appellant               :   No. 824 MDA 2017

                   Appeal from the PCRA Order April 24, 2017
                In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0003649-2009


BEFORE:      PANELLA, J., STABILE, J., and PLATT, J.

MEMORANDUM BY PANELLA, J.                                  FILED MAY 04, 2018

        Elvis Riccardi appeals from the order dismissing his first petition

pursuant to the Post Conviction Relief Act (“PCRA”). He raises fourteen

separate challenges to the PCRA court’s order. After careful review, we affirm.

        A jury convicted Riccardi of kidnapping, robbing, and ultimately killing

Donald Skiff, Jr. The court imposed a sentence of life in prison plus an

additional 60 to 110 years. Both this Court and the Supreme Court of

Pennsylvania affirmed the judgment of sentence.

        Shortly thereafter, Riccardi filed this PCRA petition. After numerous

supplements and amendments, the court held an evidentiary hearing on the




____________________________________________


   Retired Senior Judge assigned to the Superior Court.
J-S81015-17


merits of the petition. The PCRA court then dismissed the petition. This timely

appeal followed.

      Preliminarily, we must comment on the brief submitted by Ricciardi’s

counsel, Enid Wolfe Harris, Esquire. Issue selection is a key hallmark of

appellate advocacy. Attorney Harris has tossed aside careful issue selection

and has opted for a shotgun approach, raising fourteen issues.

      Justice Robert H. Jackson warned of the dangers of this approach many

years ago:

      Legal contentions, like the currency, depreciate through
      overissue. The mind of an appellate judge is habitually receptive
      to the suggestion that a lower court committed an error. But
      receptiveness declines as the number of assigned errors
      increases. Multiplicity hints at a lack of confidence in any one. Of
      course, I have not forgotten the reluctance with which a lawyer
      abandons even the weakest point lest it prove alluring to the same
      kind of judge. But experience on the bench convinces me that
      multiplying assignments of error will dilute and weaken a good
      case and will not save a bad one.

Ruggero J. Aldisert, J. “Winning on Appeal: Better Briefs and Oral Argument,”

at 129 (2d ed. 2003) (quoting Robert H. Jackson, “Advocacy Before the United

States Supreme Court,” 37 Cornell L.Q. 1, 5 (1951)). This “much quoted”

advice, unfortunately, “often ‘rings hollow’….” Commonwealth v. Robinson,

864 A.2d 460, 480 n.28 (Pa. 2004) (citing Ruggero J. Aldisert, J. “The

Appellate Bar: Professional Competence and Professional Responsibility–A

View From the Jaundiced Eye of the Appellate Judge,” 11 Cap. U.L. Rev. 445,

458 (1982)). But its importance cannot be overstated. See, e.g., Jones v.

Barnes, 463 U.S. 745, 751-752 (1983) (“Experienced advocates since time

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beyond memory 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”); Howard v. Gramley, 225 F.3d 784, 791 (7th Cir.

2000) (“[O]ne of the most important parts of appellate advocacy is the

selection of the proper claims to urge on appeal. Throwing in every

conceivable point is distracting to appellate judges, consumes space that

should be devoted to developing the arguments with some promise, inevitably

clutters the brief with issues that have no chance … and is overall bad appellate

advocacy.”); Aldisert, supra at 129 (“When I read an appellant’s brief that

contains more than six points, a presumption arises that there is no merit to

any of them.”)

      We proceed by determining whether the PCRA court’s factual findings

are supported by the record. See Commonwealth v. Ford, 44 A.3d 1190,

1194 (Pa. Super. 2012). In doing so, we read the record in the light most

favorable to the prevailing party. See id. If this review reveals support for the

PCRA court’s credibility determinations and other factual findings, we may not

disturb them. See id. We, however, “afford no such deference to its legal

conclusions.” Id., at 1194 (citations omitted).

      Eight of Riccardi’s issues on appeal assert ineffective assistance of either

trial counsel (issues 1, 2, 3, 4, 5, 6, and 10) or appellate counsel (issue 13)

(in either instance, referred to as “IAC”). We assume counsels’ effectiveness

and Riccardi bore the burden of proving otherwise. See Commonwealth v.


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Brown, 161 A.3d 960, 965 (Pa. Super. 2017). To do so, Riccardi was required

to plead and prove the underlying issue has arguable merit, counsel did not

act or fail to act pursuant to an objectively reasonable strategy, and actual

prejudice resulted from counsels’ act or failure to act. See Commonwealth

v. Rykard, 55 A.3d 1177, 1189-1190 (Pa. Super. 2012). A failure to satisfy

any prong of the test will require rejection of the entire claim. See

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

      Riccardi first challenges the PCRA court’s conclusion that trial counsel

had a conflict of interest in representing him. Riccardi notes that another

lawyer in trial counsels’ firm represented the Luzerne County District Attorney

in an unrelated federal case. As such, Riccardi argues that trial counsel

suffered from an actual conflict of interest.

      An attorney owes his client a duty of loyalty, including a duty to avoid

conflicts of interest. See Strickland v. Washington, 466 U.S. 668, 688

(1984). However, an appellant cannot succeed in a claim for a potential

conflict of interest without establishing that he suffered some form of

prejudice. See Commonwealth v. Collins, 957 A.2d 237, 251 (Pa. 2008).

On the other hand, if an appellant is able to show that trial counsel

experienced an actual, rather than potential conflict of interest, prejudice is

presumed. See id. “To show an actual conflict of interest, the appellant must

demonstrate that: (1) counsel actively represented conflicting interests; and




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(2) those conflicting interests adversely affected his lawyer’s performance.”

Id. (citations and internal quotation marks omitted).

      Riccardi   does   not   highlight   any   direct   evidence   of   improper

communication between the lawyers, nor does he identify any undue influence

exerted by the firm upon trial counsel. Rather, he contends that his other

allegations of trial counsel ineffectiveness demonstrate counsels’ desire to

curry favor with the District Attorney. As such, for this claim to entitle Riccardi

to relief, we must conclude that at least one of his other IAC claims on appeal

has merit. As we demonstrate below, Riccardi cannot meet this requirement.

      In his second claim of IAC, Riccardi argues counsel were ineffective

when they failed to object to evidence of his prior crimes. Riccardi highlights

two specific instances where Commonwealth witness Gary Moore testified to

Riccardi’s prior bad acts.

      First, Moore testified that Riccardi had a swastika tattooed on his chest.

See N.T., Jury Trial, 6/20-28/11, at 161. Riccardi argues this testimony

prejudiced the jury “by showing him to be a person of bad character.”

Appellant’s Brief, at 35.

      “Admission of evidence is within the sound discretion of the trial court

and will be reversed only upon a showing that the trial court clearly abused

its discretion.” Commonwealth v. Drumheller, 808 A.2d 893, 904 (Pa.

2002) (citation omitted). However, it is impermissible to present evidence at

trial of a defendant’s prior bad acts or crimes in an attempt to establish the


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defendant’s criminal character or tendencies. See Commonwealth v.

Hudson, 955 A.2d 1031, 1034 (Pa. Super. 2008); Pa.R.E. 404(b)(1). Such

evidence, however, may be admissible “where it is relevant for some other

legitimate purpose and not utilized solely to blacken the defendant’s

character.” Commonwealth v. Russell, 938 A.2d 1082, 1092 (Pa. Super.

2007) (citation omitted). “[E]vidence of other crimes, wrongs or acts may be

admitted for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity or absence of mistake or lack of

accident.” Pa.R.E. 404(b)(2).

      The PCRA court concluded the testimony about Riccardi’s swastika was

admissible as evidence of identity under Pa.R.E. 404(b)(2). Riccardi contends

that identity evidence was not necessary, as “Moore knew Riccardi without

needing to look at tattoos[.]” Appellant’s Brief, at 35. However, our review of

the transcript leads us to conclude that Moore’s ability to identify Riccardi was

certainly subject to attack on cross-examination.

      Moore testified he was sitting in a bar when “[t]wo guys walked in.”

N.T., Jury Trial, 6/20-28/11, at 161. He testified a man named “Elvis Lewis”

had a tattoo of a swastika on his chest. Id. He did not know Elvis Lewis by

any other name. See id. He further admitted that he did not recognize Lewis

until he questioned the bartender about him. See id. Moore then identified

Riccardi as the man he knew as Elvis Lewis. See id., at 162. Thus, we agree

with the PCRA court that Moore’s testimony was admissible as a means to


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bolster his identification testimony. Riccardi cannot establish arguable merit

for this claim.

      Next, he argues counsel were ineffective when they failed to request a

curative instruction when Moore testified that Riccardi offered to sell him

cocaine. See id., at 163. Counsel objected, and a side-bar argument ensued.

Counsel requested a mistrial. See id., at 164. The prosecutors argued this

testimony was only being used to further bolster the identification of Riccardi.

See id., at 165-166. “There’s an identification at issue. [Moore] says he knew

[Riccardi] from Nanticoke. He was comfortable with him; and that’s what we’re

trying to show, that this definitely is Elvis Riccardi, the same person he called

Elvis Lewis.” Id., at 166. Counsel rebutted this argument by noting the offer

to sell cocaine was not necessary to prove identification. See id. Ultimately,

the court overruled the objection without stating a basis for its ruling. See id.,

at 167. The Commonwealth then had Moore re-state his testimony that

Riccardi had asked him if he wanted to buy cocaine. See id., at 168.

      Riccardi argues counsel should have asked the court to instruct the jury

that this testimony could only be used for identification purposes. See, e.g.,

Commonwealth v. Billa, 555 A.2d 835, 841 (Pa. 1989). The PCRA court

cites case law indicating that counsel can make a reasonable strategic decision

to not request such an instruction, as the instruction may merely serve to

highlight the testimony for the jury. See, e.g., Commonwealth v.

Hutchinson, 811 A.2d 556, 561-562 (Pa. 2002). However, when counsel was


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questioned on the issue of his strategy regarding this decision, he testified he

did not request the instruction because he did not believe identification was

at issue. See N.T., PCRA Hearing, 10/3/16, at 159, 183-184.

      The PCRA court concluded Moore’s testimony that Riccardi offered to sell

him cocaine was not inflammatory, graphic, or extensive. However, it is clear

the Commonwealth sought to emphasize the offer to sell cocaine, as it had

Moore repeat the testimony after Riccardi’s objection was overruled.

      We conclude Riccardi has failed to establish prejudice in light of the

overwhelming evidence of his guilt. This Court summarized the evidence

against Riccardi in his direct appeal:

      The state police found Skiff’s partially burned truck in an area
      known as Plymouth Flats. The state police fire marshall
      determined that the fire to the truck had been intentionally set.
      Investigators obtained two palm prints from the truck, which were
      later determined to match Riccardi’s palm print. Investigators also
      learned that Skiff’s ATM card had been used the evening before
      he was last seen. A video from the ATM showed Skiff in his truck
      with Riccardi and his co-defendant, Michael Simonson[]. Bank
      records showed that there were two withdrawals and two failed
      withdrawals from Skiff’s account on the night he was last seen.
      Skiff’s body was eventually found thirty-two miles from where he
      was last seen. The investigators spoke with Riccardi on several
      occasions and Riccardi, while not admitting murder, gave
      incriminating statements.

      At trial, the Commonwealth presented witnesses who testified that
      Riccardi had made various admissions to them regarding Skiff’s
      disappearance and murder. A forensic pathologist testified that
      the manner of death was homicide. Riccardi called Simonson as a
      witness, but Simonson exercised his Fifth Amendment right and
      did not testify. [Simonson had pled guilty to charges arising from
      the murder of Skiff, but he still had other other pending charges.]
      However, a state trooper testified as to a statement Simonson had
      made to the police regarding this case.

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Commonwealth v. Riccardi, No. 158 MDA 2012, at 2-3 (Pa. Super., filed

4/16/13) (unpublished memorandum).

      Riccardi cannot establish with any probability that Moore’s testimony

had an impact on the jury’s verdict. Any prejudice caused by the reference to

cocaine was surely dwarfed by comparison to the extensive evidence of

Riccardi’s guilt in kidnapping and murdering Skiff. We therefore conclude there

is no merit to Riccardi’s second issue on appeal.

      Riccardi’s third, fourth, and tenth issues all assert IAC arising from the

testimony of forensic pathologist Dr. Gary Ross. In fact, Dr. Ross’s testimony

forms the basis of Riccardi’s third, fourth, seventh, eighth, ninth, tenth,

eleventh, and twelfth issues on appeal. We will therefore present the portion

of his testimony that Riccardi focuses on in detail here for reference in

subsequent issues.

      On direct examination, the Commonwealth questioned Dr. Ross about

Skiff’s hyoid bone. See N.T., Jury Trial, 6/20-28/11, at 666. Dr. Ross noted

that Skiff’s hyoid bone was found to be missing from his corpse. See id. The

prosecutor then asked Dr. Ross to opine on possible causes for the absence.

See id., at 667. Counsel objected to this question, but the court overruled the

objection. See id.

      Dr. Ross testified that a direct trauma to the neck might have been the

cause of the missing hyoid bone. See id., at 667-668. The prosecutor followed

up by asking if “an injury to someone’s neck” would be enough to kill them.

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Id., at 668. Dr. Ross responded, “Certainly. It can be, not necessarily, but it

certainly can be.” Id.

         The prosecutor continued by asking Dr. Ross, “if someone were to

receive a fatal injury to the neck, would the spine necessarily be broken or

fractured?” Id. Counsel objected, asserting these opinions were outside the

scope of Dr. Ross’s experts reports. The prosecutor responded by noting the

absence of the hyoid bone was in Dr. Ross’s report, even if the opinions on

the cause of its absence were not. See id., at 669-670. The trial court

overruled the objection without stating a basis for the ruling. See id., at 670.

         Dr. Ross continued to explain his finding pursuant to the prosecutor’s

questioning. Importantly, he testified

         [a]ll the vertebrae or the segments of the backbone were present;
         and the soft tissue about the vertebrae and basically all the soft
         tissue about the bony structures were absent. So, basically, I was
         left with the skeleton with a few fragments of necrotic or
         decomposing or rotten tissue attached to those bony fragments.

         I didn’t see any evidence of definitive, blunt traumatic impact by
         my examination of the vertebrae, the ribs, pelvis, extremities or
         the head.

Id., at 676.

         Still later in his direct testimony, he discussed a defect he found in Skiff’s

skull.

         Well, that marking on the skull, when I initially did the autopsy, I
         thought – I didn’t know the significance of that particular defect.
         I didn’t know it was pre-mortem or post-mortem.




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      After reviewing the photographs and looking at the autopsy again,
      I still don’t know whether that is pre-mortem or post-mortem; but
      I issued a report saying I really didn’t know what that defect was.

      …

      That cause of the hole is due to some force penetrating the skull
      in that particular area. I just don’t know what caused that
      penetration of that skull in that area, and I don’t know if it was
      done prior to his death or after his death.

Id., at 702-703. At the conclusion of his direct testimony, Dr. Ross opined

that the cause of Skiff’s death was “undetermined” due to the decomposition

of the body. Id., at 706.

      On cross-examination, Dr. Ross again conceded he could not determine

the cause of death “with a reasonable degree of medical certainty.” Id., at

708. When asked about the missing hyoid bone, Dr. Ross stated it “was absent

due to decomposition” and possibly because investigators failed to locate the

small bone when they recovered the body. Id., at 709. He denied that he

could say, within a reasonable degree of medical certainty, that Skiff had been

struck in the neck prior to his death. See id.

      In his third issue on appeal, Riccardi contends trial counsel were

ineffective for failing to call their own forensic expert, Dr. William Manion. He

argues Dr. Manion would have disputed Dr. Ross’s conclusion regarding the

defect in Skiff’s skull. At the PCRA hearing, Dr. Manion testified he would have

opined that he did not see the defect in the x-rays of Skiff’s skull if he had

been called to testify at trial. See N.T., PCRA Hearing, 9/22/16, at 24-25.

However, he subsequently testified he agreed the defect was present based

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upon his review of photographs of Skiff’s skull. See id., at 32. He also opined

that the conclusions reached by Dr. Ross in his autopsy report were accurate.

See id.

         Under these circumstances, we can see no arguable merit to the claim

that Dr. Manion should have been called to testify at trial. First and foremost,

Dr. Ross admitted he could not determine whether the defect in the skull was

pre- or post- mortem. He could not determine a cause for Skiff’s death; all he

could do was speculate. Dr. Manion’s testimony was not necessary to refute

the prosecutor’s contention that Skiff was killed by a blunt force trauma to the

skull; Dr. Ross’s testimony established the contention was mere speculation.

         Furthermore, the record establishes Dr. Manion agreed with Dr. Ross’s

conclusions, except for the minor quibble that he did not see the defect in the

x-rays, only in the photographs. Riccardi has not established any valid reason

for trial counsel to have called Dr. Manion. His IAC claim on this basis therefore

fails.

         Next, Riccardi claims trial counsel were ineffective in failing to object to

the prosecutor’s closing argument. Specifically, he highlights the prosecutor’s

argument that Riccardi put Skiff face down, “and he started to hit him and hit

him and hit him and hit him with the stick.” N.T., Jury Trial, 6/20-28/11, at

1342.

         A prosecutor is given wide latitude to argue her case, so long as the

argument is based upon the evidence of record and reasonable inferences


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from it. See Commonwealth v. Luster, 71 A.3d 1029, 1048 (Pa. Super

2013) (en banc). Thus, the prosecutor’s arguments are not a valid basis for

reversal unless they clearly biased the jury against the defendant to such an

extent that the jury could not have rendered an objective verdict. See id. We

must view the argument as a whole, and not in isolated statements taken out

of context. See id.

      As noted, Dr. Ross testified he could not opine as to the cause of Skiff’s

death to a reasonable medical certainty. He acknowledged a blow to the back

of the skull could be consistent with his observations, but there was no way

to be certain. This, along with the discovery of a stick beneath Skiff’s body

allowed the prosecutor to argue for a reasonable inference that Skiff had been

beaten with the stick. Furthermore, since Riccardi was on trial for the murder

of Skiff, it is difficult to conclude that this inference was significantly worse

than any other method of murder, such that it would have unfairly biased the

jury. Thus, Riccardi has failed to establish that his IAC claim has arguable

merit.

      In his fifth issue on appeal, Riccardi argues trial counsel were ineffective

when they did not seek to exclude all DNA evidence relating to Skiff. Riccardi

claims the evidence should have been excluded as the Commonwealth did not

preserve sufficient samples to allow for independent testing when it allowed

Skiff’s body to be cremated.




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      Directly at issue is one of Riccardi’s sneakers. The Commonwealth

presented evidence that Skiff’s DNA was found on the sneaker. Riccardi

believes   independent   testing   may    have   been    able   to   rebut   the

Commonwealth’s evidence.

      Riccardi contends the cremation of Skiff’s body constitutes a violation of

Brady v. Maryland, 373 U.S. 83 (1963). In Brady, the Court decided, “the

suppression by the prosecution of evidence favorable to an accused upon

request violates due process where the evidence is material either to guilt or

to punishment, irrespective of the good faith or bad faith of the prosecution.”

Id., at 87. In contrast, where the evidence is not inherently favorable, but

merely potentially useful, to the defendant, there is no violation of the

defendant’s rights unless he can show the Commonwealth acted in bad faith.

See Commonwealth v. Chamberlin, 30 A.3d 381, 402 (Pa. 2011). Bad faith

exists where evidence is destroyed under circumstances “in which the police

themselves by their conduct indicate that the evidence could form a basis for

exonerating the defendant.” Arizona v. Youngblood, 488 U.S. 51, 58

(1988).

      Here, Riccardi has not established that Skiff’s DNA would have been

favorable to him. Rather, he has set forth a scenario under which the DNA was

potentially useful. See Appellant’s Brief, at 39 (“if the DNA did not belong to

Donald Skiff, Riccardi’s [sneaker] had no contact with Mr. Skiff”) (emphasis




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supplied). As such, he was required to demonstrate bad faith on the part of

the Commonwealth.

       The PCRA court did not err in finding Riccardi had failed to establish bad

faith. Skiff does not cite to any evidence of bad faith. Our review of the record

reveals only that Skiff’s remains were released to his family, who then decided

to have the remains cremated. See N.T., PCRA Hearing, 10/3/16, at 29-30.

This   evidence   certainly   falls   short   of   establishing   conduct   by   the

Commonwealth that would indicate they believed it would have yielded

exonerating evidence.

       Next, Riccardi claims counsel were ineffective when they failed to object

to Dr. Ross’s opinion that, under the circumstances where Skiff’s body was

found, the manner of death was presumed to be “homicide until proven

otherwise.” While Riccardi is correct in noting this would be an inappropriate

standard for the jury to use when determining his guilt, he has not established

the jury was swayed into using this standard.

       Initially, we note that Dr. Ross’s testimony merely described his process

for reaching a conclusion on whether a person died from natural causes or

from homicide. He was not addressing the issue of who was responsible for

Skiff’s death. Nor did the highlighted testimony suggest the jury should

presume the cause of death was homicide.

       Furthermore, Riccardi does not challenge, or even mention, the trial

court’s instructions to the jury. The court directed the jury that


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      [i]t is not the Defendant’s burden of proof to prove that he is not
      guilty. Instead, it is the Commonwealth that always has the
      burden of proving each and every element of the crimes charged
      and that the Defendant is guilty of those crimes beyond a
      reasonable doubt.

N.T., Jury Trial, 6/20-28/11, at 1362-1363. The court repeated similar

instructions regarding the burden of proof throughout its jury charge. See,

e.g., id., at 1395 (describing the Commonwealth’s burden to establish every

element of each allegation of theft beyond a reasonable doubt). We presume

the jury followed these instructions.   See Commonwealth v. Miller, 819

A.2d 504, 513 (Pa. 2002). Thus, Riccardi has not established arguable merit

for this claim of IAC.

      In his seventh claim on appeal, Riccardi argues the Commonwealth

violated his rights to due process by allowing Dr. Ross to testify to the

presence of hole in Skiff’s skull. Riccardi claims Dr. Manion conclusively

established the absence of such a hole, and that the Commonwealth allowed

Dr. Ross to present knowingly false testimony.

      This argument mischaracterizes the evidence. As set forth above, Dr.

Manion disputed that the hole could be seen in the x-rays, but agreed that the

hole was present after reviewing photographs. Even if Dr. Manion had opined

that there was no hole, this dispute would not have rendered Dr. Ross’s

testimony knowingly false. It would have merely established a disagreement

between experts to be resolved by the jury. Riccardi’s seventh claim on appeal

is frivolous.


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      We reach the same conclusion for Riccardi’s eighth issue, wherein he

claims his due process rights were violated when the Commonwealth failed to

correct Dr. Ross’s allegedly false testimony regarding the hole in Skiff’s skull.

As we have established, Riccardi has come nowhere near meeting his burden

in establishing that Dr. Ross’s testimony was, in fact, false. Riccardi’s eighth

issue is similarly frivolous.

      Riccardi’s ninth issue clearly suffers from the same defect. He contends

the prosecutor compounded the violation of his rights occasioned by Dr. Ross’s

alleged false testimony by arguing that the hole in Skiff’s skull represented

the cause of death. We need not belabor this point yet again; this issue is

frivolous.

      Riccardi’s next two claims, his tenth and eleventh on appeal, assert trial

counsel were ineffective when they failed to correct Dr. Ross’s allegedly false

testimony through cross-examination or through the presentation of Dr.

Manion’s expert testimony. Once again, these arguments mischaracterize the

evidence of record. As set forth previously, Dr. Manion ultimately agreed with

Dr. Ross’s findings and conclusions, with the minor quibble that he only

observed the hole in Skiff’s skull in photographs, not in the x-rays. These

issues are frivolous.

      Next, Riccardi argues the Commonwealth violated his due process rights

by failing to disclose that it had allegedly coached its expert witness during a

pre-trial hearing. The hearing at issue was held to determine whether Riccardi


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qualified as mentally challenged such that the death penalty would constitute

cruel and unusual punishment under Atkins v. Virginia, 536 U.S. 304

(2002). Even assuming the validity of Riccardi’s assertions on this issue, he

cannot establish he was prejudiced by the Commonwealth’s conduct. The

testimony was not presented to the jury for purposes of determining guilt or

innocence. Nor did it ultimately have an impact on his sentence, as he did not

receive the death penalty. Since Riccardi cannot establish any form of

prejudice, this claim fails.

       In his thirteenth issue, Riccardi asserts that appellate counsel was

ineffective in his performance on appeal. While the record certainly supports

Riccardi’s claim that appellate counsel procedurally defaulted several issues

on appeal, leading to their waiver, Riccardi makes no attempt to argue he

suffered prejudice from counsel’s mistakes. His whole argument on this issue

consists of a single sentence: “It cannot be determined what this Court would

have decided if appellate counsel had included the photographs and videos in

the certified record or made the effort to support his arguments on sufficiency

of the evidence by citing to the record.”1 This argument cannot meet the high

standard of establishing the PCRA court erred.


____________________________________________


1 Riccardi also argues prejudice is established by the fact that trial counsel
were suffering from a conflict in interest: “the PCRA hearing testimony showed
that [trial counsel] were burdened by an actual conflict of interest. Had the
issue been raised on direct appeal, Riccardi would be entitled to relief.” As set
forth previously, we do not agree that Riccardi established he was prejudiced
by any conflict of interest.

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      In his final issue, Riccardi claims that the cumulative effect of the errors

in this case prejudiced him. As we conclude that the PCRA court did not err on

any of the issues raised by Riccardi on appeal, this claim necessarily fails.

Furthermore, Riccardi has failed to establish any prejudice related to his claim

that trial counsel suffered from a conflict of interest. As such, none of

Riccardi’s claims merit relief, and we affirm the order dismissing his PCRA

petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/4/2018




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