J-S65014-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES EDWARD ROCHE                         :
                                               :
                       Appellant               :   No. 1020 MDA 2019

               Appeal from the PCRA Order Entered May 30, 2019
                In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0002430-2014


BEFORE:      PANELLA, P.J., KUNSELMAN, J., and COLINS, J.

MEMORANDUM BY PANELLA, P.J.:                        FILED FEBRUARY 11, 2020

        James Edward Roche appeals from the May 29, 2019 order dismissing,

after an evidentiary hearing, his first petition filed pursuant to the Post

Conviction Relief Act (“PCRA”), see 42 Pa.C.S.A. §§ 9541-9546. Roche asserts

that his trial counsel was ineffective for failing to object to the testimony of an

expert witness because that witness opined in three discrete areas in which

he was not qualified. Given the latitude afforded to the trial court in qualifying

a witness as an expert, we find that the at-issue witness was amply qualified

under Pennsylvania Rule of Evidence 702. Accordingly, there is no merit to

Roche’s tripartite ineffective assistance claim, and therefore, we affirm the

PCRA court’s decision.




____________________________________________


   Retired Senior Judge assigned to the Superior Court.
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      We have already meticulously summarized the facts surrounding

Roche’s case in his direct appeal. See Commonwealth v. Roche, 153 A.3d

1063, 1064-67 (Pa. Super. 2017). Briefly, after watching a violent movie and

having consumed some amount of alcohol, Roche declared his intention to kill

one of the victims. Roche’s girlfriend, accompanying him in his criminal

activity, suggested killing the son of the victim, too. Eventually, the victims’

two bodies were found shot to death.

      Roche was charged and convicted of two counts of first-degree murder,

see 18 Pa.C.S.A. § 2502(a), and two counts of criminal conspiracy to commit

criminal homicide, see 18 Pa.C.S.A. § 903. A jury convicted Roche of these

four offenses, and thereafter, the court sentenced Roche to two consecutive

terms of life imprisonment without the possibility of parole for the two murder

convictions and two consecutive terms of 240 to 480 months of imprisonment

for the conspiracy convictions.

      After sentencing, Roche filed a direct appeal, which we denied. The

Supreme Court of Pennsylvania denied review on July 3, 2017. On June 8,

2018, Roche filed the current PCRA petition. Correspondingly, counsel was

appointed to represent Roche, and several months later, the PCRA court held

an evidentiary hearing on Roche’s petition.

      Ultimately, the PCRA court denied Roche’s petition, and in response,

Roche filed a timely notice of appeal. The PCRA court did not require Roche to

file a statement pursuant to Pa.R.A.P. 1925(b). Additionally, the court has

specified that, instead of submitting a Pa.R.A.P. 1925(a)(1) opinion, the

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reasons for its denial of PCRA relief can be found in the opinion appended to

its denial order.

      “Our standard of review for issues arising from the denial of PCRA relief

is well-settled. We must determine whether the PCRA court’s ruling is

supported by the record and free of legal error.” Commonwealth v. Presley,

193 A.3d 436, 442 (Pa. Super. 2018) (citation omitted). In making this

determination, we read the record in the light most favorable to the prevailing

party. See Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012).

If our review reveals support for the PCRA court’s credibility and other factual

findings, we may not disturb them. See Commonwealth v. Henkel, 90 A.3d

16, 20 (Pa. Super. 2014). Conversely, we afford no deference to the PCRA

court’s legal conclusions. See id.

      In this appeal, Roche asserts ineffective assistance of counsel.

Specifically, Roche contends that trial counsel was ineffective for failing to

object to an expert witness’s testimony when that witness opined on: 1) the

trajectory of fired bullets traveling through a human body; 2) blood spatter

evidence; and 3) other ballistics-related pieces of information utilized at trial.

See Appellant’s Brief, at 4. Roche submits that if proper objections were

made, his “claims of self-defense would have been much stronger.” Id., at

15. Although Roche has fragmented his ineffective assistance of counsel

claims into three distinct areas of his brief, given the large amount of factual

and analytical overlap between his averments, we have consolidated his three

issues into one omnibus ineffective assistance allegation.

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      Preliminarily, we presume counsel’s effectiveness, and an appellant

bears the burden of proving to the contrary. See Commonwealth v. Brown,

161 A.3d 960, 965 (Pa. Super. 2017). Moreover, we emphasize that

demonstrating ineffective assistance of counsel is a high bar. “In order for [an

a]ppellant to prevail on a claim of ineffective assistance of counsel, he must

show, by a preponderance of the evidence, ineffective assistance of counsel

which so undermined the truth-determining process that no reliable

adjudication of guilt or innocence could have taken place.” Presley, 193 A.3d

at 442 (citation omitted).

      Courts in Pennsylvania employ a three-prong test to establish ineffective

assistance of counsel. Specifically, a PCRA petition must plead and prove that:

1) the petitioner’s underlying legal claim has arguable merit; 2) counsel’s

actions lacked any reasonable basis; and 3) counsel’s actions prejudiced the

petitioner such that there is a reasonable probability of a different outcome if

not for counsel’s error. See Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa.

2011). The inability to satisfy any one prong of the ineffectiveness test is

sufficient to dismiss the entire claim. See Commonwealth v. O’Bidos, 849

A.2d 243, 249 (Pa. Super. 2004).

      “Arguable merit exists when the factual statements are accurate and

could establish cause for relief. Whether the facts rise to the level of arguable

merit is a legal determination.” Commonwealth v. Barnett, 121 A.3d 534,

540 (Pa. Super. 2015) (internal quotation marks and citations omitted).




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      The gravamen of Roche’s ineffective assistance argument is that

because one of the expert witnesses at trial, Trooper Shubzda, exceeded the

scope of his expert status and pontificated on areas in which he was

unqualified, trial counsel was therefore ineffective for not objecting to these

deviations. Roche implicitly concedes that Trooper Shubzda was properly

“admitted as an expert in the field of crime scene processing and

investigation,” Appellant’s Brief, at 18, but finds fault with his testimony that

delved into topics such as forensic pathology, internal bullet trajectories,

ballistics, and blood spatter interpretations.

      Expert witness qualification rests with the sound discretion of the trial

court, and we will only reverse in clear cases evincing an abuse of that

discretion. See Nobles v. Staples, Inc., 150 A.3d 110, 113 (Pa. Super.

2016). “The standard for qualifying an expert witness is a liberal one; the

witness need only have a reasonable pretension to specialized knowledge on

a subject for which expert testimony is admissible.” Commonwealth v.

Kinard, 95 A.3d 279, 288 (Pa. Super. 2014) (en banc) (citation omitted). “It

is also well established that an expert may render an opinion based on training

and experience; formal education on the subject matter is not necessarily

required.” Commonwealth v. Copenhefer, 719 A.2d 242, 255 (Pa. 1998);

see also Pa.R.E. 702 (requiring an expert to simply possess generally

accepted and specialized knowledge that could assist the trier of fact).

      Roche’s arguments rely upon the notion that a qualified crime scene

investigation expert cannot, without further expertise and qualification, opine

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on areas such as internal and external bullet trajectories as well as blood

spatter evidence. Roche contends that those areas “undeniably require[]

medical training,” Appellant’s Brief, at 19, or are reliant on “specialized

scientific knowledge,” id., at 25.

      Specifically, Roche frames the issue of a bullet traveling inside of a

human body as wholly distinct from the field of crime scene processing and

investigation. Instead, Roche proclaims that an internal bullet trajectory

analysis invokes the fields of both forensic pathology and ballistics.

      Roche points to the testimony of Dr. Ross, an expert who also testified

at trial, but who was specifically qualified to discuss forensic pathology, to

establish that, as distinct from Trooper Shubzda’s conclusions, Dr. Ross could

not determine with any kind of scientific certainty the relative positions of the

shooter and victim when the victim was shot. Conversely, Trooper Shubzda

unequivocally stated that “the victim was either crouched and running away

or crawling on the ground” when he was shot. N.T., 11/2/15, at 212 (implying

the shooter discharged his firearm from a higher position than the retreating

victim). Further, Trooper Shubzda asserted “bullets travel in a straight line.”

Id. Therefore, according to Roche, if Trooper Shubzda was found to be

unqualified to offer his opinion on the victim’s position, Roche’s claim of self-

defense would have been much more viable.

      Next, Roche avers that Trooper Shubzda was equally unqualified to

provide testimony on blood spatter evidence as he “was never offered for

admission as an expert in blood spatter[,] and the [c]ourt never admitted him

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as an expert in the field of blood spatter.” Appellant’s Brief, at 26. Accordingly,

Trooper Shubzda exceeded his authority when he opined that one of the

victims was initially shot when he was face down. See N.T., 11/2/15, at 204.

When Trooper Shubzda made this pronouncement, he, too, drastically affected

Roche’s ability to establish a plausible self-defense claim.

      Through our comprehensive review of Roche’s brief and the record, we

have uncovered no compelling basis to find that the trial court abused its

discretion. It is uncontested that Trooper Shubzda was not explicitly qualified

by the court in the fields illuminated by Roche. In effect, Roche appears to

offer a semantical distinction between the topics of crime scene investigations

and ballistics/blood spatter. Roche explicitly suggests that the court should

have broken down these discrete areas and qualified the Trooper individually

in the proposed fields because “crime scene investigations” is either entirely

distinct from the other topics or conceptually too broad to impute relevant

expert status to those other fields. See Appellant’s Brief, at 21-22. However,

Roche has not adequately challenged the PCRA court’s determination that

given the Trooper’s extensive educational and field-based experiences with

bullet trajectories and blood spatter evidence, those topics were necessarily

subsumed     under   the   unequivocally     broader   subject   of   crime   scene

investigation. See PCRA Court Opinion, filed 5/30/19, at 25-26.

      The central case cited by Roche, Commonwealth v. Velez-Mercado,

1515 MDA 2014 (Pa. Super. June 26, 2015) (unpublished memorandum),

does not support the conclusion that trial counsel was ineffective for failing to

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object to Trooper Shubzda’s testimony. Instead, the unpublished Velez-

Mercado case simply found that the officer there was able to render a lay

opinion on a bullet hole because he had personally observed it. See id., at *4.

Moreover, the only other case cited by Roche in the body of his brief,

Commonwealth v. Puksar, 740 A.2d 219 (Pa. 1999), held that there was

no error in the trial court admitting a doctor as an expert to testify on the

issue of blood spatters after an extensive voir dire process. Puksar, 740 A.2d

at 226 (reaching this conclusion even though that doctor “was not an expert

in the field” of bloodstain pattern interpretation).

      At the PCRA hearing, Trooper Shubzda explained the field of crime scene

processing:

      With crime scene processing, basically, all aspects of the crime
      scene come into play, blood spatter analysis, bullet trajectory, you
      could even include latent prints, you can even include disruption
      of the scene through a struggle, all those little pieces of the puzzle
      are put together by us and an opinion is rendered based upon
      what we see.

N.T., PCRA Hearing, 4/18/19, at 15. Further, Trooper Shubzda indicated that

that in addition to offering an opinion based on his own observations, he

utilized Dr. Ross’s autopsy report to augment his opinion. See id., at 18.

      In delving into his qualifications, Trooper Shubzda identified his twenty-

seven years of service with the Pennsylvania State Police, with twenty-three

of those years served in the Forensic Services Unit. See id., at 10-11. Trooper

Shubzda processed hundreds of crime scenes involving homicides and had

“several trainings in blood spatter analysis[, with one in particular being] held

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by world-renown blood spatter analyst Paul Kish in cooperation with

pathologist, Dr. Ross.” Id., at 11. Moreover, Trooper Shubzda had, in other

trials, been qualified as a blood spatter expert and in the area of analyzing

bullet trajectories. See id. All of these educational and field-based experiences

were outlined in Trooper Shubzda’s curriculum vitae, which was submitted at

trial. See id.

      Under these circumstances, Roche cannot establish that the trial court

would have sustained his proposed objection. Trooper Shubzda testified he

had specialized knowledge in ballistics in general, ballistics as they specifically

relate to the human body, and blood spatter. Therefore, his suggestion that

Trooper Shubzda was improperly qualified as an expert lacks arguable merit

and his ineffective assistance claim inevitably fails.

      Roche attempts to construct an artificially restrictive definition of what

an expert qualified in crime scene investigations may discuss at trial. While a

petitioner challenging the acceptance of an expert with no reported experience

in blood spatter or ballistics might have yielded a different result, clearly,

Trooper Shubzda had extensive training in the fields in which he opined, which

satisfies the requirement that he must have either “scientific, technical, or

other specialized knowledge … beyond that possessed by the average

layperson[.]” Pa.R.E. 702(a).

      Further, Roche cannot establish the he suffered prejudice from Trooper

Shubzda’s opinion testimony. Trooper Shubzda’s opinions were corroborated


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by Dr. Ross. Dr. Ross opined that the bullet paths through the Jeffrey Evans’s

body travelled from “back to front, left to right, and upward towards the head.”

N.T., Jury Trial, 11/2/15, at 568. Regarding Ronald Evans, Dr. Ross similarly

opined that at least one bullet path “went from back to front, upwards towards

the right.” Id., at 560-61. Roche does not challenge any portion of Dr. Ross’s

testimony in this appeal.

      While Roche correctly notes that Trooper Shubzda’s opinion went further

than Dr. Ross’s, the Commonwealth would have been permitted to argue that

Dr. Ross’s testimony supported reasonable inferences that the victims were

shot in the back and while bent over. As a result, Trooper Shubzda’s testimony

was merely cumulative to Dr. Ross’s testimony, and Roche cannot establish

that there is a reasonable probability that the outcome of the trial would have

been different even if Trooper Shubzda’s testimony had been excluded.

      Accordingly, our review of the record supports the PCRA court’s

determination that Roche has failed to demonstrate ineffective assistance of

counsel. Therefore, we affirm the PCRA court’s order denying Roche’s petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/11/2020

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