J-S25011-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CARL LEONARD VARNER                        :
                                               :
                       Appellant               :   No. 872 MDA 2019

               Appeal from the PCRA Order Entered April 25, 2019
      In the Court of Common Pleas of Franklin County Criminal Division at
                        No(s): CP-28-CR-0002100-2012


BEFORE: LAZARUS, J., DUBOW, J., and KING, J.

MEMORANDUM BY LAZARUS, J.:                                FILED JULY 06, 2020

        Carl Leonard Varner appeals pro se from the trial court’s order

dismissing his amended petition, after hearings, filed pursuant to the Post

Conviction Relief Act (PCRA). See 42 Pa.C.S. §§ 9541-9546. After careful

review, we affirm.

        Following a jury trial, in December of 2014, Varner was convicted of

first-degree murder1 and twenty five associated charges.2             The charges

stemmed from an incident that occurred on October 22, 2012, when Varner

and a co-defendant, Jason Shauf, both brandishing firearms, forced their way

into a Chambersburg residence occupied by six men. The assailants separated

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1   18 Pa.C.S. § 2502(a).

2 The other offenses included robbery, burglary, conspiracy, kidnapping to
facilitate a felony, kidnapping to commit burglary, and unlawful restraint
(serious bodily injury).
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the victims into different bedrooms in the home and robbed each of them.

Shauf fired a shotgun into the ceiling of one of the rooms. Shauf saw Varner,

wielding a firearm, go upstairs with two of the residents. Shauf then heard

two gunshots fired from upstairs, and subsequently saw Varner run down the

stairs. A fatal shot was fired into the neck of one victim using a .22 caliber

revolver.    During their investigation, police found a .22 caliber revolver

wrapped in a bandana and a .410 shotgun in Varner’s basement. At trial,

Shauf and several individuals identified Varner as the man who shot the

victim.

       On January 7, 2015, Varner was sentenced to life imprisonment without

the possibility of parole, as well as a consecutive term of 44-88 years in prison.

Our Court affirmed his judgment of sentence on April 26, 2016.               See

Commonwealth v. Varner, 208 MDA 2015 (Pa. Super. filed April 26, 2016)

(unpublished memorandum). Subsequently, Varner moved to dismiss court-

appointed counsel.       After conducting a hearing, the trial court granted the

motion and dismissed counsel. On April 25, 2017, Varner filed a pro se PCRA

petition. The court appointed PCRA counsel for Varner; however, on July 10,

2017, Varner filed a pro se amended PCRA petition. On July 24, 2017 and

September 18, 2017, Varner filed motions for extension of time to file a

supplemental PCRA petition, both of which the court granted.3 The court held

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3 On December 29, 2017, Varner filed a notice of intent not to file a
supplemental PCRA petition and requested that the court incorporate his pro
se amended petition filed on July 10, 2017.

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hearings on the petition on April 2, 2018 and July 19, 2018. On April 25,

2019, the trial court denied Varner’s pro se amended petition.

       Varner filed a timely notice of appeal on May 17, 2019. On June 7,

2019, Varner filed a motion for extension of time to file his Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal (Statement), which the

court granted, giving Varner until July 5, 2019 to file his Statement. On June

28, 2019, counsel filed a motion to withdraw; subsequently, Varner filed a

motion to dismiss counsel and proceed pro se. Following a Grazier4 hearing,

which included a full colloquy regarding Varner’s right to counsel, the court

permitted Varner to proceed without counsel after concluding that he had

made a knowing, intelligent and voluntary decision to proceed pro se in his

collateral appeal. Varner filed a Rule 1925(b) Statement on July 5, 2019, and

an amended pro se Statement on September 9, 2019, by leave of court.

       On appeal, Varner presents the following issues for our consideration:

       (1)    Whether [the] PCRA court has abused its discretion in
              determining that trial counsel was not ineffective for their
              failure to timely challenge misrepresentations within the
              affidavit of probable cause, where [a] co-defendant has
              recanted [a] prejudicial testimonial statement?

       (2)    Whether [the] PCRA court abused its discretion where the
              court determined trial counsel was not ineffective for their
              failure to procure Jose Espinosa at trial, when Espinosa
              could impeach the credibility of the Commonwealth[’]s
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4 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) (when defendant
seeks waiver of right to counsel at post-conviction and appellate stages, trial
court must conduct on-the-record determination that waiver is knowing,
intelligent, and voluntary).


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           eyewitnesses, and could testify as to the lighting conditions
           and layout of the home?

     (3)   Whether [the] PCRA court abused its discretion where the
           court determined that trial counsel was not ineffective for
           their failure to pursue witness identification testimony from
           the crime scene which is material to appellant’s innocence,
           and where the court ignored the fact that the prosecution
           withheld such vital information in violation of Brady v.
           Maryland, 373 U.S. 83 [] (1963)?

     (4)   Whether [the] PCRA court erred in its determination that
           trial counsel was not ineffective for failing to object to the
           prosecution[’]s willful [] and bad[]faith introduction of
           suppressed identification testimony of Jose Herrera?

     (5)   Whether [the] PCRA court erred where it determined that
           trial counsel w[ere] not ineffective for their failure to object
           to the prosecution[’]s use of false timeline identification
           testimony, as well as where the court did not address the
           prosecution[’]s use of known false testimony?

     (6)   Whether [the] PCRA court abused its discretion in
           determining that trial counsel is not ineffective for their
           failure to timely file and serve a notice of alibi defense, and
           furthermore for their failure to seek an alibi instruction.

     (7)   Whether the PCRA court erred, where the court determined
           that counsel was not ineffective for their failure to object to
           the introduction of [Varner’s] prior bad acts, crimes, and
           mental health, as[] well [] as where the court did not
           address the prosecutors’ bad[]faith introduction of such
           evidence.

     (8)   Whether [the] PCRA court erred, where the court ruled that
           counsel was not ineffective for failing to object to the seating
           of Juror No. 2?

     (9)   Whether the PCRA court abused its discretion where the
           court determined that counsel was not ineffective for failure
           to object to the prosecution[’]s use of inflammatory tactics
           and commentary during closing arguments, as well as where
           the court failed to address the prosecution[’]s bad faith use
           of epithets which inflamed the passions and prejudices of
           the jury?



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       (10) Whether [the] PCRA court abused its discretion where it
            determined that [Varner] failed to raise prosecutorial
            misconduct issues and that those issues are now waived,
            when the court assured [Varner] and PCRA counsel that the
            prosecutorial misconduct issues raised by [Varner] would be
            reviewed and considered within the PCRA court’s opinion,
            and the PCRA court ultimately failed to issue any robust
            determination which would enable effective appellate
            review.

Appellant’s Brief, at 5-9 (unnecessary capitalization omitted).

       “The standard of review of an order denying a PCRA petition is whether

that determination is supported by the evidence of record and is free of legal

error.”    Commonwealth v. Johnston, 42 A.3d 1120, 1126 (Pa. Super.

2012).     The PCRA court’s findings will not be disturbed unless there is no

support for the findings in the certified record. Id.

       Nine of Varner’s ten PCRA claims allege counsel5 were ineffective in

representing him at trial. With respect to claims of ineffective assistance of

counsel,    we    begin   with    the   presumption   that   counsel   is   effective.

Commonwealth v. Spotz, 47 A.3d 63, 76 (Pa. 2012).                To prevail on an

ineffectiveness claim, a petitioner must plead and prove, by a preponderance

of the evidence, three elements: (1) the underlying legal claim has arguable

merit; (2) counsel had no reasonable basis for his or her action or inaction;

and (3) the petitioner suffered prejudice because of counsel’s action or

inaction. Id. (citation omitted).



____________________________________________


5Varner was represented by two attorneys at trial, Michael Palermo, Esquire,
and Eric Weisbrod, Esquire.

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      Varner first contends that trial counsel were ineffective for failing to

challenge misrepresentations in the affidavit of probable cause supporting the

warrant to search his residence. Specifically, Varner asserts that a detective

in the Chambersburg Police Department intentionally misrepresented his co-

defendant’s statement that Varner “shot [t]he [m]an in the upstairs of the

residence,” when Shauf never said this in his videotaped interview with

investigating officers. Appellant’s Brief, at 16 (citation omitted).

      At the PCRA hearing, Varner’s trial attorneys testified that they believed

a motion to challenge the affidavit of probable cause would have been

unsuccessful based on the fact that a full preliminary hearing had been held

in the case, after which all charges were bound over for trial.        N.T. PCRA

Hearing, 4/2/18, at 191-92. Under the circumstances, we agree that any such

motion would have been frivolous. See Commonwealth v. Chamberlain,

30 A.3d 381, 423 (Pa. 2011) (any issue concerning defect in affidavit of

probable cause becomes moot upon district justice’s finding at preliminary

hearing that prima facie case has been established).         Thus, this claim is

meritless.

      Varner next claims that counsel were ineffective for failing to call Jose

Espinosa as a defense witness at trial.

      When raising a failure to call a potential witness claim, a PCRA petitioner

must establish that:

      (1) the witness existed; (2) the witness was available to testify
      for the defense; (3) counsel knew of, or should have known of,
      the existence of the witness; (4) the witness was willing to testify

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      for the defense; and (5) the absence of the testimony of the
      witness was so prejudicial as to have denied the defendant a fair
      trial.

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

      Attorney Weisbrod testified at the PCRA hearing that his office had

prepared a trial subpoena for Espinosa; however, counsel could not recall why

Espinosa did not testify. Although Espinosa existed, was available to testify,

and counsel was aware of him, Washington, supra, the PCRA court

determined that the absence of Espinosa’s testimony was not so prejudicial so

as to deny Varner a fair trial. Specifically, the court found that the Espinosa’s

testimony would have been cumulative of other individuals’ testimony that the

occupants of the Chambersburg residence were drinking heavily and using

illegal drugs on the night of the incident. Because the jury heard evidence of

the drug and alcohol use from other witnesses and any other information

Varner claims Espinosa would have offered would have been inadmissible

hearsay, Varner was not prejudiced by the absence of Espinosa’s testimony.

Thus, there is no merit to this claim.

      Varner next asserts that trial counsel were ineffective for failing to

pursue witness identification testimony from the crime scene; —specifically a

reference in a police report indicating that two black men were seen in the

vicinity of the crime scene on the night in question. He claims such testimony

was material to his innocence, and that the prosecution withheld this vital

information in violation of Brady, supra.




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      Chambersburg Police Officer Victor Dimoff allegedly prepared a police

report referencing two black men being seen in the vicinity of the crime scene

on the night of the incident. At the PCRA hearing, Attorney Palermo testified

that he believed the officer’s notes had been requested, but they did not exist.

Varner, himself, indicated that the defense had, in fact, filed a motion to

compel the officer’s notes, which was granted. N.T. PCRA Hearing, 4/2/18, at

50. However, Attorney Palermo testified that Attorney Weisbrod told him that

the notes did not exist and, therefore, could not be provided by the

Commonwealth. Id. at 159-60, 194. Attorney Weisbrod also testified that

the defense subpoenaed Officer Dimoff and called him as a witness at trial.

Id. Because counsel filed a motion to compel and subpoenaed Officer Dimoff

to be a witness at Varner’s trial, the underlying ineffectiveness claim has no

merit. Spotz, supra. Moreover, because counsel testified that the notes did

not exist, Varner’s Brady claim is moot.

      Varner next contends that counsel was ineffective for failing to object to

the identification testimony of Jose Herrera, which he claims had been

suppressed prior to trial.

      At the PCRA hearing, counsel acknowledged that Herrera identified

Varner in-court as the individual who shot and killed the victim. However,

counsel understood the court’s suppression order to only apply to Herrera’s

photo line-up identification of Varner, and not his in-court identification.

Counsel is in fact correct; a plain reading of the trial court’s ruling and order

indicates that it only suppressed Herrera’s out-of-court, photo array

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identification. See Trial Court Opinion, 9/4/14, at 24; see also Trial Court

Order, 9/4/14, at ¶ 3; N.T. PCRA Hearing, 4/2/18, at 213. Thus, there is no

merit to this claim.

      In his next issue, Varner claims that counsel were ineffective for their

failure to object to the prosecution’s use of false timeline identification

testimony. Specifically, Varner contends that he was only identified by a photo

line-up that occurred four days after he was charged and not on the same

evening of the crimes as “asserted by the prosecution through witness[es]

Augustine Marquez and Arturo Perez.” Appellant’s Brief, at 58.

      Varner fails to explain how the fact that witnesses identified him days

after the shooting, as opposed to on the day of the crime, “resulted in

prejudice.” Appellant’s Brief, at 65. In fact, multiple witnesses, in addition to

Marquez and Perez, positively identified Varner as the victim’s assailant.

Because Varner cannot prove that he suffered prejudice as a result of counsel’s

alleged action or inaction, Spotz, supra, Varner is not entitled to relief on this

claim.

      Next, Varner contends that counsel was ineffective for failing to timely

file and serve a notice of alibi defense and seek an alibi instruction.

      An alibi is “a defense that places the defendant at the relevant time in

a different place than the scene involved and so removed therefrom as to

render it impossible for him to be the guilty party.”       Commonwealth v.

Roxberry, 602 A.2d 826, 827 (Pa. 1992) (citations omitted).               When a

defendant intends to offer an alibi defense at trial, Pa.R.Crim.P. 567 requires

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the defendant file a notice6 of the alibi with the clerk of courts, and serve a

copy of the notice and a certificate of service on the attorney for the

Commonwealth. See Pa.R.Crim.P. 567(A).

       Here, Varner’s counsel testified that they employed more of a

“backdoor” or “quasi”-alibi defense at trial, using Varner’s testimony as well

as a witness’s testimony to place Varner at Shauf’s residence on the night of

the crime around 9:30-9:45 PM. While counsel never filed a formal notice of

alibi defense or requested an alibi instruction, the jury had the opportunity to

consider the evidence to determine whether Varner was present at the crime

scene during the relevant time period.             However, even though witness

Eichelberger testified that Varner was sleeping on Shauf’s couch just prior to

the time the crimes were committed, his testimony did not completely

eliminate the possibility that Varner could have committed the offenses.

Under such circumstances, we do not find counsels’ failure to serve a notice

of alibi or seek an alibi instruction unreasonable, especially where there was

overwhelming evidence, including eyewitness testimony, placing Varner at the
____________________________________________


6 Rule 567 mandates, “[t]he notice shall contain specific information as to the
place or places where the defendant claims to have been at the time of the
alleged offense and the names and addresses of the witnesses whom the
defendant intends to call in support of the claim.” Pa.R.Crim.P. 567(A)(2).
Furthermore, if a defendant fails to file and serve the requisite notice of alibi,
subsection (B)(1) of Rule 567 provides that “the court may exclude entirely
any evidence offered by the defendant for the purpose of proving the defense,
except testimony by the defendant, may grant a continuance to enable the
Commonwealth to investigate such evidence, or may make such other order
as the interests of justice require.” Pa.R.Crim.P. 567(B)(1).



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scene of the crime. See Commonwealth v. Hawkins, 894 A.2d 716, 730

(Pa. 2006) (court found reasonable basis for failure to seek alibi instruction

where counsel explained that “in his twenty years of experience he had come

to the conclusion that where alibi testimony is weak, or is predicated on the

defendant’s testimony alone, calling attention to that testimony explicitly as

alibi evidence disserves the defendant’s interests”). Id. at 730. This claim of

ineffectiveness, therefore, is meritless.

      In his next issue, Varner asserts that counsel were ineffective for failing

to object to the improper admission of his prior bad acts, crimes, and mental

health issues, all of which were part of Shauf’s un-redacted video

interrogation.    At the PCRA hearing, Varner testified that he did not ask

counsel to object to the use of Shauf’s unredacted video and, in fact, at trial,

did not want counsel to object to its use because he did not want to have a

mistrial declared. N.T. PCRA Hearing, 4/3/18, at 80-81. Varner cannot now

claim counsel was ineffective when he specifically told counsel not to object

to the admission of such evidence.

      With regard to his eighth issue on appeal, Varner contends that counsel

was ineffective for failing to object to the seating of Juror #2. At the PCRA

hearing, counsel testified that Juror #2 had a prior relationship with Shauf

“because of a poor business dealing.” N.T. PCRA Hearing, 4/2/18, at 211. In

determining not to object to the juror being empaneled, counsel explained

that he had a full conversation with Varner that it was in Varner’s best interest

to keep her on the jury so the defense could convince “the jury to believe that

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Mr. Shauf was a liar.” Id. at 212. Because the strategy pursued by counsel

was reasonable, Varner’s ineffectiveness claim fails.          Spotz, supra;

Commonwealth v. Koehler, 36 A.3d 121 (Pa. 2012) (generally, where

matters of strategy and tactics are concerned, counsel’s assistance is deemed

constitutionally effective if he chose particular course that had some

reasonable basis designed to effectuate client’s interests).

      In his next issue, Varner asserts that counsel was ineffective for failing

to object to the prosecution’s use of inflammatory tactics and commentary

during closing arguments which, he claims, inflamed the passions and

prejudices of the jury. Specifically, Varner objects to the use of photographs

of the victim, while he was alive, during witness testimony and the

Commonwealth’s closing argument.          Varner contends that the photos

“remained on display in the presence of the jury . . . . [t]hroughout the

majority of the prosecution’s misconduct.” Appellant’s Brief, at 102.

      Our standard of review is well-settled.       “Decisions regarding the

admissibility of photographs are committed to the sound discretion of the trial

judge and will not be reversed absent a showing that the trial court abused its

discretion.” Commonwealth v. Hernandez, 590 A.2d 325, 329 (Pa. Super.

1991).   In Commonwealth v. Robinson, 864 A.2d 460 (Pa. 2004), our

Supreme Court stated:

      In relation to admissibility of victim photographs, the Supreme
      Court of Pennsylvania has promulgated the following test. A court
      must determine whether the photograph is inflammatory. If not,
      it may be admitted if it has relevance and can assist the jury’s
      understanding of the facts. If the photograph is inflammatory,

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      the trial court must decide whether or not the photographs are of
      such essential evidentiary value that their need clearly outweighs
      the likelihood of inflaming the minds and passions of the jurors.
      If an inflammatory photograph is merely cumulative of other
      evidence, it will not be deemed admissible.

Id. at 501 (citations omitted).

      Varner testified at the PCRA hearing that he did not know the

significance of displaying the victim’s photograph during trial.    N.T. PCRA

Hearing, 4/2/18, at 85-87.    In fact, Varner was not aware of a potential

prosecutorial misconduct claim based on the photos until he “read some of the

things [in several cases]” during a paralegal course he took in prison. Id. at

87.   Attorney Weisbrod testified at the PCRA hearing that he “couldn’t

formulate any prejudice which would be the basis [to object to the display of

the pictures].” Id. at 203-04. In addition, Attorney Palermo testified that

unless they are of a graphic nature, he would not normally object to pictures

of a victim being shown during trial because such an objection is normally

overruled. Id. at 173.

      Here, counsel acknowledged that the pictures were not graphic, they

were pictures of the victim while he was alive.         Thus, they were not

inflammatory.    Since the photographs were not inflammatory, they are

admissible if relevant and if they assisted the jury in understanding the facts

of the case.    Robinson, supra.     Instantly, the photographs were shown

during the district attorney’s direct examination of Augustin Marquez.

Specifically, the D.A. showed Marquez a photograph of the victim while alive

and asked him: (1) Did the victim have family that lived in the United States;


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and (2) Do you miss him? N.T. PCRA Hearing, 12/8/14, at 156. The other

time the photographs were displayed was during the Commonwealth’s closing

argument.   See id., 12/17/14, at 96-98.      The D.A. talked about how the

victim’s family had not spent the holidays with him since 2012 and how “[the

victim] won’t have another one, never open another gift . . . [n]ever give

another gift because of [Varner and Shauf], dumb and dumber.” Id. at 97.

      While the attorneys referenced the fact that the victim’s family had to

spend the past two holidays without him, the statement was not so highly

emotional that it prejudiced Varner. Cf. Commonwealth v. Story, 383 A.3d

155 (Pa. 1978) (where victim’s wife described photographs of her husband

with their child, defendant was prejudiced as prosecutor created sympathy for

victim and his family; prosecutor stated victim was married man, father, and

used term “family man,” told jury victim “is more than a body” and wanted

jury “to get some feel for this activity of his life.”).   Critically, here the

photographs of the victim were not sent out with the jury for deliberations and

the jury was also instructed that they “should keep deliberations free of

prejudice or bias.” N.T. 12/17/14, at 162; Hernandez, supra. Moreover,

the witness was not questioned extensively about the victim’s life. Balancing

the probativeness of the evidence against its prejudicial impact, we cannot

find that the limited viewing of the non-inflammatory pictures of the living

victim was erroneous.    Commonwealth v. Mehmeti, 462 A.2d 657 (Pa.




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1983).7 Counsel, therefore, were not ineffective for failing to object to the

prosecution’s use of the photographs.

       Finally, Varner contends that the PCRA court abused its discretion when

it determined that Varner failed to raise prosecutorial misconduct issues and

that those issues are now waived, especially “when the court assured Varner

and PCRA counsel that the prosecutorial misconduct issues raised by [Varner]

would be reviewed and considered within the PCRA court’s opinion, and the

PCRA court ultimately failed to issue any robust determination which would

enable effective appellate review.” Appellant’s Brief, at 9.

       Having independently reviewed the record, including the notes of

testimony from the PCRA hearings, we conclude that there is no merit to

Varner’s prosecutorial misconduct issues. See Commonwealth v. Tedford,

960 A.2d 1, 29 (Pa. 2008) (“In order to obtain relief for alleged prosecutorial

‘misconduct,’ a petitioner must first demonstrate that the prosecutor’s action

violated some statutorily or constitutionally protected right.”) (citation

omitted). Therefore, the court did not abuse its discretion in finding those

meritless issues waived.

       Order affirmed.

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7  Moreover, after reading the entirety of the Commonwealth’s closing
argument, we conclude that the prosecutor’s comments were not so highly
prejudicial as to prevent the jury from rendering a true verdict. See
Commonwealth v. Clancy, 192 A.3d44 (Pa. 2018) (prosecutor’s “language
must be such that its unavoidable effect would be to prejudice the jury,
forming in their minds fixed bias and hostility toward the defendant, so that
they could not weigh the evidence and render a true verdict”).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/06/2020




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