J-S02017-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    ARTHUR BURTON SCHIRMER                     :
                                               :   No. 2382 EDA 2017
                       Appellant

                   Appeal from the PCRA Order June 26, 2017
      In the Court of Common Pleas of Monroe County Criminal Division at
                        No(s): CP-45-CR-0002107-2010


BEFORE: BOWES, J., NICHOLS, J., and RANSOM, J.*

MEMORANDUM BY NICHOLS, J.:                                 FILED MAY 15, 2018

        Appellant Arthur Burton Schirmer appeals from the order denying his

timely first petition filed pursuant to the Post Conviction Relief Act (PCRA).1

Appellant claims that (1) his defense and appellate counsel provided

ineffective assistance of counsel, (2) the Commonwealth violated Brady v.

Maryland2 by failing to disclose data used to generate blood spatter

photographs, and (3) the trial court lacked subject matter jurisdiction.      We

affirm.



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S. §§ 9541-9546.

2   Brady v. Maryland, 373 U.S. 83 (1963).
J-S02017-18



       This matter involves the death of Appellant’s second wife, Betty Jean

Schirmer, who initially was thought to have died from a massive head injury

suffered in a motor vehicle accident on July 15, 2008. As the PCRA court

summarized the facts:

       Joseph Musante was the husband of [Appellant’s] assistant,
       Cynthia Musante. [In October of 2008], Joseph Musante broke
       into [Appellant’s] office at the United Methodist Church in
       Reeders, Pennsylvania[,] and committed suicide while seated at
       [Appellant’s] desk. Joseph Musante believed that [Appellant] and
       Cynthia Musante were engaged in an extramarital affair. The
       suicide and allegations of the affair[3] caused members of the
       Pocono Township Police Department to inquire further into
       [Appellant’s] background and the circumstances of the deaths of
       both of his wives.[4] The investigation into the [July 2008] motor
       vehicle accident which allegedly caused the death of Betty
       Schirmer was reopened.

       On December 16, 2008, members of the Pocono Township Police
       Department and the Pennsylvania State Police executed a number
       of search warrants on the church and parsonage of the United
       Methodist Church in Reeders, Pennsylvania. On that same date,
       [Appellant] voluntarily drove to the Pennsylvania State Police
       Barracks at Fern Ridge and met with members of the investigating
       team.

       On January 6, 2009[,] investigators executed a search warrant on
       [Appellant’s] person to collect a sample of his blood.

       The reopened investigation into the accident revealed a number
       of reasons to question the initial determination that the cause of
       death was accidental. There was a large quantity of blood inside
       the vehicle, a PT Cruiser. This blood was largely contained to the
____________________________________________


3 Joseph Musante’s sister, Rosemarie Cobb, wrote a letter to the United
Methodist Church after Musante’s death, requesting an investigation of
Appellant based on the suicide and alleged affair. See N.T., 1/8/13, at 29-
31.

4Appellant pled guilty to third-degree murder concerning the death of his first
wife, Jewel Schirmer, after the trial in the instant matter.

                                           -2-
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       front passenger side of the vehicle. There was minimal damage
       to the body of the car, especially considering the speed [Appellant]
       claimed to be traveling. There was testimony that the car was in
       fact drivable. Air bags did not deploy. [Appellant] was uninjured.

       Retired State Trooper Philip Barletto testified as an expert in crime
       scene reconstruction, crime scene processing, and blood spatter
       analysis. He opined that after reviewing photographs of the inside
       of the vehicle, he believed that the victim was bleeding prior to
       entering the vehicle. Analysis of the blood spatter inside the
       vehicle revealed that the points of impact inside the car were with
       an object that was already bloody. This was different from an
       uninjured person striking an object inside the vehicle, being cut
       and then beginning to bleed. A drop of blood inside the door
       caused investigators to believe that the door had been closed over
       the blood. The victim’s blood was on the seat underneath
       [Appellant], though he never left the vehicle as the victim was
       being removed. The victim was also sitting in her own blood
       where it would be expected that a void in the shape of her body
       would exist on the seat if the victim were injured while sitting in
       the vehicle.

       Luminol processing[5] inside the garage revealed what appeared
       to be a trail of blood from the back door of the garage to the
       passenger side of the vehicle. When confronted by [Sergeant
       Mark Holtsmaster] with this information[, Appellant] told [him]
       that his wife had bled on the garage floor when a stack of wood,
       about 17 inches high, fell over and cut the victim’s arm.[6]

       The initial speed reported by [Appellant]—approximately 45 miles
       per hour—was questioned by police. The minimal damage to the
       vehicle and the non-deployment of air bags caused the estimated
       speed to ultimately be set at between 15 and 25 miles per hour.
       Although good photos were not taken of the roadway, there did
       not appear to be skid marks or anything consistent with
       [Appellant’s] story of swerving to avoid hitting a deer.

____________________________________________


5Luminol processing is the technique used to detect and visualize the presence
of blood where it is not visible to the naked eye. See N.T., 1/9/13, at 95-96.

6 Appellant eventually admitted to Sergeant Holtsmaster that he lied about
the stack of wood falling and cutting the victim’s arm. See N.T., 1/16/13, at
18.

                                           -3-
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        There was also testimony regarding [Appellant’s] cold demeanor,
        noted by a passerby who reported the accident, family members
        at the hospital and by first responders. There was testimony
        regarding the state of [Appellant’s] marriage. There was also
        testimony about the circumstances surrounding the death of
        [Appellant’s] first wife[, admitted for limited purposes pursuant to
        Pa.R.E. 404(b). Appellant elected to testify at trial.].

                                          ***

        On January 23, 2013, a jury found [Appellant] guilty of [m]urder
        in the [f]irst [d]egree and [t]ampering with [e]vidence.[7]
        [Appellant] was sentenced on March 18, 2013 to life in prison
        without the possibility of parole. [The trial court] also sentenced
        [Appellant] to three (3) to twenty-four (24) months in prison for
        the [t]ampering with [e]vidence conviction.

PCRA Ct. Op., 6/26/17, at 2-5 (citations and footnotes omitted).

        The trial court denied Appellant’s timely-filed post-sentence motions

seeking judgment of acquittal, or, alternatively, a new trial.        Thereafter,

Appellant filed a direct appeal. This Court affirmed Appellant’s judgment of

sentence on December 23, 2014. See Commonwealth v. Schirmer, 2644

EDA 2013 (Pa. Super. filed Dec. 23, 2014) (unpublished mem.).                  The

Pennsylvania Supreme Court denied Appellant’s petition for allowance of

appeal on September 30, 2015. See Commonwealth v. Schirmer, 125 A.3d

1201 (Pa. 2015).

        Appellant filed the instant first PCRA petition pro se, which was docketed

on September 26, 2016.          The Monroe County Public Defender’s office was

appointed to represent Appellant.          PCRA counsel did not file an amended
____________________________________________


7   18 Pa.C.S. §§ 2501(a) and 4910(1), respectively.


                                           -4-
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petition. Following a hearing on the PCRA petition on March 6, 2017, and the

filing of related briefs, the PCRA court denied Appellant’s PCRA petition on

June 26, 2017.

      Appellant filed a timely notice of appeal and court-ordered concise

statement of errors complained of on appeal under Pa.R.A.P. 1925(b). The

PCRA court referred to its opinion filed when denying the PCRA petition in lieu

of preparing a new responsive opinion.

      Appellant raises the following questions for our review:

      1. Was [defense] counsel ineffective for failing to object to
         prosecutorial misconduct, overreaching and bad faith?

      2. Did the conduct of the [Commonwealth], shown through
         opening    and    closing    statements,  presentation       and
         characterization of the evidence deny [Appellant] a fair trial?

      3. Was appellate counsel ineffective for failing to reproduce a
         complete record on appeal, including the photographs and
         letter written by a relative of the suicide victim, thus preventing
         effective appellate review of [Appellant’s] claim of undue
         prejudice from such evidence?

      4. Did the cumulative effect of counsel’s errors deny [Appellant]
         effective representation of counsel?

      5. Did the Commonwealth violate Brady v. Maryland by failing
         to provide the underlying data used to compile blood spatter
         photos introduced by the Commonwealth’s expert at trial, thus
         denying effective cross-examination and proper rebuttal?

      6. In the event a new trial is awarded, would not the trial [be]
         barred on the grounds of double jeopardy?




                                      -5-
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        7. Did the court lack subject matter jurisdiction due to material
           defects in the charging statutes and information as filed?[8]

Appellant’s Brief at 4 (full capitalization omitted).

        In his first two issues, Appellant raises the ineffectiveness of defense

and appellate counsel. Appellant asserts that defense counsel should have

objected to the following: (1) comments the prosecutor made during opening

statements     and     closing   argument,       (2)   the   Commonwealth’s   cross-

examination of Appellant about masturbation, and (3) the direct examination

of Sergeant Mark Holtsmaster that allegedly allowed him to testify to an

opinion regarding Appellant’s truthfulness.9            Appellant also asserts that

appellate counsel was ineffective for failing to include certain documents in

the certified record on appeal.

        The applicable standards of review regarding the dismissal of a PCRA

petition and ineffectiveness claims are as follows:

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

                                          ***

        It is well-established that counsel is presumed to have provided
        effective representation unless the PCRA petitioner pleads and
        proves all of the following: (1) the underlying legal claim is of
        arguable merit; (2) counsel’s action or inaction lacked any
        objectively reasonable basis designed to effectuate his client’s
____________________________________________


8 We note that Appellant discusses the first four questions presented as one
issue, in contravention of Pa.R.A.P. 2119(a). Additionally, we have reordered
the questions presented for ease of disposition.

9   We have reordered the discussion of these issues for ease of disposition.

                                           -6-
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      interest; and (3) prejudice, to the effect that there was a
      reasonable probability of a different outcome if not for counsel’s
      error.

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

omitted).   Additionally, “no number of failed ineffectiveness claims may

collectively warrant relief if they fail to do so individually.” Commonwealth

v. Reid, 99 A.3d 470, 520 (Pa. 2014) (citation omitted).

      Appellant first argues that defense counsel should have objected to

remarks made by the Commonwealth during opening statements and closing

argument.    During opening statements, the Commonwealth indicated that

“there’s going to be a lot more detail, and I know this isn’t going to be a

pleasant thing for you all to sit and listen to,” and then described the case as

“a journey into the darkest inner recesses of the human soul.” N.T., 1/8/13,

at 61. Appellant argues that defense counsel should have objected to these

statements because the Commonwealth attempted “to paint [Appellant] in the

darkest persona as possible” and incite the jurors based on their religious

beliefs, and that “[his] soul was not on trial.” Appellant’s Brief at 14. During

closing arguments, the Commonwealth referred to Appellant as the “sinister

minister” several times.    Id. at 19; see N.T., 1/22/13, at 76, 95, 110.

Appellant argues that the “sinister minister” phrase exceeded the proper

boundaries of closing statements. Appellant’s Brief at 19.

      When considering claims that a prosecutor has committed misconduct

in his or her comments to the jury, we note the following:

      It is within the discretion of the trial court to determine whether a
      defendant has been prejudiced by misconduct or impropriety to

                                      -7-
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      the extent that a mistrial is warranted. Comments by a prosecutor
      do not constitute reversible error unless the unavoidable effect of
      such comments would be to prejudice the jury, forming in their
      minds a fixed bias and hostility toward the defendant such that
      they could not weigh the evidence objectively and render a true
      verdict.

Commonwealth v. Bronshtein, 691 A.2d 907, 917 (Pa. 1997) (citations

omitted).

      An opening statement must contain “fair deductions from the evidence

which the prosecutor expects will be presented at trial.” Id. at 918 (citations

omitted). As to closing arguments, they

      must be considered in the context of the entire . . . summation
      and allegations of prosecutorial misconduct will not warrant the
      grant of a new trial unless they are such as to arouse the jury’s
      emotions to such an extent that it is impossible for the jury to
      reach a verdict based on relevant evidence.

Id. (citation omitted). Prosecutors may employ reasonable “oratorical flair”

in their statements to the jury. Id. Additionally, where the trial court clearly

instructs the jury that the prosecutor’s comments are not evidence, the jury

is presumed to follow the instruction. Id.

      Here, the phrase the Commonwealth used regarding the “inner recesses

of the human soul” must be taken in context with the Commonwealth’s

phrases immediately beforehand describing the case as a whole.              The

Commonwealth was not referring to Appellant or Appellant’s soul in particular,

but rather the fact that the case involved a murder and a suicide, which would

later be substantiated by the evidence adduced during the trial. Additionally,

the comment did not serve to inflame the jury or divert the jurors’ attention



                                     -8-
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from the issues at hand.      Accordingly, we discern no error on the part of

counsel in not objecting to this comment. Id.

      As to the use of the phrase “sinister minister” during closing arguments,

we agree with the PCRA court that the phrase was permissible oratorical flair.

Id. Nor can it be said that these remarks prejudiced Appellant such that the

jury was unable to render an impartial verdict. See id. Moreover, the court

instructed the jury that the arguments of counsel are not evidence, and the

jury is presumed to have followed that instruction. See id. Accordingly, no

relief is due on the basis of defense counsel failing to object to the use of the

“sinister minister” phrase.

      In his next claim of defense counsel’s ineffectiveness, Appellant asserts

that counsel should have objected to the Commonwealth’s cross-examination

of   Appellant   regarding     masturbation.    Appellant    claims   that   the

Commonwealth’s “delving into [Appellant] gratifying himself, even to the point

of asking which hand he masturbates with, not only was irrelevant, but had

been consciously chosen by the [Commonwealth] to be embarrassing and

prejudicial to the defendant.” Appellant’s Brief at 15-16.

      Appellant’s claim focuses on the following exchange:

      [Commonwealth]: . . . And you told Cindy [Musante] that you
      weren’t getting any sex from [your wife]?

      [Appellant]: I did tell Cindy that.

      Q: And you were taking care of yourself?

      A: Yes, sir.

      Q: Your right hand?

                                      -9-
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     A: Yes, sir.

N.T., 1/18/13, at 116.

     As the PCRA court noted, when viewed in the

     context of the entire case[, including closing argument,] it is clear
     that defense counsel was not ineffective for failing to object. The
     Commonwealth’s entire case was built around the motive of a
     deteriorating and sexless relationship driving [Appellant] to
     infidelity and eventually murder[:]

        And one of the exhibits you’ll see is his appointment book
        for that year, and you’ll see that Anne Marie T. Moe,
        however it’s written in there, comes up quite frequently with
        appointments, and many of those appointments are later in
        the evening, 7:30, 8:30, that sort of thing. So what she’s
        telling you is consistent with what the other women have
        seen and did. It’s consistent with what the emails reflect,
        this [Appellant’s] state of mind, the hypocrisy, the pretense
        that he admitted to, that sort of thing. But as far as the
        motive goes, that’s only the tip of the iceberg.

     N.T., 1/22/13, at 110.

                                    ***

     As [Appellant’s] relationships and lack of intimacy was a corner
     stone of the Commonwealth[’]s case, its questioning was not
     improper and thus [d]efense counsel cannot be found ineffective
     for failing to object. In fact, the Commonwealth needed evidence
     of [Appellant’s] preferred hand for their summation:

        Bear in mind also that the [Appellant] is right-handed.
        Remember he admitted that.

        So after he gets [his wife] in the car, she’s out. He reaches
        in with his left hand, and he moves the mirror out of the
        way leaving those bloody marks consistent with finger
        marks there. And then with his right hand with the murder
        weapon, with that metal object, he strikes and makes that
        little crack because there’s blood there[.]

     N.T., 1/22/13, at 130.



                                    - 10 -
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PCRA Ct. Op., 6/26/17, at 16-17.

         Following our review, we agree with the PCRA court that defense counsel

was not ineffective for not objecting to the line of questioning regarding

masturbation. See Franklin, 990 A.2d at 797. As the PCRA court noted, the

lack of intimacy between Appellant and his second wife was relevant to show

Appellant’s motive for the killing. Similarly, the question regarding Appellant’s

favored hand bore at least some relevant purpose under the circumstances of

this case. Therefore, we discern no abuse of discretion in the PCRA court’s

determination that Appellant was not entitled to relief on this claim.

         Next, Appellant argues that defense counsel should have objected to the

questioning of Sergeant Mark Holtsmaster. Appellant asserts that “[d]espite

being instructed by the trial judge to not ask questions in a manner that will

elicit   opinions   about   [Appellant’s]   truthfulness[,]   the   Commonwealth

continued to ask questions eliciting Sergeant Holtsmaster’s opinion about

[Appellant’s] truthfulness.” Appellant’s Brief at 18. In particular, Appellant

asserts that Sergeant Holtsmaster’s characterization of Appellant’s statements

to him during the investigation as a “supposed” story “went unchallenged by

his counsel, who should have made continuous objections to this manner of

leading the witness.”       Id. at 16.      In sum, Appellant asserts that the

Commonwealth’s and Sergeant Holtsmaster’s repeated use of the term

“supposed” interjected the sergeant’s personal opinion on Appellant’s

credibility. Id.




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     Appellant’s claim involves the following exchanges during the direct

examination of Sergeant Holtsmaster:

     [Commonwealth]: And did you get the basic demographic,
     biographical information from [Appellant]?

     [Sergeant Holtsmaster]: That’s correct. Once I gather that
     information, then I’ll start talking about the information that I
     want to talk about. We started first with his relationship with the
     victim in this case. I asked him how his relationship was. He
     stated that she was his best friend. I asked him to rate the
     relationship.

     Q: I’m sorry. What did you say, to what the relationship?

     A: To rate it.

     Q: Rate it?

     A: Rate the relationship on a scale of 1 to 10, and he rated the
     relationship at a 10. To me, this first red flag that I saw during
     this interview was -- I find that people if they’re being truthful will
     convey information. They’ll tell the details. They’ll give you the
     details --

     [Defense Counsel]: Your Honor, may we approach?

     THE COURT: Yes.

     (The following discussion was held on the record at sidebar.)

     [Defense Counsel]: Your Honor, frankly, I believe it’s improper
     for him to be at this point referring to, I guess, an opinion on
     somebody else’s truthfulness, the [Appellant’s] truthfulness, while
     offering an opinion as to that at the trial. That’s what he’s doing.
     That’s where he’s headed. I thought he would have been
     instructed otherwise not to do so.

     [Commonwealth]: . . . [T]he witness made no reference to
     whether his personal opinion of truthfulness was conveyed at all
     to the jury. In other words, I don’t think he was telling the truth.
     He’s conveying the methodology of why he starts questioning
     along those lines, those types of questions. And if he in his mind
     during the interview has a red flag, then the course of his



                                     - 12 -
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     questioning will be adjusted accordingly. He’s just explaining that
     process.

     THE COURT: I think the objection raised was to: I find that when
     people do this they’re not telling the truth.

     [Defense Counsel]: He can’t say that. I ask that they be
     instructed to ignore that.

     THE COURT: Well, I’m just going to tell you to ask him questions
     that are not going to elicit an opinion on the [Appellant’s]
     truthfulness.

     [Commonwealth]: Okay.

     (The discussion at sidebar concluded.)

     BY [Commonwealth]:

     Q: Sergeant, when I question you, I don’t want you to give us
     your opinion as to whether or not the [Appellant] was truthful or
     not, okay, just the actual substance of the interview.

                                    ***

     Q: After this supposed fall of the wood pile, you said the
     [Appellant] claimed the victim was injured on her what forearm,
     right or left?

     A: On her left forearm, and this supposedly occurred -- I
     questioned him further on that because this injury was supposed
     to occur in the summer. I asked him, “Was it visible? Did she
     wear short sleeve shirts? Was it covered by a bandage? Did she
     require any type of medical treatment? Did she have to go to the
     hospital?” He stated that she did not have to go to the hospital
     but it was bandaged and it was visible.

                                    ***

     Q: What happened next?

     A: Next I confronted him about his story, that I did not believe it.
     It didn’t make sense to me. How could a wood pile 3 high, 10
     across cause this injury? It just wasn’t possible. It just wasn't
     physically possible. I told him it didn’t make sense, and the
     [Appellant] agreed with me that it didn’t make sense to him either.

     Q: What happened next, sir?


                                    - 13 -
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      A: After that -- basically, how it started into that, the [Appellant],
      number one, he admitted that he lied about the injury. Go ahead.
      I’m sorry.

N.T., 1/16/13, at 8-10, 16-18.

      Our review of the above-quoted exchanges reveals that Sergeant

Holtsmaster characterized his interview with Appellant in the context of

explaining his questioning process and ultimately to explain that this process

led to Appellant admitting he had lied about his wife being injured by the

woodpile. As the PCRA court noted, that portion of testimony “was a factual

recitation of the interaction between the two.” PCRA Ct. Op., 6/26/17, at 14.

Accordingly, this issue lacks merit and we discern no error on the part of

counsel in failing to object to the use of the word “supposed.” Franklin, 990

A.2d at 797.

      Appellant also asserts that appellate counsel was ineffective for failing

to ensure that certain items were part of the certified record on appeal.

Appellant’s Brief at 7, 20. Specifically, Appellant claims that appellate counsel

failed “to complete the record to include highly prejudicial documentary

evidence in the form of pictures and a letter written by the sister of [the]

suicide victim.” Id. at 7.

      We note that this argument is not properly developed, as Appellant does

not indicate precisely how he was prejudiced or how the outcome of his appeal

would have been different. Indeed, Appellant’s entire argument is that

      appellate counsel was clearly ineffective for failing to include
      crucial parts of the record to allow [this] Court to make a proper
      determination and evaluation of the prejudicial effect of the
      evidence introduced. At a minimum, [Appellant’s] direct appeal

                                     - 14 -
J-S02017-18


       rights should be re-instated with a completed record submitted.
       As counsel was ineffective both at trial and on appeal[,] the overall
       cumulative result of counsel’s performance denied [Appellant]
       effective assistance of counsel and thus denied him due process.

Id. at 20.

       Appellant has not referred to or specified the particular photos or

contents of the letter which he believes were required to complete a full review

in his direct appeal. Thus, the general, conclusory assertion that the failure

to include these documents in the certified record does not warrant relief, as

Appellant has not established that the outcome of his direct appeal would have

been different.10 See Franklin, 990 A.2d at 797.


____________________________________________


10 In any event, we note that Appellant raised two separate issues regarding
evidence of Musante’s suicide in his direct appeal. See Schirmer, 2644 EDA
2013, at *6-8. First, Appellant claimed that the admission of any evidence of
Joseph Musante’s suicide was unduly prejudicial. Id. at *6. Second, assuming
that evidence of the suicide was admissible, Appellant appeared to suggest
that the inclusion of the letter and photographs would have warranted a new
trial because they were cumulative and particularly prejudicial. Id. at *8 n.5.

This Court, in Appellant’s direct appeal, affirmed the trial court’s decision to
allow the Commonwealth to admit evidence of Musante’s suicide. Id. at *8.
As stated above, Appellant has failed to provide any argument that the
inclusion of the letter and photographs would have changed our decision with
respect to the admission of evidence of Musante’s suicide generally.

With respect to the admission of the letter and admission of the photographs
taken at the scene of Musante’s suicide, this Court found Appellant’s claim
waived based on appellate counsel’s failure to include the letter and
photographs in the certified record. Id. at *8 n.5. Our review, however,
reveals that defense counsel did not object to this evidence at the first
opportunity to do so at trial. See N.T., 1/8/13, at 29-31; N.T., 1/11/13, at
48. Thus, Appellant’s claims regarding the prejudicial effect of the materials
specifically were waived for the purpose of direct appeal regardless of their
inclusion in the certified record.


                                          - 15 -
J-S02017-18



       Appellant next claims that the cumulative effect of the ineffectiveness

of defense and appellate counsel denied him due process. Appellant’s Brief at

20. However, since none of his claims of ineffectiveness have merit, Appellant

is due no relief on a cumulative ineffectiveness claim. See Reid, 99 A.3d at

520.

       Appellant next asserts that the overall conduct of the Commonwealth

warrants a new trial. However, next to no argument is devoted to this issue.

Rather, Appellant simply states that “[n]otwithstanding the ineffective

performance of [defense] counsel, the conduct of the [Commonwealth] alone[

indicates that Appellant] should be awarded a new trial, free of the unfair bias,

irrelevant and prejudicial conduct inflicted upon [him] personally.” Appellant’s

Brief at 20. Accordingly, since this issue involves only a conclusory statement

and no citation to pertinent authority, we find it to be waived. See Pa.R.A.P.

2119(a).

       Even assuming Appellant is referring to the remarks the Commonwealth

made during opening and closing statements and various lines of questioning

that Appellant has argued were objectionable, we have already found that the

prosecutor did not engage in misconduct and that defense counsel was not

ineffective for failing to object to these portions of the proceedings. Thus,

Appellant is due no relief on this issue.

       In his next issue, Appellant asserts that the Commonwealth committed

a Brady violation by failing to exchange data utilized by the Commonwealth’s

blood splatter expert. In particular, Appellant claims that the Commonwealth

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J-S02017-18



withheld files related to luminol processing that were created during the

generation of a Commonwealth exhibit. Appellant alleges that such files are

partially processed “component parts” of layered images.11 Appellant’s Brief

at 24. Appellant asserts that he is “entitled to have an independent expert

review    the    [partially    processed       Photoshop]   files   utilized   by   the

Commonwealth’s expert, and not be compelled to accept their conclusions.”

Id. at 22 (citing McWilliams v. Dunn, 137 S. Ct. 1790 (2017)).

       By way of background to this claim, the following exchange occurred

during trial at sidebar:

       [Defense Counsel]: Your Honor, the only objection I have would
       be to the exhibit identified as 16C.

       THE COURT: Can I see that? Thank you.

       [Defense Counsel]: On 16C, there are photos, JRC 5314(3) copy,
       JRC 5320(8)A, JRC 5378A copy, JRC 5378AB, and JRC 5370A.
       These are photos that actually have been overlaid on top of each
       other. They have been Photoshopped. I’ve asked for originals of
       the processing. I know the Commonwealth claimed that they’re
       saying they are work product and I wouldn’t be entitled to them,
       but they just haven’t been disclosed.

       [Commonwealth]: That’s hogwash, Judge. Also, I’ll tell you why.
       I’ve got an email after voir dire, after jury selection, where
       Defense counsel asked for raw data of some kind of format that I
       never heard that before.

       [Defense Counsel]: I asked for PSD files. I was –

       THE COURT: Hang on for a second. Let’s take one at a time. Tell
       me your position.


____________________________________________


11Such data is allegedly in the form of Photoshop files. Photoshop is a photo
editing software. See N.T., 1/9/13, at 99.

                                          - 17 -
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     [Commonwealth]: So I got this email requesting things I never
     heard of before, raw data, of that nature, and it was asked for
     with respect to luminol photographs. The Defense had been given
     the photos that are in front of you, Your Honor, and more depicting
     various luminol enhancements for over a year, if not, closer to
     two, as part of discovery. The request made at this hour was
     something I couldn’t even comply with, finding raw data for that.
     I bounced it off the troopers. And as I understand it, you put the
     camera on a tripod. You take a picture in the light of the area.
     You apply luminol and lower the light so that it’s dark. And if it
     luminesces, you take a picture in the dark. And those pictures are
     taken from identical locations because they were on a stationary
     tripod, and the photos were overlaid, and this trooper will testify
     to his expertise and enhancement procedures.

     THE COURT: So could you tell me that then -- in other words, say
     this photo then was taken in the light without the luminol and then
     the photo that’s objected to is taken.

     [Defense Counsel]: It’s not a photo.

     [Commonwealth]: Yes, it’s a photo with the luminol in the dark.

     [Defense Counsel]: No, it is not.

     THE COURT: Wait.

     [Commonwealth]: The dark photograph is overlaid with the light
     one so you can get a sense of exactly where in the room it is, and
     that’s a procedure that’s commonly employed by experts in the
     field of luminol technique, and the trooper will testify to all of that
     as part of my direct. And if there are issues with that, they would
     be maybe fodder for cross-examination but not the admissibility
     of the exhibit.

     THE COURT: As I understand, the objection is that there’s some
     kind of other photographs or --

     [Defense Counsel]: These don’t fully and accurately depict the
     luminol, Your Honor. There actually are no photos before Your
     Honor of the luminol. The luminol photos are in the dark. They
     luminesce, and then they lay one on top of this, and that is that
     photo. That’s what he’s testifying to in front of a jury. He should
     put in the luminol photo in the dark, whatever it looks like, and
     then show us how it’s overlaid. If he’s going to do it this way, he
     should show you the procedure.


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     THE COURT: My understanding is that there’s going to be
     testimony to the process that you’re trained on and where this
     happens.

     [Commonwealth]: Yes, ma’am.

     THE COURT: My understanding of your objection is there was
     something beyond what is shown here – he’s not going to testify
     that this is a photo of the luminol. He’s going to testify that it’s
     an overlay.

     [Commonwealth]: It’s a composite of two photos and how he took
     them and the techniques employed and that those are techniques
     used customarily by witnesses in his field.

     THE COURT: And are you saying that you have requested certain
     of these photos that were not provided to you?

     [Defense Counsel]: I had received photos, and I believe at this
     point that I may have the underlying photo.

     THE COURT: Okay.

     [Defense Counsel]: It’s a luminol photo. What I don’t have are the
     Photoshop photos. There are PSD files that would have gone into
     the formation of the overlay that tell you how the overlay was
     made, whether any adjustments have been made to it. That’s
     what I would be asking for in that request. To the extent, Your
     Honor, that these photos do not fairly and accurately depict what
     someone in that garage saw, I object. And I also object it may
     prejudice the jury to see evidence that never existed. That’s my
     objection. I’ll accept the ruling.

     [Commonwealth]: Judge, if you recall your scheduling Order,
     quite sometime ago, motions in limine, 403 type of grounds, they
     are way overdue to begin with. I think counsel is just fishing for
     an issue that doesn’t exist. All the issues he’s raising so far he
     can raise during the cross-examination of this witness. That would
     be appropriate to the weight of the evidence.

     THE COURT: Your objection is noted for the record.

     [Defense Counsel]: Very good.

     THE COURT: It was overruled, and the witness may use these
     photographs and proceed with the explanation of what they are,
     and you may cross-examine him on it.


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      [Defense Counsel]: Your Honor, I would also ask that this witness
      not be excused at the end and be subject to be recalled by the
      Defendant on Defendant’s –

      THE COURT: Well, let’s see how direct and cross go on this, okay.

      (The discussion at sidebar concluded.)

N.T., 1/9/13, at 71-76.

      “To establish a Brady violation, appellant must demonstrate:           the

evidence at issue was favorable to him, because it was either exculpatory or

could have been used for impeachment; the prosecution either willfully or

inadvertently     suppressed   the    evidence;     and   prejudice    ensued.”

Commonwealth v. Walker, 36 A.3d 1, 9 (Pa. 2011). “The allegation that

the evidence at issue was exculpatory cannot be based on a mere assertion.”

Commonwealth v. Free, 902 A.2d 565, 571 (Pa. Super. 2006). Additionally,

in   the   PCRA     context,   an    appellant    “must   establish   that   the

alleged Brady violation ‘so undermined the truth-determining process that no

reliable adjudication of guilt or innocence could have taken place.’”

Commonwealth v. Haskins, 60 A.3d 538, 547 (Pa. Super. 2012) (quoting

42 Pa.C.S. § 9543(a)(2)(i)). However, “an issue is waived if the petitioner

could have raised it but failed to do so before trial, at trial, during unitary

review, on appeal or in a prior state postconviction proceeding.” 42 Pa.C.S. §

9544(b).

      Preliminarily, we note that Appellant has been aware of the alleged

Brady material, i.e. the Photoshop files, since the time of trial, at the latest.

Accordingly, Appellant’s Brady claim is waived because it could have been



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raised in an earlier proceeding, including Appellant’s direct appeal.           See

Commonwealth v. Treiber, 121 A.3d 435, 461 (Pa. 2015) (citations

omitted); see also 42 Pa.C.S. §§ 9544(b); 9545(b)(2).12

        Even if we were to consider Appellant’s Brady claim on the merits, it

would fail. Appellant has cited case law indicating the requirement that the

evidence at issue be exculpatory or be capable of being used for impeachment

purposes. However, at no point does he argue, let alone demonstrate, that

the partially processed photographs he seeks would fit either category.

Instead, Appellant baldly asserts that he has a right to have an expert review

the data at issue. This amounts to “even less than an assertion” that the

evidence at issue was exculpatory.             Free, 902 A.2d at 571.   Additionally,

Appellant has neither argued nor established that the alleged Brady violation

has undermined the truth-determining process such that no reliable
____________________________________________


12   As the PCRA court noted, Appellant’s

        claim borders on being a previously litigated issue[. Appellant]
        has recategorized his argument as a Brady violation in order to
        get a second chance at litigating the claim. On direct appeal[,
        Appellant] raised the following issue for review:        “Did the
        introduction of altered digital images of [luminol] glowing on a
        garage floor where the images never existed in real life and only
        tended to confuse and mislead the jury violate Pa.R.E. 403 and
        Pa.R.E. 901 in this close circumstantial evidence case.” The
        Superior Court denied [Appellant’s] claim[,] finding it lacked
        merit. In fact[,] it ruled that showing the unlayered photos and
        not the overlays would be potentially more confusing and
        misleading. Nevertheless, as [Appellant] is unable to establish
        any of the three prongs of the Brady test, his claim is DENIED.

PCRA Ct. Op., 6/26/17, at 24 (citations omitted).


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adjudication of guilt or innocence could have taken place. See Haskins, 60

A.3d at 547.

      Moreover, Appellant’s reliance on McWilliams is inapposite and

unavailing. McWilliams deals with the appointment of an expert witness in

the context of an indigent defendant needing assistance “to prepare an

effective defense based on his mental condition, when his sanity at the

time of the offense is seriously in question.” See McWilliams, 137 S. Ct. at

1793 (emphasis in original) (quoting Ake v. Oklahoma, 470 U.S. 68, 70

(1985)). It simply has no bearing on the type of case instantly before us.

Accordingly, Appellant is due no relief.

      Next, Appellant asserts that the Commonwealth “engaged in deliberate

prosecutorial misconduct[,] over-reaching in bad faith,” which bars a new trial

on the grounds of double jeopardy. Appellant’s Brief at 26. Rather than state

an argument for this issue, Appellant merely refers to his first and fifth

argument sections:

      As described above at [Appellant’s] first argument concerning trial
      counsel’s ineffectiveness and ensuing prejudicing in failing to
      object or renew objections to the Commonwealth’s continued
      prosecutorial misconduct throughout trial, the prosecution
      intentionally prejudiced [Appellant] to the jury to the point of
      denying him a fair trial. Moreover, the Commonwealth withheld
      and suppressed exculpatory evidence as set forth in the argument
      at Issue 5.

Id. at 27.

      Instantly, we have already found that trial counsel was not ineffective

for failing to object to these portions of the proceedings. By the same token,

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the Commonwealth did not “over-reach” in its use of oratorical flair and its

cross-examination tactics. Similarly, the Commonwealth did not commit a

Brady violation. Because Appellant is due no relief on these discrete claims,

we need not consider whether double jeopardy principles would have barred

retrial.

       Finally, Appellant argues that the trial court lacked subject matter

jurisdiction over his case due to material defects in the charging statutes and

information as filed.    Appellant’s Brief at 29.    Appellant asserts that a

conviction of first-degree murder requires proof of “malice,” which does not

appear in the record until after the defense rested, when the prosecution used

the term in closing argument. Id. Appellant “submits he was never charged

with malice nor notified to defend against it. Furthermore, the element of

malice which is required to be proven beyond a reasonable doubt in order to

convict a defendant of any degree of murder was never put to adversarial

testing by trial counsel.”   Id. at 30 (citing U.S. v. Cronic, 466 U.S. 648

(1984)).

       As the trial court aptly noted, Appellant’s attempt to challenge an

alleged defect in the information under the guise of subject matter jurisdiction

warrants no relief.

       Subject matter jurisdiction relates to the competency of the court
       to hear and decide the type of controversy presented. McGinley
       v. Scott, 164 A.2d 424 (Pa. 1960). Jurisdiction is a matter of
       substantive law. Id. at 428; 42 Pa.C.S. § 931(a) (defining the
       unlimited original jurisdiction of the courts of common pleas).
       [Appellant] was charged with violations pursuant to the Crimes
       Code. Controversies arising out of violations of the Crimes Code

                                     - 23 -
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       are entrusted to the original jurisdiction of the courts of common
       pleas for resolution. See 18 Pa.C.S. § 102. Every jurist within
       that tier of the unified judicial system is competent to hear and
       decide a matter arising out of the Crimes Code. Pa. Const. Art. 5
       § 5 (establishing the jurisdiction of the courts of common pleas
       within the unified judicial system).

PCRA Ct. Op., 6/26/17, at 25. As such, Appellant’s argument regarding lack

of subject matter jurisdiction is without merit.13

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/15/18




____________________________________________


13 Upon review, the charging documents appear to be without defect, as they
adequately imply malice in relation to the murder charge against Appellant.
See Commonwealth v. Chamberlain, 30 A.3d 381, 423 (Pa. 2011) (holding
that a claim that a criminal information in a murder case was defective for
failure to include the word “malice” was without merit where “the assertions
contained [in the charging documents] adequately implied malice”).

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