J-S47014-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DOUGLAS PRESTON SMITH                      :
                                               :
                       Appellant               :   No. 1335 MDA 2018

       Appeal from the Judgment of Sentence Entered December 17, 2013
    In the Court of Common Pleas of Cumberland County Criminal Division at
                        No(s): CP-21-CR-0002675-2010


BEFORE: DUBOW, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.:                              FILED OCTOBER 23, 2019

        Appellant, Douglas Preston Smith, appeals from the December 17, 2013

Judgment of Sentence entered in the Cumberland County Court of Common

Pleas following his conviction of Third-Degree Murder.1 After careful review,

we affirm.

        The relevant facts and procedural history, as gleaned from the record,

including the trial court’s January 14 2016, and February 4, 2019 Opinions,

are as follows. On December 4, 2001, a man found the decomposing body of

Tanya Myers (the “victim”) in a wooded area off Pennsylvania Route 34 in

South Middleton Township, Cumberland County. An autopsy revealed that the

victim had been beaten and strangled, and the coroner determined that the


____________________________________________


1   18 Pa.C.S. § 2502(c).
J-S47014-19



victim’s cause of death was blunt force trauma to the head.             During the

autopsy, the coroner removed a “significant quantity of semen” from the

victim’s throat.2

        A forensic pathologist testified that the seminal fluid was likely deposited

after the victim had died. Other Commonwealth experts, including analysts

from the Pennsylvania State Police lab, concluded that, because the semen

had been discovered in the victim’s throat and because of the condition of the

sperm cells in it, the seminal fluid had been deposited around the time of the

victim’s death.

        In May 2005, after extensive investigation, experts matched the DNA

from the seminal fluid found in the victim’s throat to Appellant using the

combined DNA index system (“CODIS”).             Consequently, police obtained a

search warrant for more DNA from Appellant. Clinicians analyzed Appellant’s

blood, compared its components to the seminal fluid found in the victim’s

throat, and definitively confirmed that the fluid was Appellant’s.              The

Commonwealth arrested Appellant on August 30, 2010.

        Around the time of the victim’s disappearance, Appellant had described

to a friend, Arthur Herbert, how he had choked and beat the victim, explaining

that they had “had a scuffle” and that he had “choked her out.” 3 Appellant

____________________________________________


2   N.T., 10/28/13, at 83.

3   N.T., 10/29/13, at 88.




                                           -2-
J-S47014-19



also told another friend, Melissa Milberry, that “something had happened” to

the victim.4

        On October 13, 2013, a jury convicted Appellant of the victim’s third-

degree murder. On December 17, 2013, the trial court sentenced Appellant

to 20 to 40 years’ incarceration.

        Appellant filed a timely Post-Sentence Motion, which the trial court

denied.    Appellant timely appealed.5         During the pendency of Appellant’s

appeal, on October 2, 2016, he filed a Post-Sentence Motion pursuant to

Pa.R.Crim.P. 720(C)6 with this Court requesting remand of the case to the trial

court for an evidentiary hearing on after-discovered evidence.          Appellant

alleged that he had identified a potential alibi witness—Rajee Dancy7—a


____________________________________________


4   N.T., 10/29/13, at 100.

5 In his first direct appeal, Appellant challenged the sufficiency of the evidence
in support of his conviction and the court’s Order denying his Motion to Modify
Sentence.

6 Pa.R.Crim.P. 720(C) provides that “[a] post-sentence motion for a new trial
on the ground of after-discovered evidence must be filed in writing promptly
after such discovery.” Pa.R.Crim.P. 720(C). The comment to Rule 720 states
that “after-discovered evidence discovered during the direct appeal process
must be raised promptly during the direct appeal process, and should include
a request for remand to the trial judge[.]” Pa.R.Crim.P. 720, Comment.

7 Appellant affixed to his Motion for Remand an affidavit from Mr. Dancy in
which Mr. Dancy attested that Appellant was always present at the halfway
house in November and December 2001, and, thus, could not have murdered
the victim.




                                           -3-
J-S47014-19



resident at the same halfway house8 as Appellant at the time of the victim’s

murder.     On December 16, 2016, this Court granted Appellant’s Motion,

remanded this matter with instructions, and relinquished jurisdiction.     See

Commonwealth v. Smith, No. 1977 MDA 2015 (Pa. Super. filed Dec. 16,

2016) (unpublished memorandum).

        Upon remand, the trial court scheduled the hearing on Appellant’s after-

discovered evidence claim for March 3, 2017.9          On February 23, 2017,

Appellant requested a continuance of the hearing, which the trial court granted

until May 8, 2017.

        On May 2, 2017, six days before the scheduled hearing, Appellant filed

a Petition to Request Unitary Review on Direct Appeal.          In his Petition,

Appellant explained that, in preparing for the hearing on his after-discovered

evidence claim, his counsel discovered numerous meritorious ineffective

assistance of counsel claims. Petition, 5/2/17, at ¶ 10. Appellant argued that

logic and judicial economy dictated that the court consider his overlapping

ineffectiveness and after-discovered evidence claims in a unitary appeal. Id.

at ¶ 17. The Commonwealth did not object to Appellant’s request for unitary

review.
____________________________________________


8   The halfway house was Capitol Pavilion.

9 On January 26, 2017, the trial court permitted Appellant’s counsel to
withdraw and appointed new counsel, Attorney William Braught to represent
Appellant.




                                           -4-
J-S47014-19



       On May 5, 2017, the trial court granted Appellant permission to pursue

unitary review of his ineffectiveness claims,10 and continued the impending

hearing on Appellant’s after-discovered evidence claim.11

       On January 24, 2018, and January 26, 2018, the lower court held a

hearing on Appellant’s ineffective assistance of counsel and after-discovered

evidence claims, after which it directed the parties to file Briefs in support of

their positions.12

____________________________________________


10 In Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), the Pennsylvania
Supreme Court explained the two exceptions to the general rule that claims
focusing on counsel’s performance should await collateral review: (1) if the
ineffectiveness is apparent from the record and meritorious such that
immediate consideration best serves the interests of justice; or (2) if there is
good cause shown the defendant knowingly and expressly waives his
entitlement to seek PCRA review of his conviction and sentence. Holmes, 79
A.3d at 763-64. Herein, the trial court found that Appellant had demonstrated
“good cause” for unitary review and that he expressly waived his right to seek
PCRA review of his conviction and sentence. Trial Ct. Op., 2/4/19, at 1 n.1.

11 The court also directed counsel to file a PCRA Petition. Such an instruction,
however, was improper as the PCRA provides for collateral relief only to a
defendant whose judgment of sentence has become final. See 42 Pa.C.S. §
9545(b)(1) (explaining that a PCRA Petition shall be filed within one year of
the date the judgment becomes final). Given the procedural posture of this
case, i.e. this Court’s remand for consideration of his Rule 720 Motion, at the
time of the court’s May 5, 2017 Order, Appellant’s Judgment of Sentence had
not yet become final.
       Appellant nonetheless complied with the court’s Order and filed a PCRA
Petition on August 21, 2017, and an Amended Petition on December 22, 2017,
in which he developed his ineffective assistance of counsel claims.

12 At the hearing, Appellant presented the testimony of Attorney Geoffrey
McInroy, his trial counsel; Jessica Fulp and Particia Warren, two former
employees of the halfway house in which Appellant resided at the time of the
victim’s murder; Kerry Houser, a Cumberland County Probation Officer



                                           -5-
J-S47014-19



       On July 17, 2018, the court denied Appellant relief. This timely appeal

followed. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

       Appellant raises the following issues on appeal:

       1. Whether the [] court erred in denying [Appellant] a new trial
          where:

          a. Trial counsel’s advice that [Appellant’s] prior felony drug
             conviction would be admissible if he were to testify was
             so unreasonable that [Appellant] did not and could not
             have made a knowing and intelligent decision not to
             testify at trial.

          b. Trial counsel’s failure to adequately cross-examine
             numerous      Commonwealth       witnesses      constituted
             ineffective assistance of counsel to the extent that there
             was a probability that the outcome of the trial would have
             been different absent the ineffectiveness of counsel.

          c. Trial counsel provided ineffective assistance of counsel
             when he failed to call numerous witness[es] on
             [Appellant’s] behalf at trial[, t]he failure of which denied
             [Appellant] a fair trial.

          d. Trial counsel failed to object to irrelevant and prejudicial
             testimony offered by the Commonwealth. The failure to
             object to the testimony allowed the jury to hear about
             prior bad acts by [Appellant] and to make improper
             assumptions about [Appellant’s] potential whereabouts
             at or near the time of the killing.

          e. Trial counsel provided ineffective assistance of counsel
             when he failed to file a Pre-Trial Motion to suppress DNA
             evidence obtained from [Appellant] by means of an
             illegal search.

          f. Trial counsel provided ineffective assistance of counsel
             when he failed to file a Pre-Trial Motion to dismiss the
____________________________________________


assigned to the victim at the time of the victim’s murder; Gwen Arnett, a
friend of the victim; and Corporal George Cronin, a former corporal in the
Pennsylvania State Police assigned to the Criminal Investigation Unit during
the investigation into the victim’s murder.

                                           -6-
J-S47014-19


              charges due to the unjustifiable delay in filing the charges
              that resulted in exculpatory evidence being lost or
              destroyed during the delay.

      2. Whether the evidence was insufficient to support the conviction
         for third[-]degree homicide?

Appellant’s Brief at 8-9.

      In his first issue, Appellant challenges the trial court’s determination

that his trial counsel, Attorney McInroy, was not ineffective. We are, thus,

guided by the following well-settled precepts in reviewing the trial court’s

decision.

      The law presumes counsel has rendered effective assistance, and to

rebut that presumption, the petitioner must demonstrate that counsel’s

performance was deficient and that such deficiency prejudiced him.

Commonwealth v. Kohler, 36 A.3d 121, 132 (Pa. 2012). “[T]he burden of

demonstrating ineffectiveness rests on [the petitioner].” Commonwealth v.

Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). To satisfy this burden, an

petitioner must plead and prove by a preponderance of the evidence that: “(1)

his underlying claim is of arguable merit; (2) the particular course of conduct

pursued by counsel did not have some reasonable basis designed to effectuate

his interests; and, (3) but for counsel’s ineffectiveness, there is a reasonable

probability that the outcome of the challenged proceeding would have been

different.”   Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003).

Failure to satisfy any prong of the test will result in rejection of the petitioner’s

ineffective assistance of counsel claim. Commonwealth v. Jones, 811 A.2d

994, 1002 (Pa. 2002). See also Commonwealth v. Fears, 86 A.3d 795,

                                        -7-
J-S47014-19



804 (Pa. 2014) (concluding that an appellant’s “failure to meaningfully discuss

each of the three ineffectiveness prongs” renders the claim “waived for lack

of development[]”).

      “Generally, where matters of strategy and tactics are concerned,

counsel’s assistance is deemed constitutionally effective if he chose a

particular course that had some reasonable basis designed to effectuate his

client’s interests.” Commonwealth v. Miller, 819 A.2d 504, 517 (Pa. 2000)

(citation omitted).    A claim of ineffectiveness generally cannot succeed

through comparing, in hindsight, the trial strategy employed with alternatives

not pursued.    Id.   In addition, we note that counsel cannot be deemed

ineffective for failing to pursue a meritless claim. Commonwealth v. Nolan,

855 A.2d 834, 841 (2004) (superseded by statute on other grounds).

      In his first sub-issue, Appellant claims that his trial counsel was

ineffective for advising him not to testify at trial. Appellant’s Brief at 17.

      The decision of whether to testify on one’s own behalf is ultimately the

defendant’s, made after full consultation with counsel. Commonwealth v.

Uderra, 706 A.2d 334, 340 (Pa. 1998).          In order to sustain a claim that

counsel was ineffective for failing to advise the defendant of his rights in this

regard, the defendant must demonstrate either that counsel interfered with

his right to testify or that counsel gave specific advice so unreasonable as to

vitiate a knowing and intelligent decision as to whether to testify on his own

behalf. Id. When assessing whether counsel’s advice that a defendant not

testify on his own behalf prejudiced the defendant, we consider only whether,

                                       -8-
J-S47014-19



but for counsel’s advice, the result of the waiver proceeding would have been

different.13 Commonwealth v. Walker, 110 A.3d 1000, 1005 (Pa. Super

2015).

       In support of this claim, Appellant argues that counsel advised him not

to testify because: (1) Appellant’s prior conviction for felony Possession With

Intent to Deliver (“PWID”) would be admissible at trial; and (2) Appellant had

made prior inconsistent statements.            Id. at 18-19.   Appellant argues that

these reasons were logically and factually incorrect.          Appellant notes that,

because PWID is neither a crimen falsi nor admissible for any other reason, it

is “not possible” that counsel’s advice that Appellant not testify was reasonable

or designed to effectuate Appellant’s best interests. Id. at 19. With respect

to counsel’s “prior inconsistent statement” rationale, Appellant argues that

counsel’s concern was “nonsensical” as the jury had already heard the

inconsistent statements. Id. at 19-20. Appellant avers that, had he testified,

he could have provided an explanation for the inconsistencies and proffered a

defense to the charges. Id. at 20-21.

       Appellant further argues that, but for counsel’s ineffectiveness, the

outcome of his waiver decision would have been different. He asserts that the

trial court applied the wrong standard when it concluded that “even if trial

counsel’s advice was unreasonable, we do not believe that there was a

____________________________________________


13We, thus, do not consider “whether the outcome of the trial itself would
have been more favorable had the defendant taken the stand.” Walker, 110
A.3d at 1005.

                                           -9-
J-S47014-19



reasonable probability that the outcome of the trial proceedings would have

been different had [Appellant] testified.”         Id. at 22 (citing Trial. Ct. Op.,

2/4/19, at 3). Appellant posits that the trial court should have considered

whether, but for counsel’s ineffectiveness, Appellant would have waived his

right to testify, not whether the outcome of the trial would have been different.

Id. (citing Commonwealth v. Walker, 110 A.3d at 1005.

       At the January 2018, hearing, Attorney McInroy gave a number of

explanations for advising Appellant not to testify at trial. He testified that he

advised Appellant that testifying on his own behalf would not be in Appellant’s

best interests because: (1) Appellant’s testimony was not necessary to

advance his defense;14 (2) he believed that testifying would be “hazardous for

[Appellant] and his credibility;” (3) Appellant had a significant criminal history,

which included a prior conviction of PWID and three Retail Theft convictions;15

and (4) Appellant would not make a good witness because of his poor

“storytelling” ability.    N.T., 1/24/18, at 42, 48-50, 54.       Attorney McInroy

____________________________________________


14  He explained that the defense strategy involved undermining the
Commonwealth’s theory of the case that Appellant deposited his semen in the
victim’s throat at the same time that he killed her. . N.T., 1/24/18, at 41-
42.

15 Appellant had three convictions of Retail Theft, 18 Pa.C.S. § 3129(a)(1), in
2008. Appellant does not dispute that Retail Theft is a crime involving
dishonesty, a conviction of which is would be admissible for impeachment
purposes. See Commonwealth v. Vitale, 664 A.2d 999, 1002-03 (Pa.
Super. 1995) (listing theft, perjury, bribery, criminal trespass, and
unauthorized use of a motor vehicle as examples of crimes involving
dishonesty).


                                          - 10 -
J-S47014-19



conceded that Appellant’s PWID conviction was not a crimen falsi, but noted

that the conviction was the reason that Appellant was residing in a halfway

house at the time of the victim’s murder—facts Appellant would have had to

explain if he testified at trial. Id. at 49.

      Our review of the Notes of Testimony indicates that Appellant has relied

only on a portion, and not the totality, of Attorney McInroy’s testimony, in

support of his claim of error.        Appellant has conveniently omitted any

reference to the portions of Attorney McInroy’s testimony that demonstrate

that counsel considered carefully the multitude of factors that informed his

decision to advise Appellant not to testify. When considering the totality of

Attorney McInroy’s testimony, the trial court concluded that counsel’s advice

was reasonable in light of Appellant’s criminal record, his general lack of

credibility, and that Appellant’s testimony would not advance his defense,

which rested exclusively on discrediting the Commonwealth’s position that it

was at the time of the victim’s death that Appellant deposited his semen in

the victim’s throat. The court also noted that it colloquied Appellant at trial,

and Appellant had indicated that he was acting of his own volition in opting

not to testify.




                                       - 11 -
J-S47014-19



       We agree with the trial court’s conclusion that counsel’s concerns were

legitimate and his advice was reasonably calculated to advance Appellant’s

interests.16 Appellant is, therefore, not entitled to relief on his first sub-issue.

       In his second sub-issue, Appellant claims that Attorney McInroy was

ineffective   when      he   failed    to      cross-examine    adequately       numerous

Commonwealth        witnesses,     including      Melissa   Milberry,   Arthur    Herbert,

Corporal George Cronin, Jeffrey Wagner, LeAnn Singley, Kathleen Brown,

Shawna Evans Smith, Larry Smith, Charles Bast, and Oden Scott. Appellant’s

Brief at 23-27. Appellant avers that counsel offered no rational basis for his

cross-examination strategy and but for counsel’s ineffectiveness in this

regard, the outcome of his trial would have been different. Id. at 27-29.

       Preliminarily we note that, at the evidentiary hearing, the only witnesses

about whose cross-examinations Appellant’s counsel questioned Attorney

McInroy were Melissa Milberry, Arthur Herbert, and Corporal George Cronin.

Thus, Appellant has waived his claim that counsel ineffectively cross-examined

witnesses Wagner, Singley, Brown, Evans Smith, Smith, Bast, and Scott. See

Pa.R.A.P. 302 (“Issues not raised in the lower court are waived and cannot be

raised for the first time on appeal.”).




____________________________________________


16 Having found counsel’s advice reasonable, we need not address Appellant’s
claim that the trial court applied the wrong standard when it considered
whether the outcome of the proceeding would have been different if counsel’s
advice had been unreasonable.


                                            - 12 -
J-S47014-19



      With respect to his claim that Attorney McInroy ineffectively cross-

examined Commonwealth witnesses Melissa Milberry and Arthur Herbert—two

witnesses who testified at trial that Appellant had made inculpatory

statements to them about the victim’s death—Appellant complains that

counsel   ineffectively    cross-examined        them   about   Appellant’s   alleged

incriminating statements. Appellant’s Brief at 23-24. In particular, Appellant

claims that he was not with the witnesses at the times they allege he

incriminated himself to them—a fact that would have been revealed to the

jury, thus undermining the witness’s credibility, had Attorney McInroy cross-

examined the witnesses thoroughly.          Id.     Appellant also faults Attorney

McInroy for failing to impeach both witnesses about alleged prior inconsistant

statements. Id. Appellant further avers that Attorney McInroy was ineffective

because Attorney McInroy did not cross-examine Herbert after Herbert

testified on direct examination that: (1) Appellant had told Herbert that he

killed the victim by using her own arm to choke her and (2) in 2001 or 2002,

Appellant was concerned that the police had his DNA, when the police did not

possess Appellant’s DNA until 2005. Id. at 24.

      With   respect      to   the   cross-examination     of   Corporal   Cronin—a

Pennsylvania State Police officer who investigated the victim’s murder—

Appellant complains that Attorney McInroy did not effectively cross-examine

him about investigation of the crime; in particular his lack of effort to obtain

the phone records of the victim and Appellant, the implications of the lack of




                                        - 13 -
J-S47014-19



footprints in the area of the victim’s body, and Herbert’s statement to him

about the way Appellant described choking the victim. Id. at 24-25.

         The trial court concluded that Appellant “failed to develop those claims

at the evidentiary hearing.” Trial Ct. Op., 2/4/19, at 5. The court noted that,

although     Appellant   complained   of   counsel’s   failure   to   cross-examine

effectively those witnesses, he did not demonstrate how counsel could have

done so effectively or whether and how it would have made a difference in the

outcome of his trial. See id. Our review of the Notes of Testimony confirms

the trial court’s apt conclusion that Appellant failed to prove that Attorney

McInroy was ineffective in cross-examining these witnesses. In addition, in

light of the overwhelming scientific evidence connecting Appellant to the

crime, Appellant could not have established that, but for Attorney McInroy’s

conduct, the outcome of his trial would have been different.                   See

Commonwealth v. Saranchak, 866 A.2d 292 (Pa. 2005) (holding that were

evidence of guilt was so overwhelming, trial counsel’s ineffectiveness failed

the prejudice prong).        Thus, Appellant’s claim that Attorney McInroy

ineffectively cross-examined witnesses Milberry, Herbert, and Cronin fails.

         In his third sub-issue, Appellant claims that Attorney McInroy was

ineffective when he failed to call numerous witnesses to testify at trial on his

behalf.    These witnesses include Kerry Houser, Gwen Arnett, Jessica Fulp,

Patricia Warren, Rick Pickles, Daniel Piper, and Bradley Wilt. Appellant’s Brief

at 29.




                                       - 14 -
J-S47014-19



      “Where a claim is made of counsel’s ineffectiveness for failing to call

witnesses, it is the appellant’s burden to show that the witness existed and

was available; counsel was aware of, or had a duty to know of, the witness;

the witness was willing and able to appear; and the proposed testimony was

necessary in order to avoid prejudice to the appellant.” Commonwealth v.

Chmiel, 30 A.3d 1111, 1143 (Pa. 2011) (citation omitted). To satisfy the

prejudice prong of this analysis, a defendant “must show how the uncalled

witnesses’ testimony would have been beneficial under the circumstances of

the case.”   Commonwealth v. Gibson, 951 A.2d 1110, 1134 (Pa. 2008)

(citations omitted).

      “[W]e will not grant relief based on an allegation that a certain witness

may have testified in the absence of an affidavit from that witness to show

that the witness would, in fact, testify.” Commonwealth v. Khalil, 806 A.2d

415, 422-23 (Pa. Super. 2002) (dismissing the appellant’s claim that counsel

was ineffective for failing to call certain witnesses because the appellant failed

to provide sworn statements from the putative witnesses indicating that they

were available and willing to testify or that counsel knew of their existence).

      Appellant summarily asserts that each of the witnesses existed, was

available and willing to testify, and that Attorney McInroy knew, or should

have known, of each of them. Appellant’s Brief at 29-30. He also asserts that

the presumptive witnesses’ testimony would have: (1) provided the jury with

evidence of an alternative suspect; (2) informed the jury of Appellant’s lack




                                      - 15 -
J-S47014-19



of opportunity to commit the murder; (3) and called into question the time of

the victim’s death. Id. at 31-32.

      Appellant did not, however, provide the trial court or this Court with

affidavits from the putative witnesses indicating that they were available and

willing to testify, that counsel knew of their existence, and verifying the

substance of their testimony. Appellant’s claim, thus, fails.

      In his fourth sub-claim, Appellant asserts that trial counsel provided

ineffective assistance by failing to object to evidence of Appellant’s “bad

character.” Appellant’s Brief at 32. In particular, Appellant complains that

counsel should have objected to Melissa Milbery’s testimony that Appellant

“used drugs and that when he did so he ‘on occasion, walked around the house

with a gun or walked around and grabbed a knife.’” Id. Appellant asserts

that this testimony prejudiced him because it portrayed him as violent when

he used drugs. Id. at 33.

      Appellant also claims that Attorney McInroy was ineffective when he

failed to object to Oden Scott’s testimony that challenged Appellant’s alibi by

implying that Appellant had not been present at Capitol Pavilion at the time of

the victim’s murder. Id. at 34. Appellant asserts that Scott’s testimony was

irrelevant because Scott did not work at Capitol Pavilion at the time of the

crime. Id.

      Appellant has not addressed whether trial counsel had a reasonable

basis for choosing not to object to Scott’s testimony. Appellant’s failure to




                                    - 16 -
J-S47014-19



address one of the three prongs of the ineffectiveness inquiry is fatal to this

claim. Jones, 811 A.2d at 1102; Fears, 86 A.3d at 804.

       With respect to Attorney McInroy’s decision not to object to Milberry’s

testimony about Appellant’s behavior when he is high, Appellant has not

pleaded and proved that, but for counsel’s alleged ineffectiveness, there is a

reasonable probability that the outcome of Appellant’s trial would have been

different. Fulton, 830 A.2d at 572. Given these shortcomings, Appellant’s

fourth sub-issue fails.17

       In his fifth sub-issue, Appellant claims Attorney McInroy was ineffective

for failing to file a motion to suppress Appellant’s DNA. Appellant’s Brief at

34-35. Appellant alleges that this claim has arguable merit because: (1) police

did not collect his DNA pursuant to any valid statute; and (2) police did not

obtain his DNA pursuant to a valid search warrant or with his consent. Id.

He claims that Attorney McInroy gave “no reason” for not filing a motion to

suppress, and that the admission of this evidence prejudiced him because it

“le[d] to the identification of [Appellant] as a prime suspect[.]” Id. at 35.

       In the alternative, Appellant argues that he did not voluntarily consent

to the collection of his DNA, because his consent was coerced with threats of

being placed in restrictive housing. Id. at 35.

____________________________________________


17 Moreover, even if Appellant had properly pleaded this claim, Appellant would
have been unable to prove that, but for counsel’s alleged ineffectiveness,
there is a reasonable probability that the outcome of his trial would have been
different because of the uncontroverted DNA evidence that Appellant
ejaculated into the victim’s throat at the time of her death.

                                          - 17 -
J-S47014-19



       Appellant has mischaracterized Attorney McInroy’s testimony at the

hearing as giving “no reason” for not filing a motion to suppress. Attorney

McInroy, in fact, explained his reasoning. Attorney McInroy testified that he

“felt as though the motion was going to fail” and “it was my strategy not to

unduly delay [Appellant’s] trial any further” by filing a motion that would likely

fail. N.T., 1/24/18, at 70-71. Appellant has not presented any argument that

Attorney McInroy’s proffered rationale did not have some reasonable basis

designed to effectuate his interests. Because Appellant has failed to satisfy

this prong of the ineffective assistance of counsel test, this claim fails. Jones,

811 A.2d at 1002.

       In his final sub-issue, Appellant claims that Attorney McInroy provided

ineffective assistance when he failed to file a pre-trial motion to dismiss the

charges due to the Commonwealth’s unjustifiable delay of nearly five years in

filing them.18 Appellant’s Brief at 36. He asserts the delay caused the loss of

valuable witness testimony and documents. Id. at 39.

       A violation of a defendant’s due process rights can occur if the

Commonwealth excessively delays filing charges, the delay causes actual

prejudice, and the delay was the product of intentional, bad faith, or reckless

conduct by the Commonwealth. Commonwealth v. Scher, 803 A.2d 1204,

____________________________________________


18  The five years to which Appellant refers is the time between when the
Commonwealth matched the semen found in the victim to Appellant and when
it charged Appellant with the victim’s murder.




                                          - 18 -
J-S47014-19



1221-22 (Pa. 2002) (OAJC).19 In determining whether the Commonwealth

violated the defendant’s due process rights, the court must “examine all of

the circumstances to determine the validity of the Commonwealth’s reasons

for the delay.” Id. at 1221.

       In order to prove prejudice, particularly with respect to the loss of

documentary evidence or the unavailability of a witness, a defendant “must

show that he[] was meaningfully impaired in his[] ability to defend against

the [Commonwealth’s] charges to such an extent that the disposition of the

criminal proceedings was likely affected.” Id. at 1222. The defendant must

also show that the lost evidence was not ascertainable through other means.

Id. Additionally, “a defendant who claims prejudice through the absence of

witnesses must show in what specific manner the missing witnesses would

have aided the defense.” Id. at 1225.

       “This Court recognizes that murder prosecutions often come to fruition

after many years of investigation. We do not intend to limit the power of the

Commonwealth to prosecute a murder if and when an investigation yields new

evidence after many years of inactivity.” Commonwealth v. Snyder, 713

A.2d 596, 605 (Pa. 1998) (upholding an 11-year delay in charging).




____________________________________________


19 In Scher, the Pennsylvania Supreme Court determined that the defendant
did not suffer a violation of due process where the Commonwealth did not file
charges for 20 years. Id. at 1229-30.



                                          - 19 -
J-S47014-19



       Attorney McInroy testified at the evidentiary hearing that, although he

had discussed filing a motion to dismiss with Appellant’s prior counsel, 20 he

ultimately determined that such a motion would essentially lack merit because

the “delay was not of a great enough magnitude to have, in and of itself,

prejudiced [Appellant].” N.T., 1/24/18, at 57. The trial court agreed with

Attorney McInroy’s assessment opining that

       [T]he Commonwealth did not delay maliciously. Rather it charged
       [Appellant] when it felt that it had ruled out all other suspects and
       had enough evidence to prove his guilt beyond a reasonable
       doubt. Even if the delay caused actual prejudice (we were
       satisfied it did not), [Appellant] did not show that the delay was
       the product of intentional, bad faith[,] or reckless conduct by the
       prosecution[.]

Trial Ct. Op. at 4.

       Although Appellant has presented extensive argument in his Brief in

support of the first prong of the ineffective assistance of counsel test, he has

failed to present any argument regarding the second and third prongs of the

test. In particular, Appellant failed to set forth any argument that Attorney

McInroy’s decision not to file a pre-trial motion to dismiss did not have some

reasonable basis designed to effectuate his interests, or that, but for Attorney

McInroy’s course of conduct, there is a reasonable probability that the

outcome     of   the    challenged     proceeding   would   have   been   different.

____________________________________________


20 The trial court initially appointed Appellant counsel from the Cumberland
County Public Defender’s Office on December 3, 2010, and Attorneys Charles
P. Mackin, Jr., Linda S. Hollinger, and Diane Morgan appeared on Appellant’s
behalf from 2010 to 2013. On, May 6, 2013 Attorney McInroy entered his
appearance on Appellant’s behalf.

                                          - 20 -
J-S47014-19



Accordingly, we conclude that Appellant has failed to demonstrate that

Attorney McInroy was ineffective in declining to file a motion to dismiss.

      In his final issue, Appellant purports to challenge the sufficiency of the

evidence in support of his Third-Degree Murder conviction. Appellant’s Brief

at 42.   Appellant has not set forth the elements of the offense, relevant

controlling case law, or any argument. Rather Appellant “relies upon the Brief

submitted by [appellate c]ounsel in support of his direct appeal prior to

remand of this case to the [t]rial [c]ourt.” Id.

      Our Supreme Court has held that “incorporation by reference” is an

unacceptable manner of appellate advocacy for the proper presentation of a

claim for relief to the Court. Commonwealth v. Briggs, 12 A.3d 291, 342-

43 (Pa. 2011)) (specifying that “our appellate rules do not allow incorporation

by reference of arguments contained in briefs filed with other tribunals, or

briefs attached as appendices, as a substitute for the proper presentation of

arguments in the body of the appellate brief”); Pines v. Farrell, 848 A.2d 94,

97 n.3 (Pa. 2004) (reliance on “briefs and pleadings already filed in this case”

was “not a recommended form of advocacy”).               The Rules of Appellate

Procedure specifically require a party to set forth in his or her brief, in relation

to the points of his argument or arguments, “discussion and citation of

authorities as are deemed pertinent,” as well as citations to statutes and

opinions of appellate courts and “the principle for which they are cited.”

Pa.R.A.P. 2119(a), (b). Therefore, our appellate rules do not allow

incorporation by reference of arguments contained in briefs filed in other

                                      - 21 -
J-S47014-19



proceedings, as a substitute for the proper presentation of arguments in the

body of the appellate brief. Appellant has, thus, waived this claim.

      Judgment of Sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/23/2019




                                    - 22 -
