J-S42011-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RACHEL A. KOZLOFF,

                            Appellant                No. 1067 WDA 2015


                    Appeal from the PCRA Order July 5, 2015
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0001849-2012


BEFORE: SHOGAN, OTT, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                               FILED JULY 19, 2016

       Appellant, Rachel A. Kozloff, appeals pro se from the Order entered on

July 5, 2015, that denied her petition filed pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

       A prior panel of this Court summarized the factual history of this case

as follows:

              On April 12, 2012, [A]ppellant shot her boyfriend, Michael
       Henry, at his residence in Erie. Henry was a large man, standing
       6’5” and weighing 285 pounds. Appellant is 5’4” and weighs 155
       pounds. Henry was also a member of the Iron Wings motorcycle
       gang and had a reputation for physical violence. As her defense
       at trial, [A]ppellant conceded that she shot Henry, but contended
       that he was continually physically abusive toward her during
       their relationship, and at the time of his killing, he was savagely

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*
    Former Justice specially assigned to the Superior Court.
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     attacking her while she was trying to escape his residence.
     Appellant shot Henry five times.

           The Commonwealth in its case in chief, presented evidence
     that [A]ppellant believed Henry was seeing other women and
     wished to break off their relationship. The Commonwealth also
     presented evidence that Henry was seated on a futon when he
     was shot, and not attacking [A]ppellant.

           On December 7, 2012, the jury convicted [A]ppellant of
     third degree murder, recklessly endangering another person,
     and possessing an instrument of crime. On January 29, 2013,
     the court sentenced [A]ppellant to an aggregate term of 18 to
     40 years’ imprisonment.

Commonwealth v. Kozloff, 474 WDA 2013, 102 A.3d 538 (Pa. Super filed

April 22, 2014) (unpublished memorandum at 1-2) (footnote omitted).

     Appellant filed a timely direct appeal. This Court affirmed Appellant’s

judgment of sentence on April 22, 2014. Commonwealth v. Kozloff, 474

WDA 2013, 102 A.3d 538 (Pa. Super filed April 22, 2014). The Pennsylvania

Supreme Court denied Appellant’s petition for leave to file petition for

allowance of appeal nunc pro tunc on November 6, 2014. Commonwealth

v. Kozloff, 66 WM 2014, Order (Pa. filed November 6, 2014.).

     Appellant filed a timely pro se PCRA petition on April 2, 2015. Counsel

was appointed. Order, 5/10/15. Following his review of the case, appointed

counsel file a “no-merit” letter and a petition for leave to withdraw as

counsel. No Merit Letter, 5/11/15, at 1-7; Petition for Leave to Withdraw as

Counsel, 5/11/15, at 1.    Following the issuance of a notice of intent to

dismiss the PCRA petition without a hearing on May 2, 2015, the PCRA court

denied Appellant relief by order entered June 19, 2015.    Appellant filed a

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timely appeal on July 14, 2015. The PCRA court did not order the filing of a

Pa.R.A.P. 1925(b) statement.

      Appellant presents the following issues for our review, which we

reproduce here verbatim:

      1.    Was the motion and appeal on question on admissability of
      Defendant’s statement during interrogation erroneously denied
      due to ineffective assistance of counsel.

      2.    Was trial counsel ineffective for failing to provide expert
      testimony regarding battered woman syndrome and for not
      objecting to the court’s erroneous charge to the jury which
      overruled the defense of justification.

            a.   Government favorable evidence          that   Mike
            Henry was violent and dangerous.

            b.    Further favorable police evidence of the
            violence the Defendant experienced at the hands of
            Mike Henry.

      3.    Was defense counsel ineffective for failing to provide
      evidence as whether the decedent was effectively committing
      suicide by proxy.

Appellant’s Brief at 2 (full capitalization omitted).

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)).        The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.




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Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).

      Appellant’s issues on appeal allege ineffective assistance of counsel.

When considering an allegation of ineffective assistance of counsel, we note

that counsel is presumed to have provided effective representation unless

the PCRA petitioner pleads and proves that: (1) the underlying claim is of

arguable merit; (2) counsel had no reasonable basis for his or her conduct;

and   (3)    appellant     was    prejudiced   by   counsel’s   action   or    omission.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “In order to meet

the prejudice prong of the ineffectiveness standard, a defendant must show

that there is a ‘reasonable probability that but for counsel’s unprofessional

errors,     the   result   of    the   proceeding   would   have   been       different.’”

Commonwealth v. Reed, 42 A.3d 314, 319 (Pa. Super. 2012). A claim of

ineffective assistance of counsel will fail if the petitioner does not meet any

of the three prongs. Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa.

2013).       “The burden of proving ineffectiveness rests with Appellant.”

Commonwealth v. Rega, 933 A.2d 997, 1018 (Pa. 2007).

      Although inartfully pled, Appellant appears to be arguing in her first

issue that trial counsel was ineffective for failing to object to the admission

at trial of the statements Appellant made to police. Appellant’s Brief at 6.

These statements were made to police during multiple “interviews,” defined

as custodial interrogations by Appellant. Id. at 6-7. Appellant asserts that


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she was not given Miranda1 warnings at the first interview conducted at

police headquarters. Id. at 7. Appellant further argues that “[t]he purpose

of the second interrogation was to elicit evidence against the defendant so

that she could be more effectively prosecuted.”            Id. at 8-9.   The second

interview continued on in time so as to prevent Appellant from picking up

her daughter, resulting in Appellant’s mother being forced to do so. Id. at

9. Appellant argues:

               [Appellant] believed she invoked her right to silence in a
        custodial interrogation, and her right to leave to pick up her
        daughter, but her will was overridden by the coercive actions of
        the police particularly Officer Kem[l]ing, but also the group of
        officers with whom she consulted. As such the interrogation
        violated her due process right to be free of coercive interrogation
        and the statements of [Appellant] should be suppressed.

Id. at 9.

        We first note that Appellant fails to identify with specificity the

statements that were admitted at trial to which she objects. Appellant fails

to identify where in the record these statements were introduced. Moreover,

she fails to articulate how trial counsel was ineffective. Instead, Appellant

generally argues that the trial court erred in failing to suppress these

statements.     Appellant’s Brief at 7-9.        Thus, we conclude that Appellant’s

claim that counsel was ineffective is waived. Commonwealth v. Treiber,

121 A.3d 435, 474 (Pa. 2015) (holding that cursory allegations of counsel’s

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1
    Miranda v. Arizona, 384 U.S. 436 (1966).



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ineffectiveness were waived as a result of appellant’s failure to develop

those claims.).

      Moreover, we note that Appellant raised this issue on direct appeal.

On direct appeal, this Court concluded that:      “We find that [A]ppellant’s

second statement to police was neither involuntary, nor taken under false

pretenses, nor was there any basis for suppressing it.” Kozloff, 474 WDA

2013, at 4. Accordingly, this Court has already determined that there is no

merit to the underlying claim, and therefore Appellant cannot establish an

ineffectiveness of counsel claim. Spotz, 84 A.3d at 311

      In her second issue, Appellant argues that trial counsel was ineffective

for failing to provide expert testimony regarding battered woman syndrome.

Appellant’s Brief at 10, 13. Additionally, Appellant asserts that counsel was

ineffective for failing to object to the trial court’s “erroneous charge to the

jury which overruled the defense of justification.” Id. at 10. Appellant also

maintains that the trial court failed to consider two important pieces of

evidence: that Mike Henry was violent and dangerous and the violence that

Appellant experienced at the hands of Mike Henry. Id. at 12. She asserts

that this evidence is “most favorable to the government.”       Id. at 11-12.

Appellant further asserts that counsel should have brought up, in cross-

examination of witness Nicole Spinelli, the she had experienced violence at

the hands of Mike Henry also. Id. at 11.




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       A review of Appellant’s PCRA petition reveals that Appellant failed to

raise her claims regarding presentation of evidence of battered woman

syndrome and the trial court’s alleged erroneous jury charge on it.2         As a

result, we find these issues waived.           See Commonwealth v. Santiago,

855 A.2d 682, 691 (Pa. 2004) (explaining that “a claim not raised in a PCRA

petition cannot be raised for the first time on appeal.”).

       In her third issue, Appellant contends that “defense counsel was

ineffective for failing to provide evidence as to whether the decedent was

effectively committing suicide by proxy.” Appellant’s Brief at 14. In support

of this claim, Appellant presents the following argument:

              The decedent Mike Henry was so vividly violent and
       confrontational, that it is conceivable that his actions, were, on
       one level or another identical to that seen in individuals who
       confront police and essentially commit “suicide by cop.” In this
       case, Mr. Henry clearly feared or hated police to the extent that
       he avoided police, and as his motorcycle friends noted, he would
       not want any police contacted even after he were dead.
       However, his actions could arguably have been designed to end
       his life by violence, and in this case he possibly succeeded, not
       in committing “suicide by cop” but “suicide by proxy cop” the
       woman he assaulted to the point of self-defense, justified killing.
       He knew that [Appellant] carried a pistol for self-defense.
       Defense counsel did not consider this as a defense, to the
       prejudice of [Appellant].

Appellant’s Brief at 14.

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2
  We note that as      a result of Appellant’s failure to raise this issue in her
PCRA petition, the     PCRA court did not address these issues. Opinion and
Notice of Intent to    Dismiss PCRA Without Hearing Pursuant to Pa.R.Crim.P.
907(1), 5/21/15 at     1-4.



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      A review of Appellant’s PCRA petition reflects that Appellant did not

raise this issue in her PCRA petition. As previously noted, a claim not raised

in a PCRA petition cannot be raised on appeal. Santiago, 855 A.2d at 691.

Because this issue was not raised in Appellant’s PCRA petition, the PCRA

court did not have an opportunity to address it. Opinion and Notice of Intent

to Dismiss PCRA Without Hearing Pursuant to Pa.R.Crim.P. 907(1), 5/21/15

at 1-4. Accordingly, we find this issue waived.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/19/2016




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