J-S50045-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ARTHUR F. STOSS, SR.

                            Appellant                 No. 1869 MDA 2015


              Appeal from the Order Entered September 14, 2015
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0001540-2011


BEFORE: STABILE, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY SOLANO, J.:                       FILED SEPTEMBER 08, 2016

        Appellant, Arthur F. Stoss, Sr., appeals from the order denying his

timely petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§

9541-9546. We affirm.

        The pertinent facts and procedural history have been summarized

previously by this Court as follows:

              On March 11, 2011, the Pittston Police Department
           received information that there was a pool of blood located
           on a sidewalk a few feet from the Susquehanna River in
           Riverfront Park. While examining the area, the police
           discovered identification that belonged to Lillian Calabro
           and a broken slab covered with blood, which DNA testing
           subsequently linked to Ms. Calabro. After finding Ms.
           Calabro’s belongings near the blood, the police attempted
           to locate her. They discovered that on the evening of
           March 11, 2011, [Ms. Calabro] was drinking at Stephanie’s
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S50045-16


       Bar in the company of Larry Shannon, Susan Henry, and
       Appellant.

          Jeniffer [sic] Milazzo, Appellant’s daughter and a friend
       of Ms. Calabro, testified at trial. She reported that both
       [Ms. Calabro] and Appellant abused drugs. On the night of
       March 11, 2011, and early morning of March 12, 2011,
       Jeniffer was drinking in her residence with Karen Milazzo,
       who was Jeniffer’s aunt, and Karen’s daughter, Amanda
       Smith. Appellant telephoned Jeniffer at around 2:30 a.m.
       on March 12, 2011. Jeniffer related, “[W]hen I answered
       the phone, [Appellant] sounded out of breath and I said,
       ‘Where are you?’ And [Appellant] said, ‘Jeniffer, I’m down
       at the river, I murdered a black man. It was a drug deal
       gone bad.” N.T. Trial, 3/12/12, at 524. Jeniffer refused to
       believe Appellant as he had a long history of lying to her,
       and she demanded that Appellant come to her home.

          When Appellant arrived at Jeniffer’s apartment, “he was
       wet from the waist down, his jeans were soaking wet, and
       he had no shirt on,” and he “had a long scratch going
       down his chest to his stomach.” Id. at 524-25, 528.
       Appellant repeated his story that he had killed a man over
       a drug transaction, but none of the women present in
       Jeniffer’s apartment believed him.

           At trial, Ms. Smith confirmed that Appellant was
       wearing jeans, no shirt, boots, and a jacket when he
       reached Jeniffer’s residence. After his arrival, Appellant
       said “that he might have killed somebody.” Id. at 619.
       He claimed that he fought with a man over drugs and
       killed him by hitting him in the head with a rock. Ms.
       Smith observed scratches and a bruise on Appellant’s
       body.

           After she found out that blood was discovered in the
       park, Jeniffer came forward to Pittston Township police and
       told them about the events concerning her father. On
       March 12, 2011, police found Appellant at his brother’s
       house and asked if they could question him about Ms.
       Calabro’s disappearance. Appellant agreed to accompany
       them to the police barracks, where Luzerne County
       Detective James [Noon] questioned him in the presence of
       State Trooper Lisa Brogan. The two law enforcement
       officials identified themselves, indicated that they were


                                  -2-
J-S50045-16


        attempting to locate Ms. Calabro, and asked Appellant if he
        knew anything about her activities on the evening of March
        11, 2012.

           Appellant told the police the following. He was in the
        company of Ms. Calabro and Mr. Shannon at around 8:00
        p.m. at Stephanie’s bar, and they left the establishment
        shortly after 8:00 p.m. to go to Appellant’s home, where
        they consumed cocaine. Appellant, Mr. Shannon, and Ms.
        Calabro thereafter went to Mr. Shannon’s home and
        consumed beer. Ms. Calabro then said that she needed to
        locate more cocaine and arranged to purchase it from
        someone who would meet her outside.              Appellant
        accompanied Ms. Calabro to purchase the drugs, and they
        proceeded to a parking lot near 13 William Street, Pittston
        City.   When they arrived, Ms. Calabro entered a red
        Mitsubishi Eclipse being driven by a male. Appellant told
        the police officers that he had not seen Ms. Calabro since
        she entered the car with the unidentified man.

           During the interview, Detective [Noon] noticed that
        Appellant had cuts on his right hand and forearm. After
        giving his statement, Appellant granted the police
        permission to obtain the boots, jeans, and coat that he
        was wearing on March 11, 2011, and allowed them to
        scrape his fingernails. The police then returned Appellant
        to his brother’s home.

           On March 22, 2011, Ms. Calabro’s body was discovered
        in a thicket of branches and trees along the bank of the
        Susquehanna River. The autopsy performed by Dr. Gary
        Ross, a forensic pathologist, established that her death
        was caused by blunt force trauma to the left side of her
        head. Dr. Ross opined that there was massive injury to
        the upper portion of the head producing multiple fractures
        of the jaw, sinuses, and orbits. Dr. Ross also reported that
        [Ms. Calabro] had sustained numerous contusions and
        abrasions on the body surface and stated she had been
        strangled.

Commonwealth v. Stoss, No. 1374 MDA 2012, slip op. at 1-4 (Pa. Super.

Aug. 7, 2013).



                                   -3-
J-S50045-16



      Prior to trial, the trial court denied Appellant’s motion to suppress the

statements he made to police. During trial, the Commonwealth produced an

eyewitness who had been at a Domino’s Pizza shop near the events at issue

at 11:23 p.m. (according to her store receipt) on March 11, 2011.          She

testified to seeing a man and a woman near the water’s edge in what she

believed to be an argument.     At the conclusion of a five-day trial, a jury

convicted Appellant of first-degree murder, and on June 12, 2012, the trial

court sentenced him to life in prison. Appellant filed a timely appeal to this

Court, and this Court affirmed his judgment of sentence. On January 21,

2014, the Supreme Court of Pennsylvania denied Appellant’s petition for

allowance of appeal. Commonwealth v. Stoss, 83 A.2d 415 (Pa. 2014).

      Appellant filed a timely pro se PCRA petition on March 10, 2014. The

PCRA court appointed counsel, and PCRA counsel filed a supplemental

petition on November 13, 2014. The Commonwealth filed a response, and

on April 21, 2015, the PCRA court held an evidentiary hearing.       Appellant

testified on his own behalf and presented testimony from his lawyer on his

direct appeal and from his two trial attorneys. By order entered September

14, 2015, the PCRA court dismissed Appellant’s PCRA petition.

      PCRA counsel filed a timely appeal on Appellant’s behalf. On October

19, 2015, Appellant filed a pro se “Petition for Waiver of Counsel and

Surrender of Case Documents,” in which he sought to waive his right to be




                                     -4-
J-S50045-16



represented by PCRA counsel.1 Appellant also filed an application for similar

relief with this Court, and PCRA counsel filed a petition to withdraw.      By

order entered November 23, 2015, this Court remanded the case for a

Grazier2 hearing so that the trial court could conduct an on-the-record

colloquy and determine whether Appellant’s waiver of counsel was knowing,

intelligent, and voluntary.

       The PCRA court complied with this directive, and on December 18,

2015, entered an order stating that Appellant’s waiver of counsel was valid,

permitting PCRA counsel to withdraw, and appointing standby counsel for

Appellant.

       On appeal, Appellant raises the following issues in his pro se brief, as

stated:

          A. Whether trial counsel was ineffective in failing to
             present an alibi defense that appellant was not the
             person with [Ms. Calabro] on the riverbank at 11:23
             p.m.?

          B. Whether trial counsel was ineffective in failing to object
             to the prosecutor[’]s statement in closing arguments
             that defendant’s blood was on the presumed murder
             weapon [a concrete paver] when DNA test[s] were all
             negative for his presence on the presumed murder
             weapon or riverbank?



____________________________________________


1
 Appellant also filed a pro se notice of appeal. By per curiam order entered
February 10, 2016, this Court dismissed the appeal as duplicative.
2
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988).



                                           -5-
J-S50045-16


          C. Whether trial counsel was ineffective in failing to
             present that a juvenile had confessed to killing someone
             down on the riverbank?

          D. Whether PCRA counsel was ineffective in his failure to
             raise trial counsel[‘s] ineffectiveness for failing to raise
             and preserve, on direct appeal, the issue concerning the
             trial court[’]s abuse of discretion in its ruling to limit
             appellant, (N.T. Trial, at 9-12), to only two precise days
             during the witnesses[’] entire lives where he was
             [prohibited from] informing the jury concerning the
             witnesses[’] questionable life style and characteristics
             related to reasons why they would altogether conspire
             to frame false testimony against [him]?

          E. Whether PCRA counsel was ineffective for failing to raise
             trial    counsel    and     direct    appeal     [counsel’]s
             ineffectiveness for failing to raise the issue that under
             the totality of the circumstances there was insufficient
             evidence to support Appellant’s conviction of first
             degree murder.          Specifically, the evidence was
             insufficient to establish the identity of the perpetrator of
             the murder; therefore insufficient to prove beyond a
             reasonable doubt that appellant was, in fact, the alleged
             perpetrator of the crime of murder?

Appellant’s Brief at 3-4.       We will address these issues in the order

presented.

      Preliminarily, we recognize that in reviewing the propriety of an order

granting or denying PCRA relief, this Court is limited to ascertaining whether

the evidence supports the determination of the PCRA court and whether the

ruling is free of legal error. Commonwealth v. Payne, 794 A.2d 902, 905

(Pa. Super. 2002).     This Court defers to the findings of the PCRA court,

which will not be disturbed unless they have no support in the certified

record.   Id.   Furthermore, to be entitled to relief under the PCRA, the

petitioner must plead and prove by a preponderance of the evidence that the

                                       -6-
J-S50045-16



conviction or sentence arose from one or more of the errors enumerated in

Section 9543(a)(2) of the PCRA. One such error is an ineffective assistance

of counsel that, “in the circumstances of the particular case, so undermined

the truth-determining process that no reliable adjudication of guilt or

innocence could have taken place.”      42 Pa.C.S. § 9543(a)(2)(ii).    Each of

Appellant’s five issues challenges the effectiveness of trial counsel under this

provision.

      To obtain relief under the PCRA premised on a claim that counsel was

ineffective, a petitioner must establish by a preponderance of the evidence

that counsel’s ineffectiveness so undermined the truth-determining process

that no reliable adjudication of guilt or innocence could have taken place.

Payne, 794 A.2d at 905. This requires the petitioner to demonstrate that:

(1) the underlying claim is of arguable merit; (2) counsel had no reasonable

strategic basis for his or her action or inaction; and (3) petitioner was

prejudiced by counsel’s act or omission.        Id. at 905-06.      A claim of

ineffectiveness will be denied if the petitioner's evidence fails to meet any of

these prongs. Commonwealth v. Pierce, 786 A.2d 203, 221-22 (Pa.

2001).

      In this context, a finding of “prejudice” requires the petitioner to show

“there is a reasonable probability that, but for the error of counsel, the

outcome of the proceeding would have been different.” Commonwealth v.

Stevens, 739 A.2d 507, 512 (Pa. 1999).        The law presumes that counsel

was effective, and it is the petitioner’s burden to prove the contrary.

                                     -7-
J-S50045-16


Payne, 794 A.2d at 906. Counsel cannot be deemed ineffective for failing

to pursue a meritless claim. Id.

      Appellant first claims that both of his trial counsel were ineffective for

failing to present an alibi defense at trial. “Generally, an alibi is a defense

that places the defendant at the relevant time in a different place than the

scene involved and so removed therefrom as to render it impossible for him

[or her] to be the guilty party. . . .   At the core of an alibi defense is, of

course, consistency between the date and time of the crime and that of the

defendant’s alibi.”   Commonwealth v. Ali, 10 A.3d 282, 316 (Pa. 2010)

(internal citation omitted).

      Appellant cites to video surveillance of him on security cameras from a

business that was approximately an eight-minute walking distance from the

riverbank. He asserts that the times on the video establish that he could not

have been the person the Commonwealth’s eyewitness saw “with the victim

on the riverbank at 11:30 p.m.” Appellant’s Brief at 8. He further contends

that, given this evidence, he “would have been entitled to an alibi

instruction,” and that such evidence could “have raised a reasonable doubt

with the jury [] of [his] presence at the scene of the crime.” Id.

      At   the   PCRA   court’s   evidentiary   hearing,   both   attorneys   who

represented Appellant at trial testified that Appellant never asked to present

an alibi and that their review of the discovery materials yielded no probable

evidence of an alibi. See N.T., 4/21/15, at 55-90, 91-95.


                                      -8-
J-S50045-16


     Also, the PCRA court observed that, according to trial counsel, the

amount of time that passed between when the Commonwealth witness first

ordered her pizza at 11:23 p.m. and when the witness received the pizza is

not definitively established in the record. Nor was Ms. Calabro’s precise time

of death ever established on the record, and Appellant’s own statements to

police, his daughter, and Amanda Smith, place him in the vicinity of the

riverbank near midnight and into the early morning hours of the next day.

As the PCRA court explained:

           [Jeniffer] relates seeing her father in the early morning
        hours on March 12, 2011 at her apartment. [She] testified
        [Appellant] called her around 2:30 a.m., and said he was
        at the river and he murdered a black man in a bad drug
        deal. When she saw her father, [Jeniffer] testified “he was
        wet from the waist down, jeans soaking wet, shirtless, with
        scratches down his chest.”            This testimony was
        corroborated by another witness, Amanda Smith. [Ms.]
        Smith also testified that [Appellant] said he was in a fight
        with a black man and killed him by hitting him in the head
        with a rock.

           Defense counsel, as indicated, tried to suppress
        [Appellant’s] statements made to police on March 12,
        2011[.] With their Motion denied, the statements came in
        and with no other location for [Appellant] and no
        corroboration there is no real alibi. There was no exact
        time of death and [Jeniffer] testified as to a phone call
        from her father around 2:30 a.m. The early morning hour
        would allow ample time for [Appellant] to commit the
        crime for which he was found guilty.

PCRA Court Opinion, 9/15/15, at 8 (citation to notes of testimony omitted).




                                    -9-
J-S50045-16



      Because   our   review     of   the   record supports   the   PCRA   court’s

conclusion, Appellant’s first issue regarding ineffectiveness lacks arguable

merit and is therefore denied.

      Appellant next asserts trial counsel was ineffective for failing to object

to the prosecutor’s statement during closing arguments that Appellant’s

blood was found on “the paving piece that was allegedly used as the murder

weapon.” Appellant’s Brief at 14. According to Appellant:

            This was clearly prosecutorial misconduct intentionally
         undertaken to prejudice [Appellant] to the point of the
         denial of a fair trial. The prosecutor knew that there was
         not a single item retrieved from the scene of the crime
         that had [Appellant’s] DNA or blood. The blood on the
         paver was the victim[’]s blood, not [Appellant’s].

Id. at 15.

      Our standard of review for a claim of prosecutorial misconduct is

limited to “whether the trial court abused its discretion.” Commonwealth

v. Harris, 884 A.2d 920, 927 (Pa. Super. 2005), appeal denied, 928 A.2d

1289 (Pa. 2007). In considering such a claim, our attention is focused on

whether the defendant was deprived of a fair trial, not a perfect one.        Id.

This Court has observed:

         Not every unwise remark on a prosecutor’s part constitutes
         reversible error. Indeed, the test is a relatively stringent
         one. Generally speaking, a prosecutor’s comments do not
         constitute reversible error unless the unavoidable effect of
         such comments would be to prejudice the jury, forming in
         their minds fixed bias and hostility toward Appellant so
         that they could not [weigh] the evidence objectively and
         render a true verdict. Prosecutorial misconduct, however,
         will not be found where the comments were based on

                                       - 10 -
J-S50045-16


         evidence or proper inferences therefrom or were only
         oratorical flair. In order to evaluate whether comments
         were improper, we must look to the context in which they
         were made.

Id.

      Instantly, the PCRA court found no merit to Appellant’s claim because

the prosecutor immediately corrected himself. Additionally, the PCRA court

stated that the trial court had instructed the jury, on several occasions, that

closings by counsel are not evidence, and cited the point that juries are

presumed to follow the trial court’s instructions. The PCRA court explained:

            It is undisputed that the prosecutor misspoke when he
         stated [Appellant’s] blood was on the rock but his next
         statement was specific “. . . the blood was [Calabro’s].”

                                       ***

         The [trial] court also stated on two separate occasions that
         opening and closing arguments are not evidence. A jury is
         expected to follow the instructions submitted to it and to
         decide what the true facts are/were in this case.

PCRA Court Opinion, 9/15/15, at 9.

      Again, our review of the record supports the PCRA court’s conclusions.

Trial counsel therefore cannot be deemed ineffective for failing to pursue this

meritless claim. Payne. The PCRA court correctly denied this claim.

      In his third issue, Appellant asserts that trial counsel was ineffective

for not presenting “evidence that another individual, who lived at the same

place as the victim, confessed to a killing that same night.” Appellant’s Brief

at 18.   In rejecting this claim, the PCRA court accepted trial counsel’s

testimony that she discounted the possibility that this other individual was

                                     - 11 -
J-S50045-16



the murderer because that individual, a juvenile, alleged that he had

stabbed a victim; Ms. Calabro was not stabbed, but had been killed by a

blunt impact to the skull. Also, trial counsel noted that a Children & Youth

Services caseworker believed the juvenile’s story to be a “manipulation.”

PCRA Court Opinion, at 9.

      Given these discrepancies and credibility issues, the PCRA court

correctly found that Appellant’s claim lacks arguable merit.    Moreover, we

note that this claim of ineffectiveness involves counsel’s trial strategy. The

Supreme Court of Pennsylvania has repeatedly held that “a petitioner is not

entitled to relief because counsel’s trial strategy was unsuccessful; when the

course chosen was reasonable, counsel cannot be faulted for failing to

pursue a different path. Speculation by hindsight that a different strategy

might possibly have been successful is not the test which establishes

ineffectiveness of counsel.” Commonwealth v. Fisher, 813 A.2d 761, 767

(Pa. 2002) (internal citation omitted). To sustain a claim of ineffectiveness

predicated on strategy, a litigant must prove that the strategy employed by

trial counsel “was so unreasonable that no competent lawyer would have

chosen that course of conduct.” Commonwealth v. Chmiel, 889 A.2d 501,

541 (Pa. 2005).

      At the PCRA court’s evidentiary hearing, trial counsel testified about

why she did not use the juvenile’s “confession.”     She described her trial

strategy as instead placing blame for the murder on two different men, one

of whom had a Protection from Abuse order filed against him by Ms. Calabro

                                    - 12 -
J-S50045-16


and could not account for his whereabouts on the night in question.       See

N.T., 4/21/15, at 99, 108-09.        The PCRA court credited trial counsel’s

testimony and found her strategy reasonable.         We cannot disturb this

determination.   See Commonwealth v. Harmon, 738 A.2d 1023, 1025

(Pa. Super. 1999) (when PCRA court’s determination of credibility is

supported by the record, it cannot be disturbed on appeal). Thus, the PCRA

court properly denied Appellant’s third issue.

      In his final two issues, Appellant raises new ineffectiveness challenges

against his first appointed PCRA counsel, asserting failure to raise the

ineffectiveness of his trial counsel and direct appeal counsel in the 2014

supplemental petition.   These claims concern limitations on trial counsel’s

questioning of the Commonwealth’s witnesses’ “questionable life style and

characteristics related to reasons why they would altogether conspire to

frame false testimony” against Appellant and challenges to whether the

evidence was sufficient to “establish the identity of the perpetrator of the

murder.” Appellant’s Brief at 3-4.

      These allegations were not raised and presented to the PCRA court

upon Appellant’s successful removal of his original appointed PCRA counsel,

after which Appellant proceeded pro se with standby counsel. Instead, they

are raised for the first time on this appeal.    But such claims may not be

raised for the first time on appeal.    See Commonwealth v. Henkel, 90

A.3d 16, 21-30 (Pa. Super 2014) (en banc) (providing a thorough discussion


                                     - 13 -
J-S50045-16


of   our   Supreme       Court’s    treatment      of   claims   of    PCRA    counsel’s

ineffectiveness raised for the first time on appeal).                 Id.3   If they are

reviewable at all, these claims must be raised in a new PCRA petition.

       In summary, Appellant’s claims of counsel ineffectiveness in his PCRA

petition are either meritless or, because they have been inappropriately

raised for the first time on appeal, are waived as to his initial round of PCRA

review. We therefore affirm the PCRA court’s order denying Appellant post-

conviction relief.

       Order affirmed. Application for remand denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/8/2016




____________________________________________


3
  On January 4, 2016, Appellant filed an application for remand. He based
his request on the Supreme Court of Pennsylvania’s plurality decision in
Commonwealth v. Ligons, 971 A.2d 1125 (Pa. 2009). As explained in
Henkel, Ligons has been superseded by majority decisions from the
Supreme Court of Pennsylvania and is no longer controlling.




                                          - 14 -
