J-A28038-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BIN WANG,                                  :
                                               :
                      Appellant                :   No. 3485 EDA 2016

                 Appeal from the PCRA Order November 4, 2016
              In the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0008035-2007

BEFORE: GANTMAN, P.J., PANELLA, J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.:                               FILED JANUARY 05, 2018

        Appellant,   Bin   Wang,     appeals   from   the   Order   entered   in   the

Philadelphia County Court of Common Pleas dismissing his first Petition filed

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.

After careful review, we affirm on the basis of the PCRA court’s March 20,

2017 Opinion.

        The underlying facts, as gleaned from the certified record and the

PCRA court’s Pa.R.A.P. 1925(a) Opinion, are as follows.             On November 6,

2008, a jury convicted Appellant of First-Degree Murder and Possession of

an Instrument of Crime1 in connection with the May 11, 2007 shooting of

Appellant’s wife, Xiangzhen Lin, also known as Sharon Lin (“Sharon”), inside

the couple’s Philadelphia home during a dispute.              Appellant provided a
____________________________________________


1   18 Pa.C.S. § 2502(a) and 18 Pa.C.S. § 907, respectively.
J-A28038-17


statement to police claiming that Sharon committed suicide by shooting

herself in the head, and Appellant testified in his own defense at trial.

Following the jury’s verdict, the trial court immediately sentenced Appellant

to life imprisonment.

      Appellant filed a timely direct appeal challenging, inter alia, the

sufficiency and weight of the evidence, and this Court affirmed Appellant’s

Judgment of Sentence. Commonwealth v. Bin Wang, No. 903 EDA 2009

(Pa. Super. filed Feb. 10, 2011) (unpublished memorandum). On August 9,

2011, our Supreme Court denied allowance of appeal. Commonwealth v.

Bin Wang, No. 162 EAL 2011 (Pa. filed Aug. 9, 2011).

      On September 7, 2011, Appellant filed a pro se PCRA Petition, and the

PCRA court appointed counsel.        Appellant eventually retained private

counsel, who filed an Amended PCRA Petition on May 22, 2016. Appellant

attached an extensive affidavit from a new purported expert that supported

Appellant’s suicide theory. On August 25, 2016, the Commonwealth filed a

Motion to Dismiss.

      On September 20, 2016, the PCRA court filed a notice of its intent to

dismiss Appellant’s PCRA Petition without a hearing pursuant to Pa.R.Crim.P.




                                    -2-
J-A28038-17


907.    On November 4, 2016, the PCRA court dismissed Appellant’s PCRA

Petition.2

       Appellant filed a timely Notice of Appeal. Both Appellant and the PCRA

court complied with Pa.R.A.P. 1925.

       Appellant presents seven issues for our review:

       [1.] Trial counsel was ineffective for not expanding the scope of
       his forensic investigation by consulting with and retaining a
       forensic expert like Brent Turvey to conduct a holistic
       examination of all the physical evidence. Trial counsel’s
       ineffectiveness prejudiced [Appellant] because there is a
       reasonable probability the outcome of his trial would have been
       different because the physical evidence, as Mr. Turvey’s 35-page
       affidavit makes clear, supported [Appellant’s] suicide narrative
       far more than the Commonwealth’s homicide narrative. The
       PCRA court, therefore, erred when it rejected [Appellant’s] trial
       counsel ineffectiveness claim.

       [2.] Trial counsel failed to present the testimony of [Appellant’s]
       three neighbors-Troy Davis, Timothy Flemings, and Rick Kern–
       each of whom would have corroborated salient aspects of
       [Appellant’s] statement and trial testimony, thereby bolstering
       his defense that Sharon Lin committed suicide and creating
       reasonable doubt regarding the Commonwealth’s homicide
       narrative. Trial counsel’s ineffectiveness prejudiced [Appellant]
       because there is a reasonable probability that had trial counsel
       presented Davis, Flemings, and Kern the outcome of his trial
       would have been different. The PCRA court, therefore, erred
       when it rejected [Appellant’s] trial counsel ineffectiveness claim.

       [3.] Trial counsel failed to object to inadmissible and prejudicial
       hearsay and “other crimes/bad acts” testimony that [Appellant]
       had previously assaulted and mistreated Sharon Lin. Assuming
       the probative value of this evidence outweighed its prejudicial
       impact, trial counsel failed to request a cautionary instruction
____________________________________________


2The PCRA court amended its Order on November 15, 2016, after Appellant
had filed a Notice of Appeal.



                                           -3-
J-A28038-17


     directing the jury to consider this evidence solely for the limited
     purpose for which it was admitted. Trial counsel’s ineffectiveness
     prejudiced [Appellant] because had trial counsel timely objected,
     the trial court would have excluded this evidence and testimony,
     and had it done so, there is a reasonable probability the outcome
     of [Appellant’s] trial would have been different. Likewise, if
     timely objected to and timely requested, the trial court would
     have issued a cautionary instruction prohibiting the jury from
     considering this evidence for propensity purposes. The PCRA
     court, therefore, erred when it rejected [Appellant’s] trial
     counsel ineffectiveness claim.

     [4.] Trial counsel failed to request a “missing evidence”
     instruction based on the Commonwealth’s admitted negligence in
     failing to preserve evidence from Sharon Lin’s hands that would
     have enabled forensic examiners to perform gunshot residue
     testing on Ms. Lin’s hands. The Commonwealth’s negligence
     deprived [Appellant] of his due process right to potentially
     exculpatory evidence. Trial counsel did not have a reasonable
     basis for not requesting a “missing evidence” instruction,
     especially after trial counsel mentioned this very fact during trial
     and closing arguments. Trial counsel’s ineffectiveness prejudiced
     [Appellant] because had the trial court issued a “missing
     evidence” instruction, it is reasonably probable the outcome of
     [Appellant’s] trial would have been different. The PCRA court,
     therefore, erred when it rejected [Appellant’s] trial counsel
     ineffectiveness claim.

     [5.] During the charge conference, when the trial court gave no
     mention of issuing an instruction regarding [Appellant’s] theory
     of defense, i.e., Sharon Lin committed suicide, trial counsel
     failed to object and failed to request an instruction informing the
     jury    of   [Appellant’s]   suicide   defense.    Trial   counsel’s
     ineffectiveness prejudiced [Appellant] because had the jury been
     properly and specifically instructed, there is a reasonable
     probability [Appellant’s] trial would have turned out differently.
     The PCRA court, therefore, erred when it rejected [Appellant’s]
     trial counsel ineffectiveness claim.

     [6.] The cumulative impact of trial counsel’s objectively
     unreasonable decisions before and during trial undermines
     confidence in the jury’s conviction entitling [Appellant] to a new
     trial. The PCRA court, therefore, erred when it rejected
     [Appellant’s] cumulative prejudice claim.

                                    -4-
J-A28038-17



      [7.] The PCRA court erred by not granting an evidentiary hearing
      where trial counsel, Troy Davis, Timothy Flemings, Rick Kerns,
      and Brent Turvey could testify and present evidence in support
      of    [Appellant’s]   suicide   narrative    and    trial counsel
      ineffectiveness. The PCRA court, therefore, erred when it
      rejected [Appellant’s] evidentiary hearing request.

Appellant’s Brief at 4-6 (citations omitted).

      We review the denial of a PCRA Petition to determine whether the

record supports the PCRA court’s findings and whether its order is otherwise

free of legal error.    Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014). This Court grants great deference to the findings of the PCRA court if

they are supported by the record. Commonwealth v. Boyd, 923 A.2d 513,

515 (Pa. Super. 2007). We give no such deference, however, to the court’s

legal conclusions.     Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.

Super. 2012).

      There is no right to a PCRA hearing; a hearing is unnecessary where

the PCRA court can determine from the record that there are no genuine

issues of material fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.

Super. 2008). “With respect to the PCRA court’s decision to deny a request

for an evidentiary hearing, or to hold a limited evidentiary hearing, such a

decision is within the discretion of the PCRA court and will not be overturned

absent an abuse of discretion.” Commonwealth v. Mason, 130 A.3d 601,

617 (Pa. 2015).




                                      -5-
J-A28038-17


      The   law   presumes    counsel    has   rendered   effective   assistance.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010).                 The

burden of demonstrating ineffectiveness rests on Appellant. Id. To satisfy

this burden, Appellant 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

appellant’s ineffective assistance of counsel claim.       Commonwealth v.

Jones, 811 A.2d 994, 1002 (Pa. 2002). “If a petitioner cannot prove that

trial counsel was ineffective, then petitioner’s derivative claim of appellate

counsel ineffectiveness must also fail[.]” Commonwealth v. Hutchinson,

25 A.3d 277, 286 (Pa. 2011).

      To obtain relief on a claim that counsel was ineffective for failing to call

a potential witness, the PCRA petitioner must establish that:

      (1)   the witness existed;

      (2)   the witness was available to testify for the defense;

      (3) counsel knew of, or should have known of, the existence of
      the witness;

      (4)   the witness was willing to testify for the defense; and

                                      -6-
J-A28038-17



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

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

       “We have often held that no number of failed claims may collectively

warrant relief if they fail to do so individually.” Commonwealth v. Spotz,

18 A.3d 244, 321 (Pa. 2011) (citation and quotation marks omitted).

“However, we have clarified that this principle applies to claims that fail

because of lack of merit or arguable merit.”     Id.   “When the failure of

individual claims is grounded in lack of prejudice, then the cumulative

prejudice from those individual claims may properly be assessed.” Id.

       The Honorable Sheila Woods-Skipper, sitting as the PCRA court, has

authored a comprehensive, thorough, and well-reasoned Opinion, citing to

the record and relevant case law in addressing Appellant’s claims.      The

record supports the PCRA court’s findings and the Order is otherwise free of

legal error.    We, thus, affirm on the basis of the PCRA court’s March 20,

2017 Opinion.3      See PCRA Court Opinion, 3/20/17, at 9-18 (concluding it

properly dismissed Appellant’s PCRA Petition because: (1) trial counsel’s
____________________________________________


3 We note that on November 2, 2017, Appellant filed an “Application for
Post-Submission Communication” pursuant to Pa.R.A.P. 2501(a), which the
Commonwealth opposed in a November 6, 2017 Motion to Strike and
Answer. We hereby deny Appellant’s Application because Appellant has
failed to demonstrate any basis under Rule 2501 that would permit such a
post-submission communication, e.g., a “change in status of authorities” or
“when expressly allowed at the bar at the time of the argument.” Pa.R.A.P.
2501.



                                           -7-
J-A28038-17


decision to call an expert pathologist to support his suicide theory at trial

had a reasonable basis designed to effectuate his interests; Appellant’s

hindsight reassessment of trial counsel’s strategy is unpersuasive and

contrary to case law; (2) trial counsel was not ineffective for failing to call

three neighbor witnesses because their testimony would have been

cumulative of other evidence; (3) trial counsel was not ineffective for failing

to object to evidence that Appellant assaulted and mistreated the victim,

which was admissible as other acts evidence under several exceptions to

Pa.R.E. 404(b), including res gestae, “motive, malice, intent, and ill will[,]”

PCRA Court Opinion at 13; (4) trial counsel was not ineffective for failing to

request a “missing evidence” instruction for police failure to “bag” Sharon’s

hands in order to perform gunshot residue testing because the evidence was

only “potentially useful” and Appellant failed to demonstrate bad faith; (5)

trial counsel was not ineffective for failing to request a jury instruction

regarding his suicide defense because the evidence was not consistent with

suicide, and a “suicide” instruction would have confused the jury;4 (6)

Appellant’s cumulative prejudice claim failed as a matter of law because

each of his ineffectiveness claims lacked arguable merit; and (7) the PCRA

____________________________________________


4 Moreover, the court instructed the jury on the elements of First-Degree
Murder. This instruction sufficiently clarified that (1) the Commonwealth
was required to demonstrate that Appellant killed Sharon; and (2) if the jury
concluded that Sharon had shot herself, Appellant was to be found not
guilty. See N.T. Trial, 11/5/08, at 250.



                                           -8-
J-A28038-17


court did not abuse its discretion in refusing to hold an evidentiary hearing

because Appellant’s PCRA Petition presented no genuine issues of material

fact.).

      The parties are instructed to attach a copy of the PCRA court’s March

20, 2017 Opinion to all future filings.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/5/18




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                                                                                                                                                                                            I
                                                                                                                                                                                                ---     .



                                                                                                                                                                               Circulated 12/13/2017 12:08 PM




                                                           IN THE COURT OF COMMON PLEAS
                                                                                                                                                                                            FILED
                                                      FIRST JUDICIAL DISTRICT OF PENNSYLVANIA                                                                                               MAR 2 0, 201J
                                                                                   CRIMINAL TRIAL DIVISION                                                                   Criminal Appeals Unit
                                                                                                                                                                           first Judicial District of PA
                  COMMONWEALTH OF PENNSYLVANIA


                                                                vs.                                                                        CP-51-CR-0008035-2007

                  BIN WANG
                  PP# 789837                                                                                                            CP-51-CR-0008035-2007 Comm. v. Wang, Bin
                                                                                                                                    .                   Opinion

                  DOCKET NO.:                                   3485 EDA 2016

                                                                                                        OPINION                                  1111111111111111 I 11111111
                                                                                                                                                          7921075561
                                  Appellant, Bin Wang, appeals from the dismissal of his petition for relief

                  pursuant to the Post Conviction Relief Act, 42 P.a.C.S. §§ 9541 et seq. (PCRA).

                  On November 4, 2016, following review of the submissions of both appointed

                  and retained PCRA counsel, the Commonwealth's Motion to dismiss and

                  appellant's numerous pro se submissions, appellant's PCRA petition was

                  dismissed without a hearing. The facts and procedural history are as follows.

                                  On November 6, 2008, following a jury trial, appellant was found guilty of

                  first degree murder and possession of an instrument of crime, and sentenced to

                  an aggregate sentence of life imprisonment. I The evidence elicited at trial was

                  that on May 11, 2007, at approximately 7:30 PM, police responded to a radio

                  call of shots fired at appellant's home at 6034 Duffield Street in the City and

                  County of Philadelphia. Police Officer Anthony Magsam, the first officer to

                  arrive at the scene, was met outside the property by a white male who



                  118 Pa.C.S. § 2502 and 18 Pa.C.S. § 907, respectively. Appe11ant received a mandatory life
                  sentence for murder and a concurrent 1- 2 years for possession of an instrument of crime.

                                                                                                                                                                                                    1
indicated that someone had shot themselves upstairs .. Officer Magsam entered

6034 Duffield Street and went up the .stairs where' he .was met by appellant and

another male. In the front bedroom, he observed appellant's wife, Xiangzhen

Lin (also known as Sharon Lin), lying on the floor next to the bed, with her face

facing about a forty five degree angle, facing up, and blood around her head.

Her head and back were against the 'wall, tilted at the comer on the floor. She

was on her right side with her head against the head board and her legs/feet

were up on the bed. He checked for a pulse then called for medical assistance.

Fire rescue arrived approximately ten minutes later and moved Sharon Lin's

body from the floor up onto the bed. Officer Magsam also observed a comforter

with blood on it piled at the lower end of the bed and a lap top computer, also

on the bed which he placed on a nearby table. When he removed the comforter,

he discovered a second lap top computer on the bed, but did not move it.

Officer Magsam surveyed the room but saw no firearm or ballistic evidence. He

asked appellant where was the gun and appellant pointed to a small night

stand with drawers located in a comer beside the bed. The top drawer of the

night stand was broken and a lampshade was on the floor. He did not look

inside the night stand. Officer Magsam asked appellant what happened and

appellant told him that he was depressed and thinking about shooting himself.

He was holding the gun and Sharon Lin stopped him, took the gun, went

upstairs and shot herself. Officer Magsam secured the scene and sent

appellant and the male downstairs. Officer Joanne Kitz, who also responded to

the radio call arriving shortly after Officer Magsam, encountered appellant

                                                                                  2
--·-···-····-----·-   ------------···-------- - ----------�-·---(-----'---



            downstairs. Appellant was acting nervous and asked the officer several times if

            his wife was alright. Appellant told Officer Kitz that he wanted to kill himself,

            that it was an accident. At that point, Officer Kitz took appellant into custody.

           Appellant was transported to homicide for questioning.

                      An autopsy was performed on Sharon Lin by Assistant Medical

            Examiner, Dr. Gregory McDonald. Dr. McDonald determined that Sharon Lin's

            death was caused by a single gunshot wound to the head. The bullet entered

            the left backside of the head and exited the left temple area producing multiple

           fractures and significant brain injury and blood loss resulting in death. He

           found no evidence of close range firing in the form of soot or stippling. It was

           his opinion, to a degree of scientific certainty, that the wound could not have

           been self-inflicted.

                      Police Officers Terrance Lewis and John Taggart of the Crime Scene

           Investigation Unit processed the crime scene. They surveyed the house, marked

           potential evidence, photographed the second floor front bedroom and prepared

           a sketch. Officer Lewis photographed what he believed from his experience to

           be a bullet strike mark over the closet in the northeast corner of appellant's

           bedroom. The strike mark contained hair-like fibers. Officer Lewis recovered

           and placed on a property receipt, a fired cartridge (FCC) case from the head of

           the bed near the pillow; a projectile from under the mattress which had human

           hair-like fibers attached to it; and a .9 millimeter handgun from inside the

           bottom drawer of the small nightstand next to the bed underneath some CD's.

           The evidence was turned over to the Firearms Identification Unit for analysis.

                                                                                                3
. --.. ... -------·--··-·-···-·--··---   .   -   .   -   ..   _., .....       �-···...;.._··-�-        ---�.....�-"""--l----4,.,;.:-. ..... ...J-- ----.-.: . ..- .




                                                                                                   i
           Analysis of this evidence determine� to a reasonable !degree of scientific

           certainty, that the FCC and the projectile were fin�d i� the gun recovered from
                                                                                                  .1
           the nightstand.                                                .              .
                                                                                                   I
                   Appellant was interviewed by Homicide Detecti�e Timothy Bass. Detective

           Bass administered both oral �d written Miranda wa,rnings to appellant, and at

           approximately 4:00 PM on May 12, 2007, appellant gave a seven page

           statement about the events surrounding his wife's death and provided a
                                                                                                   I
           diagram of the bedroom. Appellant told Detective Bass that he and Sharon Lin
                                                            goie
           had an argument and she left the house and was        all night. He went to

           work but returned home at approximately 10:00 AM to find her sleeping. They

           began to argue about several things, including family matters in China, their

           debt and a girl he met on the internet. Appellant said that he told Sharon Lin

           that he was going to shoot himself because he could no longer take the

           pressure. He pulled out his gun and had it in his hand and Sharon Lin took it

           away. They began to talk and she left the house and went to work at

           appellant's shop. At about 4:00 PM, Sharon Lin called and asked him to come

           to his shop because a customer needed an estimate for some work. Appellant

           refused, claiming he was tired. Approximately thirty minutes later, Sharon Lin

           arrived at home, claiming that she too was tired. They went to sleep and awoke

           around 6:30 PM and the argument began again. Appellant, tired of the

           argument, retrieved his gun from the heater cover where he said Sharon Lin

           had placed it, and left the house. When he returned, appellant placed the gun

           on the heater cover, the usual place he kept. He then noticed that the teievision

                                                                                                                                                                  I
                                                                                                                                         4                        I

                                                                                                                                                                  iI
                                                                                                                                                                  I
had been moved. Sharon Lin was in another bedroom at the time. Appellant

asked her why she moved the television and they began to fight again.

Appellant said that he then walked around the house trying to calm down. He

then went back to the bedroom to find Sharon Lin in the bed with both her

hands under the blanket. She was sitting up on the bed with her back against

the head board. The blanket was covering her up to her neck. They argued for

several minutes, then she pulled the gun out, put it to her head and said she

was going to kill herself. Appellant turned away, thinking that she was bluffing

and she pulled the trigger. Appellant also told Detective Bass that he and

Elaine, the girl he met on the internet, were soul mates and that he and

Sharon Lin had discussed divorce because of their arguments about his son

and their finances and Elaine. The night before the shooting, Elaine tried to

call him and Sharon Lin saw the number. Sharon Lin left the house and upon

her return, began to question him about Elaine. Appellant and Sharon Lin

began to fight. Appellant checked her phone on the computer and saw that she

had called Elaine and spoken with her for about thirty-nine minutes. Appellant

read the statement, even making corrections, and signed each page indicating

that it was accurate.

      At trial, Police Officer Esteban Roche, a computer forensic examiner who

analyzed the hard drive of the two computers recovered from appellant's house

testified that there had been a series of emails and internet telephone calls

between appellant and a female Jiang Wengin (also known as Elaine). There

was also communication between Sharon Lin and Elaine, who was in China,

                                                                                5
--��-   .                        ----· ---..__--·----�
            ...--.. ..... �··.....                                           ---......---·---·------··




   about an internet relationship between Elaine and appellant. The

   Commonwealth also introduced evidence that appellant's wife had been

   observed outside at night crying with bruises and a swollen face and that the

   police had been called to appellant's home on at least two occasions.

                In addition to his own testimony, appellant introduced the testimony of

   his partner in their vehicle inspection business, Ernesto Velazquez (Velazquez)

   and the expert testimony of forensic pathologist Dr. Paul Hoyer who testified

   that, based on his review of the autopsy report, the photographs, the discovery

   and digital images of the gun, it was his expert opinion that it was possible that

   Sharon Lin could have held the gun and shot herself; the weapon would be

   upside down, held in either hand and fired with the thumb of the other hand.

   Velazquez testified that he was managing appellant's affairs and that

   appellant's home was in foreclosure. He also testified that appellant had a good

   reputation and was known as someone who helped others.

                Appellant testified substantially in conformity with his statement to

   Detective Bass. He stated that both he and his wife were unhappy; he was in

   debt with two mortgages, two equity loans and a car loan. He was upset and

   could no longer stand the pressure and was going to kill himself. Sharon Lin

   took the gun from him. She went to work and later called him to say someone

   needed an estimate for work. He did not go and she returned home about 15-

   30 minutes later. They made love and slept. At about 6:30 PM, when he awoke,

   Sharon Lin was sitting next to him in bed on the computer. They began to

   argue about the emails between Elaine and Sharon Lin. Sharon Lin claimed

                                                                                          6
                                            ---- --                 .   --·------·--,   .   ........_.....__   ...   _



that appellant was talking bad about her to Elaine and that Elaine was trying

to take appellant away from her. Appellant read into the record, portions of

emails sent from Sharon Lin to Elaine and forwarded to him with comments in

Chinese which purported to corroborate his testimony that Elaine was not

talking bad about Sharon Lin. Appellant left the house and returned to find the

television knocked off the dresser. It made him angry and they began to fight.

He left the room and returned. Sharon Lin was on the bed, with her back

toward the headboard, underneath the blanket. She then said, "Don't push me.

I'll kill myself." Appellant was at the foot of the bed. He turned away, then

heard the gun discharge. When she fell, she turned almost 180 degrees and

knocked over the night stand. He did not know the gun was in the night stand.

Appellant claimed that he did not move her body or touch the gun. Following

the presentation of all of the evidence, the jury found appellant guilty of first

degree murder and PIC, and appellant was sentenced to life imprisonment.

Post sentence motions were denied without a hearing. On February 10, 2011,

the Superior court affirmed the judgment of sentence. Appellant's petition for

allowance of appeal to the Pennsylvania Supreme Court was denied on August

9, 2011.

      On September 9, 2011, appellant timely filed a prose PCRA petition and

counsel was appointed. PCRA filed a lengthy amended petition and a

supplemental petition to which the Commonwealth responded with a Motion to

Dismiss on January 22, 2013. The Court reviewed the submissions and

determined that no relief was due. On February 12, 2013, a Pa.R.Crim.P. 907

                                                                                                    7
-----··- ........��--'-'--··-- ---�-   , . - .. --   .- ... ·------'-•""t.... _............___ .. _..... , ...-.......-,_ -




   notice of intent to dismiss the petition without further proceedings was filed

   and served on appellant. Appellant filed a lengthy response to the notice. In his

   response to the 907 notice, appellan� alleged, among other things, that his

   PCRA counsel was ineffective. New PCRA counsel was appointed, however,

   shortly thereafter, appellant retained private counsel to represent him on

   PCRA. On May 22, 2016, private counsel filed a new petition incorporating the

   allegations of error from the amended and supplemental amended petitions

   filed by prior counsel, and raising several new claims of trial counsel

   ineffectiveness. The new petition included an extensive affidavit from Brent

   Turvey, PhD, forensic scientist, refuting the findings of Dr. McDonald and

   Robert Stott, and advancing his opinion that Sharon Lin's death was a suicide.

   On August 25, 2016, the Commonwealth filed a Motion to Dismiss, addressing

   appellant's new claims. The Court reviewed all of the filings, determined that

   appellant was not entitled to PCRA relief and again filed and served appellant

   with a Rule 907 notice. Both appellant and private counsel filed lengthy

   responses to the 907 notice which the Court thoroughly reviewed. On October

   21, 2016, following the presentation of argument by both counsel, appellant's

   petition for relief was dismissed without a hearing. This appeal followed.

         In reviewing the denial of PCRA relief, [the reviewing court] examines

   whether the PCRA court's determination is supported by the record and free of

   legal error. Commonwealth v. Tharp, 627 Pa. 673, 690, 101 A.3d 736, 746

   (2014). All of appellant's complaints on appeal allege the ineffectiveness of trial

   counsel. Trial counsel is presumed to be effective. Commonwealth v. Martin, 5

                                                                                                                 8
                        - ---·-·- ---------·--· , - -··· ·- ·-·-----·--·-----r----�----- --· --




A.3d 177, 183 (Pa. 2010). To overcome this presumption, appellant's burden is

to plead and prove each element of the test for ineffectiveness by a

preponderance of the evidence. Id. To be entitled 'to relief on an ineffectiveness

claim, [appellant] must prove that the underlying claim is of arguable merit,

that counsel's performance lacked a reasonable basis, and that counsel's

ineffectiveness caused him prejudice. Commonwealth v. Solano, 129 A.3d

1156, 1178 (Pa. 2015) citing Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d

203, 213 (2001); see also Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973

( 1987). Prejudice in the context of ineffective assistance of counsel means

demonstrating there is a reasonable probability that, but for counsel's error,

the outcome of the proceeding would have been different. Id. Where it is clear

that a petitioner has failed to satisfy any one prong of the test, the Court may

dispose of the claim on that basis alone. Commonwealth v. Steele, 961 A.2d

786, 795 (Pa. 2008).

      Appellant first complains that trial counsel was ineffective for not

expanding the scope of his forensic investigation by consulting with and

retaining a crime scene expert or reconstructionist to conduct a holistic

examination of all the physical evidence at the scene. A claim of ineffectiveness

generally cannot succeed through comparing, in hindsight, the trial strategy

employed with alternatives not pursued. Commonwealth v. Davido, 630 Pa.

217, 248, 106 A.3d 611, 629 (2014). In appellant's case, trial counsel's strategy

was to show that the decedent's gunshot wound was self-inflicted. Trial counsel

engaged an expert, pathologist Dr. Paul Hoyer, who testified that, based upon

                                                                                     9
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           his review of the autopsy report, the photographs, the discovery and digital

           images of the gun, it was his expert opinion that it was possible that Sharon

           Lin committed suicide; the weapon would be upside down, held in either hand

           and fired with the thumb of the other hand. Dr. Hoyer further testified that, for

           a suicidal gunshot wound of the head, this was the most common way of

           holding the weapon. It was his opinion that the evidence showed only that the

           wound was not a contact wound, not that the gun muzzle was three feet away

          when it was fired as Dr. McDonald opined. (N.T. 11/05/08 pg. 56-57, 71)

          When assessing whether counsel had a reasonable basis for his act or

           omission, the question is not whether there were other courses of action that

           counsel could have taken, but whether counsel's decision had any basis

           reasonably designed to effectuate his client's interest. Commonwealth v.

           Eichinger, 108 A.3d 821, 848 (2014) citing Commonwealth v. Williams, 587 Pa.

          304, 899 A.2d 1060, 1063-64 (2006). The record establishes that the strategy

          chosen by trial counsel had a reasonable basis designed to effectuate

          appellant's interests, namely that Sharon Lin's death was a suicide. Moreover,

          appellant has failed to demonstrate that the suggested alternative strategy

          identified by his hindsight approach (presenting an expert who would refute

          Dr. McDonald's opinion that the shot was fired from 2-3 feet away, and Robert

          Stott's opinion that appellant fired the shot while standing to the left of the

          bed), offered a reasonable probability of a different outcome at trial.

          Accordingly, this claim fails.




                                                                                                                                                               10
         -.. . . .;. .-·--- --· ...--:------ -- ·- ---- -------..-. ....�---· . ·"'-'-·· ......... .._.._. --- ....... �..- ··--··I····. - .......... ---1--····. --\,, ,___.




      Appellant next complains that trial counsel failed to present the

testimony of appellant's three neighbors, Troy Davis, Timothy Fleming and Rick

Kem, whose testimony would have corroborated appellant's version of events.

This claim is meritless. To prevail on a claim that counsel was ineffective for

failing to call witnesses, appellant must demonstrate: (1) the witnesses existed;

(2) the witnesses were available to testify; (3) counsel knew, or should have

known, the witnesses existed; (4) the witnesses were willing to testify; and (5)

the absence of the witnesses' testimony was so prejudicial that it denied

appellant a fair trial. Commonwealth v. Solano, 129 A.3d 1156, 1166 (Pa.

2015)(emphasis added). Attached to appellant's PCRA petition were the police

statements of each of the aforementioned witnesses: Troy Davis who stated

that he heard a shot, then heard his neighbor screaming, "call 911 ;" Timothy ·

Fleming who stated that he heard a gunshot, then a guy scream numerous

times from the upstairs window, "call an ambulance," and, "she shot herself;"

and, Rick Kern who stated that he heard a loud bang, then heard his neighbor

hollering, "somebody call 911."

      It is uncontroverted that, at the time of the incident, appellant stated

that Sharon Lin had killed herself. At trial, Officer Magsam, the first officer on

the scene, testified that, when he arrived, appellant kept screaming, saying

that, "she shot herself." (N.T. 11/04/08 pg. 39-42) Additionally, Officer Dennis

Johnson testified that, when he arrived, appellant was yelling to someone on
                                                                                                                                                                                :,

the phone, "she killed herself." (N.T. 11/04/08 pg. 93-95) Thus, this
                                                                                                                                                                                ·'
information was before the jury. Moreover, appellant has not shown that he
                                                                                                                                                                                i
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       was prejudiced by the absence of what would have been the cumulative

       testimony of Troy Davis, Timothy Fleming and Rick Kern. Counsel cannot be

       deemed ineffective for failing to call them as witnesses. See Commonwealth v.

       Wright, 599 Pa. 270, 961 A.2d 119, 155 (2008)(where witness's testimony

       would have been cumulative and not changed trial's. result, counsel not

       ineffective for failing to call her).

              Appellant next complains that trial counsel failed to object to alleged

       inadmissible and prejudicial hearsay and other crimes/bad acts testimony that

       appellant assaulted and otherwise mistreated Sharon Lin in the past.s At trial,

       the Commonwealth introduced evidence that appellant's wife (Sharon Lin) had

       been observed outside at night crying with bruises and a swollen face, and that

   the police had been called to appellant's home on at least two occasions. (N.T.

       11/04/08 pg. 16, 53-54, 76-80) Evidence of a crime, wrong, or other act is not

   admissible to prove a person's character in order to show that on a particular

   occasion the person acted in accordance with the character. Commonwealth v.

   Solano, supra. However, the evidence may be admissible for another purpose,

       such as proving motive, opportunity, intent, preparation, plan, knowledge,

   identity, absence of mistake, or lack of accident. Id. The evidence may also be

   admitted where the acts were part of a chain or sequence of events that formed

       the history of the case and were part of its natural development.

   Commonwealth v. Green, 2013 PA Super 249, 76 A.3d 575, 583 (2013) citing



   2Appellant does not specify the alleged inadmissible and prejudicial hearsay he claims entitles
   him to relief in his statement of errors complained of on appeal.

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           Commonwealth v. Powell, 598 Pa. 224, 956 A.2d 406, 419 (2008). The

           evidence that appellant assaulted and otherwise mistreated Sharon Lin shows

           the chain or sequence of events which formed the history of the case, is part of

           the natural development of the case, and demonstrates appellant's motive,

           malice, intent, and ill-will toward Sharon Liri. Commonwealth v. Jackson, 2006

           PA Super 128, ,i 7, 900 A.2d 936, 940-41 (2006). Therefore, the Court did not

           err in permitting the evidence to be introduced at trial. Because the evidence

           was properly admitted, trial counsel was not ineffective for failing to object to

           its admission.

                 Moreover, in the context of an ineffectiveness claim, counsel's failure to

           request a cautionary instruction regarding evidence of other crimes or prior

           bad acts does not constitute per se ineffectiveness; "[r]ather, in order to obtain

           relief under such a claim, [appellant] must still satisfy each of the three prongs

           of the test for ineffective assistance of counsel." Commonwealth v. Weiss, 622

           Pa. 663, 716, 81 A.3d 767, 798.(2013). Assuming arguendo, that the failure of

           trial counsel to request a cautionary instruction on evidence of prior bad acts

           was error, based upon the evidence, it was harmless. Id. The test for

           determining whether an error is harmless is as follows: Harmless error exists

          where: (1) the error did not prejudice the defendant or the prejudice was de

           minimis; (2) the erroneously admitted evidence was merely cumulative of other

          untainted evidence which was substantially similar to the erroneously admitted

           evidence; or (3) the properly admitted and uncontradicted evidence of guilt was

           so overwhelming and the prejudicial effect of the error was so insignificant by

                                                                                                                                      13
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comparison that the error could not have contributed to the verdict.

Commonwealth v. Page, 2009 PA Super 20,           ,r 25, 965 A.2d   1212, 1221-22

(2009). The analysis is closely tied to the facts of the case and requires an

examination of the entire record. Commonwealth v. Melvin, 2014 PA Super

181, 103 A.3d 1, 20 (2014). In the instant case, it was established that

appellant and Sharon Lin were the only two people in the room at the time of

the shooting. The testimony regarding the lack of evidence of close range firing,

the location of the strike mark, the pattern of the blood spatter and that the

weapon used was located beneath several CD's in the bottom drawer of the

nightstand demonstrate that the lack of a cautionary instruction the error did

not prejudice the defendant or the prejudice was de minimis and/ or the

properly admitted and uncontradicted evidence of guilt was so overwhelming

and the prejudicial effect of the error was so insignificant by comparison that

the error could not have contributed to the verdict. Therefore, this claim fails.

      Appellant complains that trial counsel was ineffective for failing to

request a "missing evidence" instruction based on the Commonwealth's

admitted negligence in failing to preserve evidence from Sharon Lin's hands

that would have enabled forensic examiners to perform gunshot residue testing

on Sharon Lin's hands which deprived him of his due process right to

potentially exculpatory evidence. This claim is likewise meritless.

Commonwealth witness, Detective Timothy Bass testified that a SEM test that

could have detected lead residue on Lin's hands was not performed because

Lin's hands were not "bagged" to preserve the evidence due to an oversight by

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                   the crime scene unit and the detectives at the scene. {N.T. 11/04/08 pg. 216-

                   217) When the state fails to preserve evidentiary material of which not more

                   can be said than that it could have been subjected to tests, the results of which

                   might have exonerated the defendant, the failure to preserve such evidence

                   does not violate due process unless [appellant] can show bad faith on the part

                   of the police. Commonwealth v. Snyder, 599 Pa. 656, 676, 963 A.2d 396, 408

                   (2009} citing Illinois v. Fisher, 540 U.S. 544, 124 S.Ct. 1200, 157 L.Ed.2d 1060

                   (2004). A showing of bad faith is required for a due process violation where the
                                                        .
                   Commonwealth destroys potentially useful evidence before the defendant has

                   an opportunity to examine it, no matter whether the evidence is introduced at

                   trial and no matter how useful the evidence is to the prosecution or the

                   defense. Id. See Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102

                   L.Ed.2d 281 ( l 988)(whether a federal due process violation occurs depends on

                   whether the evidence can be considered materially exculpatory or merely

                   potentially useful to a defendant; "potentially useful" evidence is evidence that

                   "could have been subjected to tests, the results of which might have exonerated

                   the defendant."). Because the evidence at issue was only potentially useful and

                   appellant has made no showing of bad faith, this claim fails. Accordingly, trial

                   counsel cannot be deemed ineffective for failing to raise a meritless claim.

                   Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586, 603 (2007).

                             Appellant complains that trial counsel was ineffective for failing to

                   request that the Court instruct the jury on appellant's suicide theory of

                   defense. This claim is also meritless. Defendants are generally entitled to

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instructions that they have requested and that are supported by the evidence.

Commonwealth v. Markman, 591 Pa. 249, 916 A.2d 586, 607 (2007).

Therefore, the defendant must establish that the trial evidence would

reasonably support a verdict based on the desired charge and may not claim

entitlement to an instruction that has no basis in the evidence presented

during trial. Commonwealth v. Hairston, 624 Pa. 143, 163, 84 A.3d 657, 668

(2014). While appellant did pursue a suicide defense, the evidence was not

consistent with suicide: there was no evidence of close range firing; the medical

examiner testified that the gunshot wound would have left the victim

immediately incapacitated; the murder weapon was found inside the bottom

drawer of the night stand underneath some CD's; and the blood evidence was

inconsistent with appellant's testimony of where the victim was positioned

when he alleged she shot herself. (N.T. 11/03/08 pg. 56-57, 63; 11/05/08

pg.14-16, 20-21) Instructing the jury on legal principles that cannot rationally

be applied to the facts presented at trial may confuse them and place obstacles

in the path of a just verdict. Commonwealth v. Charleston, 2014 PA Super 116,

94 A.3d 1012, 1026 (2014). See also Commonwealth v. Yale, 2016 PA Super

242, 150 A.3d 979, 986 (2016)(To instruct a jury on possible verdicts that are

unsupported by any evidence can serve only to pervert justice). Consequently,

appellant was not entitled to a suicide instruction. As such, trial counsel was

not ineffective for failing to request that the instruction be given.

      Appellant complains that the cumulative impact of trial counsel's alleged

objectively unreasonable decisions before and during trial undermines

                                                                                      16
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      confidence in the jury's first degree murder conviction entitling appellant to a

      new trial. Generally, no number of failed claims may collectively warrant relief

      if they fail to do so individually. Commonwealth v. Washington, 592 Pa. 698,

      927 A.2d 586, 617 (2007). However, when the failure of individual claims is

      grounded in lack of prejudice, the cumulative prejudice from those individual

      claims may properly be assessed. Commonwealth v. Koehler, 614 Pa. 159, 36

      A.3d 121, 161 (2012). In the instant case, the Court has determined that all of

      appellant's claims of ineffectiveness lack arguable merit. Thus, there is no

      basis for a claim of cumulative error. See Commonwealth v. Sattazahn, 597 Pa.

      648, 952 A.2d 640, 671 (2008)(where claims are rejected for lack of arguable

      merit, there is no basis for an accumulation claim).

              Finally, Appellant complains that the PCRA court erred by failing to grant

      an evidentiary hearing where trial counsel, Troy Davis, Timothy Flemings, Rick

      Kerns and Dr. Brent Turvey could present testimony and evidence in support

      of appellant's trial counsel ineffectiveness claims. The decision whether to

      grant an evidentiary hearing is within the discretion of the PCRA court and will

      not be overturned absent an abuse of discretion. Commonwealth v. Reid, 627

      Pa. 151, 176, 99 A.3d 470, 485 (2014). There is no absolute right to an

      evidentiary hearing on a post-conviction petition, and if the PCRA court can

      determine from the record that no genuine issues of material fact exist, then a

      hearing is not necessary. Commonwealth v. Jones, 942 A.2d 903, 906

      (Pa.Super.2008). A reviewing court must examine the issues raised in the PCRA

      petition in light of the record in order to determine whether the PCRA court

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          erred in concluding that there were no genuine issues of material fact and in

          denying relief without an evidentiary hearing. Commonwealth v. Springer, 961

          A.2d 1262, 1264 {Pa.Super.2008). In the instant case, based upon the record,

          the Court determined that each of appellant's ineffective assistance of trial

          counsel claims did not meet all three prongs of the Pierce test thereby

          rendering the claims meritless. Hence, no evidentiary hearing was warranted.

          See Commonwealth v. Jones, supra (if the court can determine without an

          evidentiary hearing that any one of the prongs necessary to prove the

          ineffective assistance of counsel cannot be met, then no purpose would be

          advanced by holding an evidentiary hearing.).

                 For the foregoing reasons, appellant's petition for post-conviction relief

          was properly denied without a hearing.



                                                           BY THE COURT:




                                                            SHEILA WOODS-SKIPPER, PJ




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