J-S52021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                        Appellee

                   v.

BENJAMIN J. DENNERLEIN,

                        Appellant                 No. 2065 WDA 2014


           Appeal from the PCRA Order of November 19, 2014
             In the Court of Common Pleas of Beaver County
           Criminal Division at No(s): CP-04-CR-0001592-2009


BEFORE: SHOGAN, OLSON and WECHT, JJ.

MEMORANDUM BY OLSON, J.:                     FILED NOVEMBER 16, 2015

     Appellant, Benjamin J. Dennerlein, appeals from the order entered on

November 18, 2014, denying him relief under the Post-Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

     The PCRA court provided us with a thorough and well-written summary

of the underlying facts and procedural posture of this case.   As the PCRA

court explained:

        On July 17, 2009, [Appellant] was charged with [murder].
        . . .    The charge[] stem[med] from an incident that
        occurred    in   Freedom      Borough,    Beaver    County,
        Pennsylvania, in either the late evening hours of May 12 or
        early morning hours of May 13, 2009. The victim, Elizabeth
        Grosskopf [(hereinafter “the Victim”)], was found dead in
        her residence at 1475 Fifth Avenue, Freedom Borough,
        Beaver County, Pennsylvania. An autopsy determined that
        [the Victim] died due to multiple stab wounds to the head
        and neck areas. After an investigation by the Freedom
        Borough Police and the Beaver County Detectives’ Bureau,
        [Appellant] was charged with homicide.
J-S52021-15



       The case was scheduled for a jury trial before the Honorable
       John Dohanich. . . . [T]he jury convicted [Appellant] of
       [first-degree] murder on August 3, 2010. On September
       29, 2010, Judge Dohanich sentenced [Appellant] to life
       imprisonment without [the possibility] of parole.

       No post-sentence motions were filed, but a timely notice of
       appeal was filed with the Superior Court [] on October 27,
       2010. [The Superior Court affirmed Appellant’s judgment of
       sentence on April 2, 2012 and the Pennsylvania Supreme
       Court denied Appellant’s petition for allowance of appeal on
       October 22, 2012].

       [Appellant] filed a timely pro se [PCRA] petition[] and [the
       PCRA court appointed counsel] to represent [Appellant] in
       the post-conviction proceeding[s]. [Appointed counsel] filed
       an amended [PCRA petition on Appellant’s behalf and the
       PCRA] court conducted a hearing on the petition on August
       4, 6[,] and 8[,] 2014. . . .

                                 FACTS

       A. Facts and Evidence Adduced and Presented at Trial
       in July and August[] 2010

                                   ...

       [The following evidence was presented during Appellant’s
       trial].

       [The Victim], age 54, resided at 1475 Fifth Avenue,
       Freedom, Beaver County, in a residence owned by her and
       Robert Campbell, a former paramour, with whom she
       maintained a friendly relationship. [The Victim] was a frail
       woman in poor health, suffering from various medical
       conditions[,] which caused her to be unsteady and prone to
       falling on occasion.     [The Victim] and Mr. Campbell
       purchased the residence in 2003, subject to a mortgage;
       however, the property was titled solely in [the Victim’s]
       name because of Mr. Campbell’s unstable financial
       condition. Subsequently, [the Victim] transferred the title
       by deed dated February 28, 2008, to herself and Mr.


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       Campbell, as joint tenants with the right of survivorship. . .
       .

       [The Victim] and Mr. Campbell [] lived together for
       approximately ten years until May[] 2008, when Mr.
       Campbell left the residence to commence a live-in
       relationship with his current wife, Karen Otrhalik Babich.
       Mr. Campbell and Ms. Babich commenced their relationship
       in December[] 2007, which culminated in their marriage in
       October[] 2008.

       Mr. Campbell’s last contact with the [V]ictim occurred on
       May 8, 2009, when she telephoned to inform him that on
       May 7, 2009, she had received and deposited the sum of
       $31,128.14, representing her share of the proceeds from
       the sale of her parents’ cottage in Erie. They discussed the
       uses to which she could put the funds.         [The Victim]
       maintained a personal checking/credit/debit account with
       the Northern Lights branch of ESB Bank[,] which she
       opened [on] May 19, 1997. The account was limited to
       withdrawals of $510.00 per 24-hour period.

       Mr. Campbell was introduced to [Appellant] approximately
       four years prior to the [V]ictim’s death while both were
       inmates in the Beaver County [Jail] for reasons unrelated to
       the instant case. Upon release from incarceration, Mr.
       Campbell and [Appellant] maintained a friendly relationship,
       and [Appellant] resided with Mr. Campbell [and the Victim]
       from time to time when he was in need of a temporary
       residence. All three individuals were users of and smoked
       cocaine together on occasion. In December[] 2008, and
       continuing until the time of [the Victim’s] death, [Appellant]
       resided at the [V]ictim’s home, paying rent in the amount of
       $50.00 per week. [Appellant] was employed at Crow’s Run
       Recycling as a salesperson from 2008 through May 13,
       2009.

       Prior to her death, [the Victim] was employed as a cashier
       at the Center Township Wal-Mart. [The Victim] last worked
       on May 11, 2009, from 11:00 [a.m.] until 8:00 [p.m.] and
       was observed at work by her neighbor, Dwight McMorris,
       while he was shopping at [the] Wal-Mart. Mr. McMorris
       subsequently observed the [V]ictim between 8:40 [p.m.]
       and 8:50 [p.m.] on the same day as she drove by his home

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       on the way to her residence after completing her work day.
       Mr. McMorris was the last person other than the perpetrator
       to see [the Victim] alive.

       [The Victim] was scheduled to work on May 12, 2009, from
       11:00 [a.m.] to 8:00 [p.m.]; however, she did not appear
       for work [or] call to indicate that she would not be present
       for work that day, which was unlike her because she was a
       reliable employee. Shortly before her death, [the Victim]
       reported to one of her co-workers, Nancy Pranskey, that
       [Appellant] had been stealing from her and using her
       credit/debit card to purchase items. Bank records disclosed
       that on May 5, 2009, [the Victim’s] bank account had been
       overdrawn by $741.11 as a result of eight transactions.

       [Appellant] also did not appear at his place of employment
       on May 12, 2009, and terminated his employment due to a
       disagreement with his employer, Nick D’Itri, by way of a
       text message on May 13, 2009, at 12:52 [p.m.] [Appellant]
       had been a good employee until approximately one month
       prior to terminating his employment when he began not
       reporting for work. The prior week he failed to appear for
       work on four consecutive days. His employer suspected that
       drug use was responsible for [Appellant’s] decline in
       performance. [Appellant’s] last working day was May 11,
       2009.

       Between 10:00 [a.m.] and 10:30 [a.m.] on May 12, 2009,
       Mr. Campbell sought [Appellant] at his place of
       employment.      Not locating him at work, Mr. Campbell
       proceeded to the [V]ictim’s residence and found [Appellant]
       present. Mr. Campbell noted that [Appellant] appeared to
       be under the influence of drugs.       When Mr. Campbell
       inquired of [Appellant] as to the whereabouts of the
       [V]ictim, [Appellant] replied that he had taken her to work
       earlier that morning, because he was in need of her vehicle
       to run errands. Mr. Campbell, who maintained various
       items of personal property at the residence, searched the
       home to assure that his belongings were present and was
       followed through the house by [Appellant]. When looking
       into the [V]ictim’s bedroom, Mr. Campbell observed that the
       bed had been made, which was unusual because the
       [V]ictim was a poor housekeeper and never made the bed.
       [Appellant] was directly behind Mr. Campbell as he was in

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J-S52021-15


       the doorway to the [V]ictim’s bedroom. [Appellant] and Mr.
       Campbell became involved in a heated argument over
       [Appellant] not working to pay rent to the [V]ictim and his
       drug use. Mr. Campbell informed [Appellant] that he would
       return to the residence between 8:30 [p.m.] and 9:00
       [p.m.], when the [V]ictim returned from work, to speak
       with [Appellant] and the [V]ictim.

       Later in the same day at 3:25 [p.m.] [Appellant], using the
       [V]ictim’s credit/debit card, made a balance inquiry at ESB
       Bank located at 921 Third Avenue in New Brighton.
       [Appellant], utilizing the [V]ictim’s credit/debit card,
       purchased various items at the Chippewa Township K-Mart
       between 6:51 [p.m.] and 7:09 [p.m.] and proceeded to the
       home of Gregory “Wimpy” Price and Wendy McCoy to
       deliver items to Mr. Price, including video games, movies[,]
       and an electric can opener, to reimburse Mr. Price for tires
       that he purchased. . . .

       [B]etween 8:30 [p.m.] and 9:00 [p.m.] on May 12, 2009,
       Mr. Campbell and his wife returned to the [V]ictim’s
       residence and found no one present. The [V]ictim’s vehicle
       was not in the area. Throughout the evening and into the
       early morning hours of May 13, 2009, Mr. Campbell
       attempted on 30 occasions to reach [Appellant] and on 17
       occasions to contact the [V]ictim by telephone and through
       text messages[,] indicating his desire to speak to them. He
       received no responses, except that [Appellant] sent a text
       message advising that the Baden police would be interested
       in Mr. Campbell’s use of marijuana. During the evening, Mr.
       Campbell and his wife left and returned to the [V]ictim’s
       residence on two additional occasions and did not find
       anyone or the [V]ictim’s automobile at the home. They left
       for the final time at approximately 12:00 [a.m.], returned
       to their residence[,] and retired for the night.

       On May 13, 2009, at approximately 12:26 [a.m.],
       [Appellant] checked into Room 12 of the Beaver Falls Motel
       in Beaver Falls, following which he contacted Laura Rankin[
       and] ask[ed] her to join him in smoking crack cocaine. Ms.
       Rankin telephoned Jennifer Burns, requesting that she
       provide transportation to the motel. Jennifer Burns and
       Bryan Silberger retrieved Ms. Rankin and her infant child
       and drove to the motel to meet [Appellant]. Ronald “Toot”

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       Goodman, the father of a child with Ms. Burns, and Patrick
       Brown, a supplier of crack cocaine for [Appellant], also
       appeared at the motel. Mr. Brown provided the cocaine to
       [Appellant]. [Appellant], when asked the reason for being
       in possessing of the [V]ictim’s vehicle, informed Ms. Rankin
       that the [V]ictim was away on vacation visiting her niece in
       Maryland or Virginia. [Appellant] told Mr. Silberger that the
       [V]ictim was away in Maryland to visit her brother for a
       week. [Appellant], in an effort to assure Mr. Brown, his
       cocaine supplier, that he had sufficient funds when
       requesting Mr. Brown to provide an advance of drugs, had
       previously forwarded a text message to him on May 9,
       2009, showing a balance in the [V]ictim’s bank account of
       $29,712.14. [Appellant] and the other individuals smoked
       crack cocaine throughout the early morning hours of May
       13, 20[09], until approximately 5:00 [a.m.] During that
       time, [Appellant] and Ms. Rankin left the motel and
       proceeded to two convenience stores to purchase items and
       attempted to obtain funds using the [V]ictim’s credit/debit
       card. At one point in time, [Appellant] advised Ms. Rankin
       that he was using the [V]ictim’s credit/debit card, showed
       her the balance in the account and stated to her, “stick with
       me and good things will happen[.”]

       Mr. Campbell, accompanied by two friends, Martin Costanza
       and Justin Hertnecky, proceeded to the [V]ictim’s residence
       on May 13, 2009, between 8:30 [a.m.] and 9:00 [a.m.] No
       one was present and the [V]ictim’s car was not at the
       residence.    The three of them gathered [Appellant’s]
       belongings, placed them in garbage bags[,] and stored the
       bags in the garage of the residence. Mr. Campbell opened
       the [V]ictim’s bedroom door and found the bed in the same
       condition as the day before, as if it had not been disturbed.
       They then left the residence and returned to Mr. Campbell’s
       house for the balance of the morning. Mr. Campbell’s
       intention was to evict [Appellant].

       After leaving the motel and driving his friends home,
       [Appellant] claimed to have returned to the [V]ictim’s
       residence to locate her, found that she was not present,
       that her bed did not appear to have been slept in, and then
       proceeded to the Beaver Valley Mall. At 1:15 [p.m.] on May
       13, 2009, [Appellant] presented a check made payable on
       the [V]ictim’s account to himself in the amount of

                                   -6-
J-S52021-15


       $1,000.00 at the ESB Bank in Beaver Falls. The memo
       portion of the check indicated the words, “roof/porch[.”]
       [Appellant] explained that he had performed work for the
       [V]ictim and the check represented payment. Ms. Celeste,
       the [V]ictim’s [next-door] neighbor, indicated that no recent
       work had been done on the house. The bank representative
       requested identification from [Appellant], since he did not
       have an account with the bank, and he provided his driver’s
       license. The check was drawn on the Northern Lights ESB
       Bank located in Baden.         The Beaver Falls ESB Bank
       manager telephoned the Northern Lights branch and
       obtained a facsimile of the signature card of the [V]ictim.
       The Beaver Falls branch manager also placed two telephone
       calls to the [V]ictim’s residence and the telephone was not
       answered on either occasion. After being unable to verify
       [Appellant’s] correct address and telephone number or the
       [V]ictim’s signature, the bank refused to cash the check and
       returned the check to [Appellant].

       Trooper Robert Negherborn, a forensic document examiner
       with the Pennsylvania State Police Crime Laboratory,
       recovered from the face of the subsequent check in the
       [V]ictim’s checkbook the impression of the writing depicting
       the text of the previous check payable to [Appellant],
       including the authorizing signature. [Trooper Negherborn]
       was further provided with handwriting samples of the
       [V]ictim and [Appellant]. Although not issuing a conclusive
       opinion, Trooper Negherborn testified that in comparing the
       writing on the check with the samples of the handwriting of
       the [V]ictim and [Appellant], there was a strong probability
       that the signature on the check was not that of the [V]ictim.
       He further opined that there were no significant similarities
       to indicate that the [V]ictim or [Appellant] wrote the entries
       on the check, or that [Appellant] wrote the signature on the
       check.

       At approximately 2:00 [p.m.] on May 13, 2009, [Appellant]
       purchased tennis shoes at the Shoe Department Store at
       the Beaver Valley Mall using the [V]ictim’s credit/debit card.
       A short time later[,] he attempted to return the tennis
       shoes for a cash refund without the credit/debit card and
       was refused. [Appellant] was accompanied by Ms. Rankin
       and met Mr. Price while at the Beaver Valley Mall and
       purchased other items with the [V]ictim’s credit/debit card.

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       He also attempted to buy tennis shoes for Mr. Price using
       the [V]ictim’s credit/debit card and was refused.

       At approximately 1:00 [p.m.], Kelly Carter, who had
       previously made payment of $500.00 for the purchase of an
       automobile from [Appellant], telephoned [Appellant]
       informing him that he was at the residence desiring to
       retrieve the vehicle from the garage. [Appellant] advised
       Mr. Carter that he would not arrive for a period of time, and
       Mr. Carter waited. When [Appellant] failed to appear, Mr.
       Carter made a second telephone call, at which time
       [Appellant] instructed Mr. Carter to enter the home to
       obtain the remote control for the garage door. At the
       direction of [Appellant], Mr. Carter entered the house by
       way of a window and was unable to locate the remote
       control while continuing to speak to [Appellant] on the
       telephone. Mr. Carter then telephoned Mr. Campbell, who
       subsequently arrived and informed Mr. Carter that he was in
       possession of the remote control and would not permit the
       removal of the vehicle until [Appellant] appeared. Mr.
       Carter placed a third call to [Appellant], who indicated he
       would return later. Both Mr. Campbell and Mr. Carter
       observed what appeared to be blood on the [V]ictim’s dog
       and entered the house to investigate. Mr. Campbell entered
       the [V]ictim’s bedroom and discovered a pool of blood on
       the bed where the blanket had been pulled away. He called
       Mr. Carter into the bedroom to observe the blood. Mr.
       Carter then telephoned [Appellant], informed him of their
       findings[,] and inquired whether he knew the whereabouts
       of the [V]ictim, to which [Appellant] replied that he thought
       she was at work. Mr. Carter told [Appellant] he should
       return to the residence immediately. [Appellant] indicated
       that he was at the Beaver Valley Mall and would return
       home at a later time. He also stated that he had not been
       at the residence for several days. Mr. Campbell, after
       contacting the [V]ictim’s employer and the hospital in an
       unsuccessful attempt to locate her, placed a call to [911] at
       2:54 [p.m.] Freedom Borough Chief of Police John Hill and
       Officer William Dreyer of the Freedom Borough Police
       Department responded to the call at approximately 3:00
       [p.m.] Andrew Gall of the Beaver County Detective Bureau
       received a call for assistance from the Freedom police
       officers at 3:10 [p.m.] and responded to the residence with


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       County Detectives Timothy Staub, Kim Clements, Timmie
       Patrick[,] and Robert Chamberlain.

       A search of the residence disclosed the [V]ictim’s body
       wrapped in blankets in a stairwell on the second floor
       leading to the attic, which was located between the
       bedrooms of the [V]ictim and [Appellant] and could be
       accessed from both bedrooms.          The police found no
       evidence of forced entry into the home. When informed of
       [the Victim’s] death, Mr. Campbell became extremely
       distraught. As a result of receiving information from Ms.
       Rankin’s mother that Ms. Rankin was with [Appellant] in her
       vehicle at the Beaver Valley Mall, a BOLO (be on look out)
       alert was broadcast for [Appellant], the [V]ictim’s vehicle[,]
       and the vehicle being operated by Ms. Rankin and owned by
       [Ms. Rankin’s] mother. Ms. Rankin received telephone calls
       from a friend and her mother advising that the names of
       [Appellant] and Ms. Rankin were heard on the [police]
       scanner indicating that the police were attempting to locate
       [Appellant].

       Detective Patrick proceeded to [Appellant’s] place of
       employment and in speaking to Mr. D’Itri[,] found that
       [Appellant] last worked on May 12, 2009, and terminated
       his employment on May 13, 2009. Mr. D’Itri provided
       [Appellant’s] cellular telephone number to Detective Patrick,
       who attempted several calls and text messages to
       [Appellant] with no response.

       At 6:07 [p.m.], Officer Maxim Strano of the Center
       Township Police Department, in response to the alert,
       located [Appellant] and Ms. Rankin in the automobile being
       operated by Ms. Rankin as it was backing out of a parking
       space at the Beaver Valley Mall. [Appellant] stated to Ms.
       Rankin “to go or he was going to run[.”] Officer Strano
       drew his weapon, ordered both individuals to the ground,
       approached [Appellant,] and placed [Appellant] in
       handcuffs.    [Appellant] stated that he thought about
       running and should have run when he saw the officer.
       [Appellant] also indicated that Officer Strano had the wrong
       man.     The [V]ictim’s credit/debit card was found in
       [Appellant’s] wallet. The [V]ictim’s vehicle was also located
       a short distance away.


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       [Appellant] and Ms. Rankin were transported to the Center
       Township Police Department. At 6:39 [p.m.], [Appellant]
       waived his [Miranda] rights and agreed to speak with
       Detectives Patrick and Clements. [Appellant] was informed
       of [the Victim’s] death and showed no emotion.           He
       indicated that in the evening hours of May 11, 2009, he and
       his girlfriend, Colleen Cantella, were at the [V]ictim’s
       residence viewing the Pittsburgh Penguins/Washington
       Capitals hockey game. [Appellant] further advised that the
       [V]ictim came home from work during the hockey game.
       According to [Appellant], Ms. Cantella departed after the
       hockey game to return to her residence. This information
       was contrary to the statement made by Ms. Cantella that
       she was not at the [V]ictim’s residence on May 11th and that
       [she and Appellant] had exchanged text messages between
       9:23 [p.m.] and 10:07 [p.m.] near the end of the hockey
       game, when she was at her own residence. . . .

       [Appellant] stated that on May 12, 2009, he drove the
       [V]ictim to work at Wal-Mart at approximately 10:00
       [a.m.], attended to several errands[,] and returned to the
       residence, when he made contact with Mr. Campbell and a
       verbal argument ensued. After the disagreement with Mr.
       Campbell, he advised that he left the residence, ran a few
       more errands[,] and went on a crack cocaine binge. He
       stated that he returned to Wal-Mart between 8:00 [p.m.]
       and 8:30 [p.m.] to pick up [the Victim], and when she did
       not come out to the vehicle, he went into the store and was
       told that she was not at work all day. He also advised the
       detectives that he tried to call [the Victim] and received no
       reply. The [V]ictim did not report to work on May 12, 2009,
       and video footage of the entrance and the customer service
       area of Wal-Mart disclosed that [Appellant] did not appear
       at the relevant time. . . .

       [Appellant] obtained crack cocaine from Mr. Price and
       checked into the Beaver Falls Motel to smoke crack cocaine
       with Ms. Rankin and her friends. They all remained at the
       motel into the early morning hours of May 13, 2009.
       [Appellant] advised that he checked out of the Beaver Falls
       Motel at approximately 11:00 [a.m.] and returned to the
       residence to look for the [V]ictim. He found that her bed
       was made and did not appear to have been slept in.
       [Appellant] then proceeded to the Beaver Valley Mall where

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       he met Mr. Price and offered to purchase tennis shoes for
       him as payment for cocaine previously supplied by Mr.
       Price. [Appellant] attempted purchases at two separate
       retail locations using the [V]ictim’s credit/debit card and
       was rejected. [Appellant] advised that he had the
       information regarding the [V]ictim’s credit/debit card,
       including the [V]ictim’s personal identification number (PIN)
       to access the account. [Appellant] related that he obtained
       the credit/debit card from the [V]ictim’s purse located in the
       kitchen of the residence. The detectives were unable to
       locate the [V]ictim’s purse in the kitchen of the home and
       subsequently found it in the [V]ictim’s vehicle.         Upon
       receiving this information, [Appellant] informed the
       detectives that he had taken the credit/debit card out of the
       [V]ictim’s purse and placed the purse in the automobile.
       [Appellant] claimed to have permission from the [V]ictim to
       use the credit/debit card. . . .

       Near the conclusion of the interview, which lasted
       approximately one hour, [Appellant] stated to the
       detectives that if they were going to arrest him for murder
       to do so. He further stated that “all I have to do is convince
       one person” that he did not commit the offense. The
       [V]ictim’s purse, Wal-Mart identification card, driver’s
       license, checkbook[,] and cellular telephones were all
       located in the [V]ictim’s vehicle, which was in the
       possession of [Appellant].

       Prosecutors acquired the [V]ictim’s bank records for the
       period from May 1, 2009, through May 31, 2009, the
       telephone records of [Appellant] from May 8, 2009, through
       May 14, 2009, and located various receipts for purchases
       and automatic teller machine (ATM) withdrawals from the
       [V]ictim’s account in the vehicles of the [V]ictim and Ms.
       Rankin and in the trash bin at the Beaver Falls Motel. . . .

       In addition, Detective Chamberlain obtained documentation
       from Verizon Wireless depicting the sites of cellular
       telephone towers in Beaver County from which he was able
       to confirm the approximate location of [Appellant] when he
       was using his cellular telephone. This information, together
       with the known observations of [Appellant] from witnesses
       and the video displays of [Appellant] at bank ATM and retail
       locations, placed [Appellant] in the area of the [V]ictim’s

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       residence during the hours when she would have been killed
       and at the various locations at which he made ATM
       withdrawals and purchases using the [V]ictim’s credit/debit
       card.

       An examination of [Appellant’s] blue jeans and tennis shoes
       under a blue light revealed possible blood stains. Samples
       of the blood of the [V]ictim and [Appellant], together with
       [Appellant’s] blue jeans, were delivered to the Pennsylvania
       State Police Crime Laboratory for analysis. Jennifer Badger,
       a forensic scientist in the serology section, determined that
       two stains on the outside seam of the lower leg of
       [Appellant’s] blue jeans consisted of blood. She further
       detected the presence of blood on the eyelet of the toe of
       [Appellant’s] left athletic shoe, but the sample was
       insufficient for a confirmatory testing for blood. In addition,
       examination of the handle of a steak knife found in the
       kitchen sink of the [V]ictim’s residence submitted to the
       crime laboratory disclosed evidence of blood. Ms. Badger
       prepared samples of dried blood of the [V]ictim and
       [Appellant] and swabs of the blood on [Appellant’s] jeans,
       tennis shoes[,] and the steak knife for submission to the
       DNA section of the crime laboratory. Michael Biondi, a
       forensic scientist supervisor in the DNA section, conducted
       DNA testing on the swabs of [Appellant’s] blue jeans and
       determined that the blood on the jeans matched the
       [V]ictim’s blood. The DNA profiles of the [V]ictim and
       [Appellant] could not be excluded as potential contributors
       of the blood stain from [Appellant’s] shoe. The DNA profile
       of the [V]ictim was excluded as a contributor as to the knife
       in the kitchen sink, while the DNA profile of [Appellant]
       could not be excluded as a contributor for the blood on the
       knife, because there also appeared DNA types from two
       unidentified individuals.

       Dr. James Smith, a forensic pathologist, determined that
       due to observing the greenish discoloration of the body,
       signifying the first sign of decomposition, the [V]ictim’s
       death occurred within an 18-hour to 36-hour period
       between 3:00 [a.m.] and 9:00 [p.m.] on May 12, 2009. Dr.
       Smith opined that the cause of death was the stab wounds
       to the neck which incised the right carotid artery and the
       right jugular vein. He noted a total of 46 knife wounds, 34
       of which were located in the left neck region. Dr. Smith

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       further described defensive wounds on the [V]ictim’s hands
       and fingers indicating that the [V]ictim attempted to ward
       off her attacker. He testified that the concentration of the
       wounds in the neck area was an indication the [V]ictim was
       held down and was struck with such force as to penetrate
       from the left through the right side of the neck. Dr. Smith
       estimated that the blade of the knife was approximately
       one-half inch in width and three inches in length. The
       manner of death was homicide.

       James Sarver met [Appellant] on May 15, 2009, while both
       were inmates in the Beaver County Jail. Mr. Sarver also
       was familiar with Mr. Campbell from whom he had
       purchased marijuana in the past. Mr. Sarver related that
       [Appellant] admitted to him that he had killed [the Victim]
       and intended to place blame on Mr. Campbell for the crime.
       In a second conversation with Mr. Sarver, [Appellant]
       queried as to why Mr. Campbell came to the [V]ictim’s
       residence and removed the sheets on the bed revealing the
       pool of blood. [Appellant] informed Mr. Sarver of the limit
       of $500.00 on the [V]ictim’s credit/debit card and confirmed
       that he went partying and shopping after the killing. Mr.
       Sarver testified that he had previously been a visitor at the
       [V]ictim’s residence, [but was] limited [] to the main floor
       of the house.

       Zack Valentine was [Appellant’s] cellmate at the Beaver
       County Jail for approximately two weeks. On May 18, 2009,
       Mr. Valentine provided a statement to police in which he
       indicated that he had become acquainted with [Appellant]
       prior to their incarceration while working at Crow’s Run
       Recycling.      Mr. Valentine stated that [Appellant]
       acknowledged that he had killed the victim, wrapped her in
       a blue blanket and placed her body in the stairway to the
       attic between the two bedrooms in the [V]ictim’s residence.
       [Appellant] also outlined [to Mr. Valentine] the layout of the
       house and provided a diagram detailing the location of the
       bedrooms and the doorways from each bedroom to the
       attic. [Appellant] further described [to Mr. Valentine] the
       placement of a tan blanket covering the blood on the bed
       and complained that Mr. Campbell had pulled the blanket
       away exposing the blood. Mr. Valentine, who had never
       been to the residence, drew a diagram of the residence for
       the police based upon [Appellant’s] description.           Mr.

                                   - 13 -
J-S52021-15


       Valentine had been unaware of the homicide until his
       conversation with [Appellant].

       [Appellant] presented evidence in an effort to place
       culpability for the crime on Mr. Campbell by attempting to
       demonstrate that he had been physically abusive toward the
       [V]ictim and that he had a financial motive for killing her.

       Mr. Campbell testified that the [V]ictim called him shortly
       after he had moved out of the house and into Ms. Babich’s
       residence, indicating that she desired to title the home in
       both of their names. Ms. Babich, who was a mortgage
       processor and notary public, fabricated the transfer by
       having the deed prepared, notarizing [the Victim’s]
       signature, recording the deed and paying the recording fee
       and transfer taxes, for which she was subsequently
       reimbursed.

       Patricia Celeste, the [next-door] neighbor and friend of the
       [V]ictim, observed a black eye on the [V]ictim on one
       occasion and her leg to be injured at a subsequent meeting,
       both injuries which the [V]ictim attributed to [Appellant].
       When Ms. Celeste confronted [Appellant] regarding the
       incidents, he apologized for his actions.        He further
       explained that the black eye occurred when he became
       angry with the [V]ictim for refusing to eat dinner he had
       prepared and he had struck the [V]ictim with the food plate.
       ...

       Stacie Delp, Kristine Ramer[,] and Nancy Pranskey, all co-
       workers of the [V]ictim, noted black eyes on the [V]ictim,
       with Ms. Delp also observing the injured leg. Only Ms.
       Pranskey testified that the [V]ictim told her that the injuries
       were inflicted by Mr. Campbell.

       On the evening of May 9, 2009, while Mr. Campbell, his
       wife[,] and his friend, Martin Costanza, were patrons at
       Harvey Run Inn, a local tavern, Crystal Barnes, an
       employee, overheard Mr. Campbell, following a telephone
       conversation, say loudly to his wife, “cha-ching, cha-
       ching[.”] Ms. Barnes admitted to being unaware of the
       meaning of Mr. Campbell’s remarks. Approximately two to
       three months following the [V]ictim’s death, Mr. Campbell
       was advised by correspondence from Wal-Mart, the

                                   - 14 -
J-S52021-15


       [V]ictim’s employer, that he was the beneficiary of the
       [V]ictim’s retirement account in the amount of $1,893.34
       and life insurance benefits in the amount of $22,000.00.
       The [V]ictim had designated Mr. Campbell the beneficiary as
       her common-law husband on June 27, 2005, approximately
       four years prior to her death. Mr. Campbell denied any
       knowledge that he was the [V]ictim’s beneficiary prior to
       receiving notice from her employer. He, in fact, received
       the proceeds from both the retirement account and the life
       insurance as a result of [the Victim’s] death.

       Mr. Campbell also was the surviving joint tenant of the
       residence, and thus became sole owner following the
       [V]ictim’s death. Testimony indicated that the balance of
       the mortgage was approximately $30,000.00 with the value
       of the home estimated at $10,000.00 due to its deteriorated
       condition.

       In rebuttal, the Commonwealth introduced the medical
       records of the [V]ictim from Heritage Valley-Beaver Hospital
       for the period from 2004 through 2008, which revealed that
       she was treated on several occasions as a result of injuries
       sustained by falling. . . . [During trial, the] thrust of
       [Appellant’s] defense was that Mr. Campbell had the motive
       and opportunity to kill the [V]ictim, since he would benefit
       financially by her death, and that he had physically abused
       the [V]ictim in the past.


       B. Facts and Evidence Adduced at the PCRA Hearing
       Held on August 4, 6[,] and 8 2014

       1. [Appellant’s Trial Counsel,] Thomas Kurt Fuchel

       As noted earlier, the [PCRA] court conducted a hearing on
       [Appellant’s PCRA] petition on August 4, 6[,] and 8, 2014.
       The [PCRA] court heard testimony during parts of each of
       those three days. . . . [Appellant] first called Thomas Kurt
       Fuchel, Sr., Esquire [(hereinafter “Attorney Fuchel”)], who
       was lead defense counsel at the time of trial. He was
       assisted by a new public defender at that time named
       Rebecca Fields, who was not called to testify by either party
       at the PCRA hearing. [Attorney Fuchel] first testified that it
       was protocol or procedure, at the time of [Appellant’s] trial,

                                   - 15 -
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       for an Assistant Public Defender to begin representation in a
       case at the preliminary hearing stage and continue with the
       case through trial. [Attorney Fuchel] did that in this case.

       [Attorney Fuchel] testified that he handled the preliminary
       hearing. He testified that it was his practice to speak with
       the client prior to the preliminary hearing in the lock-up
       facility. He did not recall whether he met with [Appellant]
       before the preliminary hearing in this case, but indicated
       that was his standard practice. [Attorney Fuchel] could not
       provide any specific information as to when he met with
       [Appellant]. He did admit that it was significant to meet
       with the client early in the case to discuss strategy and to
       discuss what the [client] did or did not do or know in
       connection with the charges.

       [Attorney Fuchel] indicated that the Commonwealth
       provided extensive discovery.      According to [Attorney
       Fuchel], [Appellant] complained about not receiving
       discovery, and [Attorney Fuchel] claims that this prompted
       him to make sure [Appellant] received the discovery.
       [Attorney Fuchel] stated that he believed it was his decision
       regarding what portions of the discovery or other
       information to use in this case. [Attorney Fuchel] claimed
       that he had discussions with [Appellant], both before and
       during trial, regarding what information to use.           He
       conceded that use of prior criminal convictions under
       [Pennsylvania Rule of Evidence] 609 is a significant tool to
       impeach witnesses for the opposing side.

       [Within Appellant’s PCRA petition, Appellant first claimed
       that trial counsel was ineffective for failing] to use prior
       convictions and other information for purposes of
       impeaching key Commonwealth witnesses.             [Appellant’s
       counsel] at the PCRA hearing initially questioned [Attorney
       Fuchel] about a Commonwealth witness by the name of
       Laura Rankin.        [Ms.] Rankin had, and testified to,
       information regarding [Appellant] using the [V]ictim’s
       credit/debit [card] to make bank withdrawals. [Attorney
       Fuchel] testified that it was his theory that Robert Campbell,
       who was a former boyfriend of the [V]ictim, committed the
       murder. [Attorney Fuchel] continued by stating that he
       believed that [Ms.] Rankin was actually a helpful witness to
       the defense because she also had information that

                                   - 16 -
J-S52021-15


       [Appellant] used the [V]ictim’s credit/debit card not only at
       and shortly after the time of the murder, but also prior to
       that time. [Ms.] Rankin also testified that [Appellant] had
       the PIN for the credit card further confirming, according to
       [Attorney Fuchel], that her testimony would actually
       indicate that [Appellant] did not just use the credit card
       after the murder, but also before the murder showing his
       consented-to access to the card. [Attorney Fuchel] thought
       this was beneficial testimony. . . .

       [Appellant’s] counsel at the PCRA hearing pointed out and
       entered exhibits to confirm that [Ms.] Rankin had
       convictions for retail theft, trademark counterfeiting[,] and
       theft by unlawful taking, all of which were . . . crimen falsi.
       The Commonwealth confirmed, on cross-examination, that
       [Attorney Fuchel] did not want to impeach [Ms.] Rankin
       because she was actually favorable to [Appellant’s] position
       in this case. However, [Appellant’s] counsel noted for the
       [PCRA] court that . . . [Attorney Fuchel] cross-examined
       [Ms.] Rankin about using crack cocaine in the presence of
       her child, which was a form of impeachment, but yet chose
       not to impeach her credibility with [the prior convictions for]
       crimen falsi.

       [During Appellant’s trial, t]he second Commonwealth
       witness who had prior criminal convictions was Zachery
       Valentine. [Mr.] Valentine was [Appellant’s] cell mate at
       the Beaver County Jail, and [Mr.] Valentine testified at trial
       regarding [Appellant’s] admissions about his ([Appellant’s])
       involvement in the killing.

       [Attorney Fuchel] testified that he discussed [Mr.] Valentine
       with [Appellant], and according to [Attorney Fuchel],
       [Appellant] confirmed that some of the statements that
       [Mr.] Valentine made in a report of interview were true.
       [Attorney Fuchel] claims that he continuously cautioned
       [Appellant] not to have conversations with [Mr.] Valentine.
       [Appellant] never admitted his guilt to [Attorney Fuchel],
       but, according to [Attorney Fuchel], [Appellant] did confirm
       some of the things that [Mr.] Valentine said.

       Interestingly and bewildering to the [PCRA] court was
       [Attorney Fuchel’s] concern about perjury if [Appellant]
       testified at trial because [Appellant] allegedly said he was

                                   - 17 -
J-S52021-15


       going to lie at trial regarding the statements that [Mr.]
       Valentine made. This had very little, if anything, to do with
       regard to why [Attorney Fuchel] did not cross-examine
       [Mr.] Valentine. When pressed by [Appellant’s] counsel at
       the PCRA hearing, [Attorney Fuchel] confirmed that he
       [should have] impeach[ed] this type of witness. [Mr.]
       Valentine had a conviction for theft by deception, and
       another conviction in Fayette County. [Attorney Fuchel]
       confirmed that he did not question [Mr.] Valentine about
       these matters, and [Attorney Fuchel] indicated that it was
       inadvertent not to use them, that they must have slipped
       through the cracks[,] and that his decision not to use them
       was bad in hindsight.

       A third Commonwealth witness who testified against
       [Appellant at trial] was James Sarver. [Mr.] Sarver was
       another jailhouse informant, who indicated that [Appellant]
       admitted to the killing. [Mr.] Sarver also had a conviction
       for terroristic threats. Although not a crimen falsi crime,
       [Mr.] Sarver was on probation, and [Attorney Fuchel] could
       have questioned [Mr.] Sarver on whether he expected any
       favorable treatment on a probation violation, which was
       never done. [Attorney Fuchel] did question [Mr.] Sarver
       about a simple assault charge that was dismissed. . . .
       [Attorney Fuchel] conceded that, in hindsight, he should
       have used the terroristic threats probationary situation for
       cross-examination purposes at trial.         [Attorney Fuchel]
       could not explain his failure to use this information.

       A fourth Commonwealth witness who testified [during
       Appellant’s trial] was Kelly Carter. [Mr.] Carter came to the
       residence after the crime and was present when Robert
       Campbell, the person who [Attorney Fuchel] intended to pin
       blame on, saw blood on a dog at the residence and pointed
       this out to [Mr.] Carter.        [Mr.] Carter had a [prior]
       conviction for receiving stolen property, which [Attorney
       Fuchel] did not use to cross-examine [him]. [Attorney
       Fuchel] indicated that he would normally impeach this type
       of witness, but did not do so in this case because he
       believed that [Mr.] Carter’s testimony was favorable to the
       defense in that it tended to implicate [Mr. Campbell].

       The fifth Commonwealth witness [to testify at trial] was
       Brian Silberger. At trial, [Mr.] Silberger testified that

                                   - 18 -
J-S52021-15


       [Appellant] purchased several thousand dollars of crack
       cocaine from him (Silberger) at or around the time of the
       murder.     [Mr.] Silberger further testified that when he
       (Silberger)    questioned    [Appellant]    concerning     the
       whereabouts of the [V]ictim, [Appellant] told him [] that the
       [V]ictim was in Maryland visiting her brother.           [Mr.]
       Silberger had a conviction for burglary and a second
       conviction for theft by unlawful taking. Both of these crimes
       were of a crimen falsi nature and [Attorney Fuchel] could
       not recall why he did not use them for cross-examination
       purposes.

       The sixth Commonwealth witness [to testify] was Patrick
       Brown. [Mr.] Brown was the second witness to testify
       regarding [Appellant’s] drug purchases or attempts to
       purchase drugs at or around the time of the homicide.
       [Mr.] Brown conceded that he was informed by the
       Commonwealth that he would not be charged for providing
       drugs to [Appellant].      [During trial, Attorney Fuchel]
       questioned [Mr.] Brown regarding the fact that he would not
       be charged, going to [Mr.] Brown’s bias or motive to testify,
       but neglected to question him about two pending cases and
       the potential for favorable treatment or leniency in those
       cases based on this testimony. [Attorney Fuchel] confirmed
       that it would make sense to question the witness on these
       issues, but added that he was not sure he knew about these
       charges. [Attorney Fuchel] conceded that the use of such
       impeachment material could increase the chance of [an]
       acquittal.

       The second issue raised by [Appellant] in his PCRA petition
       [concerned]      testimony   that  revealed    [Appellant’s]
       incarceration at the time of trial.      [Attorney Fuchel]
       confirmed that a defense lawyer usually attempts to
       preclude reference to the client being in jail. [Attorney
       Fuchel] noted, however, that it was extremely difficult in
       this case because of others who testified regarding
       admissions made by [Appellant] and who were in jail with
       him. [Attorney Fuchel] stated that he did discuss this issue
       with [Appellant] and confirmed that the reference to being
       in jail was an important issue.

       [Attorney Fuchel] was pressed by [Appellant’s PCRA]
       counsel, and indicated that he [believed] he discussed this

                                   - 19 -
J-S52021-15


       issue in detail with [Appellant], but was not sure. It was at
       this point that [Attorney Fuchel] added that he had
       problems communicating with [Appellant] during trial and
       that most of the problems for this lack of communication
       [were Appellant’s fault]. According to [Attorney Fuchel], he
       gave discovery to [Appellant] twice. He said he mailed the
       discovery the first time, and [Appellant] said he did not
       receive it. This, according to [Attorney Fuchel], prompted
       him to go to the jail personally and deliver the discovery in
       the presence of the Assistant Warden. [Attorney Fuchel]
       said there were two occasions at the jail when he had
       problems with [Appellant].

       [Attorney Fuchel] testified that, at one       of these two
       instances, [Appellant] became very physical    and threw the
       public defender’s paralegal, Dionna Steele,    to the ground
       and went after [Attorney Fuchel]. [Attorney    Fuchel] stated
       that [Appellant] became verbally abusive        on a second
       occasion.    He indicated that [Appellant]      caused these
       disruptions.

       As to the issue of [Appellant] being in jail, [Attorney Fuchel]
       added that it was trial strategy for this information to come
       into evidence because [Attorney Fuchel] thought it would be
       helpful for the jury to know that the individuals who were
       testifying were also in jail.

       The Commonwealth brought out the fact that they objected
       when [Attorney Fuchel] went down this road, and [Attorney
       Fuchel] asked for a sidebar with the court at trial and
       confirmed that he wanted this information before the jury.
       The Commonwealth stipulated that the information came
       before the jury at the request of [Appellant] with no
       objection or curative instruction requested.

       [Attorney Fuchel] was also questioned regarding the third
       issue raised by [Appellant in the PCRA petition], namely
       whether Zachery Valentine was acting as an agent of the
       government when he was debriefed by the Commonwealth
       and then placed back in the same cell with [Appellant].
       [Appellant’s PCRA] counsel assert[ed] that this [gave] rise
       to the basis for a motion to suppress the statements
       [Appellant] made to [Mr.] Valentine on the basis that [Mr.]
       Valentine may have been acting as an agent for the

                                   - 20 -
J-S52021-15


       Commonwealth in securing admissions without [Miranda]
       warnings. [Attorney Fuchel] said he did not know that [Mr.]
       Valentine was questioned and placed back in the same cell
       and never considered this issue or argument.

                                    ...

       2. [Appellant]

       [Appellant] also testified at the PCRA hearing. . . .
       [Appellant] testified that [Attorney Fuchel], with the
       assistance of another Assistant Public Defender, Beth
       Manifesto, handled his preliminary hearing on August 1,
       2009.     [Appellant] testified that he never met with
       [Attorney Fuchel] prior to the preliminary hearing and that
       [Attorney Fuchel] never came to the jail to see him and
       never spoke with him in the lock-up prior to the preliminary
       hearing. The first time that [Appellant] actually met with,
       and saw [Attorney Fuchel] was in the courtroom when the
       preliminary hearing occurred.

       The next step in the process was the arraignment in
       October [] 2009. [Appellant] was incarcerated between the
       time of the preliminary hearing and the arraignment, and
       testified that he had no contact with [Attorney Fuchel]
       between the time of the preliminary hearing and the
       arraignment.

       [Appellant] stated that a private investigator for the public
       defender’s office did come to the jail in early 2010 to gather
       information and that [Attorney Fuchel] came to the jail later
       in January [] 2010 and several times between January []
       2010 and the time of trial in July [] 2010.

       [Appellant] confirmed that paralegal Dionna Steele came to
       the jail several times to meet with him, and on one occasion
       [Attorney Fuchel] was also present. As to the incident in
       which [Attorney Fuchel] claimed that [Appellant] became
       verbally abusive and physical, [Appellant] testified that
       [Attorney Fuchel] actually got in his face and that he
       ([Appellant]) did not get physical with [Attorney Fuchel].
       [Appellant] stated that the incident got very loud and that a
       jail guard came into the room because of the noise.


                                   - 21 -
J-S52021-15


       According to [Appellant], Dionna Steele advised the guard
       that [Appellant] did nothing wrong.

       [Appellant] went on to state that, after his conviction in this
       case, he had to file his own appeal because [Attorney
       Fuchel] neglected to timely file the appeal.         No post-
       sentence motion was filed. [Attorney Fuchel] requested
       several extensions to file a brief for the appeal, and the
       appeal was eventually remanded to the trial court by the
       Superior Court because of this. [Appellant’s PCRA counsel
       was] appointed and handled [Appellant’s direct] appeal.

       [Appellant] testified that[,] throughout the trial[] and [the]
       early appeal proceedings, [Appellant’s] mother was
       providing letters to [Attorney Fuchel], [to] which [Attorney
       Fuchel] failed to respond[]. [Appellant] filed his own PCRA
       petition in September [] 2013 and [PCRA counsel] filed [an
       amended PCRA petition] in April[] 2014.

       [Appellant] did address specific comments and allegations
       raised by [Attorney Fuchel]. As to the testimony of Zachery
       Valentine, [Appellant] advised that [Attorney Fuchel] told
       him that [Mr.] Valentine was going to testify that
       [Appellant] confessed to [Mr.] Valentine and that this
       testimony may hurt at trial. [Appellant] testified that he
       never said he would perjure himself.          According to
       [Appellant], he [] requested that [Attorney Fuchel] cross-
       examine [Mr.] Valentine with impeachment material, and
       [Attorney Fuchel] responded that he did not want to
       complicate the case. [Appellant] was adamant about the
       fact that he pressed [Attorney Fuchel] to impeach [Mr.]
       Valentine.

       As to Laura Rankin, [Appellant] claim[ed] that he actually
       brought some of the crimen falsi convictions to [Attorney
       Fuchel’s] attention.    [Appellant] testified that [Attorney
       Fuchel] never advised [Appellant] that he [would not] use
       the information against [Ms.] Rankin because she was
       favorable.   Instead, [Appellant] testified that [Attorney
       Fuchel] did not even know about [Ms.] Rankin’s prior
       convictions until [Appellant] brought them to his attention.

       With regard to all of the Commonwealth witnesses who had
       prior convictions, [Appellant] testified that he was not

                                   - 22 -
J-S52021-15


       aware that a corrupt and polluted source charge was in
       order and that [Attorney Fuchel] never requested one. It
       was only after present [] counsel brought this to
       [Appellant’s] attention that he was aware of this.

       As to the issue of [Appellant’s] incarceration being brought
       up at trial, [Appellant] stated that [Attorney Fuchel] told
       him . . . that Robert Campbell had already testified to it and
       therefore it would come in.        According to [Appellant],
       [Attorney Fuchel] never discussed this issue with him in
       advance or whether it was part of the trial strategy.
       [Appellant] claimed that he knew it was not right for this
       information to come in because the sheriff went to great
       lengths to keep the jury from seeing [Appellant] being
       escorted to the courtroom by deputy sheriffs in handcuffs
       and shackles during breaks in the trial.

       [Appellant] testified that when it was time for the defense
       case to begin, [Attorney Fuchel] called multiple witnesses in
       a brief period and then turned to [Appellant] and said
       “you’re next, but I suggest you not testify.” [Appellant]
       contends that this [was] the only time [Attorney Fuchel]
       discussed with him whether or not to testify.

       With regard to the third issue, namely, Zachery Valentine
       potentially being an agent of the government, [Appellant]
       testified [that Attorney Fuchel] never discussed this issue
       with him. It came to light that [Mr.] Valentine had testified
       for the Commonwealth in other cases and that neither
       [Appellant] nor [Attorney Fuchel] knew this.

       [Appellant] testified that he wrote a letter to the trial judge
       [] regarding [his] failure to receive discovery. [Appellant]
       claims that [Attorney Fuchel] came to the jail angry after
       receiving notice that [Appellant] wrote a letter to the judge.
       [Appellant] claims that [Attorney Fuchel] came into the cell,
       crumbled the letter, told [Appellant] never to write a letter
       to the judge again, told [Appellant] that he ([Attorney
       Fuchel]) was going to trial with what information he had,
       and told [Appellant] that he ([Appellant]) was going to
       burn. After this discourse, [Attorney Fuchel] left the cell. . .
       .

                                     ...

                                   - 23 -
J-S52021-15



       3. [Detective] Robert Chamberlain

       [Appellant] also called Beaver County Detective Robert
       Chamberlain as a witness at the PCRA hearing. [Detective]
       Chamberlain was a co-affiant on the criminal charges filed
       against [Appellant]. The Detectives’ Bureau is part of the
       Beaver County District Attorney’s Office.        Detective
       Chamberlain was questioned about the involvement of
       Zachery Valentine in this case and his use as a witness by
       the Commonwealth. [Detective] Chamberlain testified that
       he did not know Zachery Valentine prior to [Appellant’s]
       case. [Detective] Chamberlain testified that he met with
       [Mr.] Valentine twice during [Appellant’s] case.

       According to [Detective] Chamberlain, [Mr.] Valentine first
       came to the attention of the Commonwealth when [Mr.]
       Valentine’s wife called the District Attorney’s Office and
       advised that a representative of the District Attorney should
       speak to [Mr.] Valentine regarding [Appellant’s] case. This
       caused the District Attorney’s Office to request transport of
       [Mr.] Valentine from the Beaver County Jail to the Beaver
       County Courthouse for questioning on May 18, 2009, prior
       to the trial in this case. [Detective] Chamberlain advised
       that he secured all of [Mr.] Valentine’s knowledge and
       information in the interview of May 18, 2009 and had no
       intention of speaking with [Mr. Valentine] again short of
       requesting his testimony at the trial.             [Detective]
       Chamberlain did indicate that there eventually arose the
       need for a second meeting for the purpose of having [Mr.]
       Valentine draw a diagram of the crime scene. [Detective]
       Chamberlain indicated that he did not know that [Mr.]
       Valentine had served as a witness for the Commonwealth in
       prior cases at the time he interviewed [Mr.] Valentine in
       2009. [Detective] Chamberlain learned this later through
       discussion with another Beaver County Detective, Kim
       Clements.     According to [Detective] Chamberlain, [Mr.]
       Valentine expressed fear of being in the same cell with
       [Appellant], and [Detective] Chamberlain testified that he
       never told [Mr.] Valentine to keep his eyes and ears open
       about the case or to solicit any further information from
       [Appellant] after the initial interview on May 18, 2009.




                                   - 24 -
J-S52021-15


       On cross-examination, [Detective] Chamberlain testified
       that he was able to corroborate [Mr.] Valentine’s
       information given during the interview. In fact, [Detective]
       Chamberlain stated that he left the interview room on
       several occasions during the interview to check [Mr.]
       Valentine’s statement and was able to confirm what he was
       saying based upon review of phone records and photos of
       the crime scene. [Detective] Chamberlain was the final
       witness called by [Appellant].

       4. [Detective] Kim Clements

       The [Commonwealth] commenced its case on Friday,
       August 8, 2014. [The Commonwealth] first called Detective
       Kim Clements. [Detective] Clements testified regarding
       Zachery Valentine. She [testified] that she knew [Mr.]
       Valentine as a result of his prior testimony for the
       Commonwealth in another homicide case.               She did
       participate in [Mr.] Valentine[’s] interview on May 18, 2009.
       [Detective] Clements testified that she played no part in
       arranging for [Mr.] Valentine to be interviewed or in his
       involvement in this case. She confirmed that it was [Mr.]
       Valentine’s wife who brought him to the attention of the
       prosecution.     [Detective] Clements also confirmed that
       neither she nor anyone else from the prosecution gave [Mr.]
       Valentine any instructions to pursue further information
       from [Appellant] or to act as an agent for the
       Commonwealth.

       On cross-examination, [Detective] Clements [testified] that
       . . . she never instructed [Mr. Valentine] . . . to come back
       with [] additional information after the first interview. . . .
       [Detective] Clements confirmed that there was a second
       interview of [Mr.] Valentine and also stated that she was
       involved in his preparation for testimony at trial.

       5. [Chief] Eugene St. Clair

       The next Commonwealth witness was Chief Eugene St. Clair
       of the Freedom Police Department. [Chief] St. Clair is now
       the chief, but was a sergeant at the time of [Mr.]
       Valentine’s interview. [Chief] St. Clair was the co-affiant on
       the criminal charges with Detective Chamberlain. [Chief]
       St. Clair indicated that he could not recall all of the details

                                   - 25 -
J-S52021-15


       of the interview without referring to his report and was
       permitted to do so. [Chief] St. Clair did recall that [Mr.]
       Valentine gave specific information regarding [Appellant’s]
       statement that coincided with evidence found at the crime
       scene. [Chief] St. Clair also confirmed that he gave no
       instructions to [Mr.] Valentine to solicit any additional
       information from [Appellant]. The one thing that [Chief] St.
       Clair testified to that was inconsistent with [Detectives]
       Chamberlain and Clements was that [Chief] St. Clair’s
       report rais[ed] the inference that there were a number of
       interviews with [Mr.] Valentine. There are no other specifics
       on dates of the interviews. Also, there was additional
       information in [Chief] St. Clair’s report that was not in
       [Detective]    Chamberlain[’s]     report,  but   no    major
       inconsistencies.    [Chief] St. Clair did not know [Mr.]
       Valentine prior to the interview in question. [Chief] St. Clair
       indicated that he only interviewed [Mr.] Valentine in the
       presence of Beaver County detectives, but did recall that he
       was involved in interviews on more than one occasion.

       6. Dionna Steele

       The final witness called by the Commonwealth was Dionna
       Steele, a paralegal in the Beaver County Public Defender’s
       Office. . . . Reference to Attorney Fuchel’s testimony above
       reflects that [Attorney Fuchel] testified to an incident at the
       Beaver County Jail in which [he] claimed that [Appellant]
       became hostile in an attorney interview room with Dionna
       Steele present. [Attorney Fuchel] testified that [Appellant]
       pushed Ms. Steele to the ground and came after [Attorney
       Fuchel]. Ms. Steele gave quite a different version of that
       event. She recalled that she took an envelope to the jail
       from Attorney Fuchel to deliver to [Appellant].            She
       indicated that she had met with [Appellant] on a number of
       occasions at the jail and never had a problem with him. On
       the particular occasion when she took the envelope to the
       jail for Attorney Fuchel, she was in the attorney meeting
       room with [Appellant] when [Attorney Fuchel] entered the
       room. She testified that [Attorney Fuchel] began yelling at
       [Appellant] and [Appellant] began to yell back. She became
       frightened and stepped back. She actually pushed the
       emergency button in the room because of the situation.
       She stated that [Attorney Fuchel] began to back up and
       actually backed into her. [Appellant] thought she might fall

                                   - 26 -
J-S52021-15


        and grabbed her arm to prevent her from falling. Other
        than this, [Ms.] Steele testified that [Appellant] never
        touched her. A jail guard came into the room, and [Ms.]
        Steele told the guard that [Appellant] did not do anything
        wrong.

        On both direct and cross-examination, [Ms.] Steele testified
        that it was Attorney Fuchel who got into [Appellant’s] face.
        She specifically testified that the situation was escalated by
        Attorney Fuchel pounding on the table. She was startled by
        Attorney Fuchel’s actions and specifically recalled that he
        walked toward [Appellant] and got into his [] face. She said
        that [Attorney Fuchel] was within inches of [Appellant’s]
        face. She stated that [Attorney Fuchel] was very angry and
        was clearly the aggressor in this situation. According to
        [Ms.] Steele’s testimony, the relationship between the two
        was hostile from that point forward.

        [Appellant’s] counsel pressed [Ms.] Steele on cross-
        examination and was successful in getting [Ms.] Steele to
        say that [Appellant] never gave her a problem throughout
        the time that she met with him prior to trial. In fact, she
        stated that [Appellant] was always respectful. She stated
        that [Appellant] was very frustrated in her discussions with
        him about discovery and the fact that he ([Appellant]) was
        not receiving anything from [Attorney Fuchel]. [Ms.] Steele
        stated that she told the jail guard that [Appellant] did
        nothing wrong in the attorney meeting room because she
        believed that and did not want to see [Appellant] receive
        sanctions at the jail. . . .

PCRA Court Opinion, 11/19/14, at 1-34 (some internal capitalization and

citations omitted).

      The PCRA court denied Appellant post-conviction collateral relief in an

order entered on November 19, 2014.          Appellant field a timely notice of

appeal and now raises the following claims to this Court:

        1. Did the unjustified failure to impeach central prosecution
        witnesses in this case with relevant aspects of their criminal
        records, pending charges[,] and current probationary status


                                    - 27 -
J-S52021-15


        establish all three of the prongs of the test for ineffective
        assistance of counsel under Pennsylvania law?

        2. Was trial counsel ineffective for eliciting a statement from
        a Commonwealth witness about the prior incarceration of
        [Appellant], which, once that fact was brought out, allowed
        the jury to carry with it the unforgettable picture of
        [Appellant] sitting in jail, convicted of crimes and of such a
        character that he was more likely to commit the crime for
        which they were now tasked with judging [Appellant]?

        3. Was trial counsel ineffective for failing to present a
        motion to suppress a confession surreptitiously obtained by
        a jailhouse informant because the manner in which the
        confession was obtained violated [Appellant’s] Sixth
        Amendment rights where the informant was acting pursuant
        to an implied understanding with the district attorney and
        where the informant was returned to the same cell with
        [Appellant] even after the informant told detectives that he
        was afraid to return to the same cell?

Appellant’s Brief at 4 (some internal capitalization omitted).

      We have reviewed the briefs of the parties, the relevant law, the

certified record, and the well-written and through opinion from the able

PCRA court judge, the Honorable James J. Ross.           We conclude that the

claims raised in Appellant’s brief fail and that Judge Ross’ opinion, filed on

November 19, 2014, meticulously and accurately explains why Appellant’s

claims fail. Therefore, we adopt the PCRA court’s opinion as our own. In

any future filings with this or any other court addressing this ruling, the filing

party shall attach a copy of the PCRA court’s opinion.

      Order affirmed. Jurisdiction relinquished.




                                     - 28 -
J-S52021-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/16/2015




                          - 29 -
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                          IN THE COURT OF COMMON PLEAS OF BEA VER COUNTY
                                           PENNSYLVANIA
                                            CRIMINAL DIVISION


      COMMONWEALTH OF PENNSYLVANlA

               v.                                             No.   1592 of2009

      BENJAMIN J. DENNERLEIN


      ROSS,   J.                                                            November    \<3, , 2014
                                        M.EMQRANDUM OPlN.ID.N
                                             INTRODUCTION
               On June 17, 2009, the defendant, Benjamin   J. Dennerlein,   was charged with a general

      charge of homicide by the Freedom Borough Police Department in conjunction              with the

     · assistance   of the Beaver County District Attorney Detectives Bureau. The charges stein

      h.:11 an incident that occurred In Freedom Borough, Beaver County, Pennsylvania, in either

      the late evening hours of May 1?. or early morning hours of May 13, ~009. Tie vie 11r.,

      Elizabeth Grosskopf, was fo1.uh.i dead in her residence at 1475 Fifth Avenue            Freedom

      Borough, Beaver County, Pennsylvania. An autopsy determined that Grosskopf died due to

      , nulttple stab wounds to the head and neck areas. After· an investigation       by the Fceedon

      Borough Police and the Beaver County Detectives' Bureau, the defendant was charged with

      homlclde.

              The case was scheduled for a jury trial before the Honorable John Dohanlch, now

      Senior Judge of this Court, with jury selection   taking place on Monday, July 26, 2010. After
,.
      the Jury was selected, the case proceeded to trial, and the jury convicted defendant of first
                                                                                  Circulated 10/29/2015 10:26 AM




 degree murder on August 3, 2010. On September           29, 2010, Judge Dohanich sentenced the

 defendant   to life imprisonment without parole.

         No post-sentence      motions were filed, but a timely notice of appeal was filed with the

 Superior Court, by the defendant       himself, on October 27, 2010. The appeal was denied, and

 the conviction was affirmed, by Opinion and Order of the Superior            Court dated April 2,

 2012. A timely petition for allowance of appeal was presented       to the Pennsylvania Supreme

 Court, which was denied by Order of the Supreme Court dated October 22, 2012.

    ·   The defendant       filed a timely   pro se petition for po_{>t~convjction relief, and Attorney
                                                                                   ---------------·--·
. Mitchell Shahen was appointed by the Court to represent the defendant in the post-

• conviction proceedings. Attorney Shahen filed an Amended Petition for Post-Conviction

Collateral Relief with this Court on April 7, 2014, which was timely based upon granted

motions for extension of time. The Commonwealth tiled a response and memorandum in

opposition to the petition, and defense counsel filed a brief In support.

        The Court conducted a hearing on the petition on August 4, 6 and 8 of 2014,

receiving the testimony of various witnesses on those dates. The Court also received

exhibits and has reviewed the court file as well as the transcripts of the trial. For the

reasons stated below, defendant's petitions are denied.


                                                 FACTS
        A.     Facts and Evidence Adduced and Presented at Trial
               In July and Au~st, 2010
        After the defendant filed his notice of appeal, fudge Dohanlch issued an Order

requiring the defendant to file and serve a concise statement of errors complained of on

appeal pursuant to Pa.R.App.P. §192S(b), which the defendant did. Judge Dohanlch



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         authored an opinion regarding the errors complained     of on appeal on April 7, 2011. In that

     opinton, Judge Dohanich       recited   the facts established   at the jury trial. The Court has
     '
     i
     :reviewed the transcripts of the trial and believes that Judge Dohanich has accurately
     i
     .captured and summarized the facts established, and the Court reiterates those facts In the

     [following pages.

               The victim, Elizabeth Grosskopf, age 54, resided at 1475 Fifth Avenue, Freedom,
 1
     Beaver County, in a residence owned by her and Robert Campbell, a former paramour, with

 'whom she maintained a friendly relationship.             Ms. Grosskopf was a frail woman In poor

. health, suffering from various medical conditions which caused her to be unsteady and

· prone to falling on occasion. Ms. Grosskopf and Mr. Campbell purchased the residence In

: 2003, subject to a mortgage; however, the property was titled solely in Ms. Grosskopf s

     name because of Mr. Campbell's unstable financial condition. Subsequently, Ms. Grosskopf

• transferred the title by deed dated February 28, 2008, to herself and Mr. Campbell, as joint

; tenants with the right of survivorship. The victim and Mr. Campbell previously lived

 together for approximately ten years until May, 2008, when Mr. Campbell left the residence

 to commence a live-In relationship with his current wife, Karen Otrhalik Babich. Mr.

 Campbell and Ms. Babich commenced their relat1onship in December, 2007, which

 culminated in their marriage in October, 2008.

              Mr. Campbell's last contact with the victim occurred on May 8, 2009, when she

telephoned to inform him that on May 7, 2009, she had received and deposited the sum of

$31,128.14, representing her share of the proceeds from the sa1e of her parents' cottage In

Erie. They discussed the uses to which she could put the funds. Ms. Grosskopf maintained

a personal checking/credit/debit             account with the Northern Lights branch of ESB Bank



                                                       3
                                                                                      Circulated 10/29/2015 10:26 AM




  which she opened May 19, 1997. The account was limited to withdrawals of $510.00 per

 • 24-hour period.

          Mr. Campbell was introduced to the defendant approximately           four years prior to the

  victim's death while both were inmates in the Beaver County Jail for reasons unrelated to ·

· : the instant case.   Upon release    from   incarceration,   Mr. Campbell     and the defendant

  maintained a friendly relationship,    and the defendant resided with Mr. Campbell and Ms.

 · Grosskopf   from time to time when he was in need of a temporary residence.              All three

  individuals were users of and smoked cocaine together on occasion.             In December,   2008,

• and continuing     until the time of her death, the defendant     resided at the victim's home,                      I
                                                                                                                  ·l
. paying rent in the amount of $50.00 per week. The defendant was employed at Crow's Run                               I

 Recycling as a salesperson from 2008 through May 13, 2009.                                                            I
         Prior to her death, the victim was employed as a cashier at the Center Township                               .i
 Wal-Mart Ms. Grosskopf last worked on May 11, 2009, from 11 :00 A.M. until 8:00 P.M. and

· was observed at work by her neighbor, Dwight McMorris, while he was shopping at Wal·

 Mart Mr. McMorris subsequently observed the victim between 8:40 P.M. and 8:50 P.M. on

 the same day as she drove by his home on the way to her residence after completing her

 work day.      Mr. McMorris was the last person other than the perpetrator to see Ms.

 Grosskopf alive.

         The victim was scheduled to work on May 12, 2009, from 11:00 A.M. to 8:00 P.M.;

 however, she did not appear for work nor call to indicate that she would not be present for

 work that day, which was unlike her because she was a reliable employee. Shortly before

 her death, Ms. Grosskopf reported to one of her co-workers, Nancy Pranskey, that the

 defendant had been stealing from her and using her credit/debit card to purchase items.



                                                   4
                                                                               Circulated 10/29/2015 10:26 AM




     . Bank records disclosed that on May 5, 2009, the victim's bank account had been overdrawn

     ;by $741.11 as a result of eight transactions.

            The defendant also did not appear at his place of employment on May 12, 2009, and

     .termmated his employment due to a disagreement with his employer, Nick D'Itri, by way of

     : a text message on May 13, 2009, at 12:52 P.M. The defendant had been a good employee

 i until approximately one month prior to terminating his employment when he began not

 !   reporting for work. The prior week he failed to appear for work on four consecutive days .

 . His employer suspected that drug use was responsible for the defendant's decline in

 , performance. The defendant's last working day was May 11, 2009.

            Between 10:00 A.M. and 10:30 A.M. on May 12, 2009, Mr. Campbell sought the

· defendant at his place of employment Not locating him at work, Mr. Campbell proceeded

. to the victim's residence and found the defendant present        Mr. Campbell noted that the

, defendant appeared to be under the Influence of drugs. When Mr. Campbell inquired of the

. defendant as to the whereabouts of the victim, the defendant replied that he had taken her

     to work earlier that morning, because he was In need of her vehicle to run errands. Mr.

     Campbell, who maintained various items of personal property at the residence, searched

     the home to assure that his belongings were present and was followed through the house

. by the defendant When looking into the victim's bedroom, Mr. Campbell observed that the

     bed had been made, which was unusual because the victim was a poor housekeeper and

 never made the bed. The defendant was directly behind Mr. Campbell as he was in the

 doorway to the victim's bedroom.          The defendant and Mr. Campbell became involved in a

 heated argument over the defendant not working to pay rent to the victim and his drug use.

 Mr. Campbell informed the defendant that he would return to the residence between 8:30



                                                      5




                                                                      ~--
                                                                                       Circulated 10/29/2015 10:26 AM




        · P.M. and 9:00 P.M., when the victim returned from work, to speak with the defendant and

        I the victim.
                 Later in the same day at 3:25 P.M., the defendant, using the victim's credit/debit

        ; card, made a balance inquiry at ESB Bank located at 921 Third Avenue in New Brighton.

    ; The defendant, utilizing the victim's credit/debit card, purchased various items at the

    !   Chippewa Township K-Mart between 6:51 P.M. and 7:09 P.M. and proceeded to the home of

    i   Gregory 'Wimpy" Price and Wendy McCoy to deliver items to Mr. Price, including video

: games, movies and an electric can opener, to reimburse Mr. Price for tires that he

        purchased from the defendant and which were not appropriate for his vehicle.

                At between 8:30 P.M. and 9:00 P.M. on May 12, 2009, Mr. Campbell and his wife
;

! returned to the victim's residence and found no one present The victim's vehicle was not

        In the area. Throughout the evening and into the early morning hours of May 13, 2009, Mr.

• Campbell attempted on 30 occasions to reach the defendant and on 17 occasions to contact

: the victim by telephone and through text messages indicating his desire to speak to them.

: He received no responses, except that the defendant sent a text message advising that the

        Baden police would be interested In Mr. Campbell's use of marijuana. During the evening.

_ Mr.- Campbell and his wife left and returned to the victim's residence on two additional

        occasions and did not find anyone or the victim's automobile at the home. They left for the

        final time at approximately 12:00 A.M, returned to their residence and retired for the night

                On May 13, 2009, at approximately 12:26 A.M., the defendant checked into Room 12

        of the Beaver Falls Motel in Beaver Falls, following which he contacted Laura Rankin asking

        her to join him in smoking crack cocaine. Ms. Rankin telephoned Jennifer Bums, requesting

        that she provide transportation to the motel. Jennifer Bums and Bryan Sil berger retrieved



                                                      6
                                                                                       Circulated 10/29/2015 10:26 AM




 · Ms. Rankin and her infant child and drove to the mote) to meet the defendant                 Ronald

  "Toot" Goodman, the father of a child with Ms. Burns, and Patrick Brown, a supplier of

  crack cocaine for the defendant,        also appeared at the motel.        Mr. Brown provided the

: cocaine to the defendant        The defendant, when asked the reason for being in possession of

; the victim's vehicle, informed Ms. Rankin that the victim was away on vacation visiting her

  niece in Maryland or Virginia. The defendant          told Mr. Sil berger that the victim was away in

  Maryland to visit her brother for a week The defendant, in an effort to assure Mr. Brown,

: his cocaine supplier, that he had sufficient funds when requesting Mr. Brown to provide an

: advance of drugs, had previously forwarded        a text message to him on May 9, 2009, showing

· a balance     in the victim's    bank account    of $29,712.14.     The defendant    and the other

· individuals   smoked crack cocaine throughout          the early morning hours of May 13, 2010,

 until approximately      5:00 A.M.    During that time, the defendant       and Ms. Rankin left the

 motel and proceeded      to two convenience      stores to purchase Items and attempted to obtain

 funds using the victim's credit/debit card. At one point in time, the defendant advised Ms.

 Rankin    that he was using the victim's credit/debit         card, showed her the balance in the

 account and stated to her, "stick with me and good things will happen".

          Mr. Campbell, accompanied       by two friends, Martin Costanza and Justin Hertnecky,

 proceeded to the victim's residence on May 13, 2009, between 8:30 A.M. and 9:00 A.M. No

 one was present and the victim's car was not at the residence. The three of them gathered

 the defendant's belongings, placed them in garbage bags and stored the bags in the garage

 of the residence. Mr. Campbell opened the victim's bedroom door and found the bed in the

 same condition as the day before, as if it had not been disturbed. They then left the




                                                    7
                                                                                              Circulated 10/29/2015 10:26 AM




 residence      and returned       to Mr. Campbell's     house for the balance of the morning.              Mr.

 .Carnpbell's    intention     was to evict the defendant

           After leaving the motel and driving his friends home, the defendant                claimed to have

 returned to the victim's residence to locate her, found that she was not present, that her

 ; bed did not appear to have been slept in, and then proceeded                 to the Beaver Valley Mall. At

; 1:15 P.M. on May 13, 2009, the defendant presented               a check made payable on the victim's

: account to himself in the amount of $1,000.00              at the ESB Bank in Beaver Falls. The memo

 portion of the check indicated           the words "roof /porch".      The defendant explained        that he

' had performed      work for the victim and the check represented                payment     Ms. Celeste, the

. victim's next door neighbor,         Indicated   that no recent work had been done on the· house.

: The bank representative         requested identification     from the defendant, since he did not have

: an account with the bank, and he provided             his driver's license.     The check was drawn on

 the Northern       Lights ESB Bank located        in Baden.      The Beaver Falls ESB Bank manager

 telephoned      the Northern      Lights branch and obtained a facsimile of the signature card of the

 victim.     The Beaver Falls branch manager           also placed two telephone        calls to the victim's

 residence      and the telephone was not answered            on either occasion.     Mer being unable to

 verify the defendant's         correct address and telephone      number or the victim's signature, the

 bank refused to cash the check and returned the check to the defendant
                                                                                                                          .   (


        · Trooper Robert Negherborn,           a forensic document      examiner with the Pennsylvania

 State Police Crime Laboratory,           recovered    from the face of the subsequent          check in the

 victim's checkbook the Impression of the writing depicting the text of the previous check

 payable     to the defendant, Including       the authorizing     signature.     He was further provided

 with handwriting            samples   of the victim   and the defendant           Although   not Issuing    a



                                                        8
                                                                                       Circulated 10/29/2015 10:26 AM




          conclusive opinion, Trooper Negherborn testified that in comparing the writing on the
      I

./
      I   check with the samples of the handwriting of the victim and the defendant, there was a

      : strong probability that the signature on the check was not that of the victim. He further

      • opined that there were no significant similarities to indicate that the victim or the

     .• defendant wrote the entries on the check, or that the defendant wrote the signature on the

          check.

                   At approximately 2:00 P.M. on May 13, 2009, the defendant purchased tennis shoes

          at the Shoe Department Store at the Beaver Valley Mall using the victim's credit/debit card.

          A short time later he attempted to return the tennis shoes for a cash refund without the

     , credit/debit card and was refused. The defendant was accompanied by Ms. Rankin and

     .· met Mr. Price while at the Beaver Valley Mall and purchased other items withthe victim's

     . credit/debit card. He also attempted to buy tennis shoes for Mr. Price using the victim's

          credit/debit card and was refused.

                   At approximately 1:00 P.M., Kelly Carter, who had previously made payment of

          $500.00 for the purchase of an automobile from the defendant, telephoned the defendant

          informing him that he was at the residence desiring to retrieve the vehicle from the garage.

      The defendant advised Mr. Carter that he would not arrive for a period of time, and Mr.

      Carter waited. When the defendant failed to appear, Mr. Carter made a second telephone

          call, at which time the defendant instructed Mr. Carter to enter the home to obtain the

      remote control for the garage door. At the direction of the defendant, Mr. Carter entered

          the house by way of a window and was unable to locate the remote control while

      continuing to speak to the defendant on the telephone. Mr. Carter then telephoned Mr.

      Campbell, who subsequently arrived and Informed Mr. Carter that he was In possession of



                                                       9




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                                                                                     Circulated 10/29/2015 10:26 AM




· the remote control and would not permit the removal of the vehicle until the defendant

; appeared.     Mr, Carter placed a third call to the defendant,   who indicated     he would return

: later.    Both Mr. Campbell     and Mr. Carter observed     what appeared     to be blood on the

 victim's     dog and entered the house to investigate,       Mr. Campbell entered the victim's

• bedroom     and discovered     a pool of blood on the bed where the blanket had been pulled

away.       He called Mr. Carter into the bedroom       to observe   the blood.      Mr. Carter then

telephoned      the defendant,    informed him of their findings and inquired whether he knew

the whereabouts       of the victim, to which the defendant    replied that he thought she was at

work        Mr. Carter told the defendant   he should return to the residence      immediately.   The

defendant Indicated that he was at the Beaver Valley Mall and would return home at a later

time. He also stated that he had not been at the residence         for several days. Mr. Campbell,

after contacting the victim's employer and the hospital in an unsuccessful          attempt to locate

her, placed a call to 9· 1-1 at 2:54 P.M. Freedom Borough Chief of Police John Hill and

Officer William Dreyer of the Freedom Borough Police Department responded to the call at

approximately 3:00 P.M. Andrew Gall of the Beaver County Detective Bureau received a

call for assistance from the Freedom police officers at 3:10 P.M. and responded to the

residence with County Detectives Timothy Staub, Kim Clements, Timmie Patrick and

Robert Chamberlain.

           A search of the residence disclosed the victim's body wrapped in blankets in a

stairway on the second floor leading to the attic, which was located between the bedrooms

of the victim and the defendant and could be accessed from both bedrooms. The police

found no evidence of forced entry into the home. When informed of Ms. Grosskopfs death,

Mr. Campbell became extremely distraught As a result of receiving information from Ms.



                                                  lO
                                                                                             Circulated 10/29/2015 10:26 AM




Rankin's moth er that Ms. Rankin was with the defendant             in her vehicle at the Beaver Valley

Mall, a BOLO (be on look out) alert was broadcast             for the defendant,     the victim's vehicle

and the vehicle being operated by Ms. Rankin and owned by her mother.                          Ms. Rankin

received telephone       calls from a friend and her mother          advising that the names of the

defendant     and Ms. Rankin were heard on the scanner indicating                   that the police were

attempting to locate the defendant

         Detective Patrick proceeded     to the defendant's    place of employment       and in speaking

to Mr. D'ltri found that the defendant       last worked      on May 12, 2009, and terminated           his

employment      on May 13, 2009.        Mr. D'Itri provided       the defendant's     cellular telephone

number      to Detective   Patrick,   who attempted     several     calls and text messages         to the

defendant with no response.

         At 6:07 P.M., Officer Maxim Strano of the Center Township Police Department,                    in

response     to the alert, located    the defendant    and Ms. Rankin in the automobile              being

operated by Ms. Rankin as it was backing out of a parking space at the Beaver Valley Mall.

The defendant stated to Ms. Rankin "to go or he was going to run". Officer Strano drew his

weapon, ordered both individuals to the ground, approached              the defendant and placed him

in handcuffs.    The defendant stated that he thought about running and should have run

when he saw the officer. The defendant         also indicated that Officer Strano had the wrong

man.   The victim's credit/debit       card was found in the defendant's            wallet   The victim's

vehicle was also located a short distance away.

         The defendant     and Ms. Rankin were transported to the Center Township                   Police

Department       At 6:39 P.M., the defendant    waived his Miranda rights and agreed to speak

with Detectives Patrick and Clements.          The defendant       was informed       of Ms. Grosskopf's



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    ; death and showed no emotion.      He indicated that in the evening hours of May 11, 2009, he

    ; and his girlfriend, Colleen Cantella, were at the victim's residence viewing the Pittsburgh

    , PenguinsjWashington     Capitals hockey game. The defendant further advised that the victim

     came home from work during the hockey game. According to the defendant,           Ms. Cantella
                                                                                                                 i
                                                                                                                 I
    : departed   after the hockey game to return to her residence.   This information was contrary
                                                                                                                 I
     to the statement made by Ms. Cantella that she was not at the victim's residence on May
i
i   ; 11th and that the two of them had exchanged text messages between 9:23 P.M. and 10:07
i
I   . P.M. near the end ofthe hockey game, when she was at her own residence. The defendant

    • stated that on May 12, 2009, he drove the victim to work at Wal-Mart at approxJmately

     10:00 A.M., attended to several errands and returned to the residence, when he made

     contact with Mr. Campbell and a verbal argument ensued. Mer the disagreement with Mr.

     Campbell, he advised that he left the residence, ran a few more errands and went on a crack

     cocaine binge. He stated that he returned to Wal-Mart between 8:00 P.M. and 8:30 P.M. to

     pick up Ms. Grosskopf, and when she did not come out to the vehicle, he went into the store

     and was told that she was not at work all day. He also advised the detectives that he tried

     to call Ms. Grosskopf and received no reply. The victim did not report for work on May 12,

     2009, and video footage of the entrance and the customer service area of Wal-Mart

     disclosed that the defendant did not appear at the relevant time.         He obtained crack

     cocaine from Mr. Price and checked into the Beaver Falls Motel to smoke crack cocaine with

     Ms. Rankin and her friends. They all remained at the motel into the early morning hours of

     May 13, 2009. He advised that he checked out of the Beaver Falls Motel at approximately

     11:00 A.M. and returned to the residence to look for the victim. He found that her bed was

     made and did not appear to have been slept in. The defendant then proceeded to the



                                                   12
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   Beaver Valley Mall where he met Mr. Price and offered to purchase tennis shoes for him as

  : payment for cocaine previously supplied by Mr. Price. The defendant attempted purchases

   at two separate ret.ail locations using the victim's credit/debit card and was rejected. The

   defendant advised that he had the information regarding the victim's credit/debit card,                   -1 I
                                                                                                                !
                                                                                                               I
                                                                                                               I
   including the victim's personal identification number (P.I.N.) to access the account The

   defendant related that he obtained the credit/debit card from the victim's purse located in

   the kitchen of the residence. The detectives were unable to locate the victim's purse ln the

 . kitchen of the home and subsequently found it in the victim's vehicle. Upon receiving this

   information, the defendant informed the detectives that he had taken the credit/debit card

· , out of the victim's purse and placed the purse in the automobile. The defendant claimed to

  have pennission from the victim to use the credit/debit card. Near the conclusion of the

  interview, which lasted approximately one hour, the defendant stated to the detectives that

  if they were going to arrest him for murder to do so. He further stated that "all I have to do

  Is convince one person" that he did not commit the offense. The victim's purse.Wal-Mart

  Identification card, driver's license, checkbook and cellular telephones were all located In

  the victim's vehicle, which was in the possession of the defendant.

         Prosecutors acquired the victim's bank records for the period from May 1, 2009,

  through May 31, 2009, the telephone records of the defendant from May 8, 2009, through

  May 14, 2009, and located various receipts for purchases and automatic teller machine

  (ATM) withdrawals from the victim's account In the vehicles of the victim and Ms. Rankin

  and in the trash bin at the Beaver Falls Motel. A summary of these records in chronological

  order was outlined by Detective Chamberlain as follows:

  May9,2009:


                                               13
                                                                               Circulated 10/29/2015 10:26 AM




    1.    11:43 P.M. - Text message from defendant to Patrick Brown of a photograph of a
          $100.00 withdrawal   from the victim's account, and indicating a balance of
          $29,712.14

!   May 10, 2009:

    1.    2:16:03 A.M. - $100.00 ATM withdrawal from ESB Bank, New Brighton
    2.    2:16:22 AM. - $200.00 ATM withdrawal from ESB Bank, New Brighton
    3.    2:17 AM. -Telephone call from defendant to Gregory Price
    4.    7:31:13 AM. - $100.00 ATM rejected withdrawal, ESB Bank, New Brighton
    5.    7:31:39 A.M. - ATM balance inquiry, ESB Bank, New Brighton, showing balance of
          $29,312.14
    6.    7:31:57 AM. - $20.00 ATM rejected withdrawal, ESB Bank, New Brighton
    7.    7:35:34 AM. - $102.50 ATM/Mac machine rejected withdrawal, Beaver Falls
    8.    7:44:04 AM. - ATM rejected balance inquiry, ESB Bank, New Brighton
    9.    7:44:16 A.M. - ATM rejected balance inquiry, ESB Bank, New Brighton
    10.   7:44:29 A.M. - $100.00 ATM rejected withdrawal, ESB Bank, New Brighton
    11.   7:44:39 AM. - $20.00 ATM rejected withdrawal, ESB Bank, New Brighton
    12.   7:46:34 AM. - $100.00 ATM rejected withdrawal, ESB Bank, New Brighton·
          (defendant is displayed on video at the ATM machine)
    13.   7:54:02 AM. - $102.00 ATM rejected withdrawal, BP, East Rochester


    May 11, 2009:

• 1.      9:23 P.M. through 10:07 P.M. - Several text messages between defendant and
          Colleen Cantella, the defendant's girlfriend regarding the hockey game
· 2.      9:54 P.M. - Telephone call from defendant to Gregory Price
    3,    10:46 P.M. - Text message from defendant to Gregory Price stating "If I come with
          $200.00, can you do anything?"
    4.    11:05 P.M. - Text message from defendant to Gregory Price stating "If I come with
          $200.00, can you do anything?"
    5.    11: 19 P.M. - Text message from defendant to Patrick Brown stating "Can I come to
          you now?"
    6,    11:33 P.M. - Text message from defendant to Patrick Brown stating "Can I come to
          you now?"

    May 12, 2009:

    1.    12:29 AM. - Telephone call from defendant to ESB Bank automated telephone
          number
    2.    12:48AM. - Telephone call from defendant to Gregory Price
    3.    12:55 A.M. - Purchase using the victim's credit/debit card at East Rochester GetGo
          for 99¢.
    4.    12:55 A.M. • $10.00 gasoline purchase using victim's debit card at East Rochester
          GetGo

                                               14
                                                                             Circulated 10/29/2015 10:26 AM




  5.        1:04:11 AM. - $200.00 ATM withdrawal, ESB Bank, New Brighton
  6.        1:04:28 AM. - $200.00 ATM withdrawal, ESB Bank, New Brighton
  -7.      1:07 AM. - Telephone call from defendant to Gregory Price
  8.     . 3:15 AM. - Text message from Patrick Brown to defendant stating "Phone was dead,
           what's up"
  :9.      8:08 AM. - Telephone call from defendant to Gregory Price
  '10.     12:01:36 P.M. - $103.00 ATM withdrawal, Huntington Bank, Cranberry (defendant
           displayed alone in the victim's vehicle on video)
  11.      12:02 P.M. - $103.00 ATM rejected withdrawal, Huntington Bank, Cranberry
           (defendant displayed alone in the victim's vehicle on video)
 ,12.      3:24 P.M. · $103.00 ATM rejected withdrawal, Huntington Bank, New Brighton
           (defendant displayed on video)
 i13.      3:25 P.M. - ATM balance inquiry, Huntington Bank, New Brighton, showing a
           balance of$28,689.42 (defendant displayed on video)
 .14.      6:33 P.M. • $75.00 ATM/Mac machine withdrawal, Beaver Falls
   15.     6:51 P.M. - Purchase by defendant using victim's credit/debit card at Chippewa K·
           Mart in the amount of$83.59 (defendant displayed on video)
  16.      7:06 P.M. - Purchase by defendant using victim's credit/debit card at Chippewa K-
           Mart in the amount of$79.48 (defendant displayed on video)
  17.      7:09 P.M. - Purchase by defendant using victim's credit/debit card at Chippewa K-
           Mart in the amount of $105.77 (defendant displayed on video)
  18.      7:24 P.M. - Text message from Patrick Drown to defendant stating "Phone was dead,
          what's up"
. 19.      11:47 P.M. • $303.00 ATM rejected withdrawal, Beaver Falls (defendant displayed
          on video with victim's vehicle in background)

 May 13, 2009:

  1.     12:01 AM. - $303.00 ATM withdrawal, Beaver Falls
· 2.     12:02 AM. -$203.00 ATM withdrawal, Beaver Falls
  3.     12:02 A.M. - Six unanswered telephone calls from Robert Campbell to defendant
  4.     12:12 AM. - Telephone call from defendant to Laura Rankin
  5.     3:06:17 A.M. - $22.59 transaction at Sheetz, Beaver Falls
  6.     4:11 A.M. - $101.50 Mac machine transaction, Beaver Falls
  7.     4:14 A.M. • $5.69 Mac machine transaction, Beaver Falls (defendant displayed on
         video)
 8.      5:03 AM. - Text message from defendant to Patrick Brown stating "Need 150"
         (meaning defendant needed $150.00 worth of crack cocaine)
 9.      6: 10 AM. - $6.33 transaction at East Rochester GetGo
 10.     6:18 AM. - Telephone call from defendant to Patrick Brown
 11.     11:42 AM. - Text message from Patrick Drown to defendant stating "Still need it?"
 12.     1:06 P.M. -Telephone call from Kelly Carter to defendant
 13.     1:30 P.M. - Defendant attempts to cash victim's check at ESB Bank, Deaver Falls
 14.     1:36 P.M. - Telephone call from Kelly Carter to defendant
 15.     1:50 P.M. - $200.00 ATM rejected withdrawal, ESB Bank, New Brighton



                                              15
                                                                                    Circulated 10/29/2015 10:26 AM




  16.     1:51 P.M. - Balance inquiry, ESB Bank, New Brighton, showing balance of
          $27,872.06
  17.     2:31 P.M. - Purchase by defendant using victim's credit/debit card at the Shoe
          Department, Beaver Valley Mall, in the amount of $69.99.

 : In addition,   Detective   Chamberlain      obtained   documentation   from   Verizon   Wireless

•· depicting the sites of cellular telephone   towers in Beaver County from which he was able to

: confirm the approximate location of the defendant when he was using his cellular

; telephone. This Information, together with the known observations of the defendant from

. witnesses and video displays of the defendant at bank ATM and retail locations, placed the

· defendant in the area of the victim's residence during the hours when she would have been

 killed and at the various locations at which he made ATM withdrawals and purchases using

. the victim's credit/debit card.

         An examination of the defendant's blue jeans and tennis shoes under a blue light

 revealed possible blood stains. Samples of the blood of the victim and the defendant,

•· together with the defendant's blue jeans, were delivered to the Pennsylvania State Police

 Crime Laboratory for analysis. Jennifer Badger, a forensic scientist in the serology section,

• determined that two stains on the outside seam of the lower leg of the defendant's blue

 jeans consisted of blood. She further detected the presence of blood on the eyelet of the toe

 of the defendant's left athletic shoe, but the sample was insufficient for a confirmatory

 testing for blood. In addition, examination of the handle of a steak knife found in the

 kitchen sink of the victim's residence submitted to the crime laboratory disclosed evidence

 of blood. Ms. Badger prepared samples of dried blood of the victim and the defendant and

 swabs of the blood on the defendant's jeans, tennis shoes and the steak knife for

 submission to the DNA section of the crime laboratory. Michael Biondi, a forensic scientist

 supervisor in the DNA section, conducted DNA testing on the swabs of the defendant's blue

                                                   16
                                                                                       Circulated 10/29/2015 10:26 AM




     jeans and determined that the blood on the jeans matched the victim's blood.            The DNA

     profiles of the victim and the defendant     could not be excluded as potential   contributors    of

     the blood stain from the defendant's    shoe. The DNA profile of the victim was excluded as a

     contributor   as to the knife found In the kitchen sink, while the DNA profile of the defendant

     could not be excluded      as a contributor for the blood on the knife, because        there also

     appeared DNA types from two unidentified        individuals.

            Dr. James    Smith, a forensic    pathologist,   determined   that due to observing       the

    · greenish discoloration   of the body, signifying the first sign of decomposition,   the victim's

    : death occurred within an 18-hour to 36-hour period between 3:00 A.M. and 9:00 P.M. on

    : May 12, 2009. Dr. Smith opined that the cause of death was the stab wounds to the neck ·

    · which Incised the right carotid artery and the right jugular vein.      He noted a total of 46

    . knife wounds, 34 of which were located in the left neck region.     Dr. Smith further described

    · defensive wounds on the victim's hands and fingers indicating that the victim attempted          to

     ward off her attacker.    He testified that the concentration   of the wounds in the neck area

     was an indication the victim was held down and was struck w1th such force as to penetrate
                                                                                                                   i

     from the left through the right side of the neck. Dr. Smith estimated that the blade of the
                                                                                                                   i-
     knife was approximately     one-half inch in width and three inches in length. The manner of                  i
    .death was homicide.

            James Sarver met the defendant on May 15, 2009, while both were inmates in the

     Beaver County Jail. Mr. Sarver also was familiar with Mr. Campbell from whom he had
I
I    purchased marijuana in the past Mr. Sarver related that the defendant admitted to him

     that he had killed Ms. Grosskopf and intended to attempt to place blame on Mr. Campbell

     for the crime. In a second conversation with Mr. Sarver, the defendant queried as to why

i
!
                                                     17
                                                                                              Circulated 10/29/2015 10:26 AM




                                                                                                                                I
              Mr. Campbell came to the victim's residence and removed the sheets on the bed revealing                          ·I
              the pool of blood. The defendant    informed Mr. Sarver of the limit of $500.00 on the victim's

              credit/debit card and confirmed     that he went partying and shopping after the killing. Mr.

              Sarver testified that he had previously   been a visitor at the victim's residence, limited only
    I

    1 ·   i   to the main floor of the house.

                      Zack Valentine was the defendant's          cellmate at the Beaver County Jail for

          • approximately two weeks. On May 18, 2009, Mr. Valentine provided a statement to police

              in which he indicated that he had become acquainted with the defendant prior to their

              incarceration while working at Crow's Run Recycling.           Mr. Valentine stated that the

              defendant acknowledged that he had killed the victim, wrapped her in a blue blanket and

              placed her body in the stairway to the attic between the two bedrooms in the victim's

              residence. The defendant also outlined the layout of the house and provided a diagram

              detailing the location of the bedrooms and the doorways from each bedroom to the attic.

              The defendant further described the placement of a tan blanket covering the blood on the
                                                                                                                           I
                                                                                                                           ! .
              bed and complained that Mr. Campbell had pulled the blanket away exposing the blood.                         I




              Mr. Valentine, who had never been to the residence, drew a diagram of the residence for

              the police based upon the defendant's description. Mr. Valentine had been unaware of the
I.



'
              homicide until his conversation with the defendant
'
                     The defense presented evidence in an effort to place culpability for the crime on Mr.

              Campbell by attempting to demonstrate that he had been physically abusive toward the

              victim and that he had a financial motive for killing her.

                     Mr. Campbell testified that the victim called him shortly after he had moved out of

              the house and into Ms. Babich's residence, indicating that she desired to title the home In



                                                             18
                                                                                   Circulated 10/29/2015 10:26 AM




 both of their names.        Ms. Babich, who was a mortgage processor and notary public,

. facilitated the transfer by having the deed prepared, notarizing Ms. Grosskopf's signature,

: recording the deed and paying the recording fee and transfer taxes, for which she was

: subsequently reimbursed.

           Patricia Celeste, the next door neighbor and friend of the victim, observed a black

· eye on the victim on one occasion and her leg to be injured at a subsequent meeting, both

; injuries which the victim attributed to the defendant       When Ms. Celeste confronted       the

· defendant regarding the Incidents, he apologized for his actions. He further explained that

 the black eye occurred when he became angry with the victim for refusing to eat dinner he

· had prepared and he had struck the victim with the food plate. The leg Injury resulted from

 Mr. Campbell accidently pulling a loose kitchen cabinet from Its hinges causing it to strike

 the victim.

           Stacie Delp, Kristine Ramer and Nancy Pranskey, all co-workers of the victim, noted

 black eyes on the victim, with Ms. Delp also observing the injured leg. Only Ms. Pranskey

 testified that the victim told her that the injuries were inflicted by Mr. Campbell.

           On the evening of May 9, 2009, while Mr. Campbell, his wife and his friend, Martin

 Costanza, were patrons at Harvey Run Inn, a local tavern, Crystal Barnes, an employee,

 overheard     Mr. Campbell, following a telephone conversation,    say loudly to his wife, "cha-

 ching, cha-chlng".   Ms. Barnes admitted to being unaware of the meaning of Mr. Campbell's

 remarks.

           Approximately   two to three months following the victim's death, Mr. Campbell was

 advised     by correspondence    from Wal-Mart,     the victim's   employer,   that he was the

 beneficiary   of the victim's retirement account in the amount of$1,893.34     and life insurance



                                                19

                                                                                    --···            .,.   _
                                                                                       Circulated 10/29/2015 10:26 AM




     benefits    in the amount of $22,000.00.      The victim   had designated      Mr. Campbell the

     beneficiary as her common-law      husband   on June 27, 2005, approximately     four years prior
 I

 to her death. Mr. Campbell denied any knowledge that he was the victim's beneficiary prior

 'to receiving notice from her employer. He, in fact; received the proceeds from both the

 retirement account and the life Insurance as a result of Ms. Grosskopf's death.

            Mr. Campbell also was the surviving joint tenant of the residence, and thus became

 .sole owner following the victim's death.          Testimony indicated that the balance of the

. mortgage was approximately           $30,000.00 with the value of the home estimated at

. $10,000.00 due to its deteriorated condition.

            In rebuttal, the Commonwealth introduced the medical records of the victim from

; Heritage Valley-Beaver Hospital for the period from 2004 through 2008, which revealed

• that she was treated on several occasions as a result of injuries sustained by falling.

            As noted above, the defendant does not dispute that Ms. Grosskopf was murdered;

 however, he alleges that the Commonwealth failed to sustain its burden of proving that he

• committed the crime. The thrust of the defense was that Mr. Campbell had the motive and

 opportunity to kill the victim, since he would benefit financially by her death, and that he

 had physically abused the victim in the past


            B.      Facts and Evidence Adduced at the PCRA Hearing
                    Held   on Au211st 4, 6 and a. 2014   .

                    1.      Thomas Kurt Fuchel

            As noted earlier, the Court conducted a hearing on defendant's Post Conviction

 Relief Act (hereinafter PCRA) Petition on August 4, 6 and 8, 2014. The Court heard

 testimony _during parts of each of those three days. Since defendant had the burden of



                                                    20
                                                                                            Circulated 10/29/2015 10:26 AM




proof, the defendant     first called witnesses.    Defendant     first called Thomas Kurt Fuchel, Sr.,

Esquire, who was lead defense counsel at the trial. He was assisted                     by a new public

defender at that time named Rebecca Fields, who was not called to testify by either party at

the PCRA hearing. Fuchel first testified that it was protocol or procedure,             at the time of the

Dennerleln    trial, for an Assistant   Public Defender to begin representation          in a case at the

preliminary   hearing stage and continue with the case through trial. Fuchel did that in this

case.

        Fuchel testified that he handled the preliminary          hearing. He testified that it was his

practice to speak with the client prior to the preliminary          hearing in the lock-up facility. He

did not recall whether he met with the defendant               before the preliminary     hearing in this

case, but indicated    that was his standard       practice.   Fuchel couldnot provide any specific

information   as to when he met with the defendant He did admit that it was significant to

meet with the client early in the case to discuss strategy and to discuss what the defendant

did or did not do or know in connection with the charges.

        Fuchel indicated that the Commonwealth provided extensive discovery. According

to Fuchel, defendant Dennerleln complained about not receiving discovery, and Fuchel

claims that this prompted him to make sure the defendant received the discovery. Fuchel

stated that he believed it was his decision regarding what portions of the discovery or

other information to use in this case. Fuchel claimed that he had discussions with

Dennerlein, both before and during trial, regarding what information to use. He conceded - /

that use of prior criminal convictions under Pa.R.Evld. §609 is a significant tool to impeach

witnesses for the opposing side.




                                                    21
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         The first issue raised by defendant     is the failure to use prior convictions   and other

  information   for purposes     of impeaching     key Commonwealth       witnesses.     Counsel   for

 · Dennerlein at the PCRA hearing initially questioned    Fuchel about a Commonwealth        witness

 : by the name of Laura Rankin. Rankin had, and testified to, information     regarding defendant

 : using the victim's credit/debit   to make bank withdrawals.     Fuchel testified that it was his

 · theory that Robert Campbell, who was a former boyfriend           of the victim, committed      the

  murder. Fuchel continued      by stating that he believed that Rankin was actually a helpful

 • witness to the defense because she also had information that the defendant used the

 . victim's credit/debit card not only at and shortly after the time of the murder, but also

 • prior to that time. Rankin also testified that defendant had the PIN for the credit card

  further confirming. according to Fuchel, that her testimony would actually indicate that

 · defendant did not just use the credit card after the murder, but also before the murder

  showing his consented-to access to the card. Fuchel thought this was beneficial testimony

  and pointed to Volume IV of the trial transcript, page 30, line 25, through page 341, lines 1·

· . 3. Defense counsel at the PCRA hearing pointed out and entered exhibits to confirm that

  Rankin had convictions for retail theft, trademark counterfeiting and theft by unlawful

  taking, all of which were crimes of crfmen falsi. The Commonwealth confirmed, on cross·

  examination, that Fuchel did not want to impeach Rankin because she was actually

  favorable to defendant's position In this case. However, defense counsel noted for the Court

  that at Volume IV, page 341 of the trial transcript, Fuchel cross-examined Rankin about

  using crack cocaine In the presence of her child, which was a form of impeachment, but yet

  chose not to Impeach her credibility with crimes of crimen falsi.




                                                 22
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         The second         Commonwealth        witness   who     had prior    criminal    convictions    was

. Zachary Valentine.       Valentine   was defendant's     cell mate at the Beaver County Jail, and

' Valentine   testified    at trial regarding     defendant's     admissions    about his (defendant's)

 involvement in the killing.

         Fuchel testified      that he discussed      Valentine    with Dennerlein,       and according    to

, Fuchel, defendant       Dennerlein confirmed that some of the statements            that Valentine made

, in a report of interview were true. Fuchel claims that he continuously            cautioned Dennerlein

 not to have conversations        with Valentine. Dennerlein        never admitted     his guilt to Fuchel,

 but, according to Fuchel, the defendant did confirm some of the things that Valentine said.

         Interestingly     and bewildering      to the Court was Fuchel's concern          about perjury if

 defendant testified at trial because defendant           allegedly said he was going to lie at trial

 regarding the statements        that Valentine   made. This had very little,     if anything, to do with

 regard to why Fuchel did not cross-examine Valentine. When pressed by defense counsel at

 the PCRA hearing, Fuchel confirmed that he must impeach this type of witness. Valentine

 had a conviction for theft by deception, and another conviction in Fayette County. Fuchel

 confirmed that he did not question Valentine about these matters, and Puchel Indicated

 that it was inadvertent not to use them, that they must have slipped through the cracks and

 that his decision not to use them was bad in hindsight

        A third Commonwealth witness who testified against defendant was James Sarver.

 Sarver was another jailhouse informant, who indicated that defendant admitted to the

 killing. Sarver also had a conviction for terroristic threats. Although not a crimen falsi

 crime, Sarver was on probation, and Fuchel could have questioned Sarver on whether he

 expected any favorable treatment on a probation violation, which was never done. Fuchel



                                                     23
                                                                                           Circulated 10/29/2015 10:26 AM




       did question Sarver about a simple assault charge that was dismissed, at Volume V, page

       153, of the trial transcript    Fuchel conceded that, in hindsight, he should have used the

       terroristic   threats probationary   situation   for cross-examination   purposes    at trial. Fuchel

       could not explain his failure to use this Information.

               A fourth Commonwealth        witness who testified was Kelly Carter. Kelly Carter came

      .· to the residence after the crime and was present when Robert Campbell, the person who

       Fuchel Intended to pin blame on, saw blood on a dog at the residence and pointed this out

       to Kelly Carter. Carter had a conviction for receiving stolen property, which Fuchel did not

       use to cross-examine     her. Fuchel indicated that he would normally Impeach this type of

       witness, but did not do so in this case because he believed that Carter's testimony was

       favorable to the defense in that it tended to implicate Campbell.
i .
               The fifth Commonwealth witness was Brian Silberger. At trial, Silberger testified

       that defendant Dcnnerlein purchased several thousand dollars of crack cocaine from him

       (Silberger) at or around the time of the murder. Silherger further testified that when he

       (Silberger) questioned Dennerlein concerning the whereabouts of the victim, Oennerfein

       told him (Silberger) that the victim was In Maryland visiting her brother. (Trial Transcript,

       Vol. IV, p. 247). Silberger had a conviction for burglary and a second conviction for theft by

       unlawful taking. Both of these crimes were of a crimen falsi nature and Fuchel could not

       recall why he did not use them for cross-examination purposes.
                                                                                                                        I .
               The sixth Commonwealth witness was Patrick Brown. Brown· was the second
                                                                                                                        '

       witness to testify regarding defendant's drug purchases or attempts to purchase drugs at or

       around the time of the homicide. (Trial Transcript, Vol. IV, p. 274). Brown conceded that he

       was informed by the Commonwealth that he would not be charged for providing drugs to


                                                        24
                                                                                          Circulated 10/29/2015 10:26 AM




the defendant Fuchel questioned             Brown regarding     the fact that he would not be charged,

going to Brown's bias or motive to testify, but neglected to question him about two pending

cases and the potential        for favorable treatment or leniency in those cases based on this

testimony.     Fuchel confirmed      that it would make sense to question the witness on these

issues, but added that he was not sure he knew about these charges. Fuchel conceded that

the use of such impeachment         material could increase the chance of acquittal.       -

       The second          issue raised by defendant        in his PCRA petition was testimony     that

revealed     defendant's    incarceration    at the time of trial. Fuchel confirmed     that a defense

lawyer usually attempts to preclude             reference    to the client being in jail. Fuchel noted,

however,      that it was extremely difficult in this case because of others who testified

regarding admissions made by the defendant and who were in jail with him. Fuchel stated

that he did discuss this issue with the defendant and con finned that the reference to being

in jail was an Important issue.

       Fuchel was pressed by present defense counsel, and Indicated that he thinks he

discussed this Issue in detail with the defendant, but was not sure. It was at this point that

Fuchel added that he had problems communicating with the defendant during trial and that

most of the problems for this lack of communication lie with the client (defendant).

According to Fuchel, he gave discovery to the defendant twice. He said he mailed the

discovery the first time, and defendant said he did not receive it This, according to Fuchel,

prompted him to go to the jail personally and deliver the discovery In the presence of the

Assistant Warden. Fuchel said there were two occasions at the jail when he had problems

with defendant Dennerleln.




                                                      25
                                                                                 Circulated 10/29/2015 10:26 AM




         Fuchel testified   that, at one of these two instances,    the defendant   became very

 ,physical and threw the public defender's    paralegal, Dionna Steele, to the ground and went

, after Fuchel. Fuchel stated that Dennerlein became verbally abusive on a second occasion .

. He indicated that Dennerleln caused these disruptions.

         As to the issue of defendant   being in jail, Fuchel added that it was trial strategy for

. this information   to come into evidence because Fuchel thought it would be helpful for the

 jury to know that the individuals who were testifying were also in jail.

         The Commonwealth brought out the fact that they objected when Fuchel went down

 this road, and Fuchel asked for a sidebar with the Court at trial and confirmed that he

 wanted this information       before the jury.      The Commonwealth stipulated that the

 information came before the jury at the request of defendant with no objection or curative

 Instruction requested.

         Fuchel was also questioned regarding the third Issue raised by the defendant,

 namely, whether Zachary Valentine was acting as an agent of the government when he was

 debriefed by the Commonwealth and then placed back in the same cell with the defendant

 Present defense counsel asserts that this gives rise to the basis for a motion to suppress the

statements made to Valentine on the basis that Valentine may have been acting as an agent

 for the Commonwealth in securing admissions without Miranda warnings. Fuchel said he

 did not know that Valentine was questioned and placed back in the same cell and never

considered this Issue or argument

        The fourth issue was general failure to cross-examine witnesses. For example,

 present defense counsel brought to Fuchel's attention that the Commonwealth only placed

 into evidence bank records of the victim at or near the time of the homicide to establish


                                                26
                                                                                Circulated 10/29/2015 10:26 AM




 that defendant was using the credit/debit card at that time and thereby establish a motive

 for the killing. Present defense counsel pointed out that Fuchel neglected to use prior bank

 records to indicate   that defendant   had used the credit/debit   card well in advance of the

 homicide.   ·

                 2.    Benjamin James Dennerlein

         The defendant, Benjamin James Dennerleln, also testified at the PCRA hearing .

• Defendant Dennerlein was present throughout the hearing.

         Dennerlein testified that Fuchel, with the assistance of another Assistant Public

• Defender, Beth Manifesto, handled his prellmlnary hearing on August 1, 2009. Dennerlein

 testified that he never met with Fuchel prior to the preliminary hearing and that Fuchel

•· never came to the jail to see him and never spoke with him In the lock-up prior to the

: preliminary hearing. The first time that defendant Dennerlein actually met with, and saw,

 Fuchel was in the courtroom when the preliminary hearing occurred.

         The next step In the process was the arraignment In October of 2009. Defendant was

 incarcerated between the time of the preliminary hearing and the arraignment, and

 testified that he had no contact with Fuchel between the time of the preliminary hearing

 and the arraignment

         Dennerleln stated that a private investigator. for the public defender's office did

 come to the jail in early 2010 to gather information and that Fuchel came to the jail later in

 January of 2010 and several times between January of 2010 and the time of trial in July of

 2010.

         Dennerlein confirmed that paralegal Dionna Steele came to the jail several times to

 meet with him, and on one occasion Fuchel was also present As to the Incident in which



                                               27
                                                                                    Circulated 10/29/2015 10:26 AM




       Fuchel claimed that Dennerlein became verbally abusive and physical, the defendant

      . testified that Fuchel actually got in his face and that he (defendant) did not get physical

       with Fuchel. Dennerleln stated that the incident got very loud and that a jail guard came

      . into the room because of the noise. According to Dennerlein, Dionna Steele advised the

       guard that the defendant did nothing wrong.

             Dennerlein went on to state that, after his conviction in this case, he had to file his

      own appeal because Fuchel neglected to timely file the appeal. No post-sentence motion

      was filed. Fuchel requested several extensions to file a brief for the appeal, and the appeal

      was eventually remanded to the trial court by the Superior Court because of this. Present

      defense counsel was appointed and handled the appeal.

             Defendant testified that throughout the trial, and early appeal proceedings,

      defendant's mother was providing letters to Fuchel, which Fuchel failed to respond to.

: I   Defendant filed his own PCRA petition in September of 2013 and present defense counsel

  j   filed a supplement In April, 2014.

             The defendant did address specific comments and allegations raised by Fuchel. As to

      the testimony of Zachary Valentine, defendant advised that Fuchel told him that Valentine

      was going to testify that defendant confessed to Valentine and that this testimony may hurt

      at trial. Defendant testified that he never said he would perjure himself. According to

      defendant, he (defendant)       requested that Fuchel cross-examine Valentine with

      impeachment material, and Fuchel responded that he did not want to complicate the case.

      Defendant was adamant about the fact that he pressed Fuchel to impeach Valentine.

             As to Laura Rankin, defendant claims that he actually brought some of the crimen

      Jalsi convictions to Fuchel's attention. Defendant testified that Fuchel never advised him


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       (defendant)     that he wouldn't      use the Information       against    Rankin   because   she was

      . favorable. Instead, defendant     testified that Fuchel did not even know about Rankin's prior

      : convictions until defendant     brought them to his attention.

              With regard      to all of the Commonwealth          witnesses     who had prior convictions,

      defendant testified that he was not aware that a corrupt and polluted source charge was in

      order and that Fuchel never requested           one. It was only after present defense counsel

     , brought this to defendant's attention that he was aware of this.

              As to the issue of defendant's       incarceration    being brought up at trial, defendant

     . stated that Fuchel     told him during trial that a deputy sheriff would mention that the

     • defendant     was in jail after a sidebar with the Court, but also stated that Robert Campbell

      had already testified to It and therefore it would come In. According to defendant, Fuchel

      never discussed this issue with him in advance or whether It was part of the trial strategy.

      Defendant claimed that he knew it was not right for this information to come in because the

      sheriff went to great lengths to keep the jury from seeing defendant being escorted to the

      courtroom by deputy sheriffs in handcuffs and shackles during breaks in the trial.

,·            Defendant testified that when it was time for the defense case to begin, defense

      counsel called multiple witnesses in a brief period and then turned to him (defendant) and

      said "you're next, but I suggest you not testify." Defendant contends that this is the only

      time Fuchel discussed with him whether or not to testify.

             With regard to the third issue, namely, Zachary Valentine potentially being an agent

      of the government, Dennerlein testified Fuchel never discussed this issue with him. It came

      to light that Valentine had testified    for the Commonwealth in other          cases and that neither

      defendant nor Fuchel knew this.


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        Dennerlein testified that he wrote a letter to the Trial Judge (Dohanich) regarding

failure to receive discovery.   Dennerlein     claims that Fuchel came to the jail angry after

receiving notice that Dennerlein wrote a letter to the Judge. Defendant claims that Puchel

came Into the cell, crumbled the letter, told him (defendant)           never to write a letter to the

Judge again, told defendant that he (Fuchel) was going to trial with what information               he

had, and told defendant that he (defendant) was going to burn. After this discourse, Fuchel

left the cell according to the defendant

       With regard to the bank records, defendant was aware that the Commonwealth

wanted to focus on bank records for five days after the homicide. Defendant knew that all

of the bank records would show that he had made numerous withdrawals from the victim's

account for a long period of time prior to the incident Defendant claims that he kept

encouraging   Fuchel to get the bank records and video surveillance of the ATM machine, but

Fuchel never looked into this matter, stating that it was too late.

              3.        R2bert Chamberlain
       The defendant also called   Beaver County Detective Robert Chamberlain as a witness

at the PCRA hearing. Chamberlain        was a co-affiant on the criminal charges filed against

Dennerlein, The Detectives' Bureau is part of the Beaver County District Attorney's Office.

Detective Chamberlain was questioned about the          involvement of Zachary Valentine in this

case and his use as a witness by the Commonwealth. Chamberlain testified that he did not

know Zachary Valentine prior to the Dennerleln           case. Chamberlain     testified that he met

with Zachary Valentine twice during this case.

       According   to    Chamberlain,      Valentine   · first   came   to   the   attention   of the

Commonwealth when Valentine's wife called the District Attorney's Office and advised that



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 a representative       of the District    Attorney       should      speak   to Valentine    regarding      the

 Dennerlein case. This caused the District Attorney's Office to request transport of Valentine

 from the Beaver County Jail to the Beaver County Courthouse                    for questioning     on May 18,

 2009, prior to the trial in this case. Chamberlain           advised that he secured all of Valentine's

 . knowledge   and Information       in the interview      of May 18, 2009 and had no intention of

 speaking with him again short of requesting               his testimony      at the trial. Chamberlain did

• indicate that there eventually arose the need for a second meeting                    for the purpose of

. having Valentine draw a diagram of the crime scene. Chamberlain                 indicated that he did not

· know that Valentine     had served as a witness for the Commonwealth                 in prior cases at the

. time he interviewed    Valentine    in 2009. Chamberlain           learned this later through discussion

 with another Beaver County Detective,        Kim Clements. According to Chamberlain,                Valentine

 expressed fear of being In the same cell with the defendant, and Chamberlain                     testified that

 he never told Valentine     to keep his eyes and ears open about the case or to solicit any

 further information    from Dennerlein after the Initial Interview on May 18, 2009.

        On cross-examination,         Chamberlain        testified    that he was able       to corroborate

 Valentine's information given during the interview, In fact, Chamberlain stated that he left

 the Interview room on several occasions during the Interview to check Valentine's

 statement and was able to confirm what he was saying based upon review of phone records

and photos of the crime scene. Chamberlain was the final witness called by the defense.

                4.       Kim Clements
        The prosecution commenced its case on Friday, August 8, 2014. They first called

 Detective Kim Clements. Clements testified regarding Zachary Valentine. She stated that

 she knew Valentine as a result of his prior testimony for the Commonwealth in another



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       homicide case. She did participate in the Valentine interview on May 18, 2009. Clements

       testified that she played no part in arranging for Valentine to be Interviewed        or in his

      . involvement in this case. She confirmed that it was Valentine's wife who brought him to the

       attention of the prosecution. Clements also confirmed      that neither she nor anyone else

       from the prosecution gave Valentine any instructions to pursue further information from

      : the defendant or to act as an agent for the Commonwealth.

              On cross-examination, Clements admitted that she believed Valentine may come
                                                                                  ~
      . back with some additional information after the first Interview, but she never instructed

      · him to do so. Clements confirmed that there was a second interview of Valentine and also

      stated that she was involved in his preparation for testimony at trial.

                     5.      Eu(lene St. Clair
             The next Commonwealth       witness was Chief Eugene St Clair of the Freedom Police

      Department. St. Clair· is now the chief, but was a sergeant at the time of the Valentine

      interview. St Clair was the co-affiant on the criminal charges with Detective Chamberlain.

      St Clair indicated that he could not recall all of the details of the interview without

      referring to his report and was permitted to do so. St Clair did recall that Valentine gave
  I
. I
      specific information   regarding Dennerlein's statement that coincided with evidence found

      at the crime scene. St Clair also confirmed that he gave no instructions to Valentine to

      solicit any additional information from Dennerlein. The one thing that St Clair testified to

      that was inconsistent with Chamberlain and Clements was that St Clair's report raises the

      inference that there were a number of interviews        with Valentine. There are no other

      specifics on dates of interviews. Also, there was additional information   In St. Clair's report

      that was not in the Chamberlain report, but no major inconsistencies. St Clair did not know



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 : Valentine   prior to the interview   in question. St Clair indicated that he only interviewed

 Valentine     in the presence of Beaver County detectives, but did recall that he was involved

 in interviews on more than one occasion.

                  6.     Dionna Steek
          The final witness called by the Commonwealth was Dionna Steele, a paralegal In the

· Beaver County Public Defender's Office. This testimony was the most troubling for the

 Court with regard to the PCRA hearing. Reference to Attorney Fuchel's testimony above

 reflects that he testified to an Incident at the Beaver County Jail In which Fuchel claimed

 that Dennerleln became hostile in an attorney interview room with Dionna Steele present.

 Fuchel testified that Dennerlein pushed ~s. Steele to the ground and came after Fuchel, Ms.

 Steele gave quite a different version of that event. She recalled that she took an envelope to

 the jail from Attorney Fuchel to deliver to Dennerleln. She indicated that she had met with

 Dennerlein on a number of occasions at the jail and never had a problem with him. On the

 particular occasion when she took the envelope to the Jail for Attorney Fuchel, she was in

. the attorney meeting room with Dennerleln When Fuchel entered the room. She testified

 that Fuchel began yelling at the defendant and the defendant began to yell back She

 became frightened and stepped back, She actually pushed the emergency button In the

 room because of the situation. She stated that Fuchel began to back up and actually backed

 into her. Dennerleln thought she may fall and grabbed her arm to prevent her from falling.

 Other than this, Steele testified that Dennerlein never touched her. A jail guard came Into

 the room, and Steele told the guard that the defendant did not do anything wrong.

         On both direct and cross-examination, Steele testified that it was Attorney Fuchel

 who got into the defendant's face. She speclfically testified that the situation was escalated


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by Attorney Fuchel pounding on the table. She was startled by Attorney Fuchel's actions

and specifically recalled that he walked toward Dennerlein and got into his (Puchel's) face.

She said that Fuchel was within inches of Dennerlein's face. She stated that Fuchel was very

angry and was clearly the aggressor in this situation. According to Steele's testimony, the

relationship between the two was hostile from that point forward.

           Defense counsel pressed Steele on cross-examination     and was successful in getting

Steele to say that Dennerlein never gave her         a problem throughout the time that she met

with him prior to trial. In fact, she stated that defendant Dennerleln was always respectful.

She stated that Dennerlein    was very frustrated in her discussions with him about discovery

and the fact that he (Dennerlein)    was not receiving anything from Fuchel. Steele stated that

she told the jail guard that the defendant did nothing wrong in the attorney meeting room

because she believed that and did not want to see Dennerlein receive sanctions at the jail.

       The Court questioned Steele in an attempt to compare her testimony with that of

Fuchel, and she specifically undercut Fuchel's version of the events. This came from a

prosecution     witness, who actually worked in the same office as Defense Trial Counsel

[Fuchel) at the time of the incident

                                            ANALVSJS
       A.        Claims Made by the Defendant
       The defendant's     PCRA petition   has raised four claims here. Those claims are as

follows:

                 1.     That defense counsel failed to cross-examine witnesses on
                        the basis of bias and prior criminal records of crimen falsi or
                        otherwise;

                 2.     That there was prejudicial error to the defendant in that
                        there was a reference to defendant's Incarceration during the


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                             trial of this case placed into evidence by both defense counsel
                             and the Commonwealth;

                    3.       That defense counsel failed to file a motion to suppress due
                             to alleged interrogation of Zachary Valentine, who was
                             asserted to be a government agent; and

                    4.       That defendant was denied the right to confrontation under
                             the Pennsylvania and United States Constitutions on the basis
                             of defense counsel's ineffective cross-examination.

    These are the contentions that testimony and evidence was received on and are the issues

    that will be addressed by the Court in the following subsections.                  1



           B.      Applicable Law
           Defendant contends that his trial counsel rendered ineffective assistance and that he

    is therefore entitled to either a new trial or dismissal of the charges against him. (mp. 2,

    ,r13 of defendant's Amended Petition for Post-Conviction Collateral Relief).

          "It is well-established that counsel is presumed effective, and to rebut that

. presumption, the PCRA petitioner must demonstrate· that counsel's performance was

deficient and that such deficiency prejudiced him." Commonwealth v. Koehler, 36 A.3d 121,

 132 (Pa. 2012) (citing Strickland v. Washington, 466 U.S. 668, 687-91, 104 S.Ct 2052,

_____ 80 L.Ed.2d 674,                            (1984). The Pennsylvania Supreme Court set forth a

three-part test .to determine whether a defendant has received ineffective assistance of

counsel, with those three parts being as follows: (1) the underlying legal issue has arguable


IDefendant raised other issues in bis original Petition, but these four issues are the only real issues pursued at the
hearing other than some questions regarding the direct appeal, which are discussed i!J.frJ1.


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 merit; (2) counsel's actions lacked an objective reasonable basis; and (3) the defendant was


 prejudiced by counsel's act or omission.   Koehler, 36 A.3d at 132 (clung Commonwealth v.

· Pierce, 515 Pa. 153,          ___, 527 A2d 973, 975 (1987). The Court must analyze

defendant's four claims under these parameters.


       C.       Defendant's Claims 3 (That defense counsel failed to file a
                motion to suppress due to alleged Interrogation of Zachary
                Valentine, who was asserted to be a government agent) and 4
                (A denial of the right to confrontation under the Pennsylvania
                and United States Constitutions on the basis of defense
                counsel's Ineffective cross·cxamtnatlon) Lack Merit
       Defendant's third claim asserts that counsel was ineffective for failure to file a

motion to suppress due to defendant's alleged interrogation, without Miranda warnings, by

a government agent Specifically, he asserts that his Fifth, Sixth and Fourteenth Amendment

rights under the United States Constitution were violated because Zachary Valentine was

acting as an agent for the CommonweaJth at the time that he had discussions with the

defendant about, and the defendant admitted to, the killing of the victim in this case.

Defendant goes on to contend that Valentine was transported to speak with the County

Detectives at the Beaver County Courthouse in May of 2009, and was thereafter sent back

to the jail, allegedly to further question the defendant and obtain admissions from him

without any Miranda warnings.

      This claim was not established by the evidence adduced at the PCRA hearing. In fact,

to the contrary, the evidence established that Valentine was only questioned on one

occasion by the detectives, and the uncontradlcted testimony further· established that

Valentine was   nm   given any instructions to interrogate the defendant or to obtain any



                                             36
                                                                                     Circulated 10/29/2015 10:26 AM




      further admissions from him by the County detectives or police officers who interviewed

     _ him. Without evidence to support this claim, it must be denied for lack of arguable merit

             Also, defendant's   fourth claim, namely that he was denied the right of effective

     cross-examination    of those witnesses testifying against him because of the lack of cross-

     examination by defense counsel, must be denied for lack of merit The major issue raised by

     defense counsel at the hearing in August, 2014 was that trial defense counsel failed to use

     prior bank statements to cross-examine     witnesses and establish that defendant had used

     the victim's credit/debit card not only at our around the time of the homicide, but also in

     advance of the same, thereby showing that defendant had consented-to access to the card.

     The evidence    of record establishes,   through the testimony of Laura Rankin, that the

     defendant   was accorded    the ability to place this matter before the jury by Rankin's
I.


     testimony that the defendant not only had access to the card, but also the PIN as stated in

     the Facts section above (Trial Tr., Vol. IV, pp. 340·41). This issue, in the estimation of the

     Court, does not arise to a meritorious claim based upon the evidence in    the trial transcript
I
     and the evidence adduced at the PCRA hearing.


            D.      Defendant's Second Claim (Alleged Improper Reference
                    At Trial to Incarceration of Defendant) Must be Denied
                    Because Defense Counsel had a Reasonable Strategic
                    Basis for His Action In Admitting the Bvldence, and the
                    ,1ahn Also Lacks Medt
            Defendant claims that he was prejudiced in this case by not only the admission of

     evidence by the Commonwealth that he was incarcerated prior to and during the trial, but also

     the fact that defendant's own counsel elicited this testimony through cross-examination of a

     Commonwealth witness. In essence, defendant claims that not only was the evidence brought




                                                   37
                                                                                            Circulated 10/29/2015 10:26 AM




     before the jury by testimony, but also that defense counsel did not request a curative instruction

    . with regard to the testimony.

             The trial transcript and the testimony of Attorney Fuchel at the PCRA hearing established

    . that defense counsel asked Commonwealth           witness Robert Campbell where he met the

     defendant, and the response was that Campbell met the defendant while both were in jail. At the

     PCRA hearing, as noted in the Facts section above, Fuchel testified that it was his trial strategy

    . for this information to come into evidence because he thought it would be helpful for the jury to

     know that Campbell, who was the individual that defense counsel hoped to pin blame on, had

     been in jail in the past and, therefore, had a questionable               background    himself. The

     Commonwealth stipulated, at the PCRA hearing, that this information came before the jury at the

     request of the defendant with no objection or curative instruction requested. To the Court's

     information and understanding, there was no reference as to why the defendant was in jail before

     or during the trial. The only reference was to the fact that defendant was in jail.

             "Generally, where matters of strategy and tactics are concerned, counsel's assistance is

     deemed constitutionally effective if he chose a particular course that had some reasonable basis

    designed   to effectuate   his client's interest" Commonwealth v, Howard, 553 Pa. 266,            _

     719 A.2d 233, 237 (1998). The Howard Court also noted that a claim for ineffective assistance

    of counsel cannot succeed by simply comparing, by hindsight, the trial strategy employed with

    alternatives not pursued. "A finding that a chosen strategy lacked a reasonable basis is not

    warranted unless it can be concluded that an alternative not chosen offered a potential for success

    substantially greater than the course actually pursued." Id.

            In this case, the trial testimony not only included the references noted with regard to the

    Campbell testimony noted above, but also included the testimony of Zachary Valentine, who was


j
                                                       38
                                                                                     Circulated 10/29/2015 10:26 AM




 defendant's cell mate when admissions regarding the homicide and defendant's involvement in

 the same were made .. Valentine's testimony clearly reflected that the admissions were made

 while he and the defendant were incarcerated together. (Trial Tr. Vol. V, pp.160-16). This

 reference was unavoidable in order to set the stage in which the admissions occurred. Again,

 there was no reference to why the defendant was in jail.

        Defense counsel made it clear that his strategy was to attempt to paint a sordid picture of

.· Commonwealth witnesses, such as Campbell and Valentine, by not only permitting references to

 their past as prisoners when questioned by the Commonwealth,            but also by bringing it out

himself when he questioned the witnesses. This trial strategy cannot be said to be unreasonable

under the circumstances.

        Furthermore, the Pennsylvania Supreme Court decision in Commonwealth v. Johnson,

838 A.2d 663 (Pa. 2003) is instructive and warrants a determination that this claim lacks merit.

In Johnson, the Pennsylvania Supreme Court specifically stated that "although generally no

reference may be made at trial in a criminal case to a defendant's arrest or incarceration for a

previous crime ...    there is no rule in Pennsylvania which prohibits reference to a defendant's

incarceration awaiting trial or arrest for the crimes charged." Id. at·680 (citation omitted). In

Johnson, the Supreme Court also cited Commonwealth v. Wilson, 538 Pa. 485, 506-07, 649 A.2d

435, 445-46 (1994) for the proposition         that testimony indicating that the defendant was

incarcerated prior to trial was not improper where the jury could reasonably infer that the

defendant's incarceration was the result of the criminal acts for which the defendant was on trial.

In this case, although there was reference to the fact that defendant was in jail prior to trial, there

was no reference as to why he was in jail, which would give rise to the inference that the




                                                  39
                                                                                          Circulated 10/29/2015 10:26 AM




defendant was detained as a result of the case for which he was on trial and, therefore, proper

under Johnson and Wilson.

          For these reasons, defendant's second claim roust be denied.

          E.       Defendant's First Claim (That Defense Counsel Was
                   Ineffective for Failing to Cross-Examine Commonwealth
                   Witnesses for Bias and Prior Criminal Records, Especially
                   0f Crim en Falsi} is Meritorious But Does Meet the
                   Prejudice Threshold to Overturn the ~rdkt
        This issue was the most troubling to the Court in this case. It was abundantly clear

from defense counsel's testimony that he either completely neglected to cross-examine key

Commonwealth          witnesses with regard to crimes of crtmen falsi that could affect their

credibility or that he simply did not take the time to discover that such information existed

for cross-examination purposes. Counsel (Fuchel) used such terms in his testimony as the
                                                                .,
prior convictions for crimes of        crimen falsi with regard to Zachery Valentine may have

"slipped through the cracks": that in hindsight, "he should have used" the convictions of

crimen falsi to cross-examine       James Sarver; that he could not recall why he did not cross-

examine        Brian Silberger    with his convictions   for crimes         of   er/men falsi; and, most

importantly,      his admission    that the use of crimes of         crimen fa/sl for cross-examination

purposes could increase the chance of acquittal "in a prosecution                  of this type." Defense

counsel's      answers were Inexplicable.     He consistently         could not explain, in a rational

manner, why he did not question these witnesses with regard to these crimes or did not

know about the crimes so that he could use them in cross-examination.

       Moreover, the Court was troubled by the stark contrast of the versions of the events

with regard to the meeting between Attorney Fuchel and defendant at the Beaver County

Jail prior to trial referenced in the Facts section above. Fuchelfrended that the defendant



                                                  40
                                                                                        Circulated 10/29/2015 10:26 AM




 became hostile,     attacked    him and knocked his paralegal          to the ground. The defendant

. contested    this and gave a different     version of the events. The defendant            testified that

 Fuchel was the instigator, that Fuchel got in his (defendant's) face and that he (defendant)

 was merely trying        to assist   the paralegal     who was knocked          backward.     When    the

 Commonwealth       called the paralegal    (Dionna Steele) to the stand during the PCRA hearing,

 the Court was expecting        to hear her confirm     Fuchel's    version of the events. Instead, she

 confirmed, to the letter, the defendant's version of the events, specifically testifying that the

 defendant     grabbed   her arm to prevent      her from falling while Fuchel         was clearly the

 instigator.   This paralegal   described   the relationship       between   Fuchel and the defendant

 from that point forward as hostile. It must also be remember~d              that the defendant had to

· file his own appeal after conviction, that attorney Fuchel missed filing deadlines with the

Superior Court, that new counsel had to be appointed to handle the appeal and the PCRA

because of Fuchel's negligence, and that the defendant actually filed his own PCRA petition.

All of these factors lead the Court to the conclusion that the first two prongs of the PCRA

burden of proof requirements are met by this claim, namely, first, that the underlying

argument has merit, and second, that counsel (Fuchel) had no reasonable strategic basis for

his action or inaction. This requires the Court to consider, for purposes of this claim, only

the third requirement, namely, whether the petitioner suffered prejudice because of

counsel's Ineffectiveness.

         The Pennsylvania Supreme Court, in Commonwealth v. D'Amato, 579 Pa. 490,

--~ 856 A.2d 806, 812 n.S (2004), stated as follows:


                 The 'prejudice' prong. under the PCRA, is satisfied when the
                 petitioner demonstrates that the alleged ineffectiveness so
                 undermined the truth-determining process that no reliable

                                                   41
                                                                                                      Circulated 10/29/2015 10:26 AM




                       adjudication  of guilt or innocence could have taken place, see 42
                       Pa.C.S. §9543(a)(ii), in other words, that there is a reasonable
                       probability that, but for counsel's act or omission, the outcome of
                       the proceeding would have been different

        See also, Commonwealth v. Miller, 819 A.2d 504, 517 (Pa. 2012); Commonwealth v. Tilley, 566

        Pa 312,             , 780 A.2d 649, 652 (2001); and Commonwealth v. Kimball, 555 Pa. 299, 312-

        13, 724 A.2d 326, 333 (1999). Thus, the Court must determine, under this standard, whether

        counsel's ineffectiveness so undermined the truth-determining process in this case that no
r
        reliable adjudication of guilt or innocence could have taken place.

               While defendant's claim docs have merit, it only relates to a portion of the

        Commonwealth's case against him. The failure to cross-examine these witnesses, with regard to

    prior convictions, relates only to admissions allegedly made by the defendant and his use of the

    victim's credit/debit card for purposes of furthering his drug habit.2 If this was the extent of the

    evidence against defendant, this claim would surely be meritorious and result in a new trial.

    However, there was significant other evidence against the defendant that was not affected by this

    lack of cross-examination ..

               For example, there was testimony regarding defendant's statement to Beaver County

    Detectives Patrick and Clements that is detailed at length at pages 11-13 of this Opinion. That

    testimony reflects that defendant attempted to explain away his involvement in this matter and

    provide quasi-alibi evidence to exonerate himself. The defendant specifically stated that he took

    the victim to work on the night of the incident and then went back to pick her up, but she was not

    at work. Video evidence from the victim's employer clearly showed that the victim never came

    to work on that date. Defendant also stated that he was watching a hockey game with his


    2
     The Court also notes that even th.ough these matters were not covered in cross-examination of the witnesses, other
    matters were covered, such as the incarcerated status of some of the witnesses and drug selling or dependency status
    of others that cast them in an unfavorable light in the jury's eyes and thereby called !heir credibility into question.


                                                              42
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          girlfriend at the victim's residence on the night in question. This portion of the statement was

          directly contradicted by the girlfriend who denied that she ever went to the victim's residence on

          that date.

                  Moreover, the Commonwealth presented records of A TM transactions and cellular

          telephone calls, in chronologicaJ order, that are detailed at pages 13 through 16 of this Opinion.

      · As stated at page 16 of this Opinion, this information, together with the known observations of

          the defendant from witnesses and video displays of the defendant at bank, ATM and retail

          locations, placed the defendant in the area of the victim's residence during the hours when she

       would have been killed.

                 Most importantly, a DNA examination of blood found on the defendant's blue jeans

       matched the victim's blood. That same DNA analysis could not exclude the blood of the victim

       as a potential contributor to a blood stain found on the defendant's shoes and could not exclude

      the defendant as a potential contributor of blood found on a knife in the kitchen, which was

      apparently the murder weapon. Dr'. James Smith, a forensic pathologist, testified that the victim

. J   died as a result of stab wounds to the neck .

                 This evidence, when coupled with an abundance of other circumstantial evidence recited

      in the Facts section of this Opinion between pages 2 and 20, clearly overcomes any claim of

      prejudice made by the defendant in this claim of his petition.3 The Court, in its discretion, does



      1
          The Court is cognizant of the fact that the record reflects that defendant filed his own appeal (Docket Entty No.
      57); that after the appeal was tiled. defense counsel (/FucheO failed to file a brief on defendant's behalf and was
      admonished by the Pennsylvania Superior Court for failure to file said brief in an Order of June 23, 2011 and given
      30 additional days to file the brief, but still failed to file a brief (Docket Entry No. 77); and that failure to file an
      appeal or an appellate brief constitutes abandonment of counsel and, therefore, per se, ineffectiveness.
      Commonwealth v. Brill, 83 A.2d 198, 203 (Pa. Super. 2013), clling Commonwealth v. Burkett, 5 A.3d 1260, 1277
      (Pa. Super. 2010). However, Fuchcl was removed from the case and new counsel was appointed. This new counsel
      pursued the appeal with the Superior Court, filed a brief and requested allowance of appeal from the Pennsylvania
      Supreme Court, thereby alleviating the prejudice. Moreover, defendant alluded to the deficiencies on the last page
      (p. 44) of his original PCRA motion, but presented no evidence regarding this at the August, 2014 hearing other than
      to obtain an admission from Fuchel that be (Fuchel) failed to file the appellate brief.


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          not believe that the alleged ineffectiveness by this issue, alone, so undermined the truth-

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

          and, therefore, denies the petition on the basis of this claim.




                                                        CONCLUSION
                       For the foregoing reasons, defendant's PCRA Petition will be denied. An appropriate

          Order will be entered.



                                                                BY THE COURT:




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