J-S65013-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JASON KOEHLER

                            Appellant                No. 3059 EDA 2013


                 Appeal from the PCRA Order October 28, 2013
                In the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0000447-2004


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                         FILED JANUARY 30, 2015

        Appellant, Jason Koehler, appeals pro se from the order entered on

October 28, 2013, by the Honorable Margherita Patti Worthington, which

denied his petition filed pursuant to the Post-Conviction Relief Act (“PCRA”).1

After careful review, we affirm.

        A panel of this Court previously summarized the history of this case as

follows:

              [I]n the early morning hours of February 13, 2004,
           [Appellant] entered the home of Jennifer Cullinan to
           purchase crack cocaine from Jason Gray, whom
           [Appellant] has dealt with on previous occasions. Ms.
           Cullinan, Mr. Gray, and Jose Joubert were all inside [Ms.
           Cullinan’s home] at the time. According to Mr. Joubert,
           [Appellant] had appeared at the residence with a loaded
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    42 PA.CONS.STAT.ANN. §§ 9541-9546.
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       .357 revolver. While Mr. Joubert was putting wood in the
       fireplace, [Appellant] shot Mr. Joubert in the lower left side
       of his back and face. He fell to the ground. Mr. Joubert,
       although unable to see anything at this time, was able to
       hear an ensuing struggle between Mr. Gray and
       [Appellant]. Another shot was fired and Mr. Joubert heard
       Mr. Gray fall to the ground. Seconds later, Mr. Joubert
       heard Ms. Cullinan screaming, asking [Appellant] what he
       had done. He heard another struggle, this time between
       Ms. Cullinan and [Appellant]. Ms. Cullinan was repeatedly
       telling [Appellant] to get off her. Another shot was fired
       and Mr. Joubert did not hear Ms. Cullinan again.

          [Appellant’s] version of the events is quite different.
       [Appellant] states that he had been to the Cullinan
       residence two previous times that day to purchase drugs.
       During the second time, [Appellant] says he [left] the .357
       revolver with Mr. Gray as a loan for more crack cocaine
       because he did not have any money. On his third time
       back at Ms. Cullinan’s home, [Appellant] stated that Mr.
       Joubert, whom he had never seen before, let him in.
       [Appellant] stood at the arm of the couch closest to the
       door, Mr. Joubert was to his left, and Mr. Gray was to his
       right. Ms. Cullinan was in the kitchen. While Mr. Joubert
       was handing [Appellant] a bag of drugs, [Appellant] heard
       a noise to his right side coming from where Mr. Gray was.

          [Appellant] states that Mr. Gray was pulling a rifle,
       which had been chambered, from underneath the couch
       and was pointing it in his direction. Thinking that his life
       was in danger, [Appellant] grabbed the .357 revolver from
       the arm of the couch, stepped toward Mr. Gray so that he
       was approximately two feet from him and shot him in the
       “face area.” The gun made contact with Mr. Gray’s head
       when it went off. Believing that Mr. Joubert was running
       for more weapons, [Appellant] turned to his left and fired
       three more times in his direction, hitting both Mr. Joubert
       and Ms. Cullinan. Then [Appellant], seeing the bag of crack
       cocaine that Mr. Joubert was trying to hand him, picked up
       the bag and ingested some of the drugs.

          The next set of facts is relatively uncontradicted.
       [Appellant] and Mr. Daniels, [Appellant’s accomplice,]
       began looking for money and drugs throughout the house,
       taking anything they could find. [Appellant] even [went] as

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        far to stick his hands in all three of the victim’s [sic] pants
        pockets to find more. [Appellant] then open[ed] the
        basement door, grab[bed] each victim one at a time and
        thr[ew] their bodies down the stairs. Mr. Joubert hear[d]
        someone mention that he [was] still breathing and to finish
        him. The other person respond[ed] that Mr. Joubert [was]
        going to die slowly. Once [Appellant] and his accomplice
        [left] the residence, Mr. Joubert [was] able to crawl up the
        stairs and eventually out of the residence to safety.

     Trial Court Opinion (Post-Sentence Motion), 11/24/10, at 42-43.

            On November 2, 2005, Appellant pled guilty to two counts
     of third degree murder and aggravated assault. Shortly
     thereafter, Appellant filed a motion to withdraw his guilty plea
     before sentencing. On March 24, 2006, the trial court denied this
     motion and sentenced Appellant to an aggregate sentence of not
     less than 40 years nor more than 80 years[’] imprisonment.

           Appellant filed a post-sentence motion which the trial court
     denied on September 7, 2006. Appellant appealed, challenging
     the trial court’s denial of his request to withdraw his guilty plea
     prior to sentencing. This Court reversed, vacating Appellant’s
     judgment of sentence and remanding the case for trial. The
     Commonwealth filed a Petition for Allowance of Appeal, which
     our Supreme Court denied on November 17, 2008.

            Appellant proceeded to a jury trial after which he was
     convicted of the aforementioned offenses on October 21, 2009.
     On the same day, the jury imposed a sentence of life
     imprisonment. On December 11, 2009, the trial court imposed a
     life sentence without parole to be followed by a sentence of not
     less than 35 years nor more than 73 years. On December 21,
     2009, Appellant filed a post-sentence motion seeking
     reconsideration of his sentence. The trial court did not enter an
     order denying Appellant’s post-sentence motion until June 1,
     2010. Appellant appealed to this Court on June 24, 2010.

Commonwealth v. Koehler, 1763 EDA 2010, at 1-4 (Pa. Super., filed June

27, 2011) (mem. op.). On appeal, this Court affirmed Koehler’s judgment of

sentence and the Pennsylvania Supreme Court denied allocatur.




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      Koehler filed a lengthy pro se PCRA petition, after which the PCRA

court appointed counsel.       PCRA counsel filed a brief, which largely

incorporated by reference Koehler’s original pro se petition. On August 8,

2013, the PCRA court ordered counsel to file within 30 days an additional

brief which did not incorporate by reference the pro se petition, and which

clarified and distilled Koehler’s claims.   Counsel did not comply with the

court’s directive.

      A PCRA evidentiary hearing was conducted on June 25, 2013. PCRA

counsel filed a brief that addressed only three of the approximately fifteen

issues raised in Koehler’s pro se brief.    The PCRA court entered an order

denying Koehler’s petition and this timely appeal followed.

      During the pendency of this appeal, Koehler filed in this Court a

request to proceed pro se due to the ineffective assistance of PCRA counsel.

By order dated January 1, 2014, we remanded the proceedings and

instructed the PCRA court to conduct a hearing pursuant to Commonwealth

v. Grazier, 713 A.2d 81 (Pa. 1998), in order to determine whether Koehler’s

waiver of counsel was knowing, intelligent, and voluntary. After the PCRA

court conducted the Grazier hearing on March 3, 2014, it permitted Koehler

to proceed pro se.

      On appeal, Koehler raises the following issues for our review:

      I.    Whether PCRA counsel’s ineffective assistance was so
            egregious that it nullified the purpose of the PCRA causing
            a complete denial of the opportunity to obtain relief?



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      II.     Whether trial counsel rendered ineffective assistance by:
              failing to obtain an expert report analyzing blood located
              on the barrel of a rifle; failing to obtain certain criminal
              records; and failing to investigate or call witnesses
              requested by the defendant?

      III.    Whether direct appeal counsel rendered ineffective
              assistance by: failing to raise a claim that police, in bad
              faith, either destroyed or failed to properly document
              exculpatory evidence; and by failing to argue a Brady
              claim with regard to certain criminal records[?]

Appellant’s Brief at 4.

          “Our standard of review of a trial court order granting or denying

relief under the PCRA calls upon us to determine whether the determination

of the PCRA court is supported by the evidence of record and is free of legal

error.”     Commonwealth v. Barndt, 74 A.3d 185, 191-192 (Pa. Super.

2013) (citation and internal quotation marks omitted).             “The PCRA court’s

findings will not be disturbed unless there is no support for the findings in

the certified record.”    Id. (citation omitted).     The PCRA court’s credibility

determinations are binding on this Court, where there is record support for

those determinations. See Commonwealth v. Timchak, 69 A.3d 765, 769

(Pa. Super. 2013).

      To establish ineffectiveness of counsel, “a PCRA petitioner must show

the underlying claim has arguable merit, counsel's actions lacked any

reasonable      basis,   and   counsel’s    actions   prejudiced    the   petitioner.”

Commonwealth v. Jones, 71 A.3d 1061, 1063 (Pa. Super. 2013) (citation

omitted), appeal denied, 84 A.3d 1062 (Pa. 2014). “Prejudice means that,

absent counsel’s conduct, there is a reasonable probability the outcome of


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the proceedings would have been different.”      Id. (citation omitted).   If a

reasonable basis exists for the particular course chosen by counsel, the

inquiry ends and counsel’s performance is deemed constitutionally effective.

See Commonwealth v. Lauro, 819 A.2d 100, 106 (Pa. Super. 2003).

Failure to satisfy any prong of the test requires that the claim be dismissed.

See Commonwealth v. O’Bidos, 849 A.2d 243, 249 (Pa. Super. 2004).

       In his first issue, Koehler raises a blanket challenge to PCRA counsel’s

effectiveness. We note, however, that Koehler did not challenge his PCRA

counsel’s effectiveness before the PCRA court.2        As such, this claim is

waived.     See Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.

2014), appeal denied, 101 A.3d 785 (Pa. 2014) (claims of PCRA counsel’s

ineffectiveness may not be raised for the first time on appeal).

       Koehler’s remaining claims challenge the effectiveness of trial counsel.

In his second issue on appeal, Koehler alleges that trial counsel was

ineffective for failing to obtain blood spatter analysis and for failing to

request the criminal records of victims Jason Gray and Jose Joubert.

However, Koehler has not himself obtained either the blood spatter analysis

or the aforementioned criminal records for our review. As we are prevented

from examining the very evidence Koehler now deems trial counsel was
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2
  Although Koehler filed an application to proceed pro se on appeal on the
basis of PCRA counsel’s ineffectiveness, he did not raise the issue of
counsel’s effectiveness during the Grazier hearing, and the PCRA court did
not have the opportunity to address this issue below.



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ineffective for failing to obtain, we are unable to determine in what way

Koehler was prejudiced by counsel’s alleged misconduct in this regard.

Accordingly, these claims fail.

      We likewise find no merit to Koehler’s claim that trial counsel was

ineffective for failing to investigate or call certain witnesses. Trial counsel

will not be deemed ineffective for failing to call a witness to testify unless it

is demonstrated that:

      (1) the witness existed; (2) the witness was available; (3)
      counsel knew of, or should have known of the existence of the
      witness; (4) the witness was willing to testify for the defense;
      and (5) the absence of the testimony was so prejudicial to
      petitioner to have denied him or her a fair trial.

Commonwealth v. Brown, 18 A.3d 1147, 1160-1161 (Pa. Super. 2011)

(citation omitted).

      Instantly, although Koehler insists that trial counsel was informed of

the existence of the alleged witnesses, he does not establish the identity of

any witnesses or their availability at the time of trial. Koehler does not even

set forth the substance of the witnesses’ testimony. Without this necessary

evidence we are unable to conclude that the the absence of the testimony

was so prejudicial to petitioner to have denied him or her a fair trial.

Accordingly, Koehler’s claim that counsel was ineffective for failing to call

certain unidentified witnesses is without merit.

      Koehler presents two related claims in his third and final issue.

Koehler first argues that trial counsel was ineffective for failing to raise a

claim that the police, in bad faith, destroyed or failed to preserve potentially

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exculpatory evidence.   Koehler references a Pennsylvania State Police lab

report indicating that three swabs of human blood were taken from the rifle

used in the murders and retained for potential DNA analysis.             See

Appellant’s Brief at 22-23.      Koehler does not indicate that he has

independently attempted to ascertain the existence of the blood swabs; nor

does he present this evidence for our review. Koehler’s claim that the police

destroyed or failed to preserve this evidence, or even that the alleged

evidence would prove exculpatory, is purely speculative. We therefore find

no basis on which to deem counsel ineffective for failing to advance this

specious argument.

     Koehler alternatively contends that counsel was ineffective for failing

to argue that the Commonwealth’s alleged failure to provide the blood swab

evidence violated the Supreme Court’s decision in Brady v. Maryland, 373

U.S. 83 (1963).

     In Brady, the United States Supreme Court held that a
     defendant’s due process rights are violated when the prosecution
     withholds favorable, material evidence from the defense. To
     prove a Brady violation, the defendant bears the burden of
     demonstrating that:        (1) the prosecutor has suppressed
     evidence; (2) the evidence, whether exculpatory or impeaching,
     is helpful to the defendant, and (3) the suppression prejudiced
     the defendant. Therefore, even if the first two prongs have been
     established, a defendant must establish that he was prejudiced
     by the failure to disclose. To establish prejudice, the defendant
     must prove that there is a reasonable probability that, had the
     evidence been disclosed to the defense, the result of the
     proceeding would have been different.




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Commonwealth v. Pugh, 101 A.3d 820, 825 (Pa. Super. 2014) (internal

citations and quotation marks omitted).

       Herein, Koehler fails to satisfy his burden of demonstrating any of the

three prongs required to establish a Brady violation.       Koehler does not

demonstrate that the Commonwealth suppressed the evidence, that the

evidence was exculpatory, or in what way he was prejudiced by the alleged

suppression. This claim is patently meritless.3

       As we find no merit to any of the claims Koehler raises on appeal, we

affirm the order denying PCRA relief.

       Order affirmed.

       Judge Platt joins the memorandum.

       Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/30/2015


____________________________________________


3
  Koehler bootstraps to his Brady claim the Commonwealth’s alleged failure
to produce the criminal records of Jason Gray and Jose Joubert. See
Appellant’s Brief at 24-25. As Koehler similarly fails to satisfy any of the
three prongs necessary to establish a Brady violation with regard to this
bald allegation, we find this claim is also without merit.



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