J. S11034/19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                   v.                    :
                                         :
DANIEL SOLER,                            :          No. 650 EDA 2018
                                         :
                        Appellant        :


               Appeal from the PCRA Order, February 9, 2018,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0009434-2012


BEFORE: SHOGAN, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED JULY 25, 2019

      Daniel Soler appeals pro se from the February 9, 2018 order entered

by the Court of Common Pleas of Philadelphia County denying his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. After careful review, we affirm.

      The PCRA court provided the following synopsis of the procedural history

of this case:

            On January 14, 2014, following a jury trial before [the
            trial court, appellant] was convicted of one count each
            of third degree murder (18 Pa.C.S.[A.] § 2502(c)),
            arson (18 Pa.C.S.[A.] § 3301), conspiracy to commit
            arson (18 Pa.C.S.[A.] §§ 903 & 3301), carrying a
            firearm without a license (18 Pa.C.S.[A.] § 6106), and
            possession of a firearm by a prohibited person
            (18 Pa.C.S.[A.] § 6105). [Appellant] was jointly tried
            with his sister, co-defendant Jacqueline Soler. On
            March 14, 2014, the [trial court] imposed an
            aggregate sentence of forty-five to ninety years[’]
J. S11034/19


           incarceration. [Appellant] was represented at trial,
           sentencing, and on [direct] appeal by Bruce Wolf,
           Esquire. On December 2, 2015, the Superior Court
           affirmed the judgment of sentence, and on April 4,
           2016, the Supreme Court [of Pennsylvania] denied
           allocatur. [See Commonwealth v. Soler, 135 A.3d
           648 (Pa.Super. 2015) (unpublished memorandum),
           appeal denied, 136 A.3d 981 (Pa. 2016).]

           On January 18, 2017, [appellant] filed a pro se
           petition under the [PCRA], and subsequently filed two
           Amended Petitions on February 17, 2017 and May 18,
           2017 (collectively hereinafter, the “PCRA Petition”).
           David S. Rudenstein, Esquire was appointed to
           represent [appellant] on July 12, 2017. On October 4,
           2017, pursuant to Commonwealth v. Finley, 550
           A.2d 213 (Pa.Super. 1988), Mr. Rudenstein filed a
           letter stating that there was no merit to [appellant’s]
           claims for collateral relief (“Finley Letter”).     On
           December 21, 2017, the [PCRA court] issued notice,
           pursuant to Pa.R.Crim.P. 907 (“907 Notice”) of its
           intention to dismiss [appellant’s] petition without a
           hearing. [Appellant] submitted a response to the
           [PCRA court’s] 907 Notice (“907 Response”) on
           January 3, 2018. On February 9, 2018, the [PCRA
           court] dismissed [appellant’s] PCRA Petition and
           granted Mr. Rudenstein’s motion to withdraw his
           appearance.

PCRA court opinion, 5/22/18 at 1-2.

     Appellant filed a timely notice of appeal to this court on February 27,

2018. On March 2, 2018, the PCRA court ordered appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Appellant timely complied.   The PCRA court filed an opinion pursuant to

Pa.R.A.P. 1925(a).

     Appellant raises the following issues for our review:




                                      -2-
J. S11034/19


          1.   Did the PCRA court err by failing to find trial
               counsel ineffective for failing to move to
               suppress a statement made by [a]ppellant to
               police who was impaired by the combined
               effects of alcohol and drugs?

          2.   Whether the PCRA court erred in its conclusion
               that trial counsel was not ineffective for
               agreeing     by   stipulation    to   exclude
               Detective Dove   as     a    witness   without
               [a]ppellant’s knowledge and consent, thus
               denying him his right to confront and
               cross-examine Detective Dove in violation of
               due process?

          3.   Was trial counsel ineffective for failing to object
               to the Commonwealth’s stipulation to exclude
               Detective Dove as a witness and call
               Detective Dove as a witness concerning the
               circumstances     attendant     the     taking   of
               [a]ppellant’s statement?

          4.   Did the PCRA court err by failing to find trial
               counsel ineffective for not objecting to the
               Commonwealth’s           introduction        of
               highly-inflammatory crime scene photographs
               at trial which caused an outburst among
               spectators and disruption in the courtroom?

          5.   Whether the PCRA court erred in its
               determination that trial counsel was not
               ineffective for failing to object to the prosecutrix
               using herself as a trial prop and allowing the
               testifying doctor to twice demonstrate where
               the injuries were on the female victim which was
               cumulative?

          6.   Did the PCRA court err in its conclusion that trial
               counsel was not ineffective for failing to object
               to the Commonwealth’s evidentiary use of
               co-defendant Jacqueline Soler’s statement at
               trial[,] who did not testify which prevented
               [a]ppellant     from        confronting       and
               cross-examining her in violation of due process


                                   -3-
J. S11034/19


                  and Bruton v. United States, 391 U.S. 123
                  (1968)?

            7.    Did the PCRA court err in its determination that
                  trial counsel was not ineffective for failing to
                  request and/or object to the trial court’s refusal
                  to instruct the jury on the lesser-included
                  offenses    of  voluntary     and     involuntary
                  manslaughter?

            8.    Whether the PCRA court erred by not finding
                  trial counsel ineffective for failing to request a
                  mistrial where the jury had informed the court
                  multiple times that they were hopelessly
                  deadlocked and could not reach a unanimous
                  verdict on the charge of first degree murder?

Appellant’s brief at 4-5.

      Having determined, after careful review, that the Honorable Glenn B.

Bronson, in his Rule 1925(a) opinion, ably and comprehensively disposes of

appellant’s issues on appeal, with appropriate reference to the record and

without legal error, we affirm on the basis of that opinion (Finding: trial

counsel did not render ineffective assistance when he withdrew a meritless

suppression motion with appellant’s consent; trial counsel did not agree to a

Commonwealth request to exclude certain testimony, as alleged by appellant;

trial counsel did not render ineffective assistance by failing to object to a

crime scene photograph that, while gruesome, was found by the trial court to

be compelling and essential to demonstrate to the jury appellant’s criminal

intent; trial counsel was not ineffective for failing to object to a demonstration

as to the location of the victim’s gunshot wounds, which the trial court found

was not inflammatory, but rather was a helpful aid to the jury; trial counsel


                                      -4-
J. S11034/19

was not ineffective for failing to object to the admission of co-defendant

Jacqueline Soler’s statement, which had been edited to remove all references

to appellant in accordance with Bruton v. United States, 391 U.S. 123

(1968); trial counsel was not ineffective for failing to request a jury instruction

for which he had no basis to object; and trial counsel was not ineffective for

failing to request a mistrial when he had no basis for such a request; therefore,

the PCRA court did not err when it denied appellant’s PCRA petition).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 7/25/19




                                       -5-
                                                                                                     Circulated 07/10/2019 09:29 AM




    FlLED                          -,        IN THE COURT OF COMMON PLEAS
                                        FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
2018 MAY 22 PM 3: It.                            CRIMINAL TRIAL DIVISION
OFFICE OF JUDlC!AL RECORDS
     CRIHIHAL O!ViSiOH
  FIRST JUDICIAL OlST�MMONWEALTH OF                                                         CP-51-CR-00009434-2012
     OF PEHNSYLV/\HIA                               - .
                       PENNSYLVANIA                         34.2012 comm.�- Soler. Daniel
                                                  CP-51-CR·� Opinion


                          V.

                  DANIEL SOLER
                                                       \\\\\\l\\\\\\\\1\1 \\\\\\\
                                                               8113188971

                                                                OPINION

                  BRONSON, J.                                                               May 22, 2018


                  On January 14, 2014, following a jury trial before this Court, defendant Daniel Soler was

           convicted of one count each of third degree murder (18 Pa.C.S. § 2502(c)), arson (18 Pa.C.S. §

           3301), conspiracy to commit arson (18 Pa.C.S. §§ 903 & 3301), carrying a firearm without a

           license (18 Pa.C.S. § 6106), and possession of a firearm by a prohibited person (18 Pa.C.S. §

           6105). Defendant was jointly tried with his sister, co-defendant Jacqueline Soler. On March 14,

           2014, the Court imposed an aggregate sentence of forty-five to ninety years incarceration.

           Defendant was represented at trial, sentencing, and on appeal by Bruce Wolf, Esquire. On

           December 2, 2015, the Superior Court affirmed the judgment of sentence, and on April 4, 2016,

           the Supreme Court denied allocatur.

                  On January 18, 2017, defendant filed a prose petition under the Post Conviction Relief

           Act ("PCRA"), and subsequently filed two Amended Petitions on February 17, 2017 and May

           18, 2017 (collectively hereinafter, the "PCRA Petition"). David S. Rudenstein, Esquire was

           appointed to represent defendant on July 12, 2017. On Octa ber 4, 20 I 7, pursuant to

           Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. l 988), Mr. Rudenstein filed a letter stating

           that there was no merit to defendant's claims for collateral relief ("Finley Letter"). On
December 21, 2017, the Court issued notice, pursuant to Pa.R.Crim.P. 907 C'907 Notice") of its

intention to dismiss defendant's petition without a hearing. Defendant submitted a response to

the Court's 907 Notice ("907 Response") on January 3, 2018. On February 9, 2018, the Court

dismissed defendant's PCRA Petition and granted Mr. Rudenstein's motion to withdraw his

appearance.

         Defendant has now appealed the Court's dismissal of his PCRA Petition, raising ten

issues. See Concise Statement of Matters Complained of on Appeal ("Statement of Matters") at

iJi[ a(l-8)-c.    They are listed below in their entirety:

         a(l ).     Trial counsel rendered ineffective assistance of counsel by failing to move
                    to suppress Defendant's involuntary statement given to police obtained
                    while Defendant was high on drugs and subject to a coercive environment
                    when questioned by former homicide detective, Ronald Dove and Joseph
                    Bamberski;

         a(2).      Trial counsel acted ineffectively by agreeing to the Commonwealth's
                    request to exclude former Detective Dove as a witness without first
                    consulting with Defendant which impugned [sic] upon his Sixth
                    Amendment and Article I, § 9 rights of confrontation and cross-
                    examination in violation of due process where Dove had interviewed him
                    for hours prior to Detective Bamberski 's arrival. Defendant was not even
                    aware of this agreement until after trial and receipt of his transcript;

         a(J).      Trial counsel acted ineffectively by failing to object to the prosecutor's
                    informing the Court that she was not putting Detective Dove on the stand
                    because he was the subject of some newspaper articles even though he was
                    one of the lead detectives on the case, thus interfering with Defendant's
                    right to present a defense of his own choosing and right to confront and
                    cross-examine Dove as to the circumstances surrounding his interrogation
                    and giving a statement;

         a(4).      Trial counsel was ineffective for failing to object to the Commonwealth's
                    admission and use of highly-inflammatory crime scene photographs
                    designed to inflame the jurors and create a fixed hostility, bias and
                    prejudice in the minds of the jurors against Defendant which led to an
                    outburst in the courtroom and caused the trial judge to warn spectators to
                    be quiet or to step out of the courtroom;




                                                       2
a(5).   Trial counsel acted ineffectively by failing to object when the prosecuting
        attorney used herself as a human prop permitting the doctor who was
        testifying to show where the injuries were on the victim who was also a
        female. There was no need for such a demonstration as the testifying
        doctor had already conducted his own demonstration for the benefit of the
        jurors using his own props;

a(6).   Trial counsel was ineffective for failing to object to the use of co-
        defendant Jacqueline Soler's, statement where Defendant was prevented
        from confronting and cross-examining the witness denying him due
        process because she did not testify. Despite this fact, the statement was
        read aloud in court by another corrupt Detective, Detective James Pitts,
        resulting in a Burton [sic] violation because Defendant was unable to
        cross-examine the witness concerning the circumstances surrounding and
        making of the statement to test its veracity;

a(7).   Trial counsel acted ineffectively by failing to request and/or object to the
        trial court's refusal to instruct the jury on the lesser-included offense of
        involuntary manslaughter;

a(8).   Trial counsel was ineffective for not requesting a mistrial where the jurors
        had informed the Court that they were hopelessly deadlocked on the
        charge of I st Degree Murder. Defendant avers that a mistrial was
        warranted and a new trial should have been granted by the trial court, but
        instead, the jury was pressured by the Court to come up with a verdict.
        Deadlocked numerous times on First Degree Murder, the Court then
        specifically instructed the jury to deliberate on 3rd Degree Murder. The
        Court's intervention resulted in a Third Degree conviction and likely
        influenced the jury by suggesting Third Degree Murder resulting in a
        miscarriage of justice.

b.      The PCRA Court erred by failing to credit the newly-discovered evidence
        submitted and filed by the Defendant concerning corrupt Homicide
        detective, Ronald Dove, after Dove pied guilty to all charges filed against
        him, including tampering with/fabricating physical evidence on April 26,
        2017. Not only is Dove's conviction relevant to the circumstances
        surrounding the coercive environment attendant [sic] the Defendant's
        involuntary statement, but this evidence (1) could not have been obtained
        prior to the conclusion of the trial of this case; (2) is neither corroborative
        nor cumulative of other evidence presented; (3) would not have been used
        solely to impeach the credibility of a witness as Dove did not testify as a
        witness for the Commonwealth concerning his role in the investigation
        and the taking of the statement; and (4) would likely compel a different
        verdict if a new trial were granted. Dove's subsequent conviction raises
        legitimate questions concerning the circumstances and manner in which
        the statement was obtained.

                                           ...,
                                           .)
           c.        The PCRA Court erred by failing to credit the Defendant's claims of
                     PCRA counsel ineffectiveness after Defendant forwarded letters of
                     complaint to this Court, and in granting PCRA counsel leave to withdraw,
                     even though PCRA counsel failed to have any meaningful communication
                     with the Defendant prior the filing of a Turner/Finley "no merit" Letter,
                     where PCRA counsel failed to respond to the Defendant's letters
                     attempting to further discuss his claims and the issues he wished to litigate
                     in his PCRA petition in more detail, and where subsequent letters
                     addressed to PCRA counsel asking PCRA counsel to voluntarily withdraw
                     and to this Court requesting the Court to remove Attorney Rudenstein and
                     assign new PCRA counsel where issues of arguable merit were present
                     that required further development at an evidentiary hearing. PCRA
                     counsel's lack of any meaningful communication in this case and failure
                     to amend Defendant's prose claims by filing an amended petition left
                     Defendant effectively uncounseled. Accordingly PCRA counsel rendered
                     ineffective assistance of counsel.

Statement of Matters at 1� a(l-8)-c. For the reasons set forth below, defendant's claims are

without merit, and the PCRA Court's order dismissing his PCRA Petition should be affirmed.

                                             11. FACTUAL BACKGROUND

           This Court set forth the relevant facts in its opinion regarding defendant's direct appeal as

follows.

           At trial, the Commonwealth presented the testimony of Philadelphia Fire Marshal
           Lieutenant George Werez, Philadelphia Fire Department Lieutenant Dan Oaks,
           Philadelphia Firefighter Ismar Burgos, Philadelphia Police Sergeant Gregory
           Morace, Philadelphia Police Detectives Joseph Bamberski, James Burns, and
           James Pitts, Philadelphia Police Officers Clyde Frasier, Tiffany Richardson,
           Edward Slater, and Gregory Welsh, Chief Medical Examiner Dr. Sam Gulino, as
           well as D.S.', 1 Joseph Coleman, Aura Bernard, Ryan Gallagher, and Tamika
           McDuffie. Defendant and his co-defendant did not present any evidence at trial.
           Viewed in the light most favorable to the Commonwealth as the verdict winner,
           the evidence established the following.

           On Saturday, March 31, 2012, Tanisha Carr contacted defendant, with whom she
           had two children, in order to meet and talk about $500 which she had loaned
           defendant. N.T. 1/8/14 at 234. Carr and defendant shared custody of their
           daughter, D.S. and their son, D.S.J., who stayed with Carr during the week and
           with defendant over the weekends. N.T. 1/7/14 at 168-169. At approximately
           l 0:30 p.m., before going to meet with Carr, defendant called his children into his

I   Minor witnesses are identified by their initials to protect their privacy.

                                                               4
           room and stated that he would be going somewhere. N.T. 1/7/14 at 171-172.
           While defendant was talking with his children, D.S.J. reached into defendant's
           coat, which permitted D.S. to see a concealed gun. N.T. 1/7/14 at 172-173.
           Defendant stated,"! love you no matter what happens," gave his children a hug
           and a kiss, and then left the house. N.T. 1/7/14 at 174-175.

           Carr had arranged to telephone her sister, Tamika McDuffie, upon arriving at the
           meet location, which she did at 11 :43 p.m. N.T. 1/8/14 at 234-235, 247. Upon
           calling McOuffie, Carr stated, "here comes Danny," and then left the phone
           active, permitting her sister to listen in on their conversation. N.T. 1/8/14 at 235-
           236. McDuffie was able to hear Carr state, in a scared tone, "where are we
           going?" N.T. 1/8/14 at 237. The last words McDuffie heard Carr say was:
           "Never mind, I don't want the money, just give me my keys so I can go home."
           N.T. 1/8/14 at 241. Following this statement, the phone went dead and calls by
           McDuffie were unanswered. N.T. 1/8/14 at 238. Defendant and Carr got into an
           argument, at which point defendant "snapped," pulled out his gun, and shot Carr
           multiple times. N.T. 1/9/14 at 62-64. Defendant then drove away, while Carr lay
           in the passenger seat dying. N.T. 1/9/14 at 65.

           Thereafter, defendant called his sister, co-defendant Jacqueline Soler ("Ms.
           Soler"), informing her that he had just killed a man and arranged to meet with Ms.
           Soler at their cousin Freddie's home.2 N.T. 1/8/14 at 10-11; 1/9/14 at 66.
           Defendant parked the vehicle with Carr's body at 4519 North 3rd Street,
           Philadelphia, which is a mixed commercial and residential area, at 12:30 a.m.,
           April 1, 2012, and arrived at Freddie's home shortly thereafter. N.T. 1/7/14 at 97;
           1/8/14 at 14; 1/9/14 at 66, 130, 132-133.

           While at Freddie's home, defendant repeatedly commented that he had "fucked
           up" and that he was "not going to see my kids." N .T. 1/8/14 at 15-16. Defendant
           asked if Aura Bernard, Freddie's live in girlfriend, had any gas, stating that he
           intended to burn the car to get rid of the evidence. N .T. I /8/14 at 20-21, 26;
            1/9/14 at 66. Bernard and Ms. Soler left the house and bought gas at the local 7-
           Eleven convenience store. N.T. 1/8/14 at 22-23, 42, 145. Upon their return,
           Bernard gave the gas to defendant, who returned to the parked vehicle while
           everyone else remained at the home. N. T. 118/14 at 24-26; 1 /9/14 at 66-67.
           Defendant poured the gas on the car, on the floor of the car, and on Carr's body
           before using a lighter to light the gas. N.T. 1/7/14 at 125; 1/9/14 at 66-67, 133-
            136; Commonwealth exhibit 84 (surveillance video). Defendant lit the fire at
           approximately 2: 19 a.m. N.T. 1/9/14 at 67, 133.

           Philadelphia Fire Department personnel arrived at the scene of the car fire at 2:28
           a.rn., approximately eight minutes after it was lit. N.T. 1/7/14 at 61-62; 1/9/14 at
           133. The fire had fully involved the interior passenger compartment and the force
           of the flame had blown out the vehicle's windows. N.T. 1/7/14 at 62-63, 191.

2
    Freddie's real name is Roberto Soler. N.T. 1/8/14 at 9.


                                                              5
       Upon extinguishing the fire, Carr's body was found slumped across the passenger
       seat, so badly burned that Fire Department officials could not tell her gender.
       N.T. 1/7/14 at 65, 192; 1/9/14 at 32. Subsequent investigation revealed that Carr
       had been shot three times in the torso and once in the chin. N.T. 1/7/14 at 126,
       129-133. Carrdiedwithintwoorthreeminutes. N.T. l/7/14at 142-143.

       At approximately 5:30 a.m., April 1, 2012, police contacted Carr's parents,
       informing them that Carr's burned vehicle had been found with a body inside.
       N.T. 1/7/14 at 205. Later that day, defendant talked with Carr's step-father,
       Joseph Coleman Jr., on the phone. id. When Coleman informed defendant that
       Carr's body had been found, defendant responded, "what that got to do with me?"
       N.T. 1/7/14 at 206. When Coleman confronted defendant about the $500
       defendant owed Carr, defendant hung up the phone. N.T. 1/7/14 at 206.

       Following his arrest, defendant gave a statement to police, admitting that he had
       shot Carr multiple times as she was in the vehicle and that she was still breathing
       as he drove away. N.T. 1/9/14 at 64-65. Defendant further confessed to
       conspiring with Ms. Soler and Bernard to dispose of Carr's body and that he did
       so using the gas that Ms. Soler and Bernard heard purchased. N.T. 1/9/14 at 66-
       67.

Trial Court Supplemental Opinion, filed March 9, 2015, at pp. 2-4.

                                          III. DISCUSSION

       If court-appointed counsel for a PCRA petitioner determines that the issues the petitioner

raises for collateral review are meritless, and the PCRA court concurs, counsel may withdraw

and the petitioner may proceed prose, by privately retained counsel, or not at all. Finley, 550

A.2d at 218. To be permitted to withdraw, petitioner's counsel must file a no-merit letter, or

"Finley letter," detailing the nature and extent of counsel's review and listing each issue the

petitioner wished to raise, with counsel's explanation as to why the issues are meritless.

Commonwealth v. Pills, 981 A.2d 875, 876 n.l (Pa. 2009) (citing Finley, 550 A.2d at 215). After

reviewing a Finley letter, the PCRA court is required to independently review the record to

evaluate the petitioner's claims. Id. A PCRA petition may be dismissed without a hearing if the

Court determines that there are no claims of arguable merit and no purpose would be served by




                                                 6
further proceedings. Commonwealth v. Lignons, 971 A.2d 1125, 1143 (Pa. 2009); see

Pa.R.Crim.P. 907(1 ).

       In his Finley Letter, Mr. Rudenstein stated his opinion that defendant's claims had no

arguable merit. After an independent review of the record, the Court agrees with Mr.

Rudenstein. Each of defendant's PCRA appellate claims is considered below.

       Initially, the Court notes that the majority of defendant's claims are premised upon his

contention that he received ineffective assistance of counsel. Under Pennsylvania law, counsel is

presumed to be effective and the burden to prove otherwise lies with the petitioner.

Commonwealth v. Basemore, 744 A.2d 717, 728 (Pa. 2000), n.10 (citing Commonwealth v.

Copenhefer, 719 A.2d 242, 250 (Pa. 1998)). To obtain collateral relief based on the ineffective

assistance of counsel, a petitioner must show that counsel's representation fell below accepted

standards of advocacy and that as a result thereat: the petitioner was prejudiced. Strickland v.

Washington, 466 U.S. 668, 694 (1984). In Pennsylvania, the Strickland standard is interpreted as

requiring proof that: ( 1) the claim underlying the ineffecti vcness claim had arguable merit; (2)

counsel's actions lacked any reasonable basis; and (3) the ineffectiveness of counsel caused the

petitioner prejudice. Commonwealth v. Miller, 987 A.2d 638, 648 (Pa. 2009); Commonwealth v.

Pierce, 527 A.2d 973, 975 (Pa. 1987). To satisfy the third prong of the test, the petitioner must

prove that, but for counsel's error, there is a reasonable probability that the outcome of the

proceeding would have been different. Commonwealth v. Sneed, 899 A.2d 1067, l 084 (Pa.

2006) (citing Strickland,"466 U.S. at 694). If the PCRA court determines that any one of the

three prongs cannot be met, then the court need not hold an evidentiary hearing as such a hearing

would serve no purpose. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super.), appeal

denied, 956 A.2d 433 (Pa. 2008).



                                                  7
       A. Failure to Move to Suppress Defendant 's Involuntary Statement

       Defendant first claims that trial counsel was ineffective for "failing to move to suppress

Defendant's involuntary statement given to police," when he was high on drugs and subject to a

coercive environment. Statement of Matters at� a( I). This claim is without merit.

       "[T]he standard for determining whether a statement is voluntary is based on the totality

of the circumstances and considers, among other things, whether the defendant was coerced or

manipulated or promised something in exchange for his confession; essentially ... whether the

defendant freely made the decision to give the statement." Commonwealth v. Ogrod, 839 A.2d

294, 320 (Pa. 2003); see also Commonwealth v . Johnson, l 07 A.3d 52, 93 (Pa. 2014) (noting

totality of the circumstances also includes defendant's mental and physical condition). "When a

defendant alleges that his wai ver or con fess ion was involuntary, the question 'is not whether the

defendant would have confessed without interrogation, but whether the interrogation was so

manipulative or coercive that it deprived the defendant of his ability to make a free and

unconstrained decision to confess."' Commonwealth v. Sepulveda, 55 A.3d 1108, 1137 (Pa.

2012) (quoting Commonwealth v. Templin, 795 A.2d 959, 966 (Pa. 2002)).

       Here, prior to defendant's trial, counsel filed an omnibus motion seeking to suppress the

inculpatory statement defendant made to detectives on April 4, 20 I 2, where he confessed to

shooting the victim multiple times during an argument. See Omnibus Motion, filed December

10, 2013; N.T. 1/9/14 at 64. However, at trial, counsel informed the Court that the motion was

withdrawn. N. T. 1/6/14 at 20-24. At that time, defendant told the Court that he agreed with

counsel's decision to withdraw the motion. N.T. 1/6/14 at 23.

       The record demonstrates that even if counsel had not withdrawn the motion to suppress

defendant's statement, the motion would have been denied, as the statement was voluntarily



                                                  8
given. First, Detective Bamberski testified that prior to interviewing defendant, he orally, and

again in writing, advised defendant of his Miranda rights, including his right to remain silent.

N.T. 1/9/14 at 50-56. Furthermore, the record is devoid of any evidence that defendant was

abused or mistreated during the interview. Detective Bamberski testified that defendant was

brought to Homicide at approximately 7:30 P.M. on April 4, 2012. N.T. 1/9/14 at 83. His

formal interview began a few hours later, at 12:38 A.M., and concluded at 3:46 A.M. N.T.

1/9/14 at 75. During that time, defendant was given coffee, water, and a hot meal. N.T. 1/9/14

at 60-61, 77-78. Although during the interview, defendant admitted to snorting cocaine a few

hours before, at approximately 5:00 P.M., Detective Bamberski testified that there was no

indication that defendant appeared to be intoxicated, inebriated, suffering from withdrawal, or

suffering from any other medical issue. N.T. 1/9/14 at 58-59, 75. Rather, defendant appeared to

understand everything he was asked and was responsive to those questions. N.T. 1/9/14 at 74-

75. Furthermore, during the interview, defendant denied having any trouble understanding what

was going on or why he was being interviewed. N.T. 1/9/14 at 59.

       Accordingly, the record shows that under the totality of the circumstances, defendant

freely made the decision to give his statement to detectives. Therefore, a motion to suppress the

statement would have been meritless and properly denied. As a result, trial counsel was not

ineffective for withdrawing such a motion.

       B. Agreement lo Exclude Detective Dove's Testimony

       Defendant next claims that trial counsel was ineffective for "agreeing to the

Commonwealth's request to exclude former Detective Dove as a witness without first consulting

with Defendant. ... " Statement of Matters at� a(2). However, there is nothing in the record

suggesting that trial counsel ever agreed to such a request.



                                                 9
        At trial, the Commonwealth informed the Court that it would not be calling Detective

Dove, who was partnered with Detective Bamberski in interviewing defendant and formalizing

defendant's statement. N.T. 1/9/14 at 6. In addition, the Commonwealth made an oral motion in

limine to exclude any reference to allegations made against Dove, who at the time of defendant's

trial, had been accused of misconduct.3 N.T. 1/9/14 at 5-6. At that time, trial counsel informed

the Court that impugning the detective's credibility was not a part of his trial strategy, since he

was not challenging the voluntariness of defendant's confession. N.T. 1/9/14 at 6. However, he

at no time agreed to exclude Detective Dove as a witness at trial." No relief is due.

        C. Failure to Object to the Commonwealth's Decision to not Call Detective Dove as a
           Witness

        Defendant next alleges that trial counsel was ineffective for "failing to object to the

prosecutor's informing the Court that she was not putting Detective Dove on the stand."

Statement of Matters at 1 a(3). Defendant argues that this interfered with his ability to "confront

and cross-examine Dove as to the circumstances surrounding his interrogation and giving a

statement." Id. This claim is without merit.

        As discussed above in Section B, at trial, the Commonwealth informed the Court that it

would not be calling Detective Dove as a witness, but would instead introduce defendant's police

statement through the other interviewer, Detective Bamberski. Trial counsel could not have been

ineffective for not objecting to this decision, as there was no basis to do so. There is no rule of

law that permits defense counsel to compel the Commonwealth to call a cumulative witness.




3 As the Court noted when granting the Commonwealth's motion in limine, the allegations made against Detective
Dove did not involve the manner in which he conducted interrogations. N.T. 1/9/14 at 7.
4
  To the extent that defendant means to contend that trial counsel erred by not objecting to the Commonwealth's
decision not to call Detective Dove as a witness, that claim is addressed in Section C, below.

                                                       10
       While defendant claims that the Commonwealth's decision prevented him from

confronting Detective Dove as to the circumstances surrounding his interrogation, defendant was

free to call Dove as his own witness. Defendant nowhere claims, however, that trial counsel

erred by not doing so. This is likely because he realizes that trial counsel had no reason at all to

believe that Detective Dove would, in any manner, contradict Detective Bamberski's recitation

of the circumstances surrounding defendant's interview and confession, during which both Dove

and Bamberski were present. Defendant has never averred any reason to believe that Dove

would have said anything helpful to the defense. Moreover, the Court would not have allowed

the defense to call Dove solely for the purpose of introducing evidence of Dove's alleged

misconduct, which had no connection whatsoever to defendant's case. No relief is due.

       D. Failure to Object to Admission of Crime Scene Photograph

       Defendant next claims that trial counsel was ineffective for not objecting to the admission

of "highly-inflammatory crime scene photographs ... which led to an outburst in the courtroom

and caused the trial judge to warn spectators to be quiet or step out of the courtroom." Statement

of Matters at ,r a(4 ). This claim is without merit.

       "When considering the admissibility of photographs of a homicide victim, which
       by their very nature can be unpleasant, disturbing, and even brutal, the trial court
       must engage in a two-step analysis:

       First a [trial] court must determine whether the photograph is
       inflammatory. If not, it may be admitted if it has relevance and can assist the
       jury's understanding of the facts. If the photograph is inflammatory, the trial court
       must decide whether or not the photographs are of such essential evidentiary
       value that their need clearly outweighs the likelihood of inflaming the minds
       and passions of the jurors."

Commonwealth v. Johnson, 42 A.3d IO 17, I 033-34 (Pa. 2012) (quoting Commonwealth v. Pruitt,

951 A.2d 307, 3 I 9 (Pa. 2008)). A photograph is inflammatory if "the photo is so gruesome it


                                                   11
would tend to cloud the jury's objective assessment of the guilt or innocence of the defendant."

Commonwealth v. Funk, 29 A.3d 28, 33 (Pa. Super.2011) (en bane), appeal denied, 40 A.3d

1234 (Pa. 2012). Further, photographic images of a homicide victim are often relevant to prove

the criminal intent of a defendant. Pruitt, 951 A.2d at 319; Commonwealth v. Solano, 906 A.2d

1180, 1191 (Pa. 2006).

       Here, while defendant does not specify which "highly-inflammatory crime scene

photographs" he is referring to in his Statement of Matters, defendant raised an identical claim in

his 907 Response, and therein cited and attached as an exhibit, page 10 I of the January 7, 2014

notes of testimony. There, the Commonwealth introduced exhibit C-9, a photograph that depicts

the victim's burned body lying on the reclined passenger seat of a vehicle and facing the

passenger-side door. See Commonwealth Exhibit C-9, see also N.T. 1/7/14 at 101-102.

       The photograph at issue was compelling and essential evidence to demonstrate to the jury

defendant's criminal intent. There were no witnesses to the murder here at issue, since only

defendant and the decedent were in the car. However, the photograph permitted the medical

examiner to opine that the decedent was moving around in the car towards the door as she was

shot four times. In particular, the medical examiner noted that the gunshots, to the underside of

decedent's chin, to the left upper back, to the right lower back, and to the right hip, were of

differing trajectories. That fact, combined with the decedent's final position, as shown in Exhibit

C-9, of being reclined and turned toward the passenger-side door, proved that she was moving

toward the door as the shooter fired four separate times. N .T. l /7 I 14 at 129-13 7. This allowed

the prosecutor to properly argue, as an inference from the evidence, that defendant shot the

decedent in the face and then methodically shot her three more times as she futilely attempted to

escape the car. N.T. 1/10/14 at 90-93. Accordingly, the photograph provided extremely



                                                  12
probative evidence of defendant's intent to kill that clearly outweighed any likelihood of

inflaming the minds and passions of the jurors. Accordingly, it was admissible in evidence even

assuming, arguendo, that it was gruesome. See Johnson, 42 A.3d at l 033-1034.

        In addition, any potential for unfair prejudice was ameliorated by the Court's jury charge,

which advised the jury of the proper use of the photograph, and admonished the jury not to

. consider it for any improper purpose:

        During the trial, ladies and gentlemen, you folks saw photographs in this case of
        the crime scene that showed the body of the decedent in this case. I admitted
        these photographs into evidence in order to show the location of the decedent at
        the crime scene to you. These clearly were not pleasant photographs to look at
        and you folks should not let them stir up your emotions to the prejudice of either
        defendant. Your verdict must be based upon a rational and fair consideration of all
        the evidence and not on passion or prejudice against the defendant, against the
        Commonwealth, or against anybody else connected with this case.

N.T. 1/10/14 at 132. Because the challenged photograph was admissible, and the Court gave an

appropriate limiting instruction, trial counsel could not have been ineffective for failing to object

to its admission. No relief is due.

        E. Failure   lo   Object to In-Court Demonstration of Victim's Injuries

        Defendant next claims that trial counsel "failed to object when the prosecuting attorney

used herself as a human prop permitting the doctor who was testifying to show where the injuries

were on the victim who was also a female." Statement of Matters at ,r a(5). This claim is

without merit.

        Demonstrative evidence is offered "for the purpose of rendering other evidence more

comprehensible to the trier of fact." Commonwealth v. Serge, 896 A.2d 1170, 1177 (Pa. 2006).

When determining whether to admit such evidence in a homicide case, "the trial court must first

determine if the evidence is inflammatory." Commonwealth v. Holl ihan, 566 A.2d 254, 259 (Pa.

Super. 1989). If the evidence is inflammatory, "the trial court must then determine if the


                                                   13
evidence is of such essential evidentiary value that its need clearly outweighs the likelihood of

inflaming the passions of the jurors." Id.

       Here, during the medical examiner's testimony, the assistant district attorney requested

that the examiner step down from the witness stand and point to the assistant district attorney's

body to show the jury the various locations of the victim's gunshot wounds and the trajectory of

the bullets that struck her. N.T. 1/7/14 at 134. This demonstration was clearly not inflammatory,

as the examiner simply pointed to the various locations. Moreover, the demonstration was an

extremely helpful aid for the jury to understand the direction of the injuries, as the differing

directions indicated the victim's movement during the shooting. N.T. 1/7/14 at 136-137.

Because the demonstration was highly relevant and entirely proper, trial counsel could not have

been ineffective for failing to object. No relief is due.

       F Failure to object to admission ofco-defendant, Jacqueline Soler 's police statement

       Defendant next claims that trial counsel was ineffective for failing to object to "the use of

co-defendant Jacqueline Soler's, statement where Defendant was prevented from confronting

and cross-examining the witness ... " Statement of Matters at� a(6). Defendant alleges that this

resulted in a Bruton violation. Id. This claim is without merit.

       Under Bruton v. United States, 391 U.S. 123 (1968), the confession of a co-defendant

that incriminates another defendant at a joint trial may not be admitted as evidence unless the co-

defendant who made the statement takes the stand and is subject to cross-examination.

Otherwise, the Sixth Amendment right to confrontation of the defendant who did not make the

statement would be violated. However, the Confrontation Clause is satisfied if the confession is

redacted in such a manner as to remove facially incriminating references to the other defendant

and the jury is given an appropriate instruction to only consider the statement as evidence against



                                                  14
the defendant who made it. Commonwealth v. Daniels, 104 A.3d 267, 294 (Pa. 2014).

Contextual implication will not violate a defendant's rights. So long as neutral pronouns such as

"the other guy" or "him" are substituted for the name of the other defendant, and the jury is

given an appropriate limiting instruction, Bruton is satisfied. Id.

       Here, the Commonwealth introduced the statement of co-defendant Jacqueline Soler,

which had been edited in accordance with Bruton. N.T. 1/9/14 at 171-184. In addition, the

Court instructed the jury that they could only consider Jacqueline Solers statement against

Jacqueline Soler, and that the statement was not evidence against defendant. N. T. l/ 10/14 at

128-129. Accordingly, defendant's Sixth Amendment rights were fully protected. Therefore,

trial counsel had no basis for objecting to the admission of the edited statement. As a result, he

could not have been ineffective for failing to do so.

       G. Failure lo Request Involuntary Manslaughter Instruction

       Defendant next claims that trial counsel was ineffective for failing to "request and/or

object to the trial court's refusal to instruct the jury on the lesser-included offense of involuntary

manslaughter." Statement of Matters at    if a(7). This claim is without merit.

       "[A] trial court shall only instruct on an offense where the offense has been made an issue

in the case and where the trial evidence reasonably would support such a verdict ... [nstructions

regarding matters which are not before the court or which are not supported by the evidence

serve no purpose other than to confuse the jury." Commonwealth v. Pa/ton, 936 A.2d 1170, 1176

(Pa. Super. 2007), ajj'd, 985 A.2d 1283 (Pa. 2009). Accordingly, an involuntary manslaughter

instruction is warranted when the evidence adduced at trial supports that the defendant caused

the death of another person as a direct result of his or her acting in a reckless or grossly negligent

manner. See 18 Pa.C.S. § 2504.



                                                  15
       Here, the evidence presented at trial did not support a verdict of involuntary

manslaughter. Defendant confessed to detectives that on the night of the murder, he was arguing

with the victim, when he "snapped" and proceeded to shoot her multiple times, while she tried to

escape. N.T. 1/9/14 at 62-64. As discussed above, the confession was fully supported by the

physical evidence in the case, including the decedent's injuries as documented by the medical

examiner and the crime scene photographs. Such facts are completely inconsistent with

involuntary manslaughter. Accordingly, trial counsel had no basis to request such an instruction.

As a result, he could not have been ineffective for failing to do so.

       fl. Failure lo Movefor a Mis/rial

       Defendant next claims that trial counsel was ineffective for failing to request a mistrial

when the jury informed the Court that they were deadlocked on the charge of first degree

murder. Statement of Matters at    ir a(8).   This claim is without merit.

        The duration of jury deliberations is a matter within the sound discretion of
        the trial court, whose decision will not be disturbed unless there is a showing
       that the court abused its discretion or that the jury's verdict was the product of
       coercion or fatigue. Relevant factors in this assessment include the charges at
        issue, the complexity of the issues, the amount of testimony to consider, the
        length of the trial, the solemnity of the proceedings, and indications from the
       jury on the possibility of reaching a verdict.

Commonwealth v. Moore, 937 A.2d 1062, 1077 (Pa. 2007), cert. denied, 519 U.S. 827 (1996).

Where the issues are complex and deliberations have been relatively brief, the Court does not

abuse its discretion in ordering further deliberations. Id. Further, where the jury indicates its

inability to reach a verdict, the Court may require that the jury retire for further deliberations.

Commonwealth v. Spencer, 275 A.2d 299, 304-305, 305 n.7 (Pa. 1971). Finally, the Rules of

Criminal Procedure explicitly authorize the Court to take a partial verdict when the jury fails to

agree on a particular charge. See Pa.R.Crim.P. 648(0).



                                                     16
         In this case, following a four-day jury trial where seventeen witnesses testified, the jury

deliberated for approximately eleven hours before indicating that while it reached a verdict on all

other charges, it was unable to "come to a unanimous decision that the defendant Daniel Soler

[was] guilty of first-degree murder." N.T. 1/10/14 at 173-205; 1/13/14 at 40; 1/14/14 at 8-9. At

that time, the Court properly gave a standard Spencer charge to the jury, instructing it to continue

to deliberate in an effort to reach a verdict. N.T. 1/14/14 at 9-13.5 Approximately three hours

later, the jury indicated that it still had not reached a unanimous verdict. N.T. 1/14/14 at 17.

Therefore, the Court instructed the jury that it could move beyond the first degree murder charge

and consider the remaining charges in the case with a view toward reaching a partial verdict.

N.T. 1/14/14 at 23-25.6 A short time later, the jury inquired whether first degree murder was still

an option. The Court responded that while the jury was not prohibited from reaching a verdict

on first degree murder, if it could not do so, it should determine whether defendant was guilty or

not guilty of third degree murder. N.T. 1/14/14 at 29-30.

         Approximately one hour later, the jury informed the Court that it was still unable to reach

a verdict on first degree murder, and that some jurors were unwilling to consider third degree

murder. N.T. 1/14/14 at 32. It was clear from that communication that some jurors who

believed that defendant had the specific intent to kill, were unwilling to consider third degree

murder since the Court had defined it as "a killing with malice where there is no specific intent to

kill." N. T. 1/10/14 at 148. That instruction was derived from the standard jury instructions,




5 A Spencer charge is a standard instruction given to a deadlocked jury that was recommended by the American Bar
Association and approved by our Supreme Court in Spencer, supra. See, e.g., Commonwealth v. P. LS, 894 A.2d
 120, 125-126 (Pa. Super.), appeal denied, 906 A.2d 542 (Pa. 2006).
6 It was
         necessary to instruct the jury that it had permission to move beyond first degree murder, because the Court
had given the jury a standard "horn icide progression charge," which directs the jury to decide the most serious form
of homicide before moving on to any lesser charges. Such an instruction is proper. See Commonwealth v.
Washington, 927 A.2d 586, 611 (Pa. 2007).


                                                         17
which define third degree murder as "any killing with malice that is not first or second degree

murder." Pa.SSJI § 15.2502C (Crim.). This widely used standard instruction, read literally, is

incorrect, since a defendant can be guilty of third degree murder whether or not he or she has the

specific intent to kill. As our Supreme Court has stated:

        [A]bsence of specific intent to kill is not an element of third degree murder;
        rather, such crime is an intentional act, characterized by malice, that results in
        death, intended or not. ... True, the intent to kill is a defined clement
        of first degree murder-this does not mean an element o I' third degree murder is
        the polar opposite of intent to kill, such that the Commonwealth must prove a lack
        of intent to kill to convict of third degree murder. The Commonwealth has no
        such obligation; evidence of intent to kill is simply irrelevant
        to third degree murder. The elements of third degree murder absolutely include an
        intentional act, but not an act defined by the statute as intentional murder. The act
        sufficient for third degree is still a purposeful one, committed with malice, which
        results in death ....

Commmonweatlh v. Fisher, 80 A.3d 1186, 1191 (Pa. 2013). Accordingly, the Court clarified for

the jury that absence of specific intent to kill was not an element of third degree murder, and that

jurors who believed that defendant had the specific intent to kill were not precluded from

considering the third degree murder charge. N.T. 1 /14/l 4 at 39-41. Because this instruction

accurately set forth the law, trial counsel had no basis to object to it, or to request a mistrial.

        Moreover, trial counsel had no strategic reason for requesting a mistrial, even if the law

had given him a basis to do so. Counsel's goal was to avoid a conviction for first degree murder,

given the overwhelming evidence that defendant shot and killed the defenseless decedent.

Counsel attempted to convince the jury that due     to   defendant's intoxication from drugs and

alcohol, he could not formulate an intent to kill and was only guilty of third degree murder. N.T.

1/10/14 at 25-30. Therefore, a conviction for third degree murder was a victory for the defense;

and certainly preferable to retrying the case for first degree murder following a mistrial.




                                                   18
       Accordingly, trial counsel could not have been ineffective for failing to request a mistrial

after the jury reported it could not reach a verdict on first degree murder. No relief is due.

       I. After-Discovered Evidence

        Defendant next claims that the PCRA Court "erred by failing to credit the newly-

discovered evidence submitted and filed by the Defendant concerning corrupt Homicide

Detective, Ronald Dove, after Dove pied guilty to all charges filed against him, including

tampering with/fabricating physical evidence on April 26, 2017." Statement of Matters at� b.

This claim is without merit.

       To obtain relief under the PCRA based on after-discovered evidence, defendant must

plead and prove that the evidence: 1) could not have been obtained prior to the conclusion of the

trial by the exercise ofreasonable diligence; 2) is not merely cumulative; 3) will not be used

solely to impeach the credibility of a witness; and 4) would likely compel a different verdict. 42

Pa.C.S. § 9543(a)(2)(vi); Commonwealth v. D 'Amato, 856 A.2d 806, 823 (Pa. 2004).

Defendant's proffered after-discovered evidence fails to entitle him to relief for several reasons.

       First, while it is true that on April 26, 2017, Detective Dove pied guilty to one count each

of flight to avoid apprehension, trial, or punishment (18 Pa.C.S. § 5126(a)), conspiracy (18

Pa.C.S. § 903), hindering apprehension or prosecution (18 Pa.C.S. § 5105(a)(1 )), obstructing

governmental operations (18 Pa.C.S. § 5101), unsworn falsification to authorities (18 Pa.C.S. §

4904(a)(l )), and tampering with or fabricating physical evidence (18 Pa.C.S. 4910( 1 )), these

convictions of unrelated criminal conduct would have no probative value apart from impeaching

Dove's credibility. As outlined under the four-part test set forth above, "[a] defendant seeking a

new trial must demonstrate he will not use the alleged after-discovered evidence 'solely to




                                                  19
impeach a witness's credibility."' Commonwealth v. Griffin, 137 A.3d 605, 610 (Pa. Super.

2016) (quoting Commonwealth v. Castro, 93 A.3d 818, 821 n.7 (Pa. 2014)).

          Moreover, Dove was never called as a witness in the case: his involvement was taking

defendant's confession, and his testimony would have been completely duplicative of Detective

Bamberski, who was also present during defendant's statement. Accordingly, Dove's

convictions would not be admissible in evidence even if defendant's case were retried. No relief

is due.

          J PCRA Counsel's Ineffectiveness

          Finally, defendant claims that the PCRA Court erred "by failing to credit the defendant's

claims of PCRA counsel ineffectiveness ... " Statement of Matters at� c. Specifically, defendant

complains that PCRA counsel failed to communicate effectively with defendant and failed to

raise claims of arguable merit in an amended petition. However, for the reasons set forth above,

defendant has identified no claims of arguable merit, and PCRA counselwas correct to refuse to

raise defendant's meritless claims in an amended petition. No relief is due.

                                         IV. CONCLUSION

          For all of the foregoing reasons, the Court's order dismissing defendant's PCRA petition

should be affirmed.


                                                       BY THE COURT:




                                                       GLENN B. BRONSON, J.




                                                  20
