J-S74022-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                    Appellee              :
                                          :
            v.                            :
                                          :
WILLIAM FRANCIS SMITHSON,                 :
                                          :
                    Appellant             : No. 578 EDA 2014

                  Appeal from the PCRA Order January 15, 2014,
                    Court of Common Pleas, Delaware County,
                 Criminal Division at No. CP-23-CR-0006454-2006

BEFORE: BENDER, P.J.E, DONOHUE and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.:                      FILED DECEMBER 22, 2014

      William Francis Smithson (“Smithson”) appeals from the order entered

on January 15, 2014 by the Court of Common Pleas of Delaware County,

Criminal Division, dismissing his petition filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. Appointed counsel

has filed a “no-merit” letter and requested leave to withdraw from

representation pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.

1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en

banc).   After careful review, we affirm the PCRA court’s order and grant

counsel’s petition to withdraw.

      Because Smithson seeks to raise only ineffective assistance of counsel

claims in this appeal, a detailed recitation of the facts underlying his




*Retired Senior Judge assigned to the Superior Court.
J-S74022-14


convictions is unnecessary.    The PCRA court provided the following brief

overview of the factual history of this case:

            Jason Shephard [(“Shephard”)], a young [23-year-
            old] from Cavalier, North Dakota, and a student at
            Northern State University in Aberdeen, South Dakota
            … was in the middle of a [six]-month internship at
            Daktronics and as a part of this internship, he was
            required to travel to Pennsylvania.      It was in
            Pennsylvania where the tragic events of his death
            occurred. In August and again in September of
            2006, [Shephard] drove from South Dakota to the
            suburbs of Philadelphia with a trailer, carrying
            Daktronics equipment for prospective sales and
            service at the Daktronics, Edgmont, Delaware
            County, Pennsylvania office. Daktronics is a South
            Dakota based sports scoreboard manufacturer, with
            a sales office in Edgmont, Delaware County.

            On a September night in 2006, following a business
            dinner and a co-worker’s invitation to his house, …
            [Shephard] was lured to [a] party by [Smithson,]
            who drugged, kidnapped, assaulted, nearly raped
            and strangled him to death … . After [Shephard]
            was tragically cut down in the prime of his life,
            [Smithson] tampered with physical evidence, abused
            [Shephard]’s corpse and spent nearly three days
            lying to his coworkers, hotel staff, and the police.

PCRA Court Opinion, 3/25/14, at 7.

      On September 21, 2006, police arrested Smithson in connection with

Shephard’s murder.     On November 17, 2008, Smithson’s jury trial began.

G. Guy Smith, Esquire (“Trial Counsel”) represented Smithson at his trial.

Following the four-day trial, the jury found Smithson guilty of murder of the




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first   degree,1   aggravated    assault,2    attempted   rape,3   kidnapping,4

unauthorized administration of intoxicant,5 tampering with or fabricating

physical evidence,6 abuse of corpse,7 knowingly or intentionally possessing a

controlled substance,8 and the use of, or possession with intent to use, drug

paraphernalia.9 On January 30, 2009, the trial court sentenced Smithson to

life in prison without parole.   The PCRA court summarized the remaining

procedural history of this case as follows:

             Following the [s]entencing, [Smithson] informed this
             [c]ourt that he was without resources to retain an
             attorney for the purposes of filing and litigating
             [post-sentence] [m]otions and/or an [a]ppeal;
             therefore, on February 4, 2009, this [c]ourt
             [o]rdered the Office of the Public Defender of
             Delaware County to represent [Smithson] for his
             [post-trial] [m]otions and/or [a]ppeal. On February
             27, 2009, [Smithson] filed a timely Notice of Appeal
             to the Superior Court.     On March 3, 2009, this
             [c]ourt sent to Appellate Counsel an Order to file a


1
    18 Pa.C.S.A. § 2502(a).
2
    18 Pa.C.S.A. § 2702(a)(1).
3
    18 Pa.C.S.A. §§ 901, 3121(a)(1).
4
    18 Pa.C.S.A. § 2901.
5
    18 Pa.C.S.A. § 2714.
6
    18 Pa.C.S.A. § 4910.
7
    18 Pa.C.S.A. § 5510.
8
    35 P.S. § 780-113(16).
9
    35 P.S. § 780-113(32).


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J-S74022-14


          “Concise Statement of the Matters Complained of on
          Appeal,” pursuant to Pa.R.A.P. 1925(b).

                             *     *     *

          The Pennsylvania Superior Court affirmed this
          [c]ourt’s judgment of sentence by Order and
          memorandum dated December 17, 2009.           (Pa.
          Super. Ct. Dkt. No. 696 EDA 2009). Thereafter,
          [Smithson] sought a grant of Allowance of Appeal
          from the Pennsylvania Supreme Court, which was
          denied by per curiam order dated January 13, 2011.
          (Pa. Supreme Ct. Dkt. No. 37 MAL 2010).

          On November 3, 2011, [Smithson] filed a timely pro
          se PCRA petition and memorandum of law.            On
          November 17, 2011, this [c]ourt appointed Stephen
          Molineux, Esquire to assist [Smithson] with respect
          to his pending PCRA litigation. After reviewing the
          case, Mr. Molineux determined that [Smithson]’s
          claims were meritless and on March 5, 2012, Mr.
          Molineux filed a no-merit letter in which he
          articulated why [Smithson]’s claims lacked arguable
          merit.    [Smithson] then requested permission to
          proceed pro se but subsequently sought new court
          appointed counsel.         This [c]ourt subsequently
          appointed Henry DiBenedetto-Forrest, Esquire, to
          serve as PCRA counsel. Mr. Forrest was granted
          multiple continuances prior to the evidentiary
          hearing in order to file an amended PCRA petition.

          On September 10, 2013, this [c]ourt held the PCRA
          Hearing.

                             *     *     *

          Following the Hearing on the PCRA, wherein [Trial
          Counsel] was the sole witness, this [c]ourt requested
          Memoranda of Law and Proposed Findings of Fact
          and Conclusions of Law from both [c]ounsels. On
          January 14, 2014, this [c]ourt issued an Order
          [d]enying the PCRA Petition. On February 12, 2014,
          [Smithson] filed his timely [a]ppeal and on the same



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J-S74022-14


              day[,] this [c]ourt requested a Concise Statement of
              Matters Complained of on Appeal. [Smithson] filed a
              timely Concise Statement of Matters Complained of
              on Appeal on March 5, 2014. [Smithson]’s Concise
              Statement raises the same six issues that [he] raised
              in [his] PCRA Petition and at the PCRA Hearing.

Id. at 3-7.

      On appeal, Smithson seeks to raise the following six issues for our

review and determination:

              1.   Whether [Trial Counsel] rendered ineffective
                   assistance of counsel, as guaranteed by the
                   United States and Pennsylvania Constitutions,
                   by virtue of counsel’s alleged failure to conduct
                   any serious investigation of Fen Bruce
                   Covington, the other person who was present
                   at [Smithson]’s residence when the victim was
                   killed, relative to his role in the homicide,
                   which ineffectiveness on the part of counsel
                   “so undermined the truth determining process
                   such that no reliable adjudication of guilt or
                   innocence could have taken place?”

              2.   Whether [Trial Counsel] rendered ineffective
                   assistance of counsel, as guaranteed by the
                   United States and Pennsylvania Constitutions,
                   by virtue of counsel’s alleged failure to object
                   to the testimony of Dr. Cohn, whose hearsay
                   testimony allowed the improper admission of
                   Exhibit C-20 at trial, the lab report from Drug
                   Scan which indicated the presence of GHB in
                   the victim’s blood, which ineffectiveness on the
                   part of counsel “so undermined the truth
                   determining process such that no reliable
                   adjudication of guilt or innocence could have
                   taken place?”

              3.   Whether [Trial Counsel] rendered ineffective
                   assistance of counsel, as guaranteed by the
                   United States and Pennsylvania Constitutions,



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J-S74022-14


               by virtue of counsel’s alleged failure to object
               to the testimony of John Picciano, a forensic
               scientist, as to the findings, examination and
               conclusions presented by Jennifer Badger, a
               serologist, whose report [Exhibit C-26 at trial]
               was admitted without her being available for
               cross-examination, which ineffectiveness on
               the part of counsel “so undermined the truth
               determining process such that no reliable
               adjudication of guilt or innocence could have
               taken place?”

          4.   Whether [Trial Counsel] rendered ineffective
               assistance of counsel, as guaranteed by the
               United States and Pennsylvania Constitutions,
               by virtue of counsel’s alleged error to allow the
               hearsay statements of Covington to be read
               into the record by the [Commonwealth]’s lead
               investigator, Detective McCunney, resulting in
               alleged      improper        hearsay,       which
               ineffectiveness on the part of counsel “so
               undermined the truth determining process
               such that no reliable adjudication of guilt or
               innocence could have taken place?”

          5.   Whether [Trial Counsel] rendered ineffective
               assistance of counsel, as guaranteed by the
               United States and Pennsylvania Constitutions,
               by virtue of counsel’s alleged error to allow the
               hearsay statements of Jennifer Smithson to be
               read into the record, resulting in alleged
               improper hearsay, which ineffectiveness on the
               part of counsel “so undermined the truth
               determining process such that no reliable
               adjudication of guilt or innocence could have
               taken place?”

          6.   Whether [Trial Counsel] rendered ineffective
               assistance of counsel, as guaranteed by the
               United States and Pennsylvania Constitutions,
               by virtue of counsel’s alleged failure to
               investigate and cross-examine Daniel Hall, a
               material witness for [the] Commonwealth, to



                                  -6-
J-S74022-14


                 demonstrate that his statements to law
                 enforcement were incorrect because of his
                 excessive use of crystal meth at or around the
                 time of his observations and communications
                 with [Smithson], which ineffectiveness on the
                 part of counsel “so undermined the truth
                 determining process such that no reliable
                 adjudication of guilt or innocence could have
                 taken place?”

Turner/Finley Brief at 5-6.

     Before we address the merits of this appeal, we must determine

whether   counsel’s   filing   meets   the   requirements   of   Turner/Finley.

Compliance with Turner/Finley procedure requires the following:

           [PCRA] counsel must … submit a “no-merit” letter to
           the trial court, or brief on appeal to this Court, [1]
           detailing the nature and extent of counsel’s diligent
           review of the case, [2] listing the issues which the
           petitioner wants to have reviewed, [3] explaining
           why and how those issues lack merit, and [4]
           requesting permission to withdraw.

           Counsel must also send to the petitioner: (1) a copy
           of the “no-merit” letter/brief; (2) a copy of counsel’s
           petition to withdraw; and (3) a statement advising
           petitioner of the right to proceed pro se or by new
           counsel.

           If counsel fails to satisfy the foregoing technical
           prerequisites of Turner/Finley, the court will not
           reach the merits of the underlying claims but, rather,
           will merely deny counsel’s request to withdraw.
           Upon doing so, the court will then take appropriate
           steps, such as directing counsel to file a proper
           Turner/Finley request or an advocate’s brief.

           However, where counsel submits a petition and no-
           merit letter that do satisfy the technical demands of
           Turner/Finley, the [court] must then conduct its



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              own review of the merits of the case. If the court
              agrees with counsel that the claims are without
              merit, the court will permit counsel to withdraw and
              deny relief.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (internal

citations omitted).

      Here, PCRA counsel filed a “no-merit” letter with this Court that

detailed the nature and extent of his diligent review of the case,

Turner/Finley Brief at 1-4, listed the issues that Smithson wants to have

reviewed, Id. at 5-6, explained why and how those issues lack merit, Id. at

6-19, and requested permission to withdraw, Application to Withdraw

Appearance, 8/26/14, at 1-2. PCRA counsel also sent Smithson a copy of

the “no-merit” letter, a copy of PCRA counsel’s petition to withdraw, and a

statement advising Smithson of the right to proceed pro se or by new

counsel.      Thus, the record reflects that PCRA counsel has submitted a

petition and “no-merit” letter that satisfy the technical demands of

Turner/Finley. We will therefore conduct our own review of the merits of

the case.10



10
    On September 3, 2014, Smithson filed a response to PCRA counsel’s
Turner/Finley letter wherein he lambastes PCRA counsel’s decision to file a
Turner/Finley letter and PCRA counsel’s stewardship of the case. See
Objection by Appellant to Counsel Filing an Application to Withdraw
Appearance and No Merit Letter, 9/3/14, at 1-3. Smithson asserts that
PCRA counsel is ineffective for filing a “no-merit” letter and that if he desired
to withdraw, he should have done so before the PCRA court. Id. at 2-3.
Smithson also contends that there are meritorious Confrontation Clause
issues present in this case. Id. at 3. We will address the Confrontation


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     We review the denial of PCRA relief by “examining whether the PCRA

court’s findings of fact are supported by the record, and whether its

conclusions of law are free from legal error.” Commonwealth v. Busanet,

54 A.3d 35, 45 (Pa. 2012). “Our scope of review is limited to the findings of

the PCRA court and the evidence of record, viewed in the light most

favorable to the party who prevailed in the PCRA court proceeding.”      Id.

“Further, we afford great deference to the factual findings of the PCRA court

and will not disturb those findings unless they have no support in the

record.” Commonwealth v. Stewart, 84 A.3d 701, 706 (Pa. Super. 2013)

(quotations omitted), appeal denied, 93 A.3d 463 (Pa. 2014). Likewise, “the

PCRA court’s credibility determinations are binding on this Court, where

there is record support for those determinations.”      Commonwealth v.

Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010).

     In reviewing an allegation of ineffective assistance of counsel, we

begin with the assumption that counsel was effective. Commonwealth v.

Pierce, 527 A.2d 973, 975 (Pa. 1987). Our Supreme Court has stated that

in order “[t]o merit relief based on an ineffectiveness claim under the PCRA,

a petitioner must show that such ineffectiveness ‘in the circumstances of the

particular case, so undermined the truth-determining process that no

reliable adjudication of guilt or innocence could have taken place.’”


Clause issues in our review of the case as they are part of the issues PCRA
counsel lists as those Smithson wants our Court to review.              See
Turner/Finley Brief at 5-6.


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Commonwealth v. Collins, 957 A.2d 237, 244 (Pa. 2008) (quoting

42 Pa.C.S.A. § 9543(a)(2)(ii)). This standard requires “a petitioner to prove

that: (1)    the   underlying   claim    is    of arguable   merit;   (2) counsel’s

performance lacked a reasonable basis; and (3) the ineffectiveness of

counsel caused the petitioner prejudice.” Id. Regarding the second prong

of the ineffective assistance of counsel test, this Court has stated the

following:

             As a general rule, matters of trial strategy are left to
             the determination of counsel, and a defendant is not
             entitled to appellate relief simply because a chosen
             strategy is unsuccessful. Strategic choices made
             after thorough investigation of law and facts relevant
             to plausible options are virtually unchallengeable,
             and strategic choices made after less than complete
             investigation are reasonable precisely to the extent
             that reasonable professional judgments support the
             limitations on investigation. … Accordingly, before a
             claim of ineffectiveness can be sustained, it must be
             determined that, in light of all the alternatives
             available to counsel, the strategy actually employed
             was so unreasonable that no competent lawyer
             would have chosen it. We inquire whether counsel
             made an informed choice, which at the time the
             decision was made reasonably could have been
             considered to advance and protect defendant’s
             interests.    Thus, counsel’s assistance is deemed
             constitutionally effective once we are able to
             conclude the particular course chosen by counsel had
             some reasonable basis designated to effectuate his
             client’s interests. The test is not whether other
             alternatives were more reasonable, employing a
             hindsight evaluation of the record.

Commonwealth v. Buska, 655 A.2d 576, 582-83 (Pa. Super. 1995)

(quotations and citations omitted).           Our Supreme Court has held that to



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demonstrate prejudice in an ineffective assistance of counsel claim, “the

petitioner must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have

been different.”   Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012).

The failure by the petitioner “to satisfy any one of the three prongs of the

test for ineffectiveness requires rejection of the claim.” Collins, 957 A.2d at

244.

       The first issue Smithson raises on appeal is that the PCRA court erred

in not concluding “that [Trial Counsel] was ineffective for failing to conduct

any serious investigation of Fen Bruce Covington (“Covington”), who was

present at [Smithson]’s home when Shephard died.” Turner/Finley Brief at

14. The PCRA court determined that this claim was without merit, finding

that Trial Counsel “went over and above what a [trial counsel] is required to

do when investigating and mounting a defense.”               PCRA Court Opinion,

3/25/14, at 27. We agree.

       The certified record on appeal supports the trial court’s determination.

Our Supreme Court has held that “[c]ounsel has a general duty to undertake

reasonable    investigations   or   make   reasonable    decisions   that    render

particular investigations unnecessary.”        Commonwealth v. Johnson,

966 A.2d 523, 535 (Pa. 2009).        Here, Trial Counsel’s defense theory was

that   Covington   was   the    actual   perpetrator    of   Shephard’s     murder.

Turner/Finley Brief at 14.      The transcript of Trial Counsel’s testimony at



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Smithson’s PCRA hearing reveals that he conducted a detailed and thorough

investigation into   Covington.     Trial Counsel hired Donald Fredericks

(“Fredericks”), a licensed private investigator, to assist him in finding out

everything he could about Covington. N.T., 9/10/13, at 82-83. Fredericks

investigated where Covington lived, where his wife and family lived and

worked, his former affiliations with the Mormon Church, his possible ties to

the homicide of an intern where he formerly worked, and his sexual activity.

Id. at 82-84. Trial Counsel testified that both he and Fredericks staked out

Covington’s apartment. Id. at 83. Trial Counsel reported that he was able

to prove that Covington had lied about not being at Smithson’s home the

night Shephard died.    Id. at 88-90. Trial Counsel went so far as to state

that “… I chased Covington harder than anybody I’ve chased … in my life.”

Id. at 85.    Trial Counsel further testified that he investigated everything

Smithson told him about Covington. Id. at 114. Based on Trial Counsel’s

testimony, we find no error with the PCRA court’s determination that Trial

Counsel conducted a reasonable investigation of Covington. Accordingly, the

PCRA court correctly determined Smithson’s first issue is without merit.

     The second issue Smithson raises on appeal is that the PCRA court

erred by failing to conclude that Trial Counsel was ineffective for not

objecting to the Commonwealth’s introduction of the Drug Scan Toxicology

Report (“the Toxicology Report”).    Turner/Finley Brief at 15.     Smithson

contends that Trial Counsel should have objected to permitting Dr. Richard



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J-S74022-14


Cohn (“Dr. Cohn”) to testify about the Toxicology Report instead of Dr. Mark

Lichtenwalner (“Dr. Lichtenwalner”). Id. Dr. Lichtenwalner is the forensic

toxicologist who actually performed the testing and Dr. Cohn is the

Laboratory Director at Drug Scan, Inc., and Dr. Lichtenwalner’s supervisor.

N.T., 11/19/08, at 35, 37, 63. Smithson argues that Dr. Cohn’s testimony

violated his Sixth Amendment right to confront the witnesses against him

under Crawford v. Washington, 541 U.S. 36 (2004). Turner/Finley Brief

at 15.

         In   Crawford,      the   United    States    Supreme    Court   held   that

“[t]estimonial statements of witnesses absent from trial have been admitted

only where the declarant is unavailable, and only where the defendant has

had a prior opportunity to cross-examine.”            Crawford, 541 U.S.at 59. In

2009, the Supreme Court relied on Crawford in concluding that lab results

admitted into evidence to prove an element of a crime are testimonial

statements      and   thus    subject   to   confrontation.      Melendez-Diaz     v.

Massachusetts, 557 U.S. 305, 310-11 (2009).                   Our Court, applying

Melendez-Diaz, held, in a driving under the influence case, that it was error

for the trial court to admit BAC results without a showing that the lab

technician was unavailable or that the defendant had an opportunity to

cross-examine her.        Commonwealth v. Barton-Martin, 5 A.3d 363, 369

(Pa. Super. 2010). Thus, Smithson argues that Trial Counsel was ineffective

for not insisting that Dr. Lichtenwalner testify, as the failure to do so



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precluded confrontation (i.e., cross-examination) of the forensic toxicologist

who performed the testing for Shephard’s toxicology report. Turner/Finley

Brief at 15.

      To the extent that Smithson’s claim is of arguable merit, we conclude

the PCRA court did not err in finding that allowing Dr. Cohn to testify to the

Toxicology Report had no prejudicial effect on Smithson’s case.             The

Toxicology Report revealed that Shephard had a lethal amount of Gamma

Hydroxybutyrate (“GHB”), a date rape drug, in his system. N.T., 9/10/13, at

100. Trial Counsel testified that, based on his review of the evidence in the

case and his discussions with Smithson, he had no reason to believe that the

results of the Toxicology Report were inaccurate.       Id. at 98-100.    Thus,

cross-examination of Dr. Lichtenwalner would not have mattered.         See id.

Trial Counsel testified to the following about his decision not to insist on Dr.

Lichtenwalner’s testimony:

               Q:   How would have requiring Dr. [Lichtenwalner]
                    to testify benefited your client?

               A:   I don’t know. It -- I was satisfied to have [Dr.
                    Cohn] get the information in …

               Q:   Okay.

               A:   … because I knew what the information was.
                    It wasn’t going to be different if [Dr.
                    Lichtenwalner] said it compared to [Dr. Cohn]
                    saying it. [Dr. Cohn] actually was able to give
                    me some very -- fortuitously, he was a guy
                    who could give me the information I wanted




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                 about this -- these drugs and what it means so
                 that part was helpful.

Id. at 103.   Thus, the certified record reflects that Trial Counsel believed

that it was irrelevant to Smithson’s case whether Dr. Cohn or Dr.

Lichtenwalner testified about the Toxicology Report.    Id.   Therefore, the

record supports the conclusion that there was no reasonable probability that

the result of the proceeding would have been different had Trial Counsel

insisted on Dr. Lichtenwalner’s testimony instead of allowing Dr. Cohn to

testify. See King, 57 A.3d at 613. Accordingly, we find no error with the

PCRA court’s finding that allowing Dr. Cohn to testify to the Toxicology

Report had no prejudicial effect on Smithson’s case.

     The third issue Smithson raises on appeal is that the PCRA court

similarly erred by failing to conclude that Trial Counsel was ineffective for

not objecting to the Commonwealth’s introduction of the serology report

through John Picciano (“Picciano”) instead of Jennifer Badger (“Badger”).

Turner/Finley Brief at 15-16.    Picciano and Badger are forensic scientists

with the Pennsylvania State Police and Badger was the individual who

generated the serology report.    N.T., 11/19/08, at 120, 125.     Smithson

argues that this too violated his Sixth Amendment right to confront the

witnesses against him.   Turner/Finley Brief at 16.    Here, the PCRA court

again found that allowing Picciano to testify to the serology report had no




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prejudicial effect on Smithson’s case. PCRA Court Opinion, 3/25/14, at 29-

30. We agree.

      As with the Toxicology Report, Trial Counsel testified that he already

knew the contents of the serology report, that Smithson’s DNA was found on

gloves   police   recovered   from     Smithson’s   home   that   also   contained

Shephard’s DNA, to be accurate. N.T., 9/10/13, at 104-05; N.T., 11/19/08,

at 128-29. Trial Counsel testified as follows:

            Q:     Was there any benefit to challenging the DNA
                   or the blood evidence provided by the
                   Commonwealth in terms of the methodology,
                   the forensic analysis that was performed or the
                   handling of the evidence?

            A:     I had no expectation that anything was going
                   to change in light of the facts as I knew them.
                   Like I knew about the gloves. I knew what
                   they were used for.

                                   *     *      *

            Q:     What did -- when you say you knew about the
                   gloves, what do you mean?

            A:     Whose DNA       was on the gloves. They were
                   gloves that I   knew my client had worn at some
                   point. So I      knew his DNA was going to be
                   found on the    gloves.

N.T., 9/10/13, at 104-05. Thus, as with the Toxicology Report, the certified

record supports the conclusion that there was no reasonable probability that

the result of the proceeding would have been different had Badger testified

to the serology report instead of Picciano.         See King, 57 A.3d at 613.




                                       - 16 -
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Accordingly, we find no error with the PCRA court’s finding that allowing

Picciano to testify to the serology report had no prejudicial effect on

Smithson’s case.

      The fourth issue Smithson raises on appeal is that the PCRA court

erred by failing to find Trial Counsel ineffective for permitting Detective

Joseph McCunney (“Detective McCunney”) to read out-of-court statements

made by Covington to the jury.      Turner/Finley Brief at 16-18. Smithson

argues that this also violated his Sixth Amendment right to confront the

witnesses against him. Id. at 16.

      We agree with the PCRA court that Trial Counsel had a reasonable

strategy for allowing Detective McCunney to read Covington’s out-of-court

statements to the jury. As referenced above, Trial Counsel’s defense theory

was that Covington was the actual perpetrator of Shephard’s murder. See

N.T., 9/10/13, at 85-86. Trial Counsel testified that he had difficulty getting

information about Covington before the jury because Covington exercised his

Fifth Amendment privilege against self-incrimination and therefore did not

testify. Id. at 90. Trial Counsel testified that he still needed a way to show

the jury that Covington had lied about not being at Smithson’s house the

night of Shephard’s murder. See id. at 88-90. Trial Counsel stated that the

Commonwealth agreed to allow him to get this information before the jury

through his cross-examination of Detective McCunney. Id. at 93-94. Trial

Counsel reported that he believed that using Detective McCunney to get this



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information before the jury benefitted the defense because Detective

McCunney was such a trustworthy source.       Id. at 95.    Thus, here, Trial

Counsel’s decision to permit Detective McCunney to read the out-of-court

statements had a reasonable strategic basis designed to effectuate his

client’s interests. See Buska, 655 A.2d at 582-83.

     The fifth issue Smithson raises on appeal is that the PCRA court erred

by failing to find that Trial Counsel was ineffective for allowing the

Commonwealth to read Jennifer Smithson’s (“Ms. Smithson”) out-of-court

statements into the record instead of having her testify.     Turner/Finley

Brief at 16-18. At trial, Trial Counsel and the Commonwealth entered into a

stipulation to permit the Commonwealth to read into the record, in lieu of

her actual testimony, Ms. Smithson’s interview with police regarding a phone

call that she had with Smithson shortly before police arrested him.     N.T.,

11/17/08, at 85-88.    Smithson again argues that this violated his Sixth

Amendment right to confront the witnesses against him.        Turner/Finley

Brief at 16-18.   The PCRA court found that Trial Counsel had a sound

strategic basis for allowing the Commonwealth to read Ms. Smithson’s

statements into the record.   PCRA Court Opinion, 3/25/14, at 32-33.     We

agree.

     Trial Counsel testified that the reason he entered into the stipulation

was that he was concerned that Ms. Smithson would reveal damaging

information about Smithson were she to testify as a witness. N.T., 9/10/13,



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at 109-12.    Ms. Smithson’s out-of-court statements stem from a phone

conversation that she had with Smithson shortly before his arrest wherein he

admitted to hurting someone.     N.T., 11/17/08, at 312-14.     Trial Counsel

stated he believed that the emotional nature of Ms. Smithson’s statements

would be more harmful to his client if she testified to them on the stand as a

witness. N.T., 9/10/13, at 109-12. By keeping Ms. Smithson off the witness

stand, Trial Counsel eliminated the possibility that she might, if she became

emotional, reveal other damaging information about Smithson.         See id.

Furthermore, by reading the statements into the record, Trial Counsel

believed he was limiting the emotional impact of the statements on the jury.

See id. Thus, Trial Counsel’s strategy had a reasonable basis designated to

effectuate his client’s interests.     See Buska, 655 A.2d at 582-83.

Accordingly, based on Trial Counsel’s testimony, we conclude that the record

supports the PCRA court’s finding that Trial Counsel had a sound strategic

basis for allowing the Commonwealth to read Ms. Smithson’s out-of-court

statements to the jury.

      The final issue that Smithson raises on appeal is that the PCRA court

erred by failing to find Trial Counsel ineffective for not cross-examining

Daniel Hall (“Hall”) “to show that his statements to the police were incorrect

because of his excessive use of crystal meth at the time and shortly

following [Shephard]’s homicide.”       Turner/Finley Brief at 18.       Hall,

Smithson’s former paramour, testified at Smithson’s trial that he discovered



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Shephard’s body in Smithson’s home and that Smithson admitted to him

that Shephard had been drugged with GHB. N.T., 11/17/08, at 248, 251.

      We conclude that the PCRA court did not err in finding that Trial

Counsel had a reasonable strategic basis for not cross-examining Hall. Trial

Counsel believed that it would have been potentially damaging to Smithson’s

case had he attempted to discredit Hall’s testimony. N.T., 9/10/13, at 108.

Trial Counsel reported that Hall, based on his relationship with Smithson and

his involvement in discovering Shephard’s body, was distressed over the

events surrounding Smithson’s case.      See id. at 107-09.     In fact, Trial

Counsel testified that he met with Hall about Smithson’s case approximately

thirty to fifty times and was concerned that if he impeached Hall’s testimony,

Hall might come “completely apart” on the witness stand and begin revealing

potentially damaging information about Smithson. Id. at 107-09.

      For these reasons, we agree with PCRA Counsel that there are no non-

frivolous issues that Smithson could pursue on appeal, and affirm the order

dismissing his PCRA petition.

      Order affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/22/2014



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