J-S01045-20


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                 Appellee                  :
                                           :
                     v.                    :
                                           :
TINA TEDESCO,                              :
                                           :
                 Appellant                 :     No. 2458 EDA 2019

             Appeal from the PCRA Order Entered July 22, 2019
              in the Court of Common Pleas of Monroe County
            Criminal Division at No(s): CP-45-CR-0002229-2013

BEFORE: BOWES, J., KUNSELMAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                     FILED AUGUST 28, 2020

      Tina Tedesco (Appellant) appeals from the July 22, 2019 order

dismissing her petition filed under the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546. We affirm.

      In 2013, Appellant and her husband, John Tedesco (John or her

husband) (collectively, the Tedescos), were charged with various crimes for

their role in the death of a dependent person in their care, Barbara Rabins.

This Court summarized the basic facts of this case in Appellant’s direct

appeal as follows.

            [] Appellant and her husband had a relationship with
      [Rabins] for approximately twelve years preceding Rabins[’s]
      August 18, 2011 death at the age of 70. Rabins was a mentally
      and physically disabled individual who was estranged from her
      out-of-state family and whose father established a trust fund for
      her before his death. Appellant and her husband received $2,000
      per month from the trust for rent and incidental expenses as well
      as money from the trust to pay for their utility bills. In addition,


* Retired Senior Judge appointed to the Superior Court.
J-S01045-20


     Appellant, as payee, received Rabins’ $1,300 monthly social
     security checks. Also, Appellant and her husband were
     designated beneficiaries of [a] $100,000 life insurance policy
     insuring Rabins and identifying her as their aunt.

           In 2010, Rabins suffered a stroke and was admitted to a
     rehabilitation facility. The Tedescos insisted that she be released
     to their care shortly thereafter and Rabins was discharged
     against medical advice. At the time of her discharge on July 14,
     2010, Rabins weighed 219 pounds. At the time of her August
     2011 death, which was caused by “hypernatremic dehydration
     with aspiration of food bolus,” i.e., dehydration with high sodium
     levels and choking (on a piece of cheese), Rabins weighed 116
     pounds. An autopsy revealed that, at the time of her death,
     Rabins was wearing an adult disposable diaper that was wet with
     urine, feces and blood. She suffered from pressure ulcers on her
     chest, thighs, legs, feet, right elbow and forearm, back, lower
     back, buttocks and hand. Photographs taken at the autopsy
     showed that her arms and hands were dirty and covered in
     feces, with feces under her overgrown fingernails that were an
     inch to an inch and a half long on one hand. Ultimately, the
     doctor who conducted the autopsy announced that the manner
     of death was neglect of a care[-]dependent person, fitting the
     medical definition of homicide. As a result, the Pennsylvania
     State Police initiated an investigation into her death, including a
     search of the Tedescos’ home. Appellant and her husband both
     voluntarily gave statements to the police.

            The Tedescos contended that they cared for Rabins in their
     home[, where she was found dead by emergency personnel
     following a 911 call by the Tedescos], but evidence suggested
     that she was actually living in an apartment [on Route 115 in
     Saylorsburg] with a roommate, Tom Miller, who was hospitalized
     in a V.A. hospital beginning in March of 2011 and beyond Rabins’
     death. A search of the apartment revealed an apartment in a
     filthy condition that contained wheelchairs, walkers, and a
     blanket and couch that were soiled.

Commonwealth v. Tedesco, 168 A.3d 326 (Pa. Super. 2017) (unpublished

memorandum at 1-2) (titles removed).




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     Approximately two years after the death of Rabins, Appellant was

charged with “third[-]degree murder, neglect of care-dependent person,

theft by unlawful taking, theft by failing to make required disposition of

funds received, and tampering with/fabricating physical evidence. With the

exception of tampering with physical evidence, Appellant also was convicted

of conspiracy to commit each of the enumerated crimes.”          Id.   At the

conclusion of a joint jury trial with her husband that began on August 5,

2015, and concluded on August 14, 2015, the jury found Appellant and her

husband guilty of the charged crimes. On October 26, 2015, Appellant was

sentenced to “an aggregate term of incarceration of not less than 183

months (15.25 years) and not more than 366 months (30.5 years).”          Id.

This Court affirmed Appellant’s judgment of sentence on March 20, 2017.

See generally id.     Our Supreme Court denied Appellant’s petition for

allowance of appeal on September 19, 2017. Id., appeal denied, 170 A.3d

1060 (Pa. 2017).   Appellant did not seek further appellate review.

     On May 14, 2018, Appellant timely filed pro se a PCRA petition.

Following the appointment of counsel, Appellant filed an amended PCRA

petition. Two hearings were held on March 4, 2019, and April 18, 2019. On

July 22, 2019, the PCRA court denied Appellant’s petition.




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      This timely-filed appeal followed.1   On appeal, Appellant raises 11

issues, each contending that Appellant’s trial and/or direct appeal counsel

rendered ineffective assistance of counsel in various ways. Appellant’s Brief

at 4-6.

      We are guided by the following standard of review in assessing

Appellant’s issues, some of which we address together for ease of

disposition.   On review of orders denying PCRA relief, our standard is to

determine whether the PCRA court’s ruling is free of legal error and

supported by the record.    Commonwealth v. Orlando, 156 A.3d 1274,

1280 (Pa. Super. 2017) (citation omitted). To prevail on a petition for PCRA

relief, a petitioner must plead and prove, by a preponderance of the

evidence, that his conviction or sentence resulted from one or more of the

circumstances enumerated in 42 Pa.C.S. § 9543(a)(2). These circumstances

include ineffectiveness of counsel, which “so undermined the truth-

determining process that no reliable adjudication of guilt or innocence could

have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii).

      “[C]ounsel is presumed to be effective, and the petitioner bears the

burden of proving to the contrary.” Commonwealth v. Brown, 196 A.3d

130, 150 (Pa. 2018).

          It is well-established that counsel is presumed to have
          provided effective representation unless the PCRA

1 Both Appellant and the PCRA court complied with the mandates of
Pa.R.A.P. 1925.

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         petitioner pleads and proves all of the following: (1) the
         underlying legal claim is of arguable merit; (2) counsel’s
         action or inaction lacked any objectively reasonable basis
         designed to effectuate his client’s interest; and (3)
         prejudice, to the effect that there was a reasonable
         probability of a different outcome if not for counsel’s error.

      The PCRA court may deny an ineffectiveness claim if the
      petitioner’s evidence fails to meet a single one of these prongs.
      Moreover, a PCRA petitioner bears the burden of demonstrating
      counsel’s ineffectiveness.

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010)

(internal citations omitted).

Issue One: Withdrawal of Guilty Plea

      Appellant’s first issue concerns counsel’s alleged ineffectiveness in

relation to the withdrawal of her guilty plea.     By way of background, in

February 2015, Appellant initially agreed to plead guilty to third-degree

murder in exchange for the Commonwealth’s agreement to recommend

capping her sentence to 6 to 12 years instead of 6 to 20 years.            The

sentencing court ordered the probation office to prepare a pre-sentence

investigation (PSI) report, and the probation office complied by interviewing

Appellant and preparing a report.       At the March 16, 2015 sentencing

hearing, the trial court announced it refused to accept the sentencing cap

agreed upon by the Commonwealth and Appellant because, contrary to her

guilty plea, Appellant made statements suggesting she was not accepting

responsibility for her role in Rabins’ death.      Specifically, the PSI report

stated that Appellant had said



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      I have a heart. I cared for [Rabins]. Of course I didn’t kill her.
      It’s not my fault she choked on a piece of cheese. That’s crazy.
      Being charged for 3rd degree is outrageous.       That’s how I
      thought how can I take this plea deal? There are people taking
      plea deals and actually killed somebody.

PSI, February/March 2015, at 2b.

      The sentencing hearing was continued so that Appellant could consider

her options. On April 1, 2015, the trial court granted Appellant’s motion to

withdraw her guilty plea and the case was scheduled for trial.

      Appellant   now    contends   that   her     counsel   rendered    ineffective

assistance to her by failing to advise her of the ramifications of going to trial

with so many charges and the possibility of consecutive sentences if found

guilty. Appellant’s Brief at 25. Appellant claims she did not know she could

maintain her plea, and says she would not have withdrawn her plea had she

been so advised. Id. She also contends counsel should have objected to

the court’s refusal to abide by the plea agreement by filing a petition to

enforce the guilty plea. Id.

       Regarding the refusal to accept the plea agreement, the trial court

has broad discretion to accept or reject a plea agreement, and there is “no

absolute right to have a guilty plea accepted.”              Commonwealth v.

Hudson,     820   A.2d   720,   727-28      (Pa.    Super.   2003).     “While   the

Commonwealth and a criminal defendant are free to enter into an

arrangement that the parties deem fitting, the terms of a plea agreement

are not binding upon the court. Rather the court may reject those terms if


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the court believes the terms do not serve justice.” Commonwealth v.

White, 787 A.2d 1088, 1091 (Pa. Super. 2001). Therefore, to the extent

that Appellant claims her counsel was ineffective for failing to seek to

enforce the sentence negotiated in the plea agreement, the court was within

its discretion in rejecting the proposed sentence as not serving justice due to

Appellant’s failure to accept responsibility and expressed lack of remorse.

Accordingly, such claim fails for lack of merit.

      Appellant testified at the PCRA hearing that her counsel told her she

had to go to trial, did not explain the possibility of consecutive sentences for

multiple charges if the jury found her guilty, and did not tell her she could

keep her guilty plea. N.T., 4/18/2019, at 57.

      On the other hand, Appellant’s counsel testified at the PCRA hearing

that she and her co-counsel advised Appellant that withdrawing her plea and

proceeding to trial was the best option because they believed Appellant had

a chance to convince the jury that she acted in negligence, not malice.

However, counsel also testified that they explained to Appellant the potential

sentences she could receive and that they had “long discussions” about

proceeding to sentencing or withdrawing the plea and proceeding to trial,

and specifically whether Appellant “wanted to continue with the plea and the

sentencing or whether she wanted to proceed to trial.” Id. at 16-17.

      Based on the PCRA court’s holding that Appellant failed to prove that

this claim had merit, it is clear that the PCRA court credited counsel’s


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testimony over Appellant’s. PCRA Court Opinion, 7/22/2019, at 13. We are

bound by the PCRA court’s credibility determinations that are supported by

the record. Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009).

Furthermore, the PCRA court noted that Appellant’s initial guilty plea

colloquy contained an acknowledgement of her awareness that she was

facing 40 years of incarceration in the aggregate and she had the

opportunity to discuss the agreement with counsel.       PCRA Court Opinion,

7/22/2019, at 13.       Therefore, the PCRA court found that Appellant had

elected to enter into a plea arrangement, knew the potential risks and

benefits, and only changed her mind once the trial court removed the

sentencing cap due to Appellant’s refusal to accept responsibility for Rabins’

death.   Id.   She elected to take her chances at trial, a decision she was

given ample time to make due to the court’s continuance of the hearing. Id.

The PCRA court’s analysis is free from legal error and supported by the

record. Accordingly, because the underlying claim lacks merit, no relief is

due on her first issue.2



2 Nor is relief due on her second issue, which she combines with the first in
her brief. Appellant frames the second issue as “whether the [PCRA] court
erred as a matter of law and abused its discretion in failing to find counsel
was ineffective in failing to [advise Appellant adequately] of potential
ramifications of going to trial vs. plea arrangement[.]”            Id. at 4
(unnecessary capitalization omitted). Her entire argument as to the second
claim is simply a conclusory repeat of the issue without any analysis. Id. at
26 (“The trial court also erred as a matter of law and abused its discretion in
failing to find counsel was ineffective in failing to [to advise Appellant
adequately] of potential ramifications of going to trial versus plea
(Footnote Continued Next Page)

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Issue Five: Preparation of Client for Trial

      In her fifth issue, Appellant insists trial counsel was ineffective because

counsel did not prepare Appellant adequately for trial. Appellant’s Brief at 4.

Her presentation of the argument is rather unfocused; she argues that

counsel did not discuss her option to testify on her own behalf at trial, then

morphs the issue into an argument that counsel did not advise her of the

pros and cons of testifying, and then finally claims she would have testified if

counsel had provided her with the necessary information and prepared her

for trial. Appellant’s Brief at 29-30.

      Trial counsel testified at the PCRA hearing that the defense team met

with Appellant for hours to discuss whether she should testify, and

conducted mock trial questioning to prepare her for testifying.       This is in
(Footnote Continued)   _______________________

arrangement.”). This conclusory statement offers nothing to distinguish the
issue from her first. To the extent Appellant is attempting to pose a
separate issue, such issue is waived for failure to develop it.
Commonwealth v. Sipps, 225 A.3d 1110, 1116 (Pa. Super. 2019) (holding
that a failure to cite to pertinent authority and develop a meaningful analysis
renders an issue waived); see also Pa.R.A.P. 2119(a) (requiring an
appellant to provide in argument section of brief “such discussion and
citation of authorities as are deemed pertinent”).

Similarly, Appellant’s third and fourth issues are waived for failure to develop
them. Appellant’s third issue questions whether the PCRA court erred or
abused its discretion in failing to conclude that counsel prepared
inadequately for trial. Appellant’s Brief at 4. Appellant does not develop any
analysis of this issue beyond what she already presents in other issues.
Appellant’s fourth issue focuses on the ineffectiveness of counsel in failing to
cross-examine witnesses adequately. Appellant’s Brief at 4. However,
Appellant does not specify the witnesses whom counsel cross-examined
inadequately, let alone the ways in which the cross-examination was lacking.
Accordingly, both her third and fourth issues are waived.

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contrast to Appellant, who testified her counsel did not prepare her to testify

at all or discuss the option to testify. The PCRA court deemed trial counsel’s

testimony to be credible.      PCRA Court Opinion, 7/22/2019, at 19-20.       “A

PCRA court’s credibility findings are to be accorded great deference,” and, if

the findings are supported by the record, they are binding upon a reviewing

court.     Commonwealth v. Orlando, 156 A.3d 1274, 1280 (Pa. Super.

2017) (citation omitted).

         Based upon the testimony at the PCRA hearing and the PCRA court’s

credibility determinations, no relief is due on Appellant’s fifth issue.

Issue Six: Recusal

         In her sixth issue, Appellant argues counsel was ineffective for failing

to request the recusal of the trial judge.      According to Appellant, counsel

should have made this request because the trial judge refused to abide by

the sentencing cap in the plea agreement between Appellant and the

Commonwealth and made a statement during sentencing that Rabins

“basically went through torture.” Appellant’s Brief at 34. Appellant argues

the trial court was prejudiced against her, as demonstrated by her extensive

sentence and the trial court’s “rulings during trial, [which] have been set

forth herein and issues addressed in her original appeal.”3 Id.




3  To the extent Appellant is attempting to incorporate argument by
reference, this is not permitted by our appellate rules. Commonwealth v.
Briggs, 12 A.3d 291, 342-43 (Pa. 2011); Pa.R.A.P. 2119(a), (b).

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      When assessing a PCRA claim that counsel was ineffective for failing to

seek recusal of a trial judge, this Court has noted the following.

      The party who asserts a trial judge must be disqualified bears
      the burden of producing evidence establishing bias, prejudice, or
      unfairness necessitating recusal, and the decision by a judge
      against whom a plea of prejudice is made will not be disturbed
      except for an abuse of discretion. … A jurist, when a motion for
      recusal is filed, must consider whether his or her involvement in
      the case creates an appearance of impropriety and/or would
      tend to undermine public confidence in the judiciary.

Commonwealth v. Sarvey, 199 A.3d 436, 454 (Pa. Super. 2018) (citations

and quotation marks omitted).

      As discussed supra in Appellant’s first issue, the trial court stated it

refused to accept the sentencing cap agreed upon by the Commonwealth

and Appellant because, contrary to her guilty plea, Appellant made

statements suggesting she was not accepting responsibility for her role in

Rabins’ death.    The record supports the trial court’s observation, and a

motion to recuse based upon the trial court’s rejection of the negotiated

sentence cap would have had no merit.             See Commonwealth v. Blount,

207 A.3d 925, 933-34 (Pa. Super. 2019) (holding that rejection of a

negotiated sentence “does not require the conclusion that [a trial judge] was

biased, prejudiced, or unfair such that [the judge] should have recused

herself from th[e] matter”). Consequently, counsel was not ineffective for

failing to seek recusal on this basis.

      Appellant’s second basis for recusal would not have fared better. The

trial court made the comment about torture during the joint sentencing

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hearing for the Tedescos while explaining why it had arrived at their

sentences. Specifically, the trial court stated,

      on the surface, you have [Rabins] who has the mental capacity
      of a child; basically, someone who couldn’t really take care of
      herself. … Someone who didn’t have any adult functional
      capabilities but had trust moneys available every month to pay
      for her upkeep strikes me as someone who was wide open to be
      taken advantage of in various ways.

                                      ***

             [In 2010, Rabins] had [a] stroke. The Tedescos were used
      to [Rabins’ money] coming in every month to maintain the
      [Tedescos’] new vehicles, the new house, the furniture, the
      clothing and the vacations, and now Rabins suddenly … has
      gotten into a situation where she needs 24-hour care. … She
      was signed out against [medical] advice [from the nursing home
      following her hospital stay]. My recollection from the trial is that
      [Rabins] didn’t last very long outside of that nursing home
      situation. I think the same day she arrived at the home, that
      first nursing home contacted the Office of the Aging and had
      Office of the Aging personnel over there that very day who
      immediately -- and this isn’t at the Tedesco house. This was
      down [at the apartment] in Saylorsburg with Tom Miller. [The
      Office of Aging] immediately recognized that this is way beyond
      the capability of the Tedescos to care for Rabins. They pulled
      her out of that apartment right away. She was there alone with
      Miller, as I recall. How she lasted as long as she did, I’ll never
      know without … nursing care and supervision. She gets back in
      the hospital; she then went to the other nursing home. They
      eventually released her again, telling the Tedescos that she’s got
      to … have full-time care. Again she winds up in the apartment in
      Saylorsburg. [I]t sounds to me that somehow Miller was keeping
      things going there plus the visits from John. I’m not sure when
      Miller moved out of that apartment. ... And from that point on,
      Rabins’ existence had to be pure hell. She had nobody watching
      her while John was working. I didn’t get the sense that at any
      time Appellant was there for her. Appellant was taking care of
      her home and her children, and nobody was thinking about
      Rabins except every month when the checks came in. And her
      condition was horrible. It was something that would cause
      anybody who encountered it to react with just basic - just like

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         when Office of the Aging walked into the house way back when
         they immediately took her out of there. Anybody who walked in
         there had to know this was bad. Your senses would tell you that;
         what you saw, what you smelled. Rabins went through - she
         basically went through torture.        Anybody who saw her
         condition would know that she needed to be in a hospital
         immediately. I believe that John was aware of that. I don’t know
         what Appellant was aware of other than she knew that Rabins
         wasn’t being properly taken care of. The family was down in
         Wildwood on a vacation being paid for by Rabins’ trust fund
         while Rabins was suffering alone in an apartment up in
         Pennsylvania.

N.T., 2/1/2016, at 23-27 (names altered; emphasis added).

         In context, the trial court was simply summarizing the evidence and

explaining why it was imposing the sentences. Given the evidence at trial

about Rabins’ condition, the trial court’s description of Rabins’ experience as

torture was not unwarranted.         We do not agree that the trial court’s

statement was a ground for recusal.           See Commonwealth v. Flor, 998

A.2d 606, 642 (Pa. 2010) (“[I]t is not improper for a judge to address a

defendant after sentencing for the purpose of reiterating to the defendant

that the punishment just imposed was well-deserved.”).             Because the

underlying claim lacks merit, Appellant cannot succeed on her claim of

ineffective assistance of trial counsel for failure to seek recusal of the trial

court judge. Accordingly, the PCRA court did not err in dismissing this claim.

Issue Seven: Investigate Commonwealth Evidence

         In her seventh issue, Appellant argues that her trial counsel failed to

investigate Commonwealth evidence that was available for inspection.          At

trial,    defense   counsel   objected   to    documents   introduced   by   the

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Commonwealth, claiming that they were not provided during discovery. On

appeal, this Court noted that the trial court determined that defense counsel

was aware of the documents and had an opportunity to inspect them. The

documents were listed on property records as “miscellaneous documents,”

but defense counsel failed to examine them. Defense counsel also failed to

examine the contents of Rabins’ purse, which contained an address book.

Appellant’s Brief at 35-37.

      What is lacking from Appellant’s argument is a demonstration of how

these items prejudiced her such that there would have been a reasonable

probability of a different outcome if counsel had inspected the records in

advance of trial.     The trial court provided defense counsel with an

opportunity to examine the records at trial, and counsel did not object to

them on an evidentiary basis. N.T., 8/7/2015, at 237-38. Appellant does

not specify the contents or substance of the miscellaneous documents4 or

how the failure to inspect the documents in advance harmed her case.

Therefore, the PCRA court did not err in dismissing this claim.

Issue Eight: Commonwealth Closing

      In her eighth issue, Appellant argues trial counsel was ineffective

because she did not object to the Commonwealth’s closing argument, in

4 Based upon the pages of the transcript to which she refers us, in general
Appellant appears to be referring to the admission of 16 pages of
handwritten notes found in Rabins’ apartment, miscellaneous documents
found in the Tedescos’ master bedroom, and miscellaneous documents found
in Rabins’ bedroom at the Tedescos’ home. Id. at 132-59.

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which the district attorney referred to entries in Rabins’ address book that

supported the Commonwealth’s theory that Rabins did not live with the

Tedescos. Appellant’s Brief at 37-39. She contends this information likely

led to her conviction. Id.

      By way of background, the Commonwealth entered into evidence a

purse and its contents that belonged to Rabins and was seized from the

Tedescos’ residence. N.T., 8/7/2015, at 160; Commonwealth Exhibit 41. A

day planner was found inside the purse. The district attorney referred to the

day planner during the Commonwealth’s closing argument, emphasizing

various entries in the calendar:

            June 23, 2008 – “John comes to visit.” June 10, 2008 –
      “John comes to visit.” June 23, 2008 – “John comes to visit, call
      Sharon [Leinwand, the trust administrator]. Tom comes home.”
      July 27, 2009 - That was a Monday “[Appellant] and John are
      going on vacation.” August 2, 2009 - “John and [Appellant]
      come home.”

            You can take a look at all the months in the early part of
      2008 and you will see John comes to visit. You will see an entry
      for when she moves to Pennsylvania in 2008. The entry of
      moving into Pennsylvania corresponds to the date on the lease
      at the [Route] 115 apartment. So what does all this mean? All
      of that stuff is that [] Leinwand who’s played like a fiddle by the
      Tedescos is not true. [Rabins] stayed down there in Jersey [at
      the Route 115 apartment] with Tom Miller up until 2008. Her
      own entries verify that.

N.T., 8/14/2015, at 88-89.

      The PCRA court offered the following analysis of Appellant’s claim.

      [T]his evidence was offered to show that the Tedescos moved
      Rabins to Pennsylvania at a later time than they had told
      Leinwand, the trust officer who administered Rabins’ trust funds.

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      Leinwand had testified that Appellant notified her by letter on
      May 3, 2006, that Rabins would be living with her ‘in a mother-
      in-law suite’ at the Tedesco home…. It was also used to show
      that Rabins lived at the Route 115 address [with Miller], not the
      Tedescos’ address.      Appellant argues that defense counsel
      should have objected to this evidence as evidence ‘admitted
      during a closing argument.’ However, the purse and its contents
      had been discussed during the trial, offered as evidence[,] and
      received by the court. See Commonwealth’s Exhibit 41, N.T.,
      8/7/[20]15, at 160. Appellant further argues that this evidence
      should have been addressed by defense counsel during the trial.
      She is not specific as to the nature of the objection that should
      have been raised, or how the evidence should have been
      addressed by defense counsel.

            The question of where the Tedescos kept Rabins - at their
      home … or in a first floor apartment on Route 115 in Saylorsburg
      [with Miller] - was the focus of the Commonwealth’s case
      throughout the trial.

Trial Court Opinion, 7/22/2019 at 14-15 (names altered; some citations

omitted).

      The trial court then summarized all of the evidence introduced by the

Commonwealth at trial to prove that the Tedescos kept Rabins at the

apartment outside of their direct daily care instead of at their home,

concluding that the planner entries highlighted by the Commonwealth in its

closing were cumulative of other evidence. See id. at 14-19. In fact, the

trial court described the “evidence … that Rabins was being kept by the

Tedescos in the Route 115 apartment from 2008 forward, at first with Miller

as a roommate, and finally, alone” as “overwhelming.”      Id. at 18 (names

altered).    Since the evidence referred to in the closing was merely

cumulative    to   other   overwhelming     evidence   admitted   during   the


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Commonwealth’s case-in-chief and showing the same thing, the trial court

determined that Appellant failed to prove the last prong of the ineffective

assistance of counsel analysis, prejudice. We agree. No relief is due.

Issues Nine and Ten: Expert Witness

      In her ninth issue, Appellant argues that trial counsel rendered

ineffective assistance of counsel by not having her defense expert in

attendance at trial to aid in the cross-examination of the Commonwealth’s

expert witness, Sherri Blanchard-Doran. Appellant’s Brief at 39-44. In her

tenth issue, Appellant argues that trial counsel was ineffective because

counsel did not investigate the Commonwealth’s expert and appellate

counsel did not include the issue of the expert in Appellant’s brief on direct

appeal. Id.

      By way of background, Appellant presented an expert witness, William

Manion, M.D., to rebut the Commonwealth’s theory of homicide by neglect.

During its case-in-chief, the Commonwealth presented the testimony of

Sherri Blanchard-Doran, who was the director of nursing at Forest Manor, a

long-term care nursing home where Rabins resided from June 30, 2010 to

July 14, 2010, when the Tedescos signed her out against medical advice. As

the trial court explains,

      Blanchard-Doran testified as a fact witness because she
      supervised Rabins’ care in Forest Manor, and had discussions
      with the Tedescos about Rabins’ care and about the Tedescos’[]
      demand to move her from the facility against medical advice.



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            Blanchard-Doran was then asked to comment on autopsy
     photographs to identify necrotic tissue, which drew a defense
     objection. The defense objected because Blanchard-Doran had
     not been named as an expert and had not been qualified to
     testify as one. [The trial court] permitted the Commonwealth to
     ask questions of voir dire to qualify her and [the trial court]
     permitted defense cross-examination of qualifications. [The trial
     court] allowed her to give expert testimony over defense
     objections.

Trial Court Opinion, 7/22/2019, at 22-23.

     There is no merit to Appellant’s claim that defense counsel should

have had their defense expert present during the testimony of Blanchard-

Doran for the simple reason that Blanchard-Doran was not identified as an

expert in advance. Defense counsel cannot be expected to anticipate every

trial strategy by the Commonwealth. Counsel objected to the testimony, but

the objection was overruled.

     Regarding Appellant’s claim that defense counsel failed to investigate

Blanchard-Doran, again, defense counsel had no reason to believe that this

fact witness was going to testify as an expert.    Furthermore, as the trial

court points out, trial testimony indicates that a defense investigator did

speak to Blanchard-Doran in advance of trial.         Trial Court Opinion,

7/22/2019, at 25 (citing N.T., 8/7/2015, at 92).

     Moreover, while Appellant argues that appellate counsel did not raise

the issue of Blanchard-Doran’s testifying as an expert on direct appeal,

counsel did in fact raise this very issue. See Tedesco, supra (unreported

memorandum at 5-6) (“Appellant asserts trial court error for allowing


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Blanchard–Doran to testify as an expert witness because the Commonwealth

failed to identify her as an expert witness, because no report was prepared,

and because Appellant’s expert was unable to view her testimony.”). This

Court has determined already that there was no merit to a challenge to

Blanchard-Doran’s testimony.     See id. (holding that the trial court did not

err by permitting Blanchard-Doran to testify as an expert because

Blanchard-Doran had the requisite knowledge and skills “in geriatric nursing

to discuss pressure ulcers and wounds … as they related to geriatric

patients,” “the Commonwealth did not violate any disclosure rules because

the witness did not generate or introduce an expert report,” and Appellant

did not suffer prejudice because “the defense was on notice of the

prosecution’s intention to offer an expert in pressure ulcers, even if the

expectation was that a different witness would offer that testimony”).

      Accordingly, since there is no merit to Appellant’s claims, the trial

court did not err in declining to find counsel to be ineffective.

Issue Eleven: Renewal of Venue Objection

      In her eleventh and final issue, Appellant argues that trial counsel was

ineffective in not renewing her petition for change of venue.       Appellant’s

Brief at 44-50.

      We use the following standard to evaluate requests for a change of

venue.

      A change in venue is compelled whenever a trial court concludes
      a fair and impartial jury cannot be selected from the residents of

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     the county where the crime occurred. As a general rule, for a
     defendant to be entitled to a change of venue because of pretrial
     publicity, he or she must show that the publicity caused actual
     prejudice by preventing the empanelling of an impartial jury. The
     mere existence of pretrial publicity alone, however, does not
     constitute actual prejudice. Simply because prospective jurors
     may have heard about a case through media reports does not
     render them incapable of jury service.

                                     ***
     [T]he pivotal question in determining whether an impartial jury
     may be selected is not whether prospective jurors have
     knowledge of the crime being tried, or have even formed an
     initial opinion based on the news coverage they had been
     exposed to, but, rather, whether it is possible for those jurors to
     set aside their impressions or preliminary opinions and render a
     verdict solely based on the evidence presented to them at trial.
     Nevertheless, our Court has recognized that there are some
     instances in which pretrial publicity can be so pervasive and
     inflammatory a defendant does not have to prove actual
     prejudice. Prejudice will be presumed whenever a defendant
     demonstrates that the pretrial publicity: (1) was sensational,
     inflammatory, and slanted toward conviction, rather than factual
     and objective; (2) revealed the defendant’s prior criminal record,
     if any, or referred to confessions, admissions or reenactments of
     the crime by the defendant; or (3) derived from official police or
     prosecutorial reports. However, if the defendant proves the
     existence of one or more of these circumstances, a change of
     venue will still not be compelled unless the defendant also
     demonstrates that the presumptively prejudicial pretrial publicity
     was so extensive, and pervasive that the community must be
     deemed to have been saturated with it, and that there was
     insufficient time between the publicity and the trial for any
     prejudice to have dissipated. With respect to the determination
     of whether there has been an adequate cooling off period to
     dissipate the effect of presumptively prejudicial media coverage
     ... [a] court must investigate what a panel of prospective jurors
     has said about its exposure to the publicity in question. This is
     one indication of whether the cooling period has been sufficient.
     Thus, in determining the efficacy of the cooling period, a court
     will consider the direct effects of publicity, something a
     defendant need not allege or prove.... Normally, what
     prospective jurors tell us about their ability to be impartial will
     be a reliable guide to whether the publicity is still so fresh in

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      their minds that it has removed their ability to be objective. The
      discretion of the trial judge is given wide latitude in this area.

Commonwealth v. Bardo, 105 A.3d 678, 712-14 (Pa. 2014) (citing

Commonwealth v. Briggs, 12 A.3d 291, 313-14 (Pa. 2011)).

      In her brief, Appellant cites general law about requesting a change of

venue before providing a one-paragraph analysis of the law as it applies to

her case. Her analysis, in its entirety, is the following.

      In this matter, there was tremendous pre-trial publicity. While
      there was a cooling-off period, the pre-trial publicity went
      rampant again, publicizing Appellant’s guilty plea and
      subsequent withdrawal of the plea.          This publicizing of
      [Appellant’s] guilty plea is extremely prejudicial. Counsel for
      Appellant should have renewed the change of venue motion and
      same should have been granted.

Appellant’s Brief at 49-50.

      Appellant’s analysis is woefully vague. It is her burden to prove her

claim, see 42 Pa.C.S. § 9543(a)(2)(ii), but she fails to direct our attention to

where in PCRA proceedings she set forth evidence proving that “pre-trial

publicity went rampant again.” See Pa.R.A.P. 2119(c) (requiring argument

to set forth a reference to the place in the record where the matter referred

to appears). Her analysis is conclusory without any meaningful discussion.

Given Appellant’s utter failure to attempt to develop her analysis, we find

this issue to be waived.

      Even if we were not inclined to find waiver, we would affirm the PCRA

court’s denial of this claim for the reasons stated by the PCRA court. The

PCRA court points out that defense counsel’s motion for a change in venue

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was included in the omnibus pretrial motion argued in February 2014. The

trial court denied the motion in June 2014, concluding that the publicity

around the case had subsided and Appellant was free to conduct individual

voir dire at the time of jury selection to renew her motion. Defense counsel

did not renew the motion.     However, during the PCRA process, Appellant

does not point to any issues with a specific juror, and according to the PCRA

court, the only news articles successfully introduced into evidence by

Appellant were news reports that were from 2013, more than two years

before jury selection.     PCRA Court Opinion, 7/22/2019, at 29.       Thus,

Appellant has failed to plead and prove prejudice to her case.

      Furthermore, trial counsel testified that she recalled only one article

noting that Appellant had withdrawn her plea, and she did not renew the

motion for change of venue because no juror stated they had formed an

opinion about the case. N.T., 3/4/2019, at 32-37, 52. Because Appellant

has failed to prove there was a reasonable probability of a different outcome

if not for counsel’s failure to re-file the motion for change in venue, see

Franklin, 990 A.2d at 797, the trial court properly denied her claim that

counsel was ineffective.

Conclusion

      Based on the foregoing, we affirm the PCRA court’s order dismissing

Appellant’s PCRA petition.

      Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/28/20




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