J-S78009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                             Appellee

                       v.

JEFFREY HOFFMAN,

                             Appellant                No. 1779 WDA 2015


             Appeal from the PCRA Order Entered October 8, 2015
               In the Court of Common Pleas of Cambria County
                          Criminal Division at No(s):
                           CP-11-CR-0000254-1996
                           CP-11-CR-0000255-1996
                           CP-11-CR-0000256-1996
                           CP-11-CR-0000257-1996
                           CP-11-CR-0000258-1996


BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                     FILED DECEMBER 02, 2016

        Appellant, Jeffrey Hoffman, appeals from the post-conviction court’s

October 8, 2015 order denying his petition filed under the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. § 9541-9546. After careful review, we affirm.

        We have reviewed the certified record, the briefs of the parties, and

the applicable law.         Additionally, we have reviewed the October 8, 2015

opinion of the Honorable Timothy P. Creany, President Judge of the Court of

Common Pleas of Cambria County. We conclude that Judge Creany’s well-

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S78009-16


reasoned opinion, which accompanies his order denying Appellant’s PCRA

petition,   accurately   disposes   of   the   issue   presented   by   Appellant.

Accordingly, we adopt that opinion as our own, and affirm the order denying

Appellant’s PCRA petition on the basis set forth therein.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/2/2016




                                         -2-
                                                                                                    Circulated 11/16/2016 09:18 AM




              IN THE COURT OF COMlvION PLEAS OF CA1vJBRlA COUNTY, PENNSYLVANIA
                                      CRHvIINAL DIVISION

                                                                                           .
                                                                           .,.~-:::.-.~-,-:: . ,.

          COMMONWEALTH             OF PENNSYLVANIA                   N~: ~54-1990 256-1996, 25~_._;1996,
                                                                     255~ 996:··25.''f-1996 . · : :: --
                 vs.

         JEFFREY HOFFMAN,                                            PCRA                                         !
                                                                                                                 O)
                      Defendant

                                                           OPINION                                               ,._,)

                                                                                                         ,J
                                                                                                         ~
                                                                                                            .:   -;-J
                                                                                                                 u;,.
                 The defendant was charged with the rape and assault of four elderlywomen                            rrom

         Moxham, Westmont and Upper Yoder Township over a period of four years from 1991 to 1995.

         A jury found the defendant guilty following an eight-day consolidated trial on Nov. 20, 1996, of

         rape, criminal attempt to commit rape, involuntary deviate sexual intercourse, criminal attempt to

         commit involuntary deviate sexual intercourse, aggravated assault, robbery, burglary, criminal

         trespass, unlawful restraint, terroristic threats, theft by unlawful taking and receiving stolen

        property. He was sentenced to serve 95 to 190 years in state prison by then-Judge Thomas A.

         Swope. Jr., in January 1997.

                On March I 1. 20 J 5_ the defendant filed a second or subsequent petition for Post

        Conviction Relief, seeking a new trial. The basis of the PCRA petition is a letter, elated

        December 22, 2014, from Special Counsel for the United States Department of Justice. relative

        to a systematic review by the Department of Justice of hair comparison reports and testimony

        presented by employees of the FBI Laboratory before December 31, 1999. This review found

        that, in some cases, the FBI Lab examiner overreached acceptable scientific limits b) overstating

, . conclusions which could appropriately be drawn from submitted and examined hair samples.
~   ;




                The petition \·\ as iimclv tiled \.\ ithin :lie meaning of 4~ Pa.C.(;.A. ~ 9.'i45(b)( ! )( 1 i) and

        (b)(2). the defendant having Ci led it within sixty (60) days of learning of the Department of
                 Justice letter, which was forwarded              to him by trial counsel, Patricia Moore, Esq., on January 16,

                 2015. As the Commonwealth               stipulated,    an exception   to the PCRA Act's time bar requirements

                 have been met since the facts upon which the claim is predicated                   were unknown to the petitioner

                 and could not have been ascertained              by the exercise of due diligence.

                           At the 1996 trial, FBI examiner Special Agent Christopher                 Hopkins testified regarding

                 one of the defendant's         victims, Mrs. Stutzman. stating that hairs found in the defendant s debris

                 in his vehicle and his home, were similar to the victim's              hair. He further testified that

                 similarities    in nylon carpet and polyester clothing fibers linked the defendant                to the victim.

                          After-discovered        evidence      is a basis for a new trial only if it: (I) has been discovered

                after the trial and could not have been obtained prior to the cone! usion of the trial by the exercise

                of reasonable      diligence;    (2) is not merely corroborative       or cumulative;       (3) will not be used solely

                for impeachment        purposes;     and ( 4) is of such a nature and character that a different verdict wi II

    I,i I       likely result if a new trial is granted. Com. v. Valderrama,             479 Pa. 500, 388 A.2d I 042 (1978).
        I
     .I                  The parties agree that the first three prongs of the after-discovered                 evidence   test are


    II.l        satisfied and only the fourth prong is at issue.

                         Video-conference          PCRA hearing was conducted          with the defendant's consent on

                September       23, 2015. Defendant's counsel, Devon Casti, Esq" argued that due to the FBI's
I
I               erroneous conclusions,          the exclusion     of Agent Hopkins testimony        at trial would have likely

!I              compelled a different verdict under 42 Pa.C.S. §9543(a)(2).1                 She pointed out that DNA evidence
!I
11          was presented          in all of the victim's cases but for Mrs. Stutzmau's             case.
i 1
I I
: !




            1
              (a) General rule.s-To be eligible for relief ! ... ] the petitioner must plead and prove by a preponderance
            ofthe    evidence I .. J(2) That th<:' •illll\ ic11(111 ur sentence resulted from one or more ofthe foilo\\'ing: (1 i.,
            The unavailabiliry at the lime (11't1·i,ii l1i'nrnlpat,11·)      e, idence that has subsequently become available   rind
            11(\U[cl have changed     the outcome ul'thc t1i,ll 1f it had been inrroduced.      012 Pa.C.S. ~9543(a)(2)(vi;



                                                                             2
           Trial defense co-counsel, ivl ichael Fi I ia, Esq., lesti fied that he cross-examined Agent

   Hopkins in Mrs. Stuzrnan's case. and believed he raised reasonable doubt regarding the expert's

   testimony which attempted to match the victim's hair and fiber samples to the defendant. He and

' co-counsel Patricia Moore, Esq.. raised objections, arguing that evidence of the scientific

  accuracy of such a "match" was not permitted. The Court allowed the agent to use the term

  "consistent." The same ruling was applied to defendant counsel's objection relating to brown

  Caucasian male hairs, wherein the Court did not permit the agent to testify beyond the phrase

  "consistent with" a speci fie individual's hair. Mr. Fi I ia testified to his strategy on cross:

          "Just trying to make sure we object or get the - or have the examiner testify that
          he could not match the evidence - the hair samples to Mr, Hoffman, that although
          there may be similarities, that he could not match it to him." (N.T., PCRA
          Hearing, 9/23/2015, p. 20). ·.

          Regarding the agent's testimony about nylon carpet fibers that were found at Mr.

 Hoffman's apartment (having refreshed his memory from the transcript), Mr. Filia stated:

         "I proceeded to cross examine him that wouldn't it appear that these types of
         fibers would be common in many types of carpets, and J think he admitted to
         that." (kb p. 25).

         Regarding fibers taken from the bedspread and the socks of the victim, Mr. Filia stated

 that once again "the expert did not say they were a match, just consistent in nature, but he could

 not say they were a match."(~ p. 27}.

         Mrs. Stutzman's mouth was stuffed with a knotted gag, wrapped in tape. The tape

 revealed t\VO latent fingerprints.   A   separate fingerprint expert testified that the fingerprints

 belonged to the defendant, and Mr, Filia recalled that he attempted on cross-examination            to show

the analysis was unreliable.

        Co-counsel Patricia Moore testified at the PCRA hearing that she and Mr. Filia

vigorously and strenuously objected to the term "match," and believed they managed tu attack
                                    even the term "consistent."      (_IQ_,. pg. 43). Attorney Filia was able to bring out that gray hair has

                                    limited characteristics   for analysis.     Regarding       the agent's testimony     about nylon carpet fibers

                                and polyester      clothing fibers, Attorney Moore opined that Mr, Filia nullified the expert's

                                testimony by pointing out commonality               or popularity     of the nylon carpet fibers. ([d .. p. 42). She

                                testified, "Mr. Filia I think nullified that by discussing             the prevalence of nylon carpeting          and the

                        I.I     avai la bi Ii ty of ny Ion carpeting at the multimillion          stores that sell that and the a vai lab i Ii t y of that."

                               (lg_,, pg. 44).

            '11I                           Attorney Moore addressed           the fingerprint     evidence in Mrs, Stutzmans case, stating that
            II                 "The gag was two men's socks- each of the gags were two men's socks rolled and knotted into
            I! I
            i
                               <1    very specific knot. Inside the socks was a balled-up             knot of duct - of some type of duct tape or
         I!
         11
         I
         11
                    I          strapping tape. and inside the tape was either one or two and I believe it was a thumbprint,

        i           I          fingerprint."      (Id., p. 45). Attorney Moore stated that the fingerprint              expert testified that a
        I,i I                 standard fingerprint        match to an exemplar         is 11 to 14 points, and 21 points were identified            with

        '1 the defendant's                          prints. (Id.).
    /           1


    I
                                           Ms. Moore also recalled evidence of a pry-mark or tool-mark                   found on Mrs. Stutzman· s
    j
                              window frames, which were matched by yet other experts to tools found in the defendant" s car or
    I
                              home. (Id., p. 46).
I
I
'
                                          Judge Patrick T. Kiniry testified that while in the District Attorney's                 office in 1996,

                              following      the formation of the Violent Crimes Task Force to investigate                   the rapes of elder! y·

                              white women in Cambria            County. he co-prosecuted            the case. Judge Kiniry testified at the PCRA

                              hearing that while none of the victims could identify their attacker,                   even without Agent Hopkins

                              testimony      he definitely would have still prosecuted             Mrs. Stuzrnan's      case. This is because he

                              be lieved that the ci rcumsiantia I evidence ! ving the defendant to the fo ur ,·i ct i ms was
 "overwhelming," and that all the evidence applied to Mrs. Stuzman's     case. This evidence

 included:

             c      Each of the victims houses \\as broken into.
                   All four victims were elderly white women.
             ..    Each of the victims had a hood placed over them .
             u     Each of the victims had their hands tied behind their backs.
             D     Each of the victims were beaten.
             ...   Each of the victims were raped .
             u     Each of the women had a gag placed in her mouth, and left there.
                   Each gag had a 'distinctive knot' to them.
             "     Each of the distinctively knotted gags were also wrapped with tape.
             "     Each of the victims had items taken from their homes such as salt and pepper
                   shakers, Hummels, or cheese or steak knives, and identified their items which
                   were recovered from the defendant's house.
             "     In Mrs. Stutzman's case, the tape on her gag revealed two latent fingerprints
                   belonging to the defendant.


        Assistant District Attorney Scott Lilly, having reviewed the original record, offered in

closing argument that Mrs. Stutzman identified two salt cellars, a Vaseline antique glass, trinket

boxes from Manila and the Philippines, and a toiletry pack including a TWA (Airline) comb, all

found lined up on the defendant's bedroom dresser.

        In light of the multitude of evidence presented against the defendant in Mrs. Stuzman' s

case, we disagree with the defendant's argument that, aside from the illegal expert testimony on

hair and fiber evidence, the only thing left upon which the jury could convict in Mrs. Suuzmans

- but for the fingerprints - is circumstantial evidence. Not only may the Commonwealth

sustain its burden of proving every element of the crime beyond a reasonable doubt by relying

wholly on circumstantial evidence. Com. v. Stasiak, 305 Pa.Super. 257. 45 l A.2d 520 (1982).

but trial counsel effectively invalidated Agent Hopkins· testimony through objections to

overstating his scientific opinion. which were sustained by Judge Swope, and vigorous

challenges to the expert's fiber and hair testimony by cross-examination.
                Although this Court lacked the opportunity to listen to the testimony and observe the

; ; demeanor of the witnesses at trial, we have no doubt based on the PCRA evideutiary record that
;; :I                                                                                                            i
i        had Agent Hopkins' testimony been excluded from the defendant's       1996 trial, the outcome of the!

:i
r :
         trial and the jury's verdict of guilt as to the crimes committed upon !VI rs. Stutzman would be

iI
:j       exactly the same.                                                                                       I

11
                                                                                                                 I
                Accordingly, the following Order shall issue:                                                    I
                                                                                                                 I
11
lI                                                                                                               I
                                                                                                                 I
     I




II
I'                                                                                                                   I
ii
                                                                                                                     I
I

II
I·




I'
'I'. j




                                                            6
             IN THE COURT OF COlvHvlON PLEAS OF CAlvlBRIA COUNTY, PEl\TNSYLVANlA
                                      CRIMINAL DIVISION


         COMMONWEALTH OF PENNSYLVANIA                        Nos. 254-1996, 256-1996, 258-1996,
                                                             255-1996,257-]996
                vs.

         JEFFREY HOFFlvIAN,                                  PCRA
                        Defendant


                                                     OPINION

                                     7"L
                AND NOW, this c:.S'' clay of October, 2015, it is hereby ORDERED that the defendant's

         request for a new trial is DENIED.   The Petition for Post Conviction Relief is hereby

, . DISMISSED.
;I
I,
I    I

                                                          BY THE COURT:
I
11
11


     I
!I


                                                                                     ;:-. .



                                                                                                I
                                                                                              O:•



                                                                                              ::_.)

                                                                                    ~.-,.r    •:=}
                                                                                    :,:; .    v::
