J-A11007-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JASON J. DOMINICK                          :
                                               :
                       Appellant               :   No. 1010 MDA 2019

               Appeal from the PCRA Order Entered June 7, 2019
              In the Court of Common Pleas of Lackawanna County
              Criminal Division at No(s): CP-35-CR-0002273-2013


BEFORE:      PANELLA, P.J., McLAUGHLIN, J., and STEVENS, P.J.E.

MEMORANDUM BY PANELLA, P.J.:                           FILED AUGUST 27, 2020

        Jason Dominick appeals from the order entered in the Lackawanna

County Court of Common Pleas, which dismissed his timely second amended

petition filed pursuant to the Post Conviction Relief Act (“PCRA”). See 42

Pa.C.S.A. §§ 9541-9546. In his petition, Dominick illuminates what he claims

to be six discrete instances of ineffective assistance of counsel. As we find

none of the situations outlined in Dominick’s brief to surmount the high bar

necessary to constitute ineffective assistance of counsel, we affirm.

        In summary, Dominick was charged with various offenses, including

first- and third-degree murder and conspiracy to commit both of those crimes,

after the dead body of Frank Bonacci was discovered in the passenger’s seat

of Bonacci’s vehicle at the bottom of a steep ravine. Bonacci died of a single

____________________________________________


   Former Justice specially assigned to the Superior Court.
J-A11007-20



close-contact gunshot wound to the back of his head.

      Evidence at trial suggested that Dominick harbored some level of

animosity toward Bonacci, stemming from, among other things, Dominick’s

former girlfriend becoming romantically attached to Bonacci. The last time

Bonacci had been seen prior to his death was when he left a party at the

residence of Neil Pal. Pal would eventually be charged as Dominick’s co-

conspirator. Bonacci left the party and eventually started his vehicle,

accompanied by both Dominick and Pal.

      Bonacci’s vehicle was then seen via the University of Scranton’s video

surveillance system, which established his Jeep Liberty crossing the train

tracks in the vicinity of where he would ultimately die. A short time after the

video captured the vehicle being driven, Pal called one of his friends to provide

a ride for him and Dominick. The two were ultimately picked up alongside

Interstate 81 South after emerging from a wooded area adjacent to that road.

      A jury convicted Dominick of third-degree murder and conspiracy to

commit third-degree murder, stemming from the same incident: the shooting

death of Frank Bonacci. At sentencing, Dominick was sentenced to a minimum

term of incarceration of forty years to a maximum term of eighty years.

      After he was sentenced, Dominick filed post-sentence motions, which

the court denied. Dominick then appealed to our Court, where we affirmed his

judgments of sentence. Thereafter, our Supreme Court denied his petition for

allowance of appeal.




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      Instantly, Dominick filed a timely pro se PCRA petition. Correspondingly,

Dominick   was   appointed   counsel,    and   two   amended   petitions    were

subsequently filed. Dominick was granted a hearing on his petition, which

primarily featured testimony from a bloodstain expert. Ultimately, the PCRA

court denied all of the claims contained in his PCRA petition. Afterwards,

Dominick timely appealed the PCRA court’s decision and required Dominick to

file a concise statement of issues he intended to present on appeal. Dominick

timely complied, and the PCRA court issued an order indicating that it would

rely on its initial memorandum and order dismissing Dominick’s PCRA petition.

      On appeal, Dominick claims that there were six occurrences where the

PCRA court should have found Dominick to have been prejudicially impacted

by ineffective assistance of counsel:

      1) Was it ineffective assistance of counsel where trial counsel
         failed to object, seek an exception, and/or otherwise suggest
         an alternative instruction be provided in response to the jury’s
         questions during deliberations because the answer provided
         was inconsistent and/or conflicting with the previous
         instructions, contrary to the law, and/or otherwise misleading?

      2) Was it ineffective assistance of counsel where trial counsel
         failed to object to the jury instruction and the verdict slip on
         the basis that they were not consistent with the law, confusing,
         and/or misleading?

      3) Was it ineffective assistance of counsel where trial counsel
         failed to investigate, obtain, and/or present a bloodstain
         pattern expert on behalf of the defense?

      4) Was it ineffective assistance of counsel where trial counsel
         failed to conduct a reasonable investigation of the bloodstain
         pattern evidence and failed to request additional testing of
         evidence as requested or make a reasonable decision that an

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         investigation and/or further testing were unnecessary?

      5) Was it ineffective assistance of counsel where trial counsel
         failed to admit defense expert’s curriculum vitae into evidence,
         thereby prohibiting its review by the jury during deliberations
         and failed to object to a redacted version of the defense
         expert’s report being provided to the jury?

      6) Was it ineffective assistance of counsel where, when faced with
         the prosecution’s closing argument, which stated or implied
         that trial counsel was assisting in creating a false and deceptive
         narrative to present to the jury, trial counsel failed to object,
         request a mistrial, or seek a curative instruction?

See Appellant’s Brief, at 3.

      Our standard of review for an order denying PCRA relief is well-settled:

      Upon reviewing an order in a PCRA matter, we must determine
      whether the findings of the PCRA court are supported by the
      record and whether the court's legal conclusions are free from
      error. The findings of the PCRA court and the evidence of record
      are viewed in a light most favorable to the prevailing party. The
      PCRA court's credibility determinations, when supported by the
      record, are binding; however, this court applies a de novo
      standard of review to the PCRA court's legal conclusions. We must
      keep in mind that the petitioner has the burden of persuading this
      Court that the PCRA court erred and that such error requires relief.
      Finally, this Court may affirm a valid judgment or order for any
      reason appearing of record.

Commonwealth v. Montalvo, 205 A.3d 274, 286 (Pa. 2019) (internal

citations omitted).

      Asserting a PCRA claim of ineffective assistance of counsel requires a

petitioner to demonstrate, via a preponderance of the evidence, that counsel’s

deficient action or actions “so undermined the truth-determining process that

no reliable adjudication of guilt or innocence could have taken place.” 42

Pa.C.S.A. § 9543(2)(ii). However, counsel is presumed to have rendered

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effective assistance. See Commonwealth v. Sepulveda, 55 A.3d 1108,

1117 (Pa. 2012). Therefore, in order to obtain relief, a petitioner must

demonstrate prejudice as recognized by the United States Supreme Court in

Strickland v. Washington, 466 U.S. 668 (1984). See Commonwealth v.

Hannibal, 156 A.3d 197, 206 (Pa. 2016) (identifying that Pennsylvania courts

employ “the performance and prejudice standard set forth in Strickland”).

      Strickland requires our Court to ascertain whether: (1) the petitioner’s

underlying claim has arguable merit; (2) counsel’s action or inaction was

unreasonable; and (3) the petitioner suffered prejudice as a result of counsel’s

deficient performance to such an extent that there is a reasonable probability

that the result of the proceeding would have been different excepting counsel’s

affirmative error or omission. See Commonwealth v. Pierce, 527 A.2d 973,

975 (Pa. 1987). The petitioner has the burden of demonstrating the legitimacy

of all three prongs. See Commonwealth v. Travaglia, 661 A.2d 352, 357

(Pa. 1995).

      If a petitioner does not satisfy any one prong of the ineffectiveness test,

it is fatal to his or her claim. See Commonwealth v. Wholaver, 177 A.3d

136, 144 (Pa. 2018). Additionally, we are not bound to any particular

sequential analysis of the three ineffectiveness prongs; if, for whatever

reason, a petitioner’s fails under any prong, we may immediately discuss that

element to dismiss the claim in its entirety. See Sepulveda, 55 A.3d at 1117-

18.


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      As to the first prong of the test, “[a] claim has arguable merit where the

factual   averments,   if   accurate,    could   establish   cause   for   relief.”

Commonwealth v. Postie, 200 A.3d 1015, 1023 (Pa. Super. 2018) (citation

omitted). Whether those asserted facts rise to the level of arguable merit is a

legal determination. See id. (citation omitted). We emphasize, too, that

counsel cannot be deemed ineffective for failing to raise a clearly meritless

claim. See Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015).

      On the second prong, our Supreme Court has clarified that:

      we do not question whether there were other more logical courses
      of action which counsel could have pursued; rather, we must
      examine whether counsel's decisions had any reasonable basis.
      We will conclude that counsel's chosen strategy lacked a
      reasonable basis only if [a]ppellant proves that an alternative not
      chosen offered a potential for success substantially greater than
      the course actually pursued.

Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011) (internal

citations and quotation marks omitted).

      If counsel’s particular course has some reasonable basis that was

designed to effectuate his client’s interest, that action is generally considered

to be constitutionally effective. See Commonwealth v. Lesko, 15 A.3d 345,

380 (Pa. 2011). Moreover, “[a] finding that a chosen strategy lacked a

reasonable basis is not warranted unless it can be concluded that an

alternative not chosen offered a potential for success substantially greater

than the course actually pursued.” Commonwealth v. Colavita, 993 A.2d

874, 887 (Pa. 2010) (citation omitted).


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      The third, prejudice-based prong requires the petitioner to establish that

there is a reasonable probability that the outcome of the proceedings would

have been different but for counsel’s ineffectiveness. See Commonwealth v.

King, 57 A.3d 607, 613 (Pa. 2012). Accordingly, “a reasonable probability is

a probability that is sufficient to undermine confidence in the outcome of the

proceeding.” Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). An inquiry

into whether there has been prejudice utilizes a totality of the evidence

approach. See Postie, 200 A.3d at 1023.

      While he identifies that his “first two arguments are related and argued

together,” Appellant’s Brief, at 12 n. 5, by addressing his first two, yet distinct,

ineffective assistance arguments in tandem with one another, Dominick

arguably violates Pa.R.A.P. 2119(a). Nevertheless, Dominick has provided

enough discussion on each issue for our full resolution of his contentions, and

we, too, have combined them for ease of disposition.

      Dominick asserts trial counsel was ineffective for failing to object to an

instruction given in response to a question from the jury during deliberations.

The jury asked if Dominick could be found guilty of conspiracy if he was found

not guilty of first-degree murder or third-degree murder. See N.T., 5/9/14, at

17. In response, the trial court answered that Dominick could not be found

guilty of conspiracy under those circumstances. See id., at 19. Dominick avers

that this answer from the trial court took from the jury its “sole prerogative

to decide on which counts to convict[.]” Commonwealth v. Kearns, 907


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A.2d 649, 659 n. 10 (Pa. Super. 2006).

      “[A]n error in the jury instructions warrants a new trial only where such

error has been clearly prejudicial to the defendant.” Commonwealth v. May,

656 A.2d 1335, 1343 (Pa. 1995). While the court, in its instructions, may use

its own forms of expression to          explain tough     legal concepts,     see

Commonwealth v. Saranchak, 675 A.2d 268, 275 (Pa. 1996), the law must

still be presented “clearly, adequately, and accurately.” Commonwealth v.

Garcia, 847 A.2d 67, 73 (Pa. Super. 2004).

      Supplemental instructions in response to a jury’s request rest “within

the sound discretion of the trial judge.” Commonwealth v. Davalos, 779

A.2d 1190, 1195 (Pa. Super. 2001). If “a jury returns on its own motion

indicating confusion, the court has the duty to give such additional instructions

on the law as the court may think necessary to clarify the jury’s doubt or

confusion.” Id.

      Dominick’s allegation is that when the trial court indicated a murder

conviction was a necessary component to the conspiracy conviction, it

contradicted the court’s initial jury instruction, which indicated that it was

completely within the province of the jury to decide how it would answer the

verdict slip’s questions. At trial, the court explained, correctly, that the crime

of conspiracy requires an agreement and an overt act in furtherance of that

agreement. See N.T., 5/8/14, at 21-24. However, a complicating facet of this

conspiracy charge was that the sole overt act alleged was Dominick killing


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Bonacci. See id., at 22. Therefore, Dominick claims the trial court effectively

predetermined the jury’s resolution of the case by foreclosing on the possibility

that conspiracy could follow a not guilty third-degree murder verdict.

      The jury slip indicates at question two that regardless of the jury’s

adjudication of guilt as to that question - i.e., whether Dominick was guilty of

third-degree murder - the jury was then to go to question four to consider

whether Dominick was guilty of conspiracy to commit third-degree murder.

See Verdict Slip, PCRA Hearing, 10/16/17, Ex. J. Therefore, conceivably, the

jury could have, based on the italicized instructions written on the verdict slip

alone, convicted Dominick of conspiracy to commit third-degree murder

without having found him guilty of third-degree murder even though the

conspiracy’s singular overt act alleged was, effectively, the third-degree

murder. Dominick does not challenge that the sole overt act alleged for both

charged conspiracy offenses was the murder of Bonacci.

      While Dominick claims that the trial court’s amelioration of the verdict

slip’s illogical outcome “told the jury how it had to answer the particular

questions,” Appellant’s Brief, at 17, we conclude that despite this assertion,

Dominick has failed to establish that the outcome of the proceedings would

have been different but for counsel’s failure to object to the instruction.

Dominick states that because the jury was instructed that it could not find

Dominick guilty of conspiracy to commit third-degree murder if it found him

not guilty of third-degree murder, “it is conceivable the jury would convict


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[Dominick] of third-degree murder even if it did not find sufficient evidence.”

Id., at 18.

      Dominick contorts the trial court’s explanation by providing a situation

that is disparate from the sequential order of the verdict slip: “if the jury

determined there was evidence sufficient to convict him on conspiracy to

commit third-degree murder, in order to convict him of [the] same it had to

also convict him of third-degree murder even if it found the evidence

insufficient to convict for third-degree murder.” Id. As will be explained more

fully below, given the progression of the charges contained on the verdict slip,

the jury was not to consider conspiracy to commit third-degree murder until

it reached a decision on the third-degree murder charge itself. Although the

court’s instruction prevented the finding of conspiracy absent an underlying

murder conviction, if anything, it was to Dominick’s benefit, as it prevented

the jury’s confusion and possibility of a false adjudication of guilt. Moreover,

Dominick has cited nothing for the proposition that, as distinct from the verdict

slip, all charges had to be considered concomitantly.

      In addition, trial counsel clearly had a reasonable basis for not objecting

to the answer provided by the trial court to the jury. As testified to at the

PCRA hearing, trial counsel believed that he had no reason to object because

the jury’s question seemed to indicate that it was leaning towards a finding of

not guilty for all charges. See PCRA Hearing, N.T., 10/16/17, 20, 24-25. If he

were to have objected, however, it could have jeopardized his client by


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potentially exposing Dominick to a legally erroneous conspiracy conviction.

Stated differently, had the curative instruction not been provided, the jury

could have found Dominick guilty of conspiracy absent the requisite overt act

necessary for such a conviction. As such, counsel was not ineffective for failing

to object to the trial court’s supplemental instructions.

      In a similar vein, we find no error in the PCRA court’s conclusion that

trial counsel was not ineffective in failing to object to the verdict slip used at

trial. “[W]hen evaluating the propriety of jury instructions, this Court will look

to the instructions as a whole, and not simply isolated portions, to determine

if the instructions were improper.” Commonwealth v. Charleston, 94 A.3d

1012, 1021 (Pa. Super. 2014) (citation omitted) (alteration in original).

Additionally, “it is an unquestionable maxim of law in this Commonwealth that

a trial court has broad discretion in phrasing its instructions, and may choose

its own wording so long as the law is clearly, adequately, and accurately

presented to the jury for its consideration.” Id. (citation omitted).

      Dominick is correct in his assessment that the trial court’s answer to the

jury’s question created a differing trajectory and possible outcome from that

envisaged by the verdict slip. However, the trial court staved off any potential

problems associated with the slip by issuing clarifying instructions. Dominick

does not argue that the trial court committed an error of law by issuing the

clarification. Accordingly, to the extent that the verdict slip and initial jury

instructions, as written, were misleading, any deficiency was cured through


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the court’s instruction that conspiracy to commit third-degree murder could

not follow a not guilty third-degree murder verdict.

      Prior to reading the verdict slip, the trial court emphasized to the jury

that “[t]he number of questions you answer and how you answer those

questions will be entirely up to you and that is for you and you alone to

decide.” N.T., 5/8/14, at 10. In addition, the court emphasized that the jury

was to “understand that the number of questions that [it] will answer on the

verdict slip will depend on how [it] answer[s] earlier questions.” Id. The trial

court also stated to the jury: “You should not misconstrue the fact that I am

charging on a particular question which appears on the verdict slip as any

indication on my part as to how you should answer the questions on the verdict

slip.” Id.

      Therefore, at no point did the trial court ever mandate or suggest a

particular outcome. Furthermore, Dominick is not challenging that the

sequential nature of the verdict slip was somehow inappropriate or legally

incorrect. The court did, though, offer what was essentially an amendment to

the corresponding written directions that detailed the procedure for filling out

a verdict slip. Such instruction is “not subject to interpretations that could

potentially prejudice a defendant.” Commonwealth v. Johnson, 815 A.2d

563, 584 (Pa. 2002) (indicating that, unlike instructions containing “an

articulation of points of law” or legal definitions, a trial court merely explaining

to the jury how to fill out a verdict slip, i.e., its instructions, is not construed


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as prejudicial).

      Given a trial court’s broad discretion in phrasing its charge, Dominick

has not pointed to any evidence that the trial court’s oral amendment of its

instructions was somehow legally erroneous, inaccurate, or in conflict with our

prior case law. We fail to see how the trial court’s amended instruction is

materially   distinct   from    the   originally-included   italicized   procedural

instructions. The trial court satisfactorily reviewed for the jury all of the

elements of each crime Dominick was charged with, see N.T., 5/8/14, at 3-

27, and thereafter explained the procedure for filling out the verdict. See id.,

at 28-30. While jury slips “should be accurate, so as not to mislead,” Ali, 10

A.3d at 312 (Pa. 2010), the trial court cured any possibility of procedural

misinformation that the jury may have had, and again, Dominick does not

challenge that the sole overt act alleged by the Commonwealth was the

murder, itself. Accordingly, we are unable to conclude that there is a

reasonable possibility the outcome would have been different had trial counsel

objected to the verdict slip.

      Dominick next identifies that trial counsel was ineffective for not

investigating, obtaining, or presenting a bloodstain pattern expert.

      When raising a claim of ineffectiveness for the failure to call a
      potential witness, a petitioner satisfies the performance and
      prejudice requirements of the Strickland test by establishing
      that: (1) the witness existed; (2) the witness was available to
      testify for the defense; (3) counsel knew of, or should have known
      of, the existence of the witness; (4) the witness was willing to
      testify for the defense; and (5) the absence of the testimony of
      the witness was so prejudicial as to have denied the defendant a

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      fair trial.

Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012). To establish

Strickland prejudice, a petitioner must demonstrate how the uncalled

witnesses' testimony would have been beneficial under the circumstances of

the case. See id., at 1109. “Thus, counsel will not be found ineffective for

failing to call a witness unless the petitioner can show that the witness's

testimony would have been helpful to the defense.” Id. Moreover, “[a] failure

to call a witness is not per se ineffective assistance of counsel for such decision

usually involves matters of trial strategy.” Id.

      Dominick contends “that a bloodstain expert would have been beneficial

to the defense.” Appellant’s Brief, at 26. Dominick bolsters this assertion via

testimony adduced from a bloodstain pattern expert at one of his PCRA

hearings. There, the expert stated that the fatal shot “could have been fired

from the driver’s seat or the rear passenger seat.” PCRA Hearing, N.T.,

11/1/18, at 27. The expert then went on to opine that neither position of the

shooter was more likely than the other. See id. In effect, Dominick suggests

that his PCRA bloodstain expert could have controverted the Commonwealth’s

theory of the case, adding a series of “could haves” to the respective actions

of Dominick, Pal, and Bonacci prior to Bonacci’s death. See Appellant’s Brief,

at 27-28. Furthermore, Dominick focuses on his expert’s opinion that the

Commonwealth’s bloodstain expert’s conclusions were “non-scientific” and

lacked the requisite empirical support. PCRA Hearing, N.T., 11/1/18, at 28-


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29.

      Dominick also illuminates trial counsel’s testimony as to why he did not

call a bloodstain expert. In his own words, trial counsel was suspicious of the

Commonwealth’s failure to present the testimony of Paul Kish. See PCRA

Hearing, N.T., 10/16/17, at 103-04, 106 (explaining that the Commonwealth

reached out to Kish, a bloodstain expert, author, and trainer of the

Commonwealth’s bloodstain expert, but that Kish never responded to the

Commonwealth). Accordingly, to Dominick, “if counsel reasonably believed

[that potential expert’s] failure to write a report meant he did not agree with

the prosecution’s theory regarding the bloodstain evidence, it made obtaining

and consulting a blood stain expert more necessary.” Appellant’s Brief, at 29-

30.

      In response, trial counsel indicated he was afraid of the possibility that

if he were to have obtained an expert that supported the Commonwealth’s

theory of the case, he would have been required to turn over that evidence.

See PCRA Hearing, N.T., 10/16/17, at 104-05. Trial counsel, instead, decided

that the best course of action was to utilize the reports of forensic pathologists

and firearms experts to bolster his case as well as thoroughly cross-examine

the opinion of the bloodstain expert utilized by the Commonwealth. See id.,

at 105-06, 108-09.

      Dominick contends trial counsel’s decision to cross-examine the

Commonwealth’s bloodstain expert was made without investigation, was


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unreasonable, and did not bring to light helpful information. While trial counsel

utilized a relevant treatise, written by the apparent mentor of the bloodstain

expert, to cross-examine that individual, Dominick takes issue with counsel’s

“limited understanding of its content and [that he] disregarded numerous,

relevant chapters which would have shown [the bloodstain expert’s] analysis

was improperly performed and his opinions were nonscientific.” Appellant’s

Brief, at 36.

      Dominick highlights that trial counsel never questioned the expert’s

methodology and that various elements of the Commonwealth’s expert’s

testimony, such as his phraseology, were inaccurate or inconsistent with other

experts in that specific field. Dominick then proceeds to illuminate problems

with the Commonwealth’s expert and suggests relevant questions that were

not asked of that expert during cross-examination. Ultimately, Dominick

suggests that the Commonwealth’s bloodstain expert did not use proper

methodology that would have been necessary to achieve accurate results nor

did that expert describe having conducted any sort of replicative experiments,

which Dominick asserts were required for scientific validity.

      Preliminarily, we emphasize that “[t]rial counsel need not introduce

expert testimony on his client's behalf if he is able effectively to cross-examine

prosecution witnesses and elicit helpful testimony. Additionally, trial counsel

will not be deemed ineffective for failing to call a medical, forensic, or scientific

expert merely to critically evaluate expert testimony [that] was presented by


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the prosecution.” Chmiel, 30 A.3d at 1143 (Pa. 2011) (citation omitted)

(brackets in original). However, if cross-examination is the tactic employed,

the critical question is whether trial counsel effectively conducted cross-

examination. See id.

      At trial, counsel cross-examined several of the police detectives,

including the bloodstain pattern expert, as to why Kish was never called as a

witness or offered a report. See N.T., 5/5/14, at 31-33, 113-14, 221-22. In

addition, trial counsel cross-examined the bloodstain expert to either develop

potentially damaging testimony or cast doubt on his veracity. These cross-

examination topics included: 1) the expert’s admission that he did not take

into account blood patterns that alter appearance over time due to various

factors; 2) bringing awareness to the fact that there was a nine-day delay in

finding Bonacci’s body; 3) various environmental factors that could have had

an effect on conclusions drawn from the bloodstains; 4) the inertia of Bonacci’s

body and the vehicle itself as both descended into the embankment where

Bonacci would ultimately be found; and 5) the effects of the coroner’s powder

that could have contaminated the vehicle. See id., 5/5/14, at 210-215, 220-

21, 226, 5/8/14, at 209, 225. At the subsequent PCRA hearing, when asked

for an explanation into his trial tactics, counsel also highlighted the inherently

risky nature of finding or attempting to find his own expert on the issue: if

that expert ended up refuting the defense’s theory of the case, he would be

doing harm to his client given the necessity to disclose the same to the


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Commonwealth. See PCRA Hearing, N.T., 10/16/17, at 104-05.

        The biggest issue with Dominick’s supposition that an expert was

necessary is the fact that the expert testimony he now provides does not reach

any ultimate conclusion as to the identity of the shooter. In fact, Dominick’s

PCRA expert expressly disavowed any ability to testify with any certainty as

to whether Dominick was the shooter. See PCRA Hearing, N.T., 11/1/18, at

102. Moreover, as he concedes, the two opinions rendered by trial counsel’s

ballistics expert and PCRA counsel’s bloodstain expert “are virtually identical,”

Appellant’s Brief, at 33, with both highlighting the ambiguity associated with

where the shot was fired from. However, trial counsel’s ballistics expert, unlike

PCRA counsel’s bloodstain expert, went one step further by stating that it was

more likely to have been the driver, who would have been Pal, that fired the

shot.

        We are unable to ascertain how Dominick has been prejudiced by not

being able to call a bloodstain expert witness. The expert presented during

the PCRA hearing was unable to directly repudiate, with any kind of certainty,

that Dominick was the shooter. Using Dominick’s own words that his ballistics

expert at trial and current bloodstain expert’s opinions were essentially

identical, even excepting the fact that the PCRA expert does not reach any

ultimate conclusion, it strains credulity to think that another expert’s opinion

at trial would not have been duplicative and unnecessary. Likewise, trial

counsel’s cross-examination of the Commonwealth’s bloodstain expert


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presented the same issues to the jury. As a result, we cannot say that he was

ineffective in failing to call a bloodstain expert. Accordingly, Dominick has

failed to demonstrate ineffective assistance of counsel on this point.

      Largely overlapping his expert-based argument, Dominick next believes

trial counsel was ineffective when he did not request nor have additional

testing done of the bloodstain pattern evidence. Dominick contends that trial

counsel’s research into the issue of bloodstain evidence was superficial, and

in spite of needing to do so, counsel did not view such evidence with any kind

of importance. Dominick illuminates a portion of trial counsel’s testimony

where he stated that sometimes, things are overlooked by mistake, and other

times, things are overlooked for a particular reason, primarily due to risking

the defense’s theory of the case. See PCRA Hearing, N.T., 10/16/17, at 133.

Also, Dominick points to trial counsel’s admission that he was not worried

about where the shot ultimately ended up or that “the bloodletting and all the

evidence that was in the car” was important. Id., at 131.

      “In   general,    counsel   has   an   obligation    to    conduct       reasonable

investigations or      reach reasonable      decisions    that   make      a    particular

investigation unnecessary.” Commonwealth v. Hughes, 865 A.2d 761, 813

(Pa. 2004). “Where counsel has made a strategic decision after a thorough

investigation of law and facts, it is virtually unchallengeable; strategic choices

made following a less than complete investigation are reasonable precisely to

the extent that reasonable professional judgment supports the limitation of


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the investigation.” Commonwealth v. Timchak, 69 A.3d 765, 770 (Pa.

Super. 2013) (citation omitted). In addition to our reasonableness inquiry, we

are   also   to   give   a   heavy   deference   to   counsel’s   judgments.   See

Commonwealth v. Williams, 141 A.3d 440, 463 (Pa. 2016).

      While trial counsel should have conducted at least a reasonable

independent inquiry into the saliency of the Commonwealth’s evidence instead

of dismissing it as “garbage,” PCRA Hearing, N.T., 10/16/17, at 108, just as

with the asserted need for an expert, we fail to see how the outcome would

have been different had a more rigorous investigation been undertaken. First,

it is unclear how trial counsel’s investigation would have materially differed

from the findings offered by the bloodstain expert at the PCRA hearing. Other

than speculation or paralleling his earlier arguments, Dominick is not

suggesting that there is an expert available who would unequivocally opine

that Dominick was not the shooter. If anything, having had an expert who

would testify identically to the testimony taken at the PCRA hearing could have

weakened Dominick’s position, as it would have cut against the ballistics

expert’s conclusion as to where the bullet was fired from. See N.T., 5/7/14,

at 141-42; PCRA Hearing, N.T., 11/1/18, at 80-82, 89, 102. Second, counsel’s

chosen course of action was to attack the credibility of the Commonwealth’s

expert, a decision we must grant great deference to, which he did by way of

using an expert treatise on the subject as well as casting doubt on the

legitimacy of the expert’s conclusions. Third, Dominick had the benefit of two


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other experts, albeit in fields distinct from bloodstains, that provided

invaluable evidence in Dominick’s favor. We conclude that Dominick has failed

to establish any prejudice from counsel’s decision to not further investigate

the bloodstain evidence.

      In a third, yet related, argument, Dominick states that trial counsel

should have conducted testing on the shattered glass and gun powder residue,

as requested by his ballistics expert. That expert sought to compare different

glass fragments that were recovered by Dominick’s private investigator and

conduct further gunshot residue tests of the passenger seat cover found in

Bonacci’s vehicle. While trial counsel claims that a request for glass testing

was made while in the trial court’s chambers, see PCRA Hearing, N.T.,

10/16/17, at 122-23, there is no record of that having happened.

      In either event, Dominick concludes by portraying trial counsel’s actions

as having been entirely untimely or wholly unreasonable given his deficient

investigation. Stated differently, Dominick contends that had additional

testing taken place, it would have added more beneficial evidence to the

defense’s theory that two shots were fired and it was more likely than not that

the driver shot the victim.

      In response to the ballistic expert’s suggestion that more testing was

needed, the Commonwealth asserted that as to the seat cover testing, not

only would it have required a continuance of the trial, but the company that

was to administer the testing “neglected to advise the parties of the nature


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and purpose of the test, what the test would ultimately demonstrate, how long

they would need to conduct the test, or how it could affect any of their

conclusions.” Appellee’s Brief, at 38. Likewise, the glass fragments that the

ballistics expert suggested should be tested were found eight months after

Bonacci’s body was discovered and were located some ways away from the

crime scene adjacent to or on a nearby pathway.

      While indigent defendants are afforded the same right to access the

same resources as non-indigent defendants in criminal proceedings, “[t]here

must be some showing as to the relevancy of the proposed expert testimony

before such a request will be granted.” Commonwealth v. Tighe, 184 A.3d

560, 580 (Pa. Super. 2018) (citation omitted). Utilizing public funds “to hire

experts in the defense against criminal charges is a decision vested in the

sound discretion of the court and a denial thereof will not be reversed absent

an abuse of discretion.” Id. (citation omitted).

      Regarding the testing of glass fragments, it would not have been an

abuse of discretion for the trial court to conclude that such a request either

was or would have been irrelevant given the fragments’ proximity to the crime

scene as well as date those fragments were found. As the trial court noted,

the fragments were found by Dominick’s private investigator on a frequently

traversed access road months after the murder took place. See Trial Court

Opinion, 6/7/19, at 64-65. Ultimately, the glass fragments were deemed to

be of “dubious relevance and questionable origin.” Id., at 66. Even now,


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Dominick does not attempt to provide any further explanation or proof that

could possibly tie the existence of those glass fragments to Bonacci’s vehicle.

His failure to demonstrate relevancy beyond making bald assertions leads us

to conclude that Dominick has failed to establish arguable merit. Even if trial

counsel would have requested, on the record, glass fragment testing, we

cannot conclude it would have been granted.

      On the issue of gunshot residue, it was not ineffective assistance of

counsel for trial counsel to not seek additional testing of the seat cover. After

testing had already been performed on the seat cover, the ballistics expert

concluded by saying that “[t]o come to further more specific conclusions, we

need to do more testing.” N.T., 5/7/14, at 161. In context, this desire for more

testing came on the heels of the testing company’s finding and expert’s

interpretation, suggesting that the gun was fired from the front seat of the

vehicle. However, there was no further explanation provided to the court or

the Commonwealth or even trial counsel, himself, as to how this newly

suggested testing would be performed and how it would differ from the testing

that had already been conducted. Even accepting the unclear nature of what

further, seemingly duplicative, testing would have uncovered, trial counsel

would have needed to seek an additional continuance of trial. Since the trial

date had already been altered due to previous continuances, the trial court

indicates that counsel would not “have succeeded in securing another

continuance for additional testing to be completed.” Id. We find no error in


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the PCRA court’s conclusion that Dominick failed to establish this claim had

arguable merit. As a result, he failed to establish that counsel was ineffective

for failing to timely request further residue testing of the seat cover.

      Dominick next claims that trial counsel was ineffective when he failed to

admit his ballistics expert’s fifty-five page curriculum vitae into evidence and

also failed to object to a redacted version of that expert’s report being

provided to the jury. At trial, the Commonwealth stipulated to the expert’s

qualifications. See N.T., 5/7/14, at 132-33, 5/8/14, at 67. However, because

trial counsel never admitted the curriculum vitae into evidence, when the jury

requested that document, the prosecution objected, and resultantly, the jury

was not able to see it. See id., 5/8/14, at 67. After reflecting on this inaction,

trial counsel admitted to having made a mistake by not seeking the curriculum

vitae’s admission. See PCRA Hearing, N.T., 10/16/17, at 52-53, 64-65.

      Generally, “the jury may take with it [during deliberations] such exhibits

as the trial judge deems proper.” Pa.R.Crim.P. 646(A). However, certain items

are excluded, such as a transcript of any trial testimony. See, e.g.,

Pa.R.Crim.P. 646(C)(1). “[W]hether an exhibit should be allowed to go out

with the jury during deliberation is within the discretion of the trial judge, and

such decision will not be overturned absent an abuse of discretion.”

Commonwealth v. Dupre, 866 A.2d 1089, 1102 (Pa. Super. 2005) (citation

omitted). However, the plain language of Rule 646 requires this material

provided to the jury to be previously entered as an exhibit.


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      We once again conclude Dominick has failed to demonstrate prejudice.

In his testimony, the ballistics expert went through all of the areas highlighted

in his curriculum vitae: (1) his extensive firearms training; (2) his extensive

employment as a professional firearms trainer, training police, police

instructors, federal agents, SWAT teams, military personnel, and security

personnel; (3) his position as a board member of the International Association

of Law Enforcement Firearms Instructors; (4) his experiences evaluating

shootings; (5) his previous experience as an expert witness in over 250 cases;

(6) his background knowledge, through writing large portions of police training

curriculum and his own experiences, regarding the rare likelihood that anyone

would transfer a gun to his non-dominant hand to fire it (part of Dominick’s

theory of the case, casting doubt on his likelihood as the shooter); and (7) his

educational experience, graduating from Yale University and Harvard Law

School. See N.T., 5/7/14, at 142-44, 170-71. Given the broad and

comprehensive overview of the expert’s qualifications that were adduced

through testimony, Dominick has failed to demonstrate prejudice. In his brief,

there is no specific mention of any crucial pieces of information that the jury

did not have the benefit of hearing absent having physically reviewed the

expert’s curriculum vitae or how having that information would have altered

the course of the trial. Accordingly, we can find no error in the PCRA court’s

determination that Dominick has failed to demonstrate ineffective assistance

of counsel.


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      As a result, we also cannot conclude that the PCRA court erred in ruling

that it was also not ineffective assistance of counsel for trial counsel having

failed to object to the ballistic expert’s redacted report. The trial court

indicated that it would provide the jury with a redacted report that exclusively

encompassed topics that were testified to at trial. See N.T., 5/8/14, at 67.

      Trial counsel did argue before the court that the expert’s report should

include information beyond that of the redacted copy. See id., at 74-75, 78.

Moreover, the court expressed its concern for potential prejudice that could

ensue if the jury would see that the report identified the expert as having been

paid by taxpayers. See id., 5/7/14, at 128-29. However, as Dominick notes,

“[t]he redacted report was never admitted into evidence nor is it part of the

record.” Appellant’s Brief, at 54 n.29.

      A trial court may redact expert reports provided to the jury if the jury

did not hear that information at trial. See Commonwealth v. Causey, 833

A.2d 165, 178 (Pa. Super. 2003). In his report, the expert discussed his busy

schedule, other cases he was contending with, and his request for additional

funding. See N.T., 5/8/14, at 72-75. Those portions were redacted. Other

redacted components included the expert’s discussion on what further gunshot

residue testing might demonstrate, as it was deemed to be speculative in

nature. See id., at 76-77. Conversely, the trial court did not redact his

analysis and findings to which he testified at trial. See id., at 75-81.

      Dominick does not identify any specific line located in the expert report


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that, by virtue of its omission, could be considered enough to have caused

him prejudice and therefore altered the outcome of the trial. In fact, other

than his bald conclusion that “the outcome could have been different,”

Appellant’s Brief, at 55, Dominick fails to indicate how any of the redacted

pieces of information materially prejudiced him. As a result, we can find no

error in the PCRA court’s conclusion that Dominick failed to establish that

counsel was ineffective by failing to object to the redaction of the expert

report.

      Lastly, Dominick contends that the prosecution’s closing argument was

unconstitutionally suggestive, and as a result, counsel was ineffective for

failing to object to it. Specifically, Dominick points to the Commonwealth

having indicated to the jury that Dominick had to conjure up a story and find

a way to navigate through a “minefield sea of lies and deceptions” in order to

present his side of the case. N.T., 5/8/14, at 4. Dominick asserts that the

Commonwealth impermissibly suggested that trial counsel had acted

unethically and knowingly participated in presenting false evidence to the jury.

See Appellant’s Brief, at 57.

      A prosecutor has “reasonable latitude” to argue a defendant’s guilt. See

Commonwealth v. Clancy, 192 A.3d 44, 62 (Pa. 2018). Therefore, “the

underlying issues and elements at trial dictate the bounds of permissible

argument.” Id. Accordingly, Pennsylvania courts must “evaluate both the

substance of the challenged remark and its effect upon the jury.” Id.


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“Prosecutorial comments based on the evidence or reasonable inferences

therefrom are not objectionable, nor are comments that merely constitute

oratorical flair.” Chmiel, 30 A.3d at 1146 (Pa. 2011). Any comment that is

challenged must be considered in the context in which it was offered, not in

isolation. See id.

      The gravamen of Dominick’s argument on this issue is that the

prosecution’s comments “indicated trial counsel was complicit or party to

manufacturing [Dominick’s] lies.” Appellant’s Brief, at 57. Dominick contends

that the Commonwealth implicitly indicated that “counsel acted unethically”

because counsel “not only allowed false testimony but played a role in

conjuring it up.” Id. Therefore, Dominick believes he “was prejudiced by the

comments since [it] likely tarnished counsel’s credibility in front of the jury.”

Id.

      Dominick’s characterization of the Commonwealth’s closing stretched

credulity. As quoted by Dominick in his brief, the part of the argument at

issues is as follows:

      Make no mistake about it. If believed, his [Dominick’s] words are
      devastating. If believed, his words demonstrate he, in fact is a killer and
      the person who killed Frank Bonacci. The only way it doesn’t is if you
      believe the excuses, if you believe the context that’s been conjured up
      over the course of nine months of meeting twice a week with his lawyer,
      of understanding the angles to the case and then coming front each of
      you over the course of two days and finding a way to navigate a
      minefield sea of lies and deceptions and that’s a choice.

Id., citing N.T., 5/8/2014, at 4 (emphasis in Appellant’s Brief).

      We    do   not    read   the   Commonwealth’s     closing   statement   as

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unconstitutionally implicating trial counsel in some sort of scheme to promote

lies. The only explicit reference to trial counsel in the challenged statement is

where the Commonwealth indicated that Dominick met with his lawyer twice

a week for nine months. There is no other insinuation, other than Dominick

himself crafting the narrative that conflicted with the Commonwealth’s theory

of the case, that trial counsel was responsible for Dominick’s alleged

fabrication. In fact, when questioned, trial counsel did not believe that the

prosecution had accused him of lying or of having committed any other

nefarious or unethical act. See PCRA Hearing, N.T., 10/16/17, at 183. We

cannot conclude that the PCRA court erred in concluding that this claim lacked

any arguable merit. Accordingly, Dominick failed to establish that trial counsel

was ineffective for failing to object to the Commonwealth’s closing statement.

      As none of the individual issues raised by Dominick constitute ineffective

assistance of counsel, we affirm the PCRA court’s order denying his petition.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/27/2020


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