J-S58018-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                         IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

MARK M. FISHER,

                            Appellant                     No. 1992 WDA 2013


           Appeal from the PCRA Order Entered November 25, 2013
             In the Court of Common Pleas of Washington County
             Criminal Division at No(s): CP-63-CR-0002149-2007


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                        FILED SEPTEMBER 26, 2014



2013 order denying his petition for relief filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.               Appellant raises

nine claims of ineffective assistance of counsel (IAC). After careful review,

we affirm.

        Following a jury trial in September of 2008, Appellant was convicted of

second-degree murder, two counts of robbery, burglary, aggravated assault,

unlawful restraint, false impersonation of a private employee, reckless

endangerment, and conspiracy.


        criminal   event    that   occurred    on   January   29,   2003.    At
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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     approximately 1:00 p.m. on the day in question, Thomas Miller,
     a retired customer service representative for Equitable Gas
     Company, observed three males who appeared to be about
     twenty years old and who were wearing outdated Equitable Gas
     Company attire. They were walking up the driveway of the
     residence of Shannon and Freda Dale on 613 Venetia Road,
     Venetia, Washington County. Mr. Dale was eighty-nine years old,
     and Mrs. Dale was ninety years old.

            Mr. Dale was standing outside his home when he was
     approached by a Caucasian male who was wearing the vest of a
     utility worker and was between thirty to forty years old. Mr. Dale
     allowed the man into his home after the man said that he was
     employed by the gas company and needed to enter the house to
     perform work. When Mr. Dale entered his house, he saw three
     other men assaulting his wife. Mr. Dale and his wife were bound
     with duct tape. Mr. Dale then was struck repeatedly on the head
     and face, kicked in the torso, and had his finger twisted so that
     he would respond to questioning about the location of his
     money. The four men proceeded to ransack the Dale home.

           At approximately 3:00 p.m., Julia Heppner, a caregiver to
     the Dales, arrived at the residence. The garage door was open[],
                                            he kitchen table and [the]
     contents had been removed from that item. As Ms. Heppner
     looked into the hallway adjacent to the kitchen, she saw Mrs.
     Dale lying on the floor bound by duct tape. Ms. Heppner began
     to search for a telephone when she heard Mr. Dale cry for help.
     She found Mr. Dale badly beaten. The telephone had been pulled
     from the wall, so Ms. Heppner drove to a nearby store and
     telephoned police from that location.

            Peters Township Police Sergeant Donald E. Heinlein and
     Peters Township Police Officer Brian Barbour responded to the
     call. At that time, there was a substantial amount of snow on the
     ground. When the police officers arrived, they discovered that
     Mrs. Dale was dead. The coroner testified that she died from a
     heart attack that was caused by the attack. Mr. Dale was
     bleeding from his face, had cuts and bruises on his face, and had
     bruising in his right rib area. Brian Shugar, the EMS supervisor
     who arrived at the scene shortly after the police, stated that Mr.
     Dale appeared severely beaten and that Mr. Dale told Mr. Shugar
     that he had been hit in the head as well as kicked in the chest.
     Mr. Dale was transported to the hospital where it was discovered
     that three teeth had been knocked from his upper denture plate,

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      and he had sustained a significant injury to his right eye, a
      fractured rib, a twisted and swollen finger, and multiple prick-
      like injuries on his lower legs.

            Sergeant Heinlein and Officer Barbour found that the Dale
      house, which was always very tidy, had been ransacked. All of
      the drawers were pulled from furniture located in the bedroom
      and dining room. The contents of the dining room drawers had
      been riffled through and thrown into a large pile on the floor.

      pile of pape
      ankles contained her DNA as well as DNA of a male. The male
      DNA could not be excluded as belonging to Appellant in that only
      one in 14,000 individuals in the Caucasian population would be
      expected to be included as a potential contributor to the mixture
      of DNA contained on the duct tape that bound Mrs. Dale. Six
      days after the crime, the snow had melted, and police
      discovered a cigarette butt just outside the Dale home. Police
      ascertained that neither the Dales[,] nor did anyone who came
      to their house[,] smoked. Therefore, police took the burnt
      cigarette and had it tested for DNA. DNA was recovered from the

      nineteen years old on the day of the incident.

            Mr. Dale died on February 7, 2008. Prior to his death, he
      indicated that he could identify the perpetrator who approached
      him on January 29, 2003. Police showed him a photographic
      array on March 19, 2003, and he chose the picture of a man
      named Michael Marks as that man. Mr. Marks was initially
      charged in connection with this crime, but when no other
      evidence was found to link him to the incident, those charges
      were withdrawn. At trial, Appellant presented an alibi defense.
      His mother and sister-in-law testified that he was in Texarkana,
      Arkansas, on January 29, 2003.

Commonwealth v. Fisher, No. 49 WDA 2009, unpublished memorandum

at 1-4 (Pa. Super. filed June 7, 2010) (footnote omitted).

      After Appellant was convicted of the above-stated offenses, he was

sentenced to an aggregate term of life imprisonment without the possibility

of parole.   Appellant filed a timely notice of appeal and, after this Court



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affirmed his judgment of sentence, our Supreme Court denied his petition

for allowance of appeal on February 9, 2011. Commonwealth v. Fisher, 6

A.3d 547 (Pa. Super. 2010) (unpublished memorandum), appeal denied, 15

A.3d 489 (Pa. 2011).

      Appellant filed a timely counseled PCRA petition on February 8, 2012,

raising nine IAC claims involving the representation of his trial counsel,

Glenn Alterio, Esq.    On February 6, 2013, the PCRA court conducted an

evidentiary hearing, at which Attorney Alterio and Appellant testified.       On



petition.   He filed a timely notice of appeal and, herein, he raises the

following nine issues for our review:

      A. Did the PCRA [c]ourt err in failing to find that [t]rial [c]ounsel
      rendered [IAC] when he failed to request a jury instruction
      informing the jury on the manner in which they should consider
      the presentation of DNA evidence?

      B. Did the PCRA [c]ourt err in failing to find that [t]rial [c]ounsel
      rendered [IAC] in failing to request a line-up involving
      [Appellant] and, thereby, deprived [Appellant] of a fair trial?

      C. Did the PCRA [c]ourt err in failing to find that [t]rial [c]ounsel
      rendered [IAC] in failing to preserve the testimony of Mr. Dale as
      to the identification of the actual perpetrator where the failure
      resulted in the exclusion of material evidence indicating that Mr.
      Dale had specifically identified Michael Marks[], rather than
      [Appellant], as a perpetrator?

      D. Did the PCRA [c]ourt err in failing to find that [t]rial [c]ounsel
      rendered [IAC] when he failed to request a continuance of trial
      and obtain the services of an expert in the fields of DNA analysis
      and fingerprint identification?

      E. Did the PCRA [c]ourt err in failing to find that [t]rial [c]ounsel
      rendered [IAC] in failing to object or file a motion in limine to

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      preclude the hearsay testimony of Sergeant Kevin Kolson

      fit within any exception to the hearsay rule?

      F. Did the PCRA [c]ourt err in failing to find that [t]rial [c]ounsel
      rendered [IAC] in failing to object or in failing to file a motion in
      limine to preclude the hearsay statements of Mr. Dale brought in
      through Sergeant Kevin Kolson, the admission of which were in
      violation of the Confrontation Clause, Sixth Amendment[] of the
      United States Constitution and Article 1, § 9 of the Pennsylvania
      Constitution?

      G. Did the PCRA [c]ourt err in failing to find that [t]rial [c]ounsel
      rendered [IAC] by failing to argue that the out-of-court
      statement of Shannon Dale, concerning his identification of
      Michael Marks, was admissible pursuant to the Due Process
      exception to the hearsay rule?

      H. Did the PCRA [c]ourt err in failing to find that [Appellant] was
      denied effective assistance of counsel when [t]rial [c]ounsel
      failed to object to misleading questions by the Assistant District
      Atto
      failure to immediately notify law enforcement officers they were
      with [Appellant] on the date of the crime?

      I. Did the PCRA [c]ourt err in failing to find that [Appellant] was
      denied effective assistance of counsel when [t]rial [c]ounsel
      failed to object when the Assistant District Attorney cross[-]
      examined alibi witness, Karyl Fisher[,] about her conviction for
      hindering the apprehension of a criminal in that the offense was
      not crimen falsi?

Ap



standard of review from the grant or denial of post-conviction relief is limited



evidence of                                                 Commonwealth v.

Morales, 701 A.2d 516, 520 (Pa. 1997) (citing Commonwealth v.

Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)). Where, as here, a petitioner


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claims that he received ineffective assistance of counsel, our Supreme Court

has stated that:

      [A] PCRA petitioner will be granted relief only when he proves,
      by a preponderance of the evidence, that his conviction or

      which, in the circumstances of the particular case, so
      undermined the truth-determining process that no reliable


      constitutionally adequate, and counsel will only be deemed
      ineffective upon a sufficient showing by the petitioner. To obtain

      was deficient and that the deficiency prejudiced the petitioner. A
      petitioner establishes prejudice when he demonstrat

      unprofessional errors, the result of the proceeding would have

      posits that: (1) the underlying legal issue has arguable merit;


      omission.

Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations

omitted).

      Appellant first contends that Attorney Alterio rendered ineffective

assistance by not requesting a special jury instruction regarding how the

jury should evaluate the DNA evidence presented by the Commonwealth.



sought an instruction similar to the following:

      You have heard testimony about frequency estimates calculated
      for matches between known reference DNA samples and some of
      the DNA evidence items in this case. You have heard testimony
      concerning fingerprint evidence on an item at the scene. The
      random match probability statistics used by DNA experts and the

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      expert testimony regarding the presence of fingerprint evidence
      is not the equivalent of a statistic that tells you the likelihood of
      whether a defendant actually committed a crime or was involved
      in the perpetration of a crime. Neither the presence of DNA or
      fingerprint evidence conclusively establishes that the Defendant
      was present at the Dale residence on the date of the criminal
      activity or that he was a perpetrator in the criminal activity. It is
      evidence being submitted to you for the purpose of showing that
      DNA and fingerprint evidence were found at the Dale residence
      and you, as the finder of fact, must consider and determine what
      significance to attach to the testing results and their presence at
      the scene.

Id. at 23.

      In rejecting this claim, the PCRA court initially concluded that



the evidence to sustain his convictions, which was previously litigated on

direct appeal. See PCRA Court Opinion (PCO), 11/25/13, at 8. The court

further determined that Attorney Alterio had a reasonable explanation for

not requesting a special jury instruction regarding DNA evidence. See id. at

8-

regards.

      However, we are compelled to address one argument Appellant raises

on appeal. He states:

             At the time of the PCRA proceedings, it was anticipated the
      failure of [t]rial [c]ounsel might be excused by the [PCRA]
      [c]ourt because there is no case law on point requiring such an
      instruction and that such an instruction is not contained in the
      standard criminal jury instructions in Pennsylvania. That was
      exactly how the PCRA [c]ourt ruled in finding that the prongs of
      the ineffective assistance of counsel standard had not been met.

           What the PCRA [c]ourt overlooked and what this Honorable
      Court should not overlook is that, though the standard jury


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      instructions do not provide this specific instruction or there is no
      case on point, to summarily render a conclusion that such
      instruction is unnecessary is misplaced.        Simply because a
      standard jury instruction has yet to be provided or an appellate
      case may not point out that a particular instruction is required,

      that fits the case and, if rejected by the trial court, [to] attempt
      to make new law.




ineffectively.   It is well-



Commonwealth v. Gribble, 863 A.2d 455, 464 (Pa. 2004) (citing

Commonwealth v. Ogrod, 839 A.2d 294 (Pa. 2003); Commonwealth v.

Carpenter, 725 A.2d 154 (Pa. 1999)). Similarly, we decline to find Attorney

Alterio ineffective for not attempting to instigate a change in the law

regarding jury instructions on DNA evidence. While certainly, counsel could

have requested the above-stated jury instruction, he was not obligated to do



the law as it stands today. See Commonwealth v. Spotz, 896 A.2d 1191,

1238 (Pa. 2006) (declining to find counsel ineffective for failing to request a

jury instruction that was first required by a case decided three years after

                                                                              t

demonstrate that trial counsel was ineffective under the law in existence at



rendered ineffective representation.



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                                                                  erio acted

ineffectively by failing to request that Appellant participate in a pre-trial

lineup.   After reviewing the briefs of the parties, the record, and the



addresses this claim of ineffectiveness.   Accordingly, we adopt the PCRA

                             See PCO at 9-10.




compel Mr. Dale to



had a reasonable basis for his conduct. Specifically, Attorney Alterio feared

that if Mr. Dale took the stand during the preliminary hearing, he would

identify Appellant as one of the assailants. See N.T. PCRA Hearing, 2/6/13,

at 25-

with the court that Attorney Alterio had a reasonable strategy for not

seeking to have Mr. Dale testify at the preliminary hearing. See PCO at 10-

11.

      However, the PCRA court did not address an alternative argument



Attorney Alterio could have moved for Mr. D

preserved prior to trial under Pa.R.Crim.P. 500 (permitting a party to move




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could have waived his right to be present during the taking of such



identify Appellant.    As such, Appellant argues that Attorney Alterio had no

reasonable strategy for not seeking

testimony under Rule 500.



Attorney Alterio regarding the Rule 500 issue as follows:


      Rule of Criminal Procedure 500, you could have moved the Court


      [Attorney Alterio:] Yes.




      interject, but



      The
      want to take a chance that if Mr. Dale got on the stand and saw
      your client sitting there that he would [identify] him?



      The Court: Okay, I understand. Go on Counsel, thank you.



      assisted the defense?

      [Attorney Alterio:] Yes.


      question as [to] why you did not attempt to preserve his

      chance that he might identify [Appellant] as the perpetrator?



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      [Attorney Alterio:] Yes, since he had already given his
      statements to the police and [they] were part of the official
      record.




      [Attorney Alterio:] That probably is true. I think that is correct.

PCRA Hearing at 26-27.

to question Attorney Alterio about another unrelated issue. Id. at 27.

      It is apparent from this testimony that Appellant did not specifically

confront Attorney Alterio with the fact that Appellant could have waived his



identifying Appellant as one of the perpetrators. Because Appellant did not

raise this specific assertion at the PCRA hearing, Attorney Alterio did not

state whether he considered - or why he declined - the option of invoking



that this Court must presume that Attorney Alterio had a reasonable basis

                                                   to prove otherwise.      See

Commonwealth v. Williams, 980 A.2d 510, 520 (Pa. 2009) (stating that




reason

record, Appellant has failed to satisfy that burden of proof.



ineffective assistance when he failed to request a continuance of trial to

obtain the services of experts in the fields of DNA and fingerprint analysis.


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See PCO at 11-13.




there were any potential weaknesses in the DNA evidence which he could



that:

        A review of Sample Q6, being the sample taken from the duct

        mixture of DNA from Mrs. Dale and [Appellant], discloses no
        signal or flag in the category for [fibrinogen alpha chain (FGA)].
        The lack of any signal in the FGA category is strong evidence
        that [Appellant] did not contribute to the mixture.

Id.

        Appellant did not present any evidence (such as the testimony of a



                                                     -                   - basis

upon      which    Attorney    Alterio     could   have   cross-examined     the




on cross-examination.



Appellant essentially argues that Attorney Alterio erred by not objecting to,


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                                      de the Dale residence during the attack.

The PCRA court concluded, inter alia, that counsel had a reasonable basis for



                   -reasoned analysis in regard to both of these issues. See

PCO at 13-18.

      We add, however, that Appellant has also failed to prove he was




this point is hi

the description of the aftermath[,] was not only prejudicial, but [it was] also



                                               ence regarding the state in which

both victims were found (i.e. lying on the floor bound with duct tape, Mrs.

Dale deceased, and Mr. Dale badly beaten), as well as descriptions of the

injuries suffered by the Dales. In light of this evidence, we fail to see the



Kolson describing that he was bound with duct tape and beaten severely by

the perpetrators as they demanded money and ransacked his home.

Accordingly, even if Attorney Alterio should have objected to the admission



prejudiced by this purported error.




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was ineffective for failing to argue that the out-of-court statement of Mr.

Dale, in which he identified Michael Marks as one of the perpetrators, was




this issue. See PCO at 18-24.



in which he avers that Attorney Alterio acted ineffectively by failing to object




notify law enforcement officers [that] they were with [Appellant] on the date



our own regarding this claim. See PCO at 24-30.



should have objected when the Commonwealth cross-examined Karyl Fisher

regarding her prior conviction for hindering the apprehension of a criminal



issue. See PCO at 30-




Fisher denied her crime involved a false statement to police, Attorney Alterio




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                                                                   hindering

apprehension conviction.



line of questioning, Appellant has not proven that he was prejudiced by



h

prove that had Attorney Alterio objected, the Commonwealth could not have

responded with proof that Fisher did admit to lying to police when pleading

guilty to that offense.    Thus, he has failed to prove that an objection by

Attorney Alterio would have been sustained.




hindering apprehension offense is insufficient to prove prejudice. Appellant




                                                                rief at 68.

However, as the Commonwealth points out,

      [t]he jury could have discredited the testimony of Karyl Fisher
      for a variety of reasons (e.g., her delayed reporting to law
      enforcement, her familial relationship with [Appellant] and
      obvious motive to lie in order to protect him, the fact that


      items both inside and outside of the home, etc.).

                              -46. Th

We cannot agree with Appellant that there is a reasonable probability the

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hindering apprehension offense.   Thus, Appellant failed to prove he was



     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/26/2014




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