J-S18030-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    STEVEN CARL COLEGROVE                      :
                                               :
                       Appellant               :      No. 1220 MDA 2019

               Appeal from the PCRA Order Entered June 21, 2019
                In the Court of Common Pleas of Bradford County
              Criminal Division at No(s): CP-08-CR-0000785-2007


BEFORE:      KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY KING, J.:                                   FILED JULY 02, 2020

        Appellant, Steven Carl Colegrove, appeals from the order entered in the

Bradford County Court of Common Pleas, which denied his first petition filed

under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-9546.

We affirm.

        This Court has previously summarized some of the relevant facts and

procedural history of this case as follows:

           On August 8, 2007, [Appellant’s] father, Joseph Colegrove
           (“Joseph”),[1] mother, Marlene Colegrove (“Marlene”), and
           brother, Michael Colegrove (“Michael”), were each shot two
           times, including fatal wounds to the head, by a 12-gauge
           shotgun in the family home near Wyalusing, Pennsylvania.
           The circumstances surrounding the murders indicated that
____________________________________________


*   Former Justice specially assigned to the Superior Court.

1 Paternity testing performed in this case confirmed that Joseph is not the
biological father of Appellant.
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       the murders occurred between midnight and 6 a.m.;
       however, the bodies were not discovered until the late
       afternoon. Joseph and Marlene had two surviving sons,
       [Appellant] and Robert Colegrove (“Robert”). [Appellant]
       had been estranged from his parents from 1999-2005;
       however, he did have contact with Marlene and Michael prior
       to the murders. Robert had limited contact with the family
       after 2005 due to a falling out between his wife [Heather
       Colegrove (“Heather”)] and Marlene. At the time of the
       murders, [Appellant] was living in Deposit, New York, which
       was approximately 77 miles from the family home.

       [Appellant] contacted the Pennsylvania State Police
       [(“PSP”)] and agreed to be interviewed on August 9, 2007.
       At that time, [Appellant] told the police that his mother had
       purportedly written Robert out of her will and that the estate
       would be left to [Appellant] and Michael. Marlene had a life
       insurance policy worth $100,000. [Appellant] also stated
       that he never left New York State the night of the murders
       and that he had previously served honorably in the Air
       Force. [Appellant] spoke with the police again the following
       date. Prior to the interview, [Appellant] executed a Rights
       Warning and Consent Form. The interviewing troopers
       confronted [Appellant] about inconsistencies in his
       statements to police, including his military service. The
       troopers then asked [Appellant] to see his shoulder, which
       had bruising consistent with shotgun recoil. As a result,
       Trooper David Pelachick accused [Appellant] of committing
       the murders. [Appellant] denied the accusation and stated,
       “Maybe I ought to get a lawyer.” Trooper Pelachick and the
       other troopers left the room after this statement. Shortly
       thereafter, Trooper Michael Golay returned to the room and
       asked [Appellant] whether [Appellant] wished to speak to
       him. [Appellant] agreed to speak to Trooper Golay and
       stated that he had disposed of some clothes the morning of
       the murders, but not those worn the night prior to the
       murders. [Appellant] also stated that his fingerprints may
       be at the murder scene because he had visited his parents
       recently. [Appellant], however, maintained his innocence
       and stated that he did not learn of the deaths until the
       following day. [Appellant] then declined to speak about the
       matter further, after which the police arrested him.

       During the questioning, the New York State Police went to

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           [Appellant’s] residence which he shared with Robert
           Rynearson (“Rynearson”).         While there, the police
           discovered a shotgun that belonged to Rynearson.           A
           subsequent examination of the shotgun revealed Michael’s
           blood on and in the barrel of the shotgun, and that the
           shotgun matched the empty cartridges found at the scene.
           The police also determined that [Appellant] had been telling
           his friends and ex-girlfriend that he would be coming into
           money prior to the murders.

Commonwealth           v.   Colegrove,         No.   1391   MDA    2009,   unpublished

memorandum at 1-3 (Pa.Super. filed January 7, 2011) (internal footnote

omitted).

        With respect to the initial examination of the shotgun, the report from

the PSP laboratory confirmed that Michael’s DNA matched two stains from the

barrel of the shotgun found in Appellant’s home.                  Another DNA profile

recovered from the shotgun showed a mixture, which included a major

component matching Michael’s DNA, and additional alleles from an unknown

source.      The examination excluded Joseph, Marlene, and Appellant as

contributors of the minor alleles.

        Appellant proceeded to a jury trial in January 2009.2 The defense theory

of the case was that Robert, Heather, Rynearson, or an unknown perpetrator

had committed the murders. During opening statements, the defense relied

on the “unknown source” obtained in the DNA analysis to support its theory

that someone other than Appellant had committed the murders.



____________________________________________


2   William Miele, Esq. and Helen Stolinas, Esq. represented Appellant at trial.

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      On the evening of January 20, 2009, after the first day of trial and

opening statements, the Commonwealth received information from the lab

indicating that a more expansive database search revealed the “unknown

source” was actually a lab technician. Upon the Commonwealth’s disclosure

of this new evidence the next day, the defense objected to its introduction and

requested a mistrial. The following exchange occurred between the court and

counsel:

           THE COURT:            Okay, did you have any testing [when
           you received the initial DNA report] by yourself?

           MR. MIELE:          No, we didn’t get the materials from it
           because it was—

           MS. STOLINAS:       The sample was I believe—the sample
           was expended.

           MR. MIELE:          Yeah, so we had no opportunity to do
           [independent testing].

           MS. STOLINAS:       But we did have the notes reviewed.

           MR. MIELE:          And the protocols.

           THE COURT:          Okay.

           MS. STOLINAS:       And     I       believe   the   sample   was
           expended.

                                   *       *      *

           THE COURT:          Well, well, regardless I’m—I’m going to
           deny the motion for the objection of its admissibility, and
           deny the motion for mistrial.

           MR. MIELE:          How can you—

           THE COURT:          Because you had—you know the report

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       was there, that there was an unknown DNA sample, you
       have known it for a year and you could have had—you could
       have had—you could have asked the court, requested the
       court to have Robert and Heather tested.

       MR. MIELE:            But that’s not the issue about being
       Robert’s or Heather’s. How can we proceed now, we just—
       we knew up until this moment there was an unknown DNA,
       we represented to the jury there was an unknown DNA and
       in the middle of trial we’re told it belongs to someone else.
       We have no opportunity to test it ourselves, we have no
       opportunity to challenge the protocol, the procedures, and
       the admissibility. We can’t even subpoena the original
       people that—person that tested it because she’s unavailable
       due to the fact that she had a baby, so we can’t even
       question her.

       I realize you don’t want to stop the trial in the middle after
       all the work we’ve done, but do you want to re-do it? I can’t
       imagine how an [appellate] court would not find this
       prejudicial. That we’re—we’re a year into it, the sample is
       expended, there’s no way we could have ever found out it
       belonged to somebody else if we had taken it to another lab
       because we didn’t have the—we didn’t have the DNA
       protocol of the person from the lab. There’s no way we
       could have ever found that out.

       MS. STOLINAS:           The lab that did the testing didn’t even
       figure it out [until] this week. How [would we] be expected
       to.

                                 *    *    *

       MR. MIELE:            Judge just for the record we want to
       make—make sure some things are clear for—first of all the
       District Attorney has told us that they confirm that the blood
       was consumed in the analysis so we had no ability to check
       it ourselves.

       Second of all, what we received was a copy of the report of
       such, we did not have access to the DNA profile of
       employees at the—at the state police lab, therefore, we
       would have had absolutely no means whatsoever to
       determine that that DNA belonged to a member of the lab.

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         This was something that was entirely within the control of
         the Commonwealth and we were totally at their mercy
         because of the fact that they consumed the same. And even
         if they hadn’t consumed the sample, we would have had no
         way to know who—it belonged to a member of the lab,
         because again we didn’t have access to their—to their DNA
         profiles.

         What we’re requesting the [c]ourt order the Commonwealth
         to do, if in fact you’re going to allow this into evidence, and
         second of all if in fact you will not grant us a mistrial
         regardless of—in spite of the prejudice that we’re certainly
         suffering at this point, is that we be given the DNA profile of
         the lab tech who’s DNA it belongs to and all his information
         so that we can attempt in the next few days to have our
         experts review it to see if the information is correct.

         Second of all, we will be calling the lab, someone from our
         lab as an expert to testify about the problems in labs and
         the kind of situation that—the kind of problems this
         indicates may exist in the state police lab. …

(N.T. Trial, 1/21/09, at 11-15). Based on defense counsels’ statements, the

Commonwealth said it would consider stipulating to the DNA evidence based

on the initial report, to tell the jury the contributor of the minor alleles was an

“unknown source.” By entering that stipulation, the Commonwealth argued

the defense would essentially be getting what it wanted in terms of excluding

the new DNA evidence. The court said it would leave the issue open until the

parties had a chance to review the proposed stipulation.

      On January 23, 2009, the parties stipulated that the lab’s examination

of the shotgun revealed Michael’s DNA on a spot of blood inside the barrel of

the shotgun, and other human DNA mixed with Michael’s blood that could not

be identified. Thus, the stipulation allowed Appellant to continue pursuit of


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the defense strategy regarding the “unknown source.”              (See N.T. Trial,

1/23/09, at 9).

       Nevertheless, the Commonwealth’s circumstantial evidence against

Appellant showed, inter alia: (1) Joseph, Marlene, and Michael died from

gunshots to the head; (2) the shotgun used in the murders was found at

Appellant’s home in New York with blood on it from Michael; (3) toolmark

identification indicated that the shells found at the crime scene were fired from

the shotgun recovered in Appellant’s home; (4) Appellant had a bruise on his

shoulder consistent with shotgun recoil; and (5) Appellant had a financial

motive to commit the murders.

       On January 27, 2009, a jury convicted Appellant of three counts of first-

degree murder and three counts of third-degree murder. The court sentenced

Appellant on February 26, 2009, to consecutive terms of life imprisonment for

the first-degree murder convictions.3          This Court affirmed the judgment of

sentence on January 7, 2011, and our Supreme Court denied allowance of

appeal on January 3, 2012. See Commonwealth v. Colegrove, 23 A.3d

1077 (Pa.Super. 2011) (unpublished memorandum), appeal denied, 613 Pa.

650, 34 A.3d 81 (2012).

       On January 7, 2013, Appellant timely filed a pro se PCRA petition. The


____________________________________________


3 The Commonwealth sought capital punishment in this case. The jury could
not reach a unanimous verdict as to a death sentence, so the court imposed
the prison sentence. At sentencing, the court said the third-degree murder
convictions merged with the first-degree murder convictions.

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court appointed counsel, who filed an amended PCRA petition on March 13,

2015.     In his petitions, Appellant alleged trial counsel were ineffective in

stipulating to the DNA analysis at trial. Specifically, Appellant claimed trial

counsel failed to investigate the “unknown source” stated in the initial DNA

report, as well as an unidentified fingerprint recovered from the crime scene.

Appellant claimed the lab’s inconsistent analyses were the result of cross-

contamination and improper quality control standards.         Thus, Appellant

insisted trial counsel should have conducted independent DNA analysis,

because the subsequent DNA results indicating the “unknown source” was

actually a lab technician could not have been reliable.

        Assuming the lab’s amended analysis was flawed, Appellant further

asserted that trial counsel were ineffective for failing to subpoena the DNA of

Robert, Heather, and Rynearson, to see if any of those individuals matched

the “unknown source” DNA. Appellant also suggested trial counsel could have

searched other DNA data banks to locate a match to the “unknown source.”

        The court held a PCRA hearing on June 21, 2016, during which Appellant

presented testimony from Attorney Miele, Attorney Stolinas, and himself.

Attorney Miele admitted that Robert had a strained relationship with Marlene

and that witnesses observed Robert cleaning his truck shortly after the

murders. Attorney Miele also conceded that Robert had an argument with

Marlene and called her names shortly before the murders. When questioned

about why Attorney Miele did not seek DNA testing of Robert or Heather in


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light of this evidence, counsel explained:

         Sometimes from a defense point of view, you’re better off
         with a question than an answer because you don’t like the
         answer. For instance, the DNA you’re talking about, wasn’t
         that later identified as belonging to somebody in the lab of
         the State Police[?] Therefore, if I would’ve,--if we would’ve
         had the DNA done, it would have eliminated them. Aren’t
         we better off as a defense, not knowing who the DNA
         belongs to and then being able to assert that the
         [Commonwealth] failed to do their job? And if I recall
         correctly, we spent a lot of time attacking Robert. We spent
         a lot of time saying that they were the ones. We introduced
         testimony from various people saying that the mother said
         if something happens to me, look at him. And threats and
         bad relation, the bad relationship between them. So what
         we did is we tried to set up a situation where we could point
         towards the brother. And at the time we didn’t know who
         the DNA belonged to, and then be able to say, since we have
         no burden of proof, it’s on the Commonwealth. And again,
         as you know and I know, as we got to trial, the
         Commonwealth was able to identify the DNA as belonging
         to somebody in the Lab. So the fact that we didn’t do it, to
         me, really doesn’t seem to matter, since it was later
         identified anyway as not being…Robert’s [DNA].

(N.T. PCRA Hearing, 6/21/19, at 12-13). Attorney Miele explained that he

entered into the stipulation regarding the DNA evidence so the defense could

continue to suggest Robert, Heather, Rynearson, or someone else was the

“unknown source” of the DNA mixed with Michael’s blood. After receipt of the

new DNA evidence, Attorney Miele testified that the defense contacted the

head of the defense death penalty clinic as well as a DNA expert to discuss

the updated results; the defense strategy remained the same.

      Attorney Miele also stated that Appellant did not object to the

stipulation. Had Appellant requested the lab technician come into court to


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testify about the DNA testing procedures, Attorney Miele maintained he would

have done as Appellant asked. Attorney Miele further explained that he did

not have the resources as defense counsel to test the fingerprint recovered

from the crime scene independently.                Attorney Miele indicated the

Commonwealth had run the fingerprint through its database and was unable

to recover a match. (See id. at 4-33).

       Attorney Stolinas testified that prior to trial, the defense hired an

independent DNA expert from National Medical Services to review the DNA

protocols and procedures with respect to the initial DNA analysis. Attorney

Stolinas recalled the defense making a discovery request for the notes and

more detailed process the lab had undertaken, and forwarding those to the

independent DNA expert. (Id. at 34-50).

       Appellant testified that Attorney Miele “kept pushing” for the stipulation,

even though Appellant wanted the lab technician to testify at trial. Appellant

said he was unaware of any independent DNA analysis by the defense.

Appellant claimed he asked counsel to have Robert, Heather, and Rynearson’s

DNA tested, but Attorney Miele told him it was unnecessary. (Id. at 51-69).

The court deferred its ruling pending submission of post-hearing briefs.

       On June 21, 2019, the court denied PCRA relief.4 Appellant timely filed

____________________________________________


4 On December 29, 2017, Appellant filed a separate motion for DNA testing,
requesting samples of Robert and Heather’s DNA for comparison with the
“unknown source” particle. The parties discussed the possibility of DNA



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a notice of appeal on Monday, July 22, 2019. On July 29, 2019, the court

ordered Appellant to file a concise statement of errors complained of on

appeal. Appellant subsequently filed his Rule 1925(b) statement.

       Appellant raises two issues for our review:

          DID THE PCRA COURT COMMIT ERROR IN FAILING TO FIND
          THAT    [APPELLANT]’S  TRIAL   ATTORNEYS     WERE
          “INEFFECTIVE” AND [APPELLANT] PREJUDICED GIVEN
          THAT THE ATTORNEYS FAILED TO CONDUCT A
          REASONABLE PRE-TRIAL INVESTIGATION?

          SHOULD THE PCRA COURT HAVE PERMITTED [APPELLANT]
          TO PURSUE DNA AND FINGERPRINT EVIDENCE AND
          UTILIZE EXPERTS IN THESE PURSUITS BEFORE THE COURT
          ADDRESSED THE ISSUE OF “PREJUDICE” TO…APPELLANT?

(Appellant’s Brief at 1-2).

       Our standard of review of the denial of a PCRA petition is limited to

examining whether the record evidence supports the court’s determination

and whether the court’s decision is free of legal error. Commonwealth v.

Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d

319 (2008). This Court grants great deference to the findings of the PCRA

court if the record contains any support for those findings. Commonwealth


____________________________________________


testing at the PCRA hearing, during which PCRA counsel conceded that Robert
is now deceased and his body would have to be exhumed for DNA testing.
The court did not expressly rule on Appellant’s December 29, 2017 motion in
its order denying PCRA relief, and the record does not contain a separate order
denying that motion. Nevertheless, the court’s failure to rule on the motion
for DNA testing does not impede our review in this case. See generally
Commonwealth v. Scarborough, 619 Pa. 353, 64 A.3d 602 (2013)
(explaining that litigation of motion for DNA testing is, in substance, wholly
separate proceeding from litigation of PCRA petition).

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v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932

A.2d 74 (2007). If the record supports a post-conviction court’s credibility

determination, it is binding on the appellate court.         Commonwealth v.

Dennis, 609 Pa. 442, 17 A.3d 297 (2011).

      In his issues combined, Appellant asserts the defense trial strategy was

to suggest that Robert, Heather, or Rynearson committed the murders.

Appellant argues counsel should have obtained DNA testing of those three

individuals. Appellant suggests additional DNA testing might have produced

a match from Robert, Heather, or Rynearson to the “unknown source” particle

found mixed with Michael’s blood on the murder weapon. Appellant claims he

wanted DNA testing of Robert, Heather, and Rynearson at the time of trial.

      Appellant also insists counsel should have called the lab technician to

testify instead of stipulating to the results of the DNA report. Appellant avers

the stipulation did not “scientifically” identify the source of the DNA mixed with

Michael’s DNA. Appellant emphasizes the conflicting results of the initial DNA

report and the subsequent DNA report. Appellant maintains the DNA results

lacked credibility, so trial counsel should have conducted independent DNA

testing.   Appellant complains counsel were ineffective for relying on the

Commonwealth’s evidence of the DNA results when no evidence established

the lab utilized proper protocols.

      Appellant   concedes    he     cannot    establish   prejudice   under   the

ineffectiveness test because he does not have DNA testing from Robert,


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Heather, or Rynearson.             Appellant submits the court ruled on his

ineffectiveness claims prematurely, because the court should have permitted

Appellant to secure DNA testing of Robert, Heather, and Rynearson first, so

Appellant could then establish prejudice.            Appellant concludes trial counsel

were ineffective, and this Court must reverse the order denying PCRA relief

and remand for further proceedings.5 We disagree.

       The    law   presumes      counsel      has   rendered   effective   assistance.

Commonwealth v. Gonzalez, 858 A.2d 1219 (Pa.Super. 2004), appeal

denied, 582 Pa. 695, 871 A.2d 189 (2005). In general, to prevail on a claim

of ineffective assistance of counsel, a petitioner must show, by a

preponderance of the evidence, ineffective assistance of counsel which, in the

circumstances of the particular case, so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken

place. Commonwealth v. Turetsky, 925 A.2d 876 (Pa.Super. 2007), appeal

denied, 596 Pa. 707, 940 A.2d 365 (2007). The petitioner must demonstrate:

(1) the underlying claim has arguable merit; (2) counsel lacked a reasonable

strategic basis for his action or inaction; and (3) but for the errors and

omissions of counsel, there is a reasonable probability that the outcome of the


____________________________________________


5Appellant also mentions counsels’ alleged ineffectiveness for failure to obtain
an independent analysis of a fingerprint recovered from the crime scene.
Nevertheless, Appellant fails to develop this argument adequately on appeal,
so it is waived. See Commonwealth v. Freeman, 128 A.3d 1231 (Pa.Super.
2015) (holding appellant’s failure to develop coherent legal argument in
support of his claim resulted in waiver of issue on appeal).

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proceedings would have been different. Id. at 880. “The petitioner bears the

burden of proving all three prongs of the test.” Id.

      Regarding the second prong of the ineffectiveness test, our Supreme

Court has explained:

         [W]e 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, 612 Pa. 333, 361-62, 30 A.3d 1111, 1127

(2011) (internal citations and quotation marks omitted).

      Instantly, the PCRA court addressed Appellant’s claims as follows:

         The crux of [Appellant’s] PCRA Petition evolves around the
         murder weapon, a shotgun. The shotgun, found in a truck
         at [Appellant’s] then residence, had [three] particles of
         matter on the inside of the barrel. The particles were tested
         for DNA by the [PSP] Laboratory. [Two] such particles
         contained DNA of victim, Michael Colegrove. The 3rd particle
         contained DNA that was unknown or unidentified.

         1. [Appellant’s] claim that counsel [were] ineffective in not
         obtaining a DNA testing for Robert or Heather Colegrove or
         Robert [Rynearson] to compare to the unidentified particle
         within the murder weapon is without merit. Trial counsel
         had a tactical basis for their action. Counsel testified at the
         PCRA hearing, that their trial strategy was to argue that
         Robert or Heather Colegrove or some unknown third person
         was the murderer. They introduced testimony from various
         individuals to show there were threats and bad relations
         between Robert and Heather Colegrove and the victims,
         Robert Colegrove’s and [Appellant’s] parents. Counsel
         believed it was advantageous to have the particle
         unidentified. Even after the State Police lab identified this
         particle as belonging to a laboratory employee, a stipulation

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       was entered into between the Commonwealth and
       [Appellant] to have the particle remain unknown. (This was
       due to the lateness of discovery on the second day of trial
       after opening statements). Defense was able to continue to
       argue that [the] particle belonged to some unknown third
       party, whether it was Robert Colegrove or someone else.
       Further, upon learning that the unknown particle was
       identified as belonging to a lab technician, counsel consulted
       with head of the defense death penalty clinic and a DNA
       expert. Trial strategy remained the same. Counsel had a
       reasonable basis for not requesting DNA testing.

       Defense counsel did hire a DNA expert from National Medical
       Services near Philadelphia to review the DNA testing that
       was done to be sure protocol was followed. Counsel cannot
       be found ineffective for failing to hire an expert which will
       do nothing more than confirm the Commonwealth’s
       evidence.

       [Appellant’s] claim that he requested DNA testing be done
       on the unidentified particle is not credible and meritless.
       Trial [c]ounsel…did not recall [Appellant] insisting upon said
       testing or to have the laboratory personnel called to testify
       and cross-examine. Trial counsel testified they discussed
       this with [Appellant]. Further, when reaching the stipulation
       for the unidentified particle, during trial, trial counsel
       indicated they needed time to speak to their client about it
       and asked for time to do so. The trial strategy of having the
       particle remain unidentified was continued to be pursued. …
       [Appellant’s] testimony was not credible.

       Eventually, on the eve of trial or after opening statements,
       the unidentified particle was identified.       Trial counsel
       testified that a discussion with [Appellant] would have taken
       place to review the stipulation that was entered so they
       could maintain their trial strategy of an unknown. As trial
       counsel testified, once the particle was identified as not
       belonging to Robert or Heather Colegrove, then their trial
       strategy of implicating them is much weaker.

       As this particle is now identified as a lab employee
       [Appellant’s] hope that the particle would belong to
       someone else to blame is moot. Had counsel obtained a
       separate DNA test to compare Robert and Heather

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         Colegrove and Robert [Rynearson], the evidence would then
         exclude those individuals.

         [Appellant’s] remaining claims in this regard are meritless
         as well. Upon learning [of] the identity of the unidentified
         particle, trial counsel did move to suppress same, moved for
         a mistrial and requested time to potentially hire an expert,
         etc.

         [Appellant’s] Amended Petition makes reference to the
         [PSP] lab failing to maintain proper quality control during
         the DNA testing. However, [Appellant] has presented no
         evidence nor pointed to any area of the trial record to
         support this claim or the claim for ineffectiveness of counsel
         resulting therefrom.

(PCRA Court Opinion, filed June 26, 2019, at 3-5) (internal citations omitted).

      The record supports the court’s analysis.     See Ford, supra; Boyd,

supra. We will not disturb the PCRA court’s credibility determinations in favor

of trial counsel and against Appellant. See Dennis, supra. Significantly, the

record makes clear trial counsel had a reasonable trial strategy in pursuing

the “unknown source” theory, and trial counsel were successful in being able

to continue pursuit of that theory by way of the stipulation, even after new

evidence showed the DNA mixed with Michael’s blood was from a lab

employee.

      Throughout his arguments in favor of DNA testing of Robert, Heather,

or Rynearson, Appellant assumes the updated lab results were due to “cross

contamination” or “quality control” issues. As the PCRA court stated, however,

nothing in the record supports these contentions.          Rather, the record

demonstrates that defense counsel hired a DNA expert to review the


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procedures and protocols utilized in the initial DNA analysis. That expert did

not suggest the PSP lab’s analysis was flawed.           Upon preparation for

courtroom presentation, the PSP lab performed an additional database search

on the previously unidentified source, which confirmed the presence of the lab

technician’s DNA. Thus, the record shows that a “re-run” of the examination

merely widened the database to include lab employees.

       Consequently, trial counsel had a reasonable strategic basis for entering

into the stipulation and declining to seek a DNA test from Robert, Heather, or

Rynearson, as the results of those DNA tests would have only weakened the

defense theory of the case. Appellant simply cannot prove “that an alternative

not chosen offered a potential for success substantially greater than the course

actually pursued.”6 See Chmiel, supra. Based upon the foregoing, we affirm

the order denying PCRA relief.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/2/2020

____________________________________________


6Due to our disposition, we need not consider Appellant’s argument that the
court should have first permitted the DNA testing so that Appellant could then
establish prejudice. See Turetsky, supra.

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