J-S61015-19

                                   2020 PA Super 22


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    HUGO SELENSKI                              :
                                               :
                       Appellant               :   No. 1062 EDA 2019

              Appeal from the PCRA Order Entered March 13, 2019
      In the Court of Common Pleas of Monroe County Criminal Division at
                        No(s): CP-45-CR-0001225-2006


BEFORE:      BOWES, J., OLSON, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                         FILED FEBRUARY 04, 2020

        Appellant, Hugo Selenski, appeals from the March 13, 2019, order

entered in the Court of Common Pleas of Monroe County, which denied his

first petition filed under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546, following an evidentiary hearing. After a careful review, we

affirm.

        This Court has previously set forth, in part, the relevant facts and

procedural history as follows:

              On July 10, 2009, a jury convicted Appellant of multiple
        offenses, including kidnapping, robbery, attempted burglary,
        criminal conspiracy, theft by unlawful taking, simple assault, false
        imprisonment, and terroristic threats—all with respect to a home
        invasion and attack on a jeweler named Samuel Goosay. The trial
        court recounted the facts adduced at trial as follows:


____________________________________________


*   Former Justice specially assigned to the Superior Court.
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                    On January 27, 2003, two men broke into Mr.
              Goosay’s residence just after dinner wearing ski
              masks and brandishing a gun. The men handcuffed
              Mr. Goosay and placed duct tape over his eyes while
              threatening him and questioning him about the alarm
              code to his jewelry store and $20,000 in cash. Mr.
              Goosay gave the men a partial code and one of them
              went, in Mr. Goosay’s car, to the jewelry store where
              he attempted and failed to break in and disarm the
              alarm. During this time, the other man stayed with
              Mr. Goosay. At some point during the altercation, the
              metal handcuffs initially used to bind Mr. Goosay’s
              hands were switched to plastic flex cuffs.
                     Mr. Goosay was seated on the bed while the
              man who had stayed behind ransacked the master
              bedroom. At this time, Mr. Goosay was able to push
              the duct tape over one eye and see that his assailant
              had left the gun on top of a nearby dresser. Mr.
              Goosay grabbed the gun and a fight ensued where the
              assailant overtook Mr. Goosay, obtained the gun, and
              sat Mr. Goosay back on the bed to put a flex cuff
              around his ankles. While the assailant was putting the
              flex cuff on his ankles, Mr. Goosay saw the assailant’s
              face without the ski mask.[1]          The assailant
              commented that it did not matter that Mr. Goosay saw
              his face because the assailant was not “from around
              here” and that Mr. Goosay would “never recognize
              [him]” and will “never know who [he] is.”
                    Shortly thereafter, the alarm company at Mr.
              Goosay’s jewelry store called his home phone and
              indicated that police were being dispatched to the
              store because the alarm had been triggered. Upon
              receiving this information, the assailant hit Mr.
              Goosay in the head and quickly left. Mr. Goosay
              removed some of his restraints and telephoned the
              police. The police collected the flex cuffs and duct
              tape from inside Mr. Goosay’s house as well as

____________________________________________


1 At trial, Mr. Goosay positively identified Appellant as the person he saw
without the ski mask. N.T., 7/8/09, at 30-31. He also positively identified
Appellant as the man who remained at the Goosay house while the other man,
later identified as Paul Weakley, went to the jewelry store. Id.

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          pictures of footprints in the snow outside of Mr.
          Goosay’s home. Among the footprints was one from
          a New Balance sneaker.
                During the time this case was being
          investigated, police located human remains on
          [Appellant’s] property in Luzerne County. Two bodies,
          those of Michael Kerkowski, Jr., and Tammy Fasset,
          were found buried behind [Appellant’s] residence.
          Police determined that Kerkowski was a small
          business owner and Fasset was his girlfriend. Both
          victims were bound with flex cuffs: Fasset was bound
          around her hands, ankles, and neck and Kerkowski
          was bound around his hands. Additionally, Kerkowski
          had duct tape over his eyes. Upon searching
          [Appellant’s] garage, home, and the vehicle he used,
          police located flex cuffs, duct tape, ski masks, metal
          handcuffs, a black BB pistol, and New Balance
          sneakers.
                 The flex cuffs on [Appellant’s] property and
          those used to bind Mr. Goosay were found to be from
          a common source. The New Balance sneakers that
          were found in [Appellant’s] garage were identified by
          [Appellant’s] ex-girlfriend, [Christina] Strom, as
          belonging to [Appellant]. Moreover, an expert in the
          field of footwear impressions concluded that the prints
          left outside Mr. Goosay’s home could have been left
          by [Appellant’s] sneakers because “the physical size,
          the general state of wear, and the lack of accidental
          characteristics” on [Appellant’s] sneakers matched
          the same on the impression in the snow.
                During the trial, both the Commonwealth and
          [Appellant] presented evidence regarding Mr.
          Goosay’s pretrial identifications of [Appellant]. Six
          months after the incident, Corporal Shawn Noonan
          showed Mr. Goosay a photo array that contained a
          picture of [Appellant] from 2001. Mr. Goosay failed
          to identify [Appellant] in this first array.
          Approximately two years later, Agent Scott Endy
          showed Mr. Goosay another photo array containing a
          picture of [Appellant] from May of 2003. Mr. Goosay
          was able to identify [Appellant]. Mr. Goosay was also
          able to identify [Appellant] at trial.


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     Trial Court Opinion, 3/4/16, at 2–4 (citations to notes of testimony
     and footnotes omitted).
            Prior to trial, Appellant sought to contest Mr. Goosay’s
     identification of him as the perpetrator by presenting an expert
     witness on eyewitness identification and on factors that can lead
     to inaccurate identification. Because Pennsylvania law at that
     time precluded such testimony, the trial court declined to permit
     this evidence. After three days of trial, a jury convicted Appellant
     of the aforestated charges, and on September 21, 2009, the trial
     court sentenced Appellant to an aggregate 32½ to 65 years’
     incarceration.
            Appellant filed a direct appeal in which he challenged the
     trial court’s exclusion of the expert testimony on eyewitness
     identification, and this Court affirmed his judgment of sentence.
     Commonwealth v. Selenski, 18 A.3d 1229 (Pa.Super. 2011).
     Appellant then petitioned for allowance of an appeal to the
     Supreme Court. During the pendency of his petition, on May 28,
     2014, the       Supreme      Court rendered its decision in
     [Commonwealth v.] Walker, [625 Pa. 450, 92 A.3d 766
     (2014)], which reversed the longstanding ban on expert
     eyewitness identification testimony. The Supreme Court
     subsequently granted Appellant’s petition and remanded his case
     to this Court. Commonwealth v. Selenski, 627 Pa. 352, 100
     A.3d 206 (2014). The Supreme Court’s per curiam order stated:
           AND NOW, this 29th day of August, 2014, the
           Petition for Allowance of Appeal is GRANTED,
           LIMITED TO Petitioner’s first issue, as stated by
           Petitioner:
           Does the constitutional right to present a defense
           include the right to offer proven science bearing on
           the understanding of human memory and perception,
           and police practices in the identification process,
           where those advances are unknown to laypersons?
           Further, the Superior Court’s order affirming the
           judgment of sentence is VACATED, and the matter is
           REMANDED to the Superior Court for further
           consideration in light of Commonwealth v. Walker,
           625 Pa. 450, 92 A.3d 766 (2014). In all other
           respects, the Petition for Allowance of Appeal is
           DENIED.
     Selenski, 100 A.3d at 206.


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Commonwealth v. Selenski, 158 A.3d 102, 103-05 (Pa.Super. 2017)

(footnote omitted) (footnote added).

      Upon receipt of the Supreme Court’s order, this Court remanded the

case to the trial court “so that it [could] perform its traditional gatekeeping

function with regard to the proposed expert testimony.” Commonwealth v.

Selenski, 117 A.3d 1283, 1285 (Pa.Super. 2015). That is, we determined

the trial court should determine the applicability of Walker in the first

instance.

      Upon remand, Appellant moved to present the expert testimony of Dr.

Jennifer Dysart, who proposed to detail “13 factors that can be relevant to

eyewitness identifications” and to opine, “after reviewing partial records from

this case and [Appellant’s] case in Luz[e]rne County, [that] 9 of these 13

factors apply in [Appellant’s] case.” Selenski, 158 A.3d at 105. The trial

court concluded Appellant’s motion was a request for a new trial based on the

admission of expert testimony, which was not allowed at his first trial. Id.

      Following an evidentiary hearing, the trial court ruled the expert

testimony of Dr. Dysart was inadmissible under Walker. Accordingly, the trial

court denied Appellant’s request for a new trial at which he could introduce

the expert evidence. Appellant filed a timely appeal contending the trial court

erred in denying Appellant’s request for a new trial so that he could present

the testimony of Dr. Dysart.




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      After a careful review, on March 16, 2017, we found no error, and

consequently, we affirmed Appellant’s judgment of sentence. See Selenski,

158 A.3d at 117. Appellant filed a petition for allowance of appeal, which our

Supreme Court denied on September 19, 2017.             Appellant did not file a

petition for a writ of certiorari with the United States Supreme Court.

      On March 5, 2018, Appellant filed a timely first PCRA petition, and the

next day, counsel was appointed to assist Appellant.          On July 23, 2018,

counsel filed an amended PCRA petition, and on October 19, 2018, the PCRA

court held an evidentiary hearing at which the sole testifying witness was

Appellant’s trial counsel.   Thereafter, at the direction of the PCRA court,

Appellant and the Commonwealth filed briefs, and by order and opinion filed

on March 13, 2019, the PCRA court denied Appellant’s PCRA petition. This

timely appeal followed. All Pa.R.A.P. 1925 requirements have been met.

      On appeal, Appellant sets forth the following issues in his “Statement of

the Questions Presented”:

      A. Whether the PCRA court erred and abused its discretion by not
         finding that [Appellant’s] trial counsel was ineffective for failing
         to appropriately cross-examine witnesses, failing to call all
         necessary witnesses, failing to file necessary and appropriate
         pretrial motions, fail[ing] to make necessary objections during
         trial, and failing to present necessary evidence, including DNA
         related-evidence?
      B. Whether the PCRA court erred and abused its discretion by not
         finding that the failure of the Commonwealth to turn over
         discoverable evidence prior to trail [sic], even where such
         evidence was from another jurisdiction within the
         Commonwealth, was a violation of [Appellant’s] rights such
         that he is entitled to [a] new trial?


                                       -6-
J-S61015-19



Appellant’s Brief at 4 (suggested answers omitted).

       Initially, we note:

              This Court analyzes PCRA appeals in the light most favorable
       to the prevailing party at the PCRA level. Our review is limited to
       the findings of the PCRA court and the evidence of record and we
       do not disturb a PCRA court’s ruling if it is supported by evidence
       of record and is free of legal error. Similarly, we grant great
       deference to the factual findings of the PCRA court and will not
       disturb those findings unless they have no support in the record.
       However, we afford no such deference to its legal conclusions.
       Where the petitioner raises questions of law, our standard of
       review is de novo and our scope of review is plenary. Finally, we
       may affirm a PCRA court’s decision on any grounds if the record
       supports it.

Commonwealth v. Benner, 147 A.3d 915, 919 (Pa.Super. 2016) (quoting

Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa.Super. 2015)).

       In his first issue, Appellant presents various claims of ineffective

assistance of trial counsel.2       Namely, Appellant contends trial counsel was

ineffective in (1) failing to call Paul Weakley as a witness at trial, (2) failing to

call a DNA expert to testify at trial, (3) failing to call witnesses to rebut Mr.

Goosay’s testimony regarding Appellant’s smoking a cigarette during the




____________________________________________


2 It is noteworthy that, at trial, Appellant did not dispute that the crimes
against Mr. Goosay occurred; but rather, his defense was that he did not
commit or participate in the crimes in any manner. Accordingly, ultimately,
his ineffectiveness claims relate to trial counsel’s failure to convince the jury
that he was not one of the perpetrators.




                                           -7-
J-S61015-19


home invasion, and (4) failing to object or cross-examine witnesses regarding

the introduction of Paul Weakley’s telephone records.3

       In addressing Appellant’s claims, we apply the following well-established

legal principles:

       As originally established by the United States Supreme Court in
       Strickland v. Washington, 466 U.S. 668, [ ] (1984), and
       adopted by Pennsylvania appellate courts, counsel is presumed to
       have provided effective representation unless a PCRA petitioner
       pleads and proves all of the following: (1) the underlying legal
       claim is of arguable merit; (2) counsel’s action or inaction lacked
       any objectively reasonable basis designed to effectuate his client’s
       interest; and (3) prejudice, to the effect that there was a
       reasonable probability of a different outcome at trial if not for
       counsel’s error.

Commonwealth v. Wantz, 84 A.3d 324, 331 (Pa.Super. 2014) (citations

omitted). “A failure to satisfy any prong of the ineffectiveness test requires

rejection of the claim of ineffectiveness.” Commonwealth v. Daniels, 600

Pa. 1, 963 A.2d 409, 419 (2009).

              Generally, counsel’s assistance is deemed constitutionally
       effective if he chose a particular course of conduct that had some
       reasonable basis designed to effectuate his client’s interests.
       Where matters of strategy and tactics are concerned, 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. To demonstrate prejudice, the petitioner must
       show that there is a reasonable probability that, but for counsel’s
       unprofessional errors, the result of the proceedings would have
       been different. [A] reasonable probability is a probability that is


____________________________________________


3 Although Appellant framed his first issue broadly in his “Statement of the
Questions Presented,” we have narrowed his claims based on the argument
presented in his brief.

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       sufficient to undermine confidence in the outcome of the
       proceeding.

Commonwealth v. Spotz, 624 Pa. 4, 84 A.3d 294, 311-12 (2014) (citations,

quotation marks, and quotations omitted).

             When raising a claim of ineffectiveness for the failure to call
       a potential witness, a petitioner satisfies the performance and
       prejudice requirements of the [ineffective assistance of counsel]
       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 fair trial.

Commonwealth v. Sneed, 616 Pa. 1, 45 A.3d 1096, 1108-09 (2012)

(citations omitted).

       Prejudice in this respect requires the petitioner to “show how the
       uncalled witnesses’ testimony would have been beneficial under
       the circumstances of the case.” Therefore, the petitioner’s burden
       is to show that testimony provided by the uncalled witnesses
       “would have been helpful to the defense.”

Commonwealth v. Williams, 636 Pa. 105, 141 A.3d 440, 460 (2016)

(quotations and citation omitted).

       Appellant initially contends trial counsel was ineffective in failing to call

his co-conspirator, Paul Weakley,4 as a witness at trial. Specifically, Appellant

contends the following:

             [Mr.] Weakley indicated [in an August 27, 2003, police
       statement] that both he and [Appellant] had gone into the house
____________________________________________


4 Paul Weakley pled guilty to various offenses in connection with the incident
involving Mr. Goosay, as well as the homicides in Luzerne County. See N.T.
7/8/09, at 15-16.

                                           -9-
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      and also that two other individuals, Nick and Steve, had been
      present but had not participated. Neither Nick nor Steve were
      discussed or identified during the course of the trial by the
      Commonwealth, nor were they asked about by defense counsel.
            The involvement of other people in the events which led to
      the instant charges raises the questions as to what [Appellant’s]
      involvement may have been, as well as if [Appellant] indeed had
      even been present or gone into the Goosay house. Without [Mr.]
      Weakley to question, there was no ready way to bring in the
      information about these additional individuals.
              [Mr.] Weakley had been identified as the individual who
      pawned the Goosay property in New York. The failure to subpoena
      [Mr.] Weakley meant that counsel could not question him
      regarding this incident and determine the extent to which he was
      involved. In that he had stolen on an earlier occasion, this
      increased the likelihood that his involvement was greater than he
      suggested and that he was using [Appellant] as a scapegoat to
      limit the scope of blame he needed to take on himself.

Appellant’s Brief at 12-13.

      Here, assuming, arguendo, Mr. Weakley existed, he was available to

testify for the defense, and counsel knew, or should have known, of his

existence, we agree with the PCRA court that Appellant failed to demonstrate

Mr. Weakley was willing to testify for the defense. See PCRA Court Opinion,

filed 3/13/19, at 8. Inasmuch as Mr. Weakley did not testify at Appellant’s

PCRA evidentiary hearing, Appellant did not offer an affidavit from Mr.

Weakley indicating he would have been willing to testify for the defense, and

Appellant has pointed to no other evidence establishing that Mr. Weakley

would have been willing to testify for the defense, we agree with the PCRA

court’s conclusion. We further agree with the PCRA court that this is fatal to

Appellant’s claim of ineffective assistance of trial counsel. See Sneed, supra.


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      Moreover, we conclude the absence of Mr. Weakley’s testimony at

Appellant’s trial as to the alleged involvement of two additional men named

“Nick and Steve” was not so prejudicial as to have denied Appellant a fair trial.

See id. Mr. Weakley identified Appellant as one of his co-conspirators. The

fact there may have been additional co-conspirators, who Mr. Weakley could

have identified at Appellant’s trial, does not establish a reasonable probability

that, but for counsel’s action, there would have been a different outcome at

Appellant’s trial, particularly given the fact the victim, Mr. Goosay, positively

identified Appellant at trial. Simply put, Appellant did not demonstrate how

Mr. Weakley’s testimony would have been helpful to his defense in this regard.

See Williams, supra.

      Appellant next contends trial counsel was ineffective in failing to call a

DNA expert at trial. Specifically, Appellant avers that, although blood was

found inside the Goosay house in the area where the struggle with Mr. Goosay

occurred, DNA testing revealed the blood did not belong to Appellant. See

Appellant’s Brief at 13. Accordingly, Appellant contends a DNA expert would

have explained that there was a “total lack of DNA evidence tying [Appellant]

to the home invasion[,]” and the DNA evidence indicated some unknown

person struggled with Mr. Goosay. Id. at 14.

      In rejecting Appellant’s claim, the PCRA court noted Appellant failed to

identify a specific DNA expert who was either available or willing to testify for

the defense. See PCRA Court Opinion, filed 3/13/19, at 8. We agree this is


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fatal   to   Appellant’s     ineffective       assistance   of   counsel   claim.5   See

Commonwealth v. Wayne, 553 Pa. 614, 720 A.2d 456, 470-71 (1998)

(holding a claim of ineffectiveness for failing to call an expert witness requires

the petitioner to demonstrate an expert witness was available who would have

offered testimony designed to advance the defense).

        Appellant next contends trial counsel was ineffective in failing to call

witnesses to rebut Mr. Goosay’s testimony regarding the fact Appellant

smoked a cigarette at the scene.

        At trial, Mr. Goosay relevantly testified as follows on direct-examination

by the prosecutor:

        Q: And when you were there with the two men, were they talking
        to you about anything else other than asking you questions about
        your store?
        A: Well, the one stayed with me. The one with the gun stayed with
        me. He talked a lot of small talk. He talked about the stock
____________________________________________


5 Moreover, we note trial counsel provided a reasonable basis for not calling a
DNA expert to testify at Appellant’s trial, and additionally, Appellant has failed
to demonstrate that he was prejudiced by trial counsel’s failure to call a DNA
expert. Specifically, trial counsel testified the fact the DNA evidence collected
from the Goosay residence excluded Appellant as a contributor was fully
explored by trial counsel upon direct-examination of various defense
witnesses, and he did not want the jury to get “bogged down into other DNA
issues[.]” N.T., 10/19/18, at 12-13. Our review of the trial transcripts
confirms trial counsel’s assessment. See N.T.,7/9/09, at 79-82 (trial counsel
examining Pennsylvania State Police Trooper Gerard Sachney regarding the
fact the DNA evidence collected from the Goosay residence did not match
Appellant’s DNA); Id. at 88-108 (trial counsel examining Pennsylvania State
Police Trooper Shawn Noonan regarding the fact the DNA evidence collected
from the Goosay residence did not match Appellant’s DNA). Accordingly,
Appellant has failed to demonstrate either that trial counsel did not have a
reasonable basis for his inaction or that Appellant was prejudiced. See Spotz,
supra.

                                           - 12 -
J-S61015-19


      market. He talked about bonds. He talked about investing. He
      made a lot of small talk.
             But, again, during the whole interim, especially when we
      were fighting, he kept threatening to kill me. “I’m going to kill
      you. If you don’t cooperate, I’ll kill you.” He thought there was
      a lot of money. For whatever reason, he thought there was a lot
      of money in the house.
            He kept—he was threatening that he would kill my wife
      when she got home. He was going to wait until she got home. If
      I didn’t tell him where the money was, he was going to kill her,
      and then he’ll find out where the money is.
      Q: And were you responding to him when he was asking you
      questions and talking to you like about the stock market?
      A: Yeah. We were just talking together. As a matter of fact, I
      had a pack of cigarettes in my shirt pocket. At that time, I
      smoked, and I had a pack of cigarettes, and he asked me
      politely if he can take one of my cigarettes. I said, “As long
      as you let me have one.”
           So he grabbed an ashtray I had there, and he lit up a
      cigarette, and he lit mine for me. I smoked my cigarette.
      He smoked his. He at that point said, “I’m not stupid
      enough to leave this cigarette here.” I think he flushed it
      down the toilet. I heard the toilet flush.

N.T., 7/8/09, at 28-29 (emphasis added).

      Appellant avers that it is well-known that he is not a smoker, and, thus,

he could not have been the perpetrator described by Mr. Goosay. Accordingly,

Appellant contends trial counsel should have called witnesses, who would have

testified as to Appellant’s non-smoking status.

      Specifically, Appellant contends the following:

            One of the more bizarre incidents described in [Mr.]
      Goosay’s testimony was that, following the struggle for the gun,
      he and the perpetrator stopped, rested, and smoked cigarettes.
      While this event was odd enough on its face, it also offered a
      highly significant area in which [trial] counsel could have raised


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J-S61015-19


       significant questions. Specifically, [Appellant] is not a smoker,
       nor has he ever been. Numerous witnesses could have been
       procured to have known [Appellant] over the years to testify that
       he never in his life had been seen smoking a cigarette. This fact
       would have highly discredited the identification of [Appellant] by
       [Mr.] Goosay because a total non-smoker is very unlikely to light
       a cigarette for the first time in the middle of a stressful situation.
       This also might have brought doubt into the self-serving testimony
       of [Appellant’s] ex-girlfriend who made several incredible
       statements, including that [Appellant] smoked on occasion.[6] By
       showing multiple witnesses to demonstrate that she was not being
       truthful regarding this feature, the remainder of her testimony
       would have just as likely been untrue. During the PCRA hearing,
       however, counsel acknowledged that he did not pursue this line of
       questioning.

Appellant’s Brief at 14-15 (footnote added).

       In rejecting Appellant’s claim, the PCRA court noted Appellant failed to

identify a specific witness trial counsel should have called who was either

available or willing to testify for the defense as to Appellant’s smoking habits.

See PCRA Court Opinion, filed 3/13/19, at 8.          Moreover, the PCRA court

relevantly indicated the following:

              [T]he trial transcripts demonstrate that trial counsel did[,]
       in fact[,] call witnesses who were able to testify about
       [Appellant’s] smoking habits. Ruth Anne Pollard, [Appellant’s]
       sister, was called by trial counsel and she testified that she had
       “never known [her] brother to smoke a cigarette.” [N.T., Trial,
       7/9/09, at 125]. Ronald Selenski, Jr., [Appellant’s] brother, was
       also called by trial counsel for the same purpose and when asked
       if he knew if [Appellant] was a smoker, he replied, “no, not that I
       know of.” [N.T., Trial, 7/9/09, at 129]….[Accordingly,] [a]ny
       additional testimony on this subject would [have been] cumulative


____________________________________________


6 Appellant’s ex-girlfriend, Christina Strom, testified on cross-examination by
trial counsel that Appellant was not “a smoker,” but he had “a cigarette here
and there.” N.T., 7/8/09, at 152.

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J-S61015-19


      and [would      have]   provide[d]    little   additional   benefit   [to
      Appellant].

PCRA Court Opinion, filed 3/13/19, at 8.

      We agree with the PCRA court’s sound reasoning, and we conclude

Appellant is not entitled to relief on this claim of ineffective assistance of trial

counsel. See Sneed, supra (regarding requirements of establishing

ineffectiveness for failing to call a witness); Wantz, supra (holding petitioner

must demonstrate prejudice, i.e., but for counsel’s failure there is a

reasonable probability of a different outcome at trial).

      In his final claim of ineffective assistance of trial counsel, Appellant

contends trial counsel was ineffective in failing to object or cross-examine

witnesses regarding the introduction of Paul Weakley’s telephone records. His

entire argument in this regard is as follows:

            During the trial, phone records were produced to show
      phone activity. These records demonstrated several phone calls
      made by [Mr.] Weakley on the night of the home invasion to both
      [Appellant’s] cell phone and also to [Appellant’s] home number.
      There would be no reason for [Mr.] Weakley to be calling
      [Appellant] on a land line in Luzerne County if he knew him to be
      waiting at the Goosay home while he went to the [jewelry] store,
      and yet this line of questioning was left unaddressed by defense
      counsel at trial.
                                    ***
            The failure of defense counsel…to delve into the Weakley
      phone records, left significant unpresented questions, questions
      which would have likely turned the opinion of the jury. The failure
      to pursue these areas did not flow from any strategy or plan by
      defense counsel, but rather from ineffective representation.

Appellant’s Brief at 15-16.


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        We find Appellant’s claim to be waived. Appellant’s undeveloped, bald

assertion substantially hampers meaningful appellate review, and thus, we

decline to address the issue further. See Commonwealth v. Hall, 582 Pa.

526, 872 A.2d 1177, 1182 (2005) (holding bald, undeveloped arguments fail

to satisfy the appellant’s burden of establishing ineffective assistance of trial

counsel claim).

        In his final issue, Appellant claims he is entitled to relief because the

Commonwealth committed two Brady7 violations.8 Specifically, Appellant

contends the Commonwealth failed to disclose “hair was identified in the trunk

of [Mr.] Weakley’s car which matched the DNA found in the Goosay residence

and did not belong to [Appellant] or [Mr.] Weakley.” Appellant’s Brief at 17.

Further, Appellant contends the Commonwealth failed to disclose that

Appellant’s ex-girlfriend’s vehicle was a white Honda SUV and not a white

sedan. Id. at 17-18.

              A Brady violation consists of three elements: (1)
        suppression by the prosecution (2) of evidence, whether
        exculpatory or impeaching, favorable to the defendant, (3) to the
        prejudice of the defendant. Commonwealth v. Paddy, 569 Pa.
        47, 800 A.2d 294, 305 (2002)….[A] Brady violation only exists
        when the evidence is material to guilt or punishment, i.e., when
____________________________________________


7   Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963).

8 “A Brady claim is cognizable on collateral appeal under the PCRA.”
Commonwealth v. Simpson, 620 Pa. 60, 66 A.3d 253, 264 (2013) (citing
Commonwealth v. Tedford, 598 Pa. 639, 960 A.2d 1, 30 n. 19 (2008)).
See 42 Pa.C.S.A. § 9543(a)(2)(vi). Appellant asserts he was unaware of the
Commonwealth’s alleged Brady violations until after the completion of trial
and sometime during the course of his appeals. Appellant’s Brief at 16.

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      “there is a reasonable probability that, had the evidence been
      disclosed to the defense, the result of the proceeding would have
      been different.” Id.

Commonwealth v. Tedford, 598 Pa. 639, 960 A.2d 1, 30 (2008) (footnote

omitted).

             [Moreover,] [a]s to Brady claims advanced under the PCRA,
      a defendant must demonstrate that the alleged Brady violation
      “so undermined the truth-determining process that no reliable
      adjudication of guilt or innocence could have taken place.” See
      Commonwealth v. Copenhefer, 553 Pa. 285, 719 A.2d 242,
      259 (1998). The…United States Supreme Court has held that the
      mere possibility that an item of undisclosed information might
      have helped the defense, or might have affected the outcome of
      the trial, does not establish materiality in the constitutional sense.

Commonwealth v. Cam Ly, 602 Pa. 268, 980 A.2d 61, 75–76 (2009) (most

citations, brackets, footnote, and internal quotation marks omitted). “In

engaging in this analysis, a reviewing court is not to review the undisclosed

evidence in isolation, but, rather, the omission is to be evaluated in the context

of the entire record.” Commonwealth v. Dennis, 609 Pa. 442, 17 A.3d 297,

308 (2011) (citations and quotation marks omitted).

      Additionally, it is noteworthy that “[n]o violation occurs if the evidence

at issue is available to the defense from non-governmental sources.”

Tedford, supra, 960 A.2d at 30. Also, “no Brady violation occurs where the

appellant knew or could have uncovered the evidence at issue with reasonable

diligence.” Commonwealth v. Morris, 573 Pa. 157, 822 A.2d 684, 696

(2003) (citation omitted).




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J-S61015-19


      Initially, in rejecting Appellant’s Brady claim as to the DNA analysis of

the hair found in the trunk of Mr. Weakley’s car, the PCRA court concluded

Appellant failed to demonstrate the Commonwealth suppressed the evidence

at issue either willfully or inadvertently.    See PCRA Court Opinion, filed

3/13/19, at 11, 13 (citing Commonwealth v. Walker, 613 Pa. 601, 36 A.3d

1 (2011)). In this regard, the PCRA court pointed to the following relevant

exchange, which occurred between Appellant’s PCRA counsel and his trial

counsel during the PCRA evidentiary hearing:

      Q: Did you know at the time of trial that the hair sample found in
      the back of [Mr.] Weakley’s car—did you know at that point that
      there had been a hair sample in the back of [Mr.] Weakley’s car
      that matched something found in [a] glove [from the Goosay
      house]?
      A: I don’t recall whether I knew or not. But had I—it would have
      played a greater role, I think, at trial had I known.
                                   ***
      Q: I think you indicated that you weren’t certain whether you
      knew—you’re not certain now whether you knew at the time?
      A: No. I mean, I would have to review the file to see. I haven’t
      seen it in, I don’t know, nine years.
      Q: It’s been a long—almost a decade since the trial, yes. And do
      you recall—whether you knew it or not, do you recall raising that
      issue at trial?
      A: I do not recall raising an issue with respect to a hair found in a
      trunk of a car[.]
                                   ***
      Q: Okay. And DNA tests, we’ll talk about the hair in the car. Do
      you have any recollection of receiving that?
      A: I have no recollection of receiving any DNA analysis on hair in
      a car.
      Q: Okay. Is it possible that was not provided to you as part of
      your pretrial preparation?

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J-S61015-19


       A: I mean, I would have to see what we had gotten in discovery
       versus what came up later. I mean, I don’t recall it.

N.T., 10/19/18, at 17, 19-20, 43-33.

       As the PCRA court concluded, “[t]his evidence is hardly enough to prove

that the Commonwealth suppressed [the hair] evidence.”            PCRA Court

Opinion, filed 3/13/19, at 13. Simply put, trial counsel was unable to recall

whether the Commonwealth disclosed the hair, or the DNA analysis with

respect thereto. Id. Accordingly, Appellant did not meet his burden of proof

with regard to his first alleged Brady violation.9

       With regard to Appellant’s claim the Commonwealth violated Brady by

failing to disclose that Christina Strom, who was Appellant’s ex-girlfriend,




____________________________________________


9 Moreover, as the PCRA court additionally concluded, Appellant failed to
demonstrate the alleged Brady violation with respect to the hair “so
undermined the truth-determining process that no reliable adjudication of
guilt or innocence could have taken place.” Cam Ly, supra, 980 A.2d at 75
(quotation and quotation marks omitted). See PCRA Court Opinion, filed
3/13/19, at 13.
       Appellant contends he was prejudiced by the Commonwealth’s alleged
failure to disclose the DNA analysis of the hair found in Mr. Weakley’s vehicle
because the hair found in the vehicle matched a hair found at the Goosay
crime scene. N.T., 10/19/18, at 19. He further avers the DNA analysis
excluded Appellant as the contributor of the hairs. See id. However,
assuming, arguendo, the hairs do not belong to Appellant, this does not
require the conclusion that Appellant did not participate in the Goosay home
invasion, along with other co-conspirators. Simply put, Appellant did not
demonstrate the result of the proceeding would have been different had the
hair DNA evidence been disclosed. Tedford, supra.




                                          - 19 -
J-S61015-19


owned a white Honda SUV, as opposed to a white sedan, 10 the PCRA court

rejected this claim on the basis that it “is absurd” to suggest the

Commonwealth somehow “prevented” Appellant from “knowing the make and

model of his own girlfriend’s car or from easily being able to obtain this

information.” PCRA Court Opinion, filed 3/13/19, at 13. Simply put, Appellant

knew, or could have uncovered with reasonable diligence, the type of vehicles

owned by Ms. Strom. Accordingly, he failed to demonstrate he is entitled to

relief under Brady. See Tedford, supra; Morris, supra.

       For all of the foregoing reasons, we affirm.

       Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/4/20

____________________________________________


10At trial, a Commonwealth witness, Kimberly Smith, testified that she worked
at a store near the Goosay’s jewelry store. N.T., 7/8/09, at 124-25. On
January 27, 2003, the night of the home invasion at the Goosay residence,
she was in the parking lot outside of the Goosay’s jewelry store when, at
approximately 6:40 p.m., she saw Mr. Goosay’s vehicle, which she recognized,
pull into the parking lot. Id. at 125. She observed as a man, who was not
Mr. Goosay, exited the vehicle, unlocked the jewelry store’s front door, and
went inside, at which time the store’s alarm began beeping. Id. at 126. Ms.
Smith testified she then observed a white sedan, which she believed to be a
Buick, speed around to the back of the building. Id. at 127-28. At trial, the
Commonwealth suggested the white “Buick” was actually Christina Strom’s
white Honda Accord, which Appellant sometimes used. Id. at 133.


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