J-S02028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JASON MCMASTER

                            Appellant                  No. 156 EDA 2015


                 Appeal from the PCRA Order December 8, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1202641-2003


BEFORE: SHOGAN, J., LAZARUS, J., and STABILE, J.

MEMORANDUM BY LAZARUS, J.:                        FILED FEBRUARY 03, 2016

        Jason McMaster appeals from the order of the Court of Common Pleas

of Philadelphia County that dismissed his petition filed pursuant to the Post

Conviction Relief Act.1 After careful review, we affirm.

        On direct appeal, this Court summarized the underlying facts as

follows:

        At about 8:45 p.m., on November 16, 2003, McMaster
        approached the victim, Joseph Briglia (“Briglia”), who was at a
        bar with several of his friends. Briglia and his friends did not
        respond to McMaster’s attempts to engage the group in
        conversation. When the group did not respond, McMaster, who
        appeared to be intoxicated, returned to his seat at the far end of
        the bar.    Sometime within the next hour, McMaster again
        approached the group and attempted to engage them in
        conversation. As he did so, he leaned over Briglia and dropped
        cigarette ashes on him. Briglia asked McMaster to back away.
____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
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     When McMaster failed to leave, Briglia asked the bar manager
     for assistance. The bar manager asked McMaster to leave the
     group alone. As McMaster began to return to his seat, he stated
     that “you don’t know who I am. I’ll kill you.” After a few
     minutes, McMaster again approached the group, this time
     stabling Briglia with a knife in the side of Briglia’s neck. Briglia
     died as a result of the attack.

     After a bench trial, the trial court convicted McMaster of [first
     degree murder and possession of an instrument of crime (PIC)].
     The trial court sentenced McMaster to life in prison for his
     conviction of murder, and a concurrent prison term of two and
     one-half to five years for his conviction of [PIC].

Commonwealth       v.   McMaster,     No.   2683    EDA    2004,   unpublished

memorandum at 1-2 (Pa. Super. filed September 11, 2006).

     After this Court affirmed McMaster’s judgment of sentence on

September 11, 2006, he filed a petition for allowance of appeal, which our

Supreme Court denied on March 27, 2007. The PCRA court summarized the

subsequent history as follows:

     On October 31, 2007, [McMaster] filed a pro se PCRA petition.
     He filed a supplemental pro se PCRA petition the following year.
     In his pleadings, [McMaster] alleged ineffective assistance of
     both trial and appellate counsel, and asked to represent himself.
     On July 10, 2008, the court conducted a hearing with regard to
     [McMaster’s] request to proceed pro se and determined that
     [McMaster] no longer wanted to represent himself. The court
     subsequently appointed David Rudenstein, Esq. as PCRA counsel.
     On October 6, 2008, Mr. Rudenstein filed an amended PCRA
     petition.2 Mr. Rudenstein also requested funds for a forensic
     psychologist and private investigator. On February 11, 2009,
     this court approved counsel’s request.
        2
           Counsel raised three issues in his amended PCRA
        petition: (1) trial counsel was ineffective for failing to call
        alleged eyewitness Thomas Esposito and Sylvia Ricchezza;
        (2) trial counsel was ineffective for failing to retain the
        services of an expert witness to determine whether
        [McMaster’s] mental health issues and intoxication on the


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        night in question would have prevented him from forming
        a specific intent to kill; and (3) all counsel were ineffective
        for failing to preserve a weight of the evidence claim.

     Subsequently, Dr. Stephen Samuels, a well-respected forensic
     psychologist, interviewed and examined [McMaster], and a
     private investigator looked into [McMaster’s] eyewitness claims.
     On May 13, 2010, based upon the findings of Dr. Samuels and
     the private investigator, Mr. Rudenstein informed the court that
     he could not successfully present a claim of ineffective assistance
     for failing to retain a medical expert or failing to present Mr.
     Esposito and Ms. Ricchezza as witnesses at trial. Counsel still
     intended to present the remaining PCRA claim.

     In response to Mr. Rudenstein’s determination, [McMaster] filed
     multiple pro se pleadings – the first was entitled “Motion to
     Amend PCRA Petition” and the second was a written request that
     Mr. Rudenstein be removed. On April 25, 2011, the court
     permitted Mr. Rudenstein to withdraw and ordered new counsel
     be appointed.

     On April 29, 2011, Lee Mandell, Esq., was appointed PCRA
     counsel.       On February 27, 2012, Mr. Mandell filed a
     supplemental PCRA petition alleging after-discovered evidence in
     the form of a witness, Kenneth Blanda, whom trial counsel failed
     to call at trial. The case was continued on numerous occasions
     over the next two years to allow [McMaster] and PCRA counsel
     to investigate this new claim.          During this same time,
     [McMaster] filed additional pro se PCRA filings in an attempt to
     supplement counsel’s pleadings. At a status conference on
     October 4, 2013, all parties agreed that [McMaster] was entitled
     to an evidentiary hearing limited to the issue regarding counsel’s
     alleged failure to call Kenneth Blanda.

     On May 2, 2014, this court conducted an evidentiary hearing.
     [McMaster’s] father . . . and Kenneth Blanda testified for the
     defense. At the conclusion of the hearing, the court took the
     matter under advisement and directed the parties to submit
     proposed Findings of Fact and Conclusions of Law.

     On December 15, 2014, after reviewing the trial and evidentiary
     hearing record and considering the arguments and briefs of
     counsel, this court dismissed the instant PCRA petition for lack of
     merit.



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PCRA Court Opinion, 2/26/15, at 1-3.

     On January 9, 2015, McMaster’s counsel filed a notice of appeal, and

on February 11, 2015, in response to an order from the court, counsel filed a

timely concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b).    The trial court issued its Rule 1925(a) opinion on

February 26, 2015.

     On February 23, 2015, McMaster petitioned this Court for permission

to proceed pro se. We remanded the matter to the PCRA court to conduct a

hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

On March 16, 2015, the PCRA court determined that McMaster’s decision to

waive appellate counsel was knowingly, voluntarily and intelligently made.

The court permitted appellate counsel to withdraw and granted McMaster’s

request to file a supplemental Rule 1925(b) statement.

     McMaster filed his supplemental statement on April 22, 2015, and the

PCRA court filed a supplemental opinion on July 6, 2015.

     On appeal, McMaster raises the following issues for our review:

     1. Was the evidence sufficient to sustain a verdict of first degree
        murder when the Commonwealth’s evidence strongly
        suggested that [McMaster] was so in toxicated [sic] that he
        could not have formed an [sic] spicific [sic] intent to kill?

     2. Was the guilty verdict of murder in the first degree against
        the weight of the evidence because [McMaster] was so
        intoxicated, and was assaulted by four individuals, that he
        could not have formed a specific intent to kill, and the
        elements of first, second or even third degree [murder] were
        clearly not present?



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Appellant’s Brief at 2.

      Clearly, the PCRA does not provide relief for the claims of trial court

error that McMaster raises in his statement of questions presented. See 42

Pa.C.S. § 9543(a). However, because McMaster’s brief discusses issues that

(1) are cognizable under the PCRA, (2) were preserved in his Rule 1925(b)

statement; and (3) were addressed by the PCRA court in its opinion, we will

reach the substance of his argument.         See Commonwealth v. Phillips,

580 A.2d 840, 842 n.3 (Pa. Super. 1990) (“Although our review of the issues

raised on appeal has been hampered by the defects in appellant’s brief, we

are not precluded from reaching the merits of appellant’s claim as the lower

court has addressed each contention.”).

      In reviewing an appeal from the denial of PCRA relief, “our standard of

review is whether the findings of the court are supported by the record and

free of legal error.”     Commonwealth v. Martin, 5 A.3d 177, 182 (Pa.

2010) (citations omitted).

      McMaster’s claims all involve allegations of ineffectiveness of trial

counsel. To be eligible for relief under the PCRA, McMaster must prove by a

preponderance of the evidence that his conviction resulted from “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.”       42 Pa.C.S. § 9543(a)(2)(ii).

“Counsel is presumed to be effective and the burden of demonstrating

ineffectiveness rests on appellant.”    Commonwealth v. Ousley, 21 A.3d

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1238, 1244 (Pa. Super. 2011). To prevail on an ineffectiveness claim, the

defendant must show that the underlying claim had arguable merit, counsel

had no reasonable basis for his or her action, and counsel’s action resulted

in prejudice to the defendant. Commonwealth v. Prince, 719 A.2d 1086,

1089 (Pa. Super. 1998).

      McMaster first argues that his trial counsel was ineffective for failing to

effectively cross-examine Steven DiGregorio and Edward Renzi, who were

witnesses to McMaster’s confrontation with the victim at the bar.

      At trial, DiGregorio and Renzi both testified that McMaster walked

across the bar and stabbed the victim in the neck. Renzi testified that after

he saw McMaster swing at the victim, he grabbed McMaster by the back of

his sweatshirt.   At that point, he did not realize that the victim had been

stabbed. N.T. Trial, 9/22/01, at 85-86, 114-16. DiGregorio testified that he

grabbed McMaster and threw him off the victim after he saw McMaster punch

the victim’s face. N.T. Trial, 9/21/04, at 85-88.

      McMaster asserts that if trial counsel had questioned the witnesses

about their “differing testimonies,” trial counsel could have achieved “a

better outcome on the part of the appellant, even proving justification/self-

defense on the behalf of the appellant.” Appellant’s Brief, at 7.

      Our review of the trial testimony indicates that counsel engaged in

lengthy cross-examination of DiGregorio and Renzi.            Although counsel

attempted to identify inconsistencies in their testimony, they steadfastly

maintained that McMaster was not provoked or threatened before he

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approached the victim and stabbed him in the neck. Accordingly, McMaster

has failed to establish there is arguable merit to his claim that counsel

provided ineffective assistance by failing to properly cross-examine the

eyewitnesses.

      McMaster next asserts that counsel was ineffective for failing to

request a mistrial after the court admitted McMaster’s written statement to

Detective Dennis Dusak. He argues that Detective Dusak knew that he had

difficulty reading and writing, and that the detective intentionally misled

McMaster into believing that he had written down McMaster’s statement

verbatim, when in fact, he had written down a version that made McMaster

appear guilty.   McMaster fails to note that counsel relied on McMaster’s

statement to Detective Dusak, and the circumstances surrounding the

statement, to support a defense that McMaster was incapacitated and was

unable to form an intent to kill at the time of the murder.

      At trial, McMaster attempted to prove that he could not formulate the

specific intent to kill because he was bipolar and intoxicated at the time of

the stabbing. Counsel relied on McMaster’s statement to Detective Dusak to

support his diminished capacity defense.

      In the statement, McMaster averred that he had been drinking earlier

on the night of the stabbing.    During cross-examination, Detective Dusak

admitted that he smelled alcohol on McMaster during the interview. Defense

counsel also got Detective Dusak to admit that McMaster told him that he

could not write and “could only read a little.” N.T. Trial, 9/22/04, at 206.

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Counsel argued that McMaster’s signature on the statement, which was

misspelled and written on several lines, demonstrated that he was unable to

form the specific intent to kill because he was a bipolar individual of limited

cognitive skills who was drunk when the killing occurred.

      Because counsel used McMaster’s statement to support a diminished

capacity defense, he had a reasonable basis for not objecting to the

admission of the statement.     Accordingly, McMaster’s claim of ineffective

assistance must fail. See Ousley, supra.

      McMaster next argues that counsel was ineffective for failing to call

Sylvia Ricchezza, an employee of the bar, as a witness.

      “Where a[n appellant] claims that counsel was ineffective for failing to

call a particular witness, we require proof of that witness’s availability to

testify, as well an adequate assertion that the substance of the purported

testimony would make a difference in the case.” Commonwealth v. Clark,

961 A.2d 80, 90 (Pa. 2008). With respect to such claims, an appellant must

demonstrate:

      (1) that the witness existed; (2) that the witness was available;
      (3) that counsel was informed of the existence of the witness or
      should have known of the witness’s existence; (4) that the
      witness was prepared to cooperate and would have testified on
      appellant's behalf; and (5) that the absence of the testimony
      prejudiced appellant.

Commonwealth v. Michaud, 70 A.3d 862, 868 (Pa. Super. 2013) (citation

omitted).




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      At trial, the court colloquied McMaster regarding his complaint that

counsel failed to contact several witnesses including Ricchezza.     Defense

counsel stated:

      [McMaster] also indicated that Sylvia, the barmaid, would,
      although he indicated that she would be [a] helpful witness to
      him, and I indicated to him that her statement, as I showed it to
      him, was not what he said it would be and they were attacking
      him and that he was defending himself. His indication was that
      he had some information that that was going to be different
      when she came and testified.

N.T. Trial, 9/22/04, at 101.

      Although counsel believed that Ricchezza’s testimony would be

harmful to the case, he hired an investigator to locate her.       When the

investigator was unsuccessful, counsel asked the Commonwealth to assist in

finding her. The Commonwealth indicated that it had subpoenaed Ricchezza

and tried to contact her, but that it was unable to do so. Id. at 101-02.

      After hearing argument from counsel and the Commonwealth, the trial

court told McMaster:

      As far as the barmaid is concerned, Mr. McMaster, it’s clear to
      me that your lawyer reviewed her statement, and
      notwithstanding his professional judgment, that based on what’s
      in the statement, she would not be a helpful witness. Based on
      what you said to him, he’s doing everything possible with the
      help of the Commonwealth in locating this woman, so he’ll have
      a chance to speak with her again. It’s going to be his decision
      as a lawyer to make the determination as to whether or not she
      would be helpful or harmful to you in the end.

Id. at 102-03.




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        McMaster attached to his pro se PCRA petition two affidavits from

Ricchezza. The first stated that McMaster’s counsel never contacted her and

that she never told counsel that she was in rehab.          This affidavit was

unsigned and undated. The second affidavit indicated that she was available

to testify but was never notified of trial or subpoenaed.           The affidavit

provided no details as to what the substance of her testimony would have

been.

        An evidentiary hearing is properly denied on a claim that counsel was

ineffective for calling a witness where the appellant failed to include a signed

certification as to each intended witness, including name, address and the

substance of the proposed testimony.          Commonwealth v. Brown, 767

A.2d 576 (Pa. Super. 2001).

        McMaster failed to prove that the absence of Ricchezza’s testimony

was prejudicial.    Therefore, the court properly dismissed the unproven

allegations of ineffectiveness. See Commonwealth v. Lawson, 762 A.2d

753, 756-57 (Pa. Super. 2000) (counsel not ineffective for failing to present

witness where there was no reason to believe outcome at trial would have

been different if testimony had been heard in court).

        McMaster next argues that trial counsel was ineffective for coercing

him into waiving his right to a jury trial. Although McMaster initially raised

this issue in his pro se PCRA petition, it is waived because it was not raised

in McMaster’s counseled Rule        1925(b)    statement or    in   his   pro   se

supplemental Rule 1925(b) statement.

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       Rule 1925(b)(4)(ii) provides, in relevant part, that “[t]he [s]tatement

shall concisely identify each ruling or error that the appellant intends to

challenge with sufficient detail to identify all pertinent issues for the judge.”

Failure to raise an issue in a Rule 1925(b) statement will result in waiver.

Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998). Accordingly, we

are precluded from reviewing this issue.2

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/3/2016




____________________________________________


2
  Referring to the evidentiary hearing on May 2, 2014, McMaster states,
“Kenny Blanda did testify that . . . McMaster . . . was in fact assaulted by the
victim and two of his friends before (McMaster) pulled [] his pocket knief
[sic], and acted completely in self-defense.” Appellant’s Brief, at 5. He
further states, “a witness has come forward that was present on the night of
November 16, 2003, Mr. Kenneth Blanda, who had nothing to benefit from
doing so, and did so of his own accord.” Id. at 12. These statements
regarding Blanda present no issue for us to address. See Commonwealth
v. D’Amato, 856 A.2d 806, 814 (Pa. 2004) (relief unavailable based upon
underdeveloped claims for which insufficient arguments presented on
appeal).



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