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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA                       1    IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                           Appellee

                      v.

MATTHEW ZIMMERMAN

                           Appellant                        No. 2433 EDA 2015


                   Appeal from the PCRA Order July 17, 2015
              In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-1204831-2003
                             CP-51-CR-1204841-2003

BEFORE:     BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.:                                    FILED MAY 08, 2017

        Matthew Zimmerman appeals from the order, entered in the Court of

Common Pleas of Philadelphia County, dismissing his petition filed pursuant

to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546.

After careful review, we affirm.

        On March 19, 2007,   after    a   nonjury trial, Zimmerman was convicted of

two counts of first -degree murder and related crimes stemming from the

shooting deaths of his parents in 1997.                On July 10, 2007, the court

sentenced Zimmerman to an aggregate term of life in prison. The judgment

of sentence was affirmed by this Court on March 9, 2009, and our Supreme

Court denied allowance of appeal on August 13, 2009.


*   Former Justice specially assigned to the Superior Court.
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        On November 1, 2010,         Zimmerman, through current counsel, filed        a

timely first      PCRA   petition, raising multiple complaints of ineffectiveness of

counsel.         Zimmerman also filed two motions for discovery, seeking the

"complete" autopsy report for the victims; information pertaining to two

Commonwealth witnesses; and production of an unidentified fingerprint

found at the crime scene.           The PCRA court denied discovery and, after

issuing      a   Pa.R.C.P.   907   notice   of intent to dismiss and        considering

Zimmerman's response thereto, dismissed Zimmerman's petition without                  a

hearing on July 17, 2015. This timely appeal follows, in which Zimmerman

raises the following issues for our review:

        1.   Whether the PCRA court erred and violated due process when
        it refused to grant discovery of Brady/Giglio[1] material and
        failed to hold an evidentiary hearing to resolve genuine issues of
        fact material to the claims of ineffective assistance of counsel for
        failure to investigate and actual, factual innocence arising from
        new reliable evidence of an alibi defense?

        2. Whether the PCRA court erred in finding      that   .   .   Zimmerman
        received effective assistance of trial counsel?
Brief of Appellant, at 2.

        We begin by noting our scope and standard or review:

        On appeal from the denial of PCRA relief, our standard and scope
        of review is limited to determining whether the PCRA court's
        findings are supported by the record and without legal error.
        Our scope of review is limited to the findings of the PCRA court
        and the evidence of record, viewed in the light most favorable to



1Brady v. Maryland, 373 U.S. 83 (1963);           Giglio v. United States, 405
U.S. 150 (1972).



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        the prevailing party at the PCRA court level. The PCRA court's
        credibility determinations, when supported by the record, are
        binding on this Court. However, this Court applies a de novo
        standard of review to the PCRA court's legal conclusions.
Commonwealth v. Medina, 92 A.3d 1210, 1214-15                    (Pa. Super. 2014)

(citations and quotation marks omitted).

        We will address Zimmerman's ineffectiveness of counsel claims first.

To obtain PCRA relief on such a claim, a petitioner must establish that his

conviction or sentence resulted from "[i]neffective 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.A.       §   9543(a)(2)(ii). Counsel       is   presumed to

be effective; to rebut     that presumption, the petitioner must demonstrate
counsel's performance was deficient and that such deficiency prejudiced him.

Commonwealth v. Cola vita, 993 A.2d 874, 886              (Pa. 2010);    Strickland    v.

Washington, 466 U.S. 668 (1984).               Prejudice requires proof that, absent

the allegedly deficient performance, the outcome of trial would likely have

been different.   Commonwealth v. Daniels, 104 A.3d 267, 285                  (Pa. 2014).

When asserting    a   claim of ineffective assistance of counsel, an appellant is

required to make the following showing:              (1) the underlying claim is of

arguable merit; (2) counsel had no 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 proceedings would have been

different. Commonwealth v. Kelley, 136 A.3d 1007, 1012 (Pa. Super.



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2016).       The failure to satisfy any prong of the test for ineffectiveness will

cause the claim to fail.       Id.
        Zimmerman identifies five areas in which he believes trial counsel was

ineffective.      First, we will address his assertion that counsel was ineffective

in    failing    to   render accurate       advice     regarding    the   advantages     and

disadvantages of waiving his right to            a   jury trial. Zimmerman asserts that
trial counsel allowed him to sign            a   "misleading" written jury waiver form

stating as follows:

        Do you understand that instead of a jury trial you can choose to
        be tried by a Judge sitting without a jury in which case you will
        have all the same rights you would have at a jury trial except
        that the Judge sitting alone will decide whether or not you are
        guilty?

Brief of Appellant, at 43.           Zimmerman claims, without citation to authority,

that this portion of the standard waiver form            is   misleading "because   a   bench

trial does not afford the same protections as             a   jury trial." Id. Zimmerman
further asserts - also without support - that, had he opted for               a   jury trial,
he would have been entitled to a mistrial based on prosecutorial misconduct.

"We have repeatedly held that failure to develop an argument with citation

to,    and      analysis of,   relevant authority waives the issue on review."

Commonwealth v. Plante, 914 A.2d 916, 924                      (Pa. Super. 2006) (citation




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omitted).    Because Zimmerman has failed to support these bald assertions

with citation to authority, he has waived this claim.2

        Moreover, Zimmerman was colloquied extensively by the trial court

regarding his decision to waive     a   jury trial. See   N.T. Trial,   3/6/07, at 5-24.
The trial court advised Zimmerman of           "[the] essential ingredients, basic to
the concept of   a   jury trial[:] that the jury   be chosen from members of the

community (a jury of one's peers), that the verdict be unanimous, and that

the accused be allowed to participate in the selection of the jury panel."

Commonwealth v. Williams, 312 A.2d 597, 600                 (Pa. 1973).     Based upon

the totality of relevant circumstances, see Commonwealth v. Mallory, 941

A.2d 686, 698 (Pa. 2008), Zimmerman's decision to waive his right to              a   jury
was knowing and intelligent. Accordingly, because the underlying claim that

his waiver was not knowing and intelligent is without merit, counsel cannot

be deemed ineffective.      Kelley, supra.
        Next, Zimmerman claims that trial counsel was ineffective for failing to

object to the Commonwealth's violation of the Interstate Agreement on



2  To the extent that Zimmerman's claim is based on a belief that, because a
trial court sitting as fact -finder is presumed to ignore prejudicial material,
see Commonwealth v. Irwin, 639 A.2d 52, 54 (Pa. Super. 1994), he
would not have been entitled to a mistrial had the prosecution committed
prejudicial misconduct, his belief is misplaced. Prosecutorial misconduct
may form the basis for a mistrial not only in jury trials, but also in bench
trials. See Commonwealth v. Francis, 665 A.2d 821, 825 (Pa. Super.
1995) (mistrial granted in nonjury trial where prosecution's                   improper
references were prejudicial to defendant).


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Detainers, 42 Pa.C.S.A. §§ 9101-9108 ("IAD"). Pursuant to the IAD,              a   State

that obtains     a   prisoner for purposes of trial must try him within 120 days of

his arrival and, if it returns him to his original place of imprisonment prior to

that trial, charges shall be dismissed with prejudice.                 Alabama v.
Bozeman, 533 U.S. 146, 146 (2001).                   Zimmerman claims that the

Commonwealth returned him to federal custody without holding              a   trial and,

thus, he was entitled to         a   dismissal of charges.    This claim is patently

meritless.

        On September 2, 2005, through counsel, Zimmerman filed a "Motion

to Dismiss Pursuant to the Interstate Agreement on Detainers" in which he

raised the claim now presented on appeal.           On March 7, 2007, the motion

was denied by the trial court, which concluded that Zimmerman's transfer

did not occur pursuant to the IAD, but rather via       a    writ of habeas corpus ad
prosequendum.3 Because Zimmerman's counsel did raise this issue prior to

trial, his ineffectiveness claim must fail.

        Zimmerman next alleges that trial counsel was ineffective for failing to

move to dismiss the charges based on the allegedly unreasonable delay that




3
 The IAD "does not apply when custody [is] obtained by means of writ of
habeas corpus ad prosequendum."     Commonwealth v. Diggs, 416 A.2d
1119, 1120 (Pa. Super. 1979), citing United States v. Mauro, 436 U.S.
340 (1978).



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occurred between the time the murders were committed in 1997 and the

date he was arrested in 2003. This claim is meritless.

        "To prevail on     a   claim of deprivation of due process based on pre -

indictment delay,     a   defendant must establish: (1) that the delay caused him

or her actual prejudice, and (2) that the Commonwealth's reasons for the

delay were improper." Commonwealth v. Louden, 803 A.2d 1181, 1184

(Pa. 2002).

        In order for a defendant to show actual prejudice, he or she
        must show that he or she was meaningfully impaired in his or
        her ability to defend against the state's charges to such an
        extent that the disposition of the criminal proceedings was likely
        affected. This kind of prejudice is commonly demonstrated by
        the loss of documentary evidence or the unavailability of a key
        witness. It is not sufficient for a defendant to make speculative
        or conclusory claims of possible prejudice as a result of the
        passage of time. When a defendant claims prejudice through
        the absence of witnesses, he or she must show in what specific
        manner missing witnesses would have aided the defense.
        Furthermore, it is the defendant's burden to show that the lost
        testimony or information is not available through other means.

Id. (internal citations omitted).
        Here, Zimmerman asserts that, had the Commonwealth been more

diligent   in its   prosecution, he could have "gathered the alibi witnesses,

obtained the complete autopsy report and retained an expert witness to

establish the time of death with greater precision." Brief of Appellant, at 53.

However, Zimmerman fails to demonstrate how the delay in prosecution

actually prejudiced him.         Indeed, this claim   is belied by   the affidavits of

alleged alibi witnesses Zimmerman attached to his opposition to the


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Commonwealth's motion to dismiss his PCRA petition, which were obtained

in 2011   - twelve     years after the murders occurred and four years after his

trial occurred. Moreover, Zimmerman provides absolutely no foundation for

his assertion that he was not given the complete autopsy report of the

victims at the time of his trial. Rather, he inexplicably asserts that because

the Commonwealth has not denied the existence of        a   more complete report,

it must exist. In fact, the Commonwealth states in its brief that Zimmerman

"was provided with the one and only report."           Brief of Appellee, at 15.

Because Zimmerman has failed to demonstrate that he was prejudiced by

the delay in his prosecution, Louden, supra, he is entitled to no relief.4

        Finally, Zimmerman claims that trial counsel was ineffective because

he "made no          effort to fix the time of death[,] which was essential to

establish the alibi defense," Brief of Appellant, at 41, and failed to engage

an expert witness to "confirm that the time of death was between 5 a.m.

Sunday and       5   p.m. Sunday, in which case Zimmerman would have had an

alibi out of the mouths of the prosecution's own witnesses."     Id. at   55.



4  Zimmerman has also failed to demonstrate that the Commonwealth's
reasons for the delay were improper. Zimmerman baldly asserts that "[t]he
Commonwealth had no more evidence against Zimmerman in 2003 than it
had on February 4, 1997 when it discovered the bodies[.]"            Brief of
Appellant, at 53. The record belies this statement. In 2003, a fellow inmate
named Carl Cobbs came forward with information that he had overheard
Zimmerman admit to murdering his parents for money. Cobbs subsequently
testified at Zimmerman's trial. Moreover, Zimmerman does not explain
what possible "tactical advantage" the Commonwealth gained by allegedly
intentionally delaying his prosecution.


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        To prevail on a claim for ineffective assistance of counsel for failure to

call an expert witness,          a   petitioner 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[']
            existence; (4) that the witness[ was] available and
            prepared to cooperate and would have testified on
            Appellant's behalf; and (5) that the absence of the
            testimony prejudiced the Appellant.
        Commonwealth v. Lawson, [] 762 A.2d 753, 756 (Pa. Super.
        2000) citing Commonwealth v. Pursell, [] 724 A.2d 293 ([Pa.]
        1999). Our Supreme Court has also made clear that: "[w]hen a
        defendant claims that some sort of expert testimony should have
        been introduced at trial, the defendant must articulate what
        evidence was available and identify the witness who was willing
        to offer such evidence." Commonwealth v. Williams, [] 640
        A.2d 1251, 1265 ([Pa.] 1994) citing Commonwealth v.
        Holloway, [] 572 A.2d 687 ([Pa.] 1990). This is consistent with
        our Supreme Court's previous mandate that to justify an
        evidentiary hearing with respect to assertions of ineffectiveness
        of trial counsel, it is required that an offer of proof be made that
        alleges sufficient facts upon which a reviewing court can
        conclude that trial counsel may have been ineffective.
        Commonwealth v. Durst, [] 559 A.2d 504, 505 ([Pa.] 1989).
        Claims of ineffectiveness of trial counsel cannot be considered in
        a vacuum. Id.

Commonwealth v. Lowery, 784 A.2d 795, 800-01                          (Pa. Super. 2001),

quoting Commonwealth v. Steward, 775 A.2d 819, 831-32 (Pa. Super.

2001).

        Here, Zimmerman identifies               a   potential expert witness, whom he

"believes    .   .   .   will testify that the time of death was sometime [on] Sunday,

February 2, 1997, between                 5   a.m. and   5   p.m."   Memorandum of Law

Supporting PCRA Petition, 11/1/10, "Request for an Evidentiary Hearing"


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(emphasis added).     However, Zimmerman neither presents an affidavit from

this expert confirming his willingness to testify to those facts, nor does he

aver that the expert was available and would have testified at trial. As such,

he has failed to demonstrate        that trial counsel was ineffective for failing to

call an expert witness.    Lowery, supra. Accordingly,       his claim lacks merit.

        Finally, Zimmerman claims that the PCRA court erred in refusing to

grant discovery and declining to hold an evidentiary hearing on the claims

raised in his PCRA petition. These claims are meritless.

        Zimmerman asserts that the PCRA court erred by not granting him

discovery of the "complete" autopsy report, as well as information regarding

any agreements the Commonwealth reached with two trial witnesses.

Zimmerman also requested the "rap sheets" of those witnesses.

        Pennsylvania Rule of Criminal Procedure 902 provides that "[e]xcept

[in certain death penalty cases], no discovery shall be permitted at any

stage of [PCRA] proceedings, except upon leave of court after          a   showing of

exceptional circumstances." Pa.R.Crim.P. 902(E)(1).           Neither the PCRA nor

the Pennsylvania Rules of Criminal Procedure define the term "exceptional

circumstances." Commonwealth v. Watley, 153 A.3d 1034, 1048 (Pa.

Super. 2016), citing Commonwealth v. Frey, 41 A.3d 605, 611 (Pa. Super.

2012). This Court, however, has held that "the trial court, in its discretion"

determines whether     a   case is exceptional and warrants discovery.           Id.
Thus, we will not disturb       a     PCRA   court's determination regarding the

existence    of exceptional    circumstances       unless   the   court abused     its

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discretion. Id. An abuse of discretion may not be found merely because an

appellate court might have reached         a   different conclusion, but requires   a

result of manifest unreasonableness, or partiality, prejudice, bias or ill -will,

or such lack of support as to be clearly erroneous.             Commonwealth v.
Kneller, 999 A.2d 608, 614    (Pa. Super. 2010) (citation      omitted).

        Here, the PCRA court explained its decision not to grant discovery as

follows:

        [W]e reviewed each and every request made by [Zimmerman] in
        each of his discovery requests and found that no exceptional
        circumstances existed for any of those requests.        To the
        contrary[,] each request was in the nature        of  a "fishing
        expedition" hoping to discover some exculpatory evidence.
        Accordingly, this [c]ourt properly followed Rule 902 and denied
        the discovery requests.
PCRA Court Opinion,    4/20/16, at 12.
        We can discern no abuse of discretion on the part of the PCRA court.

Zimmerman's requests were grounded in mere speculation that the evidence

he sought may exist.     He failed to    proffer anything, such as affidavits from

the two Commonwealth witnesses, tending to prove that his hunches have

any basis in fact.    As such, the PCRA court was within its discretion to

conclude that Zimmerman's discovery requests were nothing more than

fishing expeditions that did not constitute "exceptional circumstances" as

required under Rule 902.

        Zimmerman's claim that he was entitled to an evidentiary hearing            is

equally unavailing.   Zimmerman asserts that such         a   hearing was necessary

to "resolve matters of credibility" regarding the alibi witnesses who "were

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ready, willing and able to give [Zimmerman] an alibi Saturday night." Brief

of Appellant, at 14. We disagree.

        Pennsylvania Rule of Criminal Procedure 907 provides that the PCRA

court has the discretion to dismiss               a    petition without   a   hearing when the

court   is   satisfied "that there are no genuine issues concerning any material

fact, the defendant        is   not entitled to post -conviction collateral relief, and no

purpose would be served                by any further proceedings[.]" Pa.R.Crim.P.

907(1). "[T]o obtain reversal of           a PCRA       court's decision to dismiss      a   petition

without      a   hearing, an appellant must show that he raised               a   genuine issue of

fact which, if resolved in his favor, would have entitled him to relief, or that

the     court      otherwise      abused    its       discretion   in   denying      a   hearing."

Commonwealth v. Hanible, 30 A.3d 426, 452-53                              (Pa. 2011), quoting

Commonwealth v. D'Amato, 856 A.2d 806,820                           (Pa. 2004).

        Here, Zimmerman has failed to satisfy this burden.                            Zimmerman

provided affidavits from four purported alibi witnesses.                      See Opposition to

Commonwealth's Motion to Dismiss PCRA, 10/5/11, at Exhibits AA -DD. The

first witness, Richard Antipuna, stated,                   in    relevant part, that he saw

Zimmerman at          a   party on the night of Saturday, February 1, 1997. Given

that Zimmerman believes the murders occurred between                          5   a.m. and   5   p.m.

on    Sunday, Antipuna's testimony would be irrelevant.                            Second, Mark

Hoffman stated that he saw Zimmerman at                     a   friend's house between       3   p.m.

and 6 p.m. on the Sunday of the murders.                        Even if the murders occurred

during the timeframe Zimmerman postulates, Hoffman only provides an alibi

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for two out of twelve relevant hours. The final two witnesses, Dawn Kile and

James Holton, claim also to have seen Zimmerman at the party on Saturday

evening.    Again, however, given Zimmerman's theory of the case, these

statements fail to supply Zimmerman with an alibi for the relevant time

period.

          Because    none   of   the   proffered     statements   actually   provide

Zimmerman with an alibi, the PCRA court properly concluded that he failed

to raise    a    genuine issue concerning    a     material fact that warrants an

evidentiary hearing.

        Order affirmed.

Judgment Entered.




J seph D. Seletyn,
Prothonotary


Date: 5/8/2017




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