Com. v. Cornish, J. ( 2022 )

J-S30035-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JONATHAN MONTE CORNISH :
:
Appellant : No. 200 MDA 2021
Appeal from the PCRA Order Entered January 12, 2021
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0001433-2013
BEFORE: BENDER, P.J.E., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: FEBRUARY 3, 2022
Appellant, Jonathan Monte Cornish, appeals, pro se, from the order of
the Court of Common Pleas of Dauphin County (trial court) that denied his
petition filed under the Post Conviction Relief Act (PCRA).1 After careful
review, we affirm.
On August 21, 2014, Appellant was convicted by a jury of first-degree
murder and attempted murder for beating Jose Vazquez to death with a
hammer and assaulting Jose Vazquez’s brother with a hammer on February
13, 2013 at Jose Vazquez’s house in Harrisburg, Pennsylvania. N.T. Trial Vol.
3, at 38; Commonwealth v. Cornish, No. 1562 MDA 2014, unpublished
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541–9546.
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memorandum at 1-2 (Pa. Super. filed June 29, 2015). At trial, 10 witnesses
testified for the Commonwealth, Dr. Wayne Ross, a forensic pathologist;
William Vazquez, Jose Vazquez’s brother; Christopher and Sonya Kifer, friends
of William Vazquez who were with him on February 13, 2013; Jillian Crouch,
a Pennsylvania State Police DNA analyst; and five police officers, detectives
and investigators. Appellant testified in his own defense and also called one
of the police witnesses who testified for the Commonwealth to provide
additional testimony.
Dr. Ross testified as an expert in forensic pathology, which includes
determination of the cause of death and blood stain and blood stain pattern
analysis. N.T. Trial Vol. 1, at 28-34. Dr. Ross testified that he performed an
autopsy on Jose Vazquez and opined, based on this autopsy, that Jose
Vazquez was struck in the head with a hammer at least five times, that he
was struck on other parts of his body, and that the cause of Jose Vazquez’s
death was traumatic brain injury from hammer blows to his head. Id. at 34-
35, 37-52. Dr. Ross also testified that the blood stain patterns in photographs
of the scene showed that Jose Vazquez was struck at least 10 times. Id. at
56-64. Dr. Ross testified that the castoff blood pattern showed that the
assailant was in what he called a “void area” on the right or left side of Jose
Vazquez when he inflicted the hammer blows, and described the term “void
area” as an area “[w]here you just don’t see much blood.” Id. at 57, 63, 72-
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73. Dr. Ross did not opine as to who struck Jose Vazquez or as to any physical
characteristic of the assailant.
William Vazquez testified that he is a heroin and cocaine user and that
on February 13, 2013, he and the Kifers, who were also drug users, went from
York, Pennsylvania to his brother Jose’s house to get drugs. N.T. Trial Vol. 1,
at 82-84, 92-95, 101-02. William Vazquez testified that when he arrived at
the house and knocked on the door no one answered, and that after he banged
on the door for several minutes, Appellant let him and Christopher Kifer in and
told them that Jose Vazquez was at a methadone clinic. Id. at 106-10.
William Vazquez testified that he started to go upstairs, that Appellant told
him that he could not go upstairs and went up the stairs ahead of him and
into Jose Vazquez’s second floor bedroom, and that Appellant attacked him
with a hammer when he tried to enter the bedroom, hitting him in the face
and causing him to fall down the stairs. Id. at 112-17. He testified that
Appellant came down the stairs after him with the hammer and that he ran to
the kitchen and got a knife. Id. at 113, 117-18. William Vazquez testified
that Appellant continued swinging the hammer at him, that he stabbed
Appellant, and that Christopher Kifer got the hammer away from Appellant
and held Appellant down on the floor. Id. at 118-22. William Vazquez
testified that he then went back upstairs and found Jose Vazquez badly injured
and making gurgling sounds and that he got angry and came back downstairs
and tried to stab Appellant again, but that Christopher Kifer restrained him.
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Id. at 122-24, 191-92. William Vazquez testified that the police and
emergency personnel then arrived, and that the police made him drop the
knife and took him in for questioning and released him after he gave a
statement. Id. at 125-27. On cross-examination, William Vasquez testified
that he did not notice any blood on Appellant or his clothes when he went into
the house. Id. at 160.
Christopher Kifer and his wife, Sonya, testified that they went with
William Vazquez to Jose Vazquez’s house on February 13, 2013. N.T. Trial
Vol. 1, at 225-26, 277-78. Christopher Kifer testified that when they arrived,
Appellant answered the door and said that Jose Vazquez was not home, and
that William Vazquez went in and started to go upstairs and he followed. Id.
at 229-31. Christopher Kifer testified that he then heard William Vazquez say
“Oh, my brother -- killed my brother,” that William Vazquez rolled down the
stairs into him, and that Appellant came down the stairs swinging a
sledgehammer at them. Id. at 231, 239-42, 245, 262, 272-73. He testified
that he and William Vazquez fought Appellant and tried to get the
sledgehammer from him, that William Vazquez got a knife and stabbed
Appellant, and that they were then able to subdue Appellant. Id. at 231-32,
240-46. Christopher Kifer testified that after they subdued Appellant, he had
Sonya Kifer call the police and that the police took him in for questioning. Id.
at 232, 245-51. On cross-examination, Christopher Kifer testified that he did
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not notice any blood on Appellant or his clothes when he went into the house.
Id. at 258.
Sonya Kifer testified that she stayed in the car while William Vazquez
and her husband went in the house. N.T. Trial Vol. 1, at 278-79. She testified
that 10 to 20 minutes later, her husband ran out screaming for her to call 911
because Jose Vazquez was dead. Id. at 279-80. Sonya Kifer testified that
she went into the house and saw Appellant on the ground and her husband
trying to keep William Vazquez from beating Appellant up. Id. at 280-82.
Sonya Kifer testified that she went upstairs and saw blood all over the room
and someone lying on the bed covered with a sheet. Id. at 282. She testified
that she pulled the sheet back and saw Jose Vazquez severely injured but still
trying to breathe, and that she called 911. Id. at 282-84.
The five police witnesses testified concerning what they found at the
murder scene and identified evidence collected at the scene. Two of these
witnesses testified that there were no signs of forced entry into the house.
N.T. Trial Vol. 2, at 38, 163-64. One of the other officers, who rode in the
ambulance with Appellant when he was taken to the hospital, testified that
she read Appellant Miranda2 warnings on the way to the hospital, although
he was not in custody because the police did not yet know who had committed
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2 Miranda v. Arizona, 384 U.S. 436 (1966).
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what acts. Id. at 153-55. This officer testified that she asked Appellant what
happened and Appellant said “I don’t know.” Id. at 155-56.
Ms. Crouch testified as an expert in DNA analysis concerning DNA testing
that she performed on swabs from a sledgehammer, on a cutting from the
front pocket of blue jeans that were removed from Appellant when he was
taken to the hospital and on other items. N.T. Trial Vol. 2, at 62-66. Ms.
Crouch testified that blood and bodily fluids create a much stronger DNA
profile than skin contact. Id. at 81-82. The sledgehammer and the cutting
from the blue jeans both tested positive for blood. Id. at 74, 176. With
respect to the sledgehammer, Ms. Crouch testified that Jose Vazquez’s DNA
was on the flat head, pointed head and handle and that DNA of at least two
other individuals that was insufficient for identification was on the handle. Id.
at 73-77. Ms. Crouch testified that Jose Vazquez’s DNA was on the cutting
from Appellant’s blue jeans. Id. at 77-79, 83.
Appellant testified that he was a heroin and cocaine user and met Jose
Vazquez in December 2012 and later moved into Jose Vazquez’s house. N.T.
Trial Vol. 2, at 192, 197, 199-200. Appellant testified that on the morning of
February 13, 2013, Jose Vazquez’s landlord came to the house and that
Appellant left the house to get drugs after Jose Vazquez came down to talk to
the landlord. Id. at 200-03. He testified that he bought heroin and used it at
an abandoned building and also bought cocaine before returning to the house.
Id. at 203-05. Appellant testified that when he returned to the house and
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knocked, Jose Vazquez did not answer, but that the door was unlocked and
he went in and injected the cocaine. Id. at 205-07. Appellant testified that
he then went upstairs and found Jose Vazquez on the bed with his head beaten
in and blood all over. Id. at 208-09. Appellant admitted that he did not call
911 and was instead going to leave the house when William Vazquez arrived.
Id. at 209-10. Appellant admitted that he lied to William Vazquez that Jose
Vazquez was not home and that he tried to keep him from going upstairs, and
testified that William Vazquez went upstairs, saw his brother’s body and
accused Appellant of killing him. Id. at 210-12. Appellant testified that
William Vazquez began swinging at him and that he grabbed a hammer and
hit William Vazquez with it in self-defense. Id. at 212-13. He testified that he
then came down the stairs, that William Vazquez and Christopher Kifer
struggled with him over the hammer, and that William Vazquez stabbed him.
Id. at 214-16. Appellant testified that when the police came, he was put in
an ambulance, but that he could not remember saying anything to any of the
police at the scene or on the way to the hospital. Id. at 218-19. On cross-
examination, Appellant testified that Jose Vazquez’s head was not covered up
when he found Jose Vazquez and that he could not explain how it later was
covered by a sheet. Id. at 226-29.
Appellant was sentenced to life imprisonment for the murder conviction
and a concurrent term of 20 to 40 years for the attempted murder conviction.
N.T. Sentencing at 3-4; Sentencing Order. Appellant, represented by counsel,
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filed a timely direct appeal challenging the Commonwealth’s peremptory strike
of an African American juror and the trial court’s admission of photographs of
Jose Vazquez’s head injuries. On June 29, 2015, this Court affirmed
Appellant’s judgment of sentence. Commonwealth v. Cornish, 122 A.3d
1148 (Pa. Super. 2015) (unpublished memorandum). Appellant’s counsel
filed a petition for allowance of appeal, which the Pennsylvania Supreme Court
denied on December 30, 2015. Commonwealth v. Cornish, 130 A.3d 1286(Pa. 2015).
On January 3, 2017, Appellant filed a timely pro se PCRA petition. The
trial court appointed PCRA counsel for Appellant and PCRA counsel filed a
motion raising an additional PCRA claim and memoranda narrowing the PCRA
claims that Appellant had raised in his initial PCRA petition. In response to
PCRA counsel’s filings, Appellant petitioned to proceed pro se, and on February
14, 2019, after conducting Grazier3 hearings, the trial court ordered that
Appellant could proceed pro se and granted Appellant leave to file an amended
PCRA petition. Appellant filed an amended pro se PCRA petition on April 11,
2019, and on May 20, 2020, sought leave to file a further PCRA petition. On
June 11, 2020, the trial court granted Appellant leave to file a further amended
PCRA petition and Appellant, on July 22, 2020, filed the amended PCRA
petition at issue here.
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3 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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The trial court held evidentiary hearings on Appellant’s PCRA petition by
videoconference on October 6, 2020 and December 15, 2020 at which
Appellant, one of Appellant’s two trial counsel, and the court reporter who
transcribed Appellant’s trial testified. On January 12, 2021, the trial court
denied Appellant’s PCRA petition. This timely appeal followed.
Appellant raises the following issues in this appeal:
I. Whether Appellant was denied the effective assistance of
counsel where trial counsel:
(a) Labored under an actual conflict of interest?
(b) Failed to familiarize themselves with the physical and
scientific evidence of the case?
(c) Advise[d] Appellant to concede guilt to attempted murder
charge?
(d) Fail[ed] to impeach Commonwealth witnesses with
expectation of leniency?
(e) Fail[ed] to object or ask for curative instructions?
II. Whether the PCRA Court committed reversible error by
denying Appellant’s motion to amend PCRA petition, motion
for Court to exercise it[s] subpoena powers, motion for
funds for bloodspatter expert and failing to give curative
instructions constituting an abuse of discretion?
Appellant’s Brief at 4 (suggested answers omitted).
Our review of an order denying a PCRA petition is limited to determining
whether the record supports the PCRA court’s findings and whether its decision
is free of legal error. Commonwealth v. Mason, 130 A.3d 601, 617 (Pa.
2015); Commonwealth v. Johnson, 236 A.3d 63, 68 (Pa. Super. 2020) (en
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banc); Commonwealth v. Smith, 181 A.3d 1168, 1174 (Pa. Super. 2018).
We must view the findings of the PCRA court and the evidence of record in a
light most favorable to the prevailing party. Mason, 130 A.3d at 617;
Johnson, 236 A.3d at 68; Commonwealth v. Stewart, 84 A.3d 701, 706
(Pa. Super. 2013) (en banc). The PCRA court’s credibility determinations, if
supported by the record, are binding on this Court. Mason, 130 A.3d at 617;
Johnson, 236 A.3d at 68; Commonwealth v. Widgins, 29 A.3d 816, 820
(Pa. Super. 2011).
With respect to Appellant’s five claims of ineffective assistance of
counsel, Appellant can be entitled to relief on these claims only if he proved:
(1) that the underlying legal claim is of arguable merit; (2) that counsel’s
action or inaction had no reasonable basis designed to effectuate his client’s
interests; and (3) that he suffered prejudice as a result of counsel’s action or
inaction. Mason, 130 A.3d at 618; Smith, 181 A.3d at 1174-75;
Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013). The
defendant must satisfy all three prongs of this test to obtain relief under the
PCRA. Mason, 130 A.3d at 618; Smith, 181 A.3d at 1175; Michaud, 70
A.3d at 867. To satisfy the prejudice element of an ineffective assistance of
counsel claim, Appellant must show that there is a reasonable probability that,
but for counsel’s error, the result of the proceeding would have been different.
Mason, 130 A.3d at 618; Stewart, 84 A.3d at 707.
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Appellant’s first and fifth claims of ineffective assistance fail because the
trial court resolved the disputed issues of fact on which they are based against
Appellant and its findings are supported by the record. Appellant’s first claim,
that trial counsel had a conflict of interest, was based on the fact that he had
filed a pro se malpractice complaint against trial counsel for alleged failure to
turn discovery materials over to him. The trial court, however, found that trial
counsel was unaware of Appellant’s malpractice complaint. Trial Court PCRA
Opinion at 4. That determination was supported by trial counsel’s testimony
at the PCRA hearing, which the trial court found credible. N.T. PCRA at 47-
50; Trial Court PCRA Opinion at 4. Moreover, to establish a conflict of interest,
the defendant must show that that his counsel actively represented conflicting
interests. Commonwealth v. Spotz, 18 A.3d 244, 268 (Pa. 2011). As the
trial court found, Trial Court PCRA Opinion at 4, Appellant introduced no
evidence that his trial counsel represented the interest of anyone other than
Appellant.
Appellant in his fifth claim asserts that trial counsel was ineffective for
failing to object or request a curative instruction when William Vazquez
allegedly stood up during Appellant’s testimony and called Appellant a liar.
The trial court, however, found that no such outburst occurred. Trial Court
PCRA Opinion at 5-6. That finding is likewise supported by the record. No
utterance of any kind by anyone other than Appellant, counsel who were
questioning him, and the court appears in the transcript of Appellant’s trial
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testimony. N.T. Trial Vol. 2, at 191-245. Both trial counsel and the court
reporter who transcribed Appellant’s trial, who the trial court also found
credible, testified that they did not recall hearing any outburst during
Appellant’s testimony and the trial court judge, who presided over both
Appellant’s trial and Appellant’s PCRA proceeding, did not recall any outburst.
N.T. PCRA at 38-40, 86-89; Trial Court PCRA Opinion at 5.
Appellant also failed to prove the facts that were the basis of his third
ineffective assistance claim, that trial counsel allegedly advised him to
concede that he was guilty of attempted murder and caused him to testify
that he was guilty of the attempted murder of William Vazquez. The trial court
found that Appellant did not, in fact, concede that he was guilty of attempted
murder in his testimony at trial. Trial Court PCRA Opinion at 9. That finding
is supported by the record. While Appellant testified “I think I did” in response
to trial counsel’s question “Did you intend to kill Willie when you swung the
hammer at him?,” he testified that this was in self-defense because William
Vazquez was trying to kill him and was blocking his ability to escape. N.T.
Trial Vol. 2, at 220. Moreover, trial counsel denied advising Appellant to
concede guilt and testified that when she asked the question, her
understanding, from what Appellant had said in preparation sessions, was that
Appellant would answer that he was defending himself, not that he intended
to kill William Vazquez. N.T. PCRA at 40-45. The trial court found that trial
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counsel was a credible witness and that Appellant was not. Trial Court PCRA
Opinion at 4-6.
Nor did the trial court err in rejecting Appellant’s remaining second and
fourth ineffective assistance of counsel claims. In his second claim, Appellant
argues that trial counsel was ineffective in failing to obtain an expert on the
issue of blood spatter and allegedly failing to research that subject. This claim
fails because Appellant introduced no evidence that any expert existed that
would negate Dr. Ross’s opinions or benefit his case or that the trial counsel
who examined the Commonwealth’s blood spatter expert failed to educate
himself concerning blood spatter.
Appellant bases this claim on the assertion that the term “void pattern”
in blood stain analysis refers to a gap in a blood stain that shows that a person
or object blocked the path of the blood. That, however, does not show that
any expert would have reached any conclusion different from Dr. Ross on
where the assailant stood or would have cast doubt on whether Appellant
murdered Jose Vazquez. Dr. Ross did not testify concerning “void patterns”
or that Appellant was in between the victim and the blood spatters on the wall.
While Dr. Ross used the term “void area” briefly in his testimony, he made
clear that he was using it to describe any area that blood spatter did not hit,
not just obstructed areas, and testified that the assailant was not in the path
of the blood spatter. N.T. Trial Vol. 1, at 57, 63, 72-73. Appellant points to
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nothing in the blood spatter evidence that shows that the assailant would have
been in the path of the castoff blood.
Appellant’s contention that trial counsel failed to adequately prepare on
this issue is based on the contention that the trial counsel who testified at the
PCRA hearing allegedly did not know what a “void area” is. Contrary to this
assertion, this trial counsel testified that she understood the term “void” in
bloodstain analysis to mean “a missing point of splatter.” N.T. PCRA at 27.
Although she also testified that she could not, six years after trial, further
explain what a “void area” is or how it is created, id. at 27-29, that does not
show trial counsel was inadequately prepared at trial to address the blood
spatter issue. The trial transcript shows that counsel who testified at the PCRA
hearing was not the counsel who cross-examined Dr. Ross. N.T. Trial Vol. 1,
at 64-75. The fact that trial counsel did not examine Dr. Ross on the issue of
whether he used the term “void area” correctly does not show lack of
knowledge of the term or ineffectiveness, as further examination on the term
would have significantly highlighted Dr. Ross’s briefly expressed opinion that
the assailant would not have much blood on him, which would have been
detrimental to Appellant’s defense.
In his fourth claim, Appellant asserts that trial counsel was ineffective
for allegedly failing to impeach William Vazquez, Christopher Kifer, and Sonya
Kifer with the fact that they had pending criminal charges against them at the
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time of trial. This claim fails because, to the extent that there was any support
in the record for this claim, Appellant failed to show prejudice.
Appellant’s claim that trial counsel did not put in evidence that any of
these witnesses had criminal charges that were pending against them is
contradicted by the record. The trial transcript shows that trial counsel
specifically asked both Christopher and Sonya Kifer whether they had criminal
charges against them. N.T. Trial Vol. 1, at 274, 293-94. Christopher Kifer
admitted that he had pending criminal charges against him in York County
and Sonya Kifer testified that the pending York County charges against her
and Christopher Kifer included robbery, burglary, criminal trespass, and
receiving stolen property. Id. In addition, the fact that Christopher and
Sonya Kifer were being held in jail at the time of their testimony was brought
to the jury’s attention. Id. at 217, 276. Although trial counsel did not ask
these witnesses whether they had an expectation of favorable treatment, the
prosecution in Appellant’s case had no jurisdiction over the pending charges,
which were in another county, and there was no evidence that, at the time of
trial, either of these witnesses had been offered any favorable treatment or
that they would have testified that they had any expectation of leniency. To
the contrary, Sonya Kifer testified that she had received no promise or offer
concerning the pending charges in exchange for her testimony and the only
allegedly favorable treatment that Appellant showed did not occur until more
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than five months after Appellant’s trial. Id. at 294; 7/22/20 Amended PCRA
Petition Ex. G.
In the PCRA proceeding, Appellant did produce evidence that William
Vazquez had drug and retail theft charges pending against him in York County
at the time of Appellant’s trial, but produced no evidence that any offer of
favorable treatment on those charges could have been shown at trial. N.T.
PCRA at 31; 7/22/20 Amended PCRA Petition Ex. G. Trial counsel did not ask
William Vazquez about pending charges. Trial counsel, however, cross-
examined William Vazquez extensively and brought out that he had criminal
convictions for retail theft and false identification to law enforcement and that
he has been charged with selling heroin. N.T. Trial Vol. 1, at 139-40, 208. In
addition, William Vazquez’s testimony showed that he had a far greater
incentive to be biased in favor of the prosecution and accuse Appellant of
attacking him first than the pending charges in another county could possibly
create, as he testified that he stabbed Appellant and wanted to kill Appellant
and that no charges had been brought against him. Id. at 119-21, 124, 127-
28, 187-88, 192. Given these facts and the fact that the prosecution had no
jurisdiction over the York County charges,4 there is no reasonable probability
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4 See Commonwealth v. Evans, 512 A.2d 626, 631 (Pa. 1986) (holding
that “a prosecution witness may be biased in favor of the prosecution because
of outstanding criminal charges or because of any non-final criminal
disposition against him within the same jurisdiction”) (emphasis added).
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that the marginal impeachment value from cross-examination of William
Vazquez on the pending charges would have had any effect on the outcome
of Appellant’s trial.
In his claims that do not involve ineffective assistance of counsel,
Appellant argues that the trial court erred in denying three motions that he
filed in the PCRA proceeding, a motion to amend the PCRA petition, a “Motion
for PCRA Court to Exercise Its Subpoena Powers Under 42 Pa.C.S.A. § 5905
and Secure Proposed Witnesses Attendance,” and a motion for appointment
of a blood spatter expert.5 These claims of error are likewise without merit.
Amendment of a PCRA petition “shall be freely allowed to achieve
substantial justice.” Pa.R.Crim.P. 905(A). Consistent with this standard, the
trial court twice allowed Appellant to amend his PCRA petition after he was
granted leave to proceed pro se. The only motion to amend that the trial
court denied was filed by Appellant on November 9, 2020, after the October
2020 hearing on the PCRA petition. Although a further hearing was to be held,
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5 Appellant also argues that he was entitled to PCRA relief on the ground that
the trial court failed to give a curative instruction at trial when William Vazquez
allegedly stood up and called Appellant a liar during Appellant’s testimony.
This claim fails because claims of error by the court at trial cannot be asserted
in a PCRA petition, as the PCRA prohibits claims that have been previously
litigated or waived and claims of error at trial that are not ineffective
assistance of counsel claims are necessarily previously litigated if they were
raised on direct appeal or waived if they were not. 42 Pa.C.S. §§ 9543(a)(3),
9544; Spotz, 18 A.3d at 270; Commonwealth v. Reyes-Rodriguez, 111
A.3d 775, 780 (Pa. Super. 2015) (en banc). In addition, as discussed above,
the trial court found that incident on which this claim is based did not occur.
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that hearing was limited to taking the testimony of certain witnesses who had
not been at the October 2020 hearing. N.T. PCRA at 66-67; Trial Court Order,
10/16/20, ¶2. Appellant in his November 2020 motion to amend asserted
that the sole reason that he sought to amend was to raise claims based on
the transcript of the closing arguments at his trial, but admitted that he
received that transcript in July 2020, over two months before the October
PCRA hearing. 11/9/20 Motion to Amend PCRA Petition ¶¶2, 3. Moreover,
Appellant did not state what claims he sought to raise based on that transcript.
Under these circumstances, the trial court did not err denying Appellant’s
November 2020 motion to amend his PCRA petition.
Appellant’s subpoena motion requested that the trial court issue
subpoenas for two of the four witnesses that were to testify at that hearing, a
police officer who did not testify at trial and an emergency medical worker
who was in the ambulance with Appellant on the way to the hospital. Motion
for Court to Exercise Subpoena Powers ¶¶2-5. At the October 6, 2020
hearing, however, Appellant stated that he could subpoena those witnesses
and confirmed that he would subpoena them if an additional hearing was
scheduled. N.T. PCRA at 8-9, 66. In addition, the trial court in its October
16, 2020 order scheduling the December 2020 hearing clearly stated Appellant
was to subpoena these two witnesses if he wished to have them testify at the
hearing. Trial Court Order, 10/16/20, ¶2(c)-(d).
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Appellant did not file his subpoena motion on December 4, 2020, two
weeks before the final PCRA hearing. At the December 2020 hearing,
Appellant did not contend that he had been prevented from accessing
subpoenas and claimed instead that he did not do so because he was
“overwhelmed.” N.T. PCRA at 79. Given the tardiness of the motion and the
fact that Appellant did not show that any circumstances had changed since he
undertook to subpoena the two witnesses that were the subject of the motion,
the trial court did not err in denying the motion and proceeding to conclude
the PCRA hearing as scheduled.
The trial court also did not err in denying Appellant’s motion for
appointment of a blood spatter expert. While an indigent criminal defendant
has a right to state-paid expert assistance at trial in some circumstances, Ake
v. Oklahoma, 470 U.S. 68, 83-87 (1985), there is no right to appointment of
an expert or state funding of an expert in a PCRA proceeding.
Commonwealth v. Paddy, 15 A.3d 431, 470 (Pa. 2011); Commonwealth
v. Tedford, 960 A.2d 1, 23 (Pa. 2008); Commonwealth v. McDonald, No.
241 EDA 2018, at 6 (Pa. Super. May 31, 2019) (unpublished memorandum).
Moreover, as discussed above, Appellant made no showing that a blood
spatter expert would offer any opinions that would be beneficial to his defense.
For the foregoing reasons, we conclude that Appellant has not shown
that the trial court erred in denying his PCRA petition. Accordingly, we affirm
the trial court’s order.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/03/2022
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