Com. v. Barksdale, D. ( 2022 )

J-S35026-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID LESLIE BARKSDALE :
:
Appellant : No. 2107 MDA 2019
Appeal from the PCRA Order Entered November 27, 2019,
in the Court of Common Pleas of Dauphin County,
Criminal Division at No(s): CP-22-CR-0003560-2015.
BEFORE: OLSON, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED: FEBRUARY 7, 2022
David Leslie Barksdale appeals from the order denying his first timely
petition filed pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A.
§§ 9541-46. We affirm.
In Barkdale’s direct appeal, we summarized the pertinent facts as
follows:
On June 24, 2014, Officer Duane Pyles responded to a
dispatch call indicating there was a previously reported
missing person and a strange odor in a basement. He and
his partner arrived at the scene and[,] upon knocking on the
door, were greeted by two residents of the home, as well as
a stench that made it clear to him that there was something
dead in the home. One of these residents, [Barksdale],
indicated he believed he had seen an ankle in the back of
the basement. Suffice it to say, Officer Pyles made his way
to the basement and saw maggots crawling away from the
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* Retired Senior Judge assigned to the Superior Court.
J-S35026-21
back corner. Officer Pyles thought he saw something under
a board so[,] using his baton[,] he lifted the board a bit and
saw what he recognized as a human joint. Officer Pyles and
his partner backed out of the basement and called a
supervisor to the scene.
The body was identified as [83-year-old] Peggy Swann.
She had previously been reported missing by Barksdale. On
June 8, 2014, Barksdale and a few friends got into an
argument. Barksdale was called names and[,] in defending
himself[,] indicated that he was sleeping with Ms. Swann,
amongst others. The friends, Bonita Crummel and Michelle
Black, were concerned and called Ms. Swann to ask if she
was sleeping with Barksdale. She told them she was but it
was not by choice. They agreed on a course of action that
included meeting with Peggy the following day and reporting
this to the Dauphin County Area Agency on Aging
(hereinafter “[Agency]”). Then they told Barksdale that
they were reporting him to [the Agency]. Barksdale was
angry and yelled at them and then hung up the phone. They
called back several times to no avail.
[The friends] did make the report to [the Agency] on
June 9, 2014; however, because they were unable to make
contact with Peggy, they did not go to [meet her]. [The
Agency] then went out to make contact with Peggy;
however, they were unable to locate her. In the late night
of June 9 or early June 10, Barksdale called Bonita Crummel
to tell her that Peggy was missing.
Approximately nine months after Swann’s body was
discovered, Barksdale was arrested and charged. A jury
trial was held on December 7-9, 2016, at which time the
Commonwealth proceeded on the theory that Barksdale
murdered Swann because he was aware that the Agency
was about to begin an investigation into the nature of his
sexual relationship with [Ms. Swann], as well as possible
financial abuse. Barksdale was found guilty of first-degree
murder on December 9, 2016, and the court sentenced him
that same day to a term of life imprisonment. Barksdale’s
post-sentence motions were denied[.]
Commonwealth v. Barksdale, 188 A.3d 502 (Pa. Super. 2018), non-
precedential decision at 1-2 (formatting altered; citation omitted).
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Barksdale filed a timely appeal to this Court. On March 6, 2018, we
affirmed his judgment of sentence. Barksdale, supra. On September 14,
2018, our Supreme Court denied Barksdale’s petition for allowance of appeal.
On December 13, 2018, Barksdale filed a pro se PCRA petition, as well
as an amended petition the next day. The PCRA court appointed counsel, and
PCRA counsel filed a supplement to Barksdale’s petition on April 2, 2019. On
May 3, 2019, the Commonwealth filed a memorandum in opposition to
Barksdale’s PCRA petition. On October 1, 2019, the PCRA court issued a
Pa.R.Crim.P. 907 notice of its intention to dismiss Barksdale’s petition without
a hearing. Barksdale did not file a response. By order entered November 27,
2019, the PCRA court dismissed Barksdale’s petition. This appeal followed.
Both Barksdale and the PCRA court have complied with Pa.R.A.P. 1925.1
On appeal, Barksdale asserts that the PCRA court erred in dismissing his
PCRA petition without a hearing because he raised multiple ineffective
assistance of counsel claims that raised numerous factual issues. Barkdale’s
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1 In its Rule 1925(a) opinion, the PCRA court addressed an issue not previously
addressed in its October 1, 2019, opinion that accompanied its Rule 907
notice, which addressed twenty-nine issues raised by Barksdale in both his
pro se and amended PCRA petitions. The PCRA court referenced this opinion
to address the remaining claims Barksdale raised in his Rule 1925(b)
statement. In its brief, the Commonwealth also addresses all twenty-nine
issues.
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PCRA counsel discusses the following nine alleged instances of ineffective
assistance of trial counsel:
1. Trial counsel [failed] to request mental health records or
request a competency evaluation of Commonwealth
witness Tracy Mitchell.
2. Trial counsel failed to investigate and call Isaura
Simpson-Perez as a defense witness[.]
3. Trial counsel failed to seek a mistrial or curative
instruction when the Commonwealth introduced hearsay
testimony from Isaura Simpson-Perez[.]
4. Trial counsel failed to properly prepare a defense,
including failure to obtain evidence and failure [to]
impeach impeachable witnesses[.]
5. Trial counsel failed to require conversations [Barksdale]
had with [the Agency to be played] in full.
6. Trial counsel failed to allow [Barksdale] to participate
during voir dire, with no reasonable basis and resulting
in prejudice.
7. Trial counsel failed to remove a sleeping juror[.]
8. Trial counsel failed to file an Omnibus Pretrial Motion
contesting the admission of statement obtained by police
officers from [Barksdale] while he was in an intoxicated
state[.]
9. Trial counsel was ineffective for failing to prepare and
investigate, specifically [the] failure to obtain and have
tested various boards and clothing left behind by the
police at the crime scene.
Barksdale’s Brief at 25-38 (excess capitalization omitted).2
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2 Barksdale filed a motion for change of appointed PCRA counsel on January
3, 2020. The PCRA court scheduled a hearing on the motion for February 18,
2020. On January 31, 2020, this Court issued an order directing the PCRA
court to hold an “on-the-record inquiry” to determine if Barksdale wished to
(Footnote Continued Next Page)
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This Court’s standard of review for an order dismissing a PCRA petition
is to ascertain whether the order “is supported by the evidence of record and
is free of legal error. The PCRA court’s findings will not be disturbed unless
there is no support for the findings in the certified record.” Commonwealth
v. Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013) (citations omitted).
____________________________________________
proceed with appointed counsel or pro se. We further directed that, if
Barksdale chose to proceed pro se, the PCRA court should hold a hearing
pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
The PCRA court scheduled a Grazier hearing for March 25, 2020,
because Barksdale wished to appear in person. This hearing was not held,
however due to the COVID-19 virus outbreak. The PCRA court stated that it
would reschedule the meeting whenever the courts reopened to the public.
By order entered July 13, 2020, this Court reiterated its previous order
and directed the PCRA court to hold a Grazier hearing at which Barksdale
could appear by video. The PCRA court did so on August 4, 2020. Following
this hearing, the PCRA court permitted PCRA counsel to withdraw and
appointed current PCRA counsel.
On January 21, 2021, Barksdale filed an application for remand for a
Grazier hearing regarding whether he wished to proceed pro se rather than
being represented by current PCRA counsel. On March 3, 2021, the PCRA
court informed this Court that it held such a hearing on March 2, 2021, and
that Barksdale indicated that he would not like to proceed pro se. Therefore,
current PCRA counsel continues to be the attorney of record for Barksdale.
Barksdale filed a subsequent request for remand, which resulted in the same
disposition. Thereafter, this Court denied Barksdale’s third request for a
remand to conduct a Grazier hearing.
Beginning on November 23, 2021, Barksdale has filed a series of
applications for relief in which he claimed that current PCRA counsel has
essentially abandoned him. As PCRA counsel raised and argued nine issues
in this appeal, we found no merit to the claim of abandonment. We therefore
deny all outstanding applications for relief filed by Barksdale.
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Moreover, when deciding whether an evidentiary hearing is required, we
observe:
The PCRA court has 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 legitimate purpose would be served by further
proceedings. To obtain a 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 material 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. Blakeney, 108 A.3d 739, 750 (Pa. 2014) (citations
omitted).
All of Barksdale’s substantive issues challenge the effectiveness of trial
counsel.3 To obtain relief under the PCRA premised on a claim that counsel
was ineffective, a petitioner must establish by a preponderance of the
evidence that counsel’s ineffectiveness so undermined the truth determining
process that no reliable adjudication of guilt or innocence could have taken
place. Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009).
“Generally, counsel’s performance is presumed to be constitutionally
adequate, and counsel will only be deemed ineffective upon a sufficient
showing by the petitioner.” Id. This requires the petitioner to demonstrate
that: (1) the underlying claim is of arguable merit; (2) counsel had no
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3Barksdale had two attorneys represent him at trial. For ease of discussion,
we will refer to them as “trial counsel.”
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reasonable strategic basis for his or her action or inaction; and (3) the
petitioner was prejudiced by counsel's act or omission. Id. at 533. A failure
to satisfy any prong of the test for ineffectiveness will require rejection of the
claim. Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).
In his first claim, Barksdale asserts that trial counsel was ineffective for
failing to request mental health records or a competency evaluation of
Commonwealth witness Tracy Mitchell. The PCRA court found that Barksdale
could not meet any of the prongs of the ineffectiveness test:
First, [Barksdale] has failed to demonstrate that the
underlying legal issue has any sort of arguable merit. At
[his] jury trial, Ms. Mitchell was called as a witness for the
Commonwealth. Before she was permitted to testify before
the members of the jury, both attorneys were given the
opportunity to examine the witness as to her competency.
It was very clear to [the trial court] that Ms. Mitchell
possessed the mental capacity to testify and to recall the
events she witnessed truthfully. Specifically, she knew the
date, the medications she was currently taking, that she was
subpoenaed by [the trial court], and most importantly she
could recognize the difference between a truth and a lie.
Second, [Barksdale] has failed to show that his counsel’s
actions lacked an objective reasonable basis. Clearly,
counsel did not need to request Ms. Mitchell’s mental health
records because a competency evaluation was completed on
the record. Further, “[a]n attorney’s chosen strategy will
not be found to have lacked a reasonable basis unless it is
proven that an alternative not chosen offered a potential for
success substantially greater than the course actually
pursued.” Commonwealth v. Cox, 983 A.2d 666 ([Pa.]
2009). It is [the PCRA court’s] belief that no other
alternative strategy chosen by [Barksdale’s] trial counsel
would have rendered a substantially greater result in his
case. Additionally, [Barksdale] and his PCRA counsel failed
to proffer any other alternative.
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Finally, we do not see where [Barksdale] could have been
prejudiced by his trial counsels’ action. As previously
stated, a competency evaluation was completed on the
record to the satisfaction of [the trial court]. Further,
[Barksdale] fails to realize that Ms. Mitchell’s mental health
records would have been beyond his reach, as such records
are protected and confidential without the signed consent of
the patient. Therefore, any request for mental health
records would likely have been a fruitless endeavor. Thus,
we find no merit in this claim.
PCRA Court Opinion, 10/1/19, 6-7 (citation omitted).
Our review of the record supports the PCRA court’s conclusions. Claims
of ineffectiveness cannot be raised in a vacuum. Commonwealth v.
Thomas, 783 A.2d 328, 333 (Pa. Super. 2001). “This Court will not consider
claims of ineffectiveness without some showing of factual predicate upon
which counsel’s assistance may be evaluated.” Id. (citation omitted). Here,
the trial court found Ms. Mitchell competent to testify. Thus, Barksdale’s
claims about her mental health issues amount to no more than “bare
assertions” that provide no basis for a conclusion that counsel was ineffective.
Id.In his second claim, Barksdale asserts that trial counsel failed to
investigate and call Isaura Simpson-Perez as a defense witness. Ms. Simpson-
Perez was living as a tenant with Ms. Swann and Barksdale and was with him
when the police discovered Ms. Swann’s body in the basement. According to
Barksdale, Ms. Simpson-Perez wrote a letter to Ms. Swann’s granddaughter in
which she confessed to killing Ms. Swann.
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To establish that trial counsel was ineffective for failing to investigate
and/or call a witness at trial, a PCRA petitioner must demonstrate that:
(1) the witness existed; (2) the witness was available; (3)
trial counsel was informed of the existence of the witness or
should have known of the witness’s existence; (4) the witness
was prepared to cooperate and would have testified on
appellant’s behalf; and (5) the absence of the testimony
prejudiced appellant.
Commonwealth v. Hall, 867 A.2d 619, 629 (Pa. Super. 2005) (citation
omitted).
While Ms. Simpson-Perez had the potential to be called as a witness,
and trial counsel clearly knew of her existence, Barksdale cannot establish all
the Hall factors. He has failed to proffer sufficient facts to establish that she
was available and willing to cooperate with the defense--given Barksdale’s
assertion that she confessed to murdering Ms. Swann. Barksdale only
speculates that she would have cooperated and that her testimony would have
aided his defense. Moreover, the PCRA court reviewed the letter at issue and
concluded that Barksdale mischaracterized it:
First, we must note that [Barksdale’s] brief asserts [Ms.]
Simpson-Perez was a potential suspect because she wrote
an “apology confession letter” which [Barksdale] attached
as “Exhibit I” in his initial brief.
***
[Barksdale] argues now that his counsel was ineffective
for failing to interview or investigate [Ms.] Simpson-Perez
regarding her alleged “confession letter.” . . . After review
of the alleged “confession” letter, we find no merit in this
argument either. [The PCRA court] was able to ascertain
from Ms. Simpson-Perez’s letter that she was informing a
family member of the victim, Peggy Swann, of her death.
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No “confession” was present. Thus, there was nothing for
trial counsel to investigate. Further, [Barksdale]
“confessed” to the killing of Ms. Swann to multiple
individuals.
PCRA Court Opinion, 10/1/19, 7-10. Thus, for the above reasons, Barksdale’s
second claim fails.
In his third claim, Barksdale asserts that trial counsel was ineffective for
failing to seek a mistrial or curative instruction after a Commonwealth witness,
Benjamin Palmer, provided hearsay evidence regarding Ms. Simpson-Perez.
He further notes that the Commonwealth did not call her as a witness even
though it informed the court of its intention to do so. The PCRA court found
no merit to this claim because “no hearsay testimony was admitted through
Benjamin Palmer.” PCRA Court Opinion, 12/15/20, at 5. Our review of the
record supports the PCRA court’s reading of Mr. Palmer’s testimony. The
record also supports the PCRA court’s statement that the Commonwealth
informed the court that it would call Ms. Simpson-Perez. Id. at 4. However,
the fact that the Commonwealth later chose not to call her did not prejudice
Barksdale because no hearsay testimony was introduced. Thus, there was no
need for trial counsel to seek a mistrial or curative instruction. Barksdale’s
third ineffectiveness claim does not entitle him to relief.
In his fourth claim, Barksdale broadly asserts that trial counsel failed to
prepare a proper defense, including obtaining evidence and impeaching
certain Commonwealth witnesses. In support of a potential defense,
Barksdale again considers Ms. Simpson-Perez a suspect because of her
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“confession” letter. He also faults trial counsel for failing to effectively cross-
examine the following Commonwealth witnesses: 1) Bonita Crummel; 2)
Michelle Black; 3) Kathy DeHaven; 4) Benjamin Palmer; 5) Officer Matthew
Gallup; and 6) Ian Munz and Corey Williams, the jailhouse informants who
testified that Barksdale confessed that he killed Ms. Swann. See Barksdale’s
Brief at 32-33.
The PCRA court addressed trial counsel’s cross-examination of each of
these witnesses and found that Barksdale’s assertions were refuted by the
record. The court first found that it properly permitted Ms. Crummel and Ms.
Black to testify regarding Barksdale’s relationship with Ms. Swann. See PCRA
Court Opinion, 10/1/20, at 11-13.4 Regarding Ms. Black, the PCRA court
rejected Barksdale’s claim because “trial counsel explicitly questioned Ms.
Black about her inconsistent testimony at trial.” Id. at 13.
The PCRA court also rejected Barksdale’s claim that trial counsel was
ineffective in cross-examining Ms. DeHaven about inconsistent statements she
made regarding the last time she had seen Ms. Swann. According to the PCRA
court, “trial counsel very explicitly asked Ms. [DeHaven] about the last time
she had seen [Ms. Swann]. In addition, the PCRA court noted that Ms.
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4 In its brief, the Commonwealth argues that Barksdale’s claim regarding the
testimony of these women was previously litigated in his direct appeal. See
Commonwealth’s Brief at 19; 42 Pa.C.S.A. § 9544(a). Although this Court
found their testimony relevant and admissible, Barksdale now challenges the
adequacy of trial counsel’s cross-examination of them, which is a separate
issue.
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DeHaven “even indicated in response to [trial] counsel’s questioning that she
had seen Ms. Swann on June 9, 2014, because [Barksdale] had offered to
mow her lawn to allow her to go talk with [Ms. Swann].” Id. This statement
was consistent with testimony Barksdale would later provide in his defense.
The PCRA court also rejected Barksdale’s claim regarding the cross-
examination of Benjamin Palmer because trial counsel “very clearly asked the
witness whether he had [Ms. Swann’s] phone number in his pocket at the time
of [his] arrest.” Id. The PCRA court further opined that “trial counsel
effectively cross-examined Officer Gallup, even getting Officer Gallup to admit
that his prior testimony regarding whether he saw Tracy Mitchell was
incorrect.” Id. at 13-14
Finally, the PCRA court rejected Barksdale’s claim that trial counsel
failed to attack the credibility of jailhouse informants, Ian Munz and Corey
Williams, upon cross-examination. The PCRA court explained:
[W]e believe that trial counsel effectively cross examined
both witnesses, and in doing so, challenged their credibility.
During Mr. Munz’s testimony, defense counsel recognized
inconsistencies with Mr. Munz’s recorded statement and the
statements he was making at trial and specifically
questioned him about it. As for Mr. Williams, trial counsel
engaged in in-depth questioning regarding the number of
times the witness had been in and out of jail for violations
of his parole and the reasons behind each violation. Thus,
we believe that trial counsel properly challenged the
credibility of both “jailhouse informants” and [Barksdale’s]
claim is meritless.
Id. at 18 (citations omitted).
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Our review of the record supports all the PCRA court’s conclusions; trial
counsel effectively cross-examined each of these witnesses. In addition, our
reading of the transcripts from the jury trial reveals that trial counsel
presented a clear defense by arguing that Benjamin Palmer had a clear motive
for murdering Ms. Swann. See N.T. (closing argument); see also Barksdale,
non-precedential decision at 4 (recognizing that “Barksdale’s defense was
based largely on his assertion that an individual named Benjamin Palmer
actually killed [Ms.] Swann during the course of a robbery”). 5 Thus,
Barksdale’s fourth claim is without merit.
In his fifth claim, Barksdale asserts that trial counsel was ineffective for
failing to request that his voicemails left with the Agency on Aging be played
in the entirety because he was allegedly “prejudiced by the fact the
Commonwealth hand picked parts of messages for the purpose of making
[him] look bad.” Barksdale’s Brief at 34. According to Barksdale, he “suffered
a prejudice because the jury could not hear his overwhelming concern for his
missing friend.” Id.
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5 As part of this issue, Barksdale also claims that trial counsel was ineffective
for failing to call Tim Farner as a defense witness to impeach the credibility of
the jailhouse informants. The PCRA court did not address this issue because
“[Barksdale’ and his PCRA counsel have failed to provide any indication to [the
PCRA court] that witnesses with the ability to discredit the Commonwealth’s
informants even existed.” PCRA Court Opinion, 10/1/19, at 20. Thus, it
appears Barksdale is raising Mr. Farner’s name for the first time on appeal,
which results in waiver.
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The PCRA court rejected this claim because it was not sufficiently
developed:
[The PCRA court] is at a loss if words in responding to
this claim as neither [Barksdale] nor his PCRA counsel have
addressed this issue at length. [Barksdale’s] brief only
states that counsel was ineffective in this regard because
“the jury [needed] to receive the full and correct context of
the messages rather than just the points of these recordings
that were favorable to the Commonwealth.” Here,
[Barksdale] fails to point specifically to any portions of the
recorded conversations that would have given the jury the
“full and correct context of the messages.” Further, he does
nothing to aid [the PCRA court] in discerning what the jury
would have heard had the full conversations been played.
Thus, we find no merit to this claim.
PCRA Court Opinion, 10/1/20, at 14-15.
Barksdale’s argument as to this claim remains undeveloped in his
appellate brief. As noted above, claims of ineffectiveness cannot be raised in
a vacuum. Thomas, supra. Our review of the record reveals that Barksdale
left approximately 18 voicemails with the Agency on Aging over an
approximate three-week period. See N.T., 12/6/16, at 303. Barksdale does
not develop why the jury needed to hear the entirety of all the voicemails or
even the one’s specifically used by the Commonwealth at trial. As this claim
is undeveloped, we will not consider it further. See Commonwealth v.
Tielsch, 934 A.2d 81, 93 (Pa. Super. 2007) (holding that undeveloped claims
will not be considered on appeal).
In his sixth claim, Barksdale asserts that trial counsel was ineffective for
failing to allow him to participate during the voir dire process when selecting
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his jury. He asserts that trial counsel told him to “shut up” when he attempted
to participate. Barksdale’s Brief at 35. Although he acknowledges case law
which provides that certain decisions regarding the conduct of voir dire are
properly made by counsel alone, he nevertheless asserts that “voir dire is an
important part of the trial process.” Id. (citing Commonwealth v.
Hunsberger, 58 A.3d 32, 37 (Pa. 2012). According to Barksdale, “[w]hile
there may be no law that requires trial counsel to consult with their client
during [voir dire], refusing to allow the client to give input in the [voir dire]
process is unreasonable.” Id.In rejecting Barksdale’s claim, the PCRA court cited Hunsburger,
supra, and concluded that, “[e]ven if [Barksdale’s] assertions regarding trial
counsels’ comments during voir dire are correct, this would be harmless error
and would entitle [Barksdale] to no relief. PCRA Court Opinion, 10/1/20, at
16. We agree. Although the voir dire process was transcribed, Barksdale does
not direct us to where in these proceedings trial counsel made the alleged
statement to him. Barksdale’s self-serving statement is not sufficient to
require an evidentiary hearing. Thus, Barksdale’s sixth claim fails.
In his seventh claim, Barksdale asserts that trial counsel was ineffective
for failing to request the removal of a juror who fell asleep during the
testimony of one of the Commonwealth’s expert witnesses. See N.T.,
12/7/16, at 647 (trial court offered to remove Juror 5, “who looked like she
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had fallen asleep towards the end of cross-examination of Dr. Dirkmatt,” but
trial counsel declined).
In rejecting this claim, the PCRA court relied upon this Court’s decision
in Commonwealth v. Lawson, 762 A.2d 753 (Pa. Super. 2000), in which we
held that a defendant must show that he suffered prejudice because of the
sleeping juror. The PCRA court then opined its belief that “the outcome of
[Barksdale’s] case would have been no different had the juror not been
sleeping.” PCRA Court Opinion, 10/1/20, at 21. We agree. Other than
claiming that this expert’s testimony “was critical to the Commonwealth’s
case,” Barksdale does not attempt to prove prejudice. Thus, Barksdale’s
seventh claim is without merit.
In his eighth claim, Barksdale asserts that trial counsel was ineffective
for failing to file a suppression motion to challenge the admission of
inculpatory statements he made to police officers while he was intoxicated.
The PCRA court interpreted this claim as one involving a failure to request a
voluntary intoxication instruction to support a third-degree murder conviction.
The court found no merit to this claim because, even if Barksdale could
establish a diminished capacity defense, the jury was instructed on third-
degree murder, but found him guilty of first-degree murder. As the PCRA
court explained:
Even if [Barksdale] was entitled to a voluntary
intoxication defense, he would still be held as criminally
liable[,] and it would only entitle him to have the charge of
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[first-degree] murder mitigated to third degree. Seeing as
[the trial court] provided a jury instruction for third degree
murder to the jury, we do not see that [Barksdale] could
have been prejudiced in any way. Additionally, we do not
believe that [Barksdale] set forth sufficient evidence to
establish he was entitled to a voluntary intoxication defense,
at it is a “very limited defense for first degree murder.”
[Commonwealth v. Bardo, 105 A.3d 678, 716 (Pa.
2014)]. Thus, we find this claim to be meritless.
PCRA Court Opinion, 10/1/19, at 22. Our review of the record supports the
PCRA court’s conclusions. Very little evidence regarding Barksdale’s
intoxication at various times during the investigation into Ms. Swann’s death
was introduced at trial. Moreover, he does not identify which evidence
supports this argument. Thus, Barksdale cannot demonstrate that he was
entitled to a voluntary intoxication instruction. Barksdale’s eighth claim fails.
In his ninth and final claim, Barksdale specifically claims that trial
counsel was ineffective for failing to obtain and have DNA testing performed
on certain items left at the crime scene. According to Barksdale, these items
“would have revealed, if properly [tested], DNA belonging to someone other
than” him. Barksdale’s Brief at 38.
The PCRA court found no merit to this claim:
[Barksdale] next asserts that trial counsel was ineffective
for failing to request forensic DNA testing on exculpatory
evidence left at the scene of the murder. Specifically, he
asserts that “the tan plain jacket, tank top, and piece of
paneling, all of which were covering or underneath [Ms.
Swann’s] body” had not been tested to reveal evidence that
“could have potentially yielded results to exonerate [him].
There is nothing to suggest that these items would have
yielded exculpatory evidence, and [Barksdale and PCRA
counsel] fail to detail why the listed items would have been
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exculpatory. Further, [neither Barksdale nor PCRA counsel]
assert what if anything DNA testing of these items would
have revealed. Thus, we believe this claim is also meritless.
PCRA Court Opinion, 10/1/19, at 10-11.
Our review of the record supports the PCRA court’s conclusion. Although
Barksdale now claims in his brief that DNA testing on these items would have
revealed DNA belonging to someone else, he does not adequately explain how
this fact would tend to exonerate him. Barksdale’s claim amounts to no more
than speculation; Ms. Swann’s body was found in a “hoarder” basement that
was cluttered with many items. Thus, Barksdale’s bare assertion does not
entitle him to an evidentiary hearing. See Commonwealth v. Clark, 961
A.2d 80, 94 (Pa. 2008) (explaining that, in the absence of a sufficient proffer,
a petitioner’s bare assertions would inappropriately convert an evidentiary
hearing into a “fishing expedition” for possible exculpatory evidence).
In sum, we agree with the PCRA court’s conclusion that the nine claims
of ineffective assistance of counsel raised in Barksdale’s Brief are without
merit. Before an evidentiary hearing will be granted, a PCRA petitioner “must
set forth an offer to prove at an appropriate hearing sufficient facts upon which
a reviewing court can conclude that trial counsel may have, in fact, been
ineffective.” Commonwealth v. Begley, 780 A.2d 605, 635 (Pa. 2001)
(quoting Commonwealth v. Pettus, 424 A.2d 1332, 1335 (Pa. 1981)).
Barksdale did not do so. Given these circumstances, the PCRA court did not
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J-S35026-21
err in dismissing Appellant’s PCRA petition without first holding an evidentiary
hearing.
Applications for relief denied. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/7/2022
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