Com. v. Bailey, D. ( 2016 )

J-S58044-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DUSTIN PAUL BAILEY
Appellant No. 2125 MDA 2015
Appeal from the PCRA Order November 20, 2015
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0001077-2011
BEFORE: GANTMAN, P.J., BOWES, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 30, 2016
Appellant, Dustin Paul Bailey, appeals from the order entered in the
Franklin County Court of Common Pleas, which denied his first petition
brought pursuant to the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A.
§§ 9541-9546. We affirm.
In its opinion, the PCRA court fully and correctly sets forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
restate them. We add only that Appellant timely filed a notice of appeal on
December 9, 2015. The same day, the PCRA court ordered Appellant to file
a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). Appellant timely complied on December 28, 2015.
Appellant raises the following issues for our review:
_____________________________
*Retired Senior Judge assigned to the Superior Court.
J-S58044-16
(1) DID [APPELLANT’S] PLEA COUNSEL AND TRIAL
COUNSEL OPERATE UNDER A CONFLICT OF INTEREST IN
VIOLATION OF [APPELLANT’S] CONSTITUTIONAL RIGHT
TO EFFECTIVE COUNSEL?
(2) WAS [APPELLANT’S] TRIAL COUNSEL INEFFECTIVE
BECAUSE COUNSEL FAILED TO REQUEST THE CORRECT
JURY INSTRUCTIONS FOR SELF-DEFENSE AND DEFENSE
OF OTHERS AND FAILED TO OBJECT TO THE
INSUFFICIENT INSTRUCTIONS GIVEN TO THE JURY?
(3) WAS [APPELLANT’S] TRIAL COUNSEL INEFFECTIVE
BECAUSE COUNSEL FAILED TO OBJECT TO THE
INCOMPLETE FLIGHT INSTRUCTION?
(4) WAS [APPELLANT’S] TRIAL COUNSEL
CONSTITUTIONALLY INEFFECTIVE BECAUSE COUNSEL
FAILED TO REQUEST A LIMITING INSTRUCTION
REGARDING PREJUDICIAL TESTIMONY [APPELLANT] WAS
A STEROID USER?
(5) WAS [APPELLANT’S] TRIAL COUNSEL INEFFECTIVE
BECAUSE COUNSEL FAILED TO SECURE AN EXPERT TO
DEMONSTRATE THE STEROID INFORMATION PRESENTED
AT TRIAL BY THE COMMONWEALTH WAS INACCURATE
AND INSUFFICIENT TO SUPPORT THE COMMONWEALTH’S
“MOTIVE” THEORY?
(6) WAS [APPELLANT’S] TRIAL COUNSEL INEFFECTIVE
BECAUSE COUNSEL FAILED TO OBJECT TO DR. TURCHI’S
TESTIMONY ON THE GROUNDS (A) THE DOCTOR WAS NOT
OFFERED AS AN EXPERT BEFORE PROVIDING EXPERT
TESTIMONY, (B) DID NOT HAVE THE CREDENTIALS TO
TESTIFY ABOUT THE BEHAVIORAL EFFECTS OF STEROID
USE, AND (C) DID NOT EMPLOY A METHODOLOGY
GENERALLY ACCEPTED IN THE FIELD TO REACH HIS
CONCLUSIONS?
(7) WAS [APPELLANT’S] TRIAL COUNSEL INEFFECTIVE
BECAUSE COUNSEL FAILED TO OBJECT TO THE
COMMONWEALTH’S CLOSING REMARKS CONVEYING THE
PROSECUTOR’S PERSONAL OPINION OF THE GENERAL
CREDIBILITY OF CERTAIN WITNESSES AND THEIR
TESTIMONY?
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(8) DID THE PCRA COURT ENTER A DECISION
UNSUPPORTED BY THE RECORD AND INCONSISTENT
WITH THE LAW WHEN THE PCRA COURT DENIED
[APPELLANT’S] CLAIM THE AGGREGATE PREJUDICE OF HIS
PRIOR COUNSELS’ ERRORS WAS OVERWHELMING AND
NECESSITATED A GRANT OF RELIEF UNDER THE POST
CONVICTION RELIEF ACT?
(Appellant’s Brief at 4).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinions of the Honorable Carol L. Van
Horn, we conclude Appellant’s issues merit no relief. The PCRA court’s
opinions comprehensively discuss and properly dispose of the questions
presented. (See PCRA Court Opinion, filed January 8, 2016, incorporating
Order and Opinion, dated November 20, 2015, at 10-58) (finding: (1)
Appellant was initially represented by public defender, who subsequently
gave case to trial counsel; Appellant’s initial attorney testified at PCRA
hearing that Appellant was not interested in any plea offer which included
state sentence; on multiple occasions, Appellant’s initial attorney conveyed
Commonwealth’s offer of two to four years’ incarceration to Appellant, who
rejected it each time; subsequent trial counsel was looking for cases to help
him achieve his capital case certification; nevertheless, trial counsel would
have pled case out if Appellant were interested in doing so; record
repudiates claim that plea counsel’s and trial counsel’s interests conflicted;
record demonstrates Appellant intended to go to trial from outset and would
not accept plea offer that included state time; regarding claim that trial
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counsel had no way to obtain steroid expert because trial counsel did not
enter formal appearance is irrelevant here (but see issue 5); issue lacks
merit; (2) regarding claim on deadly force jury instruction, trial counsel
explained he believed, at most, simple assault occurred in this case, so
instruction on justified use of deadly force was unnecessary and could have
confused jury; likewise, counsel’s rationale for not objecting to court’s
instruction as given was based on reasonable trial strategy that case
involved self-defense and defense of others, where no serious bodily injury
occurred, and Appellant used non-deadly force to aid himself and his sister;
for same reason, counsel thought instruction on provocation and retreat was
unnecessary; finally, counsel discussed possible instruction on provocation
and retreat but thought instruction was unnecessary because this case
involved self-defense and defense of others; instruction would have caused
jury confusion; (3) court’s instruction on flight, as read to jury at trial, was
missing final portion of standard instruction, which states jury may not find
defendant guilty solely on evidence of flight; court did not erroneously
instruct jury to convict Appellant based solely on flight; here, omission in
court’s instruction is not dispositive because, when read in its entirety, flight
instruction was adequate and accurate statement of law; evidence of actual
flight was unnecessary to warrant flight charge, because trial testimony
raised jury question on attempted flight; issue lacks merit; (4) trial court
denied Appellant’s motion in limine and allowed Commonwealth to use
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J-S58044-16
evidence of Appellant’s steroid use solely to establish motive; nevertheless,
evidence of steroid use was limited in scope and comprised only minor part
of Commonwealth’s case; trial counsel explained at PCRA hearing that he
declined to request limiting instruction because he wanted to avoid
highlighting steroid issue to jury; trial counsel’s references to steroid
evidence during cross-examination and closing argument were scarce and
did not undermine counsel’s overall trial strategy; trial transcript reveals that
if steroid evidence had any impact on jury, it was to establish motive; court
found unconvincing Appellant’s contention that steroid evidence portrayed
him as lawbreaker and damaged his credibility; Appellant admitted to crimen
falsi convictions on direct examination, so jury already knew Appellant had
criminal history; Appellant failed to establish prejudice; (5) on cross-
examination, Appellant’s trial counsel extensively called expertise of
Commonwealth’s witness, Dr. Turchi, into question, revealing that Dr. Turchi
had not attended seminar on steroids or read relevant literature in five or six
years; Dr. Turchi also confirmed he had not examined Appellant, and that
numerous factors could be combined with alcohol to produce “bad result”;
although defense expert witness was available to testify and could have
been used to contradict Dr. Turchi’s steroid testimony, trial counsel elected
to pursue rigorous cross-examination instead, to impeach Dr. Turchi
regarding his borderline knowledge on subject of steroid use, which counsel
characterized as embarrassingly limited and unbelievable; (6) Dr. Turchi’s
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J-S58044-16
testimony regarding steroid use consisted of answers to four questions;
contrary to Appellant’s argument, Dr. Turchi did not testify that steroids
alone could trigger violence; Dr. Turchi testified steroid use could cause
aggression; Dr. Turchi was qualified to opine on different substances or
factors which could provoke aggression; on direct, Dr. Turchi testified he had
not reviewed Appellant’s bloodwork, and Appellant was not his patient;
defense counsel’s cross-examination was effective and demonstrated Dr.
Turchi’s limited knowledge of steroids; therefore, Appellant failed to prove
he was prejudiced by Dr. Turchi’s minimal and general testimony regarding
steroid use; (7) trial counsel vigorously attacked credibility of
Commonwealth’s key witnesses and bolstered Appellant’s credibility during
defense closing argument; prosecutor’s attempt to repel attack with
statements supporting credibility of Commonwealth’s witnesses was fair
response; issue lacks merit; (8) Appellant’s multiple ineffectiveness of
counsel claims are individually belied by record or lack arguable merit or
counsel had reasonable basis for choices made or Appellant failed to prove
prejudice; cumulative prejudice rule is therefore inapplicable to Appellant’s
case). The record supports the PCRA court’s decision, and we see no reason
to disturb it. Accordingly, we affirm on the basis of the PCRA court’s
opinions.
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J-S58044-16
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2016
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Circulated 11/01/2016 03:39 PM
IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT
OF PENNSYLVANIA - FRANKLIN COUNTY BRANCH
Commonwealth of Pennsylvania, CRIMINAL ACTIO/
vs. No: 1077-2011
Dustin Paul Bailey,
Defendant Honorable Carol L. Van Horn
OPINION sur PA. R.A.P. 1925(a) AND ORDER OF COURT
JAN O 8 2018
Before Van Horn, P.J.
IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT
OF PENNSYLVANIA - FRANKLIN COUNTY BRANCH
Commonwealth of Pennsylvania, CRIMINAL ACTION
vs. No: 1077-2011
Dustin Paul Bailey,
Defendant Honorable Carol L. Van Horn
STATEMENT OF THE CASE
On December 12, 2012, the above-captioned Defendant, Dustin Paul Bailey, was
convicted by a jury of his peers of Aggravated Assault and Simple Assault. On January 30, 2013,
this Court sentenced the Defendant to a period of incarceration in a State Correctional Institution
of six to twelve years. On February 8, 2013, the Defendant filed a Post-Sentence Motion. The
Commonwealth filed an Answer on March 4, 2013. Hearing was held on the Motion on April 1,
2013. By an Opinion and Order dated May 23, 2013, this Court denied the Defendant's Post-
Sentence Motion. Defendant filed a Notice of Appeal on June 14, 2013. On July 9, 2013,
Defendant filed his Concise Statement of Matters Complained of on Appeal and this Court by
Opinion and Order filed July 22, 2013, requested that the Superior Court dismiss the appeal. The
Superior Court affirmed this Court's decision on May 23, 2014.
On September 8, 2014, the Defendant filed a timely Post Conviction Relief Act (PCRA)
Petition. Attorney Carolyn Castagna entered her appearance on October 29, 2014. Following two
Petitions for Extension of Time to file an Amended PCRA Petition, which this Court granted, the
Defendant filed his Amended PCRA Petition on February 27, 2015. Defendant also filed a
Memorandum in Support of the Amended PCRA Petition and two Reproduced Records in
support of the Petition. On March 30, 2015, Defendant filed an Addendum to his Amended
1
PCRA Petition and a Memorandum in Support. The Commonwealth subsequently filed an
Answer to the Amended PCRA Petition on April 14, 2015. Hearing on the Petition occurred on
May 4, 2015 at which time the Court directed the parties to file briefs. The Commonwealth filed
its brief on July 6, 2015, and the Defendant filed his brief on August 8, 2015.
On November 20, 2015, this Court issued an Opinion and Order denying the Defendant's
PCRA Petition. Defendant filed a timely Notice of Appeal on December 9, 2015. Defendant then
filed his Concise Statement on December 28, 2015. The Court will now respond to Defendant's
claims of error in this Opinion and Order of Court pursuant to Pa.RAP. 1925(a).
ISSUES RAISED
Defendant raises the following issues in his Concise Statement:1
1. Did the PCRA court enter a decision unsupported by the record
and inconsistent with the law when the PCRA court denied
Bailey's claim trial counsel was constitutionally ineffective
because counsel failed to request a limiting instruction regarding
the steroid testimony?
2. Did the PCRA court enter a decision unsupported by the record
and inconsistent with the law when the PCRA court denied
Bailey's claim trial counsel was constitutionally ineffective
because counsel failed to request the proper justification jury
instructions and failed to object to the insufficient instructions read
to the jury?
3. Did the PCRA court enter a decision unsupported by the record
and inconsistent with the law when the PCRA court denied
Bailey's claim trial counsel was constitutionally ineffective
because counsel failed to object to the flight instruction as
improper and incomplete?
4. Did the PCRA court enter a decision unsupported by the record
and inconsistent with the law when the PCRA court denied
Bailey's claim trial counsel was constitutionally ineffective
because counsel failed to secure an expert to demonstrate the
I
Concise Statement of Errors Complained ofon Appeal, 12/28/2015.
2
steroid information presented at trial by the Commonwealth was
insufficient to support the Commonwealth's "motive" theory?
5. Did the PCRA court enter a decision unsupported by the record
and inconsistent with the law when the PCRA court denied
Bailey's claim trial counsel was constitutionally ineffective
because counsel failed to object to Dr. Turchi' s testimony on the
grounds the doctor was not offered as an expert before providing
expert testimony, did not have the credentials to testify about the
behavior effects of steroid use, and did not employ a methodology
generally accepted in the field to reach his conclusion?
6. Did the PCRA court enter a decision unsupported by the record
and inconsistent with the law when the PCRA court denied
Bailey's claim trial counsel was constitutionally ineffective
because counsel failed to request and use Attorney Reibsome's or
Attorney Barkdoll's notes from the preliminary hearing for cross-
examination at trial?
7. Did the PCRA court enter a decision unsupported by the record
and inconsistent with the law when the PCRA court denied
Bailey's claim trial counsel was constitutionally ineffective
because counsel failed to object to the Commonwealth's closing
remarks which conveyed the prosecutor's personal opinion of the
general credibility of specific witnesses and their testimony?
8. Did the PCRA court enter a decision unsupported by the record
and inconsistent with the law when the PCRA court denied
Bailey's claim trial counsel was constitutionally ineffective
because counsel failed to advise Bailey his prior convictions would
be admitted into evidence ifhe testified?
9. Did the PCRA court enter a decision unsupported by the record
and inconsistent with the law when the PCRA court denied
Bailey's claim his preliminary hearing counsel was constitutionally
ineffective because counsel failed to obtain a stenographer for the
preliminary hearing?
10. Did the PCRA court enter a decision unsupported by the record
and inconsistent with the law when the PCRA court denied
Bailey's claim his guilty plea counsel and trial counsel was
constitutionally ineffective and violated Bailey's right to Due
Process because counsel's personal interests directly conflicted
with Bailey's interest in the case?
3
11. Did the PCRA court enter a decision unsupported by the record
and inconsistent with the law when the PCRA court denied
Bailey's claim his post-sentence counsel and direct appeal counsel
were constitutionally ineffectively for failing to preserve and argue
the conflict interest issue in Bailey's direct appeal?
12. Did the PCRA court enter a decision unsupported by the record
and inconsistent with the law when the PCRA court denied
Bailey's claim the aggregate prejudice of his prior counsel's errors
were overwhelming a necessitated a grant of relief under the Post
Conviction Relief Act?
STANDARD OF REVIEW
Our appellate courts review an order dismissing a petition filed under the PCRA to
determine whether the decision of the PCRA court "is supported by evidence of record and is
free of legal error." Commonwealth v. Rivera, IO A.3d 1276, 1279 (Pa. Super. 2010) (citation
omitted). The scope of review is limited; the reviewing court must view the findings of the
PCRA court and the evidence of record in the light "most favorable to the prevailing party at the
trial level." Id. The decision of the PCRA court may be affirmed "on any grounds if it is
supported by the record." Id. In the case of a purely legal question, the standard of review is de
novo, and the scope of review is plenary. See Commonwealth v. Patton, 985 A.2d 1283, 1286
(Pa. 2009).
DISCUSSION
The twelve issues raised by the Defendant were previously raised in his Amended PCRA
Motion and Addendum to the PCRA Petition. All of these issues were thoroughly and
meticulously addressed by this Court in our November 20, 2015 Opinion and Order of Court
which is herein incorporated by reference. We refer the Superior Court to the reasoned analysis
set forth in our Opinion. Given the protracted nature of our November 20, 2015 Opinion and in
4
an effort to aid the Superior Court in its review, citations and references are provided in an effort
to identify the portions of our Opinion that addressed each of the 12 issues the Defendant raises
on appeal.
1. Failure to Request Limiting Instruction Regarding Steroid Testimony
The Court's analysis can be found on pages 10-20.
2. Failure to Request Proper Justification Instructions and to Object.
The Court's analysis can be found on pages 20-23.
3. Failure to Object to the Flight Instruction
The Court's analysis can be found on pages 23-29.
4. Failure to Obtain Steroid Expert
The Court's analysis can be found on pages 29-35.
5. Failure to Object to Dr. Turchi Testifying as an Expert Witness
The Court's analysis can be found on pages 35-38.
6. Failure to Obtain Prior Counsel's Notes from Preliminary Hearing
The Court's analysis can be found on pages 41-42.
7. Failure to Object to the Prosecutor's Closing Argument
The Court's analysis can be found on pages 42-49.
8. Failure to Advise Defendant of Crimen Falsi Implications
The Court's analysis can be found on pages 50-51.
9. Failure to Obtain a Stenographer for the Preliminary Hearing
The Court's analysis can be found on pages 38-41.
5
10. Plea Counsel and Trial Counsel Failed to Advise Defendant of Conflict of Interest
The Court's analysis can be found on pages 51-55.
11. Post-Sentence and Direct Appeal Counsel were ineffective
The Court's analysis can be found on pages 56-57.
12. Aggregate Prejudice of Prior Counsel's Errors
The Court's analysis can be found on pages 57-58.
CONCLUSION
For all of the reasons thoroughly explained in this Court's November 20, 2015 Opinion,
we respectfully request that the Superior Court dismiss the appeal of the Defendant.
6
IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF
PENNSYLVANIA - FRANKLIN COUNTY BRANCH
Commonwealth of Pennsylvania, CRIMINAL ACTION
vs. No: 1077-2011 /
Dustin Paul Bailey,
Defendant Honorable Carol L. Van Horn
ORDER OF COURT
AND NOW THIS~ DAY OF January, 2016, pursuant to Pa. R.A.P. 1931(c),
IT IS HEREBY ORDERED THAT the Clerk of Courts of Franklin County
shall promptly transmit to the Prothonotary of the Superior Court the record in this matter
along with the attached Opinion sur Pa. R.A.P. 1925(a).
Pursuant to Pa. R. Crim. P. 114, the Clerk of Courts shall immediately docket this
Opinion and Order of Court and record in the docket the date it was made. The Clerk shall
forthwith furnish a copy of the Opinion and Order of Court, by mail or personal delivery, to each
party or attorney, and shall record in the docket the time and manner thereof
By the Court,
Carol L.Van Horn, P .J.
copies:
Lauren Sulcove, Franklin County First Assistant District Attorney
Carolyn A. Jones, Esq., Counsel for Defendant
7
Dustin Paul Bailey
1077 of2011
Jan. 11, 2016, served a true/attest copy of the OPINION & ORDER OF COURT dated
Jan. 8, 2016 signed by Judge Van Horn, filed Jan. 8, 2016 by placing a copy of the same
in the InterOffice Mail to the following,
District Attorney
Jan. 11, 2016, served a true/attest copy of the OPINION & ORDER OF COURT dated
Jan. 8, 2016 signed by Judge Van Horn, filed Jan. 8, 2016 by placing a copy of the same
in the U.S. Mail to the following,
Carolyn Ann Castagna Jones
Levin & Zeigler, LLP
1500 JFK Blvd
Suite 620
Philadelphia, PA 19102
Circulated 11/01/2016 03:39 PM
IN THE COURT OF COMMON PLEAS
OF THE 39 TH JUDICIAL DISTRICT OF PENNSYLVANIA
FRANKLIN COUNTY BRANCH
Cemmenwealth of Pennsylvania, Criminal Action
No. 1077-2011 ./
vs.
Dustin Paul Bailey, Post Conviction ReliefAct
Defendant Honorable Carol L. Van Horn
OPINION AND ORDER OF COURT
Filed NOV 2 3 2015
Before Van Horn, P.J.
1
IN THE COURT OF COMMON PLEAS
OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA
FRANKLIN COUNTY BRANCH
Commonwealth of Pennsylvania, Criminal Action
No. 1077-2011
vs.
Dustin Paul Bailey, Post Conviction Relief Act
Defendant Honorable Carol L. Van Horn
STATEMENT OF THE CASE
The above-captioned Defendant was charged with aggravated assault' and simple assault'
and waived formal arraignment on July 27, 2011. The charges were a result of an altercation
where the Defendant slammed the victim into a toilet, with enough force to break the toilet and
punched the victim multiple times. The Defendant was originally represented at his preliminary
hearing by Attorney Christopher Reibsome. Following his preliminary hearing, the Defendant
was represented by Attorney Mike Palermo, although Attorney Palermo never formally entered
his appearance.3 On November 30, 2012, the Defendant filed a Motion in Limine in an attempt to
preclude his alleged steroid use as evidence at trial. The Commonwealth filed an Answer on
December 7, 2012. The Honorable Richard J. Walsh denied the Defendant's Motion on
December 10, 2012.4 Trial was held on December 11-12, 2012, and the jury returned a verdict of
guilty on both charges.5 Judge Walsh subsequently retired and the case was reassigned to this
Court. At sentencing, the Defendant obtained the representation of Attorney Steve Rice. On
1
18 Pa.C.S.A. § 2702.
2
18 Pa.C.S.A. § 2701.
3
According to the official docket, Attorney Reibsome also never officially formally withdrew his appearance.
4
Judge Walsh's Order stated that the prosecution could use evidence of the Defendant's steroid use to establish
motive, not to "blacken" the character of the Defendant. See Order, 12/10/2012.
5
The court consolidated trial in this case, CP-28-CR-l077-2011, with the simple assault case of Commonwealth v.
Billy Jo Bailey, CP-28-CR-1087-2011. See Order, 5/4/2012.
2
January 30, 2013, this Court sentenced the Defendant to a period ofincarceration in a state
correctional institution of six to twelve years.
On February 8, 2013, the Defendant filed a Post-Sentence Motion. The Commonwealth
filed an Answer on March 4, 2013. Hearing was held on the Motion on April 1, 2013. By an
Opinion and Order dated May 23, 2013, this Court denied the Defendant's Post-Sentence
Motion. Attorney Steve Rice subsequently filed a Motion to Withdraw as Counsel which this
Court granted. The Court reappointed Attorney Reibsome to serve as appellate counsel for
Defendant. Defendant filed a Notice of Appeal on June 14, 2013. On July 9, 2013, Defendant
filed his Concise Statement of Matters Complained of on Appeal. On July 22, 2013, this Court
by Opinion and Order requested that the Superior Court dismiss the appeal. The Superior Court
affirmed this Court's decision on May 23, 2014.
On September 8, 2014, the Defendant filed a timely Post Conviction Relief Act (PCRA)
Petition. Attorney Carolyn Castagna entered her Entry of Appearance on October 29, 2014.
Following two Petitions for Extension of Time to file an Amended PCRA Petition, which this
Court granted, the Defendant filed his Amended PCRA Petition on February 27, 2015.
Defendant also filed a Memorandum in Support of the Amended PCRA Petition and two
Reproduced Records in support of the Petition. On March 30, 2015, Defendant filed an
Addendum to his Amended PCRA Petition and a Memorandum in Support of it. The
Commonwealth subsequently filed an Answer to the Amended PCRA Petition on April 14, 2015.
Hearing on the Petition occurred on May 4, 2015 at which time the Court directed the parties to
file briefs. The Commonwealth filed its brief on July 6, 2015, and the Defendant filed his brief
on August 8, 2015.
3
After careful and diligent consideration of Defendant's Amended PCRA Petition, the
Commonwealth's Answer to the Petition, hearing on this matter held on May 4, 2015, briefs filed
by both parties and the relevant case law, this Court finds that for the reasons stated below that
the Defendant is not entitled to relief under the PCRA.
BACKGROUND
The above-captioned charges arose out of events that transpired during the night of May
6, 2011, and the early morning of May 7, 2011. At around 11 :00 p.m. on May 6, 2011, Paul
Bowersox (Victim), Megan Millhouse and Billy Jo Bailey were drinking at the Orchards
Restaurant and Lounge ("Orchards") in Chambersburg, Pennsylvania. Billy Jo is the sister of the
Defendant. Although they were not together at the time of the incident in question, Megan
Millhouse and the victim had dated off and on for a while and were together at the time of trial.
N.T. Trial, 12/11/12, at 127. Sometime around 3:00 a.m. in early morning hours of May 7, 2011,
the group of three left Orchards and headed to the Defendant's apartment. Id. at 67, N.T. Trial,
12/12/12, at 65.
When the group arrived, the Defendant invited them inside his apartment. At this point, a
younger female companion of the Defendant was also present at the party who he identified as
"DeeDee." N.T. Trial, 12/12/12 at 12-13. The five individuals continued to party and drink a
bottle of Calico Jack" supplied by the Defendant. Id. at 7-8. At around 5 a.m. the group was in
the living room listening to music and dancing. N. T. Trial, 12/11 /12, at 71. At trial, Megan
Millhouse testified that during this time period she and the Defendant engaged in a conversation
about his build and size. Id. at 138. In response, she testified that the Defendant told her that he
used steroids and actually showed her his steroid kit. Id. The Defendant contended this never
occurred and that her testimony was a total lie. N.T. Trial, 12/12/12, at 12.
6
Calico Jack is a type of spiced rum.
4
Following some type of argument or altercation with Billy Jo and the Defendant," the two
ended up in the bathroom with Megan Millhouse. The victim testified he went to the bathroom
and knocked on the door to ask Megan if she was about ready to leave. N.T. Trial, 12/11/12, at
76. The door opened and the victim stepped inside. Suddenly, Billy Jo looked at the Defendant
and yelled "fucking get him, Dustin." Id. at 76. The Defendant then lunged at the victim and
slammed him into the toilet. Id. at 77. The Defendant then began to punch the victim repeatedly.
At this point the bathroom was covered in water and blood from the victim. Eventually, the
Defendant stopped and the victim and Megan quickly left his apartment.
After leaving the apartment, the victim called 911 and was later transported by
ambulance to the Chambersburg Hospital. Id. 83-84. The victim suffered a left eye orbital floor
fracture in two different places with consequent hemorrhage. Id. at 224. The victim also
complained of severe right-sided lumbar pain. Id. at 226. At trial, Dr. Turchi testified this was
likely caused from twisting in the fall from being punched. Id. Finally, the victim sustained a
chipped tooth from the incident. In all, the injuries the victim sustained caused him to miss
approximately five months of work. Id. at 87.
Following the victim's 911 call, Trooper James Shearer and Trooper Kevin Goss of the
Pennsylvania State Police (PSP) arrived at the scene. N.T. Trial, 12/12/12, at 269. After speaking
briefly with the victim and Megan Millhouse, the troopers knocked on the front door of the
Defendant's apartment. Id. Trooper Shearer testified at trial that the Defendant told him that he
and the victim had been involved in a "wrestling match." Id. at 274. At this point, the Defendant
was not arrested. Trooper Shearer subsequently interviewed the victim and Megan Millhouse at
the Chambersburg Hospital.
7
There was conflicting testimony presented as to actually what occurred between the two.
s
The Defendant was arrested by Trooper Shearer on May 9, 2011 outside of his apartment.
Trooper Shearer stated that he and another trooper knocked on the Defendant's front door and
announced that they needed to speak to him. N.T. Trial, 12/11/12, at 278. Although the troopers
could hear voices and individuals moving around in the apartment, no one answered the door. Id.
at 278-279. In response, the troopers set up a perimeter around the Defendant's residence in
order to observe ifhe would leave. Id. at 279. Shortly after doing so, the Defendant left his
residence. Id. 280. The Defendant then looked around the area to see if anyone was watching and
subsequently entered his vehicle. Id. at 280-281. He then quickly attempted to drive off before he
was stopped and apprehended by police. Id. at 281.
At trial, the Defendant asserted a self-defense/defense of others defense. Specifically, the
Defendant claimed that he reasonably believed his sister was in imminent danger of being
harmed by the victim and that is why the physical altercation began. Further, Defendant argued
he was simply defending himself from the victim after the victim bit his finger and would not let
go. In its case and chief, the Commonwealth called the victim, Megan Millhouse, Ryan Shelly,
M.D.,8 Dr. Turchi, M.D., Lori Odom,9 and Trooper James Shearer to testify. The majority of the
case presented by the Defendant was his own testimony. The Commonwealth subsequently
called the victim as a rebuttal witness. Ultimately, the jury found the Defendant guilty on all
charges.
8
Dr. Shelly was the ER physician at the Chambersburg Hospital who ordered the CT Scan of the victim's head and
facial bones upon his arrival at the hospital.
9
Lori Odom was a registered nurse who was in contact with the victim and Megan Millhouse when they arrived at
the Chambersburg Hospital emergency room.
6
ISSUES
Defendant raises a total of thirteen (13) issues, most of which are alleged ineffective
assistance of counsel claims against his trial attorney, Mike Palermo. Specifically, Defendant
claims the following issues:
1. Trial Counsel provided ineffective assistance of counsel because he failed to request a
limiting instruction regarding the steroid testimony.
2. Trial Counsel provided ineffective assistance of counsel because he failed to request the
proper justification jury instructions and failed to object to the insufficient instructions read
to the jury.
3. Trial Counsel provided ineffective assistance of counsel because he failed to object to the
flight instruction.
4. Trial Counsel provided ineffective assistance of counsel because he failed to secure an expert
to demonstrate that the information presented in the Commonwealth's pretrial motion and at
trial was insufficient to conclude the Defendant's actions were motivated by steroid use.
5. Trial Counsel provided ineffective assistance of counsel because he failed to object to Dr.
Pierre Turchi's testimony on the basis that Dr. Turchi was not qualified to testify as an expert
about the behavioral effects of steroid use and failed to object to the testimony on the basis
Dr. Turchi did not employ a methodology generally accepted in the field.
6. Preliminary Hearing Counsel provided ineffective assistance of counsel because he failed to
obtain a stenographer for the preliminary hearing.
7. Trial Counsel provided ineffective assistance of counsel because he failed to request and use
Attorney Reibsome's notes from the preliminary hearing.
8. Trial Counsel provided ineffective assistance of counsel because he failed to object to the
prosecutor's closing remarks that conveyed her personal opinion on the credibility of certain
witnesses and their testimony.
9. Trial Counsel provided ineffective assistance of counsel because he failed to advise the
Defendant that his prior convictions would be admitted into evidence if he testified.
10. Plea counsel did not provide adequate advice concerning the offer of 2 to 4 years because
counsel accepted the case on the premise it would be a trial. Defendant's plea counsel was
7
ineffective and labored under a conflict of interest that violated the Defendant's right to due
process.
11. Post-Sentence Counsel provided ineffective of assistance of counsel for failing to raise the
conflict of interest issue.
12. Direct Appeal Counsel provided ineffective assistance of counsel for failing to raise the
conflict of interest issue.
13. The aggregate prejudice of prior counsel's errors resulted in ineffective assistance of counsel.
DISCUSSION
1. Post Conviction Relief Act
The Post Conviction Relief Act (PCRA) was enacted to provide individuals who are
convicted of crimes for which they are innocent, or those serving illegal sentences, with a means
to obtain collateral relief. See 42 Pa.C.S. § 9543. First, the defendant must demonstrate he was
convicted of a crime under the law of Pennsylvania, and that he is currently serving a sentence or
waiting to do so. See 42 Pa. C.S. §9543(a)(l). Second, the petitioner must prove, by a
preponderance of the evidence, that his conviction or sentence resulted from one or more of the
enumerated statutory factors. See 42 Pa. C.S. §9543(a)(2). Third, a petitioner must demonstrate
the issues raised under the Act have not been previously litigated or waived, and finally, that the
failure to litigate such issues could not have resulted from a rational, strategic, or tactical
decision by counsel. See id. at §9543(a)(l), (3), (4). "Inherent in this pleading and proof
requirement is that the petitioner must not only state what his issues are, but also he must
demonstrate in his pleadings and briefs how the issues will be proved." Commonwealth v.
Rivers, 786 A.2d 923, 927 (Pa. 2001).
8
A. Claims of Ineffective Assistance of Counsel
Among the statutory factors from which a conviction or sentence may have resulted
creating an entitlement to post-conviction relief is the ineffective assistance of counsel. 42
Pa.C.S. §9543(a)(2)(ii). In light of the particular circumstances of a case, the ineffective
assistance of counsel must have so undermined the truth-determining process that "no reliable
adjudication of guilt or innocence could have taken place." Id
Counsel is presumed effective. See Commonwealth v. Martin, 5 A.3d 177, 183 (Pa.
2010). The defendant bears the burden of proving otherwise, accomplished by satisfying the
three-pronged test laid out by our appellate courts in Pierce. See Commonwealth v. Pierce, 786
A.2d 203, 213 (Pa. 2001). First, the defendant must show the underlying substantive claim has
arguable merit. See id. Second, it must be demonstrated that counsel did not 'have any
reasonable basis for their acts or failure to act designed to effectuate the client's interest. See id
Finally, a petitioner must demonstrate actual prejudice resulted from counsel's inadequate
performance. See id. A petitioner demonstrates prejudice where he proves that "there is a
reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different." See Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009).
Failure to satisfy any of the three prongs of the test will result in denial of the claimed
ineffective assistance. See Pierce, 786 A.2d at 221-22. The inquiry mirrors that set forth by the
United States Supreme Court, requiring both a showing that counsel's performance was
deficient, and that such deficiency was prejudicial. See Strickland v. Washington, 466 U.S. 668,
687-91 (1984).
9
ANALYSIS
I. Limiting Instruction on Steroid Evidence
A. Arguable Merit
In his initial argument, Defendant asserts that his trial counsel, Attorney Michael
Palermo, was ineffective for failing to request a limiting instructing for the steroid evidence
admitted at trial. The Defendant correctly states that the Pennsylvania Rules of Evidence
generally prohibit evidence of other crimes, wrongs or acts as evidence of a defendant's
character. See Pa. R.E. 404(b)(l). "Evidence of separate or unrelated 'crimes, wrongs, or acts,' .
. . has long been deemed inadmissible as character evidence against a criminal defendant in this
Commonwealth as a matter not ofrelevance, but of policy, i.e., because of a fear that such
evidence is so powerful that the jury might misuse the evidence and convict based solely upon
criminal propensity." Commonwealth v. Dillon, 925 A.2d 131, 136~37 (Pa. 2007). However,
"evidence of 'other crimes, wrongs, or acts' may be admitted when relevant for a purpose other
than criminal character/propensity, including: proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake." Id.When evidence of other crimes or acts is admissible for reasons other than character, the
Defendant is entitled to "a limiting instruction [which] may be given either as the evidence is
admitted or as part of the general charge." Commonwealth v. Covil, 378 A.2d 845 (Pa. 1977).
However, our High Court has expressly stated that there may be times that trial counsel decides
against seeking a cautionary instruction or objecting on a particular point because such
"objections sometimes highlight the issue for the jury, and curative instructive always do."
Commonwealth v. Koehler, 36 A.3d 121, 146 (Pa. 2012). This is especially true in situations
10
where the evidence is "merely a fleeting or vague reference" Commonwealth v. Hutchinson, 811
A.2d 556, 561-62 (Pa. 2002).
In the instant case, the Defendant filed a Motion in Limine on November 30, 2012,
seeking to preclude the mentioning of steroid use or "roid rage" on the part of the Defendant at
trial. The Commonwealth filed an Answer to the Motion in Limine on December 7, 2012. On
I
December 10, 2012, Judge Walsh ruled on the Motion stating "the Defendant's Motion is denied.
The prosecution's use of such evidence shall be solely to establish motive, and may not be used
to 'blacken' thecharacter of the Defendant." See Order 12/1/12. At trial, the following steroid
evidence was provided on direct examination by the Commonwealth's witness Dr. Pierre Turchi,
M.D.:
Q: Finally, Dr. Turchi, and this is an altogether different subject.
I'd like to talk to you a little bit, very briefly, about steroid use.
Have you had the opportunity to receive any training or read any
literature about steroid use?
A: Yes.
Q: And would it be fair to say that use of steroids can cause a
person to become more aggressive than they normally are?
A: Most definitely, yes.
Q: If hypothetically speaking, if someone took steroids and then
had alcohol on top of that, would that change the aggression in any
way?
A: It would make it far worse because alcohol removes the
inhibition. We are less shy when we drink a little bit, so if you add
steroids then alcohol, that is a bad combination.
Q: In all fairness, sir, to your knowledge, you've never treated
Dustin Bailey as a patient; correct?
A:No.
N.T. Trial, 12/11/12, at 237-238. On cross examination Dr. Turchi stated:
Q: Tell me, Doctor, when is the last time you attended a seminar
on steroid use?
A: I cannot give you an exact number but it was probably at
Chambersburg Hospital when there was a conference about it, and
it was pretty impressive.
Q: I'm sure it was but was it this year, was it last year?
11
A: Oh, I'm sorry, it was five six years ago but it was very well
done.
Q: When is the last time you read some publication about steroid
use?
A: I think around that time because I was interested.
Q: And you haven't examined any blood of the [Defendant] have
you?
A:No.
Q: We're asking you what if. What if somebody had steroids
mixed with alcohol and you're saying it would be a bad result;
right?
A:Yes.
Q: There are a number of factors that could it a bad result though;
right, outside factors? Being in a bar with other people?
A: Yes.
Id. at 239-240. Regarding the Defendant's alleged use of steroids, the Commonwealth's witness
Megan Millhouse testified to the following at trial:
A: I asked him about his build.
Q: What did you ask him exactly?
A: If he took steroids.
Q: Why did you ask him that?
A: Because there's a lot of hype that goes along with steroids. He
was really really muscular, a lot larger than what he appears to be
today.
Q: And how did he respond when you asked him that question?
A: He went and got them and he showed them to me.
Q: Just asking can you describe what they looked like?
A: He had them in a black zipper case and there was a syringe and some vials.
Q: Did he say anything about whether or not he used those steroids?
A: He admitted to using them because questions that ensued afterwards were
directed as how do they affect you? Do they ever cause roid rage? Do you ever
experience anything like that?
Q: And what did he say?
A: He claimed that they were perfectly safe and harmless.
12
Q: What as your motive for asking him those questions?
A: Just you assume that people that are stout and built that way do it generally by
lifting weights only and it's apparently a rather large misconception.
Id. at 138-139.
Based on the aforementioned testimony, Defendant avers that trial counsel should have
objected to the steroid evidence or requested a limiting instruction. Because the steroid evidence
was admitted by Judge Walsh to be used solely for motive pursuant to Pa. R.E. 404(b),
Defendant argues that he was entitled to a limiting instruction and if one was requested and the
Court refused, reversible error would have occurred. See Commonwealth v. Billa, 555 A.2d 835,
842 (Pa. 1989). Consequently, Defendant concludes Attorney Palermo's failure to request a
limiting instructing satisfies the arguable merit prong of Pierce. The Commonwealth fails to
address the first prong of Pierce on this issue and simply states that Defendant has failed to
prove the second and third prongs. Based on the Commonwealth's failure to address this issue
and case law which makes it clear that Attorney Palermo could have requested a limiting
instruction, we find that the Defendant has satisfied the initial prong of Pierce.
B. Reasonable Strategy
The Defendant argues that Attorney Palermo was not following a reasonable strategy
when he failed to request a limiting instruction regarding the steroid evidence. Defendant
contends that Attorney Palermo recognized how prejudicial the steroid evidence could be,
illustrated by the fact he filed a Motion in Limine to keep the evidence out at trial, yet he failed
to ask the Court to issue a limiting instruction. Consequently, Defendant concludes not
requesting such an instruction was error and could not have been part of any trial strategy by
Attorney Palermo.
In support of his argument on this issue, Defendant cites various statements made by
13
'
Attorney Palermo at the PCRA Hearing. Specifically, when asked why he failed to request a
limiting instruction at trial Attorney Palermo testified:
A: Well, in this kind of case when you ask for a motion in limine
and lose, I think strategically you run the risk do you bring it up
again, put it in front of the jury again or let it die out. I'm not sure
as I sit here today my theory wasn't lets not bring this up anymore
than I have to about the steroid issue. I don't believe I asked for a
limit instruction at the close of trial.
[The Court] Q: Why was that?
A: Your honor, I'm not sure if that was just a strategic decision not
to bring it up and put it in front of the jury again, draw their
attention to it. I can't say as I sit here what the rationale was. But
that's a discussion I have when we lose a motion limine issue when
it's in front of the jury whether I want to bring it up at the close of
trial to remind them of it.
N.T. PCRA Hearing, 5/4/15, at 75-76. Defendant alleges that Attorney Palermo's purported
reason for failing to request a limiting instruction, concerns about bringing the issue up again and
reminding the jury, is not supported by the record. Defendant points to the fact that Attorney
Palermo failed to let the issue "die out" on multiple occasions. First, Defendant highlights that
Attorney Palermo asked Dr. Turchi numerous questions regarding steroids on cross-examination.
Additionally, Defendant places significant emphasis on the fact that Attorney Palermo referenced
the steroid allegations multiple times in his own closing argument. As such, Defendant concludes
that Attorney Palermo would have not have taken these actions if his strategy was to let this issue
"die out" as he claimed at the PCRA hearing. Furthermore, Defendants avers that even if
Attorney Palermo intentionally chose not to request the limiting instruction, that such a decision
was not reasonable given the facts in this case.
14
The Commonwealth argues that the Defendant fails to satisfy the second prong of Pierce
because a curative instruction always highlights the issue to the jury and that Attorney Palermo
reasonably opted not to request one in this case because the steroid evidence in question was
"merely a fleeting or vague reference." See Hutchinson, 811 A.2d at 561-562. According to the
Commonwealth, the evidence of the Defendant's steroid use was not extensive and consisted of
seven out of nearly five hundred pages of the trial transcript. The Defendant disputes this and
claims that the alleged steroid use is referenced on seventeen pages. Furthermore, the Defendant
contends that the steroid evidence was a major part of the Commonwealth's case, as it was the
sole motive offered at trial for this crime.
Regardless of whether steroid use was referenced on seven or seventeen pages of the trial
transcript, this Court agrees with the Commonwealth that this evidence certainly was not
extensive. The Defendant's contention that Attorney Palermo failed to let the issue "die out" on
multiple occasions, thus undermining his purported reason for deciding not to a request a
limiting instruction is equally unavailing. Attorney Palermo mentioned steroids on cross-
examination of Dr. Turchi in approximately four or five very general questions, which consisted
of two pages of the trial transcript. In his closing argument Attorney Palermo stated the
following regarding the Defendant's alleged steroid use:
And they want to bring that up and they want to talk about steroids
use. Honesty I have no clue where that came from. They were
talking to the doctor about that for the first time on Friday of last
week about this steroid issue. If that was such a big deal - -
So you have to believe there's Deedee, Ms. Bailey, my client, Mr.
Bowersox and Ms. Millhouse and [the Defendant] I guess comes
out to the common area with this steroid kit because that's what
you do after meeting her for the second day.
15
N.T. Trial, 12/12/12, at 145. These statements consisted of a single page of the trial transcript.
This Court does not believe that such scarce references to the Defendant's alleged steroid during
cross-examination of Dr. Turchi and in Attorney Palermo's closing argument undermine
Attorney Palermo's theory and strategy for not requesting a limiting instruction on this issue.
We must next determine whether Attorney Palermo's reason for deciding against
requesting a limiting instruction on the Defendant's steroid use had a reasonable basis. To
satisfy the second prong of Pierce, the Defendant must demonstrate that counsel did not have
any reasonable basis for their acts or failure to act designed to effectuate the client's interest. See
Pierce 786 A.2d at 213. A reasonable basis must be one designed to effectuate the client's
interest, and in making this assessment, the court is not to employ a hindsight evaluation to
determine whether other alternatives may have been more reasonable, but whether there was a
reasonable basis for the course of action actually selected. Commonwealth v. Charleston, 94
A.3d 1012 (Pa. Super. 2014). A claim of ineffective assistance generally cannot succeed through
comparing, by hindsight, the trial strategy employed with alternatives not pursued. See
Commonwealth v. Chester, 587 A.2d 1367, 1384 (Pa. 1991). A finding that a chosen strategy
lacked a reasonable basis is not warranted unless it can be concluded that an alternative not
chosen offered a potential for success substantially greater than the course actually pursued. See
Commonwealth v. Brown, 676 A.2d 1178 (Pa. 1996).
Based on this standard, this Court concludes that Attorney Palermo's reasoning for not
requesting a limiting instruction had a reasonable basis. Attorney Palermo explained at the
PCRA hearing that he did not request a limiting instruction because he wanted to avoid
highlighting the steroid issue to the jury. As noted by the Pennsylvania Supreme Court, curative
or limiting instructions always highlight the issue to the jury. Koehler, 36 A.3d at 146. Thus, it
16
was clearly reasonable for Attorney Palermo to seek a course of action in order to prevent
highlighting this issue again to the jury. Furthermore, the alternative not pursued by Attorney
Palermo, actually requesting the limiting instruction, certainly cannot be said to have "offered a
potential for success substantially greater than the course actually pursued." Brown, 676 A.2d at
1178. The only benefit of requesting such an instruction would have been to prevent the steroid
evidence from "blackening" the Defendant's character. Review of the trial transcript reveals that
if a reference to the Defendant's alleged steroid had any impact on the jury's decision it was in
establishing motive, which Judge Walsh had previously found was proper, and not casting the
Defendant in a negative light because he used steroids. For all these reasons, this Court finds that
the Defendant has failed to satisfy the second prong of Pierce.
C. Prejudice
Assuming arguendo that the Defendant could satisfy the second prong of Pierce, he fails
to show he was prejudiced by Attorney Palermo's actions. To satisfy the third prong of Pierce on
this issue, a Defendant must show that it was reasonably probable that if the limiting instruction
had been given, the jury's verdict would have been different. Commonwealth v. Cox, 983 A.2d
666, 689-690 (Pa. 2009). The Defendant argues that Attorney Palermo failure to request the
limiting instruction resulted in significant prejudice and that the steroid evidence was "extremely
inflammatory." Def.'s 2/27/15 Memorandum in Law at 3. Specifically, the Defendant asserts
that the steroid evidence portrayed him as a drug user and lawbreaker. The Defendant concludes
that the jury's verdict would have likely been different if the limiting instruction had been given
because his credibility in this case was essential and evidence of illegal drug use significant
damaged that. In support of this argument the Defendant cites Commonwealth v. Billa, 555 A.2d
835, 842 (Pa. 1989).
17
In Billa, the Pennsylvania Supreme Court held that where evidence of a defendant's prior
criminal conduct or bad acts is admissible, that the defendant is entitled to a limiting instruction
explaining the purpose of that evidence. Id.at 842-843. If a trial counsel requests this limiting
instructing, and the court denies the request, it is reversible error. Id. In Commonwealth v.
Hutchinson, 25 A.3d 277, 305-306 (Pa.2011), our High Court provided the following summary
of the facts in Billa, stating:
In Billa, we granted the appellant a new trial after concluding that
his counsel was ineffective for failing to request a limiting
instruction. The appellant had been found guilty of the first-degree
murder of a sixteen-year-old girl with whom he had been
attempting to establish a relationship. The trial court had admitted,
over defense counsel's vigorous objection, testimony concerning a
violent sexual assault on a different victim that had been
committed by the appellant approximately two months before the
murder. The two attacks bore numerous similarities, including the
fact that both victims were young Hispanic females. Although we
noted that the testimony of the sexual assault victim was vivid,
graphic, highly prejudicial, and potentially emotional, we held
that it was properly admitted because of its relevance to
proving the appellant's motive and intent and the absence of
accident. Nonetheless, we also held that trial counsel was
ineffective for failing to request an appropriate limiting
instruction. We recognized that the highly inflammatory testimony
of the prior sexual assault victim "created the substantial danger
that the jury could be swayed in its deliberations ... by this
evidence showing [the} appellant's criminal character and his
propensity to sexually assault young Hispanic females." In
addition, we recognized that the evidence in question was not
merely a fleeting or vague reference to the appellant's criminal
record, but rather was extensive as well as inflammatory,
comprising a substantial component of the Commonwealth's case
and garnering an emphasis in closing argument. Accordingly, "
[ a]n appropriate limiting instruction ... would not have increased
the jury's awareness of the prior sexual assault, but it well might
have placed its limited legal significance in proper
perspective." We concluded that the Billa appellant's counsel was
constitutionally ineffective for failing to request an appropriate
limiting instruction as to the permissible use of evidence of the
prior sexual assault, and we therefore awarded the appellant a new
trial.
18
(emphasis added) (internal citations omitted). The Billa Court determined that the reference to
the defendant's criminal record was not merely fleeting or vague, because it was found to be: (1)
extensive (2) inflammatory (3) emphasized by the Commonwealth in its closing argument and
(4) a substantial component of the Commonwealth's case. Billa, 555 A.2d at 843. In contrast, the
Commonwealth relies on Commonwealth v. Blystone, 725 A.2d 1197, 1204-1205 (Pa. 1999),
where the Pennsylvania Supreme Court found that trial counsel failing to object to a mere
passing reference of criminal activity did not result in prejudice where evidence of guilt was
overwhelming. The Commonwealth also cites Commonwealth v. Sam, 635 A.2d 603 (Pa. 1993)
and Commonwealth v. Rollins, 580 A.2d 744 (Pa. 1990) where the Pennsylvania Supreme Court
found that ineffective assistance claims were without merit because the defendants had failed to
prove prejudice.
At the outset, this Court finds that the Defendant's contention that the steroid evidence
portrayed him as a lawbreaker and this somehow damaged his credibility to be particularly
unconvincing. On direct examination the Defendant admitted that he pied guilty in 2003 for
convictions for theft and conspiracy to commit robbery. N.T. Trial, 12/12/12, at 21-22. Thus, the
jury knew at a minimum that the Defendant was previously not a law abiding citizen. Thus, even
if the jury's decision was influenced by the fact that they believed the Defendant was a
lawbreaker, it is very unlikely they arrived at that conclusion because of the evidence the
Defendant used illegal drugs rather than his own admission of crimen falsi convictions.
Regarding the case law cited by the parties, this Court finds the facts in the instant matter
are not completely analogous to either Billa or Blystone. Rather, this case likely falls somewhere
in between these two cases and their holdings. Despite argument from the Commonwealth, this
case is distinguishable from Blystone because it cannot be said that the Defendant's guilt was
19
overwhelming. As the Defendant correctly highlights, this case came down to a credibility
contest between the Defendant and the victim. However, this case is also clearly distinguishable
from Billa. The references to the Defendant's alleged steroid use can hardly be considered as
"extensive or inflammatory" as the prior sexual assault victim's testimony was in Billa. Further,
the evidence was merely mentioned in the Commonwealth's closing argument, not emphasized
as it was in Billa. This Court does agree with the Defendant that the steroid evidence was a
substantial component of the Commonwealth's case. However, the prior criminal activity was so
analogous to the crime charged in Billa that our High Court was constrained to award a new trial
because it could not conclude "with any reasonable certainty that the jury would have returned
the same verdict of murder of the first degree had it been properly instructed." Billa, 555 A.2d at
842-843. In the instant matter the prior criminal or bad act was illegal drug use. The crimes
charged were aggravated assault and simple assault. Thus, this case is clearly distinguishable
from the factual circumstances of Billa. Additionally, the Defendant's credibility in this matter
may have already been cast in doubt in the minds of the jurors by his two previous crimen falsi
convictions. Despite not finding the evidence in this case necessarily overwhelming as was the
situation in Blystone, this Court does not believe there was a reasonable probability that the
outcome of the Defendant's trial would have been different had Attorney Palermo requested a
limiting instruction on the steroid evidence. Consequently, the Defendant has failed to prove
prejudice and meet the third prong of Pierce.
II. Jury Instruction on Justification
A. Arguable Merit
At trial, Attorney Palermo requested the Court provide the jury with instructions for use
of non-deadly force in self-defense and defense of others. There was no request that the Court
20
provide instructions for the use of deadly force in self-defense or in defense of others. Defendant
concludes that the requested instructions were flawed because the jury may have believed that
the non-deadly force instruction provided a justification defense only to the charge of simple
assault and not the aggravated assault. Thus, he asserts that the instructions were misleading and
confusing to the jury. Additionally, Defendant asserts that counsel was ineffective for failing to
request an instruction that he had no duty to retreat in his own home. The Commonwealth
contends that when the instructions in this case are read as a whole and in context with the entire
trial, Attorney Palermo was not obliged to object to them and failure to do so did not cause the
convictions.
It is undisputed that only the non-deadly force instruction for self-defense and defense of
others were given at trial. Section 9.501 of the Pennsylvania Criminal Jury Instructions states the
following for Justification: Use of Force/Deadly Force in Self-Defense when an issue is raised as
to the use of deadly force:
1. The first matter you must consider in deciding whether the
Conunonwealth has met its burden in this regard is what kind
of force the defendant used in this instance. There are two
kinds, deadly and non-deadly. The Commonwealth drums here
that deadly force was used by the defendant and it must beyond
a reasonable doubt.
2. Deadly force is force that, under the circumstances in which it
is used, is readily capable of causing death or serious bodily
injury.
The Defense of Others jury instruction features a parallel section. Defendant concludes that
these sections illustrate that the legislature intended both deadly and non-deadly to be read to the
jury when there was an open issue as to the degree of force used. Because the Defendant was
charged with aggravated assault, he asserts the Commonwealth had to prove beyond a reasonable
doubt that he caused serious bodily injury, necessitating a deadly force instruction. Defendant
21
concludes that the instruction given likely mislead the jury into believing the Defendant had only
a justification defense if his use of force was non-deadly. The Commonwealth acknowledges that
Attorney Palermo could have objected to the instruction in question. Certainly, having the jury
instructed on deadly force certainly would have informed the jury that the Defendant could have
employed either type of force depending on the situation. As such, this Court concludes that the
Defendant's claim has arguable merit and satisfies the first prong of Pierce.
B. Reasonable Strategy
Despite satisfying the initial prong, the Defendant fails to show that Attorney Palermo
had no reasonable basis for not objecting to the justification instruction. At the PCRA hearing,
Attorney Palermo testified that he does not like the word deadly force being used at all during his
trials. N.T. PCRA Hearing, 5/4/15, at 87. He further testified that he believed that at most, simple
assault occurred in this case and an instruction on deadly-force was unnecessary and could have
confused the jury. Specifically, Attorney Palermo stated at the hearing that "if we won on self-
defense, it didn't matter what injury was caused." Id. at 103. Thus, it is clear that Attorney
Palermo's basis for not objecting to the instruction in question was based on his trial strategy that
this was a self-defense/defense of others case where no serious bodily injury occurred and the
Defendant used non-deadly force to aid himself and his sister. Unfortunately for the Defendant,
the jury did not agree.
Additionally, as the Commonwealth highlights in a footnote in its brief, the Defendant
was convicted of both simple and aggravated assault. Therefore, if the jury found the Defendant
was justified at all, they would have acquitted him on the lesser charge. The Defendant argues
that the failure of the Court to instruct on if the Defendant had a duty to retreat or trial counsel's
22
failure to challenge the victim's testimony that he was hit ten times could have caused the jury to
find the Defendant guilty of simple assault. The Court finds these contentions unavailing.
Finally, the argument that Attorney Palermo was ineffective for failing to request an
instruction about provocation and retreat is also meritless. Whether this instruction was to be
given was discussed on the record and Attorney Palermo testified at the hearing he felt the
instruction was unnecessary because this was a self-defense/defense of others case to him.
Again, Attorney Palermo feared giving such an instruction was unnecessary and could
potentially confuse the jury. Attorney Palermo argued throughout the trial that the Defendant
came to the aid of his sister and therefore the provocation or retreat of his home instruction was
not necessary. Consequently, this Court finds that Attorney Palermo did have a reasonable basis
for failing to object to justification, retreat and provocation jury instructions.
III. Failure to Object to Flight Instruction.
A. Arguable Merit
It is well established in our Commonwealth that a "trial court can use a
flight/concealment jury charge when a person commits a crime, knows that he is a suspect, and
conceals himself, because such conduct is evidence of consciousness of guilt, which may form
the basis, along with other proof, from which guilt may be inferred." Commonwealth v. Bruce,
717 A.2d I 033 (Pa. Super. 1988). Defendant alleges that the flight instruction given by Judge
Walsh at Petitioner's trial was improper for two reasons. First, Defendant argues that an essential
part of the instruction was not given. Additionally, Defendant avers that a flight instruction
should not have been given at all because the conduct alleged did not exhibit a consciousness of
guilt or intent to evade arrest.
At trial, the following flight instruction was given:
23
There was also evidence tending to show, and this came from
Trooper Shearer, that the defendant hid from police when they
tried to serve an arrest warrant on him. The Defendant, of course,
maintains that he remained in his apartment because he was
sleeping. The credibility, the weight, and the effect of this evidence
is for you to decide.
Generally speaking, when a crime has been committed and a
person thinks that he is or may be accused of committing it and he
flees or conceals himself, such flight or concealment is a
circumstance tending to prove that the person is conscious of guilt.
Such flight or such concealment does not necessarily show
consciousness of guilt in every case.
A person may flee or hide from some other motive and may do so
even though he or she is innocent. Whether the evidence of flight
or concealment in this case should be looked at as tending to prove
guilt, depends on the facts and circumstances of this case and upon
the motives that may have prompted the flight or concealment of
the defendant.
N.T. Trial, 12/12/12, at 207-208. However, the Pennsylvania Standard Jury Instruction for
consciousness of guilt, flight, concludes with the following instruction: "You may not find the
defendant guilty solely on the basis of evidence of flight or concealment." See Pa Suggest
Criminal Jury Instructions (Crim.)§ 3.14. (emphasis added). Defendant correctly notes that flight
alone is insufficient to support a conviction of a crime. See Commonwealth v. Wilamowski, 633
A.2d 141 (Pa. 1993).
It is undisputed by the parties, that the flight instruction read at trial was missing the final
portion of the standard instruction. The Commonwealth argues that when the instruction is read
as a whole it is adequate regardless. The Defendant disagrees and cites a recent non-precedential
decision by the Superior Court in support of his argument. We begin by noting that pursuant to
Superior Court Internal Operating Procedure Section 65.37 except in circumstances related to
law of the case, res judicata, and collateral estoppel, "an unpublished memorandum decision
shall not be relied upon or cited by a court or a party in any other action or proceeding." See 210
24
Pa. Code§ 65.37. However, because the Defendant cites and discusses at length this case on this
issue, we find it imperative to at least review this unpublished decision.
In Commonwealth v. Rivera-Torres, a panel of the Superior Court reversed a defendant's
third degree murder conviction based on an improper flight instruction. See 337 MDA 2014 (Pa.
Super. December 4, 2014). Specifically, the trial court in Rivera-Torres instructed the jury that
"you may, however, find the defendant guilty solely based on the evidence of flight or
concealment." (emphasis added). The trial court noticeably left out the essential word not. In
affirming the trial court's determination that the Defendant was entitled to a new trial, the
Rivera-Torres panel stated:
Once the court found that it omitted "not" from the flight
instruction, it properly awarded a new trial to Rivera-Torres.
Rivera"Torres clearly had the right to a jury instruction that
flight alone could not establish his guilt. Wilamowski, supra.
Trial counsel had no reasonable basis for failing to object to an
instruction that flight alone could establish his guilt. Finally, the
instruction contained fundamental error, since it led the jury to
believe that Rivera-Torres' flight after the shooting was itself
sufficient to establish his guilt.
Id. at 6-7. (emphasis added).
The Commonwealth asserts that this Court should distinguish the instant case from
Rivera-Torres because the instruction in Rivera-Torres was clearly erroneous and prejudicial but
that "the facts are nowhere close to what happened here." See Comm.'s Brief at 14. Since the
decision was announced in December of 2014, no published or non-published decisions have
cited to it.
Resolution of this ineffective assistance claim rests on the initial prong of Pierce and
whether the Defendant's claim has arguable merit. The record is clear that Attorney Palermo was
unaware at trial that the instruction was missing the final portion of the standard instruction.
25
Additionally, Attorney Palermo objected at trial to Trooper James Shearer using the word flee
but did not object to the flight instruction itself. N.T. Trial, 12/11/11, at 280. Furthermore, there
would be no reasonable strategy for not objecting to a jury instruction that would potentially
allow the jury to find the Defendant guilty on flight alone.
Turning to the arguable merit prong of Pierce, this Court concludes that the instant matter
is distinguishable from the Superior Court's non-published decision in Rivera-Torres. We are
unpersuaded by the Defendant's argument that Rivera-Torress illustrates how the Superior Court
would view the omission of the final part of the flight instruction at the heart of the instant
matter. Unlike the trial judge in Rivera-Torress, Judge Walsh did not specifically incorrectly
instruct the jury that they could find the Defendant guilty based solely on flight. Rather than an
affirmative instruction that the jury could find the Defendant guilty based solely on flight, Judge
Walsh simply did not instruct regarding this topic. Ultimately, resolution of this issue comes
down to if the affirmative error in Rivera Torres and the omission in the instant matter regarding
the flight instruction have the same effect. This Court finds that they do not and we agree with
the Commonwealth that that the instruction read as a whole is an adequate and accurate
statement of the law. Consequently, the Defendant's argument on this issue is without merit.
In addition to this argument on the flight instruction, Defendant also avers that the
instruction was erroneous because there was no evidence of flight presented at trial. "The case
law on the issue of flight is very clear and it requires the defendant have knowledge that he is
wanted in connection with the crime committed." Commonwealth v. Jones, 378 A.2d 1245, 1253
(Pa. Super. 1977). "[W]hen a person commits a crime, knows that he is wanted therefor, and
flees or conceals himself, such conduct is evidence of consciousness of guilt, and may form the
26
basis [ of a conviction] in connection with other proof from which guilt may be inferred."
Commonwealth v. Clark, 961 A.2d 80, 92 (Pa. 2008). At trial, Trooper Shearer testified:
Q: Is it true that you ended up making an arrest of Dustin Bailey?
A: Yes, that's correct.
Q: Can you tell us did you go out to his house again on Roxbury
Road to make that arrest?
A: We did.
Q: Can you tell me about the circumstances of that arrest? What
happened when you arrived at the scene?
A: Upon arrival we walked up the stairs to the residence, knocked
on his front door, announced our presence, that we needed to talk
to him and he refused to answer the door. However, we could hear
him inside the residence. We could hear voices. We could hear him
walking around. We could hear objects being moved around. We
continued to knock and we continued to not receive an answer.
A: We weren't going to forcibly enter so we left the premise and
set up a perimeter around his residence in an attempt to observe
[the defendant] leaving the residence.
Q: Did he in fact leave the residence shortly after you set up this
perimeter?
A: Yes.
Q: And what did you see him do?
A: He got into his vehicle and attempted to flee the area.
Q: When you say flee, what made you conclude that he was trying
to flee?
A: He obviously knew we were there. He knew we wanted to talk
to him.
N.T. Trial, 12/11/12 at 278-280. At this point, Attorney Palermo objected to the word flee being
used arguing that there had been no evidence of flight. Judge Walsh sustained the objection and
instructed the jury "not [to] consider the word flee. We're going to have a description of what
happened but you should not consider the word flee." Id. at 280.
Following the objection, Trooper Shearer further testified:
Q: Can you describe exactly what [the Defendant] did when he
came out of his residence and got into his car?
27
A: He exited his residence. I observed him look around to see if he
could observe a police presence at which point he entered his
vehicle and attempted to quickly leave the area.
Q: How could you tell he was trying to leave?
A: He got in his vehicle and immediately exited the vicinity.
Q: Did he actually put the car- could you see him actually turning
the car on?
A: Yeah. He started the vehicle and began to leave the driveway.
Q: And would you say at a high rate of speed?
A: Higher than normal, yes, ma'am.
Id. at 280-282. The Defendant argues that trial counsel should have objected to flight instruction
being read to the jury at all. Specifically, he points to the fact that trial counsel objected to
the word "flee" and that objection was sustained. Id. at 280. Further, Defendant highlights that he
was not leaving the scene of the crime and that his conduct of leaving the house after the incident
and driving down the street "is normal behavior [which] is not indicative of trying to run from
the cops." See Def.' s Amended PCRA Pet. at 13.
This Court also finds Defendant's second contention regarding the flight instruction to
be without merit. In support of his argument, Defendant cites Clark, which stated a flight
instruction is generally appropriate where a defendant flees the scene of the crime. See Clark,
961 A.2d at 92. However, there is no requirement that the Defendant flee the scene of the crime
to necessitate a flight instruction and instead the Defendant must only commit a crime, know he
is wanted therefor, and attempt to flee or conceal himself to warrant a flight instruction to show
consciousness of guilt. The testimony by Trooper Shearer illustrates that the Defendant actually
did attempt to flee as well as conceal himself which warranted a flight instruction. Specifically,
Trooper Shearer testified that after police set up a perimeter, the Defendant exited the residence
and looked around before entering his vehicle. The Defendant then attempted to exit the area at a
high rate of speed before he was stopped by police. Such testimony is sufficient to justify an
28
inference that Defendant was attempting to flee from police after they knocked on his door and
asked to speak with him.
Additionally, Trooper Shearer testified that he and two additional troopers announced
their presence upon arriving at the Defendant's residence, the location where the alleged crime
occurred, and instructed the Defendant they needed to talk to him. Further, according to the
testimony of Trooper Shearer, the Defendant failed to open the door despite the fact troopers
could hear voices and the Defendant walking and moving objects around in the residence.
Therefore, it is not reasonable to conclude that the Defendant did not know he was wanted by
police regarding the incident that occurred in his residence just a few nights prior. The record is
clear that a flight instruction was warranted and proper in this case. As such, the Defendant's
argument is without merit. It should be noted that the flight instruction in this case emphasized
that it would be up to the jury to determine if it believed Trooper Shearer's testimony that the
Defendant hid from police or to believe the Defendant's testimony that he was merely sleeping
in his apartment. This credibility determination was for the jury to make and was clearly covered
by the instruction.
IV. Failure to Obtain Steroid Expert
A. Arguable Merit
In his fourth issue, the Defendant raises multiple ineffective assistance of counsel claims.
First, Defendant asserts that Attorney Palermo was ineffective for failing to secure a steroid
expert for trial. Second, he asserts Attorney Palermo was ineffective for failing to keep the
steroid evidence out via a pretrial motion supported by an expert opinion. Prior to trial, Attorney
Palermo filed a Motion in Limine requesting that the Court exclude any evidence regarding the
Defendant's steroid use. Ultimately, Judge Walsh allowed the Commonwealth to introduce
29
steroid evidence to establish motive but not to "blacken the character of the Defendant." See
Order, 5/4/2012. At trial, Dr. Pierre Turchi's testified for the Commonwealth. Specifically, on
direct, Dr. Turchi testified to the following regarding steroid use:
Q: Finally, Dr. Turchi, and this is an all together [sic] different
subject. I'd like to talk to you a little bit, very briefly, about steroid
use. Have you had the opportunity to receive any training or read
any literature about steroid use?
A: Yes.
Q: And would it be fair to say that use of steroids can cause a
person to become more aggressive than they normally are?
A: Most definitely, yes.
Q: If hypothetically speaking, if someone took steroids and then
had alcohol on top of that, would that change the aggression in any
way?
A: It would make it far worse because alcohol removes the
inhibition. We are less shy when we drink a little bit, so if you add
steroids then alcohol that is a bad combination.
Q: In all fairness, sir, to your knowledge, you've never treated
Dustin Bailey as patient; correct?
A: Yes, Oh, I'm sorry, excuse me. Yes, correct.
N.T. Trial, 12/11/12, at 237-238. These four questions represent the entirety of Dr. Turchi's
direct testimony concerning steroids. ( emphasis added). On cross-examination, Dr. Turchi
admitted that the last time he attended a seminar or read some publication about steroids was five
or six years ago. Id. at 239. Dr. Turchi also confirmed that he had not examined any blood from
the Defendant and that numerous factors could be combined with alcohol which could lead to a
"bad result." Id. at 240.
The Defendant alleges that Attorney Palermo should have utilized an expert to combat
the steroid testimony of Dr. Turchi. Specifically, Defendant asserts that an expert, such as Dr.
Harrison Pope, M.D., could have testified at trial to show that there was wholly insufficient
evidence to conclude the Defendant's motive in this crime was steroid use. Dr. Pope's
30
credentials, as provided in his C.V., are certainly impressive. See Def. 's Amended PCRA Pet., at
Appendix C. Furthermore, there is little doubt that compared to Dr. Turchi, the victim's family
physician, Dr. Pope possess significantly more knowledge and experience regarding steroid use
in general and particularly use of anabolic-androgenic steroids. ("AAS").
When raising an ineffective assistance of counsel claim for failure to call a potential
witness, the Pennsylvania Supreme Court has held that a PCRA petitioner satisfies the
performance and prejudice requirements of Pierce by showing:
"(l ) the witness existed; (2) the witness was available to testify for
the defense; (3) counsel knew of, or should have known of, the
existence of the witness; (4) the witness was willing to testify for
the defense; and (5) the absence of the testimony of the witness
was so prejudicial as to have denied the defendant a fair trial."
Commonwealth v. Johnson, 966 A.2d. 523, 536 (Pa. 2009). In the instant matter, the parties
stipulated that defense expert Dr. Pope existed, was available to testify, and that trial counsel
knew or should have known about his identity. Thus, to satisfy the first and third prongs of
Pierce the Defendant must show that the absence of Dr. Pope's testimony was so prejudicial that
it deprived the defendant of a fair trial. In addressing the merit prong first, this Court finds that
Attorney Palermo could have chosen an expert such as Dr. Pope to effectively contradict the
steroid testimony of Dr. Turchi. Thus, the first prong of Pierce has been satisfied.
B. Reasonable Strategy
The Commonwealth does not appear to dispute the initial prong Pierce on this issue.
Rather, the Commonwealth's argument stresses that Attorney Palermo had a reasonable strategy
when he decided not to a call an expert witnesses of his own to refute any testimony by Dr.
Turchi concerning steroids. This Court agrees. At trial, it is clear that Attorney Palermo's
strategy was to impeach Dr. Turchi regarding his lack of knowledge on the subject of steroid use.
31
When asked at the PCRA hearing about his knowledge of the anticipated nature of Dr. Turchi's
testimony and his trial strategy in response, Attorney Palermo testified:
I took it as he was a family doctor coming in to testify to the
victim's injuries. Iunderstood him to be the treating physician.
And he was--1 think he had reviewed documents or something
about steroid use.
But our trial plan was basically impeachment which I think we
tried to do at trial, if I recall correctly, on his lack of
knowledge about the subject matter. And basically spatially it
bad been some years since he looked at anything about this
topic.
N.T. PCRA Hearing, 5/4/15, at 68. (emphasis added).
As correctly highlighted by the Commonwealth, our High Court has held that it is an
apodictic rule that counsel is not ineffective merely because he or she does not a call medical or
forensic specialist to present testimony which would critically evaluate the expert testimony
presented by the prosecution. See Cox, 983 A.2d at 691. Rather than calling an expert or
forensic specialist in some circumstances, trial counsel may seek to cross-examine a
prosecution's witness to elicit helpful testimony. See Commonwealth v. Smith, 675 A.2d 1221(Pa. 1996) ( counsel not ineffective for failing to call expert witness and instead "cross-examining
all of the Commonwealth's expert witnesses in an attempt to establish an accidental death theory
and to explore the soundness of the prosecution's theory."(emphasis added)). The
Commonwealth also cites Commonwealth v. Copenhefer, 719 A.2d 242, 253 (Pa. 1998), and
Commonwealth v. Yarris, 549 A.2d 513, 529 (Pa. 1988), in support of this proposition.
In response to the various case law put forth by the Commonwealth, the Defendant avers
that none of these cases are relevant to the instant matter: Instead, Defendant believes his case
"presents an exceptional situation where the Commonwealth presented scientific testimony via a
non-expert that was scientifically inaccurate." Def.' s Brief at 16. Defendant continues by
32
alleging that cross-examination has the limited purpose of being used to impeach. Despite this
contention, in some circumstances cross-examination may also be used to elicit helpful
testimony from a witness of the opposing party. Further, for reasons that will be described in
detail below, this Court does not find the Defendant's case is one which presents the exceptional
situation the Defendant alleges. Defendant's contention that Attorney Palermo failing to
challenge inaccurate testimony with an expert was clear error and not a strategy is wholly
without merit. Attorney Palermo clearly had a trial strategy and that was to cross-examine Dr.
Turchi with his lack of knowledge about the subject of steroid use.
Next, this Court must determine if the Attorney Palermo's decision to cross-examine Dr.
Turchi instead of calling an expert witness of his own such as Dr. Pope was reasonable.
(emphasis added). This Court finds that Attorney Palermo's cross-examination in this case was
reasonable and was in fact effective regardless of the jury's verdict. Counsel's chosen strategy
will not be found to have lacked a reasonable basis, as the second prong of the test for ineffective
assistance of counsel, unless it is proven that an alternative not chosen offered a potential for
success substantially greater than the course actually pursued. See Commonwealth v. Williams,
899 A.2d 1060 (Pa. 2006). Trial counsel's strategy is not measured through hindsight against
alternatives not pursued, so long as trial counsel had a reasonable basis for the decision made. Id.Attorney Palermo's reasoning for deciding to cross-examine Dr. Turchi was that he
believed that Dr. Turchi's knowledge on steroids was borderline ridiculous and embarrassing.
Specifically, when asked at the PCRA hearing why he chose this approach instead of calling an
expert, Attorney Palermo testified:
[Attorney Palermo]: My reason was factual. And this case was in
my opinion very weak for the Commonwealth. It was kind of
33
thrown together at the last minute, this whole steroid thing. In fact,
I think it seemed like the first time I heard this actual allegation
was in response to my motion so that at this time, there had been--
now we're a couple days before trial at this point.
There had been no allegation that he was under the influence of
steroids. Ihad knowledge from discovery that his blood wasn't
tested. So we were just going to wait for this expert to come to trial
and impeach him on the stand, which I believe we did or tried to
do.
N.T. PCRA Hearing, 5/4/15, at 71. Further, on cross-examination, Attorney Palermo testified:
Q: And is it fair to say that when it came to the steroid use, your
strategy during trial was to focus on the cross examination of Dr.
Turchi because you felt he was not credible or lacked knowledge
on the subject?
A: Yeah. I think it teetered on embarrassing, his testimony
about his knowledge.
[The Court] Q: I'm sorry. What?
A: Teeters on embarrassing almost his knowledge of steroids. I
think=again I'm trying to remember. But it was=he hadn't read
anything on it in five to six years or something like that.
Q: So once again, what was exactly your strategy with regard to
dealing with the steroid issue?
A: That we weren't going to make a big deal out of it. I thought it
was reaching on your office's part to try to tie in the steroids to this
case. I thought we had a more believable scenario, this
gentleman had attacked Mr. Bailey's sister and he went to her aid.
That's coupled with the knowledge that this Megan Millhouse
saying that you meet a guy that night, he says, Hey, you want to
see my steroid kit?
It didn't pass the smell test. It was incredible testimony.
Id. at 96, 99. (emphasis added). This testimony by Attorney Palermo is consistent with
34
statements he made during his closing argument at trial. See N.T. Trial, 12/12/12, at 145-146. All
of these statements by Attorney Palermo make it indisputable that his reasoning for choosing to
cross-examine Dr. Turchi was because of the lack of knowledge he had on the topic of steroids
and the belief that the steroid testimony linking the Defendant was unbelievable. His chosen trial
strategy was clearly reasonable given these facts. The record supports that Attorney Palermo had
a reasonable basis for deciding to cross-examine Dr. Turchi rather than to call an expert to
highlight the steroid issue further.
Finally, this Court would note that Attorney Palermo executed his trial strategy by
extensively cross-examining Dr. Turchi about his lack of knowledge regarding steroid use in
general and as well as specifically related to the Defendant. In reviewing the trial transcript,
Attorney Palermo's cross-examination of Dr. Turchi appears quite effective. Unfortunately for
the Defendant, the jury was unpersuaded, but as pointed out by the Commonwealth, that fact is
irrelevant. See Commonwealth v. Colavita, 993 A.2d 874, 895 (Pa. 2010). Because this Court
finds Attorney Palermo had a reasonable basis for the trial strategy he employed on this issue, we
decline to address the final prong of Pierce. Further, because we find Attorney Palermo's
decision and actions to be reasonable we also reject Defendant's additional argument that
Attorney Palermo was ineffective for failing to keep the steroid evidence out via a pretrial
motion supported by an expert opinion.
V. Failure to Object to Dr. Turchi Testifying as an Expert Witness
As the three prongs of Pierce are much more interwoven on Defendant's fifth issue the
Court will address them simultaneously. At the outset, Defendant correctly notes that Attorney
Palermo stated at the PCRA hearing that Dr. Turchi "was never formally identified as an expert
witness." N.T. PCRA Hearing, 5/4/15, at 69. Defendant extrapolates this into contending that
35
Attorney Palermo was ineffective for failing to object to Dr. Turchi's testimony regarding
steroids because such testimony was inadmissible because Dr. Turchi was not qualified as an
expert and lacked the expertise to even be qualified. See Def.'s Amended PCRA Petition at 15-
16. Similar to the Defendant's fourth issue, the Commonwealth highlights that it is reasonable
for trial counsel to seek to impeach a witness's credibility through cross-examination as opposed
to objecting to the witness's testimony. See Commonwealth v. Robinson, 682 A.2d 831, 835 (Pa.
Super. 1996). In response, the Defendant attempts to distinguish Robinson because the evidence
in that case was relevant and admissible. Id. at 835. In contrast, Defendant asserts that Dr.
Turchi' s testimony about steroids was inadmissible because he was not an expert in that field and
that his opinion is outside the knowledge of a lay person without using a methodology generally
accepted in the relevant field. Thus, according to the Defendant, the testimony of Dr. Turchi
regarding steroids violated the Pennsylvania Rule of Evidence. See Pa.R.E. 702.10
Although the Defendant is correct Dr. Turchi was not formally qualified as an expert, he
was asked questions regarding his career and credentials at trial. See N.T. Trial, 12/11/12, at 221.
At the outset of his direct examination Dr. Turchi testified that he worked at Mercersburg Family
Care as a physician in the family care practice program. Id. Additionally, he testified he had been
working at the practice since January of 2011 and began practicing as a doctor in general in
1983. Id. Both the Defendant's Amended PCRA Petition and his Brief following the PCRA
hearing appear to allege that the Commonwealth presented Dr. Turchi's testimony about steroids
10
Pa. R.E. 702, Testimony by Expert Witnesses states:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge is beyond
that possessed by the average lay person;
(b) the expert's scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue; and
(c) the expert's methodology is generally accepted in the relevant field.
36
as evidence that the Defendant committed an isolated, non-triggered act of violence to explain
motive. The Defendant's expert, Dr. Pope, explains that AAS cannot, without some other
triggering factor, motivate violent behavior. See Def.'s Amended PCRA Pet. at 14, Appendix B ·
at 3.
However, at no point did Dr. Turchi testify that use of steroids could do this. A thorough
review of Dr. Turchi direct testimony reveals that he answered precisely four questions regarding
steroids. See N.T. Trial, 12/11/12, at 221-222. The first question Dr. Turchi was asked was ifhe
had read any literature or received any training about steroids, to which he stated he had. Id. at
237. Dr. Turchi was effectively cross-examined on this answer by Attorney Palermo as he was
forced to admit that he had not reviewed any literature or received any training on steroids in
over "five or six years." Id. at 239-240. Second, Dr. Turchi was asked "would it be fair to say
that use of steroids can cause a person to become more aggressive than they normally are?" to
which he answered "most definitely yes." Id. at 237. Notably, the question includes the word
can. Undoubtedly, a plethora of different substances, situations, or factors can cause a person to
become more aggressive than they normally are. As a doctor, Dr. Turchi was certainly qualified
to opine on many of these factors. Id. at 239. Attorney Palermo again effectively cross-examined
Dr. Turchi by eliciting an opinion by Dr. Turchi that many things, besides steroids, can "cause a
bad result." Id. Despite the Defendant's classification otherwise, Dr. Turchi did not testify that
steroids, without other triggering factors, could motive violent behavior. (emphasis added).
Rather, Dr. Turchi opined that steroids were one factor that could cause a person to become more
aggressive. Such an opinion is not "inaccurate testimony." Defendant highlights that Dr. Pope
states that AAS cannot be cited as a stand-alone explanation for a violent acts, that lay people
have an improper idea about the term "roid rage," and that individuals using AAS do not erupt
37
into violence spontaneously like someone having a heart attack or a seizure. See Def.'s Amended
PCRA Pet. at 15, Appendix Bat 3. Again, this is was not the testimony of Dr. Turchi, who
simply stated steroids could cause a person to be more aggressive than they normally are.
In his third answer regarding steroids on direct examination, which was a hypothetical,
Dr. Turchi opined that if you combined steroids and alcohol together that would be "a bad
combination." See N.T. Trial, 12/11/12, at 237-238. Once again, the Defendant's characterization
that this testimony supports an assertion by Dr. Turchi that AAS causes random, spontaneous
violence is misleading and inaccurate. One could argue that combining just about anything with
alcohol, especially something such as steroids, is a "bad combination." Finally, in her fourth
question on direct, Attorney Sulcove asked a question that actually strengthened the Defendant's
case, essentially seeking confirmation that Dr. Turchi had never had the Defendant as a patient or
reviewed any of his blood work. Id. at 238. Consequently, even if the Defendant could prove
arguable merit and that Attorney Palermo had no reasonable basis for not objecting to Dr. Turchi
testimony regarding, the Defendant fails to prove he was prejudiced from this minimal amount
and general testimony on steroids. As such, Defendant's argument on this issue is without merit.
VI. Failure to Obtain a Stenographer for the Preliminary Hearing
A. Arguable Merit
In his sixth issue, Defendant argues that his preliminary hearing counsel, Attorney
Christopher Reibsome, provided ineffective assistance of counsel because he failed to obtain a
stenographer at the Defendant's preliminary hearing. Defendant argument stems from notes
taken at the preliminary hearing by Attorney Reibsome and Attorney Clint Barkdoll who
represented bis sister and co-defendant, Billy Jo Bailey. Specifically, Defendant highlights a
discrepancy between the victim's testimony at the preliminary hearing and trial regarding the
38
number of times he alleges he was struck in the head by the Defendant. At the PCRA hearing,
both Attorney Reibsome and Attorney Barkdoll testified that their notes from the preliminary
indicate that the victim testified that he was hit two or three times in the face with a closed face.
N.T. PCRA Hearing, 5/4/15, at 18-20, 27. At trial, the victim testified:
Q: Do you have an approximate number oftimes he hit you in the head?
A: No. A lot.
Q: More than three times?
A:Yes.
Q: More than five times?
A:Yes.
Q: More than ten?
A: Probably, yes.
N.T. Trial, 12/11/12, at 78.
Defendant asserts that this discrepancy in testimony shows that the victim intentionally
changed his story at trial and provided false testimony. However, because there was no
preliminary hearing transcript, Defendant concludes that the victim could not be impeached at
trial with these prior inconsistent statements. Consequently, Defendant argues that Attorney
Reibsome was ineffective for failing to obtain a stenographer at the preliminary hearing to ensure
obtaining a transcript of the procedure would be possible.
The Commonwealth asserts that there is no constitutional right to a preliminary hearing at
either the federal or in Pennsylvania. See Coleman v. Alabama, 399 U.S. 1 (1970);
Commonwealth v. Ruza, 511 A.2d 808, 810 (Pa. 1986). In Pennsylvania, guidance on
preliminary hearings is drawn from Pennsylvania Rule of Criminal Procedure 542. Specifically,
Pa. R. Crim. P. 542(C) states that:
(C) The defendant shall be present at any preliminary hearing
except as provided in these rules, and may:
(1) be represented by counsel;
39
(2) cross-examine witnesses and inspect physical evidence offered
against the defendant;
(3) call witnesses on the defendant's behalf, other than witnesses to
the defendant's good reputation only;
(4) offer evidence on the defendant's own behalf, and testify; and
(5) make written notes of the proceedings, or have counsel do
so, or make a stenographic, mechanical, or electronic record of
the proceedings.
(emphasis added). Finally, the Commonwealth notes that "any deficiencies in procedures at the
preliminary hearing are cured by trial where a criminal defendant is found guilty beyond a
reasonable doubt." Comm.'s Brief at 18 citing Ruza, 511 A.2d at 810.
After careful consideration, this Court agrees with the Commonwealth. Nowhere in Rule
542 is an affirmative requirement that defense counsel "obtain a stenographic record" of the
proceeding. To the contrary, defense counsel is empowered with choosing between a variety of
options including making written notes or having a stenographic or electronical of the
proceedings made. In the instant matter, Attorney Reibsome apparently decided against
requesting a stenographic record of the proceedings and instead chose to take his own notes.
Notably, Attorney Barkdoll also did not request a stenographer for the preliminary hearing while
he was representing Billy Jo. At the PCRA hearing, Attorney Barkdoll confirmed that it was
often the case that a stenographer may not be available to transcribe every preliminary hearing.
See N.T. PCRA Hearing, 5/4/15, at 21.
Defendant contends that he has a right under Pa. Crim.R'P, 542(C)(5) to a stenographic
record of his preliminary hearing. Defendant contends that he requested that Attorney Reibsome
retain a stenographer but he refused and instead simply took handwritten notes. At the PCRA
hearing, Attorney Reibsome directly contradicted this hollow allegation testifying:
40
Q: It's also possible I believe you said that you may have actually
wanted a stenographer but there wasn't one available. Is that a
possibility?
A There's that possibility. I don't recall whether one is available. I
know I didn't file for one. But I don't know.
Q If the Defendant had requested that a stenographer be present for
the preliminary hearing, would you have ignored that request?
A: No. I would have at least filed something.
Id. at 37. (emphasis added). In contrast, Defendant presented absolutely no evidence at the
PCRA supporting this baseless allegation contained within his Amended PCRA Petition.
Defendant also fails to present any Pennsylvania case law which has ever found that an attorney
was ineffective for taking handwritten notes rather than obtaining a stenographer and a transcript
of a preliminary hearing. Quite simply, Attorney Reibsome was under no affirmative duty to
request a stenographic record of the preliminary hearing and the Defendant presented no
evidence at the hearing to show that he requested one. Thus, we find the Defendant's argument
on this issue lacks arguable merit and fails the first prong of Pierce.
VII. Failure to Obtain Prior Counsel's Notes from PreliminaryHearing
A. Arguable Merit
Next, Defendant contends that Attorney Palermo was ineffective because he failed to
request and use the notes Attorney Reibsome made at the preliminary hearing at trial. At the
PCRA hearing, Attorney Palermo testified that although he did not ask Attorney Reibsome for
his preliminary hearing notes after taking over the case, he did have an outline of them which he
used at trial. See N.T. PCRA Hearing, 5/4/15, at 92. Similar to the previous issue, Defendant
argues Attorney Reibsome's notes state the victim testified at the preliminary hearing that he was
hit two or three times. He also highlights that Ms. Millhouse testified at the preliminary hearing
41
that she had "no drinks" while at the Defendant's house.11 Defendant concludes by asserting that
if trial counsel had used the notes of Attorney Reibsome he would have been able to impeach
these witnesses when they testified differently at trial.
Interestingly, Attorney Palermo was not asked to extrapolate at the hearing on what his
outline contained or from where it was obtained. When directly asked by defense counsel at the
PCRA hearing if he knew the testimony at the preliminary hearing, Attorney Palermo stated that
he had an outline of it. His affirmative answer suggests he was well aware of the preliminary
hearing testimony. This Court finds that Attorney Palermo's use of an outline of the preliminary
hearing notes was sufficient in this matter and the Defendant's claim lacks arguable merit. This
is strengthened by possible issues regarding the deciphering of Attorney Reibsome's notes.
When Attorney Reibsome was asked if the notes were his handwriting he answered "[y]eah it
looks bad enough. So yeah." N.T. PCRA hearing, 5/4/15 at 26. Given Attorney Reibsome's own
admission about the quality of his handwriting, Attorney Palermo may have reasonably decided
an outline of the notes was superior for purposes of trial. Finally, this Court also does not
believe Defendant could satisfy the prejudice prong on this issue.
VIII. Failure to Object to the Prosecutor'sClosing Argument
A. Arguable Merit
In his eighth issue, Defendant contends that Attorney Palermo was ineffective for failing
to object to statements made by Attorney Sulcove in her closing argument. Defendant alleges
that an objection was necessary because Attorney Sulcove "improperly bolstered her own
witness's testimony by offering broad opinions about their credibility." Def. 's Amended PCRA
Pet. at 29. Furthermore, the Defendant alleges that Attorney Sulcove improperly opined about
11
On cross-examination by Attorney Barkdoll, Ms. Millhouse testified that she had maybe had one or two drinks at
the Defendant's house. N.T. Trial, 12/11/12, at 169. Thus, even if this Court were to find that the Defendant could
satisfy the first two prongs of Pierce, Defendant would wholly fail to show prejudice on this point.
42
the Defendant and codefendant's testimony and credibility. Id. Specifically, Defendant
emphasizes that Attorney Sulcove told the jury that Billy Jo's testimony12 was "highly
incredible'' and that "you should toss out everything she said based on that, ladies and
gentlemen." N.T. Trial, 12/12/12, at 184. Additionally, Defendant takes issue with other remarks
by Attorney Sulcove where she stated that the victim and Ms. Millhouse were not lying in this
case but instead the Defendants were. Id. at 192. Finally, Defendant argues that Attorney
Sulcove's characterization of his testimony that contradicted that of Trooper Shearer's testimony
as "malignant garbage" was improper. Id. at 178-179.
The Pennsylvania Supreme Court has made it clear that "a prosecutor may not offer
his personal opinion as to the guilt of the accused either in argument or in testimony from the
witness stand. Nor may he or she express a personal belief and opinion as to the truth or falsity of
evidence of defendant's guilt, including the credibility of a witness." Commonwealth v. D 'Amato,
526 A.2d 300, 309 (Pa. 1987) (internal citations omitted). Defendant cites three cases in support
of his argument that Attorney Sulcove's statements were improper in this matter and that
Attorney Palermo should have lodged an objection. The first case is Commonwealth v. Potter,
285 A.2d 492 (Pa. 1971). In Potter, the defendant was convicted of first degree murder and
robbery. Id. On appeal, the defendant argued that he was entitled to a mistrial based on a
prejudicial statement made by the prosecutor during cross-examination. Id. On cross-
examination, the prosecutor asked the Defendant why he had not told his public defender about
marks on his face alleged to have been the result of being beaten up by police. Id. The following
exchange then occurred:
Q: Yes, why not?
A: He wasn't concerned about any marks on my face.
Q: I suggest to you, Mr. Potter,
12
Billy Jo's testimony supported the Defendant's theory of self-defense/defense of others.
43
A: You suggest to me what?
Q: I suggest to you that the reason that you didn't say anything about it is because
what you have said about being beaten by the police is a malicious lie like all the
rest of your testimony.
A: No it is not.
Id. Trial counsel for the defendant then objected. Id. In reversing a denial of a mistrial by the
trial court, the Pennsylvania Supreme Court stated that the prosecutor by branding the
defendant's testimony as a malicious lie "exceeded the permissible bounds of cross-
examination." Potter, 285 A.2d at 493. Further, the Potter Court found that such statements
resulted in the highly prejudicial opinion of the defendant's credibility by the prosecutor which
impeded on the jury's exclusive function of assessing the credibility of a witness. Id.
Consequently, our High Court vacated and granted a new trial.
In Commonwealth v. Kuebler, 399 A.2d 116 (Pa. Super. 1979), the defendant was
convicted of murder, aggravated assault and recklessly endangering another. In his closing
argument, the prosecutor made the following statement:
I submit to you, members of the Jury, that the defendant is not
right, and everything that she said from that stand, and in every
major respect concerning this case was a big lie."
Id. at 117. Finding that the defendant's credibility was critical to asserting a proper defense, the
Kuebler Court found that the characterization of her testimony by the prosecutor as a "big lie"
was highly prejudicial and warranted a new trial. Id. at 119.
Finally, the Defendant cites Commonwealth v. Grosso, 418 A.2d 452 (Pa. Super.
1980), in support of his argument on this issue. The defendant in Grosso was convicted of
various crimes, including rape. Id. In the prosecutor's closing argument he stated a written
statement may be the defendant and the motive counsel for the defendant offered was "sheer
fantasy." Id. at 453. The Grosso Court found that this statement clearly communicated the
44
prosecutor's personal opinion of the defendant's testimony and was so prejudicial it necessitated
the granting of a new trial. Id. at 454.
As the Defendant properly recognizes in other issues raised in this PCRA Petition, the
credibility of the various witnesses in this case was crucial. Thus, during his closing at trial,
Attorney Palermo made various statements attacking and questioning the veracity of the
testimony of the Commonwealth's key witnesses. Attorney Palermo stated the following
regarding the testimony of Ms. Millhouse:
I want to talk about Ms. Millhouse who's joined us. It's a
phenomenon, and I don't have a name for it when I'm in court, but
whenever I watch the Commonwealth talk to their witnesse [sic], it
kind of has a natural flow to it. They kind of, you know, before the
question's out the answer's coming back.
But when I ask one of their witnesses' questions, it's like pulling
teeth. I mean, you want to fight with me? You're the victim.
You're of clear conscience. You're the victim. You were
victimized. The Commonwealth of Pennsylvania's standing by
your side holding your band you're going to fight with me over
the word flirting versus being friendly? We're going to have a fight
over that? We're going to be disrespectful to each other because
I'm saying flirting and you're saying friendly?
They had to show up today and they had to show up yesterday
and they got to maintain that story, but the problem happened
when they didn't stick to the story. Clear open-ended questions
what happened next.
N.T. Trial,12/12/12, at 142-143. (emphasis added). Next, Attorney Palermo further attacked the
credibility of the victim and Ms. Millhouse by stating:
Remember this, to believe their story; this is an unprovoked
attack, completely unprovoked. You're all drinking, having a good
time and then it's kind of like, well, maybe wrestle mania breaks
out and Dustin wants to wrestle everybody, and then he just goes
in the bathroom and clears house.
45
That's what you got to believe. They want to believe that's a
reasonable story and you're entitled to. I'm not going to tell you
what to think. You have the evidence or lack thereof.
Id. at 146-147. (emphasis added). Attorney Palermo continued his scathing closing, as it was
later described at sidebar by the Judge Walsh, by questioning the veracity of the testimony of
Trooper Shearer commenting:
Today you got to see Trooper Shearer in his suit on the witness
stand, very polite. Yes, sir; no, sir. He has a tough job ... I'm sure
it's a stressful job.
But remember, the guy you see in court testifying, he didn't come
to my client's door in a suit and those stories are very divergent.
You either knock on the door and had a nice conversation at the
front door with my client or you woke him up a flashlight in bed.
That's two different stores. Unfortunately you have to parse out
which one is true. Woken up with a flashlight and my client wasn't
too happy. Yeah, I understand.
You have to believe from the trooper it was the most polite
conversation he ever had. It was a Sunday service conversation
about, well, what did he do, Dustin? Tell me the whole story.
When Trooper Shearer took the stand initially and Ms. Sulcove
asked him, well, what did Dustin Bailey say to you, he gave a
rendition of events that was very similar to what he testified to
today, that he was in the bathroom with my sister and we got into a
fight. That was his version way back then.
But when you put blinders on and don't care and when you
decide early on who the victim is, who has the worse black eye,
that's okay? They're in control.
Id. at 147-148. (emphasis added).
Finally, Attorney Palermo attempted to bolster the credibility of the testimony of the
Defendant stating:
Let's talk about credibility. [The Defendant] came in and told
you [that he had pled guilty in prior cases] on the witness stand.
When he talked to Ms. Sulcove, it wasn't that much of a flow to
46
the conversation, angst in his voice. But, again, this is a man that's
been under this for 18 months who had to sit next to me calm, but
he hears nobody mention that for 18 months, but it's been filed in a
police report, on two police reports, by the way, in different
contexts for 18 months. So I understand his angst. I understand his
anger and probably rage.
You have to weigh credibility. I'm welcoming you to weigh my
client's credibility. He did what he did and took up for it. He
pied guilty to it. Weigh [the victims'] credibility when they
took that stand and raised their hand in oath.
Id. at 145-147. (emphasis added). It is quite clear that on multiple occasions Attorney Palermo
attacked the credibility of all three of the Commonwealth's key witnesses. Furthermore, he also
commented and bolstered the credibility of the Defendant.
The Commonwealth also cites various case law in support of its contention that "when
the prosecutor's entire closing is read in context with the defense attorneys' closing remarks, as
well as all of the testimony and other evidence presented at trial, it is clear that the prosecutor
was not expressing her own personal beliefs about the witnesses' credibility, but rather, was
appropriately responding to credibility comments made by defense counsel." Comm.'s Brief in
Support at 20. In Commonwealth v. Barren, 462 A.2d 233 (Pa. 1983), the defendant claimed that
the prosecutor committed reversible error in his closing when he stated "[The victim] got up [on
the witness stand], she had to go through this ordeal because she wanted to bring you the truth,
what actually happened." Id. at 235. The Barren Court held such comments were not reversible
error because they were motivated prior attacks upon the credibility of the Commonwealth's
witness. Specifically, our High Court stated:
In his closing statement, defense counsel described the victim's
testimony as the product of rote memorization which she had
repeatedly rehearsed with her mother in preparation for trial. The
prosecutor would have been remiss in his duties had he failed
47
to counter this attack with an attempt to support the victim's
credibility before the jury. His remarks during summation were a
reasonable attempt to comply with this duty and thus are properly
categorized as constituting fair response.
Id. ( emphasis added).
Pursuant to Barren, it clear that Attorney Sulcove's comments that the Defendant
contends "improperly bolstered" the credibility of the Commonwealth's witnesses were quite
proper. Attorney Palermo attacked the credibility of the Commonwealth's key witnesses
vigorously on multiple occasions during his closing argument. See N.T. Trial, 12/12/12, at 142-
148. Consequently, Attorney Sulcove would have been "remiss in her duties" had she not
attempted to fend off this attack with statements in her closing supporting her witnesses'
credibility before the jury. Barren, 462 A.2d at 235.
Furthermore, the case law cited by the Commonwealth illustrates that its statements
questioning the credibility of the Defendant and Billy Jo were proper. In Commonwealth v.
Stolzfus, 337 A.2d 873, 882 (Pa. 1975), defense counsel in his closing argument categorized the
testimony of the Commonwealth's witnesses as "ridiculous" and stated "they are trying to insult
your intelligence" and that one Commonwealth witness was clearly lying and "ha[d] absolutely
no concept as to the meaning of an oath." In response, the prosecutor made various comments in
her closing regarding the credibility of the defendant's story at trial. Id. The Stolzfus Court held
that "it is apparent that the district attorney's attack upon the credibility of [the defendant] was
motivated by and was commensurate with, the prior attacks upon the credibility of [the
Commonwealth's witnesses]. That being the case, the complaint now made as to the district
attorney's summation has little merit." Id. (emphasis added). Perhaps most telling on this
issue is Commonwealth v. Johnson, 588 A.2d 1303 (Pa. 1991), where the Pennsylvania Supreme
Court stated:
48
While the prosecutor did state during his closing argument that
appellant had lied, when taken in context and after review of all
of the evidence, it becomes clear that his remarks were neither
unfair nor prejudicial. Clearly, the outcome in the case
involved a credibility determination by the jury.
Moreover, it was the defendant's counsel who first commented
on the credibility of witnesses. Indeed, defense counsel quite
clearly indicated bis belief that one of the prosecution witnesses
was in fact lying ... Given these circumstances, it would be
difficult to conceive of any other approach when closing to the
jury employed by the prosecutor here. Viewed in this context,
the prosecutor's comments were neither unfair nor prejudicial, but,
merely reinforced the fact the jury had been presented conflicting
stories.
Id. at 307. (emphasis added). Stolzfus and Johnson strongly support the Commonwealth's
contention that the prosecutor's statements regarding the credibility of the Defendant were
proper in light of credibility attacks levied by Attorney Palermo during his closing argument.
Further, the cases cited by the Defendant are easily distinguishable from the instant
matter. First, Potter dealt with statements made by the prosecutor on cross-examination. This is
clearly not analogous to making such statements during a closing argument as is alleged in the
case at bar. Additionally, there was no language in either Kuebler or Grosso which indicated that
defense counsel in those cases had originally attacked the credibility of the Commonwealth's
witnesses or attempted to bolster that of their own. Consequently, this Court finds the case law
cited by the Commonwealth to be analogous and the case law cited by the Defendant to be
clearly distinguishable. As the Defendant's argument on this issue has no arguable merit
additional analysis under the final two prongs of Pierce is unnecessary.
49
IX. Failure to Advise Client of Crimen Falsi Implications
A. Arguable Merit
In Defendant's ninth issue, he argues that Attorney Palermo was ineffective because
he did not discuss with him that some of his prior convictions would be admissible evidence if he
testified at trial. Defendant alleges that on the advice of Attorney Palermo he took the stand and
on direct examination his prior convictions in 2003 for theft and conspiracy to commit robbery
came out. Defendant contends that Attorney Palermo's advice did not permit him to make a
knowing and intelligent decision to testify because he was unaware that his prior convictions
would be admitted. Thus, Defendant concludes Attorney Palermo rendered ineffective assistance
of counsel.
As correctly pointed out by the Commonwealth, the Defendant provided absolutely no
evidence at the PCRA hearing to support the aforementioned allegations on this issue. Similar to
contentions made against Attorney Reibsome in his sixth issue, Defendant's simply makes a
blanket, baseless and unsupported allegation. This allegation is also contradicted by testimony of
Attorney Palermo. At the PCRA hearing when asked how certain he was that he spoke with the
Defendant about the possibility that his crimen falsi convictions could come up on cross
examination, Attorney Palermo testified "95 percent. In my practice, it's more likely than not my
clients are going to have crimenfalsi especially with my court-appointed clients generally." N.T.
PCRA Hearing, 5/4/15, at 103-104.
Perhaps even more telling is that it was Attorney Palermo on direct, rather than the
Commonwealth on cross-examination, who brought out this crimen falsi evidence when the
Defendant testified. Specifically, Attorney Palermo asked the Defendant the following on direct
examination:
so
Q: I want to back up. This isn't your first time in a court, is it?
A: No, sir.
Q: You've been in court for other convictions. You have other convictions; right?
A: Yes, sir.
Q: You have a conviction in 2003?
A: Yes, sir.
Q: For a theft charge?
A:Yep.
Q: And a 2003 conviction for conspiracy to commit robbery?
A: Yes, sir.
Q: Were you convicted by a jury or did you plead guilty to those?
A: I plead guilty
Q: Why did you plead guilty?
A: Because I was guilty. I was guilty of that.
N.T. Trial, 12/12/12, at 21-22. Thus, it seems inconceivable that Attorney Palermo would have
failed to advise the Defendant that his crimen falsi could be used given the Defendant's high
record score and the fact that Attorney so diligently elicited this testimony out of the Defendant
on direct examination. In fact, during his closing argument, Attorney Palermo's even used the
fact that Defendant admitted these convictions on direct examination as support of the
Defendant's credibility and that he was not hiding anything from the jury. See Id. at 144. Based
on all of these reasons, this Court finds that the Defendant's assertion on this issue are
completely meritless.
X. Plea Counsel and Trial Counsel Failed to Advise Defendant of Conflict of Interest
In his tenth issue, Defendant presents a multifaceted conflict of interest argument. First,
Defendant argues that Attorney Palermo failed to provide adequate advice as plea counsel
because he was actively representing conflicting interests of the Defendant when Attorney
Palermo took the case for the sole purpose of having a jury trial to add to his qualification for
capital cases. Specifically, Defendant asserts that the Commonwealth's offer of 2 to 4 years was
not properly communicated to him because Attorney Palermo accepted the case on the premise it
would end in a trial. The Commonwealth argues that "the record is replete'' with evidence the
51
Defendant always wanted to go to trial and would not accept an offer that included a state prison
sentence. See Comm.' s Brief at 25.
The Defendant's theory on this issue derives with the procedural posture in which his
case was transferred from Attorney Reibsome to Attorney Palermo and his belief as to why
Attorney Palermo took the case. At some point after formal arraignment, the Defendant's case
was passed on from Attorney Reibsome, a member of the Franklin County Public Defender's
Office, to Attorney Palermo. Although Attorney Palermo never formally entered his appearance,
he filed a Motion for Continuance on December 12, 2011, on behalf of the Defendant and first
appeared in open court representing the Defendant at Call of the List on June 18, 2012.13
Defendant claims he believed that Attorney Palermo was a member of the Public Defender's
Office or was court appointed. Defendant further contends that Attorney Palermo took his case
for the "sole purpose of having a jury trial to add to his qualifications in capital cases." See
Def. 's Brief at 24.
It is undisputed that an unconstitutional conflict exists when an attorney's personal
interest conflict with the interest of their client. Furthermore, the Superior Court has stated:
13
It is quite likely that Attorney Palermo actually did enter an oral appearance at Call of the List but this was simply
not properly docketed. At the PCRA Hearing Attorney Palermo testified that:
Q: ... I believe you testified that you may have
orally entered your appearance at the call of the list date in
this case; is that correct?
A:That's correct. I practiced in the judicial district
for 10 years. You just don't show up one day. The other
attorney's name is going to be on the docket sheet or in front
of the judge. So I think there would be a question about why
you're here.
Q: So just because it's not necessarily included in the
docket entries doesn't mean that you didn't ask the Judge to
have your appearance entered; is that correct?
A:Correct, especially with somebody like Judge Walsh.
He was very anal about those things. I don't think he would
let that slide.
N.T. PCRA Hearing, 5/4/15, at 94. (emphasis added).
52
When a claim of ineffective assistance of counsel is based
on an alleged conflict of interest, prejudice will be presumed if
counsel is shown to have had an actual conflict of interest. If an
appellant can demonstrate the existence of an actual conflict of
interest which adversely affected his counsel's performance,
then he is entitled to a new trial. To make such a showing an
appellant must demonstrate that counsel actively represented
conflicting interests and that an actual conflict of interest
adversely affected his lawyer's performance. An actual conflict
of interest is evidenced whenever during the course of
representation, the interests of appellant and the interests of
another client towards whom counsel bears obligations diverge
with respect to a material factual or legal issue or to a course of
action. (emphasis added).
Commonwealth v. Padden, 783 A.2d 299 (Pa. Super. 2001).
Defendant admits that the offer of 2-4 years was conveyed to him on multiple occasions.
As is the policy of this Court, this offer was discussed at length with the Defendant at his Pretrial
Conference on October 29, 2012. The Defendant was made aware on the record that with his
prior record score the standard range for aggravated assault was six to seven and a half years.
Despite this, the Defendant rejected the Commonwealth's offer. However, Defendant now claims
that it was not explained to him the "pros and cons of the plea in light of the evidence he would
face at trial." Def.' s Brief at 26.
Defendant first asserts that an actual conflict of interest was present in this case because
Attorney Palermo took this case for the personal reason of wanting to have a felony jury trial to
help obtain his certification, which diverged with the Defendant's interest in having effective
plea counsel. A complete and exhaustive review of the record in this matter concretely repudiates
such an assertion. The record features a plethora of evidence that it was the intention of
Defendant's to go to trial at the very outset of this case and that he absolutely would not accept
any offer that included a state sentence.
53
Attorney Reibsome testified at the PCRA hearing that the Defendant was not interested in
any plea at the time of the preliminary hearing. N.T. PCRA Hearing, 5/4/15, at 37. Attorney
Reibsome supported this by noting that the Defendant made it clear he wanted a preliminary
hearing and that had the Defendant even been "on the fence" about a deal, he would have waived
the preliminary hearing in an attempt to keep the offer open. Id. at 37-38. Furthermore, at the
PCRA hearing, Attorney Palermo testified:
Q: So it was your understanding from Chris that this
would definitely be a jury trial?
A: In no uncertain terms--1'11 paraphrase it=this was
always an offer for state prison. Dustin was very clear he was
not taking any offer for state prison. Chris said, I have a
trial that's definitely going to trial, it's not going to
plead, Lauren is not going to offer any county sentence. It's
going to trial, you know, if you're interested, take a look at
it. That's the understanding I took the case under. It was
going to trial for sure, not, Hey, it might plead, it might
not. I'd much rather plead the cases than try it. I wasn't
looking for more work.
Q But you were looking for capital case certification?
A I was--1 would have done it, it wouldn't have been a
problem to do it, I'll put it that way.
Id. at 51-52. (emphasis added).
This testimony makes two points abundantly clear. First, it confirms the testimony of
Attorney Reibsome that the Defendant was simply not interested in taking any offer that included
a state sentence. More importantly, it is clear that although Attorney Palermo was looking for
cases to help him achieve his capital case certification, he certainly would have pled the case out
if the Defendant was interested in doing so. The record decisively indicates this was not the case
and that the Defendant would not accept a state sentence. Although Defendant levies a blanket
assertion that he was not made aware of the pros and concerns about going to trial, if the
54
Defendant had even been willing to remotely consider a plea Attorney Palermo indicated that "I
would have discussed it with him. It's not my practice to bully somebody into a trial especially
for something that's pro bono. I'll gladly do less work if they wanted me to, yeah." Id. at 94-95.
It is quite clear Attorney Palermo's interest in no way diverged with the Defendant's interests in
having adequate plea counsel. It is well established that the PCRA is not a vehicle for relief for
defendants who suffer from "buyer's remorse" after accepting a plea deal. It appears to this
Court that the Defendant in the case at bar suffers from "seller's remorse" as he has been
convicted and is now serving a sentence far longer than the original offer he received numerous
times from the Commonwealth prior to and during his pre-trial conference. His attempt to couch
this regret in a claim that Attorney Palermo suffered from a conflict of interest is unavailing and
we find it to be wholly without merit.
Defendant also claims that Attorney Palermo's representation diverged with his
interest because it left him without a way to secure an expert for trial. Additionally, Defendant
asserts that this alleged conflict of interests deprived him of having a zealous advocate. This
Court has already previously found that Attorney Palermo had a reasonable basis for deciding
not to hire a steroid expert to refute the testimony of Dr. Turchi. Instead, Attorney Palermo
decided to extensively and effectively cross-examine Dr. Turchi about his lack of knowledge on
the subject. Thus, Defendant's contention that Attorney Palermo may not have had a method to
obtain a steroid expert is irrelevant. Finally, because we find that Attorney Palermo's personal
interest did not diverge with the Defendant we also find that the Defendant was not deprived of
having Attorney Palermo act as a zealous advocate on his behalf In fact, the record reflects the
opposite. For these reasons, we find that Defendant's contentions on these issues to be without
merit.
55
XI. Post-Sentence Counsel was Ineffective for Failing to Raise the Conflict of Interest Issue
Attorney Steve Rice was the Defendant's post-sentence counsel. Defendant asserts that
Attorney Rice was aware why Attorney Palermo represented the Defendant despite not being
appointed. Defendant asserts that Attorney Rice was ineffective for not raising the conflict of
interest issue regarding Attorney Palermo during his post-sentence motion. Defendant asserts
Commonwealth v. Balenger, 704 A.2d 1385, 1391 (Pa. Super. 1997) is analogous to the instant
matter. This Court disagrees. In Balenger, the Superior Court affirmed the lower court's decision
that an actual conflict of interest existed and that all prior counsel were ineffective for failing to
raise the issue. Id. at 1386. Specifically, in Balenger, the prosecutor had begun a relationship
with the defendant's former girlfriend. Id. After being told by this girlfriend that the defendant
was previously involved in a robbery, the prosecutor pursued charges against the defendant in
order to eliminate him as a potential romantic rival. Id.Clearly an actual conflict was present in Balenger. This is easily distinguishable from the
instant matter. As explained throughout the analysis of the Defendant's tenth issue, there was no
actual conflict of interest between Attorney Palermo's interest and the Defendant's interest in the
case in question. Furthermore, the Commonwealth properly cites Commonwealth v. Grant, 813
A.2d 726, 73 7-738 (Pa. 2002), which held that the proper time to raise an ineffective assistance
of counsel claim against pervious counsel is on collateral review. Thus, Attorney Rice could not
be ineffective for failing to assert an ineffective assistance claim in a post-sentence motion.
XII. Appellate Counsel Failed to Raise Ineffectiveness Claim
On direct appeal the Defendant was represented by Attorney Reibsome. Again,
Defendant asserts that Attorney Reibsome was ineffective for failing to raise the conflict of
56
interest issue regarding Attorney Palermo during direct appeal. For the same reasons stated in
our analysis of Defendant's eleventh issue, we find this argument to be without merit.
XIII. Aggregate Prejudice of Prior Counsel's Errors
In his final issue, Defendant asserts that prior counsel's errors in the aggregate illustrates
that the outcome of the Defendant's trial would have been different absent them. The
Pennsylvania Supreme Court has recently addressed this issue and held "that if multiple
instances of ineffectiveness are found, the assessment of prejudice properly may be premised
upon cumulation." Commonwealth v. Champney, 65 A.3d 386 (Pa. 2013) quoting
Commonwealth v. Johnson, 966 A.2d 523 (Pa. 2009). In Champney, our High Court found that
there were three omissions by trial counsel pertaining to impeaching a key witness for the
Commonwealth. Id. at 668. "We would conclude none of these omissions, standing alone, is
sufficiently prejudicial to warrant a new trial, but there has been no initial determination by the
PCRA court regarding the cumulative prejudice of only these three omissions ... "Id.Thus, the
Champney Court remanded for determination if the three omissions were cumulatively
prejudicial. Id.
Had Attorney Palermo acted effectively the Defendant asserts that: (1) the steroid
evidence would have been excluded prior to trial or accompanied with a proper limiting
instruction and a defense expert would have been offered (2) the jury would have heard the
victim's preliminary hearing testimony that he was struck only 2 or 3 times, (3) there would have
been no flight instruction or a proper flight instruction and (4) the jury would have received the
correct defense of other/self-defense instruction. Defendant concludes that the cumulative
prejudice of these alleged errors is sufficient in the aggregate to establish an ineffective
assistance of counsel claim against Attorney Palermo despite that neither standing alone could do
57
so. This Court strongly disagrees. In cases such as Champney and Johnson multiple ineffective
assistance of counsel claims satisfied the initial two prongs of Pierce but could not standing
alone establish prejudice. This is antithetical to the circumstances in the case before this Court.
This Court has found that Attorney Palermo had a reasonable basis for his actions for
Defendant's first and fourth contentions on this issue. Additionally, this Court found that
Defendant's second and third contentions lacked arguable merit. Consequently, the rule
established in Champney is inapplicable to the instant matter and the Defendant's final issue is
without merit.
CONCLUSION
After careful and diligent review, the Court finds that the various issues raised by the
Defendant are without merit. Pursuant to the attached Order, Defendant's PCRA Petition is
DENIED.
58
IN THE COURT OF COMMON PLEAS
OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA
FRANKLIN COUNTY BRANCH
Commonwealth of Pennsylvania, Criminal Action
No. 1077-2011 /
vs.
Dustin Paul Bailey, Post Conviction Relief Act
Defendant Honorable Carol L. Van Horn
ORDER OF COURT
AND NOW this ocf)1\Jay of November, 2015, upon review and consideration of
Defendant's Amended Petition for Post Conviction Relief,, the Commonwealth's Answer to the
Petition, hearing on this matter held on May 4, 2015, briefs filed by both parties and the relevant
case law,
IT IS HEREBY ORDERED that Defendant's request for post-conviction collateral
relief is DENIED, and his Petition under the Post-Conviction Relief Act is DISMISSED.
Pursuant to Pennsylvania Rule of Criminal Procedure 908(E), the Court informs the
Defendant of the following
I. You have a right to appeal the decision of this Court within 30 days of the date of this
decision. [Pa.R.Crim.P. 907(4); Pa.R.Crim.P. 910];
2. You have the right to assistance of counsel in preparation of the appeal. [Pa. R. Crim.
P. 904(F)(2); and
3. If you cannot afford to pay an attorney to represent you in this appeal, you have a
right to a court-appointed attomo/ and to be excused from the cost of filing and
perfecting the appeal. [Pa. R. Crim. P. 904(F)(2); Pa. R. Crim. P. 904(0)].
59
3. If you cannot afford to pay the costs of filling and perfecting an appeal, you have the
right to be excused from paying for the appeal. [Pa.R.Crim.P. 904(G)].
The Clerk of Courts is directed to mail a copy of this Order of Court containing
Petitioner's right to appeal by Certified Mail, Return Receipt Requested upon Petitioner as
required by Pa. R. Crim. P. 908(E). The Clerk shall otherwise comply with the requirements of
Pa. R. Crim. P. 114.
By the Court,
Carol L. Van Hom, P .J.
The Clerk of Courts shall give notice to:
Lauren E. Sulcove, Esq., First Assistant District Attorney
Carolyn A. Jones, Counsel for Defendant
Dustin Paul Bailey, Defendant
NO\/ 2 4 1015 , 2015. A copy of the within Order has been mailed to the Petitioner by certified mail, Certified
Mail No. 701'1t1n1J"""" 7n,;1.J. JM,I , Return Receipt Requested. cL
,...:t
f S. Postal Service"
CERTIFIED MAIL?> RECEIPT
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Domestic Mail Only
..D
CJ
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ru
ru I OFFICIAL USE I
Cl Postage $
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0
Cartlted Fee
CJ Postmark
Return Receipt Fee
CJ (Endorsement Here
t-·-··-
Required)
Cl
CJ dorsementRequired)
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co Total Po1tage & Fees $
ru
~~~~~~~~~~~c:::--~~:--:-:::-:::-:-i
8
:r Dustin Paul Bailey, Inmate LA8711
8 "Sir"tisflfAi,f.Wo.:-· ·- Som · rs et--··--···-···-------·············--···-·
I"- or PO Box No..... f~~o. Wal
ters __ Mil.J..J~m!.4 .... ---·-····-····-
Clty. State,Z/P+4 Somerset, PA 15510
._,S Form 3800, July 2014 SPe nevcrse for lnstruct.ons 60