Com. v. Dennerlein, B. ( 2015 )

J-S52021-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BENJAMIN J. DENNERLEIN,
Appellant No. 2065 WDA 2014
Appeal from the PCRA Order of November 19, 2014
In the Court of Common Pleas of Beaver County
Criminal Division at No(s): CP-04-CR-0001592-2009
BEFORE: SHOGAN, OLSON and WECHT, JJ.
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 16, 2015
Appellant, Benjamin J. Dennerlein, appeals from the order entered on
November 18, 2014, denying him relief under the Post-Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court provided us with a thorough and well-written summary
of the underlying facts and procedural posture of this case. As the PCRA
court explained:
On July 17, 2009, [Appellant] was charged with [murder].
. . . The charge[] stem[med] from an incident that
occurred in Freedom Borough, Beaver County,
Pennsylvania, in either the late evening hours of May 12 or
early morning hours of May 13, 2009. The victim, Elizabeth
Grosskopf [(hereinafter “the Victim”)], was found dead in
her residence at 1475 Fifth Avenue, Freedom Borough,
Beaver County, Pennsylvania. An autopsy determined that
[the Victim] died due to multiple stab wounds to the head
and neck areas. After an investigation by the Freedom
Borough Police and the Beaver County Detectives’ Bureau,
[Appellant] was charged with homicide.
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The case was scheduled for a jury trial before the Honorable
John Dohanich. . . . [T]he jury convicted [Appellant] of
[first-degree] murder on August 3, 2010. On September
29, 2010, Judge Dohanich sentenced [Appellant] to life
imprisonment without [the possibility] of parole.
No post-sentence motions were filed, but a timely notice of
appeal was filed with the Superior Court [] on October 27,
2010. [The Superior Court affirmed Appellant’s judgment of
sentence on April 2, 2012 and the Pennsylvania Supreme
Court denied Appellant’s petition for allowance of appeal on
October 22, 2012].
[Appellant] filed a timely pro se [PCRA] petition[] and [the
PCRA court appointed counsel] to represent [Appellant] in
the post-conviction proceeding[s]. [Appointed counsel] filed
an amended [PCRA petition on Appellant’s behalf and the
PCRA] court conducted a hearing on the petition on August
4, 6[,] and 8[,] 2014. . . .
FACTS
A. Facts and Evidence Adduced and Presented at Trial
in July and August[] 2010
...
[The following evidence was presented during Appellant’s
trial].
[The Victim], age 54, resided at 1475 Fifth Avenue,
Freedom, Beaver County, in a residence owned by her and
Robert Campbell, a former paramour, with whom she
maintained a friendly relationship. [The Victim] was a frail
woman in poor health, suffering from various medical
conditions[,] which caused her to be unsteady and prone to
falling on occasion. [The Victim] and Mr. Campbell
purchased the residence in 2003, subject to a mortgage;
however, the property was titled solely in [the Victim’s]
name because of Mr. Campbell’s unstable financial
condition. Subsequently, [the Victim] transferred the title
by deed dated February 28, 2008, to herself and Mr.
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Campbell, as joint tenants with the right of survivorship. . .
.
[The Victim] and Mr. Campbell [] lived together for
approximately ten years until May[] 2008, when Mr.
Campbell left the residence to commence a live-in
relationship with his current wife, Karen Otrhalik Babich.
Mr. Campbell and Ms. Babich commenced their relationship
in December[] 2007, which culminated in their marriage in
October[] 2008.
Mr. Campbell’s last contact with the [V]ictim occurred on
May 8, 2009, when she telephoned to inform him that on
May 7, 2009, she had received and deposited the sum of
$31,128.14, representing her share of the proceeds from
the sale of her parents’ cottage in Erie. They discussed the
uses to which she could put the funds. [The Victim]
maintained a personal checking/credit/debit account with
the Northern Lights branch of ESB Bank[,] which she
opened [on] May 19, 1997. The account was limited to
withdrawals of $510.00 per 24-hour period.
Mr. Campbell was introduced to [Appellant] approximately
four years prior to the [V]ictim’s death while both were
inmates in the Beaver County [Jail] for reasons unrelated to
the instant case. Upon release from incarceration, Mr.
Campbell and [Appellant] maintained a friendly relationship,
and [Appellant] resided with Mr. Campbell [and the Victim]
from time to time when he was in need of a temporary
residence. All three individuals were users of and smoked
cocaine together on occasion. In December[] 2008, and
continuing until the time of [the Victim’s] death, [Appellant]
resided at the [V]ictim’s home, paying rent in the amount of
$50.00 per week. [Appellant] was employed at Crow’s Run
Recycling as a salesperson from 2008 through May 13,
2009.
Prior to her death, [the Victim] was employed as a cashier
at the Center Township Wal-Mart. [The Victim] last worked
on May 11, 2009, from 11:00 [a.m.] until 8:00 [p.m.] and
was observed at work by her neighbor, Dwight McMorris,
while he was shopping at [the] Wal-Mart. Mr. McMorris
subsequently observed the [V]ictim between 8:40 [p.m.]
and 8:50 [p.m.] on the same day as she drove by his home
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on the way to her residence after completing her work day.
Mr. McMorris was the last person other than the perpetrator
to see [the Victim] alive.
[The Victim] was scheduled to work on May 12, 2009, from
11:00 [a.m.] to 8:00 [p.m.]; however, she did not appear
for work [or] call to indicate that she would not be present
for work that day, which was unlike her because she was a
reliable employee. Shortly before her death, [the Victim]
reported to one of her co-workers, Nancy Pranskey, that
[Appellant] had been stealing from her and using her
credit/debit card to purchase items. Bank records disclosed
that on May 5, 2009, [the Victim’s] bank account had been
overdrawn by $741.11 as a result of eight transactions.
[Appellant] also did not appear at his place of employment
on May 12, 2009, and terminated his employment due to a
disagreement with his employer, Nick D’Itri, by way of a
text message on May 13, 2009, at 12:52 [p.m.] [Appellant]
had been a good employee until approximately one month
prior to terminating his employment when he began not
reporting for work. The prior week he failed to appear for
work on four consecutive days. His employer suspected that
drug use was responsible for [Appellant’s] decline in
performance. [Appellant’s] last working day was May 11,
2009.
Between 10:00 [a.m.] and 10:30 [a.m.] on May 12, 2009,
Mr. Campbell sought [Appellant] at his place of
employment. Not locating him at work, Mr. Campbell
proceeded to the [V]ictim’s residence and found [Appellant]
present. Mr. Campbell noted that [Appellant] appeared to
be under the influence of drugs. When Mr. Campbell
inquired of [Appellant] as to the whereabouts of the
[V]ictim, [Appellant] replied that he had taken her to work
earlier that morning, because he was in need of her vehicle
to run errands. Mr. Campbell, who maintained various
items of personal property at the residence, searched the
home to assure that his belongings were present and was
followed through the house by [Appellant]. When looking
into the [V]ictim’s bedroom, Mr. Campbell observed that the
bed had been made, which was unusual because the
[V]ictim was a poor housekeeper and never made the bed.
[Appellant] was directly behind Mr. Campbell as he was in
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the doorway to the [V]ictim’s bedroom. [Appellant] and Mr.
Campbell became involved in a heated argument over
[Appellant] not working to pay rent to the [V]ictim and his
drug use. Mr. Campbell informed [Appellant] that he would
return to the residence between 8:30 [p.m.] and 9:00
[p.m.], when the [V]ictim returned from work, to speak
with [Appellant] and the [V]ictim.
Later in the same day at 3:25 [p.m.] [Appellant], using the
[V]ictim’s credit/debit card, made a balance inquiry at ESB
Bank located at 921 Third Avenue in New Brighton.
[Appellant], utilizing the [V]ictim’s credit/debit card,
purchased various items at the Chippewa Township K-Mart
between 6:51 [p.m.] and 7:09 [p.m.] and proceeded to the
home of Gregory “Wimpy” Price and Wendy McCoy to
deliver items to Mr. Price, including video games, movies[,]
and an electric can opener, to reimburse Mr. Price for tires
that he purchased. . . .
[B]etween 8:30 [p.m.] and 9:00 [p.m.] on May 12, 2009,
Mr. Campbell and his wife returned to the [V]ictim’s
residence and found no one present. The [V]ictim’s vehicle
was not in the area. Throughout the evening and into the
early morning hours of May 13, 2009, Mr. Campbell
attempted on 30 occasions to reach [Appellant] and on 17
occasions to contact the [V]ictim by telephone and through
text messages[,] indicating his desire to speak to them. He
received no responses, except that [Appellant] sent a text
message advising that the Baden police would be interested
in Mr. Campbell’s use of marijuana. During the evening, Mr.
Campbell and his wife left and returned to the [V]ictim’s
residence on two additional occasions and did not find
anyone or the [V]ictim’s automobile at the home. They left
for the final time at approximately 12:00 [a.m.], returned
to their residence[,] and retired for the night.
On May 13, 2009, at approximately 12:26 [a.m.],
[Appellant] checked into Room 12 of the Beaver Falls Motel
in Beaver Falls, following which he contacted Laura Rankin[
and] ask[ed] her to join him in smoking crack cocaine. Ms.
Rankin telephoned Jennifer Burns, requesting that she
provide transportation to the motel. Jennifer Burns and
Bryan Silberger retrieved Ms. Rankin and her infant child
and drove to the motel to meet [Appellant]. Ronald “Toot”
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Goodman, the father of a child with Ms. Burns, and Patrick
Brown, a supplier of crack cocaine for [Appellant], also
appeared at the motel. Mr. Brown provided the cocaine to
[Appellant]. [Appellant], when asked the reason for being
in possessing of the [V]ictim’s vehicle, informed Ms. Rankin
that the [V]ictim was away on vacation visiting her niece in
Maryland or Virginia. [Appellant] told Mr. Silberger that the
[V]ictim was away in Maryland to visit her brother for a
week. [Appellant], in an effort to assure Mr. Brown, his
cocaine supplier, that he had sufficient funds when
requesting Mr. Brown to provide an advance of drugs, had
previously forwarded a text message to him on May 9,
2009, showing a balance in the [V]ictim’s bank account of
$29,712.14. [Appellant] and the other individuals smoked
crack cocaine throughout the early morning hours of May
13, 20[09], until approximately 5:00 [a.m.] During that
time, [Appellant] and Ms. Rankin left the motel and
proceeded to two convenience stores to purchase items and
attempted to obtain funds using the [V]ictim’s credit/debit
card. At one point in time, [Appellant] advised Ms. Rankin
that he was using the [V]ictim’s credit/debit card, showed
her the balance in the account and stated to her, “stick with
me and good things will happen[.”]
Mr. Campbell, accompanied by two friends, Martin Costanza
and Justin Hertnecky, proceeded to the [V]ictim’s residence
on May 13, 2009, between 8:30 [a.m.] and 9:00 [a.m.] No
one was present and the [V]ictim’s car was not at the
residence. The three of them gathered [Appellant’s]
belongings, placed them in garbage bags[,] and stored the
bags in the garage of the residence. Mr. Campbell opened
the [V]ictim’s bedroom door and found the bed in the same
condition as the day before, as if it had not been disturbed.
They then left the residence and returned to Mr. Campbell’s
house for the balance of the morning. Mr. Campbell’s
intention was to evict [Appellant].
After leaving the motel and driving his friends home,
[Appellant] claimed to have returned to the [V]ictim’s
residence to locate her, found that she was not present,
that her bed did not appear to have been slept in, and then
proceeded to the Beaver Valley Mall. At 1:15 [p.m.] on May
13, 2009, [Appellant] presented a check made payable on
the [V]ictim’s account to himself in the amount of
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$1,000.00 at the ESB Bank in Beaver Falls. The memo
portion of the check indicated the words, “roof/porch[.”]
[Appellant] explained that he had performed work for the
[V]ictim and the check represented payment. Ms. Celeste,
the [V]ictim’s [next-door] neighbor, indicated that no recent
work had been done on the house. The bank representative
requested identification from [Appellant], since he did not
have an account with the bank, and he provided his driver’s
license. The check was drawn on the Northern Lights ESB
Bank located in Baden. The Beaver Falls ESB Bank
manager telephoned the Northern Lights branch and
obtained a facsimile of the signature card of the [V]ictim.
The Beaver Falls branch manager also placed two telephone
calls to the [V]ictim’s residence and the telephone was not
answered on either occasion. After being unable to verify
[Appellant’s] correct address and telephone number or the
[V]ictim’s signature, the bank refused to cash the check and
returned the check to [Appellant].
Trooper Robert Negherborn, a forensic document examiner
with the Pennsylvania State Police Crime Laboratory,
recovered from the face of the subsequent check in the
[V]ictim’s checkbook the impression of the writing depicting
the text of the previous check payable to [Appellant],
including the authorizing signature. [Trooper Negherborn]
was further provided with handwriting samples of the
[V]ictim and [Appellant]. Although not issuing a conclusive
opinion, Trooper Negherborn testified that in comparing the
writing on the check with the samples of the handwriting of
the [V]ictim and [Appellant], there was a strong probability
that the signature on the check was not that of the [V]ictim.
He further opined that there were no significant similarities
to indicate that the [V]ictim or [Appellant] wrote the entries
on the check, or that [Appellant] wrote the signature on the
check.
At approximately 2:00 [p.m.] on May 13, 2009, [Appellant]
purchased tennis shoes at the Shoe Department Store at
the Beaver Valley Mall using the [V]ictim’s credit/debit card.
A short time later[,] he attempted to return the tennis
shoes for a cash refund without the credit/debit card and
was refused. [Appellant] was accompanied by Ms. Rankin
and met Mr. Price while at the Beaver Valley Mall and
purchased other items with the [V]ictim’s credit/debit card.
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He also attempted to buy tennis shoes for Mr. Price using
the [V]ictim’s credit/debit card and was refused.
At approximately 1:00 [p.m.], Kelly Carter, who had
previously made payment of $500.00 for the purchase of an
automobile from [Appellant], telephoned [Appellant]
informing him that he was at the residence desiring to
retrieve the vehicle from the garage. [Appellant] advised
Mr. Carter that he would not arrive for a period of time, and
Mr. Carter waited. When [Appellant] failed to appear, Mr.
Carter made a second telephone call, at which time
[Appellant] instructed Mr. Carter to enter the home to
obtain the remote control for the garage door. At the
direction of [Appellant], Mr. Carter entered the house by
way of a window and was unable to locate the remote
control while continuing to speak to [Appellant] on the
telephone. Mr. Carter then telephoned Mr. Campbell, who
subsequently arrived and informed Mr. Carter that he was in
possession of the remote control and would not permit the
removal of the vehicle until [Appellant] appeared. Mr.
Carter placed a third call to [Appellant], who indicated he
would return later. Both Mr. Campbell and Mr. Carter
observed what appeared to be blood on the [V]ictim’s dog
and entered the house to investigate. Mr. Campbell entered
the [V]ictim’s bedroom and discovered a pool of blood on
the bed where the blanket had been pulled away. He called
Mr. Carter into the bedroom to observe the blood. Mr.
Carter then telephoned [Appellant], informed him of their
findings[,] and inquired whether he knew the whereabouts
of the [V]ictim, to which [Appellant] replied that he thought
she was at work. Mr. Carter told [Appellant] he should
return to the residence immediately. [Appellant] indicated
that he was at the Beaver Valley Mall and would return
home at a later time. He also stated that he had not been
at the residence for several days. Mr. Campbell, after
contacting the [V]ictim’s employer and the hospital in an
unsuccessful attempt to locate her, placed a call to [911] at
2:54 [p.m.] Freedom Borough Chief of Police John Hill and
Officer William Dreyer of the Freedom Borough Police
Department responded to the call at approximately 3:00
[p.m.] Andrew Gall of the Beaver County Detective Bureau
received a call for assistance from the Freedom police
officers at 3:10 [p.m.] and responded to the residence with
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County Detectives Timothy Staub, Kim Clements, Timmie
Patrick[,] and Robert Chamberlain.
A search of the residence disclosed the [V]ictim’s body
wrapped in blankets in a stairwell on the second floor
leading to the attic, which was located between the
bedrooms of the [V]ictim and [Appellant] and could be
accessed from both bedrooms. The police found no
evidence of forced entry into the home. When informed of
[the Victim’s] death, Mr. Campbell became extremely
distraught. As a result of receiving information from Ms.
Rankin’s mother that Ms. Rankin was with [Appellant] in her
vehicle at the Beaver Valley Mall, a BOLO (be on look out)
alert was broadcast for [Appellant], the [V]ictim’s vehicle[,]
and the vehicle being operated by Ms. Rankin and owned by
[Ms. Rankin’s] mother. Ms. Rankin received telephone calls
from a friend and her mother advising that the names of
[Appellant] and Ms. Rankin were heard on the [police]
scanner indicating that the police were attempting to locate
[Appellant].
Detective Patrick proceeded to [Appellant’s] place of
employment and in speaking to Mr. D’Itri[,] found that
[Appellant] last worked on May 12, 2009, and terminated
his employment on May 13, 2009. Mr. D’Itri provided
[Appellant’s] cellular telephone number to Detective Patrick,
who attempted several calls and text messages to
[Appellant] with no response.
At 6:07 [p.m.], Officer Maxim Strano of the Center
Township Police Department, in response to the alert,
located [Appellant] and Ms. Rankin in the automobile being
operated by Ms. Rankin as it was backing out of a parking
space at the Beaver Valley Mall. [Appellant] stated to Ms.
Rankin “to go or he was going to run[.”] Officer Strano
drew his weapon, ordered both individuals to the ground,
approached [Appellant,] and placed [Appellant] in
handcuffs. [Appellant] stated that he thought about
running and should have run when he saw the officer.
[Appellant] also indicated that Officer Strano had the wrong
man. The [V]ictim’s credit/debit card was found in
[Appellant’s] wallet. The [V]ictim’s vehicle was also located
a short distance away.
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[Appellant] and Ms. Rankin were transported to the Center
Township Police Department. At 6:39 [p.m.], [Appellant]
waived his [Miranda] rights and agreed to speak with
Detectives Patrick and Clements. [Appellant] was informed
of [the Victim’s] death and showed no emotion. He
indicated that in the evening hours of May 11, 2009, he and
his girlfriend, Colleen Cantella, were at the [V]ictim’s
residence viewing the Pittsburgh Penguins/Washington
Capitals hockey game. [Appellant] further advised that the
[V]ictim came home from work during the hockey game.
According to [Appellant], Ms. Cantella departed after the
hockey game to return to her residence. This information
was contrary to the statement made by Ms. Cantella that
she was not at the [V]ictim’s residence on May 11th and that
[she and Appellant] had exchanged text messages between
9:23 [p.m.] and 10:07 [p.m.] near the end of the hockey
game, when she was at her own residence. . . .
[Appellant] stated that on May 12, 2009, he drove the
[V]ictim to work at Wal-Mart at approximately 10:00
[a.m.], attended to several errands[,] and returned to the
residence, when he made contact with Mr. Campbell and a
verbal argument ensued. After the disagreement with Mr.
Campbell, he advised that he left the residence, ran a few
more errands[,] and went on a crack cocaine binge. He
stated that he returned to Wal-Mart between 8:00 [p.m.]
and 8:30 [p.m.] to pick up [the Victim], and when she did
not come out to the vehicle, he went into the store and was
told that she was not at work all day. He also advised the
detectives that he tried to call [the Victim] and received no
reply. The [V]ictim did not report to work on May 12, 2009,
and video footage of the entrance and the customer service
area of Wal-Mart disclosed that [Appellant] did not appear
at the relevant time. . . .
[Appellant] obtained crack cocaine from Mr. Price and
checked into the Beaver Falls Motel to smoke crack cocaine
with Ms. Rankin and her friends. They all remained at the
motel into the early morning hours of May 13, 2009.
[Appellant] advised that he checked out of the Beaver Falls
Motel at approximately 11:00 [a.m.] and returned to the
residence to look for the [V]ictim. He found that her bed
was made and did not appear to have been slept in.
[Appellant] then proceeded to the Beaver Valley Mall where
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he met Mr. Price and offered to purchase tennis shoes for
him as payment for cocaine previously supplied by Mr.
Price. [Appellant] attempted purchases at two separate
retail locations using the [V]ictim’s credit/debit card and
was rejected. [Appellant] advised that he had the
information regarding the [V]ictim’s credit/debit card,
including the [V]ictim’s personal identification number (PIN)
to access the account. [Appellant] related that he obtained
the credit/debit card from the [V]ictim’s purse located in the
kitchen of the residence. The detectives were unable to
locate the [V]ictim’s purse in the kitchen of the home and
subsequently found it in the [V]ictim’s vehicle. Upon
receiving this information, [Appellant] informed the
detectives that he had taken the credit/debit card out of the
[V]ictim’s purse and placed the purse in the automobile.
[Appellant] claimed to have permission from the [V]ictim to
use the credit/debit card. . . .
Near the conclusion of the interview, which lasted
approximately one hour, [Appellant] stated to the
detectives that if they were going to arrest him for murder
to do so. He further stated that “all I have to do is convince
one person” that he did not commit the offense. The
[V]ictim’s purse, Wal-Mart identification card, driver’s
license, checkbook[,] and cellular telephones were all
located in the [V]ictim’s vehicle, which was in the
possession of [Appellant].
Prosecutors acquired the [V]ictim’s bank records for the
period from May 1, 2009, through May 31, 2009, the
telephone records of [Appellant] from May 8, 2009, through
May 14, 2009, and located various receipts for purchases
and automatic teller machine (ATM) withdrawals from the
[V]ictim’s account in the vehicles of the [V]ictim and Ms.
Rankin and in the trash bin at the Beaver Falls Motel. . . .
In addition, Detective Chamberlain obtained documentation
from Verizon Wireless depicting the sites of cellular
telephone towers in Beaver County from which he was able
to confirm the approximate location of [Appellant] when he
was using his cellular telephone. This information, together
with the known observations of [Appellant] from witnesses
and the video displays of [Appellant] at bank ATM and retail
locations, placed [Appellant] in the area of the [V]ictim’s
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residence during the hours when she would have been killed
and at the various locations at which he made ATM
withdrawals and purchases using the [V]ictim’s credit/debit
card.
An examination of [Appellant’s] blue jeans and tennis shoes
under a blue light revealed possible blood stains. Samples
of the blood of the [V]ictim and [Appellant], together with
[Appellant’s] blue jeans, were delivered to the Pennsylvania
State Police Crime Laboratory for analysis. Jennifer Badger,
a forensic scientist in the serology section, determined that
two stains on the outside seam of the lower leg of
[Appellant’s] blue jeans consisted of blood. She further
detected the presence of blood on the eyelet of the toe of
[Appellant’s] left athletic shoe, but the sample was
insufficient for a confirmatory testing for blood. In addition,
examination of the handle of a steak knife found in the
kitchen sink of the [V]ictim’s residence submitted to the
crime laboratory disclosed evidence of blood. Ms. Badger
prepared samples of dried blood of the [V]ictim and
[Appellant] and swabs of the blood on [Appellant’s] jeans,
tennis shoes[,] and the steak knife for submission to the
DNA section of the crime laboratory. Michael Biondi, a
forensic scientist supervisor in the DNA section, conducted
DNA testing on the swabs of [Appellant’s] blue jeans and
determined that the blood on the jeans matched the
[V]ictim’s blood. The DNA profiles of the [V]ictim and
[Appellant] could not be excluded as potential contributors
of the blood stain from [Appellant’s] shoe. The DNA profile
of the [V]ictim was excluded as a contributor as to the knife
in the kitchen sink, while the DNA profile of [Appellant]
could not be excluded as a contributor for the blood on the
knife, because there also appeared DNA types from two
unidentified individuals.
Dr. James Smith, a forensic pathologist, determined that
due to observing the greenish discoloration of the body,
signifying the first sign of decomposition, the [V]ictim’s
death occurred within an 18-hour to 36-hour period
between 3:00 [a.m.] and 9:00 [p.m.] on May 12, 2009. Dr.
Smith opined that the cause of death was the stab wounds
to the neck which incised the right carotid artery and the
right jugular vein. He noted a total of 46 knife wounds, 34
of which were located in the left neck region. Dr. Smith
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further described defensive wounds on the [V]ictim’s hands
and fingers indicating that the [V]ictim attempted to ward
off her attacker. He testified that the concentration of the
wounds in the neck area was an indication the [V]ictim was
held down and was struck with such force as to penetrate
from the left through the right side of the neck. Dr. Smith
estimated that the blade of the knife was approximately
one-half inch in width and three inches in length. The
manner of death was homicide.
James Sarver met [Appellant] on May 15, 2009, while both
were inmates in the Beaver County Jail. Mr. Sarver also
was familiar with Mr. Campbell from whom he had
purchased marijuana in the past. Mr. Sarver related that
[Appellant] admitted to him that he had killed [the Victim]
and intended to place blame on Mr. Campbell for the crime.
In a second conversation with Mr. Sarver, [Appellant]
queried as to why Mr. Campbell came to the [V]ictim’s
residence and removed the sheets on the bed revealing the
pool of blood. [Appellant] informed Mr. Sarver of the limit
of $500.00 on the [V]ictim’s credit/debit card and confirmed
that he went partying and shopping after the killing. Mr.
Sarver testified that he had previously been a visitor at the
[V]ictim’s residence, [but was] limited [] to the main floor
of the house.
Zack Valentine was [Appellant’s] cellmate at the Beaver
County Jail for approximately two weeks. On May 18, 2009,
Mr. Valentine provided a statement to police in which he
indicated that he had become acquainted with [Appellant]
prior to their incarceration while working at Crow’s Run
Recycling. Mr. Valentine stated that [Appellant]
acknowledged that he had killed the victim, wrapped her in
a blue blanket and placed her body in the stairway to the
attic between the two bedrooms in the [V]ictim’s residence.
[Appellant] also outlined [to Mr. Valentine] the layout of the
house and provided a diagram detailing the location of the
bedrooms and the doorways from each bedroom to the
attic. [Appellant] further described [to Mr. Valentine] the
placement of a tan blanket covering the blood on the bed
and complained that Mr. Campbell had pulled the blanket
away exposing the blood. Mr. Valentine, who had never
been to the residence, drew a diagram of the residence for
the police based upon [Appellant’s] description. Mr.
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Valentine had been unaware of the homicide until his
conversation with [Appellant].
[Appellant] presented evidence in an effort to place
culpability for the crime on Mr. Campbell by attempting to
demonstrate that he had been physically abusive toward the
[V]ictim and that he had a financial motive for killing her.
Mr. Campbell testified that the [V]ictim called him shortly
after he had moved out of the house and into Ms. Babich’s
residence, indicating that she desired to title the home in
both of their names. Ms. Babich, who was a mortgage
processor and notary public, fabricated the transfer by
having the deed prepared, notarizing [the Victim’s]
signature, recording the deed and paying the recording fee
and transfer taxes, for which she was subsequently
reimbursed.
Patricia Celeste, the [next-door] neighbor and friend of the
[V]ictim, observed a black eye on the [V]ictim on one
occasion and her leg to be injured at a subsequent meeting,
both injuries which the [V]ictim attributed to [Appellant].
When Ms. Celeste confronted [Appellant] regarding the
incidents, he apologized for his actions. He further
explained that the black eye occurred when he became
angry with the [V]ictim for refusing to eat dinner he had
prepared and he had struck the [V]ictim with the food plate.
...
Stacie Delp, Kristine Ramer[,] and Nancy Pranskey, all co-
workers of the [V]ictim, noted black eyes on the [V]ictim,
with Ms. Delp also observing the injured leg. Only Ms.
Pranskey testified that the [V]ictim told her that the injuries
were inflicted by Mr. Campbell.
On the evening of May 9, 2009, while Mr. Campbell, his
wife[,] and his friend, Martin Costanza, were patrons at
Harvey Run Inn, a local tavern, Crystal Barnes, an
employee, overheard Mr. Campbell, following a telephone
conversation, say loudly to his wife, “cha-ching, cha-
ching[.”] Ms. Barnes admitted to being unaware of the
meaning of Mr. Campbell’s remarks. Approximately two to
three months following the [V]ictim’s death, Mr. Campbell
was advised by correspondence from Wal-Mart, the
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[V]ictim’s employer, that he was the beneficiary of the
[V]ictim’s retirement account in the amount of $1,893.34
and life insurance benefits in the amount of $22,000.00.
The [V]ictim had designated Mr. Campbell the beneficiary as
her common-law husband on June 27, 2005, approximately
four years prior to her death. Mr. Campbell denied any
knowledge that he was the [V]ictim’s beneficiary prior to
receiving notice from her employer. He, in fact, received
the proceeds from both the retirement account and the life
insurance as a result of [the Victim’s] death.
Mr. Campbell also was the surviving joint tenant of the
residence, and thus became sole owner following the
[V]ictim’s death. Testimony indicated that the balance of
the mortgage was approximately $30,000.00 with the value
of the home estimated at $10,000.00 due to its deteriorated
condition.
In rebuttal, the Commonwealth introduced the medical
records of the [V]ictim from Heritage Valley-Beaver Hospital
for the period from 2004 through 2008, which revealed that
she was treated on several occasions as a result of injuries
sustained by falling. . . . [During trial, the] thrust of
[Appellant’s] defense was that Mr. Campbell had the motive
and opportunity to kill the [V]ictim, since he would benefit
financially by her death, and that he had physically abused
the [V]ictim in the past.
B. Facts and Evidence Adduced at the PCRA Hearing
Held on August 4, 6[,] and 8 2014
1. [Appellant’s Trial Counsel,] Thomas Kurt Fuchel
As noted earlier, the [PCRA] court conducted a hearing on
[Appellant’s PCRA] petition on August 4, 6[,] and 8, 2014.
The [PCRA] court heard testimony during parts of each of
those three days. . . . [Appellant] first called Thomas Kurt
Fuchel, Sr., Esquire [(hereinafter “Attorney Fuchel”)], who
was lead defense counsel at the time of trial. He was
assisted by a new public defender at that time named
Rebecca Fields, who was not called to testify by either party
at the PCRA hearing. [Attorney Fuchel] first testified that it
was protocol or procedure, at the time of [Appellant’s] trial,
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for an Assistant Public Defender to begin representation in a
case at the preliminary hearing stage and continue with the
case through trial. [Attorney Fuchel] did that in this case.
[Attorney Fuchel] testified that he handled the preliminary
hearing. He testified that it was his practice to speak with
the client prior to the preliminary hearing in the lock-up
facility. He did not recall whether he met with [Appellant]
before the preliminary hearing in this case, but indicated
that was his standard practice. [Attorney Fuchel] could not
provide any specific information as to when he met with
[Appellant]. He did admit that it was significant to meet
with the client early in the case to discuss strategy and to
discuss what the [client] did or did not do or know in
connection with the charges.
[Attorney Fuchel] indicated that the Commonwealth
provided extensive discovery. According to [Attorney
Fuchel], [Appellant] complained about not receiving
discovery, and [Attorney Fuchel] claims that this prompted
him to make sure [Appellant] received the discovery.
[Attorney Fuchel] stated that he believed it was his decision
regarding what portions of the discovery or other
information to use in this case. [Attorney Fuchel] claimed
that he had discussions with [Appellant], both before and
during trial, regarding what information to use. He
conceded that use of prior criminal convictions under
[Pennsylvania Rule of Evidence] 609 is a significant tool to
impeach witnesses for the opposing side.
[Within Appellant’s PCRA petition, Appellant first claimed
that trial counsel was ineffective for failing] to use prior
convictions and other information for purposes of
impeaching key Commonwealth witnesses. [Appellant’s
counsel] at the PCRA hearing initially questioned [Attorney
Fuchel] about a Commonwealth witness by the name of
Laura Rankin. [Ms.] Rankin had, and testified to,
information regarding [Appellant] using the [V]ictim’s
credit/debit [card] to make bank withdrawals. [Attorney
Fuchel] testified that it was his theory that Robert Campbell,
who was a former boyfriend of the [V]ictim, committed the
murder. [Attorney Fuchel] continued by stating that he
believed that [Ms.] Rankin was actually a helpful witness to
the defense because she also had information that
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[Appellant] used the [V]ictim’s credit/debit card not only at
and shortly after the time of the murder, but also prior to
that time. [Ms.] Rankin also testified that [Appellant] had
the PIN for the credit card further confirming, according to
[Attorney Fuchel], that her testimony would actually
indicate that [Appellant] did not just use the credit card
after the murder, but also before the murder showing his
consented-to access to the card. [Attorney Fuchel] thought
this was beneficial testimony. . . .
[Appellant’s] counsel at the PCRA hearing pointed out and
entered exhibits to confirm that [Ms.] Rankin had
convictions for retail theft, trademark counterfeiting[,] and
theft by unlawful taking, all of which were . . . crimen falsi.
The Commonwealth confirmed, on cross-examination, that
[Attorney Fuchel] did not want to impeach [Ms.] Rankin
because she was actually favorable to [Appellant’s] position
in this case. However, [Appellant’s] counsel noted for the
[PCRA] court that . . . [Attorney Fuchel] cross-examined
[Ms.] Rankin about using crack cocaine in the presence of
her child, which was a form of impeachment, but yet chose
not to impeach her credibility with [the prior convictions for]
crimen falsi.
[During Appellant’s trial, t]he second Commonwealth
witness who had prior criminal convictions was Zachery
Valentine. [Mr.] Valentine was [Appellant’s] cell mate at
the Beaver County Jail, and [Mr.] Valentine testified at trial
regarding [Appellant’s] admissions about his ([Appellant’s])
involvement in the killing.
[Attorney Fuchel] testified that he discussed [Mr.] Valentine
with [Appellant], and according to [Attorney Fuchel],
[Appellant] confirmed that some of the statements that
[Mr.] Valentine made in a report of interview were true.
[Attorney Fuchel] claims that he continuously cautioned
[Appellant] not to have conversations with [Mr.] Valentine.
[Appellant] never admitted his guilt to [Attorney Fuchel],
but, according to [Attorney Fuchel], [Appellant] did confirm
some of the things that [Mr.] Valentine said.
Interestingly and bewildering to the [PCRA] court was
[Attorney Fuchel’s] concern about perjury if [Appellant]
testified at trial because [Appellant] allegedly said he was
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going to lie at trial regarding the statements that [Mr.]
Valentine made. This had very little, if anything, to do with
regard to why [Attorney Fuchel] did not cross-examine
[Mr.] Valentine. When pressed by [Appellant’s] counsel at
the PCRA hearing, [Attorney Fuchel] confirmed that he
[should have] impeach[ed] this type of witness. [Mr.]
Valentine had a conviction for theft by deception, and
another conviction in Fayette County. [Attorney Fuchel]
confirmed that he did not question [Mr.] Valentine about
these matters, and [Attorney Fuchel] indicated that it was
inadvertent not to use them, that they must have slipped
through the cracks[,] and that his decision not to use them
was bad in hindsight.
A third Commonwealth witness who testified against
[Appellant at trial] was James Sarver. [Mr.] Sarver was
another jailhouse informant, who indicated that [Appellant]
admitted to the killing. [Mr.] Sarver also had a conviction
for terroristic threats. Although not a crimen falsi crime,
[Mr.] Sarver was on probation, and [Attorney Fuchel] could
have questioned [Mr.] Sarver on whether he expected any
favorable treatment on a probation violation, which was
never done. [Attorney Fuchel] did question [Mr.] Sarver
about a simple assault charge that was dismissed. . . .
[Attorney Fuchel] conceded that, in hindsight, he should
have used the terroristic threats probationary situation for
cross-examination purposes at trial. [Attorney Fuchel]
could not explain his failure to use this information.
A fourth Commonwealth witness who testified [during
Appellant’s trial] was Kelly Carter. [Mr.] Carter came to the
residence after the crime and was present when Robert
Campbell, the person who [Attorney Fuchel] intended to pin
blame on, saw blood on a dog at the residence and pointed
this out to [Mr.] Carter. [Mr.] Carter had a [prior]
conviction for receiving stolen property, which [Attorney
Fuchel] did not use to cross-examine [him]. [Attorney
Fuchel] indicated that he would normally impeach this type
of witness, but did not do so in this case because he
believed that [Mr.] Carter’s testimony was favorable to the
defense in that it tended to implicate [Mr. Campbell].
The fifth Commonwealth witness [to testify at trial] was
Brian Silberger. At trial, [Mr.] Silberger testified that
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[Appellant] purchased several thousand dollars of crack
cocaine from him (Silberger) at or around the time of the
murder. [Mr.] Silberger further testified that when he
(Silberger) questioned [Appellant] concerning the
whereabouts of the [V]ictim, [Appellant] told him [] that the
[V]ictim was in Maryland visiting her brother. [Mr.]
Silberger had a conviction for burglary and a second
conviction for theft by unlawful taking. Both of these crimes
were of a crimen falsi nature and [Attorney Fuchel] could
not recall why he did not use them for cross-examination
purposes.
The sixth Commonwealth witness [to testify] was Patrick
Brown. [Mr.] Brown was the second witness to testify
regarding [Appellant’s] drug purchases or attempts to
purchase drugs at or around the time of the homicide.
[Mr.] Brown conceded that he was informed by the
Commonwealth that he would not be charged for providing
drugs to [Appellant]. [During trial, Attorney Fuchel]
questioned [Mr.] Brown regarding the fact that he would not
be charged, going to [Mr.] Brown’s bias or motive to testify,
but neglected to question him about two pending cases and
the potential for favorable treatment or leniency in those
cases based on this testimony. [Attorney Fuchel] confirmed
that it would make sense to question the witness on these
issues, but added that he was not sure he knew about these
charges. [Attorney Fuchel] conceded that the use of such
impeachment material could increase the chance of [an]
acquittal.
The second issue raised by [Appellant] in his PCRA petition
[concerned] testimony that revealed [Appellant’s]
incarceration at the time of trial. [Attorney Fuchel]
confirmed that a defense lawyer usually attempts to
preclude reference to the client being in jail. [Attorney
Fuchel] noted, however, that it was extremely difficult in
this case because of others who testified regarding
admissions made by [Appellant] and who were in jail with
him. [Attorney Fuchel] stated that he did discuss this issue
with [Appellant] and confirmed that the reference to being
in jail was an important issue.
[Attorney Fuchel] was pressed by [Appellant’s PCRA]
counsel, and indicated that he [believed] he discussed this
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issue in detail with [Appellant], but was not sure. It was at
this point that [Attorney Fuchel] added that he had
problems communicating with [Appellant] during trial and
that most of the problems for this lack of communication
[were Appellant’s fault]. According to [Attorney Fuchel], he
gave discovery to [Appellant] twice. He said he mailed the
discovery the first time, and [Appellant] said he did not
receive it. This, according to [Attorney Fuchel], prompted
him to go to the jail personally and deliver the discovery in
the presence of the Assistant Warden. [Attorney Fuchel]
said there were two occasions at the jail when he had
problems with [Appellant].
[Attorney Fuchel] testified that, at one of these two
instances, [Appellant] became very physical and threw the
public defender’s paralegal, Dionna Steele, to the ground
and went after [Attorney Fuchel]. [Attorney Fuchel] stated
that [Appellant] became verbally abusive on a second
occasion. He indicated that [Appellant] caused these
disruptions.
As to the issue of [Appellant] being in jail, [Attorney Fuchel]
added that it was trial strategy for this information to come
into evidence because [Attorney Fuchel] thought it would be
helpful for the jury to know that the individuals who were
testifying were also in jail.
The Commonwealth brought out the fact that they objected
when [Attorney Fuchel] went down this road, and [Attorney
Fuchel] asked for a sidebar with the court at trial and
confirmed that he wanted this information before the jury.
The Commonwealth stipulated that the information came
before the jury at the request of [Appellant] with no
objection or curative instruction requested.
[Attorney Fuchel] was also questioned regarding the third
issue raised by [Appellant in the PCRA petition], namely
whether Zachery Valentine was acting as an agent of the
government when he was debriefed by the Commonwealth
and then placed back in the same cell with [Appellant].
[Appellant’s PCRA] counsel assert[ed] that this [gave] rise
to the basis for a motion to suppress the statements
[Appellant] made to [Mr.] Valentine on the basis that [Mr.]
Valentine may have been acting as an agent for the
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Commonwealth in securing admissions without [Miranda]
warnings. [Attorney Fuchel] said he did not know that [Mr.]
Valentine was questioned and placed back in the same cell
and never considered this issue or argument.
...
2. [Appellant]
[Appellant] also testified at the PCRA hearing. . . .
[Appellant] testified that [Attorney Fuchel], with the
assistance of another Assistant Public Defender, Beth
Manifesto, handled his preliminary hearing on August 1,
2009. [Appellant] testified that he never met with
[Attorney Fuchel] prior to the preliminary hearing and that
[Attorney Fuchel] never came to the jail to see him and
never spoke with him in the lock-up prior to the preliminary
hearing. The first time that [Appellant] actually met with,
and saw [Attorney Fuchel] was in the courtroom when the
preliminary hearing occurred.
The next step in the process was the arraignment in
October [] 2009. [Appellant] was incarcerated between the
time of the preliminary hearing and the arraignment, and
testified that he had no contact with [Attorney Fuchel]
between the time of the preliminary hearing and the
arraignment.
[Appellant] stated that a private investigator for the public
defender’s office did come to the jail in early 2010 to gather
information and that [Attorney Fuchel] came to the jail later
in January [] 2010 and several times between January []
2010 and the time of trial in July [] 2010.
[Appellant] confirmed that paralegal Dionna Steele came to
the jail several times to meet with him, and on one occasion
[Attorney Fuchel] was also present. As to the incident in
which [Attorney Fuchel] claimed that [Appellant] became
verbally abusive and physical, [Appellant] testified that
[Attorney Fuchel] actually got in his face and that he
([Appellant]) did not get physical with [Attorney Fuchel].
[Appellant] stated that the incident got very loud and that a
jail guard came into the room because of the noise.
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According to [Appellant], Dionna Steele advised the guard
that [Appellant] did nothing wrong.
[Appellant] went on to state that, after his conviction in this
case, he had to file his own appeal because [Attorney
Fuchel] neglected to timely file the appeal. No post-
sentence motion was filed. [Attorney Fuchel] requested
several extensions to file a brief for the appeal, and the
appeal was eventually remanded to the trial court by the
Superior Court because of this. [Appellant’s PCRA counsel
was] appointed and handled [Appellant’s direct] appeal.
[Appellant] testified that[,] throughout the trial[] and [the]
early appeal proceedings, [Appellant’s] mother was
providing letters to [Attorney Fuchel], [to] which [Attorney
Fuchel] failed to respond[]. [Appellant] filed his own PCRA
petition in September [] 2013 and [PCRA counsel] filed [an
amended PCRA petition] in April[] 2014.
[Appellant] did address specific comments and allegations
raised by [Attorney Fuchel]. As to the testimony of Zachery
Valentine, [Appellant] advised that [Attorney Fuchel] told
him that [Mr.] Valentine was going to testify that
[Appellant] confessed to [Mr.] Valentine and that this
testimony may hurt at trial. [Appellant] testified that he
never said he would perjure himself. According to
[Appellant], he [] requested that [Attorney Fuchel] cross-
examine [Mr.] Valentine with impeachment material, and
[Attorney Fuchel] responded that he did not want to
complicate the case. [Appellant] was adamant about the
fact that he pressed [Attorney Fuchel] to impeach [Mr.]
Valentine.
As to Laura Rankin, [Appellant] claim[ed] that he actually
brought some of the crimen falsi convictions to [Attorney
Fuchel’s] attention. [Appellant] testified that [Attorney
Fuchel] never advised [Appellant] that he [would not] use
the information against [Ms.] Rankin because she was
favorable. Instead, [Appellant] testified that [Attorney
Fuchel] did not even know about [Ms.] Rankin’s prior
convictions until [Appellant] brought them to his attention.
With regard to all of the Commonwealth witnesses who had
prior convictions, [Appellant] testified that he was not
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aware that a corrupt and polluted source charge was in
order and that [Attorney Fuchel] never requested one. It
was only after present [] counsel brought this to
[Appellant’s] attention that he was aware of this.
As to the issue of [Appellant’s] incarceration being brought
up at trial, [Appellant] stated that [Attorney Fuchel] told
him . . . that Robert Campbell had already testified to it and
therefore it would come in. According to [Appellant],
[Attorney Fuchel] never discussed this issue with him in
advance or whether it was part of the trial strategy.
[Appellant] claimed that he knew it was not right for this
information to come in because the sheriff went to great
lengths to keep the jury from seeing [Appellant] being
escorted to the courtroom by deputy sheriffs in handcuffs
and shackles during breaks in the trial.
[Appellant] testified that when it was time for the defense
case to begin, [Attorney Fuchel] called multiple witnesses in
a brief period and then turned to [Appellant] and said
“you’re next, but I suggest you not testify.” [Appellant]
contends that this [was] the only time [Attorney Fuchel]
discussed with him whether or not to testify.
With regard to the third issue, namely, Zachery Valentine
potentially being an agent of the government, [Appellant]
testified [that Attorney Fuchel] never discussed this issue
with him. It came to light that [Mr.] Valentine had testified
for the Commonwealth in other cases and that neither
[Appellant] nor [Attorney Fuchel] knew this.
[Appellant] testified that he wrote a letter to the trial judge
[] regarding [his] failure to receive discovery. [Appellant]
claims that [Attorney Fuchel] came to the jail angry after
receiving notice that [Appellant] wrote a letter to the judge.
[Appellant] claims that [Attorney Fuchel] came into the cell,
crumbled the letter, told [Appellant] never to write a letter
to the judge again, told [Appellant] that he ([Attorney
Fuchel]) was going to trial with what information he had,
and told [Appellant] that he ([Appellant]) was going to
burn. After this discourse, [Attorney Fuchel] left the cell. . .
.
...
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3. [Detective] Robert Chamberlain
[Appellant] also called Beaver County Detective Robert
Chamberlain as a witness at the PCRA hearing. [Detective]
Chamberlain was a co-affiant on the criminal charges filed
against [Appellant]. The Detectives’ Bureau is part of the
Beaver County District Attorney’s Office. Detective
Chamberlain was questioned about the involvement of
Zachery Valentine in this case and his use as a witness by
the Commonwealth. [Detective] Chamberlain testified that
he did not know Zachery Valentine prior to [Appellant’s]
case. [Detective] Chamberlain testified that he met with
[Mr.] Valentine twice during [Appellant’s] case.
According to [Detective] Chamberlain, [Mr.] Valentine first
came to the attention of the Commonwealth when [Mr.]
Valentine’s wife called the District Attorney’s Office and
advised that a representative of the District Attorney should
speak to [Mr.] Valentine regarding [Appellant’s] case. This
caused the District Attorney’s Office to request transport of
[Mr.] Valentine from the Beaver County Jail to the Beaver
County Courthouse for questioning on May 18, 2009, prior
to the trial in this case. [Detective] Chamberlain advised
that he secured all of [Mr.] Valentine’s knowledge and
information in the interview of May 18, 2009 and had no
intention of speaking with [Mr. Valentine] again short of
requesting his testimony at the trial. [Detective]
Chamberlain did indicate that there eventually arose the
need for a second meeting for the purpose of having [Mr.]
Valentine draw a diagram of the crime scene. [Detective]
Chamberlain indicated that he did not know that [Mr.]
Valentine had served as a witness for the Commonwealth in
prior cases at the time he interviewed [Mr.] Valentine in
2009. [Detective] Chamberlain learned this later through
discussion with another Beaver County Detective, Kim
Clements. According to [Detective] Chamberlain, [Mr.]
Valentine expressed fear of being in the same cell with
[Appellant], and [Detective] Chamberlain testified that he
never told [Mr.] Valentine to keep his eyes and ears open
about the case or to solicit any further information from
[Appellant] after the initial interview on May 18, 2009.
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On cross-examination, [Detective] Chamberlain testified
that he was able to corroborate [Mr.] Valentine’s
information given during the interview. In fact, [Detective]
Chamberlain stated that he left the interview room on
several occasions during the interview to check [Mr.]
Valentine’s statement and was able to confirm what he was
saying based upon review of phone records and photos of
the crime scene. [Detective] Chamberlain was the final
witness called by [Appellant].
4. [Detective] Kim Clements
The [Commonwealth] commenced its case on Friday,
August 8, 2014. [The Commonwealth] first called Detective
Kim Clements. [Detective] Clements testified regarding
Zachery Valentine. She [testified] that she knew [Mr.]
Valentine as a result of his prior testimony for the
Commonwealth in another homicide case. She did
participate in [Mr.] Valentine[’s] interview on May 18, 2009.
[Detective] Clements testified that she played no part in
arranging for [Mr.] Valentine to be interviewed or in his
involvement in this case. She confirmed that it was [Mr.]
Valentine’s wife who brought him to the attention of the
prosecution. [Detective] Clements also confirmed that
neither she nor anyone else from the prosecution gave [Mr.]
Valentine any instructions to pursue further information
from [Appellant] or to act as an agent for the
Commonwealth.
On cross-examination, [Detective] Clements [testified] that
. . . she never instructed [Mr. Valentine] . . . to come back
with [] additional information after the first interview. . . .
[Detective] Clements confirmed that there was a second
interview of [Mr.] Valentine and also stated that she was
involved in his preparation for testimony at trial.
5. [Chief] Eugene St. Clair
The next Commonwealth witness was Chief Eugene St. Clair
of the Freedom Police Department. [Chief] St. Clair is now
the chief, but was a sergeant at the time of [Mr.]
Valentine’s interview. [Chief] St. Clair was the co-affiant on
the criminal charges with Detective Chamberlain. [Chief]
St. Clair indicated that he could not recall all of the details
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of the interview without referring to his report and was
permitted to do so. [Chief] St. Clair did recall that [Mr.]
Valentine gave specific information regarding [Appellant’s]
statement that coincided with evidence found at the crime
scene. [Chief] St. Clair also confirmed that he gave no
instructions to [Mr.] Valentine to solicit any additional
information from [Appellant]. The one thing that [Chief] St.
Clair testified to that was inconsistent with [Detectives]
Chamberlain and Clements was that [Chief] St. Clair’s
report rais[ed] the inference that there were a number of
interviews with [Mr.] Valentine. There are no other specifics
on dates of the interviews. Also, there was additional
information in [Chief] St. Clair’s report that was not in
[Detective] Chamberlain[’s] report, but no major
inconsistencies. [Chief] St. Clair did not know [Mr.]
Valentine prior to the interview in question. [Chief] St. Clair
indicated that he only interviewed [Mr.] Valentine in the
presence of Beaver County detectives, but did recall that he
was involved in interviews on more than one occasion.
6. Dionna Steele
The final witness called by the Commonwealth was Dionna
Steele, a paralegal in the Beaver County Public Defender’s
Office. . . . Reference to Attorney Fuchel’s testimony above
reflects that [Attorney Fuchel] testified to an incident at the
Beaver County Jail in which [he] claimed that [Appellant]
became hostile in an attorney interview room with Dionna
Steele present. [Attorney Fuchel] testified that [Appellant]
pushed Ms. Steele to the ground and came after [Attorney
Fuchel]. Ms. Steele gave quite a different version of that
event. She recalled that she took an envelope to the jail
from Attorney Fuchel to deliver to [Appellant]. She
indicated that she had met with [Appellant] on a number of
occasions at the jail and never had a problem with him. On
the particular occasion when she took the envelope to the
jail for Attorney Fuchel, she was in the attorney meeting
room with [Appellant] when [Attorney Fuchel] entered the
room. She testified that [Attorney Fuchel] began yelling at
[Appellant] and [Appellant] began to yell back. She became
frightened and stepped back. She actually pushed the
emergency button in the room because of the situation.
She stated that [Attorney Fuchel] began to back up and
actually backed into her. [Appellant] thought she might fall
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and grabbed her arm to prevent her from falling. Other
than this, [Ms.] Steele testified that [Appellant] never
touched her. A jail guard came into the room, and [Ms.]
Steele told the guard that [Appellant] did not do anything
wrong.
On both direct and cross-examination, [Ms.] Steele testified
that it was Attorney Fuchel who got into [Appellant’s] face.
She specifically testified that the situation was escalated by
Attorney Fuchel pounding on the table. She was startled by
Attorney Fuchel’s actions and specifically recalled that he
walked toward [Appellant] and got into his [] face. She said
that [Attorney Fuchel] was within inches of [Appellant’s]
face. She stated that [Attorney Fuchel] was very angry and
was clearly the aggressor in this situation. According to
[Ms.] Steele’s testimony, the relationship between the two
was hostile from that point forward.
[Appellant’s] counsel pressed [Ms.] Steele on cross-
examination and was successful in getting [Ms.] Steele to
say that [Appellant] never gave her a problem throughout
the time that she met with him prior to trial. In fact, she
stated that [Appellant] was always respectful. She stated
that [Appellant] was very frustrated in her discussions with
him about discovery and the fact that he ([Appellant]) was
not receiving anything from [Attorney Fuchel]. [Ms.] Steele
stated that she told the jail guard that [Appellant] did
nothing wrong in the attorney meeting room because she
believed that and did not want to see [Appellant] receive
sanctions at the jail. . . .
PCRA Court Opinion, 11/19/14, at 1-34 (some internal capitalization and
citations omitted).
The PCRA court denied Appellant post-conviction collateral relief in an
order entered on November 19, 2014. Appellant field a timely notice of
appeal and now raises the following claims to this Court:
1. Did the unjustified failure to impeach central prosecution
witnesses in this case with relevant aspects of their criminal
records, pending charges[,] and current probationary status
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J-S52021-15
establish all three of the prongs of the test for ineffective
assistance of counsel under Pennsylvania law?
2. Was trial counsel ineffective for eliciting a statement from
a Commonwealth witness about the prior incarceration of
[Appellant], which, once that fact was brought out, allowed
the jury to carry with it the unforgettable picture of
[Appellant] sitting in jail, convicted of crimes and of such a
character that he was more likely to commit the crime for
which they were now tasked with judging [Appellant]?
3. Was trial counsel ineffective for failing to present a
motion to suppress a confession surreptitiously obtained by
a jailhouse informant because the manner in which the
confession was obtained violated [Appellant’s] Sixth
Amendment rights where the informant was acting pursuant
to an implied understanding with the district attorney and
where the informant was returned to the same cell with
[Appellant] even after the informant told detectives that he
was afraid to return to the same cell?
Appellant’s Brief at 4 (some internal capitalization omitted).
We have reviewed the briefs of the parties, the relevant law, the
certified record, and the well-written and through opinion from the able
PCRA court judge, the Honorable James J. Ross. We conclude that the
claims raised in Appellant’s brief fail and that Judge Ross’ opinion, filed on
November 19, 2014, meticulously and accurately explains why Appellant’s
claims fail. Therefore, we adopt the PCRA court’s opinion as our own. In
any future filings with this or any other court addressing this ruling, the filing
party shall attach a copy of the PCRA court’s opinion.
Order affirmed. Jurisdiction relinquished.
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J-S52021-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/16/2015
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IN THE COURT OF COMMON PLEAS OF BEA VER COUNTY
PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANlA
v. No. 1592 of2009
BENJAMIN J. DENNERLEIN
ROSS, J. November \<3, , 2014
M.EMQRANDUM OPlN.ID.N
INTRODUCTION
On June 17, 2009, the defendant, Benjamin J. Dennerlein, was charged with a general
charge of homicide by the Freedom Borough Police Department in conjunction with the
· assistance of the Beaver County District Attorney Detectives Bureau. The charges stein
h.:11 an incident that occurred In Freedom Borough, Beaver County, Pennsylvania, in either
the late evening hours of May 1?. or early morning hours of May 13, ~009. Tie vie 11r.,
Elizabeth Grosskopf, was fo1.uh.i dead in her residence at 1475 Fifth Avenue Freedom
Borough, Beaver County, Pennsylvania. An autopsy determined that Grosskopf died due to
, nulttple stab wounds to the head and neck areas. After· an investigation by the Fceedon
Borough Police and the Beaver County Detectives' Bureau, the defendant was charged with
homlclde.
The case was scheduled for a jury trial before the Honorable John Dohanlch, now
Senior Judge of this Court, with jury selection taking place on Monday, July 26, 2010. After
,.
the Jury was selected, the case proceeded to trial, and the jury convicted defendant of first
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degree murder on August 3, 2010. On September 29, 2010, Judge Dohanich sentenced the
defendant to life imprisonment without parole.
No post-sentence motions were filed, but a timely notice of appeal was filed with the
Superior Court, by the defendant himself, on October 27, 2010. The appeal was denied, and
the conviction was affirmed, by Opinion and Order of the Superior Court dated April 2,
2012. A timely petition for allowance of appeal was presented to the Pennsylvania Supreme
Court, which was denied by Order of the Supreme Court dated October 22, 2012.
· The defendant filed a timely pro se petition for po_{>t~convjction relief, and Attorney
---------------·--·
. Mitchell Shahen was appointed by the Court to represent the defendant in the post-
• conviction proceedings. Attorney Shahen filed an Amended Petition for Post-Conviction
Collateral Relief with this Court on April 7, 2014, which was timely based upon granted
motions for extension of time. The Commonwealth tiled a response and memorandum in
opposition to the petition, and defense counsel filed a brief In support.
The Court conducted a hearing on the petition on August 4, 6 and 8 of 2014,
receiving the testimony of various witnesses on those dates. The Court also received
exhibits and has reviewed the court file as well as the transcripts of the trial. For the
reasons stated below, defendant's petitions are denied.
FACTS
A. Facts and Evidence Adduced and Presented at Trial
In July and Au~st, 2010
After the defendant filed his notice of appeal, fudge Dohanlch issued an Order
requiring the defendant to file and serve a concise statement of errors complained of on
appeal pursuant to Pa.R.App.P. §192S(b), which the defendant did. Judge Dohanlch
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authored an opinion regarding the errors complained of on appeal on April 7, 2011. In that
opinton, Judge Dohanich recited the facts established at the jury trial. The Court has
'
i
:reviewed the transcripts of the trial and believes that Judge Dohanich has accurately
i
.captured and summarized the facts established, and the Court reiterates those facts In the
[following pages.
The victim, Elizabeth Grosskopf, age 54, resided at 1475 Fifth Avenue, Freedom,
1
Beaver County, in a residence owned by her and Robert Campbell, a former paramour, with
'whom she maintained a friendly relationship. Ms. Grosskopf was a frail woman In poor
. health, suffering from various medical conditions which caused her to be unsteady and
· prone to falling on occasion. Ms. Grosskopf and Mr. Campbell purchased the residence In
: 2003, subject to a mortgage; however, the property was titled solely in Ms. Grosskopf s
name because of Mr. Campbell's unstable financial condition. Subsequently, Ms. Grosskopf
• transferred the title by deed dated February 28, 2008, to herself and Mr. Campbell, as joint
; tenants with the right of survivorship. The victim and Mr. Campbell previously lived
together for approximately ten years until May, 2008, when Mr. Campbell left the residence
to commence a live-In relationship with his current wife, Karen Otrhalik Babich. Mr.
Campbell and Ms. Babich commenced their relat1onship in December, 2007, which
culminated in their marriage in October, 2008.
Mr. Campbell's last contact with the victim occurred on May 8, 2009, when she
telephoned to inform him that on May 7, 2009, she had received and deposited the sum of
$31,128.14, representing her share of the proceeds from the sa1e of her parents' cottage In
Erie. They discussed the uses to which she could put the funds. Ms. Grosskopf maintained
a personal checking/credit/debit account with the Northern Lights branch of ESB Bank
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which she opened May 19, 1997. The account was limited to withdrawals of $510.00 per
• 24-hour period.
Mr. Campbell was introduced to the defendant approximately four years prior to the
victim's death while both were inmates in the Beaver County Jail for reasons unrelated to ·
· : the instant case. Upon release from incarceration, Mr. Campbell and the defendant
maintained a friendly relationship, and the defendant resided with Mr. Campbell and Ms.
· Grosskopf from time to time when he was in need of a temporary residence. All three
individuals were users of and smoked cocaine together on occasion. In December, 2008,
• and continuing until the time of her death, the defendant resided at the victim's home, I
·l
. paying rent in the amount of $50.00 per week. The defendant was employed at Crow's Run I
Recycling as a salesperson from 2008 through May 13, 2009. I
Prior to her death, the victim was employed as a cashier at the Center Township .i
Wal-Mart Ms. Grosskopf last worked on May 11, 2009, from 11 :00 A.M. until 8:00 P.M. and
· was observed at work by her neighbor, Dwight McMorris, while he was shopping at Wal·
Mart Mr. McMorris subsequently observed the victim between 8:40 P.M. and 8:50 P.M. on
the same day as she drove by his home on the way to her residence after completing her
work day. Mr. McMorris was the last person other than the perpetrator to see Ms.
Grosskopf alive.
The victim was scheduled to work on May 12, 2009, from 11:00 A.M. to 8:00 P.M.;
however, she did not appear for work nor call to indicate that she would not be present for
work that day, which was unlike her because she was a reliable employee. Shortly before
her death, Ms. Grosskopf reported to one of her co-workers, Nancy Pranskey, that the
defendant had been stealing from her and using her credit/debit card to purchase items.
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. Bank records disclosed that on May 5, 2009, the victim's bank account had been overdrawn
;by $741.11 as a result of eight transactions.
The defendant also did not appear at his place of employment on May 12, 2009, and
.termmated his employment due to a disagreement with his employer, Nick D'Itri, by way of
: a text message on May 13, 2009, at 12:52 P.M. The defendant had been a good employee
i until approximately one month prior to terminating his employment when he began not
! reporting for work. The prior week he failed to appear for work on four consecutive days .
. His employer suspected that drug use was responsible for the defendant's decline in
, performance. The defendant's last working day was May 11, 2009.
Between 10:00 A.M. and 10:30 A.M. on May 12, 2009, Mr. Campbell sought the
· defendant at his place of employment Not locating him at work, Mr. Campbell proceeded
. to the victim's residence and found the defendant present Mr. Campbell noted that the
, defendant appeared to be under the Influence of drugs. When Mr. Campbell inquired of the
. defendant as to the whereabouts of the victim, the defendant replied that he had taken her
to work earlier that morning, because he was In need of her vehicle to run errands. Mr.
Campbell, who maintained various items of personal property at the residence, searched
the home to assure that his belongings were present and was followed through the house
. by the defendant When looking into the victim's bedroom, Mr. Campbell observed that the
bed had been made, which was unusual because the victim was a poor housekeeper and
never made the bed. The defendant was directly behind Mr. Campbell as he was in the
doorway to the victim's bedroom. The defendant and Mr. Campbell became involved in a
heated argument over the defendant not working to pay rent to the victim and his drug use.
Mr. Campbell informed the defendant that he would return to the residence between 8:30
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· P.M. and 9:00 P.M., when the victim returned from work, to speak with the defendant and
I the victim.
Later in the same day at 3:25 P.M., the defendant, using the victim's credit/debit
; card, made a balance inquiry at ESB Bank located at 921 Third Avenue in New Brighton.
; The defendant, utilizing the victim's credit/debit card, purchased various items at the
! Chippewa Township K-Mart between 6:51 P.M. and 7:09 P.M. and proceeded to the home of
i Gregory 'Wimpy" Price and Wendy McCoy to deliver items to Mr. Price, including video
: games, movies and an electric can opener, to reimburse Mr. Price for tires that he
purchased from the defendant and which were not appropriate for his vehicle.
At between 8:30 P.M. and 9:00 P.M. on May 12, 2009, Mr. Campbell and his wife
;
! returned to the victim's residence and found no one present The victim's vehicle was not
In the area. Throughout the evening and into the early morning hours of May 13, 2009, Mr.
• Campbell attempted on 30 occasions to reach the defendant and on 17 occasions to contact
: the victim by telephone and through text messages indicating his desire to speak to them.
: He received no responses, except that the defendant sent a text message advising that the
Baden police would be interested In Mr. Campbell's use of marijuana. During the evening.
_ Mr.- Campbell and his wife left and returned to the victim's residence on two additional
occasions and did not find anyone or the victim's automobile at the home. They left for the
final time at approximately 12:00 A.M, returned to their residence and retired for the night
On May 13, 2009, at approximately 12:26 A.M., the defendant checked into Room 12
of the Beaver Falls Motel in Beaver Falls, following which he contacted Laura Rankin asking
her to join him in smoking crack cocaine. Ms. Rankin telephoned Jennifer Bums, requesting
that she provide transportation to the motel. Jennifer Bums and Bryan Sil berger retrieved
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· Ms. Rankin and her infant child and drove to the mote) to meet the defendant Ronald
"Toot" Goodman, the father of a child with Ms. Burns, and Patrick Brown, a supplier of
crack cocaine for the defendant, also appeared at the motel. Mr. Brown provided the
: cocaine to the defendant The defendant, when asked the reason for being in possession of
; the victim's vehicle, informed Ms. Rankin that the victim was away on vacation visiting her
niece in Maryland or Virginia. The defendant told Mr. Sil berger that the victim was away in
Maryland to visit her brother for a week The defendant, in an effort to assure Mr. Brown,
: his cocaine supplier, that he had sufficient funds when requesting Mr. Brown to provide an
: advance of drugs, had previously forwarded a text message to him on May 9, 2009, showing
· a balance in the victim's bank account of $29,712.14. The defendant and the other
· individuals smoked crack cocaine throughout the early morning hours of May 13, 2010,
until approximately 5:00 A.M. During that time, the defendant and Ms. Rankin left the
motel and proceeded to two convenience stores to purchase Items and attempted to obtain
funds using the victim's credit/debit card. At one point in time, the defendant advised Ms.
Rankin that he was using the victim's credit/debit card, showed her the balance in the
account and stated to her, "stick with me and good things will happen".
Mr. Campbell, accompanied by two friends, Martin Costanza and Justin Hertnecky,
proceeded to the victim's residence on May 13, 2009, between 8:30 A.M. and 9:00 A.M. No
one was present and the victim's car was not at the residence. The three of them gathered
the defendant's belongings, placed them in garbage bags and stored the bags in the garage
of the residence. Mr. Campbell opened the victim's bedroom door and found the bed in the
same condition as the day before, as if it had not been disturbed. They then left the
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residence and returned to Mr. Campbell's house for the balance of the morning. Mr.
.Carnpbell's intention was to evict the defendant
After leaving the motel and driving his friends home, the defendant claimed to have
returned to the victim's residence to locate her, found that she was not present, that her
; bed did not appear to have been slept in, and then proceeded to the Beaver Valley Mall. At
; 1:15 P.M. on May 13, 2009, the defendant presented a check made payable on the victim's
: account to himself in the amount of $1,000.00 at the ESB Bank in Beaver Falls. The memo
portion of the check indicated the words "roof /porch". The defendant explained that he
' had performed work for the victim and the check represented payment Ms. Celeste, the
. victim's next door neighbor, Indicated that no recent work had been done on the· house.
: The bank representative requested identification from the defendant, since he did not have
: an account with the bank, and he provided his driver's license. The check was drawn on
the Northern Lights ESB Bank located in Baden. The Beaver Falls ESB Bank manager
telephoned the Northern Lights branch and obtained a facsimile of the signature card of the
victim. The Beaver Falls branch manager also placed two telephone calls to the victim's
residence and the telephone was not answered on either occasion. Mer being unable to
verify the defendant's correct address and telephone number or the victim's signature, the
bank refused to cash the check and returned the check to the defendant
. (
· Trooper Robert Negherborn, a forensic document examiner with the Pennsylvania
State Police Crime Laboratory, recovered from the face of the subsequent check in the
victim's checkbook the Impression of the writing depicting the text of the previous check
payable to the defendant, Including the authorizing signature. He was further provided
with handwriting samples of the victim and the defendant Although not Issuing a
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conclusive opinion, Trooper Negherborn testified that in comparing the writing on the
I
./
I check with the samples of the handwriting of the victim and the defendant, there was a
: strong probability that the signature on the check was not that of the victim. He further
• opined that there were no significant similarities to indicate that the victim or the
.• defendant wrote the entries on the check, or that the defendant wrote the signature on the
check.
At approximately 2:00 P.M. on May 13, 2009, the defendant purchased tennis shoes
at the Shoe Department Store at the Beaver Valley Mall using the victim's credit/debit card.
A short time later he attempted to return the tennis shoes for a cash refund without the
, credit/debit card and was refused. The defendant was accompanied by Ms. Rankin and
.· met Mr. Price while at the Beaver Valley Mall and purchased other items withthe victim's
. credit/debit card. He also attempted to buy tennis shoes for Mr. Price using the victim's
credit/debit card and was refused.
At approximately 1:00 P.M., Kelly Carter, who had previously made payment of
$500.00 for the purchase of an automobile from the defendant, telephoned the defendant
informing him that he was at the residence desiring to retrieve the vehicle from the garage.
The defendant advised Mr. Carter that he would not arrive for a period of time, and Mr.
Carter waited. When the defendant failed to appear, Mr. Carter made a second telephone
call, at which time the defendant instructed Mr. Carter to enter the home to obtain the
remote control for the garage door. At the direction of the defendant, Mr. Carter entered
the house by way of a window and was unable to locate the remote control while
continuing to speak to the defendant on the telephone. Mr. Carter then telephoned Mr.
Campbell, who subsequently arrived and Informed Mr. Carter that he was In possession of
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· the remote control and would not permit the removal of the vehicle until the defendant
; appeared. Mr, Carter placed a third call to the defendant, who indicated he would return
: later. Both Mr. Campbell and Mr. Carter observed what appeared to be blood on the
victim's dog and entered the house to investigate, Mr. Campbell entered the victim's
• bedroom and discovered a pool of blood on the bed where the blanket had been pulled
away. He called Mr. Carter into the bedroom to observe the blood. Mr. Carter then
telephoned the defendant, informed him of their findings and inquired whether he knew
the whereabouts of the victim, to which the defendant replied that he thought she was at
work Mr. Carter told the defendant he should return to the residence immediately. The
defendant Indicated that he was at the Beaver Valley Mall and would return home at a later
time. He also stated that he had not been at the residence for several days. Mr. Campbell,
after contacting the victim's employer and the hospital in an unsuccessful attempt to locate
her, placed a call to 9· 1-1 at 2:54 P.M. Freedom Borough Chief of Police John Hill and
Officer William Dreyer of the Freedom Borough Police Department responded to the call at
approximately 3:00 P.M. Andrew Gall of the Beaver County Detective Bureau received a
call for assistance from the Freedom police officers at 3:10 P.M. and responded to the
residence with County Detectives Timothy Staub, Kim Clements, Timmie Patrick and
Robert Chamberlain.
A search of the residence disclosed the victim's body wrapped in blankets in a
stairway on the second floor leading to the attic, which was located between the bedrooms
of the victim and the defendant and could be accessed from both bedrooms. The police
found no evidence of forced entry into the home. When informed of Ms. Grosskopfs death,
Mr. Campbell became extremely distraught As a result of receiving information from Ms.
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Rankin's moth er that Ms. Rankin was with the defendant in her vehicle at the Beaver Valley
Mall, a BOLO (be on look out) alert was broadcast for the defendant, the victim's vehicle
and the vehicle being operated by Ms. Rankin and owned by her mother. Ms. Rankin
received telephone calls from a friend and her mother advising that the names of the
defendant and Ms. Rankin were heard on the scanner indicating that the police were
attempting to locate the defendant
Detective Patrick proceeded to the defendant's place of employment and in speaking
to Mr. D'ltri found that the defendant last worked on May 12, 2009, and terminated his
employment on May 13, 2009. Mr. D'Itri provided the defendant's cellular telephone
number to Detective Patrick, who attempted several calls and text messages to the
defendant with no response.
At 6:07 P.M., Officer Maxim Strano of the Center Township Police Department, in
response to the alert, located the defendant and Ms. Rankin in the automobile being
operated by Ms. Rankin as it was backing out of a parking space at the Beaver Valley Mall.
The defendant stated to Ms. Rankin "to go or he was going to run". Officer Strano drew his
weapon, ordered both individuals to the ground, approached the defendant and placed him
in handcuffs. The defendant stated that he thought about running and should have run
when he saw the officer. The defendant also indicated that Officer Strano had the wrong
man. The victim's credit/debit card was found in the defendant's wallet The victim's
vehicle was also located a short distance away.
The defendant and Ms. Rankin were transported to the Center Township Police
Department At 6:39 P.M., the defendant waived his Miranda rights and agreed to speak
with Detectives Patrick and Clements. The defendant was informed of Ms. Grosskopf's
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; death and showed no emotion. He indicated that in the evening hours of May 11, 2009, he
; and his girlfriend, Colleen Cantella, were at the victim's residence viewing the Pittsburgh
, PenguinsjWashington Capitals hockey game. The defendant further advised that the victim
came home from work during the hockey game. According to the defendant, Ms. Cantella
i
I
: departed after the hockey game to return to her residence. This information was contrary
I
to the statement made by Ms. Cantella that she was not at the victim's residence on May
i
i ; 11th and that the two of them had exchanged text messages between 9:23 P.M. and 10:07
i
I . P.M. near the end ofthe hockey game, when she was at her own residence. The defendant
• stated that on May 12, 2009, he drove the victim to work at Wal-Mart at approxJmately
10:00 A.M., attended to several errands and returned to the residence, when he made
contact with Mr. Campbell and a verbal argument ensued. Mer the disagreement with Mr.
Campbell, he advised that he left the residence, ran a few more errands and went on a crack
cocaine binge. He stated that he returned to Wal-Mart between 8:00 P.M. and 8:30 P.M. to
pick up Ms. Grosskopf, and when she did not come out to the vehicle, he went into the store
and was told that she was not at work all day. He also advised the detectives that he tried
to call Ms. Grosskopf and received no reply. The victim did not report for work on May 12,
2009, and video footage of the entrance and the customer service area of Wal-Mart
disclosed that the defendant did not appear at the relevant time. He obtained crack
cocaine from Mr. Price and checked into the Beaver Falls Motel to smoke crack cocaine with
Ms. Rankin and her friends. They all remained at the motel into the early morning hours of
May 13, 2009. He advised that he checked out of the Beaver Falls Motel at approximately
11:00 A.M. and returned to the residence to look for the victim. He found that her bed was
made and did not appear to have been slept in. The defendant then proceeded to the
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Beaver Valley Mall where he met Mr. Price and offered to purchase tennis shoes for him as
: payment for cocaine previously supplied by Mr. Price. The defendant attempted purchases
at two separate ret.ail locations using the victim's credit/debit card and was rejected. The
defendant advised that he had the information regarding the victim's credit/debit card, -1 I
!
I
I
including the victim's personal identification number (P.I.N.) to access the account The
defendant related that he obtained the credit/debit card from the victim's purse located in
the kitchen of the residence. The detectives were unable to locate the victim's purse ln the
. kitchen of the home and subsequently found it in the victim's vehicle. Upon receiving this
information, the defendant informed the detectives that he had taken the credit/debit card
· , out of the victim's purse and placed the purse in the automobile. The defendant claimed to
have pennission from the victim to use the credit/debit card. Near the conclusion of the
interview, which lasted approximately one hour, the defendant stated to the detectives that
if they were going to arrest him for murder to do so. He further stated that "all I have to do
Is convince one person" that he did not commit the offense. The victim's purse.Wal-Mart
Identification card, driver's license, checkbook and cellular telephones were all located In
the victim's vehicle, which was in the possession of the defendant.
Prosecutors acquired the victim's bank records for the period from May 1, 2009,
through May 31, 2009, the telephone records of the defendant from May 8, 2009, through
May 14, 2009, and located various receipts for purchases and automatic teller machine
(ATM) withdrawals from the victim's account In the vehicles of the victim and Ms. Rankin
and in the trash bin at the Beaver Falls Motel. A summary of these records in chronological
order was outlined by Detective Chamberlain as follows:
May9,2009:
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1. 11:43 P.M. - Text message from defendant to Patrick Brown of a photograph of a
$100.00 withdrawal from the victim's account, and indicating a balance of
$29,712.14
! May 10, 2009:
1. 2:16:03 A.M. - $100.00 ATM withdrawal from ESB Bank, New Brighton
2. 2:16:22 AM. - $200.00 ATM withdrawal from ESB Bank, New Brighton
3. 2:17 AM. -Telephone call from defendant to Gregory Price
4. 7:31:13 AM. - $100.00 ATM rejected withdrawal, ESB Bank, New Brighton
5. 7:31:39 A.M. - ATM balance inquiry, ESB Bank, New Brighton, showing balance of
$29,312.14
6. 7:31:57 AM. - $20.00 ATM rejected withdrawal, ESB Bank, New Brighton
7. 7:35:34 AM. - $102.50 ATM/Mac machine rejected withdrawal, Beaver Falls
8. 7:44:04 AM. - ATM rejected balance inquiry, ESB Bank, New Brighton
9. 7:44:16 A.M. - ATM rejected balance inquiry, ESB Bank, New Brighton
10. 7:44:29 A.M. - $100.00 ATM rejected withdrawal, ESB Bank, New Brighton
11. 7:44:39 AM. - $20.00 ATM rejected withdrawal, ESB Bank, New Brighton
12. 7:46:34 AM. - $100.00 ATM rejected withdrawal, ESB Bank, New Brighton·
(defendant is displayed on video at the ATM machine)
13. 7:54:02 AM. - $102.00 ATM rejected withdrawal, BP, East Rochester
May 11, 2009:
• 1. 9:23 P.M. through 10:07 P.M. - Several text messages between defendant and
Colleen Cantella, the defendant's girlfriend regarding the hockey game
· 2. 9:54 P.M. - Telephone call from defendant to Gregory Price
3, 10:46 P.M. - Text message from defendant to Gregory Price stating "If I come with
$200.00, can you do anything?"
4. 11:05 P.M. - Text message from defendant to Gregory Price stating "If I come with
$200.00, can you do anything?"
5. 11: 19 P.M. - Text message from defendant to Patrick Brown stating "Can I come to
you now?"
6, 11:33 P.M. - Text message from defendant to Patrick Brown stating "Can I come to
you now?"
May 12, 2009:
1. 12:29 AM. - Telephone call from defendant to ESB Bank automated telephone
number
2. 12:48AM. - Telephone call from defendant to Gregory Price
3. 12:55 A.M. - Purchase using the victim's credit/debit card at East Rochester GetGo
for 99¢.
4. 12:55 A.M. • $10.00 gasoline purchase using victim's debit card at East Rochester
GetGo
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5. 1:04:11 AM. - $200.00 ATM withdrawal, ESB Bank, New Brighton
6. 1:04:28 AM. - $200.00 ATM withdrawal, ESB Bank, New Brighton
-7. 1:07 AM. - Telephone call from defendant to Gregory Price
8. . 3:15 AM. - Text message from Patrick Brown to defendant stating "Phone was dead,
what's up"
:9. 8:08 AM. - Telephone call from defendant to Gregory Price
'10. 12:01:36 P.M. - $103.00 ATM withdrawal, Huntington Bank, Cranberry (defendant
displayed alone in the victim's vehicle on video)
11. 12:02 P.M. - $103.00 ATM rejected withdrawal, Huntington Bank, Cranberry
(defendant displayed alone in the victim's vehicle on video)
,12. 3:24 P.M. · $103.00 ATM rejected withdrawal, Huntington Bank, New Brighton
(defendant displayed on video)
i13. 3:25 P.M. - ATM balance inquiry, Huntington Bank, New Brighton, showing a
balance of$28,689.42 (defendant displayed on video)
.14. 6:33 P.M. • $75.00 ATM/Mac machine withdrawal, Beaver Falls
15. 6:51 P.M. - Purchase by defendant using victim's credit/debit card at Chippewa K·
Mart in the amount of$83.59 (defendant displayed on video)
16. 7:06 P.M. - Purchase by defendant using victim's credit/debit card at Chippewa K-
Mart in the amount of$79.48 (defendant displayed on video)
17. 7:09 P.M. - Purchase by defendant using victim's credit/debit card at Chippewa K-
Mart in the amount of $105.77 (defendant displayed on video)
18. 7:24 P.M. - Text message from Patrick Drown to defendant stating "Phone was dead,
what's up"
. 19. 11:47 P.M. • $303.00 ATM rejected withdrawal, Beaver Falls (defendant displayed
on video with victim's vehicle in background)
May 13, 2009:
1. 12:01 AM. - $303.00 ATM withdrawal, Beaver Falls
· 2. 12:02 AM. -$203.00 ATM withdrawal, Beaver Falls
3. 12:02 A.M. - Six unanswered telephone calls from Robert Campbell to defendant
4. 12:12 AM. - Telephone call from defendant to Laura Rankin
5. 3:06:17 A.M. - $22.59 transaction at Sheetz, Beaver Falls
6. 4:11 A.M. - $101.50 Mac machine transaction, Beaver Falls
7. 4:14 A.M. • $5.69 Mac machine transaction, Beaver Falls (defendant displayed on
video)
8. 5:03 AM. - Text message from defendant to Patrick Brown stating "Need 150"
(meaning defendant needed $150.00 worth of crack cocaine)
9. 6: 10 AM. - $6.33 transaction at East Rochester GetGo
10. 6:18 AM. - Telephone call from defendant to Patrick Brown
11. 11:42 AM. - Text message from Patrick Drown to defendant stating "Still need it?"
12. 1:06 P.M. -Telephone call from Kelly Carter to defendant
13. 1:30 P.M. - Defendant attempts to cash victim's check at ESB Bank, Deaver Falls
14. 1:36 P.M. - Telephone call from Kelly Carter to defendant
15. 1:50 P.M. - $200.00 ATM rejected withdrawal, ESB Bank, New Brighton
15
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16. 1:51 P.M. - Balance inquiry, ESB Bank, New Brighton, showing balance of
$27,872.06
17. 2:31 P.M. - Purchase by defendant using victim's credit/debit card at the Shoe
Department, Beaver Valley Mall, in the amount of $69.99.
: In addition, Detective Chamberlain obtained documentation from Verizon Wireless
•· depicting the sites of cellular telephone towers in Beaver County from which he was able to
: confirm the approximate location of the defendant when he was using his cellular
; telephone. This Information, together with the known observations of the defendant from
. witnesses and video displays of the defendant at bank ATM and retail locations, placed the
· defendant in the area of the victim's residence during the hours when she would have been
killed and at the various locations at which he made ATM withdrawals and purchases using
. the victim's credit/debit card.
An examination of the defendant's blue jeans and tennis shoes under a blue light
revealed possible blood stains. Samples of the blood of the victim and the defendant,
•· together with the defendant's blue jeans, were delivered to the Pennsylvania State Police
Crime Laboratory for analysis. Jennifer Badger, a forensic scientist in the serology section,
• determined that two stains on the outside seam of the lower leg of the defendant's blue
jeans consisted of blood. She further detected the presence of blood on the eyelet of the toe
of the defendant's left athletic shoe, but the sample was insufficient for a confirmatory
testing for blood. In addition, examination of the handle of a steak knife found in the
kitchen sink of the victim's residence submitted to the crime laboratory disclosed evidence
of blood. Ms. Badger prepared samples of dried blood of the victim and the defendant and
swabs of the blood on the defendant's jeans, tennis shoes and the steak knife for
submission to the DNA section of the crime laboratory. Michael Biondi, a forensic scientist
supervisor in the DNA section, conducted DNA testing on the swabs of the defendant's blue
16
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jeans and determined that the blood on the jeans matched the victim's blood. The DNA
profiles of the victim and the defendant could not be excluded as potential contributors of
the blood stain from the defendant's shoe. The DNA profile of the victim was excluded as a
contributor as to the knife found In the kitchen sink, while the DNA profile of the defendant
could not be excluded as a contributor for the blood on the knife, because there also
appeared DNA types from two unidentified individuals.
Dr. James Smith, a forensic pathologist, determined that due to observing the
· greenish discoloration of the body, signifying the first sign of decomposition, the victim's
: death occurred within an 18-hour to 36-hour period between 3:00 A.M. and 9:00 P.M. on
: May 12, 2009. Dr. Smith opined that the cause of death was the stab wounds to the neck ·
· which Incised the right carotid artery and the right jugular vein. He noted a total of 46
. knife wounds, 34 of which were located in the left neck region. Dr. Smith further described
· defensive wounds on the victim's hands and fingers indicating that the victim attempted to
ward off her attacker. He testified that the concentration of the wounds in the neck area
was an indication the victim was held down and was struck w1th such force as to penetrate
i
from the left through the right side of the neck. Dr. Smith estimated that the blade of the
i-
knife was approximately one-half inch in width and three inches in length. The manner of i
.death was homicide.
James Sarver met the defendant on May 15, 2009, while both were inmates in the
Beaver County Jail. Mr. Sarver also was familiar with Mr. Campbell from whom he had
I
I purchased marijuana in the past Mr. Sarver related that the defendant admitted to him
that he had killed Ms. Grosskopf and intended to attempt to place blame on Mr. Campbell
for the crime. In a second conversation with Mr. Sarver, the defendant queried as to why
i
!
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I
Mr. Campbell came to the victim's residence and removed the sheets on the bed revealing ·I
the pool of blood. The defendant informed Mr. Sarver of the limit of $500.00 on the victim's
credit/debit card and confirmed that he went partying and shopping after the killing. Mr.
Sarver testified that he had previously been a visitor at the victim's residence, limited only
I
1 · i to the main floor of the house.
Zack Valentine was the defendant's cellmate at the Beaver County Jail for
• approximately two weeks. On May 18, 2009, Mr. Valentine provided a statement to police
in which he indicated that he had become acquainted with the defendant prior to their
incarceration while working at Crow's Run Recycling. Mr. Valentine stated that the
defendant acknowledged that he had killed the victim, wrapped her in a blue blanket and
placed her body in the stairway to the attic between the two bedrooms in the victim's
residence. The defendant also outlined the layout of the house and provided a diagram
detailing the location of the bedrooms and the doorways from each bedroom to the attic.
The defendant further described the placement of a tan blanket covering the blood on the
I
! .
bed and complained that Mr. Campbell had pulled the blanket away exposing the blood. I
Mr. Valentine, who had never been to the residence, drew a diagram of the residence for
the police based upon the defendant's description. Mr. Valentine had been unaware of the
I.
'
homicide until his conversation with the defendant
'
The defense presented evidence in an effort to place culpability for the crime on Mr.
Campbell by attempting to demonstrate that he had been physically abusive toward the
victim and that he had a financial motive for killing her.
Mr. Campbell testified that the victim called him shortly after he had moved out of
the house and into Ms. Babich's residence, indicating that she desired to title the home In
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both of their names. Ms. Babich, who was a mortgage processor and notary public,
. facilitated the transfer by having the deed prepared, notarizing Ms. Grosskopf's signature,
: recording the deed and paying the recording fee and transfer taxes, for which she was
: subsequently reimbursed.
Patricia Celeste, the next door neighbor and friend of the victim, observed a black
· eye on the victim on one occasion and her leg to be injured at a subsequent meeting, both
; injuries which the victim attributed to the defendant When Ms. Celeste confronted the
· defendant regarding the Incidents, he apologized for his actions. He further explained that
the black eye occurred when he became angry with the victim for refusing to eat dinner he
· had prepared and he had struck the victim with the food plate. The leg Injury resulted from
Mr. Campbell accidently pulling a loose kitchen cabinet from Its hinges causing it to strike
the victim.
Stacie Delp, Kristine Ramer and Nancy Pranskey, all co-workers of the victim, noted
black eyes on the victim, with Ms. Delp also observing the injured leg. Only Ms. Pranskey
testified that the victim told her that the injuries were inflicted by Mr. Campbell.
On the evening of May 9, 2009, while Mr. Campbell, his wife and his friend, Martin
Costanza, were patrons at Harvey Run Inn, a local tavern, Crystal Barnes, an employee,
overheard Mr. Campbell, following a telephone conversation, say loudly to his wife, "cha-
ching, cha-chlng". Ms. Barnes admitted to being unaware of the meaning of Mr. Campbell's
remarks.
Approximately two to three months following the victim's death, Mr. Campbell was
advised by correspondence from Wal-Mart, the victim's employer, that he was the
beneficiary of the victim's retirement account in the amount of$1,893.34 and life insurance
19
--··· .,. _
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benefits in the amount of $22,000.00. The victim had designated Mr. Campbell the
beneficiary as her common-law husband on June 27, 2005, approximately four years prior
I
to her death. Mr. Campbell denied any knowledge that he was the victim's beneficiary prior
'to receiving notice from her employer. He, in fact; received the proceeds from both the
retirement account and the life Insurance as a result of Ms. Grosskopf's death.
Mr. Campbell also was the surviving joint tenant of the residence, and thus became
.sole owner following the victim's death. Testimony indicated that the balance of the
. mortgage was approximately $30,000.00 with the value of the home estimated at
. $10,000.00 due to its deteriorated condition.
In rebuttal, the Commonwealth introduced the medical records of the victim from
; Heritage Valley-Beaver Hospital for the period from 2004 through 2008, which revealed
• that she was treated on several occasions as a result of injuries sustained by falling.
As noted above, the defendant does not dispute that Ms. Grosskopf was murdered;
however, he alleges that the Commonwealth failed to sustain its burden of proving that he
• committed the crime. The thrust of the defense was that Mr. Campbell had the motive and
opportunity to kill the victim, since he would benefit financially by her death, and that he
had physically abused the victim in the past
B. Facts and Evidence Adduced at the PCRA Hearing
Held on Au211st 4, 6 and a. 2014 .
1. Thomas Kurt Fuchel
As noted earlier, the Court conducted a hearing on defendant's Post Conviction
Relief Act (hereinafter PCRA) Petition on August 4, 6 and 8, 2014. The Court heard
testimony _during parts of each of those three days. Since defendant had the burden of
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proof, the defendant first called witnesses. Defendant first called Thomas Kurt Fuchel, Sr.,
Esquire, who was lead defense counsel at the trial. He was assisted by a new public
defender at that time named Rebecca Fields, who was not called to testify by either party at
the PCRA hearing. Fuchel first testified that it was protocol or procedure, at the time of the
Dennerleln trial, for an Assistant Public Defender to begin representation in a case at the
preliminary hearing stage and continue with the case through trial. Fuchel did that in this
case.
Fuchel testified that he handled the preliminary hearing. He testified that it was his
practice to speak with the client prior to the preliminary hearing in the lock-up facility. He
did not recall whether he met with the defendant before the preliminary hearing in this
case, but indicated that was his standard practice. Fuchel couldnot provide any specific
information as to when he met with the defendant He did admit that it was significant to
meet with the client early in the case to discuss strategy and to discuss what the defendant
did or did not do or know in connection with the charges.
Fuchel indicated that the Commonwealth provided extensive discovery. According
to Fuchel, defendant Dennerleln complained about not receiving discovery, and Fuchel
claims that this prompted him to make sure the defendant received the discovery. Fuchel
stated that he believed it was his decision regarding what portions of the discovery or
other information to use in this case. Fuchel claimed that he had discussions with
Dennerlein, both before and during trial, regarding what information to use. He conceded - /
that use of prior criminal convictions under Pa.R.Evld. §609 is a significant tool to impeach
witnesses for the opposing side.
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The first issue raised by defendant is the failure to use prior convictions and other
information for purposes of impeaching key Commonwealth witnesses. Counsel for
· Dennerlein at the PCRA hearing initially questioned Fuchel about a Commonwealth witness
: by the name of Laura Rankin. Rankin had, and testified to, information regarding defendant
: using the victim's credit/debit to make bank withdrawals. Fuchel testified that it was his
· theory that Robert Campbell, who was a former boyfriend of the victim, committed the
murder. Fuchel continued by stating that he believed that Rankin was actually a helpful
• witness to the defense because she also had information that the defendant used the
. victim's credit/debit card not only at and shortly after the time of the murder, but also
• prior to that time. Rankin also testified that defendant had the PIN for the credit card
further confirming. according to Fuchel, that her testimony would actually indicate that
· defendant did not just use the credit card after the murder, but also before the murder
showing his consented-to access to the card. Fuchel thought this was beneficial testimony
and pointed to Volume IV of the trial transcript, page 30, line 25, through page 341, lines 1·
· . 3. Defense counsel at the PCRA hearing pointed out and entered exhibits to confirm that
Rankin had convictions for retail theft, trademark counterfeiting and theft by unlawful
taking, all of which were crimes of crfmen falsi. The Commonwealth confirmed, on cross·
examination, that Fuchel did not want to impeach Rankin because she was actually
favorable to defendant's position In this case. However, defense counsel noted for the Court
that at Volume IV, page 341 of the trial transcript, Fuchel cross-examined Rankin about
using crack cocaine In the presence of her child, which was a form of impeachment, but yet
chose not to Impeach her credibility with crimes of crimen falsi.
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The second Commonwealth witness who had prior criminal convictions was
. Zachary Valentine. Valentine was defendant's cell mate at the Beaver County Jail, and
' Valentine testified at trial regarding defendant's admissions about his (defendant's)
involvement in the killing.
Fuchel testified that he discussed Valentine with Dennerlein, and according to
, Fuchel, defendant Dennerlein confirmed that some of the statements that Valentine made
, in a report of interview were true. Fuchel claims that he continuously cautioned Dennerlein
not to have conversations with Valentine. Dennerlein never admitted his guilt to Fuchel,
but, according to Fuchel, the defendant did confirm some of the things that Valentine said.
Interestingly and bewildering to the Court was Fuchel's concern about perjury if
defendant testified at trial because defendant allegedly said he was going to lie at trial
regarding the statements that Valentine made. This had very little, if anything, to do with
regard to why Fuchel did not cross-examine Valentine. When pressed by defense counsel at
the PCRA hearing, Fuchel confirmed that he must impeach this type of witness. Valentine
had a conviction for theft by deception, and another conviction in Fayette County. Fuchel
confirmed that he did not question Valentine about these matters, and Puchel Indicated
that it was inadvertent not to use them, that they must have slipped through the cracks and
that his decision not to use them was bad in hindsight
A third Commonwealth witness who testified against defendant was James Sarver.
Sarver was another jailhouse informant, who indicated that defendant admitted to the
killing. Sarver also had a conviction for terroristic threats. Although not a crimen falsi
crime, Sarver was on probation, and Fuchel could have questioned Sarver on whether he
expected any favorable treatment on a probation violation, which was never done. Fuchel
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did question Sarver about a simple assault charge that was dismissed, at Volume V, page
153, of the trial transcript Fuchel conceded that, in hindsight, he should have used the
terroristic threats probationary situation for cross-examination purposes at trial. Fuchel
could not explain his failure to use this Information.
A fourth Commonwealth witness who testified was Kelly Carter. Kelly Carter came
.· to the residence after the crime and was present when Robert Campbell, the person who
Fuchel Intended to pin blame on, saw blood on a dog at the residence and pointed this out
to Kelly Carter. Carter had a conviction for receiving stolen property, which Fuchel did not
use to cross-examine her. Fuchel indicated that he would normally Impeach this type of
witness, but did not do so in this case because he believed that Carter's testimony was
favorable to the defense in that it tended to implicate Campbell.
i .
The fifth Commonwealth witness was Brian Silberger. At trial, Silberger testified
that defendant Dcnnerlein purchased several thousand dollars of crack cocaine from him
(Silberger) at or around the time of the murder. Silherger further testified that when he
(Silberger) questioned Dennerlein concerning the whereabouts of the victim, Oennerfein
told him (Silberger) that the victim was In Maryland visiting her brother. (Trial Transcript,
Vol. IV, p. 247). Silberger had a conviction for burglary and a second conviction for theft by
unlawful taking. Both of these crimes were of a crimen falsi nature and Fuchel could not
recall why he did not use them for cross-examination purposes.
I .
The sixth Commonwealth witness was Patrick Brown. Brown· was the second
'
witness to testify regarding defendant's drug purchases or attempts to purchase drugs at or
around the time of the homicide. (Trial Transcript, Vol. IV, p. 274). Brown conceded that he
was informed by the Commonwealth that he would not be charged for providing drugs to
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the defendant Fuchel questioned Brown regarding the fact that he would not be charged,
going to Brown's bias or motive to testify, but neglected to question him about two pending
cases and the potential for favorable treatment or leniency in those cases based on this
testimony. Fuchel confirmed that it would make sense to question the witness on these
issues, but added that he was not sure he knew about these charges. Fuchel conceded that
the use of such impeachment material could increase the chance of acquittal. -
The second issue raised by defendant in his PCRA petition was testimony that
revealed defendant's incarceration at the time of trial. Fuchel confirmed that a defense
lawyer usually attempts to preclude reference to the client being in jail. Fuchel noted,
however, that it was extremely difficult in this case because of others who testified
regarding admissions made by the defendant and who were in jail with him. Fuchel stated
that he did discuss this issue with the defendant and con finned that the reference to being
in jail was an Important issue.
Fuchel was pressed by present defense counsel, and Indicated that he thinks he
discussed this Issue in detail with the defendant, but was not sure. It was at this point that
Fuchel added that he had problems communicating with the defendant during trial and that
most of the problems for this lack of communication lie with the client (defendant).
According to Fuchel, he gave discovery to the defendant twice. He said he mailed the
discovery the first time, and defendant said he did not receive it This, according to Fuchel,
prompted him to go to the jail personally and deliver the discovery In the presence of the
Assistant Warden. Fuchel said there were two occasions at the jail when he had problems
with defendant Dennerleln.
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Fuchel testified that, at one of these two instances, the defendant became very
,physical and threw the public defender's paralegal, Dionna Steele, to the ground and went
, after Fuchel. Fuchel stated that Dennerlein became verbally abusive on a second occasion .
. He indicated that Dennerleln caused these disruptions.
As to the issue of defendant being in jail, Fuchel added that it was trial strategy for
. this information to come into evidence because Fuchel thought it would be helpful for the
jury to know that the individuals who were testifying were also in jail.
The Commonwealth brought out the fact that they objected when Fuchel went down
this road, and Fuchel asked for a sidebar with the Court at trial and confirmed that he
wanted this information before the jury. The Commonwealth stipulated that the
information came before the jury at the request of defendant with no objection or curative
Instruction requested.
Fuchel was also questioned regarding the third Issue raised by the defendant,
namely, whether Zachary Valentine was acting as an agent of the government when he was
debriefed by the Commonwealth and then placed back in the same cell with the defendant
Present defense counsel asserts that this gives rise to the basis for a motion to suppress the
statements made to Valentine on the basis that Valentine may have been acting as an agent
for the Commonwealth in securing admissions without Miranda warnings. Fuchel said he
did not know that Valentine was questioned and placed back in the same cell and never
considered this Issue or argument
The fourth issue was general failure to cross-examine witnesses. For example,
present defense counsel brought to Fuchel's attention that the Commonwealth only placed
into evidence bank records of the victim at or near the time of the homicide to establish
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that defendant was using the credit/debit card at that time and thereby establish a motive
for the killing. Present defense counsel pointed out that Fuchel neglected to use prior bank
records to indicate that defendant had used the credit/debit card well in advance of the
homicide. ·
2. Benjamin James Dennerlein
The defendant, Benjamin James Dennerleln, also testified at the PCRA hearing .
• Defendant Dennerlein was present throughout the hearing.
Dennerlein testified that Fuchel, with the assistance of another Assistant Public
• Defender, Beth Manifesto, handled his prellmlnary hearing on August 1, 2009. Dennerlein
testified that he never met with Fuchel prior to the preliminary hearing and that Fuchel
•· never came to the jail to see him and never spoke with him In the lock-up prior to the
: preliminary hearing. The first time that defendant Dennerlein actually met with, and saw,
Fuchel was in the courtroom when the preliminary hearing occurred.
The next step In the process was the arraignment In October of 2009. Defendant was
incarcerated between the time of the preliminary hearing and the arraignment, and
testified that he had no contact with Fuchel between the time of the preliminary hearing
and the arraignment
Dennerleln stated that a private investigator. for the public defender's office did
come to the jail in early 2010 to gather information and that Fuchel came to the jail later in
January of 2010 and several times between January of 2010 and the time of trial in July of
2010.
Dennerlein confirmed that paralegal Dionna Steele came to the jail several times to
meet with him, and on one occasion Fuchel was also present As to the Incident in which
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Fuchel claimed that Dennerlein became verbally abusive and physical, the defendant
. testified that Fuchel actually got in his face and that he (defendant) did not get physical
with Fuchel. Dennerleln stated that the incident got very loud and that a jail guard came
. into the room because of the noise. According to Dennerlein, Dionna Steele advised the
guard that the defendant did nothing wrong.
Dennerlein went on to state that, after his conviction in this case, he had to file his
own appeal because Fuchel neglected to timely file the appeal. No post-sentence motion
was filed. Fuchel requested several extensions to file a brief for the appeal, and the appeal
was eventually remanded to the trial court by the Superior Court because of this. Present
defense counsel was appointed and handled the appeal.
Defendant testified that throughout the trial, and early appeal proceedings,
defendant's mother was providing letters to Fuchel, which Fuchel failed to respond to.
: I Defendant filed his own PCRA petition in September of 2013 and present defense counsel
j filed a supplement In April, 2014.
The defendant did address specific comments and allegations raised by Fuchel. As to
the testimony of Zachary Valentine, defendant advised that Fuchel told him that Valentine
was going to testify that defendant confessed to Valentine and that this testimony may hurt
at trial. Defendant testified that he never said he would perjure himself. According to
defendant, he (defendant) requested that Fuchel cross-examine Valentine with
impeachment material, and Fuchel responded that he did not want to complicate the case.
Defendant was adamant about the fact that he pressed Fuchel to impeach Valentine.
As to Laura Rankin, defendant claims that he actually brought some of the crimen
Jalsi convictions to Fuchel's attention. Defendant testified that Fuchel never advised him
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(defendant) that he wouldn't use the Information against Rankin because she was
. favorable. Instead, defendant testified that Fuchel did not even know about Rankin's prior
: convictions until defendant brought them to his attention.
With regard to all of the Commonwealth witnesses who had prior convictions,
defendant testified that he was not aware that a corrupt and polluted source charge was in
order and that Fuchel never requested one. It was only after present defense counsel
, brought this to defendant's attention that he was aware of this.
As to the issue of defendant's incarceration being brought up at trial, defendant
. stated that Fuchel told him during trial that a deputy sheriff would mention that the
• defendant was in jail after a sidebar with the Court, but also stated that Robert Campbell
had already testified to It and therefore it would come In. According to defendant, Fuchel
never discussed this issue with him in advance or whether It was part of the trial strategy.
Defendant claimed that he knew it was not right for this information to come in because the
sheriff went to great lengths to keep the jury from seeing defendant being escorted to the
courtroom by deputy sheriffs in handcuffs and shackles during breaks in the trial.
,· Defendant testified that when it was time for the defense case to begin, defense
counsel called multiple witnesses in a brief period and then turned to him (defendant) and
said "you're next, but I suggest you not testify." Defendant contends that this is the only
time Fuchel discussed with him whether or not to testify.
With regard to the third issue, namely, Zachary Valentine potentially being an agent
of the government, Dennerlein testified Fuchel never discussed this issue with him. It came
to light that Valentine had testified for the Commonwealth in other cases and that neither
defendant nor Fuchel knew this.
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Dennerlein testified that he wrote a letter to the Trial Judge (Dohanich) regarding
failure to receive discovery. Dennerlein claims that Fuchel came to the jail angry after
receiving notice that Dennerlein wrote a letter to the Judge. Defendant claims that Puchel
came Into the cell, crumbled the letter, told him (defendant) never to write a letter to the
Judge again, told defendant that he (Fuchel) was going to trial with what information he
had, and told defendant that he (defendant) was going to burn. After this discourse, Fuchel
left the cell according to the defendant
With regard to the bank records, defendant was aware that the Commonwealth
wanted to focus on bank records for five days after the homicide. Defendant knew that all
of the bank records would show that he had made numerous withdrawals from the victim's
account for a long period of time prior to the incident Defendant claims that he kept
encouraging Fuchel to get the bank records and video surveillance of the ATM machine, but
Fuchel never looked into this matter, stating that it was too late.
3. R2bert Chamberlain
The defendant also called Beaver County Detective Robert Chamberlain as a witness
at the PCRA hearing. Chamberlain was a co-affiant on the criminal charges filed against
Dennerlein, The Detectives' Bureau is part of the Beaver County District Attorney's Office.
Detective Chamberlain was questioned about the involvement of Zachary Valentine in this
case and his use as a witness by the Commonwealth. Chamberlain testified that he did not
know Zachary Valentine prior to the Dennerleln case. Chamberlain testified that he met
with Zachary Valentine twice during this case.
According to Chamberlain, Valentine · first came to the attention of the
Commonwealth when Valentine's wife called the District Attorney's Office and advised that
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a representative of the District Attorney should speak to Valentine regarding the
Dennerlein case. This caused the District Attorney's Office to request transport of Valentine
from the Beaver County Jail to the Beaver County Courthouse for questioning on May 18,
2009, prior to the trial in this case. Chamberlain advised that he secured all of Valentine's
. knowledge and Information in the interview of May 18, 2009 and had no intention of
speaking with him again short of requesting his testimony at the trial. Chamberlain did
• indicate that there eventually arose the need for a second meeting for the purpose of
. having Valentine draw a diagram of the crime scene. Chamberlain indicated that he did not
· know that Valentine had served as a witness for the Commonwealth in prior cases at the
. time he interviewed Valentine in 2009. Chamberlain learned this later through discussion
with another Beaver County Detective, Kim Clements. According to Chamberlain, Valentine
expressed fear of being In the same cell with the defendant, and Chamberlain testified that
he never told Valentine to keep his eyes and ears open about the case or to solicit any
further information from Dennerlein after the Initial Interview on May 18, 2009.
On cross-examination, Chamberlain testified that he was able to corroborate
Valentine's information given during the interview, In fact, Chamberlain stated that he left
the Interview room on several occasions during the Interview to check Valentine's
statement and was able to confirm what he was saying based upon review of phone records
and photos of the crime scene. Chamberlain was the final witness called by the defense.
4. Kim Clements
The prosecution commenced its case on Friday, August 8, 2014. They first called
Detective Kim Clements. Clements testified regarding Zachary Valentine. She stated that
she knew Valentine as a result of his prior testimony for the Commonwealth in another
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homicide case. She did participate in the Valentine interview on May 18, 2009. Clements
testified that she played no part in arranging for Valentine to be Interviewed or in his
. involvement in this case. She confirmed that it was Valentine's wife who brought him to the
attention of the prosecution. Clements also confirmed that neither she nor anyone else
from the prosecution gave Valentine any instructions to pursue further information from
: the defendant or to act as an agent for the Commonwealth.
On cross-examination, Clements admitted that she believed Valentine may come
~
. back with some additional information after the first Interview, but she never instructed
· him to do so. Clements confirmed that there was a second interview of Valentine and also
stated that she was involved in his preparation for testimony at trial.
5. Eu(lene St. Clair
The next Commonwealth witness was Chief Eugene St Clair of the Freedom Police
Department. St. Clair· is now the chief, but was a sergeant at the time of the Valentine
interview. St Clair was the co-affiant on the criminal charges with Detective Chamberlain.
St Clair indicated that he could not recall all of the details of the interview without
referring to his report and was permitted to do so. St Clair did recall that Valentine gave
I
. I
specific information regarding Dennerlein's statement that coincided with evidence found
at the crime scene. St Clair also confirmed that he gave no instructions to Valentine to
solicit any additional information from Dennerlein. The one thing that St Clair testified to
that was inconsistent with Chamberlain and Clements was that St Clair's report raises the
inference that there were a number of interviews with Valentine. There are no other
specifics on dates of interviews. Also, there was additional information In St. Clair's report
that was not in the Chamberlain report, but no major inconsistencies. St Clair did not know
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: Valentine prior to the interview in question. St Clair indicated that he only interviewed
Valentine in the presence of Beaver County detectives, but did recall that he was involved
in interviews on more than one occasion.
6. Dionna Steek
The final witness called by the Commonwealth was Dionna Steele, a paralegal In the
· Beaver County Public Defender's Office. This testimony was the most troubling for the
Court with regard to the PCRA hearing. Reference to Attorney Fuchel's testimony above
reflects that he testified to an Incident at the Beaver County Jail In which Fuchel claimed
that Dennerleln became hostile in an attorney interview room with Dionna Steele present.
Fuchel testified that Dennerlein pushed ~s. Steele to the ground and came after Fuchel, Ms.
Steele gave quite a different version of that event. She recalled that she took an envelope to
the jail from Attorney Fuchel to deliver to Dennerleln. She indicated that she had met with
Dennerlein on a number of occasions at the jail and never had a problem with him. On the
particular occasion when she took the envelope to the Jail for Attorney Fuchel, she was in
. the attorney meeting room with Dennerleln When Fuchel entered the room. She testified
that Fuchel began yelling at the defendant and the defendant began to yell back She
became frightened and stepped back, She actually pushed the emergency button In the
room because of the situation. She stated that Fuchel began to back up and actually backed
into her. Dennerleln thought she may fall and grabbed her arm to prevent her from falling.
Other than this, Steele testified that Dennerlein never touched her. A jail guard came Into
the room, and Steele told the guard that the defendant did not do anything wrong.
On both direct and cross-examination, Steele testified that it was Attorney Fuchel
who got into the defendant's face. She speclfically testified that the situation was escalated
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by Attorney Fuchel pounding on the table. She was startled by Attorney Fuchel's actions
and specifically recalled that he walked toward Dennerlein and got into his (Puchel's) face.
She said that Fuchel was within inches of Dennerlein's face. She stated that Fuchel was very
angry and was clearly the aggressor in this situation. According to Steele's testimony, the
relationship between the two was hostile from that point forward.
Defense counsel pressed Steele on cross-examination and was successful in getting
Steele to say that Dennerlein never gave her a problem throughout the time that she met
with him prior to trial. In fact, she stated that defendant Dennerleln was always respectful.
She stated that Dennerlein was very frustrated in her discussions with him about discovery
and the fact that he (Dennerlein) was not receiving anything from Fuchel. Steele stated that
she told the jail guard that the defendant did nothing wrong in the attorney meeting room
because she believed that and did not want to see Dennerlein receive sanctions at the jail.
The Court questioned Steele in an attempt to compare her testimony with that of
Fuchel, and she specifically undercut Fuchel's version of the events. This came from a
prosecution witness, who actually worked in the same office as Defense Trial Counsel
[Fuchel) at the time of the incident
ANALVSJS
A. Claims Made by the Defendant
The defendant's PCRA petition has raised four claims here. Those claims are as
follows:
1. That defense counsel failed to cross-examine witnesses on
the basis of bias and prior criminal records of crimen falsi or
otherwise;
2. That there was prejudicial error to the defendant in that
there was a reference to defendant's Incarceration during the
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trial of this case placed into evidence by both defense counsel
and the Commonwealth;
3. That defense counsel failed to file a motion to suppress due
to alleged interrogation of Zachary Valentine, who was
asserted to be a government agent; and
4. That defendant was denied the right to confrontation under
the Pennsylvania and United States Constitutions on the basis
of defense counsel's ineffective cross-examination.
These are the contentions that testimony and evidence was received on and are the issues
that will be addressed by the Court in the following subsections. 1
B. Applicable Law
Defendant contends that his trial counsel rendered ineffective assistance and that he
is therefore entitled to either a new trial or dismissal of the charges against him. (mp. 2,
,r13 of defendant's Amended Petition for Post-Conviction Collateral Relief).
"It is well-established that counsel is presumed effective, and to rebut that
. presumption, the PCRA petitioner must demonstrate· that counsel's performance was
deficient and that such deficiency prejudiced him." Commonwealth v. Koehler, 36 A.3d 121,
132 (Pa. 2012) (citing Strickland v. Washington, 466 U.S. 668, 687-91, 104 S.Ct 2052,
_____ 80 L.Ed.2d 674, (1984). The Pennsylvania Supreme Court set forth a
three-part test .to determine whether a defendant has received ineffective assistance of
counsel, with those three parts being as follows: (1) the underlying legal issue has arguable
IDefendant raised other issues in bis original Petition, but these four issues are the only real issues pursued at the
hearing other than some questions regarding the direct appeal, which are discussed i!J.frJ1.
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merit; (2) counsel's actions lacked an objective reasonable basis; and (3) the defendant was
prejudiced by counsel's act or omission. Koehler, 36 A.3d at 132 (clung Commonwealth v.
· Pierce, 515 Pa. 153, ___, 527 A2d 973, 975 (1987). The Court must analyze
defendant's four claims under these parameters.
C. Defendant's Claims 3 (That defense counsel failed to file a
motion to suppress due to alleged Interrogation of Zachary
Valentine, who was asserted to be a government agent) and 4
(A denial of the right to confrontation under the Pennsylvania
and United States Constitutions on the basis of defense
counsel's Ineffective cross·cxamtnatlon) Lack Merit
Defendant's third claim asserts that counsel was ineffective for failure to file a
motion to suppress due to defendant's alleged interrogation, without Miranda warnings, by
a government agent Specifically, he asserts that his Fifth, Sixth and Fourteenth Amendment
rights under the United States Constitution were violated because Zachary Valentine was
acting as an agent for the CommonweaJth at the time that he had discussions with the
defendant about, and the defendant admitted to, the killing of the victim in this case.
Defendant goes on to contend that Valentine was transported to speak with the County
Detectives at the Beaver County Courthouse in May of 2009, and was thereafter sent back
to the jail, allegedly to further question the defendant and obtain admissions from him
without any Miranda warnings.
This claim was not established by the evidence adduced at the PCRA hearing. In fact,
to the contrary, the evidence established that Valentine was only questioned on one
occasion by the detectives, and the uncontradlcted testimony further· established that
Valentine was nm given any instructions to interrogate the defendant or to obtain any
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further admissions from him by the County detectives or police officers who interviewed
_ him. Without evidence to support this claim, it must be denied for lack of arguable merit
Also, defendant's fourth claim, namely that he was denied the right of effective
cross-examination of those witnesses testifying against him because of the lack of cross-
examination by defense counsel, must be denied for lack of merit The major issue raised by
defense counsel at the hearing in August, 2014 was that trial defense counsel failed to use
prior bank statements to cross-examine witnesses and establish that defendant had used
the victim's credit/debit card not only at our around the time of the homicide, but also in
advance of the same, thereby showing that defendant had consented-to access to the card.
The evidence of record establishes, through the testimony of Laura Rankin, that the
defendant was accorded the ability to place this matter before the jury by Rankin's
I.
testimony that the defendant not only had access to the card, but also the PIN as stated in
the Facts section above (Trial Tr., Vol. IV, pp. 340·41). This issue, in the estimation of the
Court, does not arise to a meritorious claim based upon the evidence in the trial transcript
I
and the evidence adduced at the PCRA hearing.
D. Defendant's Second Claim (Alleged Improper Reference
At Trial to Incarceration of Defendant) Must be Denied
Because Defense Counsel had a Reasonable Strategic
Basis for His Action In Admitting the Bvldence, and the
,1ahn Also Lacks Medt
Defendant claims that he was prejudiced in this case by not only the admission of
evidence by the Commonwealth that he was incarcerated prior to and during the trial, but also
the fact that defendant's own counsel elicited this testimony through cross-examination of a
Commonwealth witness. In essence, defendant claims that not only was the evidence brought
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before the jury by testimony, but also that defense counsel did not request a curative instruction
. with regard to the testimony.
The trial transcript and the testimony of Attorney Fuchel at the PCRA hearing established
. that defense counsel asked Commonwealth witness Robert Campbell where he met the
defendant, and the response was that Campbell met the defendant while both were in jail. At the
PCRA hearing, as noted in the Facts section above, Fuchel testified that it was his trial strategy
. for this information to come into evidence because he thought it would be helpful for the jury to
know that Campbell, who was the individual that defense counsel hoped to pin blame on, had
been in jail in the past and, therefore, had a questionable background himself. The
Commonwealth stipulated, at the PCRA hearing, that this information came before the jury at the
request of the defendant with no objection or curative instruction requested. To the Court's
information and understanding, there was no reference as to why the defendant was in jail before
or during the trial. The only reference was to the fact that defendant was in jail.
"Generally, where matters of strategy and tactics are concerned, counsel's assistance is
deemed constitutionally effective if he chose a particular course that had some reasonable basis
designed to effectuate his client's interest" Commonwealth v, Howard, 553 Pa. 266, _
719 A.2d 233, 237 (1998). The Howard Court also noted that a claim for ineffective assistance
of counsel cannot succeed by simply comparing, by hindsight, the trial strategy employed with
alternatives not pursued. "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." Id.In this case, the trial testimony not only included the references noted with regard to the
Campbell testimony noted above, but also included the testimony of Zachary Valentine, who was
j
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defendant's cell mate when admissions regarding the homicide and defendant's involvement in
the same were made .. Valentine's testimony clearly reflected that the admissions were made
while he and the defendant were incarcerated together. (Trial Tr. Vol. V, pp.160-16). This
reference was unavoidable in order to set the stage in which the admissions occurred. Again,
there was no reference to why the defendant was in jail.
Defense counsel made it clear that his strategy was to attempt to paint a sordid picture of
.· Commonwealth witnesses, such as Campbell and Valentine, by not only permitting references to
their past as prisoners when questioned by the Commonwealth, but also by bringing it out
himself when he questioned the witnesses. This trial strategy cannot be said to be unreasonable
under the circumstances.
Furthermore, the Pennsylvania Supreme Court decision in Commonwealth v. Johnson,
838 A.2d 663 (Pa. 2003) is instructive and warrants a determination that this claim lacks merit.
In Johnson, the Pennsylvania Supreme Court specifically stated that "although generally no
reference may be made at trial in a criminal case to a defendant's arrest or incarceration for a
previous crime ... there is no rule in Pennsylvania which prohibits reference to a defendant's
incarceration awaiting trial or arrest for the crimes charged." Id. at·680 (citation omitted). In
Johnson, the Supreme Court also cited Commonwealth v. Wilson, 538 Pa. 485, 506-07, 649 A.2d
435, 445-46 (1994) for the proposition that testimony indicating that the defendant was
incarcerated prior to trial was not improper where the jury could reasonably infer that the
defendant's incarceration was the result of the criminal acts for which the defendant was on trial.
In this case, although there was reference to the fact that defendant was in jail prior to trial, there
was no reference as to why he was in jail, which would give rise to the inference that the
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defendant was detained as a result of the case for which he was on trial and, therefore, proper
under Johnson and Wilson.
For these reasons, defendant's second claim roust be denied.
E. Defendant's First Claim (That Defense Counsel Was
Ineffective for Failing to Cross-Examine Commonwealth
Witnesses for Bias and Prior Criminal Records, Especially
0f Crim en Falsi} is Meritorious But Does Meet the
Prejudice Threshold to Overturn the ~rdkt
This issue was the most troubling to the Court in this case. It was abundantly clear
from defense counsel's testimony that he either completely neglected to cross-examine key
Commonwealth witnesses with regard to crimes of crtmen falsi that could affect their
credibility or that he simply did not take the time to discover that such information existed
for cross-examination purposes. Counsel (Fuchel) used such terms in his testimony as the
.,
prior convictions for crimes of crimen falsi with regard to Zachery Valentine may have
"slipped through the cracks": that in hindsight, "he should have used" the convictions of
crimen falsi to cross-examine James Sarver; that he could not recall why he did not cross-
examine Brian Silberger with his convictions for crimes of er/men falsi; and, most
importantly, his admission that the use of crimes of crimen fa/sl for cross-examination
purposes could increase the chance of acquittal "in a prosecution of this type." Defense
counsel's answers were Inexplicable. He consistently could not explain, in a rational
manner, why he did not question these witnesses with regard to these crimes or did not
know about the crimes so that he could use them in cross-examination.
Moreover, the Court was troubled by the stark contrast of the versions of the events
with regard to the meeting between Attorney Fuchel and defendant at the Beaver County
Jail prior to trial referenced in the Facts section above. Fuchelfrended that the defendant
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became hostile, attacked him and knocked his paralegal to the ground. The defendant
. contested this and gave a different version of the events. The defendant testified that
Fuchel was the instigator, that Fuchel got in his (defendant's) face and that he (defendant)
was merely trying to assist the paralegal who was knocked backward. When the
Commonwealth called the paralegal (Dionna Steele) to the stand during the PCRA hearing,
the Court was expecting to hear her confirm Fuchel's version of the events. Instead, she
confirmed, to the letter, the defendant's version of the events, specifically testifying that the
defendant grabbed her arm to prevent her from falling while Fuchel was clearly the
instigator. This paralegal described the relationship between Fuchel and the defendant
from that point forward as hostile. It must also be remember~d that the defendant had to
· file his own appeal after conviction, that attorney Fuchel missed filing deadlines with the
Superior Court, that new counsel had to be appointed to handle the appeal and the PCRA
because of Fuchel's negligence, and that the defendant actually filed his own PCRA petition.
All of these factors lead the Court to the conclusion that the first two prongs of the PCRA
burden of proof requirements are met by this claim, namely, first, that the underlying
argument has merit, and second, that counsel (Fuchel) had no reasonable strategic basis for
his action or inaction. This requires the Court to consider, for purposes of this claim, only
the third requirement, namely, whether the petitioner suffered prejudice because of
counsel's Ineffectiveness.
The Pennsylvania Supreme Court, in Commonwealth v. D'Amato, 579 Pa. 490,
--~ 856 A.2d 806, 812 n.S (2004), stated as follows:
The 'prejudice' prong. under the PCRA, is satisfied when the
petitioner demonstrates that the alleged ineffectiveness so
undermined the truth-determining process that no reliable
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adjudication of guilt or innocence could have taken place, see 42
Pa.C.S. §9543(a)(ii), in other words, that there is a reasonable
probability that, but for counsel's act or omission, the outcome of
the proceeding would have been different
See also, Commonwealth v. Miller, 819 A.2d 504, 517 (Pa. 2012); Commonwealth v. Tilley, 566
Pa 312, , 780 A.2d 649, 652 (2001); and Commonwealth v. Kimball, 555 Pa. 299, 312-
13, 724 A.2d 326, 333 (1999). Thus, the Court must determine, under this standard, whether
counsel's ineffectiveness so undermined the truth-determining process in this case that no
r
reliable adjudication of guilt or innocence could have taken place.
While defendant's claim docs have merit, it only relates to a portion of the
Commonwealth's case against him. The failure to cross-examine these witnesses, with regard to
prior convictions, relates only to admissions allegedly made by the defendant and his use of the
victim's credit/debit card for purposes of furthering his drug habit.2 If this was the extent of the
evidence against defendant, this claim would surely be meritorious and result in a new trial.
However, there was significant other evidence against the defendant that was not affected by this
lack of cross-examination ..
For example, there was testimony regarding defendant's statement to Beaver County
Detectives Patrick and Clements that is detailed at length at pages 11-13 of this Opinion. That
testimony reflects that defendant attempted to explain away his involvement in this matter and
provide quasi-alibi evidence to exonerate himself. The defendant specifically stated that he took
the victim to work on the night of the incident and then went back to pick her up, but she was not
at work. Video evidence from the victim's employer clearly showed that the victim never came
to work on that date. Defendant also stated that he was watching a hockey game with his
2
The Court also notes that even th.ough these matters were not covered in cross-examination of the witnesses, other
matters were covered, such as the incarcerated status of some of the witnesses and drug selling or dependency status
of others that cast them in an unfavorable light in the jury's eyes and thereby called !heir credibility into question.
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girlfriend at the victim's residence on the night in question. This portion of the statement was
directly contradicted by the girlfriend who denied that she ever went to the victim's residence on
that date.
Moreover, the Commonwealth presented records of A TM transactions and cellular
telephone calls, in chronologicaJ order, that are detailed at pages 13 through 16 of this Opinion.
· As stated at page 16 of this Opinion, this information, together with the known observations of
the defendant from witnesses and video displays of the defendant at bank, ATM and retail
locations, placed the defendant in the area of the victim's residence during the hours when she
would have been killed.
Most importantly, a DNA examination of blood found on the defendant's blue jeans
matched the victim's blood. That same DNA analysis could not exclude the blood of the victim
as a potential contributor to a blood stain found on the defendant's shoes and could not exclude
the defendant as a potential contributor of blood found on a knife in the kitchen, which was
apparently the murder weapon. Dr'. James Smith, a forensic pathologist, testified that the victim
. J died as a result of stab wounds to the neck .
This evidence, when coupled with an abundance of other circumstantial evidence recited
in the Facts section of this Opinion between pages 2 and 20, clearly overcomes any claim of
prejudice made by the defendant in this claim of his petition.3 The Court, in its discretion, does
1
The Court is cognizant of the fact that the record reflects that defendant filed his own appeal (Docket Entty No.
57); that after the appeal was tiled. defense counsel (/FucheO failed to file a brief on defendant's behalf and was
admonished by the Pennsylvania Superior Court for failure to file said brief in an Order of June 23, 2011 and given
30 additional days to file the brief, but still failed to file a brief (Docket Entry No. 77); and that failure to file an
appeal or an appellate brief constitutes abandonment of counsel and, therefore, per se, ineffectiveness.
Commonwealth v. Brill, 83 A.2d 198, 203 (Pa. Super. 2013), clling Commonwealth v. Burkett, 5 A.3d 1260, 1277
(Pa. Super. 2010). However, Fuchcl was removed from the case and new counsel was appointed. This new counsel
pursued the appeal with the Superior Court, filed a brief and requested allowance of appeal from the Pennsylvania
Supreme Court, thereby alleviating the prejudice. Moreover, defendant alluded to the deficiencies on the last page
(p. 44) of his original PCRA motion, but presented no evidence regarding this at the August, 2014 hearing other than
to obtain an admission from Fuchel that be (Fuchel) failed to file the appellate brief.
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not believe that the alleged ineffectiveness by this issue, alone, so undermined the truth-
determining process that no reliable adjudication of guilt or innocence could have taken place
and, therefore, denies the petition on the basis of this claim.
CONCLUSION
For the foregoing reasons, defendant's PCRA Petition will be denied. An appropriate
Order will be entered.
BY THE COURT:
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