Com. v. Dawson, J. ( 2021 )

J-S03025-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN DAVID DAWSON :
:
Appellant : No. 66 WDA 2020
Appeal from the PCRA Order Entered December 17, 2019
In the Court of Common Pleas of Somerset County Criminal Division at
No(s): CP-56-CR-0000306-2009
BEFORE: DUBOW, J., MURRAY, J., and STRASSBURGER, J.*
MEMORANDUM BY MURRAY, J.: FILED: APRIL 6, 2021
John David Dawson (Appellant) appeals from the order denying his
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§ 9541-9546. After careful review, we affirm.
In a prior decision, we summarized the factual and procedural history of
this case as follows:
On November 9, 1981, [Appellant’s] wife, Kathleen Dawson (“the
victim”), left her place of employment at Windber Hospital at
around 11:00 p.m. Shortly after midnight, the victim’s vehicle
was found on fire on Cable Hill Road in Conemaugh Township. The
police responded to the fire and found the victim’s body inside the
burning vehicle. A blackjack[1] was found at the scene and the
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* Retired Senior Judge assigned to the Superior Court.
1A blackjack is weapon, specifically a “short bludgeon consisting of a heavy
head, as of metal, on an elastic shaft or with a flexible handle.” Black’s Law
Dictionary 154 (5th ed. 1979). Although more recent editions of Black’s Law
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police observed signs of a struggle. The medical examiners
subsequently found evidence of blunt force trauma to the victim’s
head. At approximately 12:20 a.m., [Appellant] called the police
to inquire about his wife’s whereabouts. [Appellant] indicated that
she should have been home by that time. The police did not arrest
[Appellant] at this time.
Following years of investigation, [Appellant’s] nephew, Duane
Schmidt (“Schmidt”), implicated [Appellant] in the murder of the
victim in early 2009. Another witness, Don Eller (“Eller”), linked
the blackjack found at the scene of the crime to [Appellant].
Thereafter, on April 18, 2009, the Commonwealth charged
[Appellant] with criminal homicide, criminal conspiracy, and two
counts of arson. A preliminary hearing was held at which Schmidt
and one of the lead investigating officers, Officer Robert Berkebile,
testified. Following the preliminary hearing, Schmidt died and
Officer Berkebile suffered a stroke. [Appellant] then filed a Motion
for pre-trial relief, seeking, inter alia, a dismissal of the
proceedings due to the expiration of the statute of limitations,
motion to suppress, and a motion to exclude any prior statements
or testimony of deceased individuals and to exclude testimony of
any witnesses at any previous proceedings. The trial court denied
[Appellant’s] Motion for pre-trial relief.
The case proceeded to a jury trial in March 2011. On April 5,
2011, the trial court granted [Appellant’s] Motion for judgment of
acquittal on the conspiracy and arson counts. On April 8, 2011,
the jury found [Appellant] guilty of first-degree murder. The trial
court sentenced [Appellant] to life in prison. [Appellant] filed
post-sentencing Motions, which were denied.
[Appellant] filed a timely Notice of appeal. The trial court ordered
[Appellant] to file a Pennsylvania Rule of Appellate Procedure
1925(b) concise statement. [Appellant] filed a timely Concise
Statement.
____________________________________________
Dictionary no longer include a definition for a blackjack (presumably because
they have become less common), the definition from 1979 is proximate to the
1981 date of the murder in this case.
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Commonwealth v. Dawson, 61 WDA 2012, at *1-3 (Pa. Super. Feb. 28,
2013) (unpublished memorandum). This Court affirmed Appellant’s judgment
of sentence, and the Pennsylvania Supreme Court denied Appellant’s petition
for allowance of appeal. Commonwealth v. Dawson, 162 WAL 2013 (Pa.
Nov. 7, 2013).
On February 5, 2015, Appellant filed a timely pro se PCRA petition.
Thereafter, Appellant filed several pro se pleadings, including a motion for an
evidentiary hearing, motion for discovery, and a memorandum of law in
support of his petition. The PCRA court appointed counsel, who subsequently
requested to withdraw due to a conflict of interest; the PCRA court granted
the motion to withdraw and appointed new counsel. On June 23, 2015, the
Commonwealth filed a motion to dismiss Appellant’s PCRA petition. 2 Following
a hearing, the PCRA court denied the Commonwealth’s motion on October 6,
2015.
On January 8, 2016, Appellant, while still represented by counsel, filed
a pro se supplemental memorandum of law in support of his petition.
Recognizing that Appellant was still represented when he filed his pro se
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2 The Commonwealth mistakenly claimed Appellant’s PCRA petition was
untimely because it failed to factor the time allowance for Appellant to seek
review with the United States Supreme Court. See U.S. Sup. Ct. R. 13
(“Unless otherwise provided by law, a petition for a writ of certiorari to review
a judgment in any case, civil or criminal, entered by a state court of last resort
. . . is timely when it is filed with the Clerk of this Court within 90 days after
the entry of the judgment.”).
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pleading, the PCRA court ordered “that no action be taken on the pending
Post-Conviction Relief Act Petition pending receipt of information from
[counsel] regarding [Appellant’s] intentions relative to representation. Order,
1/15/16. On May 11, 2016, Stephen M. Misko, Esq., entered his appearance
as private counsel for Appellant; Appellant’s court-appointed counsel filed a
petition to withdraw on May 26, 2016, which the PCRA court granted on June
3, 2016.
On October 2, 2017, the PCRA court granted Appellant’s request to file
an amended PCRA petition. On November 30, 2017, Appellant, through
counsel, filed an amended petition raising 12 claims of ineffective assistance
of counsel. The PCRA court held a hearing on November 8, 2018, November
9, 2018, and May 21, 2019. Thereafter, both parties filed briefs in support of
their positions. On December 17, 2019, the PCRA court denied Appellant’s
petition. Appellant filed this timely appeal, in which he presents the following
eight issues:
Whether the [PCRA] court erred when it denied Appellant’s
request for a new trial based on ineffective assistance of
trial/appellate counsel:
1. in failing to call character witnesses;
2. in failing to investigate and call witnesses that would
have established that the blackjack found at the crime
scene belonged to another individual;
3. in failing to [] file a Motion to Suppress and/or Motion
in Limine relating to the blackjack lineup;
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4. in failing to [] object to the testimony of Don Eller
regarding the blackjack he observed at Appellant’s
apartment in the 1970’s;
5. in allowing the jury to know that Appellant was
incarcerated and/or requesting a curative instruction;
6. in failing to appeal the trial court’s abuse of discretion
in allowing Gerald Blough to testify that Appellant
claimed it was easy to commit a murder in
Conemaugh Township;
7. in failing to effectively appeal the trial court’s abuse of
discretion in permitting the preliminary hearing
testimony of Duane Schmidt to be read into the record
at trial; and,
8. in failing to effectively appeal the trial court’s denial
of Appellant’s Motion to Dismiss due to pre-arrest
delay.
Appellant’s Brief at 22.
We begin with our standard of review:
This Court analyzes PCRA appeals in the light most favorable to
the prevailing party at the PCRA level. Our review is limited to
the findings of the PCRA court and the evidence of record and we
do not disturb a PCRA court’s ruling if it is supported by evidence
of record and is free of legal error. Similarly, we grant great
deference to the factual findings of the PCRA court and will not
disturb those findings unless they have no support in the record.
However, we afford no such deference to its legal conclusions.
Where the petitioner raises questions of law, our standard of
review is de novo and our scope of review is plenary. Finally, we
may affirm a PCRA court’s decision on any grounds if the record
supports it.
Commonwealth v. Benner, 147 A.3d 915, 919 (Pa. Super. 2016) (quoting
Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015)).
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All of Appellant’s issues assail the effectiveness of trial counsel, Joseph
B. Policicchio, Esq. (Attorney Policicchio).3 With respect to these claims, our
Supreme Court has explained:
It is well-settled that counsel is presumed to have been effective
and that the petitioner bears the burden of proving counsel’s
alleged ineffectiveness. Commonwealth v. Cooper, 941 A.2d
655, 664 (Pa. 2007). To overcome this presumption, a petitioner
must establish that: (1) the underlying substantive claim has
arguable merit; (2) counsel did not have a reasonable basis for
his or her act or omission; and (3) the petitioner suffered
prejudice as a result of counsel’s deficient performance, “that is,
a reasonable probability that but for counsel’s act or omission, the
outcome of the proceeding would have been different.” Id. A
PCRA petitioner must address each of these prongs on appeal.
See Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa.
2007) (explaining that “appellants continue to bear the burden of
pleading and proving each of the Pierce elements on appeal to
this Court”). A petitioner’s failure to satisfy any prong of this test
is fatal to the claim. Cooper, 941 A.2d at 664.
Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (citations
modified).
In his first issue, Appellant argues Attorney Policicchio was ineffective
for failing to call character witnesses to testify at trial on Appellant’s behalf.
Appellant’s Brief at 29-32. Appellant asserts, “Attorney Policicchio never
brought up the topic or discussed character witnesses with him, nor did he
explain the legal significance of character witnesses.” Id. at 29. Appellant
further states:
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3 Attorney Policicchio also represented Appellant on direct appeal.
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The Commonwealth’s case against Appellant was circumstantial in
nature, as no direct evidence linked him to the crime scene.
Appellant had no criminal history, no other prior acts of charged
or uncharged violence, and police were never called to his
residence for a domestic dispute. Knowing this, Attorney
Policicchio unilaterally made the decision not to use character
witnesses (“was not part of our defense”).
* * *
By not calling character witnesses, the jury was deprived of
hearing positive and substantial character trait evidence of
Appellant which, in and of itself may have been sufficient to raise
a reasonable doubt and result in an acquittal.
Appellant’s Brief at 30-31.
The relevant law provides:
The failure to call character witnesses does not constitute per se
ineffectiveness. In establishing whether defense counsel was
ineffective for failing to call witnesses, appellant must prove: (1)
the witness existed; (2) the witness was available to testify for
the defense; (3) counsel knew of, or should have known of, the
existence of the witness; (4) the witness was willing to testify for
the defense; and (5) the absence of the testimony of the witness
was so prejudicial as to have denied the defendant a fair trial.
Commonwealth v. Treiber, 121 A.3d 435, 463-64 (Pa. 2015) (citation and
paragraph break omitted).
At the PCRA hearing, Attorney Policicchio contradicted this claim.
Attorney Policicchio testified:
It was something that we had discussed and something that we
decided not to do for a very specific tactical reason. And I have
to tell you that the issue of character witnesses in this case is – is
– understand, [Appellant] had lived in the state of Florida for some
26 or 27 years. The issue then becomes: What character
witnesses are you going to be calling? Are you going to call
someone from Jacksonville or are you going to call a local
character witness? If you call a local character witness, the
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District Attorney is going to be – is going to have a field day with
that because the District Attorney is going to ask you whether or
not that local character witness is familiar with his present
character.
If you call a Florida character witness, you’re going to get into the
same sort of difficulties. Does the Florida character witness know
anything about what [Appellant’s] character was when he was in
Pennsylvania?
This is the first issue.
Then we have all kinds of other problems attentive with character
witnesses.
N.T., 11/9/18, Vol. 2 at 41. Attorney Policicchio stated that Appellant had a
prior criminal record, and he was concerned the Commonwealth would cross-
examine a character witness or Appellant regarding Appellant’s convictions if
he presented good-character evidence. Id. at 42. Similarly, to refute a
character witness’ testimony that Appellant was non-violent, Attorney
Policicchio expressed concerns regarding a jailhouse informant who could
testify to threats Appellant made while incarcerated, and a witness who “said
[Appellant] had conversations with them in a bar saying something to the
effect that [Appellant] wanted to do harm to his wife if – if they would – there
was conversation to that effect.” Id. at 44.
Based on the foregoing testimony, which the PCRA court credited,
Appellant’s first issue lacks arguable merit because Appellant failed to
demonstrate that trial counsel lacked a reasonable basis for his actions. See
Treiber, supra; see also Commonwealth v. Hull, 982 A.2d 1020, 1023
(Pa. Super. 2009) (“[c]ounsel has a strategic basis for not calling character
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witnesses if he has a legitimate reason to believe that the Commonwealth
would cross-examine the witnesses concerning bad-character evidence.”).
Appellant’s second, third and fourth issues pertain to the murder
weapon – a blackjack – found at the crime scene. In his second issue,
Appellant argues Attorney Policicchio was ineffective for failing to investigate
and call witnesses who would have testified that the blackjack belonged to
another individual. Appellant’s Brief at 32-42. Specifically, Appellant
advances a theory that another individual, Richard J. Murray, committed the
murder.4 Thus, because Attorney Policicchio failed to present evidence to
support this theory, he rendered ineffective assistance. Id.During the PCRA hearing, Attorney Policicchio testified at length about
his defense strategy concerning the blackjack. Attorney Policicchio stated:
. . . I was prepared to use some of that information, and we were
prepared to not utilize some of it. The issue of the blackjack was
an issue where we knew that the Commonwealth was going to be
calling Don Eller to the stand, and Eller was a guy who identified
for the police the blackjack as being owned by [Appellant].
We had reason to believe, however, that Mr. Eller was going to
testify that it was not [Appellant’s]; and as it ended up at trial, he
did indeed testify that it was not [Appellant’s].
____________________________________________
4 The Commonwealth provided documents in discovery which indicated Murray
was not home when the murder occurred, and could not name an alibi witness.
Murray’s then-girlfriend, Lois Ference, told Pennsylvania State Police she
noticed a burn mark on Murray’s cheek the day after the murder. N.T.,
11/9/18, Vol. 2 at 57, Ex. B. When she asked Murray what happened, Murray
explained the burn was “from a radiator that blew up.” Id. There were also
reports that Murray owned a small blackjack. Id. In addition, Ference
identified the blackjack as belonging to Murray. Id.-9-
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Again, our job is to establish or to ensure that the Commonwealth
can’t prove his guilt beyond a reasonable doubt. We have the
Commonwealth’s own witness who says that that blackjack was
not [Appellant’s].
Had Eller testified that the blackjack was [Appellant’s], then we
would have called -- we could have called Trooper Penatzer, who
I think was available or at least we could have gotten him there.
I believe Trooper Marker and other individuals who would have
been able to testify that at a separate lineup, the blackjack was
identified as being that of Mr. Murray.
So did we use that information? No, I don’t think we had to
because, at trial, we were able to establish, through the
Commonwealth’s own witness, that there was nothing located
physically at the scene that connected [Appellant] to the scene.
N.T., 11/9/18, Vol. 2 at 64-65. Attorney Policicchio went on to explain that
he hesitated to offer evidence linking Murray to the crime because “[t]he jury
could have concluded . . . that [Appellant] was somehow complicit with
someone else, that is, Mr. Murray. It would have been dangerous for us to
get involved with Murray.” N.T., 5/21/19, Vol. 3 at 31.5
Instantly, evidence from the PCRA hearing demonstrated that if
Attorney Policicchio put forth evidence of Murray’s connection to the murder,
Appellant would have been implicated as a co-conspirator. Attorney
Policicchio employed a defense strategy he reasoned would protect Appellant
from incurring additional charges, while also defending the criminal homicide
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5 The Commonwealth had charged Appellant with conspiracy, but the charge
was thrown out after the close of the Commonwealth’s case-in-chief “because
there was no testimony about any conspiracy during the Commonwealth’s
case in chief[.]” N.T., 11/9/18, Vol. 2 at 92.
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charge. With regard to the second reasonable basis prong for ineffectiveness,
“we do not question whether there were other more logical courses of action
which counsel could have pursued; rather, we must examine whether
counsel’s decisions had any reasonable basis.” Commonwealth v.
Washington, 927 A.2d 586, 594 (Pa. 2007). Here, it was reasonable for
Attorney Policicchio to evade Appellant’s role as a co-conspirator, particularly
where the Commonwealth’s own witness, Don Eller, repudiated his
identification of the blackjack. Accordingly, a reasonable basis existed for
Attorney Policicchio’s defense strategy regarding the blackjack, and we
discern no abuse of discretion by the PCRA court in rejecting this claim.
In his third and fourth issues, Appellant asserts Attorney Policicchio was
ineffective for failing to file a motion to suppress Don Eller’s identification of
the blackjack and for failing to object to Eller’s testimony at trial. Appellant
explained that in 2009, Don Eller told Pennsylvania State Police (PSP) that
sometime in the 1970s he witnessed Appellant holding a blackjack at
Appellant’s apartment. PSP presented Eller with a lineup of three blackjacks.
The first two blackjacks were obtained from Troopers assigned to
the Mounted Division. These blackjacks were similar in
appearance, manufactured, black leather, roughly the same
length and style, and not as worn as the third blackjack. The third
blackjack, which was found at the crime scene, appeared to be
homemade, was very worn, thirty years old, and had black tape
on it. The first two looked “brand new” and looked nothing like
the third blackjack.
Appellant’s Brief at 42-43 (citation omitted). Eller identified the third
blackjack – the older blackjack discovered at the crime scene – as the one
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belonging to Appellant. Appellant claims Attorney Policicchio should have filed
a motion to suppress the blackjack identification as unduly suggestive.
Identification of inanimate objects does not afford a defendant the same
protections as the identification of a person.
[T]here is no basis for applying the identification procedures
applicable to suspects to testimony identifying inanimate objects
and we decline to extend cases protecting the accused’s rights to
a fair pre-trial identification to the pre-trial identification of
physical evidence. There is a difference between an identification
of a defendant and of an inanimate object. The due process
concerns implicated in identification of a defendant are not
implicated in the identification of a vehicle. Identification of an
accused tends to be direct proof of the case against him,
while that of an inanimate object is only indirect proof of
the defendant's guilt . . . .
Thus[, in Commonwealth v. Chmiel, 889 A.2d 501, 523–24
(Pa.2005),] the Court found that “the risks inherent in
identification of inanimate objects go to the weight and
sufficiency of the evidence instead of admissibility,” and
such identification evidence is properly submitted to the
jury.
Commonwealth v. Crork, 966 A.2d 585, 588–89 (Pa. Super. 2009)
(emphasis added). Accordingly, Appellant’s claim that Attorney Policicchio
was ineffective for failing to file a motion to suppress the identification of the
blackjack as unduly suggestive lacks merit. To the contrary, Eller’s
identification of the blackjack was admissible.
Further, we recognize the unusual and difficult task for the PSP to
produce for identification other blackjacks that were similar to the blackjack
recovered at the crime scene so as to avoid an “unduly suggestive” lineup.
The blackjack recovered at the crime scene was described as “worn,” “thirty
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years old” and “homemade.” It would be no simple task for the PSP to
replicate such a weapon, especially considering that Eller’s identification
occurred nearly 30 years after the murder, and 40 years after Eller observed
Appellant with a blackjack at Appellant’s apartment.
Appellant also complains that Attorney Policicchio was ineffective for
failing to object to Eller’s testimony. Eller testified that sometime in the 1970s
he observed Appellant handling a blackjack, but – contrary to his statement
to PSP in 2009 – Eller testified that the blackjack found at the crime scene
was not the blackjack he saw Appellant handling. Appellant generally cites
Pennsylvania Rules of Evidence 401 and 403 to assert that Eller’s testimony
was “irrelevant and prejudicial to Appellant’s right to a fair trial and should
have been objected to by trial counsel. Attorney Policicchio had no reasonable
basis in not objecting and allowing this testimony and, as such, his actions so
undermined the truth-determining process that no reliable adjudication of
guilt or innocence could have taken place.” Appellant’s Brief at 51. We
disagree.
Our Supreme Court has stressed, “boilerplate allegations and bald
assertions of no reasonable basis and/or ensuing prejudice cannot satisfy a
petitioner’s burden to prove that counsel was ineffective.” Commonwealth
v. Paddy, 15 A.3d 431, 443 (Pa. 2011). Here, Appellant’s cursory argument
fails to satisfy the requirement of demonstrating actual prejudice. Appellant
does not cite the record, and briefly references Pa.R.E. 401 and 403 to support
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his argument. Because of this wholesale deficiency, and in light of the
standard articulated above, we conclude the PCRA court correctly determined
that Appellant’s claim of ineffectiveness as to trial counsel’s failure to object
to Eller’s testimony is without merit.
In his fifth issue, Appellant alleges Attorney Policicchio was ineffective
for failing to object to references of Appellant’s incarceration while awaiting
trial. Appellant argues:
While there is no rule in Pennsylvania which prohibits reference to
a defendant’s incarceration awaiting trial or arrest for the crimes
charged, the court must assure the defendant a fair trial. By
allowing the jury to know that Appellant had been incarcerated for
over two years in the Somerset County Jail, the jury could easily
infer that he was guilty of one or more of the offenses he was
charged with by the Commonwealth.
Appellant’s Brief at 54 (citations omitted).
During trial, there were three references to Appellant’s incarceration.
The first reference was made by the prosecutor, in the context of the
testimony of Robert Grake, a jailhouse informant who testified about
conversations he had with Appellant while the two were in the Somerset
County Jail. The second reference was also made by the prosecutor, and
related to the playing of a telephone recording of Appellant when he was being
held in Florida at the Duvall County Jail. Finally, the third reference was made
by Attorney Policicchio during closing arguments. Attorney Policicchio stated:
Now, [Appellant] was presumed to be innocent the day the
charges were filed. He was presumed to be innocent the day he
was arrested. He’s been presumed to be innocent during the
entire time that he’s been in jail for these past roughly two years.
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He has been presumed to be innocent as he sits here today. And
that presumption of innocence continues until such time as the
Commonwealth meets its burden of proving him guilty.
N.T., 4/8/11, at 6.
The trial court issued curative instructions as to the first and second
references. Addressing the testimony of Robert Grake and Appellant’s
incarceration in the Somerset County Jail, the court advised:
Ladies and Gentlemen, Mr. Grake is the next witness, and it is my
understanding that he is going to testify regarding some
conversations that he had with [Appellant] while they were both
incarcerated in the Somerset County Jail.
[Appellant] was being held in the jail on these charges and on
these charges alone and not any other criminal activity alleged or
proved.
N.T., 4/1/11, at 99-100.
Regarding the reference to Appellant’s incarceration in Duvall County,
the court stated:
[Appellant] was in the Duvall County Jail because he was picked
up on the charges that are filed here in Somerset County and was
being held prior to being returned here.
Please don’t draw any kind of inference or adverse inference
regarding his guilt or innocence from the resultant fact that he
was at least in jail at that point in time because that is the normal
process. When an out-of-state arrest warrant is issued, the
people in the receiving state, when they find the person, they
bring him or her to jail until such time as the authorities that have
asked for his or her return address that.
So this is normal procedure for anyone who would be arrested on
criminal charges out of state.
N.T., 4/8/11, at 8.
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Appellant contends that while the court’s instruction to explain
Appellant’s incarceration in the Duvall County Jail “may have been adequate .
. . its instruction, prior to the testimony of Robert Grake . . . was wholly
inadequate.” Appellant’s Brief at 53. We are not persuaded by this argument.
Our Supreme Court has explained 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.”
Commonwealth v. Johnson, 838 A.2d 663, 680-81 (Pa. 2003). Here, the
jury could have reasonably inferred that the references to Appellant’s
incarceration related to the charges for which he was being tried. Thus, the
evidence “did not either expressly or by reasonable implication convey the fact
of a prior criminal offense unrelated to the criminal episode for which
[Appellant] was then on trial.” Commonwealth v. Wilson, 649 A.2d 435,
446 (Pa. 1994). Moreover, a jury is presumed to follow a trial court’s
cautionary instructions. See Commonwealth v. Jones, 668 A.2d 491, 504
(Pa. 1995). This issue lacks merit.
Finally, with respect to Attorney Policicchio’s reference to Appellant’s
incarceration during closing arguments, this claim is waived for lack of
development. While Appellant quotes Attorney Policicchio’s reference to
Appellant’s incarceration, he fails to discuss this issue within the framework of
an ineffective assistance of counsel claim. Appellant also provides no citation
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to pertinent legal authority. Commonwealth v. Rush, 959 A.2d 945, 950-
51 (Pa. Super. 2008) (“[I]t is the appellant’s obligation to present developed
arguments and, in so doing, apply the relevant law to the facts of the case,
persuade us there were errors, and convince us relief is due because of those
errors. If an appellant fails to do so, we may find the argument waived.”).
In his sixth issue, Appellant asserts Attorney Policicchio was ineffective
for failing to challenge on appeal the testimony of Gerald Blough. At trial,
Gerald Blough testified that during a conversation with Appellant, Appellant
remarked, “[i]f you are going to kill somebody – if you are going to murder
somebody, do it in Conemaugh Township.” N.T., 3/31/11, Vol. 5 at 66-67.
Blough further testified that Appellant named four unsolved homicides that
occurred in Conemaugh Township to support his statement. Id. at 67.
Attorney Policicchio objected to this testimony, but the trial court overruled
the objection. On direct appeal, Attorney Policicchio did not re-raise the issue.
Appellant contends Attorney Policicchio’s failure to raise the issue on appeal
constituted ineffective assistance of counsel.
This ineffectiveness claim fails because Appellant has not demonstrated
a reasonable probability that had Attorney Policicchio successfully raised the
trial court’s ruling to admit the testimony of Gerald Blough on appeal, the
result of the proceeding would have been different. See Commonwealth v.
Sneed, 899 A.2d 1067, 1084 (Pa. 2006) (to demonstrate prejudice, the
petitioner must show there is a reasonable probability that, but for counsel’s
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error or omission, the result of the proceeding would have been different). On
direct appeal, Appellant litigated a sufficiency of the evidence claim, and this
Court determined it lacked merit. Dawson, 61 WDA 2012, at *12. In
rejecting Appellant’s sufficiency challenge, we concluded — without
considering Blough’s statement — that the evidence was sufficient to support
Appellant’s murder conviction. The Commonwealth presented ample evidence
of Appellant’s guilt, irrespective of Blough’s testimony, and thus, Appellant
cannot prove the prejudice prong of his collateral claim that Attorney
Policicchio rendered ineffective assistance for failing to challenge Blough’s
testimony on direct appeal.
In his seventh issue, Appellant contends Attorney Policicchio was
ineffective for failing to “preserve his objection to the Schmidt testimony being
read into the record and, as such, may have effectively waived his right to do
so on appeal.” Appellant’s Brief at 65. At Appellant’s preliminary hearing,
Duane Schmidt, Appellant’s cousin, provided testimony linking Appellant to
his wife’s murder. Because Schmidt died after the preliminary hearing, but
before trial, Appellant sought the exclusion of Schmidt’s testimony.6 Appellant
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6 The trial court permitted portions of Schmidt’s testimony from the
preliminary hearing to be read into the record at trial. Specifically, the trial
court admitted testimony from Schmidt claiming he had unrestricted access
to the crime scene and observed a blackjack on the ground. N.T., 6/4/09, at
45. He also testified that he immediately smelled a foul odor when Appellant
arrived at his grandmother’s house the morning after the murder. Id. at 125-
26. In addition, Schmidt alleged that Appellant had burn marks and blisters
on both of his cheeks. Id. at 88-91.
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asserts that Schmidt’s death foreclosed Appellant’s opportunity to impeach
Schmidt’s testimony with information obtained from discovery.
Relevant to his claim, Appellant acknowledges that Attorney Policicchio
objected to Schmidt’s preliminary hearing testimony being read at trial, and
filed two separate motions – a motion in limine and a post-sentence motion –
seeking to exclude Schmidt’s testimony; Attorney Policicchio also raised the
issue on direct appeal. Appellant’s Brief at 64. Appellant argues, however,
that because this Court adopted the trial court’s reasoning as its own in
disposing of the issue on appeal, Attorney Policicchio was “ineffective in
developing this issue at the trial level, preserving it for appeal, and was further
ineffective as appellate counsel in his failure to adequately litigate it as an
appellate issue.” Id. at 65.
This claim is belied by the record. Appellant’s motion in limine, post-
sentence motion and argument on direct appeal all demonstrate that Attorney
Policicchio preserved, litigated, and developed the issue of the admissibility of
Schmidt’s preliminary hearing testimony. Trial counsel cannot be deemed
ineffective merely because this Court reached the same conclusion as the trial
court and adopted its reasoning. Accordingly, this claim lacks merit.
In his eighth and final issue, Appellant alleges Attorney Policicchio was
ineffective for failing to make a credible argument on appeal challenging the
trial court’s denial of Appellant’s motion to dismiss due to the 28 year “pre-
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arrest delay.” In his brief filed with this Court on direct appeal, Attorney
Policicchio advanced the following argument:
In the instant case, several individuals had died from the date of
the alleged incident, all of which could very well have impaired the
Appellant’s ability to defend himself. Moreover, two witnesses
apparently came forward in early 2009 who supported the
Commonwealth’s desire to press forward with the criminal charges
some 28 years after the date of the incident. These two witnesses
were the aforementioned Duane Schmidt and one Don Eller.
There was absolutely nothing presented of record to indicate that
either Schmidt or Eller were not known to the Commonwealth
from the date of the incident or that they had secreted themselves
from the knowledge of either the Conemaugh Township Police
Department or the Pennsylvania State Police. Both of these
witnesses could have come forward with the information that they
possessed, and the Commonwealth could have certainly
interviewed both of them during the intervening 28-year time
period.
Additionally, Appellant contends that the death of Schmidt further
evidences the prejudice that the 28-year time lapse presented.
The only opportunity that Appellant had to cross examine Schmidt
was at the time of the preliminary hearing, which said cross
examination did not present the Appellant with a meaningful
examination of Schmidt. At the time of the preliminary hearing,
Appellant did not have complete discovery information which
would have given him the opportunity to fully cross examine
Schmidt in a manner that would have been beneficial to the
defense and beneficial for presentation at trial.
Appellant’s Brief at 11, Commonwealth v. Dawson, 61 WDA 2012 (Pa.
Super. Feb. 28, 2013).
Instantly, Appellant asserts that his claim of counsel’s ineffectiveness
“in failing to effectively appeal” the issue pre-arrest delay has arguable merit.
He states:
While the delay in prosecution clearly did not hurt the
Commonwealth’s case, it was catastrophic to the defense. Four
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key defense witnesses died during this delay, to wit, Ethel Dawson
(Appellant’s mother), John M. Dawson (Appellant’s father), Elaine
Schmidt (Appellant’s sister) and Darrell “Doc” Dawson
(Appellant’s brother). All of these witnesses would have been able
to testify if there was a foul odor emanating from Appellant or at
his parent’s trailer; the presence or absence of a burn mark on
Appellant’s face; the temperature of Appellant’s residence the
morning of November 10, 1981; and, the time period Appellant
first appeared at his parent’s home the night of November 9,
1981, or morning of November 10, 1981.
The other bi-product of the delay in prosecution was the death of
Duane Schmidt between the time of the Preliminary Hearing and
Trial. Duane Schmidt testified that had he been interviewed by
the Conemaugh Township Police or PSP back in 1981, he would
have immediately told them the truth about what he observed and
smelled the morning of November 10, 1981. However, the police
never returned his phone call.
Appellant’s Brief at 72-73 (footnotes and citations omitted). Appellant’s
argument in this appeal reflects the same argument Attorney Policicchio made
to this Court on direct appeal. Appellant is essentially attempting to re-litigate
the argument by assailing Attorney Policicchio’s advocacy — and lack of
success—on direct appeal.
The law is clear that ineffectiveness claims are distinct issues from those
raised on direct appeal, and must be reviewed under the three-prong
ineffectiveness standard. See Commonwealth v. Collins, 888 A.2d 564,
573 (Pa. 2006). In analyzing Appellant’s issue in the context of trial counsel’s
ineffectiveness, we find that it lacks arguable merit. As this Court found in
Appellant’s direct appeal, speculative claims of possible prejudice due to the
passage of time are insufficient to demonstrate prejudice in a claim of pre-
arrest delay. Dawson, 61 WDA 2012, at *4 (citing Commonwealth v. Neff,
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860 A.2d 1063, 1074 (Pa. Super. 2004)). Our Supreme Court made clear in
Collins, supra, that although we will analyze a distinct claim of
ineffectiveness based on an issue decided on direct appeal, in many cases the
claim will fail for the same reasons it failed on direct appeal. Id. at 574-75.
This Court addressed the issue of pre-arrest delay in Appellant’s direct appeal,
and in this appeal, Appellant has not demonstrated arguable merit to his claim
that trial counsel’s advocacy constituted ineffective assistance. Thus, this final
issue lacks merit.
For the above reasons, we conclude the PCRA court did not err in
rejecting Appellant’s claims of ineffectiveness of counsel. Accordingly, we
affirm the order denying Appellant’s petition for relief.
Order affirmed.
Judge Dubow joins the memorandum.
Judge Strassburger did not participate in the consideration or decision
of this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/06/2021
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