Com. v. Vo, T. ( 2023 )

J-S07045-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
THUY VAN VO :
:
Appellant : No. 2314 EDA 2022
Appeal from the PCRA Order Entered August 18, 2022
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0000472-2011
BEFORE: DUBOW, J., KUNSELMAN, J., and KING, J.
MEMORANDUM BY KING, J.: FILED AUGUST 1, 2023
Appellant, Thuy Van Vo, appeals from the order entered in the Bucks
County Court of Common Pleas, which denied his first petition filed under the
Post Conviction Relief Act (“PCRA”).1 We affirm.
In its opinion, the PCRA court accurately sets forth the relevant facts
and procedural history of this case. Therefore, we have no reason to restate
them.
Appellant raises the following issues for our review:
Did the [PCRA] court err in its denial of Appellant’s PCRA
claim that he was denied his constitutionally guaranteed
right to effective representation, and trial counsel was
ineffective when she failed to properly advise Appellant of
his right to testify, failed to prepare him to testify, and failed
to provide to him sufficient information and advice so as to
allow Appellant the ability to make a knowing, intelligent
____________________________________________
1 42 Pa.C.S.A. §§ 9541-9546.
J-S07045-23
and voluntary decision whether or not to testify?
Did the [PCRA] court err in its denial of Appellant’s PCRA
claim that he was denied his constitutionally guaranteed
right to effective representation, and trial counsel was
ineffective based upon multiple instances of attorney error
resulting in cumulative prejudice which deprived Appellant
of a fair trial and resulted in his conviction, which would not
have occurred had the following errors not been committed:
Trial counsel did not obtain surveillance video from the
Parx Casino which would have displayed that
Appellant did not, as alleged by the detectives,
gamble on a date leading up to the murder, thus
depriving Appellant of the ability to show the jury that
the police and prosecution were not entirely accurate
in their recitation of the events, which could have
raised reasonable doubt;
Trial counsel did not locate, retain and call at trial a
competent expert witness in the area of cell phone
transmissions and cell tower technology, relying
instead upon Manfred Schenk, who was wholly
unqualified to provide such testimony in a convincing
or adequate manner;
Trial counsel failed to object or seek to preclude the
police detective from testifying about cell phone
transmissions and cell tower technology when the
detective had no expertise in such area and was not
qualified as an expert in such specialized areas of
telecommunications;
(Appellant’s Brief at vi-vii).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s determination
and whether its decision is free of legal error. Commonwealth v. Conway,
14 A.3d 101, 108 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795(2011). This Court grants great deference to the findings of the PCRA court if
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the record contains any support for those findings. Commonwealth v. Boyd,
923 A.2d 513, 515 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d
74 (2007). If the record supports a post-conviction court’s credibility
determination, it is binding on the appellate court. Commonwealth v.
Dennis, 609 Pa. 442, 17 A.3d 297 (2011).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Diane E.
Gibbons, we conclude Appellant’s claims merit no relief. The PCRA court
opinion comprehensively discusses and properly disposes of the claims raised.
(See PCRA Court Opinion, filed September 9, 2022, at 10-19) (finding: there
was no arguable merit to Appellant’s claim that trial counsel failed to advise
Appellant of his right to testify because trial counsel credibly testified that she
met with Appellant numerous times, typically has at least two conversations
with her clients about the right to testify, and would never tell a client that he
or she could not testify; regarding counsel’s failure to obtain surveillance
footage from Parx Casino, Appellant failed to demonstrate that any
surveillance footage existed and that it was retained by Parx Casino at time
of trial; court also credited trial counsel’s testimony that her investigator
contacted Parx Casino to obtain information about whether Appellant was
present at casino during the relevant times and she would have used any
helpful evidence she obtained at the trial; Appellant failed to establish that
trial counsel was ineffective for failing to call expert in area of cell phone
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J-S07045-23
transmissions and cell tower technology because Appellant failed to identify
expert who was available and willing to testify to information that would have
been helpful to Appellant’s defense; Appellant also failed to identify specific
testimony offered by Detective Rudisill that Appellant alleges was
impermissible expert testimony; Detective Rudisill’s testimony about content
of Appellant’s cell phone records and location of cell phone towers required no
specialized knowledge and was permissible lay testimony;2 Appellant’s
individual claims lack merit and cannot form basis to establish cumulative
prejudice). Accordingly, we affirm on the basis of the PCRA court’s opinion.
Order affirmed.
____________________________________________
2 Additionally, we note that trial counsel objected multiple times on the
grounds that certain inquiries were beyond Detective Rudisill’s expertise.
(See N.T. Trial, 12/7/2011, at 195-97). The court sustained one of the
objections and overruled the other two, ensuring that the questions were
limited to reviewing the content of Appellant’s cell phone records and the
locations of cell phone towers, information which did not require specialized
knowledge of cell tower technology. (See id.) The court further instructed
the jury as follows to clear up any confusion on its ruling:
The Court: … I just want the jury to be clear on--in my
ruling concerning the telephone records that the detective
has testified very clearly about what the telephone calls and
the towers that relate to those telephone calls, his testimony
or statements concerning why certain calls aren’t reflected
in the records is not admissible. But he can certainly testify
that they’re not included in the records.
(Id. at 199).
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J-S07045-23
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/1/2023
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Circulated 07/17/2023 03:15 PM
IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA : No. CP-09-CR-472-2011
V.
THUY VAN VO
r? r
-u
)
OPINION
Petitioner, Thuy Van Vo, filed an appeal from this Court's order dated Aigiast, 20
denying his Second Amended Petition for Relief Pursuant to the Post Conviction lief Act
("PCRA"), 42 Pa.C.S. § 9541 et seq., following ahearing held on August 31, 2021.
Factual and Procedural History
The factual and procedural history of this case was summarized by this Court for purposes
of direct appeal as follows:
At the time of her death, the victim, thirty-year-old An-Hnan Thi Huynh,
nicknamed "Annie," lived on Kendrick Street in Philadelphia with her six-year-old
son and her parents. She was the owner and operator of Kim's Nails located on
Second Street Pike in Upper Southampton, Bucks County.
The victim was killed on Monday morning, November 8, 2010. At 7:56
that morning, the victim dropped her son off at First Children's Academy, located
less than one mile from Kim's Nails. The videotape retrieved from the school by
investigators depicted the victim walking her son to his classroom, saying goodbye
and then leaving the building. N.T. 12/6/11, p. 174; N.T. 12/7/11, pp. 14, 16;
Exhibit C-2. At approximately 9:00 a.m., two employees and acustomer arrived
at Kim's Nails. When they drove into the shopping center where Kim's Nails is
located, they found the victim's car parked in the fire lane in front of the salon. The
lights inside the salon were on. The front and the back doors of the salon were
locked. Upon entering the salon, the witnesses observed the victim's keys, her
jacket and acup of iced coffee at the victim's workstation located in the front of the
salon. The bathroom door of the salon was locked. When the employees could not
locate the victim, they called 911. N.T. 12/6/11, pp. 51-58, 80-81, 118-120.
Upper Southampton Police Officer Ryan Hand responded to the scene
shortly after 9:15 a.m. Officer Hand forced his way into the bathroom and found
the victim lying on the floor unconscious. N.T. 12/6/11, p. 141. She showed clear
signs of having been involved in aphysical altercation. Her hair was disheveled,
an earring had been torn from her ear and there was asmall amount of blood on her
lips and hands. N.T. 12/6/11, pp. 172, 174; N.T. 12/12/11, p. 120. The officer
attempted to resuscitate her without success. She was subsequently pronounced
dead on scene by emergency medical personnel. N.T. 12/6/11, pp. 142-143.
Forensic pathologist Dr. Ian Hood performed the autopsy. Dr. Hood
determined the cause of death to be strangulation. He testified that blood flow to
the brain would have to be interrupted for aminimum of three to four minutes for
death to result from manual strangulation. N.T. 12/12/11, p. 105. Based upon his
findings during the autopsy, Dr. Hood testified that it was his opinion that the victim
was strangled, began breathing on her own aminute or so later, and then was
strangled asecond time, causing her death. N.T. 12/12/11, pp. 104-105.
Investigation of the scene revealed no signs of forced entry and no evidence
of astruggle inside the salon. N.T. 12/6/11, p. 148. The victim's purse, her two
cell phones and the start-up cash for the salon had been taken. N.T. 12/6/11, p. 167.
The victim's cell phones were found in aplastic bag near adumpster at the opposite
end of the shopping center. The victim's purse was never recovered. N.T. 12/6/11,
p. 219.
At approximately 10:00 a.m., police were advised that [Petitioner],
identified as the victim's boyfriend, had arrived on scene. NT. 12/6/11, pp. 180,
209. Testimony at trial established that he arrived after receiving atelephone call
from the victim's employees who had advised him that they could not locate the
victim. Although he had been told that the victim was missing and could observe
that police and emergency medical personnel were in the salon, [Petitioner] did not
appear to be distraught. He did not ask the police about the victim's whereabouts,
her condition or what was happening inside the salon. N.T. 12/6/11, p. 211.
[Petitioner] showed no emotion when he was told that the victim had died. N.T.
12/6/11, p. 214.
In speaking with police, [Petitioner] identified himself as the victim's
boyfriend. N.T. 12/6/11, p. 214. He told investigators that he met the victim in
approximately 2008. N.T. 12/7/11, p. 77. [Petitioner] described the victim's daily
routine, stating that she would arrive at the salon prior to 9:00 a.m. He stated that
she would park in the front of the salon, let herself in through the front door with
her key, walk to the rear of the salon, remove the bolt from the inside of the back
door and then open the back door. He stated that the victim would then move her
car to the parking lot located behind the salon. N.T. 12/6/11, pp. 185-186.
[Petitioner] recited the victim's social security number, date of birth, and cell phone
numbers from memory. N.T. 12/6/11, p. 214. [Petitioner] told adetective that he
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last saw the victim at her salon on Saturday, November 6, 2010, two days before
her death. N.T. 12/6/11, p. 22.
The police investigation revealed the following events leading up to the
murder. On September 27, 2010, the victim opened abusiness bank account for
Kim's Nails at the Southampton branch of Citibank. N.T. 12/8/11, pp. 128, 132-
133. [Petitioner] was present when the victim opened that account. At the time it
was opened, the victim was the only person authorized to withdraw funds from the
account. N.T. 12/8/11, p. 128. However, on October 30, 2010, the victim signed a
form authorizing [Petitioner] to make withdrawals. N.T. 12/18/11, pp. 131, 133-
134; Exhibit C-28. At the time she did so, the victim specifically requested that the
bank call her to obtain her permission before allowing [Petitioner] to withdraw any
money. N.T. 12/8/11, pp. 132, 141. When [Petitioner] was advised that the victim
had made that request, [Petitioner] told the bank teller, " Oh yeah, Annie doesn't
trust me." N.T. 12/8/11, p. 160. Despite assurances that she would be called if
[Petitioner] sought to withdraw funds from the account, no such calls were made.
N.T. 12/8/11, pp. 158-159.
In the days leading up to the murder, [Petitioner] withdrew large sums of
money from the account. On November 1st,eight days before the murder,
[Petitioner] made two withdrawals; one for $ 1,700, one for $ 1,800. On November
4th , [Petitioner] withdrew $ 1,500 in large bills. The next day, November 5th ,
[Petitioner] withdrew $2,000 in hundred dollar bills. On Saturday, November 6th,
[Petitioner] withdrew $3,000 in hundred dollar bills. N.T. 12/8/11, pp. 135-136,
142-144; Exhibits C-26, C-27. During this period of time, one of the bank tellers
noticed achange in [Petitioner]'s behavior. That witness testified that during her
initial contact with [Petitioner], he was pleasant and talkative. She stated that in
the days leading up to murder, [Petitioner] became very withdrawn, soft spoken
and began to stare at his feet during their interactions. N.T. 12/8/11, pp. 161-163.
Cell phone and cell tower records placed [Petitioner] in the area of Parx
Casino, located on Street Road in Bensalem Township, Bucks County on the same
dates [Petitioner] made the withdraws from the victim's bank account. On
November 5th ,at 10:53 a.m., [Petitioner] withdrew $2,000 from the Citibank
account. At 1:44 p.m. and 1:45 p.m. on that date, [Petitioner]'s cell phone accessed
the cell tower adjacent to Parx Casino. A services manager from Parx Casino
testified that [Petitioner] used his Parx Casino player's club card at the casino at
approximately 4:02 a.m. on Saturday, November 6th. N.T. 12/9/11, pp. 220-221.
At 10: 17 a.m. on that date, [Petitioner] withdrew $3,000 from the Citibank account.
At 10:35 a.m. and on several occasions between 1:30 and 1:38 p.m., [Petitioner]'s
cell phone again accessed the cell tower near Parx Casino. N.T. 12/12/11, pp. 171-
172; Exhibit C-29.
Evidence presented at trial also established that immediately prior to the
murder, at the same time [Petitioner] was removing money from the victim's bank
account, the victim was angry and upset with [Petitioner]. At 4:26 p.m. on
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Saturday, November 6`n,two days before the murder, [Petitioner] called the victim
and left the following message:
"Hello, my wife. Wife, don't be upset. Forgive me. Iapologized
already, OK? What's happened has happened, ok? Whatever Idid
to make you upset, you know. Ialready told you I'm sorry, ok? I
promise if we * * we should talk together, my wife, ok? Ihope you
aren't upset, OK? Ithank you alot, OK? OK, Ilove you. Bye."
Exhibit C-23.
During the early morning hours of the following day, Sunday, November
7`n, the victim sent atext message to another male acquaintance, Khoung Ly, stating
that she wanted to ask him something. Mr. Ly called the victim immediately after
receiving this text message. During that conversation, the victim told Mr. Ly that
"somebody knew her account and Social Security number, bank account, and took
all [her] money." The victim asked Mr. Ly what she should do. He told her to take
legal action. N.T. 12/9/11, pp. 140-142; Exhibit C-44.
Later that same morning, Mr. Ly drove to the victim's residence and took
her and her family out to eat, after which Mr. Ly, the victim and their children then
went to Chuck E. Cheese. At that time Mr. Ly was driving aMercedes. N.T.
12/9/11, pp. 12-13, 135-136. At 10:53 that morning, [Petitioner] called the victim
and left the following message:
"Someone called me, Ianswered but they hung up. It was cut off.
I'm afraid if Italk with you, you will be upset... Don't think alot,
you know, you will have aheadache. So Ididn't want to call. Ifeel
ashamed, really suffering, because Idid you wrong. Don't think
bad about me, you know, right? So Iapologize/ask for forgiveness,
Nhan. What we lost we can put back together again. Idon't know
what to do, how to make you feel ok. Ihope you will have
sympathy for me, don't be upset. Iapologize to you. OK? Call me
to talk. OK, Nhan. Bye-bye."
Exhibit C-23.
[Petitioner] called the victim five times on Sunday evening. At 5:48 p.m.,
he called the victim and left the following message:
"Excuse me, Nhan, did Khoung come and visit with you today? I
know he came and visited you. He came in his Mercedes."
Exhibit C-23.
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During each of these calls, [Petitioner]'s cell phone accessed the cell tower closest
to the victim's home. N.T. 12/12/11, pp. 174-175. At 7:40 Sunday night,
[Petitioner] again called the victim and left the following message:
"Excuse me, Nhan, call me back! [not clear] ... on Tuesday, not on
Monday. OK? OK? Bye."
Exhibit C-23. This call was made from the vicinity of [Petitioner]'s
home. N.T. 12/12/11, pp. 174-175.
The victim's father testified that on that Sunday evening, he heard the victim
arguing with someone on the telephone. He stated that after that argument, his
daughter was very sad. N.T. 12/9/11, pp. 21-22. That night, the victim left a
voicemail message on [Petitioner]'s cellular telephone. She told [Petitioner], "Iam
suffering and in pain beyond heaven." N.T. 12/7/11, p. 225; N.T. 12/8/11, p. 62.
On the morning of her murder, atearful victim told her mother, "He took
all of [my] money." N.T. 12/9/11, pp. 13, 17. At 7: 17 a.m., [Petitioner] made a
call from his cell phone. Cell tower records established that at the time he made
this call, his cell phone accessed tower 32261, the cell tower located across the
street from the murder scene. N.T. 12/7/11, pp. 189-192; N.T. 12/12/11, pp. 163,
175; Exhibits C-9, C-18. [Petitioner]'s cell phone accessed that same tower when
he made acall from the murder scene at the request of police who were attempting
to locate the victim's cell phones. N.T. 12/12/11, p. 176.
On the night of the murder, investigators searched [Petitioner]'s car and
found over $3,700 in cash inside the center console. N.T. 12/7/11, pp. 83, 100.
On November 10, 2010, asearch warrant was executed at [[Petitioner]'s
home. N.T. 12/12/11 p. 29. During the search of [Petitioner]'s room, investigators
found $ 1,830 in cash under [Petitioner]'s mattress. N.T. 12/12/11, p. 36. During
that search, the contents of atrash can located in [Petitioner]'s bedroom were seized.
N.T. 12/7/11, p. 165; Exhibits C-15, C-16. Among those items found in that trash
can, police found aset of white linen gloves. N.T. 12/12/11, pp. 28-29; Exhibit C-
33. The gloves were inside out. N.T. 12/12/11, p. 43. On afinger of one of the
gloves, there was asmall stain. That stain tested presumptively positive for blood.
N.T. 12/9/11, pp. 38-44. There was insufficient quantity to conduct further
serological testing. N.T. 12/9/11, pp. 43. The DNA profile obtained from that stain
matched the DNA profile for the victim in all 16 areas tested. N.T. 12/9/11, p. 95.
The probability of randomly selecting an unrelated individual exhibiting this
combination of DNA types is approximately 1in 1.9 quintillion from the Caucasian
population, approximately 1 in 8.5 sextillion from the African-American
population and approximately 1in 3.8 quintillion from the Hispanic population.
N.T. 12/9/11, p. 86.
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A human head hair was found inside that same glove. Examination of the
hair revealed that it had been forcibly pulled from the scalp. NT 12/12/11, p. 43.
The DNA profile from that hair matched the DNA profile of [Petitioner] in all 16
areas tested. The probability of randomly selecting an unrelated individual
exhibiting this combination of DNA types is approximately 1in 7.9 sextillion from
the Caucasian population, approximately 1 in 250 sextillion from the African-
American population and approximately 1 in 3.7 sextillion from the Hispanic
population. N.T. 12/9/11, pp. 94-95.
Following the murder, [Petitioner] made numerous false, inconsistent and
incriminating statements. First, [Petitioner] lied about his whereabouts on the
morning of the murder. At the time of the murder, [Petitioner] lived on Godfrey
Avenue, in Philadelphia, approximately 10.2 miles from Kim's Nails. NT 12/12/11,
pp. 153-154. When interviewed by police, [Petitioner] stated that he awoke at
approximately 7:00 a.m. He claimed that he then made aphone call to Pediatric
Dental Association to cancel an appointment that the victim had made for her son.
He stated that after making that call he ate breakfast, watched television and took a
shower. N.T. 12/6/11, p. 224. Contrary to his assertion, [Petitioner] did not call the
dentist's office from his Philadelphia home. [Petitioner]'s cell phone records
established that [Petitioner] did make a call from his cell phone at 7:17 a.m.
However, cell tower records established that at the time he made this call, his cell
phone accessed tower 32261, the cell tower located across the street from the scene
of the murder. N.T. 12/7/11, pp. 189-192; N.T. 12/12/11, pp. 163, 175; Exhibits
C-9, C-18. [Petitioner] was, therefore, in the immediate vicinity of Kim's Nails
immediately prior to the murder not at home as he claimed.
[Petitioner] also lied about his whereabouts on Sunday, November 7, 2010.
He told police that on that date, he was at home all day, leaving only briefly to get
gas. N.T. 12/7/11, p. 219. He asserted that while at home, he called the victim on
his cell phone. N.T. 12/7/11, pp. 219-220. Cell phone/cell tower records and
evidence that [Petitioner] knew that Mr. Ly had been to the victim's home and had
driven a Mercedes that day established that [Petitioner] was, in fact, in the
immediate vicinity of the victim's home when he called her on Sunday afternoon.
N.T. 12/12/11, pp. 174-175; Exhibit C-23.
[Petitioner] also made false and contradictory statements about the money
he took from the victim's bank account. At the time he made the withdrawals, he
told abank employee that he was merely juggling money between accounts. He
also told that employee that the money was going to be used to open another salon.
N.T. 12/8/11, pp. 160-161. When questioned by police about the large cash
withdrawals, [Petitioner] claimed that he gave the money to the victim for a "land
deal" in Vietnam. N.T. 12/7/11, pp. 215-216.
[Petitioner] also provided false information about the money found in his
car. As previously stated, on the night of the murder [Petitioner] had $3,700 in cash
in the center console of his car. At that time, [Petitioner] told investigators that his
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sister was on vacation in Vietnam, that she asked him to retrieve the money from
her home so that her husband, who allegedly had agambling problem, would not
have access to that money. [Petitioner] claimed that he was planning to wire the
money to his sister. N.T. 12/7/11, pp. 83-84. A few days later, [Petitioner] claimed
that he had, in fact, wired the $3,700 to his sister. N.T. 12/7/11, pp. 105-106. At
trial, [Petitioner]'s sister admitted that she never received money from [Petitioner]
while she was in Vietnam. N.T. 12/8/11, p. 81.
[Petitioner] also made anumber of inconsistent statements regarding his
relationship with the victim at the time of the murder. During his interview on the
night of the murder, [Petitioner] claimed that he and the victim had not been
arguing. N.T. 12/7/11, p. 79. At alater interview, [Petitioner] asserted, "Annie and
Inever argue." N.T. 12/7/11, p. 163. When confronted with the fact that the
investigators already knew there had been an argument, [Petitioner] admitted that
he and the victim had argued about the casino the night before her murder. N.T.
12/7/11, pp. 163-164. [Petitioner] then asserted he and the victim had argued about
the scheduling of the dental appointment. N.T. 12/7/11, p. 223. [Petitioner]
claimed that he was not jealous of the victim spending time with Mr. Ly on Sunday
before her death. His conduct and the content of his voicemail message on that date
demonstrated otherwise. N.T. 12/7/11, p. 84.
On November 9, 2010, the police went to [Petitioner]'s home. When they
were finally admitted into the residence [Petitioner] told the detectives that he had
just taken fifty Benadryl pills and that he wanted to die. N.T. 12/7/11, pp. 112,157-
159.
On November 12, 2010, [Petitioner] was arrested for the murder of An-
Hnan Thi Huynh.
Opinion, 10/26/12, at 1-10 (footnotes omitted).
On December 13, 2011, following atrial by jury, Petitioner was convicted of First Degree
Murder, 18 Pa.C.S. § 2501(a); 18 Pa.C.S. § 2502(a) and Theft by Unlawful Taking, 18 Pa.C.S. §
3921(a). On February 2, 2012, Petitioner was sentenced to life imprisonment, with aconsecutive
term of incarceration of 2'/2 to 5years. On February 13, 2012, Petitioner filed apost-sentence
motion. By order dated June 29, 2012, Petitioner's post-sentence motion was denied. Petitioner
thereafter filed notice of appeal to the Superior Court of Pennsylvania, which affirmed the
judgment of sentence on July 23, 2013. On August 22, 2013, Petitioner filed aPetition for
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Allowance of Appeal with the Supreme Court of Pennsylvania. On January 22, 2014, the Supreme
Court denied the Petition.
On November 25, 2014, Petitioner filed a timely pro se Petition for Post-Conviction
Collateral Relief. On December 2, 2014, this Court appointed Elissa Heinrichs, Esquire, to
represent Petitioner in the PCRA proceedings. On April 7, 2015, Petitioner filed acounseled
Amended Petition for Post-Conviction Relief. On March 31, 2016 (docketed April 3, 2017), upon
consideration of her resignation, this Court vacated Ms. Heinrichs' appointment and appointed
Dean Malik, Esquire, to replace Ms. Heinrichs and to represent Petitioner. On March 21, 2017,
Mr. Malik filed aMotion for Court Approval of Expert Services. By order docketed January 12,
2018, this Court denied the Motion for Court Approval of Expert Services. That same day, this
Court vacated the appointment of Mr. Malik as he was no longer serving as Court-
Appointed/Conflict Counsel. This Court appointed Patrick J. McMenamin, Jr., Esquire to
represent Petitioner. On April 13, 2018, Petitioner filed aSecond Amended Petition for Post-
Conviction Collateral Relief. The Commonwealth filed its Answer on June 15, 2018. On August
31, 2021, aPCRA hearing was held. Following the hearing, the parties submitted memoranda of
law. On August 18, 2022, this Court entered an order denying Petitioner's Second Amended
Petition for Relief Pursuant to the Post Conviction Relief Act.
Analysis
Petitioner raised the following issues in his Second Amended Petition for Post-Conviction
Relief:
1. Petitioner was denied his constitutionally guaranteed right to effective
representation, and trial counsel was ineffective when she failed to properly
advise Petitioner of his right to testify, failed to prepare him to testify, and failed
to provide him sufficient information and advice so as to allow Petitioner the
ability to make aknowing, intelligent, and voluntary decision whether or not to
testify;
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a. Petitioner told trial counsel he wanted to testify ( See Exhibit "A",
Petitioner's Affidavit))
b. Trial counsel did not discuss the pros and cons of Petitioner
testifying in his own defense, or not (See Exhibit "A");
c. Trial counsel did not tell Petitioner he had the right to testify (See
Exhibit "A");
d. Trial counsel specifically told Petitioner he was not going to testify
(See Exhibit "A"); and,
e. There is no evidence in the record that Petitioner was advised that
he had the right to testify or that Petitioner knowingly, intelligently,
and voluntarily waived his right to testify (See, N.T., Trial,
December 12 & 13, 2011).
2. Petitioner was denied his constitutionally guaranteed right to effective
representation, and trial counsel was ineffective based upon multiple instances
of attorney error resulting in cumulative prejudice which deprived Petitioner of
afair trial and resulted in his conviction, which would not have occurred had
the following errors not been committed:
a. Trial counsel did not obtain surveillance video from the Parx Casino
which would have displayed that Petitioner did not, as alleged by
the detectives, gamble on a date leading up to the murder, thus
depriving Petitioner of the ability to show the jury that the police
and prosecution were not entirely accurate in their recitation of the
events, which could raise reasonable doubt (See Exhibit "A");
b. Trial counsel did not locate, retain, and call at trial, acompetent
expert witness in the area of cell phone transmissions and cell tower
technology, relying instead upon Manfred Schenk, who was wholly
unqualified to provide such testimony in aconvincing or adequate
manner (See, N.T., December 9, 2011, pp. 155 - 217);
c. Trial counsel failed to object or seek to preclude the police detective
from testifying about cell phone transmissions and cell tower
technology when the detective had no expertise in such area and was
not qualified as an expert in such specialized areas of
telecommunications (See, N.T., December 7, 2011, pp. 188 - 206);
d. Where the failure of individual claims is grounded in the lack of
prejudice individually, the cumulative prejudice from those
individual claims may properly be assessed at hearing (see,
Commonwealth v. Koehler, 36 A.3d 121 (Pa. 2012)).
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e. The aforementioned claims have arguable merit;
f. Trial counsel's aforementioned errors lacked a reasonable basis
designed to effectuate the client's interests; and,
9. As aresult of trial counsel's cumulative errors Petitioner suffered
prejudice to the effect that there is areasonable probability of a
different outcome but for counsel's error(s).
Second Amended Petition for Post-Conviction Relief, 4/13/18, at ¶¶ 38-39.
To obtain PCRA relief, apetitioner must plead and prove by apreponderance of the
evidence that his conviction or sentence resulted from one or more of the enumerated grounds for
relief set forth in 42 Pa.C.S. § 9543(a)(2). Commonwealth v. Reid, 99 A.3d 470, 481 (Pa. 2014).
Petitioner relies on 42 Pa.C.S. § 9543(a)(2)(ii), ineffective assistance of counsel.
The standards applicable to claims of ineffective assistance of counsel are well established.
Counsel is presumed to be effective and the burden is on the petitioner to prove otherwise.
Commonwealth v. Smith, 17 A.3d 873, 883 (Pa. 2011). This presumption arises from the
recognition that it is "all too easy for acourt, examining counsel's defense after it has proved
unsuccessful, to conclude that a particular act or omission of counsel was unreasonable."
Strickland v. Washington, 466 U.S. 668, 689 ( 1984). Therefore, when evaluating ineffectiveness
claims, "judicial scrutiny of counsel's performance must be highly deferential." Id., 466 U.S. at
671. A reviewing court must make every effort "to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from
counsel's perspective at the time." Id.To prevail on an ineffectiveness claim, apetitioner must satisfy, by apreponderance of the
evidence, the performance and prejudice standard set forth in Strickland. Commonwealth v.
Cousar, 154 A.3d 287, 296 (Pa. 2017). Specifically, the petitioner must establish that:
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(1) The underlying claim is of arguable merit; (2) no reasonable basis existed for
counsel's action or failure to act; and (3) the petitioner suffered prejudice as a
result of counsel's error, with prejudice measured by whether there is areasonable
probability that the result of the proceeding would have been different.
Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001)).
A petitioner bears the burden of proving all three prongs of this test. Commonwealth v.
Watley, 153 A.3d 1034, 1040 (Pa.Super. 2016). A claim of ineffectiveness may be denied by a
showing that the petitioner's evidence fails to meet any of these prongs. Commonwealth v.
Washington, 927 A.2d 586, 594 (Pa. 2007). A court is not required to analyze the elements of an
ineffectiveness claim in any particular order of priority; if a claim fails under any necessary
element of this test, the court may proceed to that element first. Cousar, 154 A.3d at 297. "[I]f a
claim fails under any required element of the Strickland test, the court may dismiss the claim on
that basis. Commonwealth v. Housman, 226 A.3d 1249,1260-61 (Pa. 2020).
Under the first prong of the analysis, apetitioner must demonstrate that his claim has
arguable merit. Trial counsel may not be deemed ineffective for failing to raise ameritless claim.
Commonwealth v. Keaton, 82 A.3d 419, 426 (Pa. 2013).
Under the second prong of the analysis, defense counsel is afforded broad discretion to
determine tactics and strategy. Commonwealth v. Fowler, 670 A.2d 153 (Pa.Super. 1996).
"Generally, where matters of strategy and tactics are concerned, counsel's assistance is deemed
constitutionally effective if he chose aparticular course that had some reasonable basis designed
to effectuate his client's interests." Commonwealth v. Puksar, 951 A.2d 267, 277 (Pa. 2008)
(quoting Commonwealth v. Miller, 819 A.2d 504, 517 (Pa. 2002)). The U.S. Supreme Court
explained areviewing court's role in making this determination when it stated:
[t]he court should keep in mind that counsel's function, as elaborated in prevailing
professional norms, is to make the adversarial testing process work in aparticular
case. At the same time, the court should recognize that counsel is strongly
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presumed to have rendered adequate assistance and made all significant decisions
in the exercise of reasonable professional judgment.
Strickland, 466 U.S. at 690; Commonwealth v. Lesko, 15 A.3d 345 (Pa. 2011).
In determining whether counsel had areasonable basis for his action, "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. Rios,
920 A.2d 790, 800 (Pa. 2007). The test for deciding whether counsel had areasonable basis for
his action or inaction is whether no competent counsel would have chosen that action or inaction,
or, the alternative, not chosen, offered a significantly greater potential chance of success.
Commonwealth v. Stewart, 84 A.3d 701, 706 (Pa.Super. 2013). Counsel's decisions will be
considered reasonable if they effectuated his client's interests. Id. at 707. If counsel's chosen
course had some reasonable basis, the inquiry ends and counsel's assistance is deemed effective.
Commonwealth v. Williams, 899 A.2d 1060, 1064 (Pa. 2006).
Under the third prong of the analysis, prejudice, apetitioner "must show that there is a
reasonable probability that the outcome of the proceedings would have been different but for
counsel's action or inaction." Commonwealth v. Watley, 153 A.3d 1034, 1040 (Pa.Super. 2016)
(quoting Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011)). "A reasonable probability ` is a
probability sufficient to undermine confidence in the outcome."' Stewart, 84 A.3d at 707 (quoting
Commonwealth v. Rathfon, 899 A.2d 365, 370 (Pa.Super. 2006)).
Petitioner was represented at trial by Deborah Weinman, Esquire. She was assisted by W.
Joshua Buchanan, Esquire. In his first claim, Petitioner asserts that Ms. Weinman "prevented"
him from testifying and was therefore ineffective. Memorandum of Law in Support of the Second
Amended Petition for Post-Conviction Relief, at 18. Specifically, Petitioner asserts that trial
counsel failed to tell him he had the right to testify (Id. at ¶ 38c) and told him he was not going to
12
testify without explanation (Id. at ¶¶ 38b, 38d). Based upon the evidence presented at the hearing,
this Court finds that Petitioner claims to be without merit.
The decision of whether or not to testify lies with the defendant. Commonwealth v.
Sandusky, 203 A.3d 1033, 1075 (Pa.Super. 2019). To establish ineffective assistance of counsel
for failing to advise a defendant of his rights with regard to testifying, a defendant "must
demonstrate either that counsel interfered with his right to testify, or that counsel gave specific
advice so unreasonable as to vitiate a knowing and intelligent decision to testify on his
own behalf." Id. (quoting Commonwealth v. Nieves, 746 A.2d 1102, 1104 (Pa. 2000)).
The only evidence Petitioner offered to support his claim that trial counsel did not tell him
that he had aright to testify was elicited during his direct testimony:
[PCRA counsel] Do you remember anyone telling you that you had the choice to
either testify or not testify?
[Petitioner] No.
N.T. 8/31/21, at 38-39.
To support his claim that trial counsel prevented him from testifying, Petitioner offered the
following testimony:
[PCRA counsel] Did you meet with Ms. Weinman there at the Bucks County
prison?
[Petitioner] Correct.
[PCRA counsel] Did you discuss the case with her?
[Petitioner] Yes. Correct.
[PCRA counsel] Did you discuss your defense with her?
[Petitioner] Yes.
[PCRA counsel] At the Bucks County prison, do you know how many times you
met with her before your trial?
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[Petitioner] Idon't remember.
[PCRA counsel] Do you recall speaking with her at the Bucks County prison about
testifying at your trial?
[Petitioner] Yes.
[PCRA counsel] And what did you tell her?
[Petitioner] Itold her that Iwant to go -- to testify before the Court, to tell the Court
that Iam not guilty, but she said that no.
[PCRA counsel] Do you recall anything else she said to you?
[Petitioner] She said that it is not good for me to testify before the Court.
[PCRA counsel] Did she tell you why it was not good for you?
[Petitioner] No.
[PCRA counsel] What did you say when she told you it was not good for you to
testify?
[Petitioner] Istill say that Iwant to testify before the Court. She said, "No."
N.T. 8/31/21, at 32-33.
[PCRA counsel] Once your trial started at the courthouse, did you ever discuss with
Ms. Weinman whether or not you would testify?
[Petitioner] No. Ididn't talk to her, but she just told me that it is better to be quiet.
N.T. 8/31/21, at 34.
Trial counsel testified that she met with Petitioner "numerous times" in preparing for trial.
N.T. 8/31/21, at 9. She testified that because 10 years had passed since the trial, she did not recall
specific conversations she had with Petitioner. She testified that she was, however, sure she
discussed with Petitioner the evidence she intended to present in Petitioner's defense.' N.T.
8/31/21, at 10, 22. With regard to whether Petitioner would take the stand, trial counsel testified
'Petitioner confirmed that trial counsel discussed the case and his defense with him. N.T. 8/31/21, at 32.
14
that she would "always have at least two conversations with [her clients] about whether or not to
testify." N.T. 8/31/21, at 27. She explained,
[B]efore the trial, Idiscuss with them their having the right to testify and Idiscuss
with them my opinion as to whether or not they should testify and the reasons for
it and then Iask them what they want to do and then try and convince them that my
view is the correct view.
When we get to the end of the case, if we decided they're not going to testify, Istill
discuss with them prior to resting whether or not they want to testify to double-
check that that is the case.
Q. So it's fair to say that these discussions, in your practice, would have occurred
multiple times with the defendant; is that correct?
A. Yes.
N.T. 8/31/21, at 16. She testified that "Iwould never tell aclient that they weren't testifying."
N.T. 8/31/21, at 26-27. She stated, "Iwould have discussed it with him and told him that it is up
to him, but this is my opinion." N.T. 8/31/21, at 17.
Finally, trial counsel testified:
THE COURT: -- Iknow you can't remember exactly what you said to him, but did
he know he had the right to testify?
THE WITNESS: Yes.
THE COURT: And did he know that it was his decision?
THE WITNESS: Yes.
THE COURT: And Itake it you told him you didn't think it would be agood idea?
THE WITNESS: Definitely.
THE COURT: And then he made — was it his decision not to testify?
THE WITNESS: Yes.
N.T. 8/31/21, at 23.
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Trial counsel is an experienced attorney who, at the time of trial, had been practicing
criminal defense for over twenty years and who, during the course of the trial, proved herself to
be aprepared, thorough and capable trial lawyer. This Court found her testimony to be credible.
It defies logic to believe that she would, without cause or explanation, simply decide to deprive a
defendant of afundamental right to testify in his own defense in afirst degree murder case. This
Court accepts her testimony that she would never tell adefendant he or she could not testify and
did not do so in this case. This Court also accepts her testimony that she advised him not to take
the witness stand and, in accordance with her established practice, explained to him her reasons
for making the recommendation and also explained to him that he had aright to testify and the
decision of whether or not to testify was his. 3
In contrast, Petitioner's testimony is insufficient to establish aclaim for relief and is
otherwise not believable. As to the issue of whether Petitioner was advised of his right to testify,
this Court finds that Petitioner's testimony that he does not remember being told he had the right
to testify to be insufficient to establish by apreponderance of the evidence that he was not, in fact,
advised of that right. As to the remainder of his testimony, it strains credulity to believe that this
defendant, on trial for his life, would accept being told he could not testify in his own defense
without question, explanation or discussion during their numerous meetings wherein, as Petitioner
concedes, they discussed the case and the defense that would be presented. N.T. 8/31/21, at 9, 32.
2 Trial counsel testified that she has been practicing criminal defense since 1987. N.T. 8/31/21, at 8.
3PCRA counsel argues that testimony regarding "habit, routine and custom" is not proof of what actually occurred.
Memorandum of Law in Support of the Second Amended Petition for Post-Conviction Relief, at 16-17. This argument
overlooks the fact that trial counsel testified that she "always" followed her established practice and that she would
never engage in the conduct Petitioner alleged.
16
Based on the evidence presented during the PCRA hearing, this Court finds that trial counsel did
not prevent Petitioner from testifying and properly advised him regarding his right to testify. 4
Petitioner next alleges trial counsel was ineffective for failing to "obtain surveillance video
from the Parx Casino which would have displayed that Petitioner did not, as alleged by the
detectives, gamble on a date leading up to the murder." Second Amended Petition for Post-
Conviction Relief, 4/13/18, at ¶ 39(a). "Counsel cannot be faulted for failing to discover or present
evidence if Appellant fails to meet the burden of establishing that the evidence exists."
Commonwealth v. Fisher, 813 A.2d 761, 771 (Pa. 2002) (citations omitted). To date, Petitioner
has failed to establish that any surveillance video ever actually existed, that it was retained by the
casino, that it was in its possession at the time of trial or that any such surveillance video would
establish that Petitioner was not present at Parx casino during the relevant periods of time.
Petitioner has therefore failed to meet his burden of proof to support his claim of ineffective
assistance. Moreover, counsel cannot be deemed ineffective where she took reasonable and
appropriate measures to obtain the evidence. Trial counsel testified that her investigator did in fact
contact Parx Casino while she was preparing Petitioner's defense. N.T. 8/31/21, at 12-13. Ms.
Weinman confirmed that she directed her investigator to obtain any information he could find
concerning whether or not Petitioner was at Parx Casino and that she would have used any
information which was helpful to Petitioner. N.T. 8/31/21, at 24-25.
4 Having found Petitioner's claim lacks merit, this Court finds it unnecessary to address whether trial counsel's advice
not to testify was reasonable or whether Petitioner established the necessary prejudice to support aclaim for relief.
However, given PCRA counsel's characterization of the weight of the evidence and his assertion that Petitioner's
testimony could have rebutted or explained much of the circumstantial evidence., ( Memorandum of Law in Support
of the Second Amended Petition for Post-Conviction Relief, 11/4/21, at 18), it is important to note that it appears that
trial counsel's advice was reasonable given the evidence in the case and the out-of-court statements Petitioner had
already made to police and other witnesses. See infra at. 1-7. Even acursory examination of the record reveals that
trial counsel's concern that if Petitioner took the stand, he would open himself up to "cross-examination about alot of
things that Idon't think he would have been able to answer" was well founded. See N.T. 8/31/21, at 18.
17
Petitioner next alleges that trial counsel was ineffective for failing to "locate; retain and
call at trial, acompetent expert witness in the area of cell phone transmissions and cell tower
technology." Second Amended Petition for Post-Conviction Relief, 4/13/18, at ¶ 39(b) (emphasis
added). Petitioner alleges that the expert witness relied upon by the defense, Manfred Schenk, was
"wholly unqualified to provide such testimony in aconvincing or adequate manner." Second
Amended Petition for Post-Conviction Relief, 4/13/18, at ¶ 39(b).
To establish ineffective assistance of counsel for the failure to present an expert witness, a
petitioner "must articulate what evidence was available and identify the witness who was willing
to offer such evidence." Commonwealth v. Bryant, 855 A.2d 726, 745 (Pa. 2004) (citations
omitted). Petitioner did not present any evidence regarding what expert testimony was available
and did not identify any witness willing to offer such expert testimony. His claim, therefore, fails.
Finally, Petitioner alleges that trial counsel was ineffective for failing to object or seeking
to preclude the testimony of Detective Craig Rudisill. Second Amended Petition for Post-
Conviction Relief, 4/13/18, at ¶ 39(c). According to Petitioner, Detective Rudisill's testimony was
improper as he had no expertise in the area of "cell phone transmissions and cell tower technology"
and "was not qualified as an expert in such specialized areas of telecommunications." Second
Amended Petition for Post-Conviction Relief, 4/13/18, at ¶ 39(c). Petitioner fails to identify the
specific testimony offered by Detective Rudisill he alleges to be objectionable. Rather, he merely
cites to eight pages of Detective Rudisill's testimony offered on December 7, 2011. Second
Amended Petition for Post-Conviction Relief, 4/13/18, at ¶ 39(c); N.T. 12/7/11, at 188-206. In
this section of the notes of testimony, Detective Rudisill testified as to the contents of Petitioner's
T-Mobile cell phone records. N.T. 12/7/11, at 188-206. Upon areview of the record, it is clear
18
that Detective Rudisill's testimony consists of permissible lay testimony. Moreover, Petitioner
has failed to articulate how, if at all, he was prejudiced. Petitioner's claim, therefore, fails.
Finally, Petitioner raises a "cumulative prejudice" argument, claiming that he was "denied
his constitutionally guaranteed right to effective representation, and trial counsel was ineffective
based upon multiple instances of attorney error resulting in cumulative prejudice which deprived
Petitioner of a fair trial and resulted in his conviction." Second Amended Petition for Post-
Conviction Relief, 4/13/18, at ¶ 39. It is well established that "no number of claims which fail on
their merits may collectively warrant relief." Commonwealth v. Reid, 259 A.3d 395, 420 (Pa.
202 1) (citing Commonwealth v. Spotz, 18 A.3d 244, 320-21 (Pa. 2011)). Since each of Petitioner's
individual claims lack merit, his allegation of cumulative prejudice must fail as well.
Conclusion
For the reasons set forth above, this Court denied Petitioner's request for PCRA relief.
BY THE COURT:
DIANE E. GIBBONS, J.
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