Moss v. DeBlaso

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CRAIG MOSS, :

Petitioner :

: No. 1:19-cv-106

v. :

: (Judge Rambo)

SUPERINTENDENT :

DEBALSO, et al., :

Respondents :

MEMORANDUM

Presently before the Court is pro se Petitioner Craig Moss (“Petitioner”)’s

amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc.

No. 11.) Respondents filed a response addressing the merits of the § 2254 petition

on June 23, 2021. (Doc. No. 30.) Petitioner’s § 2254 petition is, therefore, ripe for

disposition.

I. BACKGROUND

A. Procedural History

On January 15, 2017, in York County, Pennsylvania, Petitioner was arrested

and charged with: (1) terroristic threats with the intent to terrorize another; (2)

possession of an instrument of crime; (3) simple assault; (4) public drunkenness; (5)

disorderly conduct engaging in fighting; and (6) three (3) counts of harassment. See

Commonwealth v. Moss, Docket No. CP-67-CR-0001471-2017 (York Cty. C.C.P.).

A mistrial was declared on March 8, 2018. Id. Following retrial on March 18, 2018,

Petitioner was found guilty of possession of an instrument of crime, simple assault,

and two (2) counts of harassment. Id. The Superior Court of Pennsylvania set forth

the background of the case as follows:

On March 16, 2017, the Commonwealth charged [Petitioner] by way of

a criminal information with terroristic threats, [possession of an

instrument of crime], simple assault, public drunkenness, disorderly

conduct, and three counts of harassment. The charges arose out of an

incident that took place on January 14-15, 2017, at Kiro’s bar. At trial,

although there were minor inconsistencies, the Commonwealth

witnesses testified consistently about the events of the evening.

That night, Breanne Spangler, her fiancé Daniel Leiphart, and a group

of their friends, who included Brittany Graves, Bridget James, and

Emily and Devon Wallick, were at Kiro’s to celebrate its last night in

business. [Petitioner] and his wife, Tara Moss, were also present but

were not part of Spangler’s group.

At some point during the event, [Petitioner] and Tara Moss left.

[Petitioner] returned alone a few minutes later and began to behave in

an increasingly belligerent and drunken fashion. He started to accost

and grope some of the women in Spangler’s group, ignoring their

requests to stop.

When Leiphart became aware of the problem, he and [Petitioner]

engaged in a verbal dispute, which ended when Leiphart punched

[Petitioner] on the chin. The bar’s owner, Ronald Weagley, now aware

of the complaints about [Petitioner’s] behavior, escorted him off the

premises.

The group of friends remained in the bar. Immediately prior to closing,

at approximately 2:00 a.m., Tara Moss telephoned Weagley and

informed him [Petitioner] had armed himself with knives and was

returning to the bar. Weagley locked the front door of the bar, called

911 and told the patrons not to leave.

Despite this, Leiphart and several others exited the bar through the side

emergency exit. Although friends kept Leiphart and [Petitioner]

separated, a quarrel ensued in the parking lot next to Kiro’s and

continued into a nearby alley.

[Petitioner] brandished a knife, swinging it from side to side while

taunting the unarmed Leiphart. Spangler inserted herself between

[Petitioner] and Leiphart, grabbed the knife-blade, and attempted to

deescalate the conflict. [Petitioner] repeatedly told her he did not want

to hurt her but wanted to hurt Leiphart. Spangler pushed against

[Petitioner] backing him away from Leiphart while [Petitioner]

continued to swing the knife and state that he wanted to hurt Leiphart.

Other bar patrons backed Leiphart away from [Petitioner]. [Petitioner]

did not leave the scene until he heard police sirens, at which point he

allowed Spangler to grab the knife. When police apprehended the

fleeing [Petitioner], they heard one knife fall off him, which they

recovered under his body, and found two other knives on his person.

The police located several other knives in the area where the altercation

occurred.

Commonwealth v. Moss, No. 1533 MDA 2018, 2020 WL 618580, at *1-2 (Pa. Super.

Ct. Feb. 10, 2010). On April 9, 2018, Petitioner was sentenced to one (1) year minus

one (1) day to two (2) years minus two (2) days of incarceration, with credit for time

served. Moss, Docket No. CP-67-CR-0001471-2017. Petitioner subsequently filed

a timely post-sentence motion, which the trial court denied. Id. On September 12,

2018, Petitioner filed his notice of appeal to the Superior Court of Pennsylvania. Id.

On January 17, 2019, while his direct appeal was still pending, Petitioner filed

his initial § 2254 petition (Doc. No. 1) and a motion for a temporary stay and

abeyance (Doc. No. 2) with this Court. In a Report and Recommendation entered

on February 1, 2019, Magistrate Judge Carlson recommended that Petitioner’s

motion for a stay and abeyance be denied and that his § 2254 petition be dismissed

without prejudice to Petitioner’s right to refile his petition once he exhausted his

state court remedies. (Doc. No. 6.) Petitioner filed timely objections, asserting that

he met the three (3) requirements for a stay and abeyance set forth in Rhines v.

Weber, 544 U.S. 269 (2009). (Doc. No. 7.) Petitioner argued that if the Court did

not stay the action, he would “never be able to file a habeas corpus to challenge the

violations of his federal [constitutional] rights as he is no longer in custody for this

conviction.” (Id. at 2.) In a Memorandum and Order entered on March 21, 2019,

the Court sustained Petitioner’s objections, rejected the Report and

Recommendation, granted Petitioner’s motion for a stay and abeyance, and stayed

the above-captioned case pending Petitioner’s exhaustion of his available state court

remedies. (Doc. Nos. 8, 9.) The Court directed Petitioner to notify the Court of such

within thirty (30) days from the time of final denial and request that the stay be

vacated. (Doc. No. 9.)

On February 10, 2020, the Superior Court of Pennsylvania affirmed

Petitioner’s judgment of sentence. See Moss, 2020 WL 618580, at *1. On February

19, 2020, Petitioner filed a motion to proceed (Doc. No. 10) and an amended § 2254

petition (Doc. No. 11). Those filings indicated that Petitioner was no longer

incarcerated. In an Order dated February 25, 2020, the Court granted Petitioner’s

motion to proceed and lifted the stay. (Doc. No. 12.) In an administrative Order

dated that same day, the Court advised Petitioner of the limitations on filing future

§ 2254 petitions and directed him to complete the enclosed Notice of Election and

return it to the Court within forty-five (45) days. (Doc. No. 13.) Petitioner did not

return the Notice of Election. Accordingly, on April 13, 2020, the Court directed

Respondents to file an answer, motion, or other response to the amended § 2254

petition within twenty (20) days. (Doc. No. 14.)

On April 23, 2020, Respondents filed a motion to dismiss for lack of

jurisdiction or, in the alternative, as moot. (Doc. No. 16.) Respondents asserted that

the Court lacks jurisdiction because Petitioner’s York County sentence expired on

November 11, 2018, and, therefore, he was not in custody for purposes of that

conviction when he filed his initial § 2254 petition. (Id. at 2-3.) In support,

Respondents attached a copy of a York County Pre-Parole Investigation and Order

indicating that Petitioner received 512 days of credit toward his sentence and that

the maximum date of his sentence was November 11, 2018. (Doc. No. 16-1 at 1.)

Respondents noted that Petitioner “was in custody due to his state parole violation

which resulted from his conviction in the instant case at the time his [original § 2254

petition] was filed.” (Doc. No. 16 at 3.) They asserted, however, that “even if this

Court were to liberally construe [Petitioner’s] Petition as an attack on his

subsequently received parole revocation, such challenge was rendered moot upon

[Petitioner’s] completion of the parole violation sentence and release from

incarceration.” (Id. at 3-4.) Respondents also filed a motion “to temporarily stay

the deadline to file a full and complete response to the merits of [Petitioner’s]

Petition” pending resolution of their motion to dismiss. (Doc. No. 17.) Petitioner

did not file a response to Respondents’ motions. Accordingly, in a Memorandum

and Order dated May 18, 2020, the Court granted Respondents’ motion to dismiss

and dismissed Petitioner’s original § 2254 petition and amended § 2254 petition for

lack of jurisdiction. (Doc. Nos. 18, 19.)

On January 21, 2021, Petitioner filed a motion for relief pursuant to Rule 60(b)

of the Federal Rules of Civil Procedure. (Doc. No. 20.) Petitioner asserted that he

was entitled to relief because his York County sentence expired on January 13, 2019

and Respondents erroneously provided a document indicating otherwise to the

Court. (Id. at 3-6.) Petitioner asked that the Court reinstate his § 2254 petition,

sanction Respondents, and forward the matter to the Commonwealth’s disciplinary

board. (Id. at 6.) In an Order dated that same day, the Court directed Respondents

to file a response to the Rule 60(b) motion. (Doc. No. 23.) After receiving an

extension of time (Doc. Nos. 24, 25), Respondents filed their response on April 5,

2021, agreeing that Petitioner had been in custody on the challenged sentence when

he filed his initial § 2254 petition (Doc. No. 26). In an Order dated April 8, 2021,

the Court granted Petitioner’s motion to the extent he sought relief pursuant to Rule

60(b)(1). (Doc. No. 27.) The Court vacated its May 18, 2020 Memorandum and

Order dismissing Petitioner’s § 2254 petitions for lack of jurisdiction and directed

Respondents to file a response addressing the merits of Petitioner’s amended § 2254

petition. (Id.)

B. Habeas Claims Presented

Petitioner raises the following claims for relief in his amended § 2254 petition:

1. The Commonwealth failed to disprove Petitioner’s affirmative defense

of self-defense;

2. The trial court’s decision not to grant Petitioner’s motion for direct

acquittal due to insufficiency of the evidence was contrary to Jackson

v. Virginia, 443 U.S. 307 (1979);

3. The Commonwealth deprived Petitioner of his Fifth, Sixth, and

Fourteenth Amendment rights when it used evidence at trial that was

not stated in the indictment or bill of particulars to gain a conviction;

4. The trial court deprived Petitioner of his Sixth and Fourteenth

Amendment right to self-representation;

5. Petitioner was constructively deprived of his Sixth Amendment right to

effective cross-examination;

6. Petitioner was constructively deprived of his right to a fair trial when

the Commonwealth suppressed then destroyed requested video/audio

evidence;

7. The Commonwealth violated Brady v. Maryland, 373 U.S. 83 (1963),

when it knowingly withheld favorable requested evidence;

8. The trial court’s decision to deny Petitioner’s motion for

neurological/head trauma expert was contrary to both Clark v. Arizona,

548 U.S. 735 (2006), and McWilliams v. Dunn, 582 U.S. __, 137 S. Ct.

1790 (2017);

9. The trial court erred when it denied Petitioner’s motion to dismiss for a

violation of his Sixth Amendment right to a speedy trial; and

10. Petitioner was deprived of his Sixth Amendment right to counsel and

the trial court/state law holding that Petitioner could not raise this claim

on direct appeal constitutes cause to excuse the exhaustion/procedural

default requirement.

(Doc. No. 11 at 4-5.)

II. STANDARD OF REVIEW

Habeas corpus is an “‘extraordinary remedy’ reserved for defendants who

were ‘grievously wronged’ by the criminal proceedings.” See Dunn v. Colleran, 247

F.3d 450, 468 (3d Cir. 2001) (quoting Calderon v. Coleman, 525 U.S. 414, 146

(1998)). The exercise of restraint by a federal court in reviewing and granting habeas

relief is appropriate due to considerations of comity and federalism. See Engle v.

Isaac, 456 U.S. 107, 128 (1982). “The States possess primary authority for defining

and enforcing the criminal law. In criminal trials they also hold the initial

responsibility for vindicating constitutional rights. Federal intrusions into state

criminal trials frustrate both the States’ sovereign power and their good-faith

attempts to honor constitutional law.” Id. States also have a recognized interest in

the finality of convictions that have survived direct review within the state court

system. See Brecht v. Abrahamson, 507 U.S. 619, 620 (1993).

A district court may entertain an application for a writ of habeas corpus filed

by a person in state custody “only on the ground that he is in custody in violation of

the Constitution or laws of the United States.” 28 U.S.C. § 2254(a). If a claim

presented in a § 2254 petition has been adjudicated on the merits in state court

proceedings, habeas relief cannot be granted unless:

the adjudication of the claim – (1) resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly

established [f]ederal law, as determined by the Supreme Court of the

United States; or (2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.

Id. § 2254(d).

III. DISCUSSION

A. Exhaustion and Procedural Default

The Court must first determine whether Petitioner’s grounds for relief

presented in his § 2254 petition have been exhausted in the state courts and, if not,

whether circumstances exist to excuse Petitioner’s procedural default of his claims.

Respondents maintain that Grounds Seven and Ten are procedurally defaulted.

(Doc. No. 30 at 22-23.)

Absent unusual circumstances, a federal court should not entertain a petition

for writ of habeas corpus unless the petitioner has satisfied the exhaustion

requirement articulated in 28 U.S.C. § 2254(b). Under § 2254(c), a petitioner will

not be deemed to have exhausted his available state remedies if he had the right

under the law of the state to raise, by any available procedure, the question presented.

See O’Sullivan v. Boerckel, 526 U.S. 838 (1999). A petitioner may exhaust a federal

claim either by raising it on direct appeal or presenting it in post-conviction PCRA

proceedings. See id. at 845. In addition, a claim is exhausted when it has been

“fairly presented” to the state court. See Picard v. Connor, 404 U.S. 270, 275 (1971).

To that end, the federal habeas claim “must be the substantial equivalent of that

presented to the state courts.” See Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir.

1997). The petition must do so “in a manner that puts [the respondents] on notice

that a federal claim is being asserted.” See Bronshtein v. Horn, 404 F.3d 700, 725

(3d Cir. 2005). “The Supreme Court has instructed that a claim is not ‘fairly

presented’ if the state court ‘must read beyond a petition or brief . . . in order to find

material’ that indicates the presence of a federal claim.” Collins v. Sec’y of Pa. Dep’t

of Corr., 742 F.3d 528, 542 (3d Cir. 2014) (quoting Baldwin v. Reese, 541 U.S. 27,

32 (2004)). Moreover, a habeas corpus petitioner has the burden of proving the

exhaustion of all available state remedies. See 28 U.S.C. § 2254. Overall, the

exhaustion requirement advances the goals of comity and federalism while reducing

“piecemeal litigation.” See Duncan v. Walker, 533 U.S. 167, 180 (2001).

“When a claim is not exhausted because it has not been ‘fairly presented’ to

the state courts, but state procedural rules bar the applicant from seeking further

relief in state courts, the exhaustion requirement is satisfied because there is an

absence of available State corrective process.” McCandless v. Vaughn, 172 F.3d

255, 261 (3d Cir. 1999). Claims deemed exhausted because of a state procedural bar

are considered to be procedurally defaulted. See, e.g., Lines v. Larkins, 208 F.3d

153, 159 (3d Cir. 2000). The district court then analyzes the claims under the

procedural default doctrine. See id. The purpose of this rule is to prevent habeas

petitioners from avoiding the exhaustion doctrine by defaulting their claims in state

court. See Coleman v. Thompson, 501 U.S. 722, 732 (1991). In Cone v. Bell, 556

U.S. 449 (2009), the United States Supreme Court explained:

It is well established that federal courts will not review questions of

federal law presented in a habeas petition when the state court’s

decision rests upon a state law ground that is independent of the federal

question and adequate to support the judgment. In the context of federal

habeas proceedings, the independent and adequate state ground

doctrine is designed to ensure that the State’s interest in correcting their

own mistakes is respected in all federal habeas cases. When a petitioner

fails to properly raise his federal claims in state court, he deprives the

State of an opportunity to address those claims in the first instance and

frustrates the State’s ability to honor his constitutional rights.

Therefore, consistent with the longstanding requirement that habeas

petitioners must exhaust available state remedies before seeking relief

in federal court, we have held that when a petitioner fails to raise his

federal claims in compliance with relevant state procedural rules, the

state court’s refusal to adjudicate the claim ordinarily qualifies as an

independent and adequate state ground for denying federal review.

Id. at 465 (internal quotations and citations omitted).

However, habeas corpus review is not barred in every instance in which a state

court invokes a procedural rule to preclude its review of the federal claims asserted

by a state prisoner. A state procedural rule can preclude federal habeas corpus

review “only when the state rule is ‘independent of the federal question [presented]

and adequate to support the judgment.’” See Leyva v. Williams, 504 F.3d 357, 365

(3d Cir. 2007) (citing Nara v. Frank, 488 F.3d 187, 199 (3d Cir. 2007)). The

requirements of independence and adequacy are distinct. See id. A rule is

“independent” if it is not dependent on any federal constitutional question, but “[a]

state procedural ground will not bar federal habeas relief if the state law ground is

‘so interwoven with federal law’ that it cannot be said to be independent of the merits

of a petitioner’s federal claims.” See Johnson v. Pinchak, 392 F.3d 551, 557 (3d Cir.

2004). A rule is “adequate” if it was “firmly established, readily ascertainable, and

regularly followed at the time of the purported default.” See Levya, 504 F.3d at 366

(quoting Szuchon v. Lehman, 273 F.3d 299, 372 (3d Cir. 2001)).

A petitioner whose constitutional claims have not been addressed on the

merits due to procedural default can overcome the default, thereby allowing federal

court review, if the petitioner can demonstrate either: (1) “cause” for the default and

“actual prejudice” as a result of the alleged violation of federal law; or (2) that the

failure to consider the claims will result in a “fundamental miscarriage of justice.”

See Coleman, 501 U.S. at 750. In order to show “cause and prejudice” sufficient to

overcome a state court default, a petitioner must demonstrate the “cause” for his

default and “prejudice” attributable thereto. See Werts v. Vaughn, 228 F.3d 178, 192

(3d Cir. 2000) (citing Harris v. Reed, 489 U.S. 255 (1989)). “[T]he existence of

cause for a procedural default must ordinarily turn on whether the prisoner can show

that some objective factor external to the defense impeded counsel’s efforts to

comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488

(1986). Under the “prejudice prong,” a petitioner has the burden of showing “not

merely that the errors at his trial created a possibility of prejudice, but that they

worked to his actual and substantial disadvantage, infecting his entire trial with error

of constitutional dimensions.” See United States v. Frady, 456 U.S. 152, 170 (1982);

see also Holland v. Horn, 519 F.3d 107, 112 (3d Cir. 2008).

To show a “fundamental miscarriage of justice,” a petitioner must establish

that “a constitutional violation has probably resulted in the conviction of one who is

actually innocent.” See Schlup v. Delo, 513 U.S. 298, 326 (1995). Demonstrating

actual innocence requires a stronger showing than that needed to establish prejudice.

See id. In Goldblum v. Klem, 510 F.3d 204 (3d Cir. 2007), the United States Court

of Appeals for the Third Circuit explained the applicable two-step inquiry as follows.

First, a “court must decide ‘whether the petitioner has presented new reliable

evidence . . . not presented at trial,’” and second, if a petitioner “puts forth new

evidence not considered by the jury, a court asks ‘whether it is more likely than not

that no reasonable juror would have convicted him in light of the new evidence.’”

See id. at 225 (citing Hummard v. Pinchak, 378 F.3d 333, 340 (3d Cir. 2004)). If a

petitioner can meet this standard by establishing “cause and prejudice” or a

“fundamental miscarriage of justice,” his default will be excused, and the Court may

review the merits of the claim presented. See id.

In Ground Seven, Petitioner asserts that the Commonwealth violated Brady

by failing to disclose favorable discovery in the form of Officer Miller’s

supplemental narrative. (Doc. No. 11 at 16-17.) Petitioner avers that he did not

learn of the existence of this document until he received discovery in the civil matter

he filed in Moss v. Miller, 1:18-cv-2122 (M.D. Pa.). (Id. at 16.) Respondents assert

that Ground Seven is not exhausted because Petitioner “neglected to raise this issue

on appeal or collateral review.” (Doc. No. 30.) The record, however, reflects that

Petitioner did not file an application for a new trial based on after-discovered

evidence with the Superior Court, but the Superior Court denied it without prejudice

to his right to raise it in a “collateral petition.” Moss, 2020 WL 618580, at *1 n.3.

In Ground Ten, Petitioner asserts that counsel was ineffective in several ways.

(Doc. No. 11 at 25-44.) Petitioner raised some of these on direct appeal; others he

raises for the first time in his § 2254 petition. Respondents maintain that such claims

are waived because Petitioner failed to raise them on collateral review. (Doc. No.

30 at 54-60.) Upon review of the record, the Court agrees with Respondents that

Petitioner never raised the following ineffective assistance claims before the state

courts: (1) constructive denial of assistance of counsel by his overly long period of

detention; (2) counsel’s failure to obtain a medical expert; (3) counsel unreasonably

advising him against testifying; (4) counsel’s failure to object to inculpatory

testimony provided by his spouse; and (5) failure to request that the judge recuse

himself. (Id. at 59-60.) Consequently, because these claims are procedurally

defaulted, the Court can entertain the merits only if Petitioner demonstrates cause

and prejudice or a fundamental miscarriage of justice. Petitioner, however, advances

no compelling argument to establish that cause for the default exists or that a

fundamental miscarriage of justice will occur if the Court does not consider these

arguments. See Coleman, 501 U.S. at 750.

As noted supra, Respondents assert that Ground Seven and the remaining

ineffective assistance arguments raised in Ground Ten are unexhausted because

Petitioner did not raise them on collateral review. Petitioner, however, asserts that

his sentence has become final and he cannot now litigate these claims. (Doc. No. 11

at 25.) While the trial court addressed the merits of Petitioner’s ineffective

assistance claims in its Rule 1925(a) opinion, the Superior Court concluded that such

claims were premature and must await collateral review, noting that none of the three

recognized exceptions to that general rule applied. Moss, 2020 WL 618580, at *10

& nn.10-11.)

One of the three exceptions to the general rule in Pennsylvania that ineffective

assistance claims must be raised in a PCRA petition is for “claims challenging trial

counsel’s performance where the defendant is statutorily precluded from obtaining

PCRA review.” Commonwealth v. Delgros, 183 A.3d 352, 361 (Pa. 2018). As the

Court previously noted in this matter, under Pennsylvania law, PCRA relief only

extends to those “currently serving a sentence of imprisonment, probation or parole

for the crime” challenged. 42 Pa. C.S.A. § 9543(a)(1)(i); see also Commonwealth

v. O’Berg, 880 A.2d 597, 599 (Pa. 2005). PCRA relief is unavailable to an individual

who completes his sentence, no matter the collateral consequences of that sentence.

Commonwealth v. Hart, 911 A.2d 939, 942 (Pa. Super. Ct. 2006). Petitioner

previously maintained that the sentence he now challenges expired on January 14,

2019, rendering him ineligible to file a PCRA petition. (Doc. No. 8 at 5.) Relying

on that reasoning, the Court previously stayed proceedings in this matter pending

the conclusion of Petitioner’s direct appeal.

Given this, the Court is not persuaded by Respondents’ argument that

Petitioner failed to exhaust Ground Seven and his remaining ineffective assistance

arguments in Ground Ten because he did not file a PCRA petition. The record

suggests that Petitioner’s sentence expired well before his direct appeal was

resolved, rendering him statutorily ineligible to file such a petition. The Court,

therefore, declines to find that these claims are unexhausted and procedurally

defaulted and will address the merits of these claims below.

B. Merits of Petitioner’s Claims

1. Grounds One and Two

In his first ground for relief, Petitioner maintains that the Commonwealth

failed to disprove his affirmative defense of self-defense. (Doc. No. 11 at 5.) As his

second ground, Petitioner asserts that the trial court erred by not granting his motion

for direct acquittal due to insufficiency of the evidence. (Id. at 8.) Because the

Superior Court considered these claims together, this Court will as well.

With respect to these claims, the Superior Court wrote:

In his first two issues, [Petitioner] challenges the sufficiency of the

evidence. Our standard of review is settled.

We must determine whether the evidence admitted at trial, and

all reasonable inferences drawn therefrom, when viewed in a

light most favorable to the Commonwealth as verdict winner,

support the conviction beyond a reasonable doubt. Where there

is sufficient evidence to enable the trier of fact to find every

element of the crime has been established beyond a reasonable

doubt, the sufficiency of the evidence claim must fail.

The evidence established at trial need not preclude every

possibility of innocence and the fact-finder is free to believe all,

part, or none of the evidence presented. It is not within the

province of this Court to re-weigh the evidence and substitute our

judgment for that of the fact-finder. The Commonwealth’s

burden may be met by wholly circumstantial evidence and any

doubt about the defendant’s guilty is to be resolved by the fact

finder unless the evidence is so weak and inconclusive that, as a

matter of law, no probability of fact can be drawn from the

combined circumstances.

Commonwealth v. Mobley, 14 A.3d 887, 889-90 (Pa. Super. 2011)

(citation omitted). Here, the jury convicted [Petitioner] of [possession

of an instrument of crime (“PIC”)] and simple assault, and the trial court

convicted him of harassment.

In his first claim, [Petitioner] does not dispute the proof of the elements

of simple assault, therefore we will not address them at this point;

instead, he argues the Commonwealth did not disprove his claim of

self-defense. We disagree.

The use of force against a person is justified when the actor

believes that such force is immediately necessary for the purpose

of protecting himself against the use of unlawful force by the

other person. See 18 Pa. C.S.[A.] § 505(a). When a defendant

raises the issue of self-defense, the Commonwealth bears the

burden to disprove such a defense beyond a reasonable doubt.

Commonwealth v. Bullock, 948 A.2d 818, 824 (Pa. Super. 2008).

In order for the Commonwealth to disprove self-defense, one of the

following elements must exist: (1) the defendant used more force than

was necessary to save himself from death, bodily injury, or the

commission of a felony; (2) the defendant provoked the use of force; or

(3) the defendant had a duty to retreat, which was possible to

accomplish with complete safety. See Commonwealth v. Burns, 765

A.2d 1144, 1148-49 (Pa. Super. 2000), appeal denied, 782 A.2d 542

(Pa. 2001). However, “[a]lthough the Commonwealth is required to

disprove a claim of self-defense arising from any source beyond a

reasonable doubt, a jury is not required to believe the testimony of the

defendant who raises the claim.” Bullock, supra at 824.

Based upon our review of the record, the Commonwealth’s evidence

was sufficient to negate the elements of self-defense. The evidence

presented at trial established, following the altercation with Leiphart,

Weagley escorted [Petitioner] off the premises and [Petitioner] left the

area for at least thirty minutes. [Petitioner] then chose to return to the

bar and lay in wait for Leiphart armed with at least four knives.

When Leiphart exited the bar, [Petitioner] stated several times that he

wanted to hurt him; [Petitioner] swung the knife in the direction of

Leiphart whie acting in a violent and agitated manner. [Petitioner]

ignored Spangler’s attempts to defuse the situation, repeatedly stating

he wanted to hurt Leiphart and did not retreat on his own. Rather,

Spangler pushed him back. Leiphart was unarmed.

Accordingly, the evidence was sufficient to establish that Leiphart was

not the aggressor. More importantly, the evidence was capable of

establishing [Petitioner], armed with at least one knife, could not have

reasonably believed he was at any real risk from Leiphart. The only

person who claims there was an alternate version of the events was

[Petitioner] and the finder-of-fact was free to disbelieve his arguments

in light of the overwhelming evidence offered by the Commonwealth.

See Commonwealth v. Rivera, 983 A.2d 1211, 1222 (Pa. 2009) (jury

free to discredit evidence offered by defendant relating to self-defense);

see also Commonwealth v. Jones, 332 A.2d 464, 466 (Pa. Super. 1974)

(en banc) (holding use of knife in response to fistfight is not justified

use of deadline force). Moreover, the record demonstrates [Petitioner],

who was on a public alley, had many opportunities to retreat. See

Commonwealth v. Gillespie, 434 A.2d 781, 784 (Pa. Super. 1981)

(holding opportunity to retreat existed because, “the fight occurred on

a public sidewalk, with several avenues of retreat available[]”).

[Petitioner’s] first claim does not merit relief.

As [Petitioner’s] second issue is actually a broad based challenge to

each of his convictions, we will address each type of crime individually.

Initially, we note [Petitioner’s] argument in its entirety consists of citing

to isolated bits of evidence he believes favors his argument along with

random citations to several United States Supreme Court cases and one

case from this Court, which, upon review, have no bearing upon the

instant matter. He entirely disregards our standard of review, which

requires we view the evidence in a light most favorable to the

Commonwealth as verdict winner. Further, [Petitioner] overlooks the

fact this Court does not re-weigh the evidence nor do we engage in

credibility determinations.

We define simple assault by physical menace as, “attempts by physical

menace to put another in fear of imminent serious bodily injury.” 18

Pa. C.S.A. § 2701(a)(3). Serious bodily injury is “[b]odily injury which

creates a substantial risk of death, or which cases serious, permanent

disfigurement, or protracted loss or impairment of the function of any

bodily member or organ.” 18 Pa. C.S.A. § 2301. “A person commits

an attempt when, with intent to commit a specific crime, he does any

act which constitutes a substantial step toward the commission of that

crime.” 18 Pa. C.S.A. § 901(a). An individual acts intentionally with

respect to a material element of an offense when, “it is his conscious

object to engage in conduct of that nature or to cause such a result.” 18

Pa. C.S.A. § 302(b)(1)(i).

Therefore, in order to sustain a conviction for simple assault by physical

menace, the Commonwealth must prove an appellant “intentionally

plac[ed] another in fear of imminent serious bodily injury through the

use of menacing or frightening activity.” Commonwealth v. Reynolds,

835 A.2d 720, 726 (Pa. Super. 2003) (citation omitted). The act of

brandishing a knife at a person is sufficient to sustain a conviction for

simple assault by physical menace. See Commonwealth v. Diamond,

408 A.2d 488, 489-90 (Pa. Super. 1979) (finding sufficient evidence to

sustain simple assault by physical menace conviction where defendant

approached and gripped door handle of victim’s car at 4:00 a.m.,

“especially since [defendant’s] friend was simultaneously threatening

[the victim] with a knife on the other side of the car”).

As set forth previously, the Commonwealth’s evidence at trial showed

[Petitioner] swung the knife back and forth while threatening Leiphart.

[Petitioner] repeatedly stated he wanted to hurt him. This evidence is

sufficient to establish that [Petitioner] wanted to place Leiphart in fear

of serious bodily injury. A reasonable person, seeing the man whom

he earlier hit in a bar fight coming at him while shouting threats and

waiving a knife, “will quite likely fear that such an injury is imminent.”

Diamond, 408 A.2d at 490. [Petitioner] must “be held to have intended

such a foreseeable consequence to his actions.” Id. Accordingly, we

find the evidence was sufficient to sustain [Petitioner’s] conviction for

simple assault by physical menace.

In order to prove possession of an instrument of crime, the

Commonwealth must show the defendant “possesses any instrument of

crime with intent to employ it criminally.” 18 Pa. C.S.A. § 907(a). The

statute defines an instrument of crime as “[a]nything specially made or

specially adapted for criminal use” or “[a]nything used for criminal

purposes and possessed by the actor under circumstances not

manifestly appropriately for lawful uses it may have.” 18 Pa. C.S.A.

§ 907(d). Evidence a defendant used a knife to attempt to perpetrate a

crime is sufficient to sustain a conviction for PIC. See Commonwealth

v. Robinson, 874 A.2d 1200, 1208-09 (Pa. Super. 2005) (holding use of

knife to perpetrate robbery was sufficient evidence of PIC).

“PIC, by its definition, is an inchoate crime, meaning that a defendant

only has to intend to employ the instrument of crime criminally; a

defendant need not actually employ it or complete an associated crime.”

Commonwealth v. Moore, 103 A.3d 1240, 1252 (Pa. 2014) (citation

omitted). “[R]ather, the focus is on whether the defendant possesses

the instrument for any criminal purpose.” Commonwealth v. Naranjo,

53 A.3d 66, 71 (Pa. Super. 2012) (emphasis in original). The

defendant’s criminal purpose provides the basis for his liability; we can

infer purpose from the circumstances surrounding the possession of the

instrument of the crime. See Commonwealth v. Andrews, 768 A.2d 309,

318-319 (Pa. 2001).

“Intent can be proven by direct or circumstantial evidence; it may be

inferred from acts or conduct or from the attendant circumstances.”

Commonwealth v. Miller, 172 A.3d 632, 641 (Pa. Super. 2017) (citation

omitted), appeal denied, 183 A.3d 97 (Pa. 2018). Although a factfinder

may infer criminal intent beyond a reasonable doubt based on

circumstantial evidence, intent may not be inferred based on mere

possession. See in re A.V., 48 A.3d 1251, 1254 (Pa. Super. 2012).

Here, the evidence demonstrated [Petitioner] used kitchen knives to

threaten Leiphart. Cleary, this was not in a manner appropriate for

lawful use. The evidence supporting [Petitioner’s] conviction for

simple assault is sufficient to sustain his conviction for PIC. See

Robinson, 874 A.2d at 1208-09.

{Petitioner] also challenges his two convictions for harassment. “A

person commits the crime of harassment when, with intent to harass,

annoy or alarm another, the person: [] strikes, shoves, kicks or

otherwise subjects the other person to physical contact, or attempts

or threatens to do the same[.]” 18 Pa. C.S. § 2709(a)(1) (emphasis

added). “An intent to harass may be inferred from the totality of the

circumstances.” Commonwealth v. Cox, 72 A.3d 719, 721 (Pa. Super.

2013).

At trial, multiple witnesses testified [Petitioner] grabbed the buttocks

of several women, including Emily Wallick and Bridget James, thus

subjecting them to physical contact. The evidence also showed

[Petitioner] ignored the women’s request to stop. This is sufficient to

show his intent to harass the women. See Cox, supra at 721; see also

18 Pa. C.S.A. § 2709(a)(1).

Accordingly, for the reasons discussed above, we find the evidence was

sufficient to sustain [Petitioner’s] convictions. His second claim does

not merit relief.

Moss, 2020 WL 618580, at *3-6 (citations to the record omitted).

The standard of review used by a federal court when addressing a claim

regarding the sufficiency of the evidence is “whether after reviewing the evidence

in the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” See Jackson

v. Virginia, 443 U.S. 307, 319 (1979). The credibility of witnesses, the resolution

of conflicts of evidence, and the drawing of reasonable inferences from proven facts

all fall within the exclusive province of the factfinder and, therefore, are beyond the

scope of federal habeas sufficiency review. See id. Accordingly, the only question

under Jackson is whether that finding was so insupportable as to fall below the

threshold of bare rationality.” See Coleman v. Johnson, 566 U.S. 650, 656 (2012).

Upon consideration of the Superior Court’s thorough discussion and the

evidence presented at Petitioner’s trial, as described supra, the Court concludes that

the state courts’ conclusions were a reasonable determination of the facts in light of

the evidence presented, and was neither contrary to, nor an unreasonable application

of, clearly established federal law. To the extent Petitioner challenges the reliability

of the evidence presented against him, a court reviewing a § 2254 petition has “no

license to redetermine credibility of witnesses whose demeanor has been observed

by the state trial court, but not by them.” See Marshall v. Lonberger, 459 U.S. 422,

434 (1983); see also Valenzuela v. Pennsylvania, No. 18-1246, 2019 WL 4139285,

at *1 (E.D. Pa. Aug. 30, 2019) (noting that “[i]t is for the jury to sort out any

inconsistences in the record”); Davis v. Lavan, No. 03-40211, 2004 WL 2166283, at

*9 (E.D. Pa. Sept. 23, 2004) (noting that “a claim that a verdict is against the weight

of the evidence is not cognizable on habeas review because it requires an assessment

of the credibility of the evidence presented at trial, and a state court’s credibility

determinations are binding on a federal habeas court”). Petitioner, therefore, is not

entitled to relief, and Grounds One and Two will be dismissed.

2. Ground Three

As his third ground for relief, Petitioner asserts that the Commonwealth

violated his Fifth, Sixth, and Fourteenth Amendment rights by using evidence at trial

that was not “stated in the indictment or bill of particulars to gain a conviction.”

(Doc. No. 11 at 10.) Plaintiff avers that he was specifically charged with holding a

knife over his head in a stabbing position. (Id.) He claims, however, that the

Commonwealth never offered any evidence that he had done so during the incident.

(Id. at 11.)

With respect to this claim, the Superior Court stated:

In his third claim, [Petitioner] avers the Commonwealth violated his

constitutional rights when “it used evidence at trial that was not stated

in the indictment bills of particulars.” Specifically, [Petitioner]

complains the Commonwealth charged him for holding the knife over

his head in a stabbing position but the witnesses at trial only tested he

was either swinging the knife or brandishing it.

This Court has stated:

A purported variance between the indictment and the offense

proved will not be fatal to the Commonwealth’s case unless it

could mislead the defendant at trial, involves an element of

surprise prejudicial to the defendant’s efforts to prepare his

defense, precludes the defendant from anticipating the

prosecution’s proof, or otherwise impairs a substantial right of

the defendant. Generally stated, the requirement is that a

defendant be given clear notice of the charges against him so that

he can properly prepare a defense.

Commonwealth v. Fulton, 465 A.2d 650, 653 (Pa. Super. 1983)

(citations omitted). Moreover, “a variance between the proof and the

bill of particulars does not require a reversal unless the defendant has

been prejudiced by the variance.” Commonwealth v. Delbridge, 771

A.2d 1, 4-5 (Pa. Super. 2001) (citation omitted), affirmed, 859 A.2d 125

(Pa. 2004).

Here, the criminal information stated in pertinent part, “[Petitioner]

attempted, by physical menace, to put Danny Leiphart in fear of

imminent serious bodily injury, by holding a knife over his head in a

stabbing position and/or stating he was going to get victim.” At trial,

as noted above, multiple witnesses testified that, while holding the

knife, [Petitioner] repeatedly stated he wanted to hurt the victim.

Moreover, the difference between holding the knife over his head and

swinging the knife in the direction of the victim is de minimis.

[Petitioner] has utterly failed to address how this minor discrepancy

between the information and the proof at trial prejudiced him.

Therefore, his third claim does not merit relief. See Delbridge, 771

A.2d at 4-5.

Moss, 2020 WL 618580, at *6-7 (internal citations to the record omitted).

“To determine whether a variance violates the Constitution, federal courts

look to ‘whether or not there has been prejudice to the defendant,’ focusing on the

defendant’s right to notice and his ability to defend himself at trial.” Real v.

Shannon, 600 F.3d 302, 307 (3d Cir. 2010) (quoting United States v. Asher, 854 F.2d

1483, 1497 (3d Cir. 1988)). A variance violates the Constitution “only if it is likely

to have surprised or otherwise has prejudiced the defense.” United States v. Daraio,

445 F.3d 253, 262 (3d Cir. 2006) (citing United States v. Schurr, 775 F.2d 549, 553-

54 (3d Cir. 1985)). In the instant case, Petitioner has not demonstrated that the minor

discrepancy surprised or prejudiced his defense. As discussed supra, the evidence

presented at trial was sufficient to convict Petitioner, and the indictment and bill of

particulars sufficiently informed Petitioner of the charges against him so that he

could prepare an effective defense. See United States v. Somers, 496 F.2d 723, 746

(3d Cir. 1974) (noting that a variance is not unconstitutional unless the defendant

was “so surprised by the proof adduced that he was unable to prepare his defense

adequately”). Petitioner, therefore, has not demonstrated that the state court’s

disposition of his second ground for relief was contrary to, or was an unreasonable

application of, United States Supreme Court precedent. Moreover, Petitioner has

not demonstrated that the state court’s determination of the facts was unreasonable.

Accordingly, Petitioner’s third ground for relief will be dismissed.

3. Ground Four

As his fourth ground for relief, Petitioner asserts that the trial court violated

his Sixth and Fourteenth Amendment rights by depriving him of his right to self-

representation. (Doc. No. 11 at 11.) With respect to this claim, the Superior Court

stated:

In his fourth claim, [Petitioner] contends that the trial court deprived him

of his right of self-representation. We disagree.

We review a trial court’s grant or denial of a defendant’s request to

proceed pro se for an abuse of discretion. Commonwealth v. El, 977

A.2d 1158, 1167 (Pa. 2009). The Pennsylvania Supreme Court has

“defined a court’s discretion as the foundation of reason, as opposed to

prejudice, personal motivations, caprice or arbitrary actions. An abuse

of that discretion is not merely an error of judgment, but . . . [a]

manifestly unreasonable . . . result of partiality, prejudice, bias or ill

will.” Id. (quotations and citation omitted).

In El, our Supreme Court explained,

A criminal defendant’s right to counsel under the Sixth

Amendment includes the concomitant right to waive counsel’s

assistance and proceed to represent oneself at criminal

proceedings. The right to appear pro se is guaranteed as long as

the defendant understands the nature of his choice. In

Pennsylvania, Rule of Criminal Procedure 121 sets out a

framework for inquiry into a defendant’s request for self-

representation. Pa. R. Crim. P. 121. Where a defendant

knowingly, voluntarily, and intelligently seeks to waive his right

to counsel, the trial court . . . must allow the individual to proceed

pro se.

The right to waive counsel’s assistance and continue pro se is not

automatic however. Rather, only timely and clear requests

trigger an inquiry into whether the right is being asserted

knowingly and voluntarily . . . . Thus, the law is well established

that in order to invoke the right of self-representation, the request

to proceed pro se must be made timely and not for purposes of

delay and must be clear and unequivocal.

Id. at 1162-63 (most citations, quotation marks and footnotes omitted).

Our review of the record reveals [Petitioner] never made a clear and

unequivocal assertion of the right to proceed pro se. Rather, the record

shows the trial court made a yeoman’s effort in an attempt to ascertain

what [Petitioner] wanted and to explain to him Pennsylvania law does

not allow his desire, which was clearly hybrid representation. See id.;

see also Commonwealth v. Padilla, 80 A.3d 1238, 1259 (Pa. 2013), cert.

denied, 573 U.S. 907 (2014). The discussion concluded as follows:

THE COURT: So how are you proceeding?

[Petitioner]: I have no choice but to allow counsel to represent

me.

THE COURT: So Mr. Jefferis will be the lead counsel, and you

will be working with him or consult with him?

[Petitioner]: That is correct, sir. However, it is my understanding

that a represented person is allowed to give opening arguments.

That is a Pennsylvania Rule of Criminal Procedure.

THE COURT: Whoever the attorney is may make the opening

argument. In other words, what you can’t do is you can’t cherry

pick or break this up into pieces where you say, I’ll make the

opening statement, you make the closing statement, I’ll examine

this witness, you examine that witness. You can be pro se, or

you can be represented by an attorney. What you don’t get to do

is have this kind of hybrid representation.

[Petitioner]: And I understand that, sir, and like I said, due to my

14-month unjust incarceration, I would not be able to represent

myself.

****

THE COURT: . . . are you still willing to have him proceed as

your counsel?

[Petitioner]: Indeed, I am.

Petitioner did subsequently indicate that he wished to represent himself.

However, immediately thereafter he stated that it didn’t matter who

represented him.

[Petitioner] does not identify any other place in the record where he

clearly requested to proceed pro se. And our independent review has

revealed none. Therefore, the record does not contain a clear and

unequivocal request to proceed pro se. Accordingly, [Petitioner’s]

fourth claim does not merit relief. See El, 977 A.2d at 1162-63.

Moss, 2020 WL 618580, at *7-8 (citations to the record omitted).

“[A] defendant in a state criminal trial has a constitutional right to proceed

without counsel when he voluntarily and intelligently elects to do so.” Faretta v.

California, 422 U.S. 806, 807 (1975). To assert the right to self-representation, a

defendant “must voluntarily and intelligently elect to conduct his own defense, and

most courts require him to do so in a timely manner.” Martinez v. Court of Appeal,

528 U.S. 152, 161-62 (2000). After a defendant asserts such a desire, “he should be

made aware of the dangers and disadvantages of self-representation, so that the

record will establish that he knows what he is doing and his choice is made with eyes

open.” Faretta, 422 U.S. at 835. Courts “must indulge every reasonable

presumption against a waiver of counsel;” therefore, “a defendant must clearly and

unequivocally ask to proceed pro se.” Buhl v. Cooksey, 233 F.3d 783, 790 (3d Cir.

2000). Upon review of the record, the Court cannot conclude that Petitioner clearly

and unequivocally asked to proceed pro se. The colloquy set forth above occurred

prior to the start of Petitioner’s first trial, which, as noted supra, ended in a mistrial.

At no other time did Petitioner clearly and unequivocally ask to proceed pro se.

Petitioner, therefore, has not demonstrated that the state court’s disposition of his

second ground for relief was contrary to, or was an unreasonable application of,

United States Supreme Court precedent. Moreover, Petitioner has not demonstrated

that the state court’s determination of the facts was unreasonable. Accordingly,

Petitioner’s fourth ground for relief will be dismissed.

4. Ground Five

In his fifth ground for relief, Petitioner maintains that the trial court

constructively deprived him of his Sixth Amendment right to effective cross-

examination. (Doc. No. 11 at 12.) He avers that prior to the start of his trial, defense

counsel informed the court that it wanted to raise the fact that Spangler planned to

commit perjury “based [solely] on the threat of imprisonment by the Commonwealth

unless she changed her story to fit the Commonwealth’s neo-version of events to

convict Petitioner.” (Id. at 13.) Petitioner argues that the trial court assured counsel

that this concern could be addressed through cross-examination, but that when

counsel attempted to do so, the trial court sustained the Commonwealth’s objection.

(Id.)

With respect to this claim, the Superior Court noted:

In his fifth claim, [Petitioner] complains the trial court denied him the

right to cross-examine Commonwealth witness Breanne Spangler

effectively. The court sustained the Commonwealth’s objection to a

question about Spangler’s desire not to press charges in the matter. See

Appellant’s Brief, at 13-15. Specifically, [Petitioner] points to the

following:

[Defense Counsel]: At first, you did not want to press charges?

[The Commonwealth]: Objection, Your Honor.

[Defense Counsel]: I think this goes to the witness’s state of

mind.

[The Commonwealth]: Relevance, though.

[Defense Counsel]: Bias.

[The Commonwealth]: Approach?

THE COURT: Come up here.

****

[Defense Counsel]: Your Honor, this would directly go to her—

this would directly go to her bias on why she’s testifying here

today. She changed her mind about pressing charges once her

boyfriend or fiancé was charged.

[The Commonwealth]: It was never her option to press charges

or not. It’s not that she could’ve said, well, I want to press

charges [sic] and this would’ve gone away.

[Defense Counsel]: I know, but she didn’t want to cooperate or

testify to what she testified to here today.

THE COURT: I’m going to sustain the objection.

N.T. Second Trial, 3/12/18, at 92-93.

This Court has held:

[w]ith regard to evidentiary challenges, it is well established that

[t]he admissibility of evidence is at the discretion of the trial

court and only a showing of an abuse of that discretion, and

resulting prejudice, constitutes reversible error. An abuse of

discretion is not merely an error of judgment, but is rather the

overriding or misapplication of the law, or the exercise of

judgment that is manifestly unreasonable, or the result of bias,

prejudice, ill-will or partiality, as shown by the evidence of

record. Furthermore, if in reaching a conclusion the trial court

overrides or misapplies the law, discretion is then abused and it

is the duty of the appellate court to correct the error.

Commonwealth v. Serrano, 61 A.3d 279, 290 (Pa. Super. 2013)

(citations and internal quotation marks omitted).

A criminal defendant has the constitutional right to confront witnesses

against him; this right includes the right of cross-examination. See

Commonwealth v. Buksa, 655 A.2d 576, 578 (Pa. Super. 1995). Cross-

examination can be used to test a witness’s version of the events, to

impeach his credibility, or to establish his motive for testifying. See id.

However, even if we were to find error, an appellant must show that the

court’s decision prejudiced him. Our Supreme Court has stated:

An error will be deemed harmless where the appellate court

concludes beyond a reasonable doubt that the error could not

have contributed to the verdict. If there is a reasonable

possibility that the error may have contributed to the verdict, it is

not harmless. In reaching that conclusion, the reviewing court

will find an error harmless where the uncontradicted evidence of

guilty is so overwhelming, so that by comparison the error is

insignificant . . .

Commonwealth v. Mitchell, 839 A.2d 202, 214-15 (Pa. 2003) (citation

omitted).

In the instant matter, we need not decide whether the trial court erred

in sustaining the objection because, if there was error, it was harmless.

The record reflects Spangler’s fiancé, Leiphart, admitted he threw the

first punch in the altercation in the bar; the Commonwealth charged him

because of it; and he pleaded guilty to harassment. N.T. Second Trial,

312/18, at 135-37, 142-43.

Moreover, there were multiple witnesses to the event, and the

witnesses’ testimony was consistent. See N.T., 3/12-13.18, at 70-80,

97-107, 118-25, 133-42, 154-61, 165-70, 175-87. Thus, regardless of

whether Spangler was reluctant to testify or was biased against

[Petitioner], witnesses Leiphart, James, Graves, Weagler, and the

Wallicks all confirmed her testimony. See id. Given this, we find

[Petitioner] has not and cannot show the absence of this cross-

examination prejudiced him. Therefore, this claim does not merit relief.

See Mitchell, 839 A.2d at 214-15.

Moss, 2020 WL 618580, at *8-9.

As the Eastern District of Pennsylvania recently noted:

The Sixth Amendment guarantees every criminal defendant the right

“to be confronted with the witnesses against him.” This right includes

the ability of every criminal defendant to test the credibility of

witnesses through cross-examination. The Supreme Court held,

however, “[i]t does not follow . . . that the Confrontation Clause of the

Sixth Amendment prevents a trial judge from imposing any limits on

defense counsel’s inquiry into the potential bias of a prosecution

witness.” The trial court instead retains discretion to impose reasonable

limits on the scope of cross-examination “based on concerns about,

among other things, harassment, prejudice, confusion on the issues, the

witness’ safety, or interrogation that is repetitive or only marginally

relevant.” In sum, the Sixth Amendment “guarantees an opportunity

for effective cross-examination, not cross-examination that is effective

in whatever way, and to whatever extent, the defense might wish.”

Heyward v. Garvin, No. 20-6098, 2021 WL 1893218, at *18 (E.D. Pa. May 11,

2021) (citations omitted).

Upon review of the record, the Court agrees with Respondents that Petitioner

has not demonstrated a violation of his Sixth Amendment rights. The trial court’s

limitations on Petitioner’s cross-examination of Spangler was harmless. On cross-

examination, Leiphart admitted that he pled guilty to harassment for punching

Petitioner inside the bar. (Doc. No. 30-1 at 318-19.) Moreover, a review of the trial

transcript indicates that the witnesses against Petitioner provided consistent

testimony regarding the events that occurred. Thus, even if Petitioner had been able

to cross-examine Spangler about her bias, he has not demonstrated that the results

of his trial would have differed. Petitioner, therefore, has not demonstrated that the

state court’s disposition of his second ground for relief was contrary to, or was an

unreasonable application of, United States Supreme Court precedent. Moreover,

Petitioner has not demonstrated that the state court’s determination of the facts was

unreasonable. Thus, Petitioner’s fifth ground for relief will be dismissed.

5. Grounds Six and Seven

As his sixth ground for relief, Petitioner asserts that he was denied a fair trial

when the Commonwealth suppressed then destroyed requested video/audio

evidence. (Doc. No. 11 at 14.) Petitioner maintains that at the end of his first trial,

which ended in a mistrial, the District Attorney violated his Sixth and Fourteenth

Amendment rights by recording testimony on his iPhone and then deleting it before

allowing the defense an opportunity to review it. (Id. at 15.) He avers that the loss

of what actually took place between the District Attorney and witness Devon

Wallick requires that his convictions be vacated. (Id. at 15-16.) In his seventh

ground for relief, Petitioner avers that the Commonwealth failed to disclose

exculpatory evidence in the form of Officer Miller’s supplemental narrative. (Doc.

No. 11 at 16-17.) As discussed above, the Court has concluded that Petitioner

exhausted this claim by attempting to raise it before the Superior Court and that he

was unable to raise it on collateral review. The Court, therefore, will discuss the

merits of this claim below.

With respect to Petitioner’s sixth claim for relief, the Superior Court stated:

In his sixth claim, [Petitioner] argues that the Commonwealth destroyed

evidence in violation of the United States Supreme Court’s decision in

Brady v. Maryland, 373 U.S. 83 (1963). We disagree.

Again, we note that we review evidentiary challenges under an abuse

of discretion standard. Serrano, 61 A.3d at 290.

The law governing alleged Brady violations is settled.

Under Brady and subsequent decisional law, a prosecutor has an

obligation to disclose all exculpatory information material to

the guilt or punishment of an accused, including evidence of an

impeachment nature. To establish a Brady violation, an

appellant must prove three elements: (1) the evidence at issue

was favorable to the accused, either because it is exculpatory or

because it impeaches; (2) the evidence was suppressed by the

prosecution, either willfully or inadvertently; and (3) prejudice

ensued. The burden rests with the appellant to prove, by

reference to the record, that evidence was withheld or suppressed

by the prosecution. The evidence at issue must have been

material evidence that deprived the defendant of a fair trial.

Favorable evidence is material, and constitutional error results

from its suppression by the government, if there is a reasonable

probability that, had the evidence been disclosed to the defense,

the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine

confidence in the outcome.

Commonwealth v. Ovalles, 144 A.3d 957, 965 (Pa. Super. 2016)

(citations and quotation marks omitted) (emphasis added).

In Commonwealth v. Feese, 79 A.3d 1101 (Pa. Super. 2013), this Court

discussed the appropriate standard to apply in cases where, as here, the

appellant alleges the Commonwealth destroyed potentially useful

evidence. The Feese court determined the standard announced by the

United States Supreme Court in Arizona v. Youngblood, 488 U.S. 51

(188) applies, and “unless a criminal defendant can show bad faith on

the part of the police, failure to preserve potentially useful evidence

does not constitute a denial of due process of law.” Feese, 79 A.3d at

1108 (citation omitted). The Court further stated, “[w]hen the value of

such evidence was not clear before its destruction, the burden is on the

defense to demonstrate bad faith.” Id. at 115.

Here, [Petitioner] alleges the Commonwealth destroyed an audio

recording made by the trial prosecution during his initial interview with

Commonwealth witness Devon Wallick. The parties litigated the issue

of the destroyed audio recording at the second hearing on [Petitioner’s]

post-sentence motions.

At the hearing, the Commonwealth explained it had not previously

interviewed Wallick, but it subpoenaed him and he appeared to testify

at [Petitioner’s] first trial. The trial assistant district attorney wanted

Wallick to speak with a detective; because he did not have any paper

with him, he recorded Wallick’s contact information on his cell phone.

He later destroyed the recording. A detective conducted a substantive

interview with Wallick and the Commonwealth turned over the notes

of that interview to [Petitioner].

We have reviewed the record in this matter. [Petitioner] does not

dispute he received the interview notes. Further, the trial court

specifically found the recording was not exculpatory, and noted, “any

exculpatory evidence would have been contained in the actual

interview with detectives, which produced a report, which was turned

over to the defense.” [Petitioner] has not presented any evidence that

would call this finding into doubt. Moreover, [Petitioner] has not

argued any facts demonstrating the Commonwealth acted in bad faith.

Therefore, [Petitioner’s] sixth claim does not merit relief. See Feese,

79 A.3d at 1111.

Moss, 2020 WL 618580, at *9-10 (citations to the record omitted).

Brady violations occur when “(1) evidence was suppressed; (2) the evidence

was favorable to the defense; and (3) the evidence was material to guilt or

punishment.” Simmons v. Beard, 590 F.3d 223, 233 (3d Cir. 2009) (quoting United

States v. Risha, 445 F.3d 298, 303 (3d Cir. 2006)). Evidence is material if “there is

a reasonable probability that, but for the prosecution’s failure to disclose the

evidence, ‘the result of the proceeding would have been different.’” Harshman v.

Sup’t, State Corr. Institution at Rockview, 368 F. Supp. 3d 776, 790 (M.D. Pa. 2019)

(quoting Kyles v. Whitley, 514 U.S. 419, 433-34 (1995). A “reasonable probability”

of a different result exists if the suppression of evidence “undermines confidence in

the outcome of the trial.” Kyles, 514 U.S. at 433-34. Moreover, failing to preserve

potentially useful evidence does not violate due process unless the defendant can

demonstrate that the state acted in bad faith. See Youngblood, 488 U.S. at 58.

Upon review of the record, the Court agrees that Petitioner has not

demonstrated that the deputy district attorney acted in bad faith. The parties litigated

this issue during the second hearing on Petitioner’s post-sentence motions, and the

Commonwealth established that the recording merely contained Devon Wallick’s

contact information so that a follow-up interview—the notes from which were

provided to the defense—could be scheduled. (Doc. No. 30-1 at 719-37.) Moreover,

as noted during the hearing, Petitioner received a full opportunity to cross-examine

Wallick during his trial. (Id. at 734.) Nothing in the record suggests that, but for the

prosecution’s failure to produce this recording, the result of Petitioner’s trial would

have been different. Petitioner, therefore, has not demonstrated that the state court’s

disposition of his second ground for relief was contrary to, or was an unreasonable

application of, United States Supreme Court precedent. Moreover, Petitioner has

not demonstrated that the state court’s determination of the facts was unreasonable.

Accordingly, his sixth ground for relief will be dismissed.

In his seventh ground, Petitioner maintains that the Commonwealth violated

Brady by not disclosing a copy of Officer Miller’s supplemental narrative. (Doc.

No. 11 at 16-17.) Petitioner suggests that the supplemental narrative indicates that

both Leiphart and an individual named Scott hit Petitioner. (Id. at 17.) Petitioner

avers that Leiphart “was viewed talking to Petitioner and then punched Petitioner.

Scott was then viewed pushing [Leiphart] out of the way and punching Petitioner as

well.” (Id.) While the actual supplemental narrative is not in the record, the Court

concludes that, in light of Petitioner’s representations, Petitioner has not

demonstrated that, but for the Commonwealth’s failure to disclose this narrative, the

outcome of his trial would have been different. As discussed supra, the

Commonwealth presented ample and sufficient evidence to support Petitioner’s

convictions for simple assault, possession of an instrument of crime, and harassment.

Accordingly, Petitioner’s seventh ground for relief will be dismissed.

6. Ground Eight

As his eighth ground for relief, Petitioner maintains that the trial court erred

by denying his motion to appoint a neurological/head trauma expert. (Doc. No. 11

at 19.) According to Petitioner, he was assaulted by multiple individuals and

received “numerous blows” to the head, causing him to fall on a hardwood floor.

(Id. at 21.) Petitioner maintains that he had severe head trauma and a concussion,

and that if he “performe[d] the proceeding criminal acts in a fog brought on by the

blows to his head by the victim, [he] is not guilty of any crime.” (Id.) He avers that

the trial court denied him due process when it prohibited him from “using mental

disease and capacity evidence directly to rebut the prosecution’s evidence that

Petitioner did form mens rea.” (Id.)

With respect to this claim, the Superior Court wrote:

In his eighth claim, [Petitioner] argues the trial court erred in denying

his motion for appointment of a neurological/head trauma expert. We

disagree.

There are several procedural issues with [Petitioner’s] motion. First,

[Petitioner] filed this motion pro se on February 26, 2018. At that time,

counsel represented [Petitioner]. As we have noted above, [Petitioner]

is not entitled to hybrid representation. See Padilla, 80 A.3d at 1259.

Therefore, courts in this Commonwealth “will not accept a pro se

motion while an appellant is represented by counsel; indeed, pro se

motions have no legal effect and, therefore, are legal nullities.”

Commonwealth v. Williams, 151 A.3d 621, 623 (Pa. Super. 2016)

(citation omitted).

Secondly, at the time [Petitioner] filed the motion, the court had not

granted him in forma pauperis status and retained counsel represented

him. Our rules only require the allocation of funds for an expert witness

for indigent defendants. See 50 P.S. § 7402(f). Lastly, the motion was

untimely. The Pennsylvania Rules of Criminal Procedure require a

defendant give notice of a defense of insanity or mental infirmity “not

later than the time required for filing an omnibus pretrial motion

provided in Rule 579.” Pa. R. Crim. P. 568(a)(1). Here, that time

expired in May 2017, approximately ten months before [Petitioner]

filed his motion. See Pa. R. Crim. P. 579(A).

Further, as the trial court correctly notes, a diminished capacity defense

is only available if the Commonwealth charges a defendant with murder

in the first degree. See Commonwealth v. Russell, 938 A.2d 1082, 1092

(Pa. Super. 2007) (citations omitted). Moreover, an insanity defense is

generally only available in cases where the defendant acknowledges

commission of the act, not in a case such as this where a defendant

asserts his innocence. See Commonwealth v. Hughes, 865 A.2d 761,

788 (Pa. 2004) (stating, “[a] defense of insanity acknowledges

commission of the act by the defendant, while maintaining the absence

of legal culpability”).

In any event, [Petitioner’s] claim is based on his unsupported

contention, “there [was] a reasonable probability that the [Petitioner]

was suffering from a concussion due to the multiple blows to the head

inflicted upon [Petitioner,]” during the altercation inside the bar and

this probable concussion somehow negated his ability to form the

requisite intent. Our review of the record shows [Petitioner] has never

claimed he sought medical treatment following the incident and has

never offered any medical documentation to support his speculative

contention he suffered a concussion because of the altercation. For the

reasons discussed above, [Petitioner’s] eighth claim does not merit

relief.

Moss, 2020 WL 618580, at *11.

The Supreme Court has held that “when a State brings its judicial power to

bear on an indigent defendant in a criminal proceeding, it must take steps to assure

that the defendant has a fair opportunity to present his defense.” Ake v. Oklahoma,

470 U.S. 68, 76 (1985). Thus, “fundamental fairness entitles indigent defendants to

those ‘basic tools’ necessary to launch a meaningful defense.” Christy v. Horn, 28

F. Supp. 2d 307, 319 (W.D. Pa. 1998) (citing Ake, 470 U.S. at 77). Thus, when an

indigent defendant demonstrates that his sanity at the time of the offense will be a

significant factor at trial, the state must provide a mental health professional capable

of evaluating the defendant and assisting in the preparation and presentation of the

defense. McWilliams, 137 S. Ct. at 1794

In the instant matter, however, Petitioner has not demonstrated that the trial

court violated his due process rights by denying his motion to appoint a

neurological/head trauma expert. At the time, Petitioner was not indigent and was

represented by retained counsel, which would have led to an improper use of funds

had his motion been granted. Moreover, nothing in the record indicates that

Petitioner acknowledged that he committed the acts alleged, which is a requirement

to rely on an insanity defense, and, as noted supra, a diminished capacity defense

was not available because he was not charged with first-degree murder. Finally, the

record is devoid of any medical evidence substantiating Petitioner’s contention that

expert testimony was necessary. Petitioner, therefore, has not demonstrated that the

state court’s disposition of his second ground for relief was contrary to, or was an

unreasonable application of, United States Supreme Court precedent. Moreover,

Petitioner has not demonstrated that the state court’s determination of the facts was

unreasonable. Accordingly, his eighth ground for relief will be dismissed.

7. Ground Nine

As his ninth ground for relief, Petitioner asserts that he was deprived of his

Sixth Amendment right to a speedy trial, which warranted dismissal of the

indictment. (Doc. No. 11 at 21.) With respect to this claim, the Superior Court

stated:

In his final claim, [Petitioner] argues the trial court erred in denying his

speedy trial motion. To address this issue we observe the following

standards.

“When reviewing a trial court’s decision in a Rule 600 case, an

appellate court will reverse only if the trial court abused its discretion.”

Commonwealth v. Bradford, 46 A.3d 693, 700 (Pa. 2012). Moreover,

[t]he proper scope of review . . . is limited to the evidence on the

record of the Rule 600 evidentiary hearing, and the findings of

the trial court. An appellate court must view the facts in the light

most favorable to the prevailing party.

****

So long as there has been no misconduct on the part of the

Commonwealth in an effort to evade the fundamental speedy

trial rights of an accused, Rule 600 must be construed in a

manner consistent with society’s right to punish and deter crime.

In considering these matters . . ., courts must carefully factor into

the ultimate equation not only the prerogatives of the individual

accused, but the collective right of the community to vigorous

law enforcement as well.

Commonwealth v. Peterson, 19 A.3d 1131, 1134 (Pa. Super. 2011) (en

banc), affirmed, 44 A.3d 655 (Pa. 2012) (citations omitted).

We have reviewed the certified record, the briefs of the parties, and the

trial court’s opinion. The trial court ably and methodically addressed

this issue in its Rule 1925(a) opinion. Accordingly, we adopt the trial

court’s reasoning, found on pages 42-45 of its opinion, as our own for

the disposition of this issue. See Trial Court Opinion, 4/26/19, at 42-

45 (holding mechanical run date was January 15, 2018; trial was set for

July of 2017 but defense counsel requested continuance due to

unavailability; next available trial date was in September 2017; 57 days

were attributable to defense; therefore trial started before adjusted

mechanical run date of March 13, 2018); see also N.T., 3/7/18, at 24-

27. [Petitioner’s] ninth and final claim does not merit relief.

Moss, 2020 WL 618580, at *11.

As an initial matter, although Petitioner specifically asserted a Sixth

Amendment violation on direct appeal (Doc. No. 30-1 at 786), the state courts only

addressed is as a Rule 600 issue. The Third Circuit has specifically held that claims

alleging violations of Pennsylvania’s speedy trial rule are not cognizable. See Wells

v. Petsock, 941 F.2d 253, 256 (3d Cir. 1991) (explaining that Rule 600,

Pennsylvania’s speedy trial rule, is not equivalent to the Sixth Amendment right).

Thus, to the extent Petitioner bases this ground for relief upon state law, it is not

cognizable and is subject to dismissal.

The Sixth Amendment guarantees a defendant’s right to a speedy trial. When

considering whether that right has been violated, courts must consider the following

four (4) factors: (1) the length of the delay; (2) the reason for the delay; (3) the

defendant’s assertion of the right; and (4) prejudice to the defendant. See Barker v.

Wingo, 407 U.S. 514, 530 (1972). The Supreme Court has explained that “[t]he

length of the delay is to some extent a triggering mechanism. Until there is some

delay which is presumptively prejudicial, there is no necessity for inquiry into the

other facts that go into the balance.” Id. Generally, delays of one (1) year or more

may trigger analysis of the other Barker factors. See Doggett v. United States, 505

U.S. 647, 652 n.1 (1992).

As noted supra, Petitioner was arrested on January 15, 2017, and was not tried

until March 18, 2018. The delay of over one (1) year, therefore, triggers analysis of

the other Barker factors. As noted by the state courts in their analysis of Petitioner’s

Rule 600 claim, the continuances were requested by defense counsel. Nothing in

the record suggests that Petitioner ever asked counsel to file a speedy trial request.

Furthermore, nothing in the record demonstrates that Petitioner’s ability to present a

defense was impaired in any way due to the delay, or that he suffered any other

prejudice. Accordingly, Petitioner’s ninth claim for relief will be dismissed.

8. Ground Ten

As noted supra, Petitioner asserts several arguments regarding ineffective

assistance of counsel in Ground Ten. Some of those arguments are unexhausted

because Petitioner never raised them in state court. The claims that are exhausted,

however, are as follows: (1) counsel failed to object to false statements made by the

Commonwealth in their opening statement; (2) counsel failed to object to solicitation

of false testimony; (3) counsel failed to object to assertions made in the

Commonwealth’s closing argument; (4) counsel failed to object to the

Commonwealth vouching for a witness; (5) counsel failed to request certain jury

instructions; (6) constructive deprivation of counsel; and (7) counsel was ineffective

for not being prepared for trial.

For claims of ineffective assistance of counsel raised in a habeas petition, the

Court must consider the two components to demonstrating a violation of the right to

effective assistance of counsel as set forth by the Supreme Court in Strickland v.

Washington, 466 U.S. 668 (1984). First, the petitioner must show that counsel’s

performance was deficient. This requires showing that “counsel’s representation fell

below an objective standard of reasonableness.” See id. at 688; see also Williams v.

Taylor, 529 U.S. 362, 390-91 (2000). Second, under Strickland, the petitioner must

show that he was prejudiced by the deficient performance. “This requires showing

that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable.” Strickland, 466 U.S. at 687. To establish prejudice, the

defendant “must show that there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” See id. at 694. The Strickland test is conjunctive and a habeas petitioner

must establish both the deficiency in the performance prong and the prejudice

prong. See Strickland, 466 U.S. at 687; Dooley v. Petsock, 816 F.2d 885, 889 (3d

Cir. 1987). As a result, if a petitioner fails on either prong, he loses. See Holladay

v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000) (“Because both parts of the test must

be satisfied in order to show a violation of the Sixth Amendment, the court need not

address the performance prong if the defendant cannot meet the prejudice prong, or

vice versa.”) (citation omitted); Foster v. Ward, 182 F.3d 1177, 1184 (10th Cir.

1999) (“This court may address the performance and prejudice components in any

order, but need not address both if Mr. Foster fails to make a sufficient showing of

one.”).

The two-pronged test established in Strickland “qualifies as ‘clearly

established Federal law’” for purposes of the AEDPA. See Rainey v. Varner, 603

F.3d 189, 197 (3d Cir. 2010) (quoting Williams v. Taylor, 529 U.S. 362, 391 (2000)).

Therefore, under § 2254(d)(1), the relevant inquiry in assessing ineffectiveness

claims that have been adjudicated on the merits is whether the state court’s decision

involved an unreasonable application of Strickland or are based on an unreasonable

determination of the facts. See Jacobs v. Horn, 395 F.3d 92, 107 n.9 (3d Cir. 2005).

Moreover, Pennsylvania’s three-pronged test for ineffective assistance claims, see

Commonwealth v Pierce, 515 Pa. 153, 527 A.2d 973, 975-77 (Pa. 1987), is not

contrary to Strickland, see Jacobs, 395 F.3d at 107 n.9.

As noted supra, the Superior Court dismissed Petitioner’s ineffective

assistance claims as premature. “In considering a § 2254 petition, we review the

‘last reasoned decision’ of the state courts on the petitioner’s claims.” Simmons v.

Beard, 590 F.3d 223, 231-32 (3d Cir. 2009) (citing Bond v. Beard, 539 F.3d 256,

289-90 (3d Cir. 2008)). The trial court considered Petitioner’s ineffective assistance

claims on their merits in its Rule 1925(a) opinion. The Court, therefore, will

consider that opinion when considering Petitioner’s remaining ineffective assistance

claims. With respect to Petitioner’s ineffective assistance claims, the trial court

wrote:

The [Petitioner] opines that the Commonwealth made false statements

during its opening statement that prejudiced the [Petitioner]. First, the

[Petitioner] argues that as this Court found him not guilty of public

drunkenness then it was false for the A.D.A. to label the [Petitioner] as

a drunk. The first prong of the test for ineffectiveness queries whether

there is any arguable merit to the claim. Commonwealth v. Cox, 983

A.2d 666, 678 (Pa. 2009) (citation omitted). There is no arguable merit

to this claim. All juries are informed that opening statements are not

evidence. Whether or not the [Petitioner] was in fact intoxicated has

no bearing upon the charges that were being decided by the jury.

Brittany Graves described the [Petitioner’s] behavior in a manner that

evidenced his decline as he imbibed. Danny Leiphart described the

[Petitioner] as drunk. Just because the Court chose not to credit the

testimony does not mean that the Commonwealth misled the jury in

their opening statement. Moreover, the prosecutor, at the time of these

remarks, was pursuing a public drunkenness charge. It stands to reason

that the Commonwealth believed that the evidence that would be

adduced would bear out that charge. Additionally, the third prong of

the test for ineffectiveness is also not met where there was no prejudice

to the [Petitioner]. As addressed supra, the Commonwealth presented

sufficient evidence to convict the [Petitioner] of the charges that the

jury found him guilty of. Per Pierce, we cannot find that, but for any

error on counsel’s part in not objecting to the Commonwealth’s

opening, there was a reasonable probability of a different outcome to

the proceeding. 786 A.2d at 213. As the [Petitioner] cannot meet two

of the prongs for the test for ineffectiveness, the claim cannot succeed.

Therefore, there would have been no merit to a hearing on this claim

and we ask for affirmance.

Regarding the [Petitioner’s] second sub-claim, that the

Commonwealth’s opening misled the jury regarding the initial incident

in which Danny Leiphart punched the [Petitioner], we are unsure as to

exactly what the [Petitioner] is claiming. Ms. Spangler testified that the

[Petitioner’s] wife left without him and prior to the [Petitioner] being

punched by Danny Leiphart. This accords with the Commonwealth’s

opening statement. It is true that Danny Leiphart and Ron Weagley’s

testimony support the [Petitioner’s] contention that he left with his wife

and returned without her prior to the first instance of fisticuffs.

However, an objection by trial counsel would not have succeeded

where the Commonwealth was allowed to tell the jury what evidence

they believed that they would elicit and so there is no merit to the claim.

Cox, supra. Moreover, the [Petitioner] suffered no prejudice where the

jury was fully aware that Danny Leiphart had been charged and

convicted for his conduct in punching the [Petitioner] and where Danny

Leiphart testified himself that he confronted the [Petitioner] upon the

[Petitioner’s] return. Cox, supra. This seems like nothing more than

an instance in which some of the testimony slightly differed from the

initial picture painted by the Commonwealth. It is a common

occurrence in trials and not one for which we believe trial counsel could

have been found ineffective. We pray for affirmance as to this matter.

[Petitioner] believes his trial counsel was ineffective for failing to

object to Officer Miller testifying that he had no indication, beyond the

[Petitioner’s] statement to him, that the [Petitioner’s] wife had returned

to the bar. [Petitioner] submits that this is in direct contradiction of the

testimony offered by Ron Weagley that the [Petitioner’s] wife was

outside of the bar after the first incident. We see no contradiction. Mr.

Weagley testified that he discovered that the [Petitioner’s] wife had

been outside the bar during the initial incident. Unless we are wholly

misunderstanding the [Petitioner’s] point, A.D.A. Swisher, in

questioning Officer Miller, was seemingly referring to whether there

was any evidence of the [Petitioner’s] wife having returned to the bar

after having left with the [Petitioner]. This could have encompassed

Mr. Weagley’s testimony that the [Petitioner] and his wife were outside

of the bar together after the first incident. Nothing in Mr. Weagley’s

testimony indicated that the [Petitioner’s] wife stayed behind after she

and Mr. Weagley convicted the [Petitioner] to go him. From this,

Officer Miller might have gleaned that the [Petitioner’s] wife did not

return to the bar after this point. It is only the [Petitioner’s] wife who

indicated that she did not accompany her husband home after he had

spoken to Ron Weagley. The [Petitioner’s] wife testified after Officer

Miller. WE see no merit to the claim. Cox, supra. The [Petitioner]

cannot meet the first prong of the test for ineffectiveness—a test in

which all three prongs must be met. This PCRA claim would have

failed and so we ask for affirmance.

The [Petitioner] alleges ineffectiveness in his counsel’s failure to object

to the Commonwealth attorney indicating that Ron Weagley testified

that the [Petitioner] and his wife left together after the first incident. In

support of this, the [Petitioner] cites to Ron Weagley testifying that he

watched the [Petitioner] proceed down the alley after the first incident.

This elides the fact that Mr. Weagley, in the referenced section, was

speaking of the [Petitioner] and not of the location of the [Petitioner’s]

wife. The jury was free to make inferences regarding the testimony and

decide for themselves what actually happened. In Commonwealth v.

Koehler, the Supreme Court of Pennsylvania stated the following

regarding prosecutorial misconduct:

[A] claim of ineffective assistance grounded in trial counsel’s

failure to object to a prosecutor’s conduct may succeed when the

petitioner demonstrates that the prosecutor’s actions violated a

constitutionally or statutorily protected right, such as the Fifth

Amendment privilege against compulsory self-incrimination or

the Sixth Amendment right to a fair trial, or a constitutional

interest such as due process. To constitute a due process

violation, the prosecutorial misconduct must be of sufficient

significance to result in the denial of the defendant’s right to a

fair trial. The Touchstone is fairness of the trial, not the

culpability of the prosecutor. Finally, not every intemperate or

improper remark mandates the granting of a new trial;

reversible error occurs only when the unavoidable effect of the

challenged comments would prejudice the jurors and form in

their minds a fixed bias and hostility toward the defendant such

that the jurors could not weigh the evidence and render a true

verdict.

36 A.3d 121, 144 (Pa. 2012) (internal citations and quotation marks

omitted). We cannot find that the jurors would have been so prejudiced

by this potential mischaracterization by the Commonwealth attorney as

to have been unable to render a true verdict. The [Petitioner], then,

cannot meet the third prong of the test for ineffectiveness outlined in

Cox, supra. Counsel could not have been found ineffective on this

matter and so the [Petitioner] suffered no harm regarding his PCRA not

having been heard on the matter. We request affirmance.

The [Petitioner] also points to the Commonwealth attorney

characterizing witness testimony as supporting a view that the

[Petitioner] was swinging knives and ranting and raving as an example

of mischaracterization in his closing and to which defense counsel

should have objected. As recounted in our facts section above, various

witnesses testified that Ms. Spangler restrained [Petitioner’s] knife-

wielding hand or the blade itself and that the [Petitioner] was taunting

Danny about the [Petitioner’s] new knife. We see no

mischaracterization. There is neither merit to the claim, nor prejudice

to the [Petitioner]. We ask for affirmance as to this matter complained

of on appeal.

The [Petitioner] believes his counsel was ineffective for failing to

object to the prosecution’s argument to not be confused by defense

arguments about Danny Leiphart being the actual aggressor. Ab initio,

we believe the claim is waived for failure to develop it. Even if it is

sufficiently developed, there is no merit to this claim. Cox, supra. “A

prosecutor ‘has great discretion during closing argument’ and is ‘free

[to present] his [or her closing] arguments with logical force and

vigor.’” Commonwealth v. Cash, 137 A.3d 1262, 1273 (Pa. 2016)

(quoting Commonwealth v. Eichinger, 108 A.3d 821, 836 (Pa. 2014)).

And, “‘[p]rosecutorial comments based on the evidence or reasonable

inferences therefrom are not objectionable, nor are comments that

merely constitute oratorical flair.’” Ibid. (quoting Commonwealth v.

Chmiel, 30 A.3d 1111, 1146 (Pa. 2011). Additionally, the

Commonwealth is permitted, in its closing, to confront the arguments

of the defense. See Commonwealth v. Miller, 172 A.3d 632, 644 (Pa.

Super. Ct. 2017). The Commonwealth was merely confronting the

[Petitioner’s] justification defense. It is facially apparent that the

[Petitioner] cannot meet all three prongs of the test for ineffectiveness

and this claim would have failed following a PCRA hearing. We seek

affirmance as to this matter complained of.

The [Petitioner] submits numerous allegations of trial counsel

ineffectiveness for failing to garner the giving of instructions he wished

the jury to have heard. We address them as succinctly as possible.

There is no merit to a claim that trial counsel was ineffective for not

procuring an instruction on the right to bear arms. The right to bear

arms does not bear upon a charge of simple assault. The right to bear

arms does not grant a person the right to assault someone. There is no

merit to the claim. Trial counsel was not ineffective for failing to obtain

instruction on this precept. The [Petitioner] cannot meet at least one of

the prongs of a test in which he must meet all three and so the PCRA

claim would have failed anyway.

The [Petitioner] was not prejudiced by trial counsel not requesting an

instruction on justification—defense of others. For, even if counsel

erred in failing to request a needed instruction, ineffectiveness will only

be found where prejudice is also shown. See Commonwealth v. Knight,

611 A.2d 1199 (Pa. Super. Ct. 1992); Commonwealth v. Potts, 566 A.2d

287 (Pa. Super. Ct. 1989). The jury having heard that the [Petitioner]

was taunting Danny Leiphart about [Petitioner’s] new knife and making

statements about wanting to hurt Danny and not Ms. Spangler, we

cannot find that a different result would have occurred had the

instruction been requested. The [Petitioner] cannot meet at least one of

the prongs of a test in which he must meet all three and so the PCRA

claim would have failed anyway.

The [Petitioner] was not prejudiced by his counsel’s failure to request

an instruction on use of force to protect property. As with his desired

defense of others instruction, the force of evidence adduced to show

that the [Petitioner] wished simply to assault Danny Leiphart convinces

this Court that the [Petitioner] was not prejudiced. No different result

would have occurred had the jury been instructed on the defense of

property. Counsel was not ineffective on this charge. Moreover,

though it is possible this Court has overlooked some evidence, we do

not find evidence in the trial transcript regarding the [Petitioner] having

been robbed or needing to defend property. Thus, he likely would not

have been entitled to an instruction on the defense of property. See

Commonwealth v. Butler, 533 A.2d 992 (Pa. 1987). The [Petitioner]

cannot meet at least one of the prongs of a test in which he must meet

all three and so the PCRA claim would have failed anyway.

For the reasons already stated (i.e. the [Petitioner] taunted Danny

Leiphart and stated his desire to hurt Danny Leiphart), the [Petitioner’s]

additional desired instructions on use of a device to protect property,

use of force to pass a wrongful obstructor, and peace officer’s use of

force in making an arrest also necessarily fail. The [Petitioner] simply

was not prejudiced by any failure of his counsel to request his desired

instructions where the overwhelming weight of the evidence

demonstrated that the [Petitioner] was spoiling for a fight with Danny

Leiphart. Counsel’s actions did not prejudice the [Petitioner] and a

PCRA hearing would not have developed any more useful evidence to

support such a contention. We request affirmance as to these matters

complained of on appeal.

The [Petitioner] complains that his counsel did not file motions he

wished to have been filed. It must be noted that the [Petitioner]

complains of the actions of his first trial counsel, who was replaced

following the mistrial. The [Petitioner] ignores the ethical duty of

lawyers not to burden courts with motions they deem frivolous.

Moreover, the [Petitioner] filed numerous pretrial motions pro se,

which were addressed by this Court prior to trial. As addressed in our

response to the [Petitioner’s] claim that he was deprived of his right to

self-represent, the transcripts bear out that the [Petitioner] sought at all

times to avail himself of all of the advantages of counsel and of being

pro se. His pro se motions were addressed by this Court. Thus no

prejudice accrued to the [Petitioner]. The [Petitioner] cannot meet at

least one of the prongs of a test in which he must meet all three and so

the PCRA claim would have failed anyway. We therefore humbly

request affirmance on this matter.

The [Petitioner] also complains that his first trial counsel admitted his

guilt to certain crimes in contravention of the holding in McCoy v.

Louisiana, 138 S. Ct. 1500 (2018) (holding in part that counsel could

not cede defense of a charge without consent of the accused). We agree

wholeheartedly with the [Petitioner]. However, the rub is that

[Petitioner’s] first trial ended in a mistrial. Any failures of his first trial

counsel did not harm the [Petitioner] on retrial. The [Petitioner] has

suffered no prejudice. The [Petitioner] cannot meet at least one of the

prongs of a test in which he must meet all three and so the PCRA claim

would have failed anyway. We pray for affirmance as to this matter

complained of on appeal.

The [Petitioner] argues that his trial counsel was ineffective as a result

of the limited time that she and the [Petitioner] spent in preparation

together. We disagree.

To begin, we note that, at the conclusion of the mistrial, the following

exchange occurred with [Petitioner’s] first trial counsel, whose firm

supplied [Petitioner] with retrial counsel:

Court: Well, I’m noting that you indicated yesterday there was

an attorney prepared to take your place, so I’m kind of

holding you to that.

Defense: Absolutely, Your Honor.

Moreover, the [Petitioner] was aware, at the time of trial, of the issues

he highlights as wishing to have discussed with his trial counsel—save

for a lack of time. Though the [Petitioner] alleges he did not have

enough time to prepare with substitute counsel, the [Petitioner] could

have alerted counsel to these issues during trial. Finally, this complaint

lacks merit where it contradicts, in part, the [Petitioner’s] earlier claim

that this Court denied his right to self-representation. By his own

complaints, the [Petitioner] alleges that he was ready to steward his own

case. It follows, then, that the [Petitioner] was perfectly capable of

aiding his trial counsel and informing her of areas that he wished her to

delve into. Specifically, [Petitioner’s] allegation that his $100.00 bill

and $200.00 Carhartt jacket were stolen at Kiro’s could have easily

been discussed with his counsel during the course of the trial and put to

the test. The [Petitioner’s] allegation that his vehicle was parked at

“T7S Trophies” is incongruent with the testimony of the [Petitioner’s]

wife and Ron Weagley about the [Petitioner] walking him after the first

altercation when Danny Leiphart and his cohort were still inside Kiro’s.

The [Petitioner] does not allege that counsel was unwilling to hear him

out; but, rather, that there was insufficient time with his trial counsel.

This is patently false. There is no merit to this claim of ineffectiveness.

In addition to failing to meet the first prong of the test for

ineffectiveness, the [Petitioner] cannot meet the prejudice prong of the

test for ineffectiveness. The overwhelming evidence, as illustrated in

the fact section of this opinion, indicates that the [Petitioner] was

taunting Danny Leiphart with a knife, was attempting to get at Danny,

and proclaiming his desire to harm Danny. Moreover, the [Petitioner’s]

wife called Ron Weagley to warn him that the [Petitioner] was,

depending on whose version of events is to be believed, returning with

a knife or “something” and not to allow the [Petitioner] entry to the bar.

This evidences the [Petitioner’s] wife’s state of mind regarding the

[Petitioner’s] return to Kiro’s. Additionally, the [Petitioner] was

carrying a kitchen drawer’s worth of knives. Though the [Petitioner] is

sure to argue that not all of the knives located were found on him, some

knives were found on the [Petitioner] and others were located along the

[Petitioner’s] path of travel. As a typical person could defend

themselves with, at most, two knives at one time, the jury could

reasonably infer nefarious intent from the sheer number of knives the

[Petitioner] brought to an altercation in which no one testified that

Danny Leiphart displayed any weaponry. The [Petitioner] suffered no

prejudice from lack of evidence being presented that he may have had

some legitimate reasons to return to the bar. The [Petitioner’s]

illegitimate reason was on full display for the jury. The [Petitioner]

cannot meet at least one of the prongs of a test in which he must meet

all three and so the PCRA claim would have failed anyway. We hope

for affirmance on this matter complained of on appeal.

(Doc. No. 30-1 at 817-27) (sub-headings and citations to the record omitted).

Upon review of the record, the Court concurs with the trial court’s thorough

opinion regarding Petitioner’s ineffective assistance of counsel claims. As discussed

supra, the Commonwealth presented sufficient evidence to convict Petitioner such

that Petitioner was not prejudiced by counsel’s failure to take any of the actions set

forth in the trial court’s Rule 1925(a) opinion. Petitioner, therefore, has not

demonstrated that the state court’s disposition of his second ground for relief was

contrary to, or was an unreasonable application of, United States Supreme Court

precedent. Moreover, Petitioner has not demonstrated that the state court’s

determination of the facts was unreasonable. Accordingly, his tenth claim for relief

will be dismissed.

IV. CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 2253(c)(1)(A), unless a circuit justice or judge issues

a certificate of appealability (“COA”), an appeal may not be taken from a final order

in a proceeding initiated pursuant to 28 U.S.C. § 2254. A COA may issue only if

the applicant has made a substantial showing of the denial of a constitutional right.

See 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating

that jurists of reason could disagree with the district court’s resolution of his

constitutional claims or that jurists could conclude the issues presented are adequate

to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322,

327 (2003). “When the district court denies a habeas petition on procedural grounds

without reaching the prisoner’s underlying constitutional claim, a COA should issue

when the prisoner shows, at least, that jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right and

that jurists of reason would find it debatable whether the district court was correct in

its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). In the case at

bar, jurists of reason would not find the disposition of this case debatable.

Accordingly, the Court will not issue a COA in this case.

V. CONCLUSION

For the following reasons, Petitioner’s amended § 2254 petition (Doc. No. 11)

will be denied and a COA will not issue. An appropriate Order follows.

s/ Sylvia H. Rambo

United States District Judge

Dated: July 14, 2021