PAL v. SUPERINTENDENT, STATE CORRECTIONAL INSTITUTION AT GREENE

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

NEIL PAL, :

Petitioner : CIVIL ACTION NO. 1:19-1589

v. : (JUDGE MANNION)

SUPERINTENDENT, SCI- :

GREEN, et al.,

:

Respondents

:

MEMORANDUM

Pending before the court is the report of United States Magistrate

Judge Martin C. Carlson, which recommends that that the petition for writ of

habeas corpus filed in the above-captioned matter be denied and a certificate

of appealability not issue. (Doc. 19).1 The petitioner has filed objections to

Without excuse, the court notes that an oversight in case management

has resulted in a decision on this matter being long overdue. However, rather

than filing a notice on the docket to bring the matter to the court’s attention,

the petitioner’s present counsel instead proceeded to file a petition for writ of

mandamus in the Third Circuit Court of Appeals. See United States Court of

Appeals, Third Circuit, Case No. 24-1940. Although counsel indicates in his

petition that both he (Craig Cooley) and prior counsel (David Foster)

corresponded with the court and that said correspondence “fell on deaf ears,”

a review of the docket in this matter reflects no correspondence of any kind,

let alone related to the pendency of this case. In fact, since this matter was

reassigned to the undersigned, except for Mr. Foster’s filing of his Objections

to Judge Carlson’s R&R (Doc. 20) and his supporting brief (Doc. 21) there

was not a single filing, notice or correspondence from Mr. Foster to alert the

court that this matter had been pending for an unusually long time. Likewise,

(footnote continued on next page)

the report and recommendation (Doc. 20), along with a notice of

supplemental authority and briefing (Doc. 21). Based upon the court’s review

of the record, the petitioner’s objections will be OVERRULED, and the report

and recommendation will be ADOPTED IN ITS ENTIRETY.

When objections are timely filed to the report and recommendation of

a magistrate judge, the district court must review de novo those portions of

the report to which objections are made. 28 U.S.C. '636(b)(1); Brown v.

Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo,

the extent of review is committed to the sound discretion of the district judge,

and the court may rely on the recommendations of the magistrate judge to

the extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa.

2000) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).

despite his accusations, there is not a single filing by Mr. Cooley, except for

his initial notice of appearance (Doc. 22), to notify the court that this matter

has been pending without decision. Rather, his first and only filing in this

matter was his entry of appearance on November 2, 2023 (Doc. 22). In

response to his entry of appearance, a docket annotation by the Clerk of

Court reflects that counsel was notified that he was required to either file for

pro hac vice or general admission as he is not currently admitted to practice

in the Middle District of Pennsylvania. (See docket entry of 11/02/2023).

Despite this notice, it does not appear counsel has done either and is

currently not properly before the court in this matter. It is respectfully

suggested that competent, professional counsel would notify the court in a

docketed correspondence or appropriate motion if a matter is perceived to

have slipped between the proverbial cracks and needed to be brought to the

court’s attention.

For those sections of the report and recommendation to which no

objection is made, the court should, as a matter of good practice, Asatisfy

itself that there is no clear error on the face of the record in order to accept

the recommendation.@ Fed. R. Civ. P. 72(b), advisory committee notes; see

also Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469

(M.D.Pa. 2010) (citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir.

1987) (explaining judges should give some review to every report and

recommendation)). Nevertheless, whether timely objections are made or not,

the district court may accept, not accept, or modify, in whole or in part, the

findings or recommendations made by the magistrate judge. 28 U.S.C.

'636(b)(1); Local Rule 72.31.

In reviewing his objections, the petitioner makes no substantive

challenge to the factual background of this matter as extracted by Judge

Carlson from the Pennsylvania Superior Court decision affirming the denial

of the petitioner’s petition for post-conviction relief. That background is set

forth as follows:

Appellant and Jason Dominick (“Dominick”) were best friends.

Dominick had a long-time volatile relationship with Keri Tucker

(“Tucker”). From March through May 2013, Tucker and Frank

Bonacci (“Bonacci”) were involved romantically, while Tucker

and Dominick were not seeing each other. On May 5, 2013,

Dominick sent a text message to appellant, which stated, “just so

you know, [appellant], I’m cool with your boy [Bonacci], but if he

ever gets cocky around me I will just snuff him.” Bonacci and

Tucker stopped dating in May 2013 as Tucker and Dominick

resumed their relationship.

On June 8, 2013, Dominick challenged Bonacci to meet him at

Roaring Brook Step Falls (“Step Falls”) and fight following the

receipt of a text message from Bonacci concerning Tucker and

an incident in which Bonacci bumped Tucker at a bar. Bonacci

alerted appellant by text that Dominick wanted to fight him.

Appellant went to Step Falls and met Dominick and Tucker.

Appellant spoke to Bonacci by telephone and encouraged him to

come and fight Dominick. Bonacci did not come to Step Falls.

At approximately 2:30 a.m. on July 20, 2013, Bonacci arrived at

a party hosted by appellant. By 6:00 a.m., all of the partygoers

had either left or retired for the night except for appellant,

Dominick, Bonacci, and Brandon Emily (“Emily”). Appellant told

Emily that he was going to drive Dominick and Bonacci to their

respective apartments in Bonacci’s Jeep. At approximately 6:50

a.m., Emily heard the Jeep start. A University of Scranton

surveillance camera that was located a few blocks from

appellant’s residence videotaped Bonacci’s Jeep as it crossed

railroad tracks and approached an access road for Step Falls at

6:51 a.m.

On July 27, 2013, police located Bonacci’s decomposing body in

the front passenger seat of his Jeep at the bottom of a steep

embankment in a wooded area near Step Falls less than one

mile from appellant’s residence. The police deduced that

Bonacci had not been operating the Jeep when it went down the

embankment and 72-foot ravine. As part of the autopsy, Gary

Ross, M.D., determined that Bonacci’s cause of death was a

single gunshot wound to the head and manner of death was

termed a homicide. Police arrested appellant on August 1, 2013.

Following a jury trial, appellant was convicted of first-degree

murder (accomplice) and criminal conspiracy on June 12, 2014,

and was sentenced to an aggregate term of life imprisonment on

September 5, 2014. 2

(Doc. 19, pp. 3-4) (citing (Doc. 15-16, Ex. M., at 2-4) (citations omitted)).

The court would add that, in relation to the events surrounding

Bonacci’s death, the petitioner admitted to driving Dominick and Bonacci to

the Step Falls. He admitted he was present when Dominick shot Bonacci

execution style in the back of the head. Finally, he admitted that he actively

engaged in covering up the murder after the fact. With these admissions, the

petitioner’s theory at trial was that he was not aware that Dominick had a gun

or that he planned on killing Bonacci, but that he thought he was taking them

to the Step Falls to fight.

After exhausting his available state court remedies,3 the petitioner filed

the instant petition for writ habeas corpus pursuant to 28 U.S.C. §2254. The

following four grounds for relief are raised in the petition: (1) ineffective

2 For his part in Bonacci’s murder, Jason Dominick was tried separately

and convicted in May of 2014 of third-degree murder and conspiracy to

commit third-degree murder. He was sentenced to two consecutive

sentences of 20 to 40 years in prison, resulting in an aggregate sentence of

40 to 80 years of imprisonment.

3 Petitioner filed post-trial motions, as well as a petition under the Post

Conviction Relief Act (“PCRA”), 42 Pa.Cons.Stat. §§9542, et seq., which

were denied. As to each, the Superior Court affirmed and petitions for

allowance of appeal were denied.

assistance of counsel in failing to object to the trial court’s sequestration

order during his cross-examination; (2) ineffective assistance of counsel in

failing to object to the opinion testimony of Michael Schultz, a detective with

the Major Crimes Unit of the Scranton Police Department; (3) abuse of

discretion by the trial court in refusing to grant his request for a change of

venue; and (4) abuse of discretion by the trial court in allowing evidence of

“prior bad acts” to be admitted in at trial in violation of the Pennsylvania Rules

of Evidence. (Doc. 1).

Petitioner’s claims are governed by the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”) which provides in relevant part:

(d) An application for a writ of habeas corpus on behalf of a

person in custody pursuant to the judgment of a State court shall

not be granted with respect to any claim that was adjudicated on

the merits in State court proceedings unless the adjudication of

the claim –

(1) resulted in a decision that was contrary to or involved an

unreasonable application of, clearly established Federal 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.

28 U.S.C. §2254.

To establish that the decision was contrary to federal law “it is not

sufficient for the petitioner to show merely that his interpretation of Supreme

Court precedent is more plausible than the state court's; rather, the petitioner

must demonstrate that Supreme Court precedent requires the contrary

outcome.” Matteo v. Superintendent, 171 F.3d 877, 888 (3d Cir. 1999).

Similarly, a federal court will only find a state court decision to be an

unreasonable application of federal law if the decision, “evaluated objectively

and on the merits, resulted in an outcome that cannot reasonably be justified

under existing Supreme Court precedent.” Id.

The standard for obtaining habeas corpus relief under the AEDPA is

“difficult to meet.” Scarlett v. Superintendent of SCI-Greene, 2023 WL

8373173, at *4 (M.D. Pa. Dec. 4, 2023) (quoting Mays v. Hines, 592 U.S.

385 (2021) (citation omitted)). Federal habeas corpus relief is meant to guard

against “extreme malfunctions in the state criminal justice systems” and is

not meant to substitute for “ordinary error correction through appeal.” Id.

(citing Harrington v. Richter, 562 U.S. 86, 102-03 (2011) (citation omitted)).

“Federal habeas courts must defer to reasonable state-court decisions,” Id.

(citing Dunn v. Reeves, 594 U.S. ___, 141 S. Ct. 2405, 2407 (2021)), and

may only grant habeas corpus relief when the state court’s decision “was so

lacking in justification” that its error was “beyond any possibility for fair-

minded disagreement.” Id. (citing Mays, 141 S. Ct. at 1149 (quoting

Harrington, 562 U.S. at 102)). When a claim has been decided on its merits

in state court, federal court review of the claim is “limited to the record that

was before the state court that adjudicated the claim on the merits.” Id. (citing

Cullen v. Pinholster, 563 U.S. 170, 181 (2011)).

In the instant petition, the first two grounds for relief raised by the

petitioner are claims of ineffective assistance of counsel. Petitioners seeking

a writ of habeas corpus based on allegedly ineffective assistance of trial

counsel must show: (1) that counsel’s representation fell below an objective

standard of reasonableness and (2) that counsel’s deficient performance

caused prejudice to the petitioner. Strickland v. Washington, 466 U.S. 668,

687 (1984).4 The court’s analysis as to whether counsel’s performance was

deficient must be “highly deferential” to counsel, and the court “must indulge

a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Id. at 689. To establish that counsel’s

performance caused prejudice, the petitioner “must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” Id. at 694. “A reasonable

probability is a probability sufficient to undermine confidence in the

outcome.” Id. The petitioner must make both showings in order for it to be

4 The Third Circuit has found that the Pennsylvania test for ineffective

assistance of counsel is not contrary to Strickland. See Jacobs v. Horn, 395

F.3d 92, 107 n.9 (3d Cir. 2005) (citation omitted).

said that his conviction resulted from a breakdown in the adversary process

that renders the result unreliable. Id. at 687.

The court’s analysis is “doubly deferential” when a state court has

already decided that counsel’s performance was adequate. Dominick v.

Capozza, 2023 WL 6626135, at *4 (M.D. Pa. Oct. 11, 2023), certificate of

appealability denied sub nom. Dominick v. Superintendent Fayette SCI,

2024 WL 1997129 (3d Cir. Apr. 1, 2024) (citing Dunn, 141 S. Ct. at 2410).

The court must apply a high level of deference both to counsel’s actions and

to the state court’s determination that counsel’s actions were constitutionally

adequate. Id. (citing Id.; Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)

(citations omitted)). The federal court may only grant habeas corpus relief if

“every ‘fair-minded jurist’ would agree that every reasonable lawyer would

have made a different decision.” Id. (citing Dunn, 141 S. Ct. at 2411

(emphasis in original) (citation omitted)).

Turning then to the claims raised in the instant petition, in his first

ground for relief, the petitioner argues that his trial counsel were ineffective

for failing to object to his sequestration from counsel during an overnight

break in his cross-examination and prior to closing arguments. In this regard,

it is argued that on the next-to-last day of trial, the petitioner was under cross-

examination when the court recessed the proceedings for the day. Upon

dismissing the jury, the court instructed the petitioner that he was not to

speak to anyone, including counsel, until his cross-examination was

completed the following day. Counsel did not meet or speak with the

petitioner until after his cross-examination the following day at which time

counsel rested the defense case. Citing to Geders v. United States, 425 U.S.

80 (1976), the petitioner argues that the sixteen-hour sequestration from his

attorneys violated his constitutional right to counsel, and any denial of the

right to consult with counsel is per se reversible error requiring no proof of

prejudice. While counsel acknowledges that an exception to the Geders rule

was made in Perry v. Leeke, 488 U.S. 272 (1989), wherein the court allowed

a brief sequestration during a fifteen-minute recess, the petitioner argues

that the sequestration in his case was a sixteen-hour recess, the type

recognized and prohibited in Geders. The petitioner argues that counsel was

ineffective for failing to know the law of Geders and for failing to object to the

court’s ruling on the sequestration.

The Superior Court opinion addressing the appeal of the petitioner’s

PCRA denial summarizes the state courts’ rulings on this claim:

On June 11, 2014, appellant was testifying on direct

examination when the trial court called for a mid-afternoon break

at 3:30 p.m. Cross-examination commenced shortly thereafter.

At approximately 4:45 p.m., the trial court called for a recess until

the next morning.

After the jury existed the courtroom, the trial court,

appellant, Attorney Walker, appellant’s counsel, Curt Parkins,

Esq. (“Attorney Parkins”), the Commonwealth’s attorneys,

William Fisher, Esq. (“Attorney Fisher”), and Brian Gallagher,

Esq. (“Attorney Gallagher”), engaged in the following discussion:

THE COURT: Because of the fact that you are under

examination nobody, including your lawyers, can talk to you. Do

you understand?

[Appellant]: Yeah.

THE COURT: Counsel, I instructed him about being under

examination and not being able to speak to you.

[Attorney Walker]: It’s difficult to prepare our closing

without consulting with the client.

THE COURT: What was that?

[Attorney Walker]: It’s difficult to prepare a closing without

consulting with your client.

THE COURT: What else do you have to –

[Attorney Walker]: I don’t know, Judge. The Schultz

examination was timed by the District Attorney’s Office so it

wasn’t broken, that’s all I can say.

THE COURT: I’m sorry?

[Attorney Walker]: That’s all I can say. Schultz’s

examination was timed by the District Attorney’s Office so it

would not be broken. They decided to put filler witnesses on and

take him the next day and now – and their reasoning was that

they didn’t want his examination broken, and the inability to

consult with him as a prosecutor.

THE COURT: Are you planning on going out to the jail

tonight?

[Attorney Walker]: I was going to consult with him on the

preparation of my closings.

THE COURT: Going out to the jail tonight?

[Attorney Fischer]: My position would be, Judge, is the

case law says that counsel cannot discuss any matters in the trial

with the witness while he is on the stand and that’s a defendant

case.

THE COURT: Yea.

[Attorney Walker]: I’m well aware of the case law. I’m just

saying –

THE COURT: Do you want us to disregard the case law?

[Attorney Walker]: No, I just wanted a point for the record

to say that the Commonwealth timed the questioning on Schultz

based on their [sic] didn’t want to break the questioning and

wanted him available so they put two filler witnesses in.

***

[Attorney Fischer]: What’s the alternative? What are your

suggestions?

[Attorney Walker]: I don’t have a suggestion. I made one of

him staying up on the stand, but –

At the PCRA hearing with respect to the sequestration

order, Attorney Walker testified on cross-examination that he did

object to the trial court’s directive that appellant not speak with

his counsel until after his testimony was complete: “I think that

record is abundantly clear that I was, in fact, objecting. I may

have not used the term objection. But I said something to the

effect of that I couldn’t talk to him that I was upset about that and

that the Commonwealth did something with Schultz.

Attorney Walker further testified that appellant was

“perfectly okay” with the trial court’s sequestration order.

Attorney Walker stated that he did not plan to see appellant that

night. Attorney Walker also testified that after the conclusion of

cross-examination the next day, he had the opportunity to speak

with appellant, and appellant didn’t express any concerns over

his inability to speak with Attorney Walker the night before. When

Attorney Walker talked with appellant at the break after his cross-

examination, appellant had no input into the closing argument.

Appellant testified that his only opportunity to speak with

his counsel was during the brief mid-morning recess. On cross

examination, when asked whether Attorney Walker objected to

the sequestration order, appellant answered, “He questioned it,

yes.”

In ruling on this issue, the PCRA court acknowledged that

if appellant had been deprived of his right to counsel under the

Sixth Amendment to the United States Constitution and trial

counsel had not objected to the deprivation of constitutional

rights, then review of the issue was properly a matter of collateral

review. See Commonwealth v. Kennedy, 959 A.2d 916, 922 (Pa.

2008), cert. denied, 556 U.S. 1258 (2009).

However, the PCRA court determined that appellant’s

argument failed because his counsel, Attorney Walker, did object

to the sequestration order. The PCRA court reasoned that while

Attorney Walker did not say the words, “I object,” his comments

to the court were sufficient to constitute an objection and

preserve the issue for post-trial and appellate review.

A review of the trial record confirms that Attorney Walker

vigorously protested the trial court’s sequestration order and

engaged in argument with the trial court and opposing counsel.

Further, when he testified at the PCRA hearing, Attorney Walker

unequivocally testified that he did object. Also at the PCRA

hearing, appellant conceded that Attorney Walker verbally

questioned the order.

In Commonwealth v. Turner, 450 A.2d 9, 11 (Pa.Super.

1982), this court held that defense counsel, in effect, made an

objection to the admissibility of a witness’s testimony, even

though the defense counsel did not utter the magic words, “I

object.” Therefore, Attorney Walker’s comments were sufficient

to constitute an objection. Consequently, appellant’s argument

that his counsel failed to object is without merit. Counsel cannot

be considered ineffective for failing to assert an objection when

counsel did raise the objection at trial. See Commonwealth v.

Johnson, 828 A.2d 1009, 1015 (Pa. 2003). This court concludes

that the record supports the PCRA court’s factual findings on this

issue and that the PCRA court did not err in making its legal

conclusion. Appellant did not meet the first prong of the test for

ineffective assistance of counsel as he did not raise a claim that

has arguable merit.

(Doc. 15-16, pp. 6-11).

In addressing this first ground for relief in his report and

recommendation, Judge Carlson initially concluded that the trial judge’s

order did not constitute a per se deprivation of the petitioner’s Sixth

Amendment right to counsel.5 Judge Carlson then found that the petitioner

has not made the required showing of ineffective assistance of counsel under

the Strickland standard. In doing so, Judge Carlson provided:

On this score, Pal argues that his counsel was ineffective

for failing to object to the sequestration order and that he was

prejudiced as a result, as he wanted to discuss with counsel the

possibility of calling additional witnesses. However, the record is

clear that counsel, in fact, objected to the court’s order. As the

PCRA court noted:

After accusing the Commonwealth of intentionally

timing Detective Schultz’s testimony so as to avoid a

5 See Doc. 19, pp. 15-19. The court finds it need not address this

particular issue as the ground for relief raised in the petition is ineffective

assistance of trial counsel for failing to object to the sequestration order.

sequestration over the weekend, Pal’s trial counsel expressly

objected to the Commonwealth’s requested sequestration of

Pal when the trial was recessed during his cross-examination.

To that end, defense counsel asserted that “[i]t’s difficult to

prepare our closing without consulting with the client,” and

claims that he “was going to consult with [Pal] on the

preparation of my closing.” Although the court twice asked

defense counsel if he had intended to visit the county prison

to meet with Pal that evening, Pal’s counsel never answered

those inquiries.

Pal’s trial counsel conceded under oath that, in reality,

he never “plan[ned] to talk to [Pal] about his closing,” nor did

he intent (sic) to visit him at the prison, and for that reason, he

never answered the court’s suggestions in that regard. He

further admitted that he was simply “venting” about Detective

Schultz’s lack of sequestration and “posturing” with the

prosecution when he feigned that he desired to consult with

Pal to prepare for his closing argument.

Indeed, at the PCRA hearing, Pal’s counsel stated, “I think that

record is abundantly clear that I was in fact, objecting.” Thus, in

affirming the PCRA court’s denial of Pal’s petition, the Superior

Court, relying on Commonwealth v. Turner, 450 A.2d 9, 11 (Pa.

Super. 1982), found that Pal’s counsel’s protest of the order,

while lacking the formal words “I object,” was sufficient to

constitute an objection. Accordingly, we cannot conclude that

counsel’s performance was deficient and that he was ineffective

for his failure to object to the court’s order when the record

demonstrates that he did, in fact, object.

Moreover, even if counsel’s performance could somehow

be considered deficient, Pal cannot show that he suffered any

prejudice. In his petition, Pal claims that he desired to call three

witnesses - two witnesses who had testified for the

Commonwealth, Brandon Emily and Keri Tucker, and the

defense’s private investigator, Joe Cocco. However, the PCRA

court found that these witnesses would not have been permitted

to testify at trial given Pal’s proffer of their testimony, as “their

proposed testimony clearly would have been redundant and

needlessly cumulative.” (Doc. 15-13, at 41). Additionally, as the

PCRA court noted, “there was a 15 to 20 minute break in the

proceedings after Pal’s testimony,” and “Pal [ ] agreed that he

spoke with his trial counsel at that time.” On this score, there is

no evidence in the record that Pal conveyed to his attorneys that

he wanted to call a witness or recall certain Commonwealth

witnesses. To the contrary, at the PCRA hearing, there was

evidence that counsel informed the trial court prior to Pal’s cross

examination that Pal would be the defense’s sole witness.

Accordingly, given that Pal’s proffered witnesses would not

have been permitted to testify regardless of the court’s

sequestration order, Pal cannot establish that he was prejudiced

by the court’s order or counsel’s alleged failure to object. We are

mindful that the Supreme Court has observed that a “doubly

deferential judicial review . . . applies to a Strickland claim

evaluated under the § 2254(d)(1) standard.” Knowles v.

Mirzayance, 556 U.S. 111, 123 (2009); see also Yarborough v.

Gentry, 540 U.S. 1, 6 (2003) (noting that the review of

ineffectiveness claims is “doubly deferential when it is conducted

through the lens of federal habeas”). Given this deferential

standard, we cannot conclude that the state courts’ decisions

were an unreasonable application of Strickland or based on an

unreasonable determination of the facts. To the contrary, the

PCRA court’s careful analysis of this ineffective assistance of

counsel claim, and the Superior Court’s decision affirming that

analysis, is thorough and well-supported by both the law and the

facts of the petitioner’s case. Accordingly, this claim does not

warrant habeas relief.

(Doc. 19, pp. 19-22) (record citations omitted).

In his objections to Judge Carlson’s report, the petitioner initially cites

to that portion of the report wherein Judge Carlson quoted his counsel as

saying, “I think the record is abundantly clear that I was in fact, objecting,”

(Doc. 20, p. 3)(citing Doc. 19, p. 20). The petitioner argues that, although trial

counsel “complained” about the ruling, he never actually objected.

In reviewing the petitioner’s argument, the court agrees with Judge

Carlson that the state courts’ determination that counsel’s actions constituted

an objection should not be disturbed. Both the PCRA and Superior courts

found that under Pennsylvania law arguments by counsel in opposition to

trial court rulings are adequate to equate to an objection even if counsel does

not use the phrase “I object.” The petitioner himself acknowledged at the

PCRA hearing that counsel challenged the sequestration ruling. Even if he

would like to argue otherwise now, the petitioner points to no authority upon

which the court can overturn the state courts’ findings.

This court must give a high level of deference not only to counsel’s

actions, but also to the state courts’ determination that counsel’s actions

were adequate. Here, the state court determined that the exchange which

occurred between counsel and the court after the court’s sequestration order

was sufficient to be considered an objection and to preserve the issue for

post-trial and appellate review. Given this, the Superior Court found that

petitioner failed to establish even the first prong of the ineffective assistance

of counsel standard, i.e., that counsel’s representation fell below an objective

standard of reasonableness. Counsel cannot be faulted for failing to object

where he has, in fact, been found to have objected.

The petitioner has not established that he is entitled to habeas relief

even as to the first prong of the Strickland standard. However, even if the

court were to proceed to the second prejudice prong of Strickland, the

petitioner argues that the prejudice suffered by his counsel’s alleged failure

to object was that he was unable to have input in the closing arguments of

his case or to discuss the possibility of recalling certain witnesses. In

considering the petitioner’s argument, the record first reflects that the

petitioner did, in fact, have an opportunity to assist in closing arguments. The

testimony at the PCRA hearing provided that, after the petitioner finished his

testimony, but before closing arguments, the petitioner had an opportunity

during a break to consult with his counsel about closing arguments. Counsel

testified that the petitioner did not have anything to add to closing arguments.

As to the recall of witnesses, as found by the state courts and discussed by

Judge Carlson, the petitioner suffered no prejudice as a consequence of not

being able to call the witnesses he supposedly sought, as all three witnesses

would have been excludable as cumulative and/or duplicative.6

6 As a corollary to his initial ground for relief, the petitioner argues that

the sequestration order violated his Sixth Amendment right to counsel as he

(footnote continued on next page)

The petitioner has not established that counsel’s representation fell

below an objective standard of reasonableness or that he suffered any

prejudice under Strickland. The petitioner’s objections to the report of Judge

Carlson will be overruled on this ground and Judge Carlson’s report will be

adopted in its entirety.

In his second ground for relief, the petitioner argues that his attorneys

were ineffective for failing to object to the testimony of Michael Schultz, a

detective with the Major Crimes Unit of the Scranton Police Department,

regarding his “interpretations” of text messages, emails, phone calls and

Facebook entries by petitioner, his co-defendant and other witnesses prior

to and after the murder. He further argues that his trial counsel compounded

the error by then eliciting on cross-examination the detective’s opinions on

petitioner’s intent, credibility and actual guilt.

In briefing this issue in the PCRA court, the petitioner identified three

(3) specific instances as constituting ineffective assistance of counsel

was unable to discuss calling additional witnesses and closing arguments

with counsel. However, as indicated, the substantive issue raised by the

petitioner is whether counsel was ineffective for failing to object to the court’s

admonition. Every court to consider the issue, including this one now, has

found that the petitioner has not established an ineffective assistance of

counsel claim with respect to this ground for relief.

regarding Detective Schultz’s testimony.7 The PCRA court discussed each

of the three (3) specific instances:

Pal’s first cited claim of impermissible testimony relates to

the text message that Dominick forwarded to Pal on May 5, 2013,

in which he stated “[j]ust so you know, Neil [Pal], I’m cool with

your boy Frank [Bonacci], but if he ever gets cocky around me, I

will just snuff him.” Detective Schultz stated that he considered

that particular text message significant because Dominick was

allegedly “telling Neil Pal that if Frankie [Bonacci] ever gets cocky

with him again, he’s going to kill him.” Pal asserts that the failure

to object to that questioning “buttressed the prosecution case” by

permitting Detective Schultz to state that Pal “was well aware that

Jason Dominick would kill” Bonacci.

The Pennsylvania Rules of Evidence do not prohibit a lay

witness from offering an opinion at trial.” Com. v. Blessitt, 852

A.2d 1215, 1218 (Pa.Super 2004). Pa.R.E. 701 contemplates the

admission of lay opinions that are rationally based upon the

witness’s perception or personal knowledge that are helpful to

the trier of fact. Gibson v. W.C.A.B. (Armco Stainless & Alloy

Products), 580 Pa. 470, 481, 861 A.2d 938, 944 (2004). For

instance, it is proper for a police detective to narrate and describe

events appearing in a surveillance video as it is being played to

the jury since such commentary is rationally based on the

detective’s observations and assists the jury by calling its

attention to specific matters depicted in the video. Com. v.

Brown, 134 A.3d 1097, 1105-1106 (Pa.Super 2016), app.

denied, 636 Pa. 657, 145 A.3d 161 (2016). See also, Blessitt,

supra (officer allowed to express his opinion that defendant was

7 As noted by the PCRA court, without citing to specific instances, the

petitioner’s PCRA counsel attempted to claim that there were thirty-nine (39)

occasions on which trial counsel should have objected but did not during

Detective Schultz’s testimony. Counsel was informed by the court that he

was required to identify the specific instances which he challenged. In

briefing the matter, counsel specifically addressed only three (3). (Doc. 15-

13, p. 52, n. 7).

not in possession of the marked $20 bill when defendant was

stopped immediately after a controlled purchase of drugs since

“the money was handed off to another individual.”). It is doubtful

that Detective Schultz’s testimony concerning the text message

of May 5, 2013, was objectionable inasmuch as his brief

comment appeared to be based upon his own perception of that

electronic communication.

Even if that testimony was objectionable, Mr. Comerford

articulated a reasonable strategic reason for not objecting.

Defense counsel believed that Detective Schultz’s claim, i.e.,

that this single text message somehow placed Pal on notice of

Dominick’s impending plan to kill Bonacci, “was a stretch” and

adversely affected the detective’s credibility. In attacking the

soundness of Detective Schultz’s conclusion during the trial, Mr.

Comerford queried whether Pal, upon receiving that text

message, should have “call[ed] the police to say, my God, Jason

Dominick is going to kill Frank Bonacci” or traveled “to the police

station and said, oh my God, I want you to file terroristic threat

charges against Jason Dominick, my God, he is going to kill

Frank Bonacci.” Mr. Comerford “didn’t think that was a credible

assertion by [Detective] Schultz, two months before [the murder]

that they started planning this conspiracy to murder Frank

Bonacci.” Based upon the “highly deferential” consideration that

must be afforded to the reasonableness of counsel’s decisions,

see Kelley, 136 A.3d at 1012, it cannot be said that Mr.

Comerford’s strategical decision in this regard lacked a

reasonable basis. See Bardo, 629 Pa. at 362-363, 105 A.3d at

684. Moreover, Pal has not demonstrated the requisite prejudice

resulting from trial counsel’s failure to object since, as Mr.

Comerford aptly observed, “[t]his type of stuff is not what got [Pal]

convicted.”

With regard to the cross-examination and recross-

examination relative to Pal’s offer to drive Brandon Emily home

shortly before departing with Dominick and Bonacci, Pal’s trial

counsel considered that evidence critical to the defense

argument that Pal was unaware of Dominick’s intention to murder

Bonacci. In his opening statement, Mr. Comerford remarked:

And then the party is winding down and the last people that

are left on the deck is (sic) Brandon Emily, Neil [Pal], Jason

Dominick and Frank Bonacci. And if you hear me at all,

ladies and gentlemen, hear me now, because what does

Mr. Pal do? He knows there’s going to be a fight, and like

a knucklehead, he drives [Dominick] to Step Falls to fight

[Bonacci]. [Pal] doesn’t want to go alone because Dominick

is a bigger kid, a Division I wrestler and what not, and if this

fight gets out of hand between Bonacci and Dominick, he

wants somebody else to help him break it up. So what does

he do? He says to Brandon Emily, “come with me. Come

with me. I’ll give you a ride home because Frankie

[Bonacci] lives close to you.”

And the evidence will show that he did live close. Brandon

Emily lived with an individual by the name of Corey Reilly,

and Brandon [Emily] says, “well, I don’t know, Neil [Pal]. I

don’t know because I already called Corey [Reilly] and I

think Corey [Reilly] might be coming to get me, let me give

him a call.”

So Brandon [Emily] gets his roommate Corey [Reilly] on

the phone, and subsequently, Neil [Pal] talks to Corey

[Reilly]. “Corey [Reilly], let me give Brandon [Emily] a ride,

I’m giving Frankie [Bonacci] and Jason [Dominick] a ride.”

And Corey [Reilly] says, “no, because I already left the

house.”

So when you talk about state of mind, about knowledge,

about the fundamental issue of what you have to determine

in this case, does that sound like someone that had

knowledge that a murder was just going to occur? Because

if he did, he just created two witnesses, and that testimony

is unrefuted. That state of mind evidence [is] five minutes

before Jason Dominick shoots Frank Bonacci.

In his closing summation, Mr. Walker similarly argued:

[Pal] is going to put an end to the [Dominick-Bonacci-Keri

Tucker] nonsense. We are going down to Step Falls, and

Step Falls is a location where they fight, and [Pal] drives

[them] down, while he is down there, Jason Dominick

shoots this guy execution style in the back of the head.

***

If [Pal] knew what was going on, he is probably the worst

conspirator or worst planner I ever met. They are going to

commit a murder and they are going to do so at Step Falls

in secret in the woods where nobody sees them, but [Pal]

tells Sam Senuk about it first, then he tells Brandon Emily,

“why don’t you come with me” so I have another witness,

and maybe I’ll have a witness to a murder, I have another

witness that I rode in a car with, a guy that died this

morning! And I’m going to call Corey Reilly on the phone,

and I’m going to say, “hey, I’m giving these guys a ride

home!”

Three of the ineffectiveness claims addressed in Pal’s brief

concern Mr. Comerford’s cross-examination and recross-

examination relating to Brandon Emily and Pal’s attempt to drive

him home in Bonacci’s Jeep. While cross-examining Detective

Schultz, Mr. Comerford characterized Pal’s offer to drive Mr.

Emily home as proof “that Neil Pal didn’t appreciate what was

about to happen at Step Falls,” that Pal believed that Dominick

and Bonacci would simply fight, and that Pal “brought Brandon

Emily with him in case the fight escalated and Brandon [Emily]

helped him break it up.” Mr. Comerford also attacked Detective

Schultz for submitting an affidavit of probable cause to the

assigned Magisterial District Judge which referenced Brandon

Emily and his presence on Pal’s back porch as Pal, Dominick

and Bonacci departed on the morning of July 20, 2013, but

neglected to mention “that 25 minutes before Frank Bonacci is

shot, Neil Pal asked [Brandon Emily] if he wants a ride home.” In

his recross-examination, Mr. Comerford referenced the fact that

Corey Reilly insisted that he would retrieve Mr. Emily, rather than

having Mr. Emily transported by Pal, and queried:

Q. When we talk about [Pal’s] knowledge, what we have is

you have Brandon Emily there, he is on the porch, and you

have information that Neil [Pal] knows Corey Reilly is

coming to get him, would you agree with that?

A. I agree.

Q. Why didn’t [Pal] just wait ten minutes? Why doesn’t he just

wait ten minutes for [Brandon] Emily to leave if [Pal] knows

what’s about to transpire? ...You are indicating Pal had full

knowledge that Jason Dominick was about to put a bullet

in the back of Frank Bonacci’s head. My question to you is

[Brandon] Emily is on the back porch, Pal asked [Brandon]

Emily for a ride, [Brandon] Emily says no, Corey [Reilly] is

coming to get me. Pal talked to Corey [Reilly] and says, “I’ll

give Brandon [Emily] a ride.” Corey says, “no, I’m coming

to get [Brandon Emily].” Why doesn’t Neil [Pal] just wait for

[Brandon] Emily to disappear from the scene?

A. I couldn’t tell you.

Q. Well, the other answer would be because [Pal] didn’t know.

A. No.

Q. He didn’t know what was about to happen.

A. I disagree, I believe he knew 100 percent what was going

to happen to Frankie [Bonacci].

The sole retort offered by Detective Schultz for Pal’s offer

to drive Brandon Emily home with Dominick and Bonacci was

that “Brandon Emily could have got (sic) in the car and been a

victim himself.” Mr. Comerford believed that Detective Schultz’s

hypothesis, i.e., that Pal intended to kill Brandon Emily too, “was

the biggest stretch ever” because it had “no basis in fact” and

any jury could see that.” According to Mr. Comerford, this line of

questioning enabled the defense to “get our theory out through

my legal questions” while simultaneously demonstrating that

Detective Schultz was “one-sided” and “biased when there’s

another obvious interpretation of the text messages that [he]

won’t concede,” and that “when there was (sic) obvious facts

presented to him that were favorable to the defense, he refused

to interpret them that way.” This examination also afforded the

defense the opportunity to present “text messages that [we]

believe strongly support the conclusion that Pal did not know,

that there was a reasonable interpretation of the evidence that

was consistent with Pal believing there was only going to be a

fight.” Mr. Comerford anticipated that Detective Schultz would

disagree with the defense’s interpretation of the text messages,

and believed that it was “pretty obvious to the jury that [Schultz]

would disagree,” but viewed it as an occasion to challenge

Detective Schultz’s credibility and permit the jury to hear

evidence and argument favorable to Pal, such as the fact that

Pal had “no motive” to kill Bonacci, that there was “consistent

[friendly] contact between Pal and Bonacci” in the days and

weeks before the murder, and “that there was limited contact

between Pal and Dominick in the month or two before the

murder.”

Pal admitted (a) being present in Bonacci’s Jeep at the time

that he was murdered, (b) actively participating in the cover-up

of that murder, and (c) lying to the police regarding his

involvement. In light of the incriminating forensic and testimonial

evidence against Pal, his only plausible defense was to claim that

he believed that Dominick intended to physically assault, rather

than shoot and kill, Bonacci. Mr. Comerford’s cross-examination

and recross-examination discussed above represented

reasonable trial strategy designed to underscore that defense

and to contest the believability of the prosecution’s witness. Pal

has not demonstrated that this particular questioning had no

reasonable strategic basis. Moreover, Pal has not established a

reasonable probability that, if the foregoing cross-examination

and recross-examination had not been presented, the result of

the trial would have been different.

The final questioning of Detective Schultz that Pal has

briefed as allegedly ineffective relates to the amicable text

message exchanges between Pal and Bonacci in the weeks

preceding the murder. Mr. Comerford had Detective Schultz

identify and read numerous text message exchanges between

Pal and Bonacci from April 19, 2013, through July 15, 2013, that

reflected an amiable relationship. After presenting those

communications to the jury in visual and audio format, and in an

effort to attack the tenability of Detective Schultz’s testimony, Mr.

Comerford posited:

Q. And approximately 5 days later, according to your

theory of the case, Pal was in some type of conspiracy

to kill this guy; correct?

A. Absolutely.

Pal contends that this specific question “can hardly be termed

reasonable trial strategy.”

The defense strategy to highlight the pleasant exchanges

between Pal and Bonacci, and to argue that this course of

friendly conduct does not reflect a conspiracy or intent to murder

Bonacci, cannot be declared as lacking a reasonable basis

designed to promote Pal’s interests. As with other questioning,

Mr. Comerford assumed that Detective Schultz would disagree

with the defense’s position, but believed that the witness’s

unwillingness to concede any point favorable to the defense

negatively impacted his credibility. Pal also has not established

that if Mr. Comerford had declined to pose that single question,

there is a reasonable probability that the verdict would have been

different. As a consequence, Pal’s claims of ineffectiveness with

respect to the testimony of Detective Schultz are without merit.

(Doc. 15-13, pp. 46-53) (record citations omitted).

In affirming the PCRA court’s denial with respect to this ground for

relief, the Pennsylvania Superior Court expounded upon the strategy relied

upon by trial counsel.

At the PCRA hearing, Attorney Comerford testified that he

did not care if Detective Schultz testified as to what he thought

was appellant’s motive. He explained, “I didn’t think it was

credible. So call it strategy or what. I didn’t care if he said that 25

times on the stand.” When asked why he did not object more

often on hearsay grounds to Detective Schultz’s testimony,

Attorney Comerford explained, “You got [sic] to pick your battles

… I objected twice in … in four pages of testimony. I mean, I think

the objection was noted. And I respected the Judge’s ruling.”

Attorney Comerford also explained why he did not object to

Detective Schultz’s explanation of the significance of Dominick’s

text message that he would “snuff” Bonacci if he ever got “cocky

around” him:

I didn’t think that was a credible assertion by Schultz two

months before that they started planning this conspiracy to

murder [Bonacci]. Is that what Schultz was saying? I

thought it was confusing. I thought it was a stretch. And I

wanted the ability on cross examination to give the jury my

own interpretation.

Attorney Comerford further explained his overall

strategy with respect to Detective Schultz:

I thought his interpretations were unreasonable. I thought

he would come across to the jury as dishonest because he

only interpreted things that were favorable to him in a light

favorable to the Commonwealth. And when there was [sic]

obvious facts presented to him that were favorable to the

defense, he refused to interpret them that way.

Attorney Comerford testified that when he cross-

examined Detective Schultz, that he really did not care what

his answers were because the questions supported the

conclusions that he was ultimately looking to put forth to the

jury. According to Attorney Comerford, he did not object when

Detective Schultz was asked for the significance of a

particular text message or Facebook post because of 1) trial

strategy, as he could then ask a leading question on cross-

examination, and 2) the vast majority of the questions related

to facts that the defense conceded.

On cross-examination, Attorney Comerford further

explained that it was his strategy to concede that appellant

participated in a cover-up of the crime after it happened. In

addition, he added that many of the text messages between

Dominick and Bonacci indicated a problem between the two,

which could indicate motive, and some text messages before

the crime from Dominick indicated that he was having some

sort of emotional breakdown unbeknownst to appellant.

Attorney Comerford stated that he asked Detective Schultz

questions on cross-examination knowing that his answer

would favor the Commonwealth in an effort to have him lose

credibility in the eyes of the jury.

The PCRA court determined that Detective Schultz was

permitted to interpret the text message from Dominick to

appellant that stated Dominick would “snuff” Bonacci if he got

cocky as Dominick was stating he would kill him because he

was testifying based on his own perception of the electronic

communication under Rule 701 of the Pennsylvania Rules of

Evidence. Even if Detective Schultz’s testimony was

objectionable, the PCRA court concluded that Attorney

Comerford articulated a reasonable strategic reason for not

objecting because he believed that Detective Schultz’s claim

that this text message placed appellant on notice that

Dominick might kill Bonacci “was a stretch” and had a

negative effect on Detective Schultz’s credibility. The PCRA

court further determined that appellant’s counsel had a

reasonable strategic basis not to object as often as appellant

believes he should have.

Appellant also asserts that after Attorney Comerford

had Detective Schultz identify text messages between

Bonacci and appellant that reflected a friendly relationship,

Attorney Comerford asked Detective Schultz if he believed

that appellant engaged in a conspiracy to kill Bonacci within

five days after the last of these messages. Detective Schultz

answered, “Absolutely.” Appellant does not believe that was

reasonable trial strategy.

With respect to this issue. The PCRA court determined

that Attorney Comerford’s strategy to damage Detective

Schultz’s credibility by showing his unwillingness to concede

any point favorable to appellant was reasonable and designed

to promote appellant’s interests.

(Doc. 15-16, pp. 12-15) (record citations omitted).

In affirming the PCRA court’s decision, the Pennsylvania Superior

Court provided:

With regard to the reasonable basis prong, a court will

conclude that a strategy is not reasonable if an appellant proves

that an alternative strategy offered a potential for success

substantially greater than the course that was actually pursued.

See Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011).

Counsel is not constitutionally required to put forth all possible

objections at trial and the reasonableness of counsel’s

performance is “not measured by an exercise in ‘spot the

objection,’ as might occur in a law school evidence examination.”

Commonwealth v. Spotz, 870 A.2d 822, 832 (Pa. 2005). Here,

the PCRA court did not err when it concluded that Attorney

Comerford’s strategy was reasonable because appellant did not

prove that an alternative course had the potential of providing a

substantially greater chance of success than the route chose by

counsel.

(Doc. 15-16, pp. 15-16).

In ruling on this second ground for relief, Judge Carlson looked at each

of the three (3) specific areas where the petitioner claims counsel should

have objected and reviewed the state courts’ decisions with respect to those

areas as set forth above. In concluding that this ground does not warrant

habeas relief, Judge Carlson reasoned:

Here, we cannot conclude that the state court’s application

of Strickland was unreasonable or that the courts’ decisions were

based on an unreasonable application of the facts. The record

indicates that Pal’s counsel pursued a strategy that best

represented his interests at trial, given the evidence against him.

Again, we are reminded that the Supreme Court has observed

that a “doubly deferential judicial review … applies to a Strickland

claim evaluated under the §2254(d)(1) standard.” Knowles v.

Mirzayance, 556 U.S. 111, 123 (2009); see also Yarborough v.

Gentry, 540 U.S. 1, 6 (2003) (noting that the review of

ineffectiveness claims is “doubly deferential when it is conducted

through the lens of federal habeas”). Given this deferential

standard, we cannot conclude that the state courts’ decisions

were an unreasonable application of Strickland or based on an

unreasonable determination of the facts. To the contrary, the

PCRA court’s analysis of this ineffective assistance of counsel

claim, and the Superior Court’s decision affirming that analysis,

is thorough and well-supported by both the law and the facts of

the petitioner’s case. Accordingly, this claim does not warrant

habeas relief.

(Doc. 19, pp. 26-27).

Upon review, a vast majority of the petitioner’s objections to Judge

Carlson’s report are simply a reiteration of the arguments raised in his state

court filings and in the instant petition. He does argue specifically as to the

report however that, contrary to Judge Carlson’s finding that the record

reflects that “[his] counsel pursued a strategy that best represented his

interests at trial given the evidence against him,” the strategy with greater

potential for success would have been to prevent the objectionable testimony

as outlined above. In fact, the petitioner argues that his trial counsel’s

strategy “was not the best strategy, it was certainly not the strategy that had

a greater potential for success, and in fact that strategy was manifestly

unsound.” (Doc. 20, p. 36)(emphasis in original). Moreover, despite Judge

Carlson’s finding to the contrary, the petitioner argues that the state courts

engaged in an unreasonable application of Strickland’s standard, which

entitles him to habeas relief.

The task of this court under the AEDPA is simply to determine whether,

affording deference and latitude to the state courts, a fair-minded jurist could

agree with their holding that counsels’ strategical decisions with regard to

Detective Schultz’s testimony had a reasonable basis. Fowler v.

Superintendent Smithfield SCI, 702 Fed.Appx. 44, 48-49 (3d Cir. 2017)

(citing Harrington v. Richter, 562 U.S. 86, 101 (2011)). As discussed above,

this court may only grant habeas corpus relief when the state court’s decision

“was so lacking in justification” that its error was “beyond any possibility for

fair-minded disagreement.” Mays v. Hines, supra. Moreover, as stated

previously, with regard to an ineffective assistance of counsel claim, this

court’s analysis is “doubly deferential” when a state court has already

decided that counsel’s performance was adequate. The Supreme Court has

dictated that the court must apply a high level of deference both to counsel’s

actions and to the state court’s determination that counsel’s actions were

constitutionally adequate. See Knowles v. Mirzayance, supra. In fact, as

indicated, the court may only grant habeas corpus relief if “every ‘fair-minded

jurist’ would agree that every reasonable lawyer would have made a different

decision.” Id. (citing Dunn, 141 S. Ct. at 2411 (emphasis in original) (citation

omitted)). In making this determination, “[w]e must ‘eliminate the distorting

effects of hindsight’ and recognize that ‘[t]here are countless ways to provide

effective assistance in any given case.’” Williams v. Superintendent

Mahanoy SCI, 45 F.4th 713, 724 (3d Cir. 2022) (citing Strickland, 466 U.S.

at 689, 104 S.Ct. 2052).

As indicated both by counsel and the state courts, there is not much

doubt that trial counsel had few defense avenues to pursue in the petitioner’s

case. The petitioner admitted to taking Bonacci to the Step Falls. He admitted

to being there when Bonacci was murdered. He admitted to covering up the

murder for a period of time. He admitted to lying to the police about his

involvement in the murder. The forensic and testimonial evidence against the

petitioner was considerable. Given these obstacles, with respect to the

testimony of Detective Schultz, trial counsel had a strategy. Objections were

made where it was thought necessary to prevent information from coming in

which would be harmful to the petitioner and when that information would not

be coming in otherwise. Where there was testimony which was conceded to

by the defense or which allowed counsel the opportunity to get in the

petitioner’s theory of the case through cross-examination, objections were

not made. Where it was thought there was an opportunity to discredit

Detective Schultz in the eyes of the jury, trial counsel solicited testimony

which they thought would do so. Counsel had a strategy, and given the

circumstances of the petitioner’s case, the state courts found it was a

reasonable strategy.

Whether the petitioner believes with the benefit of hindsight that trial

counsel’s strategy was not the “best” strategy or that there was a better

strategy that should have been pursued, is of no consequence. Courts must

defer to counsel’s tactical decisions, avoid “the distorting effects of

hindsight,” and give counsel the benefit of a strong presumption of

reasonableness. Strickland, 466 U.S. at 689. Giving trial counsel the

deference counsel is due, both the PCRA court and the Superior Court

determined that petitioner’s counsel were not ineffective in relation to the

challenges involving Detective Schultz’s testimony as it could not be said

that trial counsel’s strategical decisions lacked a reasonable basis.

Considering the double deference due to the state courts and counsel in

these proceedings, and considering the high bar the petitioner must clear in

order to be entitled to habeas relief, the court simply cannot find that the

petitioner is entitled to relief on this ground.8

8 The court notes that, in further support of this claim, the petitioner

submitted supplemental authority, that being United States v. Diaz, 951 F.3d

148 (3d Cir. 2020). In Diaz, the Third Circuit found, among other things, that

the trial court erred in failing to exclude testimony provided by an FBI agent

(footnote continued on next page)

The next two grounds for relief by the petitioner claim abuse of

discretion by the trial court. In his third ground for relief, the petitioner argues

that the trial court abused its discretion in refusing to grant a change of venue

in light of the inflammatory and widespread pretrial publicity in this case,

particularly the social media and Facebook page dedicated to Bonacci. The

petitioner argues that this was presumptively prejudicial because there was

no “cooling off” period between Dominick’s trial, at which he claimed the

petitioner was the actual shooter, and his own trial. (Doc. 1, pp. 70-100).

Judge Carlson aptly provided the state of the law on such matters as

follows:

The Fourteenth Amendment guarantees criminal

defendants the right to “a trial by an impartial jury free from

outside influences.” Sheppard v. Maxwell, 384 U.S. 333, 362

(1966). However, this guarantee does not prohibit, at the request

of the defendant, the transfer of the proceeding to a different

district “if extraordinary local prejudice will prevent a fair trial - a

‘basic requirement of due process.’” Skilling v. U.S., 561 U.S.

358, 377 (2010). Thus, “when prejudicial pretrial publicity wholly

undermines the impartiality of the jury, the trial court should take

steps to assure a fair trial granting a change of venue or venire.”

Stevens v. Beard, 701 F.Supp.2d 671, 725 (W.D.Pa. 2010)

in which “he improperly and unhelpfully offered his opinion on the ultimate

issue at trial: Diaz’s involvement in the conspiracy [ ]” and gave “testimony

interpreting a number of non-coded statements” under Fed.R.Evid. 701(b).

However, the issue in the instant action is not whether the trial court erred in

allowing in testimony which should have been excluded under the rules of

evidence, but whether counsels’ strategic decisions not to object to certain

testimony had a reasonable basis such that counsels’ conduct could not be

deemed ineffective assistance of counsel.

(citing Sheppard, 384 U.S. at 363; Rideau v. Louisiana, 373 U.S.

723 (1963)).

On this score, the Supreme Court of the United States has

held that “only the extreme case” of pretrial publicity will result in

a presumption of prejudice. Id. at 380-81. After discussing

several of its prior cases involving the question of prejudicial

pretrial publicity, the Court stated:

In each of these cases [Rideau, 373 U.S. 723; Estes v. Texas,

381 U.S. 532 (1965); and Sheppard, 384 U.S. 333], we

overturned a “conviction obtained in a trial atmosphere that

[was] utterly corrupted by press coverage”; our decisions,

however, “cannot be made to stand for the proposition that

juror exposure to ... news accounts of the crime ... alone

presumptively deprives the defendant of due process.”

Murphy v. Florida, 421 U.S. 794, 798-799, 95 S.Ct. 2031, 44

L.Ed.2d 589 (1975). See also, e.g., Patton v. Yount, 467 U.S.

1025, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984). Prominence

does not necessarily produce prejudice, and juror impartiality,

we have reiterated, does not require ignorance. Irvin v. Dowd,

366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961)

(Jurors are not required to be “totally ignorant of the facts and

issues involved”; “scarcely any of those best qualified to serve

as jurors will not have formed some impression or opinion as

to the merits of the case.”); Reynolds v. United States, 98 U.S.

145, 155-156, 25 L.Ed. 244 (1879) (“[E]very case of public

interest is almost, as a matter of necessity, brought to the

attention of all the intelligent people in the vicinity, and

scarcely any one can be found among those best fitted for

jurors who has not read or heard of it, and who has not some

impression or some opinion in respect to its merits.”). A

presumption of prejudice, our decisions indicate, attends only

the extreme case.

Skilling, 561 U.S. at 380-81. Indeed, as the Third Circuit Court of

Appeals has held, cases involving a presumption of prejudice are

“exceedingly rare,” and in order for a court to presume prejudice,

“[t]he community and media reaction . . . must have been so

hostile and so pervasive as to make it apparent that even the

most careful voir dire process would be unable to assure an

impartial jury.” Rock v. Zimmerman, 959 F.2d 1237, 1251 (3d Cir.

1992), overruled on other grounds, Brecht v. Abrahamson, 507

U.S. 619 (1993).

Moreover, in general, “a motion for a change of venue is

addressed to the discretion of the trial court,” and the trial court’s

decision to deny such a motion “will not be set aside absent an

abuse of discretion.” Martin v. Warden, Huntingdon State Corr.

Inst., 653 F.2d 799, 804 (3d Cir. 1981). In the context of a habeas

corpus petition, our inquiry is “whether the refusal to change

venue amounts to a denial of the defendant’s constitutional

rights.” Id.

(Doc. 19, pp. 28-30).

In reviewing the state court records in this matter, the petitioner initially

raised the issue of a change of venue by way of a pre-trial motion. The motion

was denied, without prejudice, subject to renewal after jury selection. (Doc.

15-6, p. 42). The petitioner again raised the issue in his post-trial motions. In

an exhaustive review of the matter covering over twenty (20) pages, the trial

court again denied the petitioner’s motion (Doc. 15-6), and that denial was

affirmed on review by the Pennsylvania Superior Court (Doc. 15-9).

As discussed in the state court opinions and by Judge Carlson in his

report, there were 101 members in the prospective jury pool in the

petitioner’s case. Of those 101 members, 98 indicated that they had seen or

heard something about the case. Of those 98, 18 potential jury members

stated that they could not decide the case fairly or impartially based only on

the evidence presented at trial. These 18 individuals were excused for cause.

All others indicated that they could decide the case fairly and impartially

based only on the evidence presented in the courtroom despite what they

had seen or heard. Upon questioning regarding news and social media

coverage, an additional 4 of the remaining members were stricken for cause.

Further individual questioning resulted in 36 more members being stricken

for separate cause reasons. With all of the foregoing members having been

stricken, the court was able to seat 12 principal jurors and 4 alternate jurors.

The petitioner then made a renewed attempt for a change of venue. His

motion was denied with the court finding that the any media attention given

to the matter was “factual and objective,” rather than “sensational,

inflammatory and slanted toward conviction.” (Doc. 15-6, p. 43).

Although the seated jurors were told to keep away from any news

reports or social media with respect to the case, one principal juror and one

alternative juror were found to have posted comments to their social media

pages about their selection as jurors. Both jurors were immediately

dismissed from the case. (Id. at 44). In an attempt to prevent such matters

from happening again, each day the remaining jurors were questioned as to

whether they had seen or read any news reports or digital communications

related to the case.

Subsequent to the petitioner’s conviction, he renewed his challenge to

the court’s failure to provide a change of venue by way of post-trial motions.

The trial court addressed the petitioner’s challenge in two parts: one

concerning conventional media coverage and the other concerning social

media. As provided in Judge Carlson’s report, as to the petitioner’s challenge

to conventional news media coverage, the trial court indicated:

Pal has not demonstrated that the pre-trial news reports caused

actual prejudice by preventing the impaneling of an impartial jury,

nor has he established that the media coverage was

presumptively prejudicial since it was sensational, inflammatory,

and slanted toward conviction. The pre-trial news articles

submitted for review constitute factual and objective reports of

Bonacci’s disappearance and murder, the arrests of Dominick

and Pal, the pre-trial proceedings and rulings, and Dominick’s

trial. Since the conventional news reports were not presumptively

prejudicial, a change of venue was not warranted in this case.

Even if the conventional media coverage was somehow found to

be presumptively prejudicial, Pal would not be entitled to a

change of venue unless he further established that the

presumptively prejudicial publicity was so pervasive that the

community must be deemed to have been saturated with it, and

that there was insufficient time for the prejudice to have

dissipated. See Briggs, 608 Pa. at 468, 12 A.3d at 314. The

prospective jurors’ responses during voir dire are the most

“reliable guide[s]” in determining whether (a) there has been an

adequate “cooling off” period to dissipate the impact of

presumptively prejudicial publicity, or (b) “the publicity is still so

fresh in their minds that is has removed the ability to be

objective.” Id. at 469, 12 A.3d at 314.

Less than 22% of the jury panel stated that as a result of the

conventional and social media publicity, they had formed fixed

opinions about Pal’s guilt or could not otherwise set aside that

pre-trial publicity. See Tharp, 574 Pa. at 219, 830 A.2d at 529

(holding that no change of venue was required when only 30%

of the prospective jurors stated they had a fixed opinion of

defendant’s guilt and were excused for cause); Com. v. Stoltzfus,

462 Pa. 43, 54, 337 A.2d 873, 878 (1975) (finding no change of

venue necessary when 22% of the venire had formed fixed

opinions of defendant’s guilt). Furthermore, “[a]ll of the jurors

seated avowed under oath and penalty of perjury that they could

decide the case based solely on the trial evidence, and that they

had no preconceived or fixed opinion of [defendant’s] guilt.”

Briggs, 608 Pa. at 474, 12 A.3d at 318. Additionally, following

their selection as jurors, each juror was “admonished to refrain

from reading, viewing or otherwise being attentive to any media

reports or other outside information regarding the case and trial,”

and “on each day of the trial, the jury was directly asked whether

any juror had read, seen, or heard any news reports or other

outside information regarding the case or trial or had discussions

with any persons concerning the case or trial.” Chmiel, 612 Pa.

at 405-406, 30 A.3d at 1153. Therefore, assuming arguendo that

the traditional media coverage could be characterized as

presumptively prejudicial, a change of venue was nonetheless

unwarranted.

(Doc. 19, pp. 31-32 (citing Doc. 15-6, at 47-48)).

As to the social media aspect, as Judge Carlson provides, the trial

court found:

Assuming, without deciding, that social media constitutes

“pretrial publicity” for purposes of a change of venue request, Pal

still has not established that a change of venue was required.

The information contained on “Frankie’s Voice” website and

Facebook page did not create a presumption of prejudice under

Pennsylvania law, nor was it “so extensive, sustained, and

pervasive that the community must be deemed to have been

saturated with it.” Briggs, 608 Pa. at 468, 12 A.3d at 314. Only

four members of the 101 person venire responded affirmatively

to defense counsel’s voir dire questions addressing prejudicial

exposure to social media comments or postings, and those four

individuals were removed from the jury pool. The jurors who

decided Pal’s fate were questioned daily to ensure that they had

not viewed any conventional or social media reports. Therefore,

the relevant social media did not prejudice Pal in empaneling an

impartial jury which ultimately decided this case.

(Doc. 19, pp. 32-33 (citing Doc. 15-5, at 50-51).

In addition to the standards under state law, the trial court looked to

federal law in examining the factors to consider when determining whether

pretrial publicity is presumptively prejudicial as set forth in Skilling v. U.S.,

561 U.S. 358 (2010). In doing so, the court found that the pretrial publicity in

the petitioner’s case was not the kind likely to produce prejudice but was

factual and objective and did not contain blatantly prejudicial information.

Moreover, the court had considered that ten (10) months had elapsed

between Bonacci’s murder and the time of the petitioner’s trial, and five (5)

weeks had passed between the start of Dominick’s trial and the petitioner’s

trial. All being sufficient to mitigate any prejudice.

On appeal, the Superior Court affirmed the trial court. In doing so, the

Superior Court provided:

We conclude that, the trial court did not abuse its discretion

in denying Appellant’s motion for a change of venue. As the trial

court correctly pointed out, less than 22% of the venire persons

formed fixed opinions about Appellant’s guilt based upon

conventional and social media publicity, and all jurors seated

avowed that they could decide the case based solely on the trial

evidence. See Tharp, supra at 529-30 (holding that a trial court

was warranted in concluding that no change of venue was

required where thirty-four of one hundred prospective jurors

indicated that they had formed a fixed opinion because of pretrial

publicity). Accordingly, the trial court was well within its discretion

in deciding that pretrial publicity did not require a change of

venue. Appellant’s first issue does not merit relief.

(Doc. 15-9, p. 10). Further, to the extent that the petitioner argued that the

trial court erred in not allowing defense counsel to conduct individual voir dire

of the prospective jurors because of the allegedly prejudicial pretrial publicity,

the Superior Court indicated that absent an abuse of its discretion to

determine the method of voir dire examination, the trial court’s decision

would not be disturbed. The Superior Court concluded that the petitioner’s

case was closely aligned with that of Commonwealth v. Rovinski, 704 A.2d

1068, 1073 (Pa.Super. 1997), appeal denied, 723 A.2d 1024 (Pa. 1998),

wherein the Superior Court held that the trial court did not abuse its discretion

when it made a general inquiry into whether any jurors had prior knowledge

of the case and then “dismissed any juror with prior knowledge who did not

unequivocally deny having a fixed opinion and unequivocally affirm the ability

to be fair and impartial.” (Doc. 15-9, p. 12 (quoting Rovinski, supra at 1073)).

In the petitioner’s case, the trial court inquired as to the potential jurors’

personal knowledge from any sources and dismissed those individuals with

fixed opinions about the matter. Further, the court allowed counsel individual

voir dire with certain potential jurors who indicated that they had prior

knowledge about the case. Given this, the Superior Court found that the trial

court’s method of voir dire was well within its discretion.

In considering the state court’s findings on the venue issue, Judge

Carlson concluded:

We are reminded that “[w]hen pretrial publicity is at issue,

‘primary reliance on the judgment of the trial court makes

[especially] good sense.’” Skilling, 561 U.S. at 386) (quoting

Mu’Min v. Virginia, 500 U.S. 415, 427 (1991)). On this score, we

cannot conclude that the state courts’ decisions were based on

an unreasonable application of the law or an unreasonable

determination of the facts. Indeed, the Third Circuit has held that

the denial of a motion for change of venue is not an abuse of

discretion even where “pre-trial publicity was extensive, and

there was no ‘cooling off’ period between the publicity and trial,”

given the “lack of inflammatory, sensational journalism.” U.S. v.

De Peri, 778 F.2d 963, 972 (3d Cir. 1985); see also Altawarh v.

Wetzel, 2017 WL 48555858, at *9 (E.D. Pa. Aug. 31, 2017)

(quoting Commonwealth v. Casper, 392 A.2d 287, 295 (Pa.

1978)) (“It is saturation with ‘inherently prejudicial’ publicity, and

not the possibility of saturation alone, that is important since, as

we have noted, ‘(e)xtensive pretrial publicity ... does not

necessarily preclude a fair trial’”). Here, the trial court found that

the conventional news coverage of Pal’s case was largely factual

and objective, and that the Facebook page and website entitled

“Frankie’s Voice,” which were originally designed to solicit

volunteers to search for Bonacci, consisted of hyperlinks to news

stories about the trials, solicitations to fund Bonacci’s funeral

services, and other missing persons alerts. Thus, this is not the

kind of blatantly prejudicial information that would presumptively

taint a jury’s impartiality and deny the petitioner his constitutional

right to a fair trial. Accordingly, in our view, this claim does not

afford Pal habeas relief.

(Doc. 19, pp. 34-35 (footnote and record citation omitted)).

In reviewing the petitioner’s objections as to the change of venue issue,

the petitioner generally challenges Judge Carlson’s citation to and approval

of the trial court’s rationale for denying his change of venue motion. He then

notes Judge Carlson’s citation to the five factors set forth by the Supreme

Court in Skilling for use in determining whether pretrial publicity is

presumptively prejudicial and argues that, in his view, all five factors weigh

in his favor. In this regard, there is simply nothing to add to Judge Carlson’s

analysis. Judge Carlson carefully and thoroughly reviewed the standards

required to be met by the petitioner in order to demonstrate his entitlement

to relief on this claim, as well as state courts’ rationale for denying the

petitioner relief. This court finds no error with the findings and conclusions of

Judge Carlson in this regard and agrees that the state courts’ decisions were

not based on an unreasonable application of the law or an unreasonable

determination of the facts. Judge Carlson’s report will therefore be adopted

in this respect and the petitioner’s objections overruled.

In his fourth and final ground for relief, the petitioner argues that the

state trial court abused its discretion in refusing to preclude the admission of

certain “bad acts” evidence against him at trial where the prejudicial impact

of such evidence significantly outweighed any probative value. As to this

claim, the record demonstrates that the petitioner filed various pre-trial

motions in limine to preclude the admission of “bad acts” or “other acts”

evidence at trial. Specifically, the petitioner “sought to preclude evidence that

[he], Dominick and several of their friends had “La Familia” tattoos signifying

their self-proclaimed gang and solidarity, that [he] had fired a weapon at or

near Maribeth Castaldi and Emily Gilgallon, and that [he] had threatened or

assaulted Ms. Gilgallon and Michael Castellano.” (Doc. 15-6, p. 61). For

reasons of relevance, as well as because the probative nature of these

matters was outweighed by the potential for unfair prejudice, the trial court

barred any evidence with regard to these matters at trial.

However, three evidentiary matters arose during the course of the trial

which the trial court allowed. The first of these involved the petitioner’s

acquisition of a .38 caliber handgun from an individual by the name of

Cameron Kashmer, the petitioner’s discharge of that weapon into his garage

wall, and a photograph of the petitioner openly displaying a handgun in the

waistband of his pants. The court found these matters were admissible

pursuant to the “opportunity” exception in Rule 404(b)(2) of the Pennsylvania

Rules of Evidence, in that this evidence supported the Commonwealth’s

theory that the petitioner had the means to furnish Dominick with the murder

weapon and ammunition. The trial court provided:

In light of the pre-trial opinion expressed by the firearm and tool

mark examiner, Cpl. Elwood Spencer, that bullet projectiles

removed from the wall of Pal’s garage had similar lands, grooves

and cannelures characteristics as the wad cutter bullet removed

from Bonacci’s head, we concluded:

Rule 404(b)(2) states that proof of prior bad acts is admissible

for the purpose of proving “opportunity.” Pa.R.E. 404(b)(2). It

is well settled that “[a] weapon shown to have been in a

defendant’s possession may properly be admitted into

evidence even though it cannot positively be identified as the

weapon used in the commission of a particular crime, if it

tends to prove that the defendant had a weapon similar to the

one used in the perpetration of the crime.” Com v. Williams,

537 Pa. 1, 20, 640 A.2d 1251, 1260 (1994); Com. v. Brown,

71 A.3d 1009, 1014 (Pa.Super. 2013), app. denied, 77 A.3d

635 (Pa. 2013). Evidence that the defendant possessed any

other device or instrument that could have been used in a

murder is admissible pursuant to the ”opportunity” exception

set forth in Rule 404(b)(2). See Com. v. Reese, 31 A.3d 708,

726 (Pa. Super 2011) (en banc) (defendant’s prior display and

use of “a knife in a retail store in broad daylight” was

admissible since murder victim died from stab wounds); Com.

v. Miller, 897 A.2d 1281, 1287-1288 (Pa.Super. 2006)(knife

set retrieved from defendants’ truck was admissible to show

that defendant “was in possession of a knife which could have

been one of the murder weapons.”), app denied, 588 Pa. 789,

906 A.2d 1196 (2006); Com. v. Akers, 392 Pa.Super 170, 186-

188, 572 A.2d 746, 754 (1990)(witness properly permitted to

testify that defendant had previously shown her a gun similar

to the murder weapon), app. denied, 526 Pa. 627, 584 A.2d

310 (1990). For that reason, evidence of handguns and

ammunition seized from a defendant’s home is “relevant as

tending to prove that the defendant had weapons similar to

the ones used in the perpetration of the crime,” and any

“[u]ncertainty whether the weapons evidence was actually

used in the crime goes to the weight of such evidence, not its

admissibility.” Co. v. Owens, 929 A.2d 1187, 1191 (Pa.Super.

2007), app. denied, 596 Pa. 705, 940 A.2d 364 (2007).

The Commonwealth contends that Pal provided Dominick with

the .38 caliber handgun and wad-cutter type practice bullet used

to kill Bonacci. In light of Corporal Spencer’s opinions regarding

the projectiles removed from the wall of Pal’s garage, as well as

the unused ammunition seized from that garage, evidence

relating to Pal’s ownership and discharge of wad-cutter practice

bullets from a .38 caliber handgun is clearly relevant to Pal’s

accomplice liability. If, as Pal advocates, the Commonwealth is

denied the opportunity to present evidence that Pal fired bullets

into his garage wall, the jury may be inclined to conclude that Pal

did not fire the retrieved projectiles into the garage wall, and that

those projectiles were fired by someone other than Pal. In that

event, Pal would be able to argue, without evidentiary rebuttal by

the Commonwealth, that some other individual owned or

controlled the bullets that were fired into the garage wall. To

support its argument that Pal had the “opportunity” to furnish

Dominick with the gun and bullet that were used to kill Bonacci,

the Commonwealth is entitled to offer evidence that Pal fired

bullets into his garage wall, which were later seized by the police

and ultimately served as the basis for Corporal Spencer’s

analysis and conclusion. See, Owens, supra. While that

evidence may not be admissible under the res gestae exception,

it is relevant and admissible under the “opportunity” exception in

Rule 404(b)(2) to establish that Pal had the means to provide

Dominick with the gun and bullet that he used to kill Bonacci. As

a result, Pal’s motion in limine to bar the Commonwealth from

referencing Pal’s discharge of firearms in his garage will be

denied.

Id. at *4.

Based on the holding in Com. v. Williams, 58 A.3d 796, 801

(Pa.Super. 2012), app. denied, 620 Pa. 708, 68 A.3d 908 (2013),

the photograph of Pal brandishing a handgun in his waistband

was deemed admissible to show his possession and control of a

weapon similar to the one used to kill Bonacci. Pal, supra, at *6.

As proof of Pal’s accomplice liability, the Commonwealth was

also ‘permitted to present evidence that Cameron Kashmer

provided a .38 caliber handgun to Pal in March 2013 in partial

payment of an outstanding debt,’ but was ‘prohibited from

mentioning (a) that Mr. Kashmer originally purchased that

weapon from an unidentified male at Pal’s garage, and (b) that

his indebtedness to Pal was attributable to a gambling debt. Id.

at *7.

(Doc. 15-6, pp. 62-64).

In affirming the trial court, the Pennsylvania Superior Court provided:

“The admission of evidence is within the sound discretion

of the trial court and will not be reversed absent an abuse of that

discretion.” Commonwealth v. Begley, 780 A.2d 605, 620 (Pa.

2001) (citations omitted). “Discretion is abused when the course

pursued represents not merely an error of judgment, but where

the judgment is manifestly unreasonable or where the law is not

applied or where the record shows that the action is a result of

partiality, prejudice, bias or ill will.” Commonwealth v. Martinez,

917 A.2d 856, 859 (Pa.Super. 2007) (citations omitted).

Under Pennsylvania Rule of Evidence 404(b),

Evidence of prior bad acts or unrelated criminal activity is

inadmissible to show that a defendant acted in conformity with

those past acts or to show criminal propensity. However,

evidence of prior bad acts may be admissible when offered to

prove some other relevant fact, such as motive, opportunity,

intent, preparation, plan, knowledge, identity, and absence of

mistake or accident.

Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009),

cert. denied, 559 U.S. 1111 (2010)(citing Pa.R.E. 404(b)(1) and

(2)).

Here, the trial court admitted evidence of Appellant’s

acquisition of a .38 caliber handgun, a photograph of Appellant

displaying a handgun in the waistband of his pants, and

Appellant’s ownership and discharge of wadcutter bullets

pursuant to the “opportunity” provision in Pa.R.E. 404(b)(2). The

trial court reasoned that such evidence was admissible under the

“opportunity” exception to establish that Appellant had the means

to provide Dominick with the gun and bullets used to kill Bonacci.

The trial court’s admission of the evidence of Appellant’s

acquisition of a .38 caliber handgun, possession of guns and

bullets similar to the ones used to kill Bonacci, and a photograph

of Appellant displaying a handgun in the waistband of his pants

was well within its discretion. See Commonwealth v. Williams,

640 A.2d 1251, 1260-61 (Pa. 1994) (affirming admission of

evidence showing a weapon in defendant’s possession where it

tended to prove that defendant had a weapon similar to the one

used in perpetration of the crime).

(Doc. 15-9, pp. 17-18) (record citations omitted).

The second piece of evidence admitted at trial which the petitioner

challenged in his post-trial motion was reference to matching “b ’hai” (Hindi

for ‘brother’) tattoos which he and Dominick had imprinted on them. With

respect to this challenge, the trial court noted that, while the petitioner sought

to preclude any reference to “La Familia” tattoos and association, the

petitioner did not seek to preclude any reference to the “b ’hai” tattoos, nor

did he object to the admission of the evidence at the time of trial. The trial

court indicated:

Although evidence was presented that Pal and Dominick both

had tattoos of the Hindi word for “brother,” Pal never objected to

the introduction of that evidence, and in the process he waived

his objection to that evidence under Pa.R.E. 103(a)(1)(A). See

Com. v. Hairston, 84 A.3d 657, 672 (Pa. 2014) (defendant

waived objection to victim-impact testimony by failing to object at

trial), cert. denied, 135 S.Ct. 164 (U.S. 2014). Moreover, that

tattoo evidence was admissible to demonstrate the close bond

between Pal “the leader” and Dominick “the follower”, as part of

the Commonwealth’s proof of their shared “plan” to kill Bonacci

and the absence of any alleged surprise to Pal in that respect.

(Doc. 15-6, p. 65) (footnote omitted).

In affirming the trial court on this evidence, the Superior Court

provided:

Appellant next contends that the admission of the “b ’hai”

tattoos of Appellant and Dominick were irrelevant and highly

prejudicial because the Commonwealth allegedly introduced this

to show that he and Dominick were gang members. However,

Appellant did not object to admission of the “b ’hai” tattoos either

before or during trial, and accordingly has not preserved the

claim of error. See Pa.R.E. 103(a); Pa.R.A.P. 302(a) (issues

cannot be raised for first time on appeal). As such, this claim is

waived on appeal. See Commonwealth v. Parker, 847 A.2d 745,

749-50 (Pa.Super. 2004).

(Doc. 15-9, pp. 18-19).

The final piece of evidence which the petitioner challenged in his post-

trial motion was evidence of his demeanor at a breakfast at a diner within

hours of the murder. In addressing this challenge, the trial court found that

“Pal’s actions at the diner within a few hours of the murder were admissible

to demonstrate his conscious effort to divert any investigatory focus upon

him and to conceal his involvement with the murder of Bonacci.” (Doc. 15-6,

p. 66).

In affirming the trial court, the Pennsylvania Superior Court stated:

Finally, Appellant contends that evidence of his demeanor

during breakfast at Chick’s Diner within hours of the murder

should have been precluded because it had no relevance other

than prejudicing Appellant before the jury. The trial court

permitted such evidence, holding that it was admissible to

demonstrate Appellant’s conscious effort to divert focus of the

investigation from himself and to conceal his involvement in

Bonacci’s murder.

The law does not require a court “to sanitize [a] trial to

eliminate all unpleasant facts from the jury’s consideration where

those facts are relevant to the issues at hand and form part of

the history and natural development of the events and offenses

for which the defendant is charged.” Commonwealth v. Page,

965 A.2d 1212, 1220 (Pa.Super. 2009) appeal denied, 74 A.3d

125 (Pa. 2013) (citation omitted). Based on the foregoing, we

conclude that the trial court properly exercised its discretion

when it allowed testimony regarding Appellant’s actions in the

diner within a few hours of the murder. See Begley, supra at 620;

Martinez, supra at 859. Accordingly, Appellant’s fourth issue

lacks merit.

(Doc. 15-9, p. 19) (record citations omitted).

Collectively, the trial court found:

The limited “other acts” evidence that was admitted during

the trial bore the requisite “connective relevance” to the crimes

at issue. Furthermore, the probative value of that evidence

outweighed its potential for unfair prejudice. Accordingly, Pal has

not established that it was an abuse of discretion to allow certain

“other acts” evidence at trial, and his motion for new trial based

upon the admission of that evidence will be denied.

(Doc. 15-6, p. 66).

In considering this aspect of the instant habeas petition, Judge Carlson

initially found that, to the extent the petitioner is simply challenging the trial

court’s evidentiary rulings, his claim is not cognizable, as “it is well-settled

that ‘[a] federal court considering a petition for habeas relief should not

merely review state evidentiary errors, as any such mistakes ‘are not

considered to be of constitutional proportion, cognizable in federal habeas

corpus proceedings, unless the error deprives a defendant of fundamental

fairness in his criminal trial.’” (Doc. 19, p. 36) (citations omitted).

Moreover, to the extent that the petitioner is claiming a violation of his

due process rights, Judge Carlson found that, in order to show a due process

violation arising from the admission of evidence, “the petitioner must show

that the evidentiary error ‘was of such magnitude as to undermine the

fundamental fairness of the entire trial.’” (Doc. 19, pp. 36-37)(citations

omitted). Given the trial court’s thorough explanation of the admissibility of

the evidence under the Pennsylvania Rules of Evidence, Judge Carlson

found he could not conclude that the admission of the evidence at trial

amounted to a due process violation. In fact, he found that it was clear that

the evidence was probative of the petitioner’s means, motive and

opportunity, rather than his character, and was therefore properly admitted.

In his objections, the petitioner argues that, contrary to Judge Carlson’s

holding, he has demonstrated that the state courts’ refusal to preclude the

admissions of prior “bad acts” evidence entailed an “unreasonable

application” of clearly established law as determined by the Supreme Court.

In doing so, the petitioner cites to no law established by the Supreme Court.

(Doc. 20, pp. 46-65). Upon review, the court finds that Judge Carlson gave

careful and thorough consideration to the petitioner’s arguments regarding

the evidence admitted. The court agrees with Judge Carlson’s conclusion

that the state courts did not abuse their discretion in allowing the challenged

testimony, and moreover, the state courts’ decisions were not an

unreasonable application of clearly established law as determined by the

Supreme Court.

As a final matter in this case, the Court must also determine whether

to recommend granting a certificate of appealability (“COA”) with respect to

the Petitioner's claims. A COA can issue if “jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a

constitutional right and [if] jurists of reason would find it debatable whether

the district court was correct in its [ ] ruling.” Slack v. McDaniel, 529 U.S. 473,

484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). The court is of the view that

reasonable jurists would not debate the court's determinations, and a COA

should not be granted.

In light of all of the foregoing, an appropriate order shall issue.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: June 12, 2024

19-1589-01