# Scholl v. Oliver

> District Court, M.D. Pennsylvania · July 9, 2024

URL: https://www.frixlaw.com/law-library/cases/10667537

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** July 9, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10667537

## How later opinions describe it (automated extraction)

- holding that a petitioner must present every claim raised in the federal petition to the state’s trial court, intermediate appellate court, and highest court before exhaustion is considered satisfied
- noting that the test for sufficiency of the evidence is the same under both Pennsylvania and federal law
- noting that “[t]he federal ‘prisoner mailbox rule’ provides that a document is deemed filed on the date it is given to prison officials for mailing (citing Burns v. Morton, 134 F.3d 109, 113 (3d Cir.1998)

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JAMES ROBERT SCHOLL, : Civil No. 1:22-CV-01426
:
Petitioner, :
:
v. :
:
LONNIE J. OLIVER, et al., :
:
Respondents. : Judge Jennifer P. Wilson
MEMORANDUM
Before the court is a petition for habeas corpus pursuant to 28 U.S.C. § 2254
filed by James Robert Scholl (“Petitioner”). (Doc. 1.) The court finds that
Petitioner’s challenges based on sufficiency of the evidence and ineffective
assistance of trial counsel for failing to call character witnesses are not meritorious.
In addition, Petitioner raises more ineffective assistance of trial counsel challenges
and multiple constitutional challenges to his underlying criminal conviction. (Doc.
1.) It appears that Petitioner has attempted to raise these additional issues pro se
multiple times before the state court, but despite his attempts, these issues are
procedurally defaulted, and the merits of these issues will not be addressed by the
court. For these reasons, the court will deny the petition.
PROCEDURAL HISTORY
Petitioner is a self-represented litigant who filed a petition for writ of habeas

corpus in this court in September of 2022, seeking relief from his state court
judgment. (Doc. 1.)
Turning to the underlying state court convictions, Petitioner was found
guilty of three counts of aggravated assault (attempt to cause serious bodily injury),

three counts of aggravated assault (attempt to put official in fear of serious bodily
injury), one count of prohibited possession of a firearm, three counts of terroristic
threats with intention to terrorize another, three counts of simple assault, three

counts of recklessly endangering another person, one count of resisting arrest, and
one count of harassment following a jury trial in March of 2014. Commonwealth
v. Scholl, CP-14-CR-0001683-2013 (Ct. Com. Pl. Centre Cnty.).
Petitioner filed a direct appeal, and the Superior Court of Pennsylvania

affirmed the convictions but remanded for re-sentencing because the trial court had
improperly imposed a mandatory minimum sentence. See Commonwealth v.
Scholl, 251 A.3d 1208, 2021 WL 798891 at *1 (Pa. Super. Mar. 2, 2021). The

Supreme Court denied allowance of appeal in February 2016. On March 16, 2016,
the trial court re-sentenced Petitioner to 16 to 32 years of imprisonment. Id.
Petitioner filed a pro se petition under the Pennsylvania Post Conviction
Relief Act (“PCRA”) in March of 2016. Id. The petition raised ineffective
assistance of counsel stating “[trial counsel] asked the jury to convict me of all
charges during the closing argument [and] to impose a consecutive sentence at the

sentencing hearing” and constitutional issues including the failure of the police to
knock and announce. (Doc. 24-2, pp. 3–4.)1 The PCRA court appointed counsel,
who filed an amended petition stating “[i]n addition to the allegations raised in his

pro se Petition, Petitioner seeks a new trial on the grounds that trial counsel was
ineffective because she failed to call character witnesses and the Petitioner testified
on his own behalf at trial.” (Doc. 24-3, p. 3.)
A hearing was held on November 3, 2017, and Petitioner’s counsel offered

the following in her opening statement: “We have had several conferences with the
trial judge regarding this matter and in one of those conferences it was determined
that the only outstanding issue that may have merit and does need to have

testimony on the record is the issue of the failure to call character witnesses.”
(Doc. 24-4, p. 4.) Petitioner and trial counsel then testified at the hearing, and the
PCRA court denied the petition on December 6, 2017. (Doc. 24-4; Doc. 10-1, pp.
70–74.) The PCRA court decision only addressed the issue of ineffective

assistance of trial counsel based on the failure to call any character witnesses. (Id.)
Petitioner appealed to the Pennsylvania Superior Court alleging that the
PCRA court erred in denying relief and finding the trial counsel was not ineffective

1 For ease of reference, the court utilizes the page numbers form the CM/ECF header.
for failing to call character witnesses at the time of trial. Scholl, 2021 WL 798891
at *1–2. The court has reviewed Petitioner’s brief on appeal, and the only issue

addressed on appeal was the alleged ineffective assistance of counsel for failing to
call character witnesses. Appellate Brief, Commonwealth v. Scholl, No. 357 MDA
2020, 2020 WL 7647007 (Pa. Super. Aug. 7, 2020). In a March 2, 2021 decision,

the Superior Court affirmed the PCRA court’s denial of the petition. Scholl, 2021
WL 798891 at *1–3. Petitioner filed a petition for allowance of appeal with the
Supreme Court of Pennsylvania, which was denied on September 28, 2021.
Commonwealth v. Scholl, No. 126 MAL 2021, 263 A.3d 1137 (S. Ct. Pa. Sep. 28,

2021).
While the initial PCRA appeal was pending, Petitioner filed another pro se
PCRA petition on November 29, 2018. (Doc. 24-5.) This PCRA petition again

raised the issues of ineffective assistance of counsel and constitutional claims
raised in the initial PCRA petition that went unaddressed after counsel was
appointed. (Id.) Pursuant to an opinion and order in the Court of Common Pleas
of Centre County, this November 29, 2018 petition was deemed untimely and

denied for that reason. (Doc. 10-1, pp. 33–35.) Petitioner appealed this order on
July 4, 2019. (Id.) According to the docket sheet of the appeal, the case was
discontinued at Petitioner’s request. Commonwealth v. Scholl, No. 165 MDA 2019

(Pa. Super.)
In November of 2021, Petitioner filed yet another pro se PCRA petition.
(Doc. 24-7.) This petition again raised the issues set forth in the initial PCRA

petition that went unaddressed by the state court following the appointment of
counsel. (Id.) The court will refer to this as the “second PCRA” because that is
how the state court proceedings refer to it in the following procedural summary:

The PCRA court appointed Counsel, who filed an amended PCRA
petition asserting several constitutional violations, including a claim
that trial counsel had argued in favor of his conviction during closing
arguments, and a possible suppression issue. Counsel did not address
the timeliness of Scholl’s second PCRA petition. The Commonwealth
answered and argued that the petition was facially untimely, did not
state a timeliness exception, and, in any event, raised previously
litigated claims. The PCRA court issued a Pa.R.Crim.P. 907 notice of
its intent to dismiss the petition as untimely. Counsel did not respond.
The PCRA court dismissed Scholl’s second petition on August 9, 2022,
and Scholl timely appealed. The PCRA court ordered a Pa.R.A.P.
1925(b) statement, and Counsel timely filed a statement of her intent to
file a Turner/Finley letter brief in the appeal. See Pa.R.A.P. 1925(c)(4).

Counsel filed in this Court a petition to withdraw from representation
and a Turner/Finley letter brief concluding that Scholl’s second PCRA
petition was time-barred. This Court determined Counsel minimally
met the procedural requirements to seek withdrawal but directed
Counsel to file a corrected petition to withdraw, advise Scholl of his
appellate rights, and provide him a copy of her Turner/Finley letter
brief. Commonwealth v. Scholl, ––– A.3d ––––, 2023 WL 5014628
(Pa. Super. 2023) (unpublished memorandum at *3). Following
additional orders from this Court, Counsel has complied.

Commonwealth v. Scholl, No. 1328 MDA 2022, 2023 WL 7104445 at *1–2
(Super. Ct. Pa. Oct. 27, 2023). Petitioner filed a pro se response asserting that his
underlying PCRA claims have merit and requesting the appointment of new
counsel. Id. at *2. On October 27, 2023, the Pennsylvania Superior Court
affirmed the second PCRA court’s finding that the second petition was untimely,

granted counsel’s petition to withdraw as counsel, and denied Petitioner’s request
for new counsel as moot. Id. at *4.
While this second PCRA petition was pending, Petitioner filed the instant

petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this court on
September 5, 2022. (Doc. 1.)2 The petition seeks review of the following issues:
(1) sufficiency of the evidence; (2) ineffective assistance of trial counsel; and (3)
various constitutional challenges.

Respondents timely filed a response on November 1, 2022, asserting that the
issues raised by Petitioner were unexhausted and that the petition was untimely.
(Docs. 10, 10-2.) Petitioner did not file a traverse. The court reviewed the

response, and on December 28, 2023, ordered Respondents to file a response
addressing the timeliness of the petition considering the March 16, 2016
resentencing and address the underlying merits of the petition. (Doc. 12.)
Petitioner then filed a traverse on March 5, 2024, simply arguing that the

second PCRA petition was not untimely. (Doc. 20.) On March 28, 2024,

2 The petition was received and filed in this court on September 13, 2022. However, the petition
states that Petitioner placed it in the prison mailing system on September 5, 2022. (Doc. 1, p.
14.) Therefore, under the prisoner mailbox rule, the filing date is September 5, 2022. See Pabon
v. Mahanoy, 654 F.3d 385, 391 n.8 (3d Cir. 2011) (noting that “[t]he federal ‘prisoner mailbox
rule’ provides that a document is deemed filed on the date it is given to prison officials for
mailing (citing Burns v. Morton, 134 F.3d 109, 113 (3d Cir.1998)).
Respondents filed the requested response conceding that the Section 2254 petition
filed in this court was timely. (Doc. 21.) All issues having been briefed, the court

will now address the Section 2254 petition.
VENUE
Under 28 U.S.C. § 2241(d), a petition for a writ of habeas corpus under
Section 2254 can be filed in either the district where the petitioner is in custody, or

in the district where the petitioner was convicted and sentenced. 28 U.S.C. §
2241(d). Petitioner was convicted and sentenced in Centre County, Pennsylvania,
which is located in this district. Therefore, venue in this district is proper.

STANDARD OF REVIEW
Habeas corpus is an “‘extraordinary remedy’ reserved for defendants who
were ‘grievously wronged’ by the criminal proceedings.” See Dunn v. Colleran,
247 F.3d 450, 468 (3d Cir. 2001) (quoting Calderon v. Coleman, 525 U.S. 414,

146 (1998)). The exercise of restraint by a federal court in reviewing and granting
habeas relief in state court criminal prosecutions is appropriate due to
considerations of comity and federalism. See Engle v. Isaac, 456 U.S. 107 (1982).

“The States possess primary authority for defining and enforcing the criminal law.
In criminal trials they also hold the initial responsibility for vindicating
constitutional rights. Federal intrusions into state criminal trials frustrate both the
States’ sovereign power and their good-faith attempts to honor constitutional law.”
Id. States also have a recognized interest in the finality of convictions that have
survived direct review within the state court system. See Brecht v. Abrahamson,

507 U.S. 619, 620 (1993).
A district court may entertain an application for a writ of habeas corpus filed
by a person in state custody “only on the ground that he is in custody in violation

of the Constitution or laws of the United States.” 28 U.S.C. § 2254(a). If a claim
presented in a § 2254 petition has been adjudicated on the merits in state court
proceedings, habeas relief cannot be granted unless:
the adjudication of the claim – (1) resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly
established [f]ederal law, as determined by the Supreme Court of the
United States; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.

Id. § 2254(d). Petitioner bears the burden under this standard of review.
Harrington v. Richter, 562 U.S. 86, 103 (2011) (“As a condition for obtaining
habeas corpus from a federal court, a state prisoner must show that the state court’s
ruling on the claim being presented in federal court was so lacking in justification
that there was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.”)
DISCUSSION
In the second response, Respondents have agreed that the petition is timely.
Therefore, the court will address each of Petitioner’s three challenges in turn.
A. The Sufficiency of the Evidence Challenge Has No Merit.
Petitioner’s initial challenge to his conviction is the sufficiency of the

evidence. (Doc. 1, p. 5.) He challenges the sufficiency of the evidence underlying
the three convictions for aggravated assault and the conviction for resisting arrest
with the following assertions: (1) there was no bullet or round in the chamber; (2)
the police officers did not sustain any serious bodily injury; (3) he did not know

that the officers were outside the residence; (4) he would have had ample
opportunity to inflict serious bodily injury if he intended to harm the police
officers; and (5) there was insufficient evidence to prove that he was resisting

arrest. (Doc. 1, p. 5.)
Petitioner initially raised the issue of the sufficiency of the evidence
concerning the three convictions for aggravated assault to the Pennsylvania
Superior Court. (Doc. 21-3, pp. 6–10.) In the June 2, 2015 Superior Court

decision, the state court rejected this argument:
Under Section 2702(a)(1), a person may be convicted of aggravated
assault if he “attempts to cause serious bodily injury to another, or
causes such injury intentionally, knowingly or recklessly under
circumstances manifesting extreme indifference to the value of human
life. 18 Pa.C.S. § 2702(a)(1). “Serious bodily injury” means “[b]odily
injury which creates a substantial risk of death or which causes serious,
permanent disfigurement, or protracted loss or impairment of the
function of any bodily member or organ.” 18 Pa.C.S. § 2301. “For
aggravated assault purposes, an ‘attempt’ is found where the accused,
with the required specific intent, acts in a manner which constitutes a
substantial step toward perpetrating a serious bodily injury upon
another.” Commonwealth v. Gray, 867 A.2d 560, 567 (Pa. Super.
2005), appeal denied, 583 Pa. 694, 879 A.2d 781 (Pa.2005). Such
intent may be proven circumstantially. Commonwealth v. Rightley, 421
Pa.Super. 270, 617 A.2d 1289, 1295 (Pa. Super. 1992).

Scholl claims “[t]he evidence was insufficient to prove beyond a
reasonable doubt that [he] possessed the requisite specific intent to
cause serious bodily injury to Officer Chambers, Sergeant Albright, and
Officer Shaffer, and that he took a ‘substantial step’ towards inflicting
serious bodily injury.” Scholl's Brief, at 21. Specifically, Scholl argues
that he

never fired the gun, nor did he ever attempt to discharge
the gun. Upon examination, the clip or magazine
contained one single round. There were no rounds in the
chamber as the firearm was unprimed. In order for
[Scholl] to actually fire the gun, he would have had to rack
the slide with his hand to chamber a round from the clip or
magazine into the chamber. [Scholl] never uttered any
verbal threats to fire the gun or to harm the officers. In
fact, from the time the trailer door opened until he was
placed in handcuffs, [Scholl] did not say anything at all.

Id. at 28, 617 A.2d 1289 (record citations omitted). In support of his
argument, Scholl cites to case authority for the proposition that the mere
act of pointing a gun at another, without more, does not constitute
aggravated assault. See Scholl's Brief at 25–28, citing Commonwealth
v. Matthew, 589 Pa. 487, 909 A.2d 1254 (Pa. 2006), Commonwealth v.
Alford, 880 A.2d 666 (Pa. Super. 2005), and Commonwealth v. Savage,
275 Pa. Super. 96, 418 A.2d 629, 632 (Pa. Super. 1980).

In Alford, the defendant, a jail escapee, was convicted under §
2702(a)(1) of aggravated assault after he pounded on a woman’s door,
was refused entry, and then momentarily pointed a gun through her
front-door window, after which she fled the house through the back
door. In reversing that conviction, this Court noted, “It is well settled
that merely pointing a gun at another person in a threat to cause serious
bodily injury does not constitute an aggravated assault.” 880 A.2d at
671; see also Savage, supra.
Alford was followed by our Supreme Court’s later pronouncement in
Matthew, supra. In Matthew, the defendant was convicted of
aggravated assault under § 2701(a)(1) after he first placed a loaded gun
against the victim’s throat, continued to restrain the victim throughout
the encounter by pointing the gun at him, and threatened to kill him.
The Supreme Court upheld the sufficiency of the evidence supporting
that conviction. The Matthew Court reaffirmed that the totality of the
circumstances are examined to determine if a defendant demonstrated
the intent to inflict serious bodily injury. Matthew, 909 A.2d at 1258.
The Court concluded that the defendant “attempted to inflict serious
bodily injury upon [the victim] and intended to do so” in light of the
fact that he “placed a loaded gun against [the victim’s] throat,
repeatedly pointed it at him, and threatened to kill him seven to ten
times.” Id. at 1258. Significantly, the Matthew Court continued that,
if the “threats alone were not enough to establish his intent, the fact-
finder could determine his intent from pushing the loaded gun against
[the victim’s] throat and otherwise pointing it at him.” Id. at 1259.

Here, the trial court rejected Scholl’s argument, as follows:

The evidence showed [Scholl] pointed the loaded weapon
at the officers. The Court acknowledges this alone is
insufficient to infer the specific intent to injure required
for aggravated assault. However, when combined with the
testimony of [Scholl’s] finger on the trigger and continued
attempts to direct the firearm at the officers, the evidence
was sufficient to establish the required intent to cause
serious bodily injury . . . to the officers. The mere fact that
the officers were able to overpower [Scholl] and take the
weapon from him before he was able to fire it does not
negate his actions nor the intent they demonstrate.

Further, the act of pointing the loaded gun with his finger
on the trigger and his continuing attempt to direct the
weapon at officers while they were attempting to disarm
him was also [a] substantial step toward perpetrating
serious bodily injury upon them. Again, simply because
the officers were able to overpower [Scholl] and stop him
from firing the weapon does not negate the intent
demonstrated by his actions. Therefore, the evidence is
sufficient to support the “intent” and “substantial step”
elements. . . .

Trial Court Opinion, 5/21/2014, at 5 (citation omitted). Based on our
review, we agree with the trial court that Scholl’s sufficiency challenge
fails.

“Where the intention of the actor is obvious from the act itself, the [fact-
finder] is justified in assigning the intention that is suggested by the
conduct.” Matthew, 909 A.2d at 1259 (citation omitted). The evidence
showed Scholl pointed the loaded gun at three police officers,
redirecting it at each one individually. Scholl kept his finger on the
trigger of the gun and refused to disarm even though police ordered him
to drop the weapon 25 or 30 times. N.T., 3/24/2014, at 64. The officers
wrestled Scholl on the ground for approximately 30 seconds to a minute
before seizing the gun from him. The gun had one bullet in the clip or
magazine. This evidence, viewed in the light most favorable to the
Commonwealth as verdict winner, was sufficient to support the jury’s
conclusion that Scholl had the intent to cause serious bodily harm to the
officers, and that he took a substantial step towards inflicting serious
bodily injury, as required by Section 2702(a)(1). Therefore, Scholl’s
first argument warrants no relief.

(Doc. 21-3, pp. 7–10.)
The “clearly established Federal law” governing sufficiency of the evidence
claims is set forth in the United States Supreme Court’s decision in Jackson v.
Virginia: “after reviewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” 443 U.S. 307, 319 (1979). This is consistent
with the standard used by the Superior Court in reviewing Petitioner’s sufficiency
of the evidence challenge set forth above. See Evans v. Court of Common Pleas,
Delaware Cnty., 959 F.2d 1227, 1233 (3d Cir. 1992) (noting that the test for
sufficiency of the evidence is the same under both Pennsylvania and federal law).

Because the Superior Court applied the correct legal standard, its adjudication
satisfies review under the “contrary to” clause of § 2254(d)(1).
This court next considers whether the trial court’s decision amounted to an

“unreasonable application” of Jackson. The Supreme Court has further addressed
the standard set forth in Jackson:
Jackson claims face a high bar in federal habeas proceedings because
they are subject to two layers of judicial deference. First, on direct
appeal, “it is the responsibility of the jury. . . to decide what conclusions
should be drawn from evidence admitted at trial. A reviewing court
may set aside the [trial court’s] verdict on the ground of insufficient
evidence only if no rational trier of fact could have agreed with the [trial
court].” Cavazos v. Smith, 565 U.S. 1 (2011). And second, on habeas
review, “a federal court may not overturn a state court decision
rejecting a sufficiency of the evidence challenge simply because the
federal court disagrees with the state court. The federal court instead
may do so only if the state court decision was ‘objectively
unreasonable.’” Ibid. (quoting Renico v. Lett, 559 U.S. 766 (2010)).

- - -

[T]he only question under Jackson is whether [the state court’s] finding
was so insupportable as to fall below the threshold of bare rationality.
The state court of last review did not think so, and that determination
in turn is entitled to considerable deference under AEDPA, 28 U.S.C.
§ 2254(d).

Coleman v. Johnson, 566 U.S. 650, 651–56 (2012).
Here, the state court’s finding included pertinent footnotes that further
addressed evidence that supported the jury’s factual findings:
Officer Shaffer testified: “The gun was sort of moving around in front
of everybody’s face as [Scholl] was attempting to struggle to keep hold
of the weapon while Officer Chambers was trying to remove it from his
hands.” N.T., 3/24/2014, at 56. He further stated that the gun “came
right across my face at least once[.]” Id. Sergeant Albright testified
that Scholl pointed the gun at Officer Chambers and at himself. Id. at
89, 91, 96. Officer Chambers also testified that Scholl pointed the gun
at him, “a foot from his face.” Id. at 118.

(Doc. 21-3, p. 9.)

While we acknowledge Scholl’s argument that no bullet was in the
chamber of the gun, the magazine did contain one live round. Scholl
indicated to police he had taken the pistol and put the magazine in it,
thereby intentionally loading the weapon. See N .T., 3/24/2014, at 148,
162 (Commonwealth Exhibit 5), 223. Had Scholl operated the slide,
chambering the round, he could have fired the gun. The actions of the
police in placing their hands on the weapon prevented that from
happening.

(Doc. 21-3, p. 10.)

Here, Petitioner’s entire argument is contained in a bulleted list in the
petition:
• No bullet or round in the chamber
• Officers did not sustain any Serious Bodily Injury
• I did not know that officers were outside my residence
• I would have had Ample Opportunity to inflict S.B.I. if it was my
intent to harm police officers

(Doc. 1, p. 5.) The traverse further fails to address the evidence considered or
provide any rationale as to why or how the evidence the trial court relied upon in
affirming the jury’s verdict was “objectively unreasonable” as required in Jackson.
(Doc. 20.) Instead, Petitioner raises the question, “[i]s there any medical proof the
officers actually suffered Serious Bodily Injury?” (Id, p. 5.) Petitioner then fails to
address the question in briefing, leaving the court to assume this is a rhetorical

question intended to solidify his argument. (Id.) However, as the trial court noted,
18 Pa.C.S. § 2702(a)(1) only requires the attempt to cause serious bodily injury
with a minimum mens rea of recklessly. (Doc. 21-3, p. 6.) Considering this, the

court finds that the state court’s decision was not objectively unreasonable, and
Petitioner’s sufficiency of the evidence challenge fails.
Next, Petitioner challenges the sufficiency of the evidence to support the
conviction of resisting arrest. (Id., pp. 10–12.) His petition contains a single

sentence in support of his assertion: “Insufficient evidence to prove that I was
resisting arrest.” (Doc. 1, p. 5.) Again, in the June 2, 2015 Superior Court
decision, the state court rejected this argument:

A defendant may be convicted of resisting arrest if he, “with the intent
of preventing a public servant from effecting a lawful arrest or
discharging any other duty, . . . creates a substantial risk of bodily injury
to the public servant or anyone else, or employs means justifying or
requiring substantial force to overcome the resistance.” 18 Pa.C.S. §
5104. This statutory language “does not require the aggressive use of
force such as a striking or kicking of the officer.” Commonwealth v.
McDonald, 17 A.3d 1282, 1285 (Pa. Super. 2011) (quotations and
citation omitted), appeal denied, 611 Pa. 680, 29 A.3d 372 (Pa. 2011).
We note, initially, that a lawful arrest is an element of resisting arrest,
Commonwealth v. Jackson, 592 Pa. 232, 924 A.2d 618, 620 (Pa. 2007),
and that, in this case, police had probable cause to arrest based upon
Scholl’s actions when he confronted police. With regard to the
remaining elements, Scholl claims he did not create a “substantial risk
of bodily injury” to the officers or require “substantial force” to
overcome. Scholl’s Brief at 31.
We recognize that, in general, a “minor scuffle” is insufficient to
support a charge of resisting arrest. Commonwealth v. Rainey, 285
Pa.Super. 75, 426 A.2d 1148, 1150 (Pa. Super. 1981). However, the
evidence in this case showed more than a minor scuffle. Officer Shaffer
testified that after the officers had wrested the gun from Scholl, Scholl
continued to “actively resist” and he had to use a “shoulder lock.” N.T.,
3/24/2014, at 63. Officer Shaffer explained that Scholl was “wrestling
trying to keep us from being able to get his hand . . . tensing up . . .
keeping us from being able to get control of it . . . and we’re just trying
to wrench his hands to get them into a position where we can actually
apply handcuffs at that point.” Id. He further testified that Scholl “did
not acquiesce to anything until we finally had a handcuff on one hand
and had him rolled over and bellied out.” Id. at 64, 426 A.2d 1148.
Sergeant Albright confirmed that Scholl “was actively resisting . . .
even after Officer Chambers got the firearm away[,]” and that “Officer
Shaffer was the one who was actually able to arm bar [Scholl].” Id. at
106, 426 A.2d 1148. Likewise, Officer Chambers also testified that
after he took hold of the gun from Scholl and stood up, the struggle
continued. See id. at 123, 426 A.2d 1148. He estimated that after the
gun was removed from Scholl, it took “maybe another 30 [seconds] to
get him secured[.]” Id. at 121, 426 A.2d 1148.

The statutory language of Section 5104 criminalizes resistance
behavior that requires substantial force to surmount. Although Scholl
cites Sergeant Albright’s testimony that Scholl may have just been
struggling in the limited space of the trailer to get his arms behind his
back, and that had he truly felt Scholl was resisting arrest, he would
have tasered him, our standard of review requires that we view the
evidence in the light most favorable to the Commonwealth as verdict
winner. Here, we conclude that the evidence was sufficient for the jury
to conclude that the officers had to employ substantial force to
overcome Scholl’s resistance, and to find him guilty of resisting arrest.
See Commonwealth v. Thompson, 922 A.2d 926, 928 (Pa. Super. 2007)
(appellant guilty of resisting arrest where she would not allow police
officer to handcuff her and refused order to put her hands behind her
back; officer’s efforts to restrain her left him exhausted). Accordingly,
this claim likewise fails.

(Doc. 21-3, pp. 10–12.)
Again, the court finds that the state court used the appropriate standard in
reviewing the sufficiency of the evidence challenge: “after reviewing the evidence

in the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” Jackson,
443 U.S. at 319. Also, the court has reviewed the testimony relied upon by the

state court in the jury trial transcript, Doc. 24-1, and determined that the state
court’s decision was not objectively unreasonable. Therefore, this sufficiency of
the evidence challenge has no merit.
B. The Ineffective Assistance of Trial Counsel Challenges Cannot
Succeed.
Petitioner alleges ineffective assistance of trial counsel in four specific

aspects of representation: (1) failing to introduce character witnesses at trial; (2)
asking the jury to convict Petitioner on all charges during closing argument; (3)
asking for a consecutive sentence during the sentencing hearing; and (4)
demonstrating prejudice. (Doc. 1, p. 6.) Only Petitioner’s initial challenge

regarding character witnesses is exhausted and will be addressed by the court on
the merits. The remaining three challenges are procedurally defaulted and will not
be addressed on the merits.
1. Ineffective Assistance of Counsel Claim Based on Failure to
Call Character Witnesses.
Following denial at the PCRA court, the Superior Court affirmed that trial
counsel was not ineffective for failing to call character witnesses at the jury trial:

Scholl alleges his trial counsel was ineffective for failing to call
character witnesses to show his reputation for peacefulness or honesty.
Scholl’s Br. at 11. Scholl argues that “there was no reasonable basis
for trial counsel’s failure to call character witnesses regarding said traits
because the crux of Scholl’s defense was that he did not point a firearm
at police officers.” Id. He further argues that the trial counsel’s “failure
to investigate the potential character witnesses identified by Scholl
likely affected the outcome of the trial and served to deprive Scholl a
fair trial in this matter.” Id.
When reviewing the denial of PCRA relief, we consider whether “the
determination of the PCRA court is supported by the evidence of record
and is free of legal error. The PCRA court’s findings will not be
disturbed unless there is no support for the findings in the certified
record.” Commonwealth v. Larkin, 235 A.3d 350, 355 (Pa. Super.
2020) (en banc) (quoting Commonwealth v. Barndt, 74 A.3d 185, 192
(Pa. Super. 2013)).
We presume counsel was effective and a petitioner bears the burden of
proving otherwise. See Commonwealth v. Brown, 161 A.3d 960, 965
(Pa. Super. 2017). A petitioner may overcome the presumption by
pleading and proving all of the following: “(1) the underlying legal
claim has arguable merit; (2) counsel had no reasonable basis for his or
her action or inaction; and (3) the petitioner suffered prejudice because
of counsel's ineffectiveness.” Commonwealth v. Paddy, 15 A.3d 431,
442 (Pa. 2011). A petitioner’s failure to prove any one of these factors
defeats the ineffectiveness claim. See Commonwealth v. Dennis, 950
A.2d 945, 954 (Pa. 2008).
To prove a claim of trial counsel ineffectiveness for failure to call a
witness, the defendant must plead and prove that “(1) the witness
existed; (2) counsel was either aware of or should have been aware of
the witness's existence; (3) the witness was willing and able to
cooperate on behalf of the defendant; and (4) the proposed testimony
was necessary to avoid prejudice to the defendant.” Commonwealth v.
Tharp, 101 A.3d 736, 757 (Pa. 2014) (quoting Commonwealth v.
Bryant, 855 A.2d 726, 746 (Pa. 2004)).
The PCRA court found trial counsel had a reasonable basis for her
decision not to call character witnesses, that is, to prevent cross-
examination about Scholl’s prior record. PCRA Ct. Op. at 3-4. The
PCRA court further concluded that Scholl did not prove prejudice, as
he did not prove the trial outcome would have been different had
counsel called the witnesses, noting the proposed witnesses had only
known Scholl for a few months. The court noted that Scholl presented
no evidence that the witnesses were available or would have testified
on his behalf. Id. at 4-5.
The PCRA court’s factual findings are supported by the record, and it
did not commit legal error in finding Scholl failed to establish counsel
acted unreasonably and failed to establish prejudice. Counsel testified
that she did not recall discussing character witnesses with Scholl, but
would have recommended against it, as the Commonwealth could have
asked the witnesses about whether they knew of Scholl’s prior
convictions. Moreover, Scholl has failed to plead, much less prove,
that specific witnesses were willing and available to give favorable
character testimony, as he never provided witness certifications from
any proposed character witness and did not present testimony from any
such witness at the PCRA hearing.
Scholl, 2021 WL 798891, at *2–3.
Petitioner now raises this issue before this court. (Doc. 1, p. 6.) Considering
that the state court had an opportunity to review the issue on the merits, the court
will address it now.
The Sixth Amendment provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to have the assistance of counsel for his defence.”
U.S. Const. amend VI. The purpose of the right to the assistance of counsel is to
ensure a fair trial, and “the Court has recognized that ‘the right to counsel is the
right to the effective assistance of counsel.’” Strickland v. Washington, 466 U.S.

668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)).
“The benchmark for judging any claim of ineffectiveness must be whether
counsel’s conduct so undermined the proper functioning of the adversarial process

that the trial cannot be relied on as having produced a just result.” Id. “The Sixth
Amendment guarantees reasonable competence, not perfect advocacy judged with
the benefit of hindsight.” Yarborough v. Gentry, 540 U.S. 1, 8 (2003). The clearly
established federal law as to an ineffective-assistance-of-counsel claim is

Strickland, which sets forth the following two-prong analysis.
Under the first prong of Strickland, the petitioner must establish that
counsel’s performance was deficient. 466 U.S. at 687. “Strickland’s first prong

sets a high bar.” Buck v. Davis, 580 U.S. 100, 118 (2017). To establish that
counsel’s performance was deficient, the petitioner must establish that “counsel’s
representation fell below an objective standard of reasonableness.” Strickland, 466
U.S. at 688. “Judicial scrutiny of counsel’s performance must be highly

deferential.” Id. at 689. As such, the court “must apply a ‘strong presumption’
that counsel’s representation was within the ‘wide range’ of reasonable
professional assistance,” Harrington, 562 U.S. at 104 (quoting Strickland, 466

U.S. at 689), and “[t]o overcome that presumption, a defendant must show that
counsel failed to act ‘reasonabl[y] considering all the circumstances[.]’” Cullen v.
Pinholster, 563 U.S. 170, 189 (2011) (quoting Strickland, 466 U.S. at 688). “The

challenger’s burden is to show ‘that counsel made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.’” Harrington, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 687).

Under the second prong of Strickland, the petitioner must establish
prejudice. Strickland, 466 U.S. at 687. To do so, the petitioner must show a
reasonable probability that, if not for counsel’s errors, the result of the proceeding
would have been different. Id. at 694. The petitioner “need not prove that the

evidence would have been insufficient if not for counsel’s errors . . . [or] ‘that
counsel’s deficient conduct more likely than not altered the outcome.’” Saranchak
v. Sec'y, Pa. Dep't of Corr., 802 F.3d 579, 588 (3d Cir. 2015) (quoting Strickland,

466 U.S. at 693). Rather, the issue is whether there is a reasonable probability of a
different result. Id. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694. “That
requires a ‘substantial,’ not just ‘conceivable,’ likelihood of a different result.”

Pinholster, 563 U.S. at 189 (quoting Harrington, 562 U.S. at 112).
To prevail on an ineffective-assistance claim, a petitioner must satisfy both
prongs of Strickland. A court can choose which prong of the standard to apply

first, and it may reject an ineffectiveness claim on the ground that the petitioner
was not prejudiced without addressing whether counsel’s performance was
deficient. Strickland, 466 U.S. at 697.

“Surmounting Strickland’s high bar is never an easy task.” Padilla v.
Kentucky, 559 U.S. 356, 371 (2010). “Even under de novo review, the standard for
judging counsel’s representation is a most deferential one.” Premo v. Moore, 562

U.S. 115, 122 (2011). And “[e]stablishing that a state court’s application of
Strickland was unreasonable under § 2254(d) is all the more difficult.”
Harrington, 562 U.S. at 105. When the state court has decided the claim on the
merits, “[t]he question ‘is not whether a federal court believes the state court’s

determination’ under the Strickland standard ‘was incorrect but whether that
determination was unreasonable—a substantially higher threshold.’” Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S.

465, 473 (2007)). “And, because the Strickland standard is a general standard, a
state court has even more latitude to reasonably determine that a defendant has not
satisfied that standard.” Id.
In addressing Petitioner’s specific claim of ineffective assistance of counsel

for failing to call a character witness, the Superior Court applied the governing test
for ineffective assistance of counsel claims announced by the Pennsylvania
Supreme Court in Commonwealth v. Pierce, 537 Pa. 514, 524 (1994), but the

Superior Court cited to Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011)
(“To prevail in a claim of ineffective assistance of counsel, a petitioner must
overcome the presumption that counsel is effective by establishing all of the

following three elements, as set forth in Commonwealth v. Pierce, 515 Pa. 153,
527 A.2d 973, 975–76 (1987): (1) the underlying legal claim has arguable merit;
(2) counsel had no reasonable basis for his or her action or inaction; and (3) the

petitioner suffered prejudice because of counsel's ineffectiveness.”). The United
States Court of Appeals for the Third Circuit has determined that the Pierce test
conforms to established federal law and is “not contrary to the Strickland test.”
Henderson v. DiGuglielmo, 138 F. App’x 463, 469 (3d Cir. 2005) (citing Werts v.

Vaughn, 228 F.3d 178, 203–04 (3d Cir. 2000)) (recognizing the Pierce test as
materially identical to the Strickland test). Therefore, the Superior Court’s applied
test is not “contrary to” the test established in Strickland.

Nor does the Superior Court’s determinations that trial counsel provided a
reasonable basis for not calling witnesses and that Petitioner failed to demonstrate
any prejudice constitute an objectively unreasonable application of federal law.
See Knowles, 556 U.S. at 123. Petitioner has not identified any decision of the

state courts which is “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d)(1). Petitioner, therefore, does not meet his burden of
proving ineffective assistance of counsel with respect to the failure to call character
witnesses.

2. Ineffective Assistance of Counsel Claims That Are
Procedurally Defaulted.
A federal court may not grant a writ of habeas corpus on a claim brought by
an individual in custody pursuant to a state court judgment unless: (1) “the
applicant has exhausted the remedies available in the courts of the State;” (2)
“there is an absence of available State corrective process;” or (3) “circumstances

exist that render such process ineffective to protect the rights of the applicant.” 28
U.S.C. § 2254(b)(1)(A), (b)(1)(B); see also Wilkerson v. Sup’t Fayette SCI, 871
F.3d 221, 227 (3d Cir. 2017). Section 2254(c) provides that “[a]n applicant shall

not be deemed to have exhausted the remedies available in the courts of the State,
within the meaning of this section, if he has the right under the law of the State to
raise, by any available procedure, the question presented.” 28 U.S.C. § 2254(c).
Thus, when a state prisoner has failed to exhaust the legal remedies available to

him in the state courts, federal courts will typically refuse to entertain a petition for
writ of habeas corpus. Whitney v. Horn, 280 F.3d 240, 250 (3d Cir. 2002). It is the
petitioner who bears the burden of establishing the exhaustion requirement has

been satisfied. See Lines v. Larkins, 208 F.3d 153, 159 (3d Cir. 2000).
“[T]he exhaustion doctrine is designed to give the state courts a full and fair
opportunity to resolve federal constitutional claims before those claims are
presented to the federal courts.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
To satisfy the exhaustion requirement, a petitioner must invoke “one complete

round” of the applicable state’s appellate review process, thereby giving the courts
of that state “one full opportunity” to resolve any issues relevant to such claims.
Id. at 845 (holding that a petitioner must present every claim raised in the federal

petition to the state’s trial court, intermediate appellate court, and highest court
before exhaustion is considered satisfied). To “fairly present” a claim, the
petitioner must present his or her “factual and legal substance to the state courts in
a manner that puts them on notice that a federal claim is being asserted.”

McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999).
The failure to properly present claims to the state court generally results in a
procedural default. Lines, 208 F.3d at 150–60. “When a claim is not exhausted

because it has not been ‘fairly presented’ to the state courts, but state procedural
rules bar the applicant from seeking further relief in state courts, the exhaustion
requirement is satisfied because there is ‘an absence of available State corrective
process.’” 28 U.S.C. § 2254(b). In such cases, however, applicants are considered

to have procedurally defaulted their claims and federal courts may not consider the
merits of such claims “unless the applicant establishes ‘cause and prejudice’ or a
‘fundamental miscarriage of justice’ to excuse his or her default.” McCandless,

172 F.3d at 260 (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)).
To demonstrate “cause” for a procedural default, a petitioner must point to
some objective external factor which impeded his efforts to comply with the state’s

procedural rule. See Murray v. Carrier, 477 U.S. 478, 488 (1986). “Prejudice”
will be satisfied only if he can demonstrate that the outcome of the state
proceeding was “unreliable or fundamentally unfair” as a result of a violation of

federal law. See Lockhart v. Fretwell, 506 U.S. 364, 366 (1993).
Alternatively, if a petitioner demonstrates that a “constitutional violation has
probably resulted in the conviction of one who is actually innocent,” Murray, 477
U.S. at 496, then a federal court can excuse the procedural default and review the

claim in order to prevent a fundamental miscarriage of justice. Edwards v.
Carpenter, 529 U.S. 446, 451 (2000); Wenger v. Frank, 266 F.3d 218, 224 (3d Cir.
2001). The miscarriage of justice exception applies only in extraordinary cases,

and actual innocence means factual innocence, not legal insufficiency. Bousley v.
United States, 523 U.S. 614, 623 (1998); Murray, 477 U.S. at 496. A petitioner
establishes actual innocence by asserting “new reliable evidence—whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical

physical evidence—that was not presented at trial,” showing that no reasonable
juror would have voted to find the petitioner guilty beyond a reasonable doubt.
Hubbard v. Pinchak, 378 F.3d 333, 339-40 (3d Cir. 2004).
Petitioner raises three other grounds for ineffective assistance of trial
counsel: (1) asking the jury to convict Petitioner on all charges during the closing

argument; (2) asking for a consecutive sentence during the sentencing hearing; and
(3) demonstrating prejudice. (Doc. 1, p. 6.) He alleges that these arguments were
raised in his PCRA petition, which was denied by the Court of Common Pleas and

affirmed by the Superior Court. (Id., p. 7.) However, he is only partially correct.
Petitioner has raised these issues in all three of his pro se PCRA petitions filed in
state court. (Docs. 24-2, 24-5, 24-7.) In his initial pro se PCRA petition, once
counsel was appointed, an amended petition was filed. (Doc. 24-3.) While this

amended petition incorporated the claims made in the initial pro se PCRA petition,
these issues were not addressed at the hearing or by the PCRA court. (Doc. 24-4;
Doc. 10-1, pp. 70–74.) When the PCRA denial was appealed to the Superior

Court, the only issue briefed in that appeal was the ineffective assistance of trial
counsel for failing to call character witnesses. Appellate Brief, Commonwealth v.
Scholl, No. 357 MDA 2020, 2020 WL 7647007. Thus, while Petitioner raised the
issues before the PCRA court, they were not fairly presented to the state court for a

full round of review. The proper recourse for the PCRA court overlooking these
issues was to raise them on the appeal to the Superior Court. This was not done.
Subsequent pro se PCRA petitions raised the issues, but these petitions were

deemed untimely. (Docs. 24-5, 24-7.) Therefore, Petitioner failed to invoke “one
complete round” of the applicable state’s appellate review process. As such, these
issues are unexhausted and procedurally defaulted.

In his traverse, Petitioner does not point to any external factor to
demonstrate cause in his default. Instead, he merely argues that his second PCRA
petition was timely filed because he submitted new evidence. (Doc. 20.)

However, his new evidence is merely his conclusion that counsel in the first PCRA
petition was ineffective, which the state court found did not constitute new
evidence. (Id.)
Petitioner alleges “a fundamental miscarriage of justice” to excuse his

default as allowed in McCandless. (Doc. 20, pp. 4–5.) However, Petitioner’s
entire argument merely asserts legal conclusions:
Would refusal to consider a constitutional claim due to a procedural bar
result in a fundamental miscarriage of justice? If so, then the Federal
Court should consider the merits of the claim.

1) Petitioner[’]s underlying legal claim has arguable merit. 2) Counsel
had no reasonable basis for her action or inaction and 3) The Petitioner
suffered prejudice because of counsel[’]s ineffectiveness.

(Id.) This seemingly rhetorical question followed by three legal assertions is not
sufficient to establish a fundamental miscarriage of justice under Bousley.
Therefore, the ineffective assistance of counsel challenges are procedurally
defaulted and will not be addressed further by this court.
3. Constitutional Challenges
Petitioner sets forth the following five constitutional challenges in his

petition: (1) police officers did not follow proper knock and announce protocol; (2)
police officers did not have a warrant; (3) police officers unlawfully tried to gain
entry into his residence at 11:00 p.m.; (4) the court is in violation of several
constitutional rights; and (5) several of the responding officers were outside of

their jurisdiction. (Doc. 1, p. 8.) Petitioner alleges that he raised these issues in his
PCRA petition, but did not appeal them “[b]ecause my PCRA attorney abandoned
me and neglected to file any appeals.” (Id., p. 9.) Respondents assert that this

challenge has not been previously raised, resulting in it being waived. (Doc. 10, p.
7.)
After reviewing the state court filings, these issues were raised in the initial
pro se PCRA petition, but like the three ineffective assistance of trial counsel

claims addressed in the preceding section, these constitutional claims were
unaddressed following the appointment of counsel and the filing of the amended
petition. As set forth above, the proper route to exhaust these issues was to appeal

the PCRA court’s decision that failed to address them. Petitioner was represented
by counsel on appeal, and counsel filed an appeal to the Superior Court. However,
the appellate brief to the Superior Court did not address any of these constitutional
claims. Appellate Brief, Commonwealth v. Scholl, No. 357 MDA 2020, 2020 WL
7647007. Therefore, Petitioner failed to invoke “one complete round” of
Pennsylvania’s appellate review process. These issues were also raised in the two

subsequent pro se PCRA petitions, but both petitions were deemed untimely.
(Doc. 24-5, 24-7.) As such, the constitutional claims are procedurally defaulted.
Petitioner does not allege any “cause and prejudice” or “a fundamental

miscarriage of justice” to excuse his default of these claims as allowed in
McCandless. Therefore, these issues are procedurally defaulted and will not be
addressed further by the court.
CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a
certificate of appealability (“COA”), an appeal may not be taken from a final order
in a proceeding under 28 U.S.C. § 2254. A COA may issue only if the applicant
has made a substantial showing of the denial of a constitutional right. 28 U.S.C. §

2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of
reason could disagree with the district court’s resolution of his constitutional
claims or that jurists could conclude the issues presented are adequate to deserve

encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003). “When the district court denies a habeas petition on procedural grounds
without reaching the prisoner’s underlying constitutional claim, a COA should
issue when the prisoner shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court

was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). Here, jurists of reason would not find the procedural disposition of this
case debatable. Accordingly, no COA will be issued.

CONCLUSION
For the above stated reasons, the petition filed pursuant to Section 2254 will
be denied and the case will be closed.
An appropriate order follows.

s/Jennifer P. Wilson
JENNIFER P. WILSON
United States District Judge
Middle District of Pennsylvania

Dated: July 8, 2024

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10667537. Public record. Not legal advice.