Kuperschmidt v. Angradi

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DIMITRY KUPERSCHMIDT, : Civil No. 1:21-cv-00363

:

Petitioner, :

:

v. : (Magistrate Judge Carlson)

:

JEFF ANGRADI, et al., :

:

Respondents. :

MEMORANDUM OPINION

I. Introduction

The instant petition for writ of habeas corpus filed by the petitioner, Dimitry

Kuperschmidt, was reassigned to the undersigned on November 1, 2023. This

petition involves a unique set of facts and circumstances arising out of a fraudulent

voting scheme in a 2014 Board of Directors election at the private community called

Wild Acres. In May of 2016, following a jury trial, the petitioner, Dimitry

Kuperschmidt, was convicted of 190 counts including forgery, identity theft, and

criminal conspiracy for conspiring with his co-defendant, Myron Cowher, to cast

ballots for historically non-voting property owners of the Wild Acres Community in

order to influence the election results.

Our initial review of this petition revealed that the primary issue raised by the

parties was that of exhaustion and procedural default. Specifically, it was undisputed

that, at the state court level, Kuperschmidt had filed a timely petition for post-

conviction relief under the Post-Conviction Relief Act (PCRA), but, because he

served less than one year in custody, he no longer met the custody requirement of

the PCRA at the time the trial court considered his petition and thus it was dismissed.

While the respondents argued this constituted a procedural default, the petitioner’s

position was that, in circumstances where the habeas petitioner has filed a timely

petition for relief in federal court and is precluded from seeking state court relief due

to lack of custody, it has long been held that exhaustion is excused. Since the parties’

initial briefing did not reach the merits of Kuperschmidt’s ineffective assistance of

counsel claims, we ordered supplemental briefing so we could benefit from a

complete review of the record of proceedings.

After our independent review of the full record of the state court proceedings,

and upon consideration of the supplemental briefing by the parties, although we

agree Kuperschmidt’s inability to meet the PCRA custody requirement alone does

not bar him from habeas relief, his failure to comply with other state procedural rules

in filing his PCRA appeal resulted in his claims being procedurally defaulted.

Moreover, a review of the merits of his claims reveals that he has failed to raise any

claim that rises to a constitutional violation warranting federal intervention.

Accordingly, for the reasons set forth below, this petition will be denied.

II. Statement of Facts and of the Case

The factual background of the instant petition was summarized by the trial

court in considering the PCRA petition as follows:

Dmitry Kuperschmidt (“Petitioner”) was charged with two hundred

seventeen (217) counts related to a fraudulent voting scheme in a 2014

election held by the Wild Acres Community Association. In particular,

the fraudulent acts involved filling out election ballots of S.O.S.

property owners in the community. Following trial, the jury returned a

verdict of guilty on one hundred ninety (190) counts. The Petitioner

was found not guilty on twenty-seven (27) counts for the offenses of

Identity Theft, Tampering with Records or Identification, and Forgery.

The Defendant’s original sentencing took place on September 8, 2016,

during which he received a total aggregate sentence of not less than

twelve (12) months not more than twenty-nine (29) months of

incarceration in a state prison.

(Doc. 41-4, at 1-2).

Kuperschmidt was tried jointly with his co-conspirator in the election fraud

scheme, Myron Cowher. At trial, the prosecution introduced recordings of

wiretapped conversations between the director of operations of Wild Acres, Robert

DePaolis, who had informed the Pennsylvania State Police that Kuperschmidt’s co-

defendant, Myron Cowher, was planning on forging ballots in the upcoming

election, and Cowher and Kuperschmidt. (Doc. 41-1, at 115-19). State Trooper

Frank Orlando, also testified at length about the investigation. (Id., at 99-208).

The Pennsylvania Superior Court aptly summarized the procedural history

following Kuperschmidt’s conviction:

On direct appeal, this Court reversed the conviction for criminal use of

a communication facility, vacated the judgement of sentence and

remanded the matter for resentencing. See Commonwealth v.

Kuperschmidt, 185 A.3d 1093 (Pa. Super. 2018) (unpublished

memorandum), appeal denied, 647 Pa. 313, 189 A.3d 378 (2018). On

November 1, 2018, the trial court resentenced Appellant and imposed

the same aggregate sentence of 12 to 29 months’ imprisonment. Once

again, Appellant appealed and this Court vacated the judgment of

sentence and remanded for resentencing, holding that the trial court

imposed an illegal sentence on one count of attempted identity theft,

where the minimum sentence for that crime exceeded one-half of the

maximum sentence. See Commonwealth v. Kuperschmidt, 221 A.3d

312 (Pa.Super. 2019) (unpublished memorandum), appeal denied, ___

Pa. ___, 234 A.3d 400 (2020). The trial court resentenced Appellant on

July 17, 2020, maintaining an aggregate sentence of 12 to 29 months’

imprisonment.

(Doc. 41-6, at 2).

According to the petitioner, his period of incarceration and subsequent

probation expired on February 28, 2021, less than a year after his final sentence was

imposed. (Doc. 7, ⁋ 3). The relative brevity of the petitioner’s custodial period

following the multiple appeals of his sentence and final disposition of his case was

problematic in his quest for post-conviction relief. Attempting to obviate any

question concerning his custody status and habeas corpus jurisdiction, Kuperschmidt

filed the instant petition for writ of habeas corpus on February 6, 2021, and

subsequently sought a stay and abeyance of these habeas proceedings pursuant to

Rhines v. Weber, 544 U.S. 269 (2005), to exhaust his remedies in State court before

pursuing habeas relief in this Court. The respondents did not object to this motion,

and it was granted on July 6, 2021. (Docs. 7, 8, 14, 18).

Meanwhile, Kuperschmidt sought to exhaust his remedies in state court, filing

a timely counseled PCRA petition on February 25, 2021. (Doc. 41-3). As the

Pennsylvania Superior Court summarized:

On March 9, 2021, the PCRA court issued notice of its intent to dismiss

the petition without a hearing per Pa.R.Crim.P. 907. Specifically, the

court noted that Appellant was not serving a sentence of imprisonment,

probation, or parole at the time the notice was issued and ineligible for

PCRA relief. Appellant did not respond to the Rule 907 notice and the

court dismissed the PCRA petition on March 29, 2021.

On April 26, 2021, Appellant timely filed a pro se notice of appeal. On

the same day, the PCRA court ordered Appellant to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal. Appellant

complied on May 14, 2021. Appellant’s counsel filed a motion to

withdraw on August 2, 2021, which the court granted on September 1,

2021. On October 12, 2021, Appellant filed a pro se appellate brief with

this Court.

(Doc. 41-6, at 2-3).

The Pennsylvania Superior Court subsequently dismissed Kuperschmidt’s

appeal of his PCRA petition, citing a series of substantial defects in his brief which

failed to comply with the court’s procedural rules and precluded meaningful review.

(Id., at 7-8). Specifically, the Superior Court noted that Kuperschmidt’s brief did not

identify the specific issues he wished to raise on appeal, lacked a statement of

jurisdiction, relevant standard and scope of review, and a comprehensible argument

section. (Id.) The Superior Court also noted in passing in a footnote that “we agree

with the PCRA court that Appellant is not eligible for PCRA relief where he is no

longer serving a sentence.” (Id., at 8 n.4). The Pennsylvania Supreme Court denied

allowance of appeal on June 6, 2022. (Doc. 47, at 3).

Following the termination of Kuperschmidt’s state court proceedings, the

Court lifted the stay and ordered briefing on the instant habeas petition. (Doc. 20).

The Court then ordered supplemental briefing of the merits of Kuperschmidt’s

petition on April 5, 2024. (Doc. 36). The petition is now fully briefed and ripe for

disposition. (Doc. 21, 28, 32, 41, 47). In his petition, Kuperschmidt claims he was

deprived of effective assistance of counsel at trial in violation of the Sixth and

Fourteenth Amendments. The factual allegations in his petition relate to the failure

of trial counsel to object to certain hearsay conversations that were introduced as

evidence at trial, among other failures. The respondents’ primary argument is that

Kuperschmidt’s PCRA petition was procedurally defaulted, barring him from

federal habeas review. They also argue that his constitutional claims do not warrant

habeas relief. For his part, the petitioner argues that he should be excused from the

exhaustion requirement since he is precluded from pursuing State relief, despite still

being eligible for habeas relief post-release from custody. As the petitioner points

out, this gap makes PCRA relief, and thus exhaustion, challenging for those with

short sentences.

But, as the respondents point out, the Superior Court’s decision to dismiss his

PCRA appeal was based not upon the fact that Kuperschmidt was no longer in

custody, but due to multiple substantive deficiencies in his brief which precluded the

court from meaningfully reviewing the issues. The Pennsylvania Superior Court

having been unable to review the issues raised by Kuperschmidt similarly

significantly constrains this Court from conducting the meaningful review required

to evaluate this petition and thus fits the definition of a procedural default. Moreover,

having benefitted from the supplemental briefing of the parties as to the merits of

Kuperschmidt’s claims, we find that the discretionary evidentiary rulings he

challenges do not rise to the level of a constitutional infraction and seem to be in

accord with the law of Pennsylvania. Thus, given the deferential standard of review

that applies to habeas petitions like Kuperschmidt’s, we will deny his petition.

III. Discussion

A. State Prisoner Habeas Relief–The Legal Standard.

(1) Substantive Standards

In order to obtain federal habeas corpus relief, a state prisoner seeking to

invoke the power of this Court to issue a writ of habeas corpus must satisfy the

standards prescribed by 28 U.S.C. § 2254, which provides in part as follows:

(a) The Supreme Court, a Justice thereof, a circuit judge, or a district

court shall entertain an application for a writ of habeas corpus on behalf

of a person in custody pursuant to the judgment of a State court only on

the ground that he is in custody in violation of the Constitution or laws

or treaties of the United States.

(b) (1) 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

unless it appears that—

(A) the applicant has exhausted the remedies available in the courts of

the State;

..........

(2) An application for a writ of habeas corpus may be denied on the

merits, notwithstanding the failure of the applicant to exhaust the

remedies available in the courts of the State.

28 U.S.C. § 2254(a) and (b).

As this statutory text implies, state prisoners must meet exacting substantive

and procedural benchmarks in order to obtain habeas corpus relief. At the outset, a

petition must satisfy rigorous substantive standards to warrant relief. Federal courts

may “entertain an application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court only on the ground that he is in

custody in violation of the Constitution or laws or treaties of the United States.” 28

U.S.C. § 2254(a). By limiting habeas relief to state conduct that violates “the

Constitution or laws or treaties of the United States,” § 2254 places a high threshold

on the courts. Typically, habeas relief will only be granted to state prisoners in those

instances where the conduct of state proceedings led to a “fundamental defect which

inherently results in a complete miscarriage of justice” or was completely

inconsistent with rudimentary demands of fair procedure. See e.g., Reed v. Farley,

512 U.S. 339, 354 (1994). Thus, claimed violations of state law, standing alone, will

not entitle a petitioner to § 2254 relief, absent a showing that those violations are so

great as to be of a constitutional dimension. See Priester v. Vaughan, 382 F.3d 394,

401–02 (3d Cir. 2004).

(2) Deference Owed to State Courts

These same principles which inform the standard of review in habeas petitions

and limit habeas relief to errors of a constitutional dimension also call upon federal

courts to give an appropriate degree of deference to the factual findings and legal

rulings made by the state courts in the course of state criminal proceedings. There

are two critical components to this deference mandated by 28 U.S.C. § 2254.

First, with respect to legal rulings by state courts, under § 2254(d), habeas

relief is not available to a petitioner for any claim that has been adjudicated on its

merits in the state courts unless it can be shown that the decision was either: (1)

“contrary to” or involved an unreasonable application of clearly established case

law; see 28 U.S.C. § 2254(d)(l); or (2) was “based upon an unreasonable

determination of the facts.” See 28 U.S.C. § 2254(d)(2). Applying this deferential

standard of review, federal courts frequently decline invitations by habeas

petitioners to substitute their legal judgments for the considered views of the state

trial and appellate courts. See Rice v. Collins, 546 U.S. 333, 338–39 (2006); see also

Warren v. Kyler, 422 F.3d 132, 139–40 (3d Cir. 2006); Gattis v. Snyder, 278 F.3d

222, 228 (3d Cir. 2002).

In addition, § 2254(e) provides that the determination of a factual issue by a

state court is presumed to be correct unless the petitioner can show by clear and

convincing evidence that this factual finding was erroneous. See 28 U.S.C. §

2254(e)(1). This presumption in favor of the correctness of state court factual

findings has been extended to a host of factual findings made in the course of

criminal proceedings. See, e.g., Maggio v. Fulford, 462 U.S. 111, 117 (1983) (per

curiam); Demosthenes v. Baal, 495 U.S. 731, 734–35 (1990). This principle applies

to state court factual findings made both by the trial court and state appellate courts.

Rolan v. Vaughn, 445 F.3d 671 (3d Cir.2006). Thus, we may not re-assess credibility

determinations made by the state courts, and we must give equal deference to both

the explicit and implicit factual findings made by the state courts. Weeks v. Snyder,

219 F.3d 245, 258 (3d Cir. 2000). Accordingly, in a case such as this, where a state

court judgment rests upon factual findings, it is well-settled that:

A state court decision based on a factual determination, ..., will not be

overturned on factual grounds unless it was objectively unreasonable in

light of the evidence presented in the state proceeding. Miller–El v.

Cockrell, 537 U.S. 322, 123 S. Ct. 1029, 154 L.Ed.2d 931 (2003). We

must presume that the state court’s determination of factual issues was

correct, and the petitioner bears the burden of rebutting this

presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1);

Campbell v. Vaughn, 209 F.3d 280, 285 (3d Cir.2000).

Rico v. Leftridge–Byrd, 340 F.3d 178, 181 (3d Cir. 2003). Applying this standard of

review, federal courts may only grant habeas relief whenever “[o]ur reading of the

PCRA court records convinces us that the Superior Court made an unreasonable

finding of fact.” Rolan, 445 F.3d at 681.

(3) Ineffective Assistance of Counsel Claims

These general principles apply with particular force to habeas petitions that

are grounded in claims of ineffective assistance of counsel. It is undisputed that the

Sixth Amendment to the United States Constitution guarantees the right of every

criminal defendant to effective assistance of counsel. Under federal law, a collateral

attack of a sentence based upon a claim of ineffective assistance of counsel must

meet a two-part test established by the Supreme Court in order to survive.

Specifically, to prevail on a claim of ineffective assistance of counsel, a petitioner

must establish that: (1) the performance of counsel fell below an objective standard

of reasonableness; and (2) that, but for counsel’s errors, the result of the underlying

proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-

88, 691-92 (1984). A petitioner must satisfy both of the Strickland prongs in order

to maintain a claim of ineffective counsel. George v. Sively, 254 F.3d 438, 443 (3d

Cir. 2001).

At the outset, Strickland requires a petitioner to “establish first that counsel’s

performance was deficient.” Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir. 2001). This

threshold showing requires a petitioner to demonstrate that counsel made errors “so

serious” that counsel was not functioning as guaranteed under the Sixth Amendment.

Id. Additionally, the petitioner must demonstrate that counsel’s representation fell

below an objective standard of reasonableness under prevailing professional norms.

Id. However, in making this assessment “[t]here is a ‘strong presumption’ that

counsel’s performance was reasonable.” Id. (quoting Berryman v. Morton, 100 F.3d

1089, 1094 (3d Cir. 1996)).

But a mere showing of deficiencies by counsel is not sufficient to secure

habeas relief. Under the second Strickland prong, a petitioner also “must

demonstrate that he was prejudiced by counsel’s errors.” Id. This prejudice

requirement compels the petitioner to show that “there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Id. A “reasonable probability” is defined as “a probability sufficient

to undermine confidence in the outcome.” Id.

Thus, as set forth in Strickland, a petitioner claiming that his criminal defense

counsel was constitutionally ineffective must show that his lawyer’s “representation

fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. “A

fair assessment of attorney performance requires that every effort be made to

eliminate the distorting effects of hindsight, to reconstruct the circumstances of

counsel’s challenged conduct, and to evaluate the conduct from counsel’s

perspective at the time.” Thomas v. Varner, 428 F.3d 491, 499 (3d Cir. 2005)

(quoting Strickland, 466 U.S. at 689). The petitioner must then prove prejudice

arising from counsel’s failings. “Furthermore, in considering whether a petitioner

suffered prejudice, ‘[t]he effect of counsel’s inadequate performance must be

evaluated in light of the totality of the evidence at trial: a verdict or conclusion only

weakly supported by the record is more likely to have been affected by errors than

one with overwhelming record support.’” Rolan, 445 F.3d at 682 (quoting

Strickland, 466 U.S. at 696) (internal quotations omitted).

Although sometimes couched in different language, the standard for

evaluating claims of ineffectiveness under Pennsylvania law is substantively

consistent with the standard set forth in Strickland. See Commonwealth v. Pierce,

527 A.2d 973, 976–77 (Pa.1987); see also Werts v. Vaugh, 228 F.3d 178, 203 (3d

Cir. 2000) (“[A] state court decision that applied the Pennsylvania [ineffective

assistance of counsel] test did not apply a rule of law that contradicted Strickland

and thus was not ‘contrary to’ established Supreme Court precedent”). Accordingly,

a federal court reviewing a claim of ineffectiveness of counsel brought in a petition

under 28 U.S.C. § 2254 may grant federal habeas relief if the petitioner can show

that the state court’s adjudication of his claim was an “unreasonable application” of

Strickland. Billinger v. Cameron, 2010 WL 2632286, at *4 (W.D. Pa. May 13,

2010). In order to prevail against this standard, a petitioner must show that the state

court’s decision “cannot reasonably be justified under existing Supreme Court

precedent.” Hackett v. Price, 381 F.3d 281, 287 (3d Cir. 2004); see also Waddington

v. Sarausad, 555 U.S. 179, 190 (2009) (where the state court’s application of federal

law is challenged, “the state court’s decision must be shown to be not only erroneous,

but objectively unreasonable”) (internal citations and quotations omitted).

This additional hurdle is added to the petitioner’s substantive burden under

Strickland. As the Supreme Court has observed a “doubly deferential judicial review

that 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”). This doubly

deferential standard of review applies with particular force to strategic judgment like

those thrust upon counsel in the instant case. In this regard, the Court has held that:

“The proper measure of attorney performance remains simply

reasonableness under prevailing professional norms.” Id., at 688, 104

S. Ct. 2052. “Judicial scrutiny of counsel's performance must be highly

deferential,” and “a court must indulge a strong presumption that

counsel's conduct falls within the wide range of reasonable professional

assistance.” Id., at 689, 104 S. Ct. 2052. “[S]trategic choices made after

thorough investigation of law and facts relevant to plausible options are

virtually unchallengeable.” Id., at 690, 104 S. Ct. 2052.

Knowles v. Mirzayance, 556 U.S. 111, 124, 129 S. Ct. 1411, 1420, 173 L. Ed. 2d

251 (2009). The deference which is owed to these strategic choices by trial counsel

is great.

Therefore, in evaluating the first prong of the Strickland test, courts

“must indulge a strong presumption that counsel's conduct falls within

the wide range of reasonable professional assistance; that is, the

defendant must overcome the presumption that, under the

circumstances, the challenged action ‘might be considered sound trial

strategy.’” Id. The presumption can be rebutted by showing “that the

conduct was not, in fact, part of a strategy or by showing that the

strategy employed was unsound.”

Lewis v. Horn, 581 F.3d 92, 113 (3d Cir. 2009) (quoting Thomas v. Varner, 428

F.3d 491, 499-500 (3d Cir. 2005)) (footnote omitted).

(4) Procedural Benchmarks – Exhaustion and Procedural Default

a. Exhaustion of State Remedies

State prisoners seeking relief under section 2254 must also satisfy specific,

procedural standards. Among these procedural prerequisites is a requirement that the

petitioner “has exhausted the remedies available in the courts of the State” before

seeking relief in federal court. 28 U.S.C. § 2254(b). In instances where a state

prisoner has failed to exhaust the legal remedies available to him in the state courts,

federal courts typically will refuse to entertain a petition for habeas corpus. Whitney

v. Horn, 280 F.3d 240, 250 (3d Cir. 2002).

This statutory exhaustion requirement is rooted in principles of comity and

reflects the fundamental idea that the state should be given the initial opportunity to

pass upon and correct alleged violations of the petitioner’s constitutional rights.

O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). The Supreme Court has explained

that “a rigorously enforced total exhaustion rule” is necessary in our dual system of

government to prevent a federal district court from upsetting a state court decision

without first providing the state courts the opportunity to correct a constitutional

violation. Rose v. Lundy, 455 U.S. 509, 518 (1982). Requiring exhaustion of claims

in state court also promotes the important goal of ensuring that a complete factual

record is created to aid a federal court in its review of § 2254 petitions. Walker v.

Vaughn, 53 F.3d 609, 614 (3d Cir. 1995). A petitioner seeking to invoke the writ of

habeas corpus, therefore, bears the burden of showing that all of the claims alleged

have been “fairly presented” to the state courts, and the claims brought in federal

court must be the “substantial equivalent” of those presented to the state courts.

Evans v. Court of Common Pleas, 959 F.2d 1227, 1231 (3d Cir. 1992); Santana v.

Fenton, 685 F.2d 71, 73-74 (3d Cir. 1982). A petitioner cannot avoid this

responsibility merely by suggesting that he is unlikely to succeed in obtaining state

relief, since it is well-settled that a claim of “likely futility on the merits does not

excuse failure to exhaust a claim in state court.” Parker v. Kelchner, 429 F.3d 58,

63 (3d Cir. 2005).

Although this exhaustion requirement compels petitioners to have previously

given the state courts a fair “opportunity to apply controlling legal principles to the

facts bearing upon [the petitioner’s] constitutional claim,” Picard v. Connor, 404

U.S. 270, 276 (1971), this requirement is to be applied in a commonsense fashion.

Thus, the exhaustion requirement is met when a petitioner submits the gist of his

federal complaint to the state courts for consideration, without the necessity that the

petitioner engage in some “talismanic” recitation of specific constitutional clams.

Evans, 959 F.2d at 1230-33. Similarly, a petitioner meets his obligation by fairly

presenting a claim to state courts, even if the state courts decline to address that

claim. Dye v. Hofbauer, 546 U.S. 1 (2005) (per curiam); Johnson v. Pinchak, 392

F.3d 551, 556 (3d Cir. 2004).

b. Procedural Default

A necessary corollary of this exhaustion requirement is the procedural default

doctrine, which applies in habeas corpus cases. Certain habeas claims, while not

exhausted in state court, may also be incapable of exhaustion in the state legal system

by the time a petitioner files a federal habeas petition because state procedural rules

bar further review of the claim. In such instances:

In order for a claim to be exhausted, it must be “fairly presented” to the

state courts “by invoking one complete round of the State’s established

appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 844-

45, 119 S. Ct. 1728, 144 L.Ed.2d 1 (1999). If a claim has not been fairly

presented to the state courts and it is still possible for the claim to be

raised in the state courts, the claim is unexhausted . . . .

If a claim has not been fairly presented to the state courts but state law

clearly forecloses review, exhaustion is excused, but the doctrine of

procedural default may come into play. A procedural default occurs

when a prisoner’s federal claim is barred from consideration in the state

courts by an “independent and adequate” state procedural rule. Federal

courts may not consider the merits of a procedurally defaulted claim

unless the default and actual “prejudice” as a result of the alleged

violation of the federal law or unless the applicant demonstrates that

failure to consider the claim will result in a fundamental “miscarriage

of justice.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S. Ct. 2546,

115 L.Ed.2d 640 (1991).

Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002).

“[A] federal court will ordinarily not entertain a procedurally defaulted

constitutional claim in a petition for habeas corpus ‘[o]ut of respect for finality,

comity, and the orderly administration of justice.’ This is a reflection of the rule that

‘federal courts will not disturb state court judgments based on adequate and

independent state law procedural ground.’” Hubbard v. Pinchak, 378 F.3d 333, 338

(3d Cir. 2004) (citations omitted). Given these concerns of comity, the exceptions

to the procedural default rule, while well-recognized, are narrowly defined. Thus,

for purposes of excusing a procedural default of a state prisoner seeking federal

habeas relief, “[t]he Supreme Court has delineated what constitutes ‘cause’ for the

procedural default: the petitioner must ‘show that some objective factor external to

the defense impeded counsel’s efforts to comply with the State’s procedural rule.’”

Werts v. Vaughn, 228 F.3d 178, 192-93 (3d Cir. 2000) (citations omitted). Similarly,

when examining the second component of this “cause and prejudice” exception to

the procedural default rule, it is clear that:

With regard to the prejudice requirement, the habeas petitioner must

prove “‘not merely that the errors at … trial created the possibility of

prejudice, but that they worked to his actual and substantial

disadvantage, infecting his entire trial with error of constitutional

dimensions.’” This standard essentially requires the petitioner to show

he was denied “fundamental fairness” at trial. In the context of an

ineffective assistance claim, we have stated that prejudice occurs where

“there is a reasonable probability that, but for counsel’s deficient

performance, the result of the proceeding would have been different.”

Id. at 193 (citations omitted).

Likewise, the “miscarriage of justice” exception to this procedural bar rule is

also narrowly tailored and requires a credible assertion of actual innocence to justify

a petitioner’s failure to comply with state procedural rules. Hubbard, 378 F.3d at

338.

Procedural bar claims typically arise in one of two factual contexts. First, in

many instances, the procedural bar doctrine is asserted because an express state court

ruling in prior litigation denying consideration of a habeas petitioner’s state claims

on some state procedural ground. In such a situation, courts have held that:

A habeas claim has been procedurally defaulted when “a state court

declined to address a prisoner’s federal claims because the prisoner had

failed to meet a state procedural requirement.” Coleman v. Thompson,

501 U.S. 722, 730, 111 S. Ct. 2546, 115 L.Ed.2d 640 (1991). For a

federal habeas claim to be barred by procedural default, however, the

state rule must have been announced prior to its application in the

petitioner’s case and must have been “firmly established and regularly

followed.” Ford v. Georgia, 498 U.S. 411, 423-24, 111 S. Ct. 850, 112

L.Ed.2d 935 (1991). Whether the rule was firmly established and

regularly followed is determined as of the date the default occurred, not

the date the state court relied on it, Doctor v. Walters, 96 F.3d 675, 684

(3d Cir. 1996), because a petitioner is entitled to notice of how to

present a claim in state court.

Taylor v. Horn, 504 F.3d 416, 427-28 (3d Cir. 2007) (citing Ford, 498 U.S. at 423-

24).

In other instances, the procedural default arises, not because of an express

state court ruling, but as a consequence of a tactical choice by a habeas petitioner,

who elects to waive or forego a claim in the course of his state proceedings, and thus

fails to fully exhaust the claim within the time limits prescribed by state statute or

procedural rules. In such instances the petitioner’s tactical choices in state court

litigation also yield procedural defaults and waivers of claims federally. See, e.g.,

Johnson v. Pinchak, 392 F.3d 551 (3d Cir. 2004) (procedural default where petitioner

failed to timely pursue state claim); Hull v. Freeman, 991 F.2d 86 (3d Cir. 1993)

(same). Accordingly, a petitioner’s strategic choices in state court waiving or

abandoning state claims may act as a procedural bar to federal consideration of his

claims, unless the petitioner can show either “cause and prejudice” or demonstrate a

“fundamental miscarriage of justice.”

It is against these legal benchmarks that we assess Kuperschmidt’s petition.

B. This Petition Should Be Denied.

1. The Petitioner’s Claims Are Procedurally Defaulted.

The respondents’ threshold argument is that this petition is barred from federal

habeas review because his claims are procedurally defaulted since they were not

fairly presented at the state court level. Indeed, neither the trial court nor the Superior

Court addressed the merits of Kuperschmidt’s claims in their dismissal of his

petition. For his part, the petitioner’s primary focus is that he should be excused from

the exhaustion requirement since he is precluded from pursuing State relief due to

the fact that he is no longer in custody, despite being otherwise eligible for habeas

relief post-release from custody. As we previously noted in ordering supplemental

briefing on this petition, the requirement that a petitioner be in custody to pursue

PCRA relief makes exhaustion challenging for those serving short state sentences.

But the Pennsylvania Supreme Court has provided an avenue for post-conviction

review by requiring trial courts to address claims of ineffective assistance of counsel

even when a defendant is statutorily precluded from subsequent review under the

PCRA. See Commonwealth v. Delgros, 183 A.3d 352 (Pa. 2018). Thus,

Kuperschmidt has focused on differentiating his case from Delgros in attempting to

excuse his procedural default in this case.

As our previous hesitancy to rule on this issue without a more fulsome

understanding of the merits of Kuperschmidt’s claims demonstrates, we are

sympathetic to the idea that the State court’s custody requirement may create

obstacles in pursuing post-conviction relief for petitioners like Kuperschmidt who

serve short sentences. Indeed, while the Third Circuit has explained that “the absence

of state corrective process is generally an excuse to the exhaustion requirement, not

the application of procedural default,” it has also “declined to treat a petitioner’s

failure to comply with Pennsylvania’s custody requirement as a basis for procedural

default.” Leyva v. Williams, 504 F.3d 357, 369 (3d Cir. 2007) (citing Parker v.

Kelchener, 429 F.3d 58, 62 (3d Cir. 2005); Coss v. Lackawanna County District

Attorney, 204 F.3d 453, 460 n.8 (3d Cir. 2000), rev’d on other grounds 532 U.S.

394, 121 S.Ct.1567, 149 L.Ed.2d 608 (2001)). As the court of appeals explained in

Leyva, “[n]oncompliance with Pennsylvania's custody requirement did not result

from any failure on the part [of the petitioner], but simply from the expiration of his

sentence. This factor was outside [the petitioner’s] control and need not form the

basis for a default.” Id. (emphasis in original). Accordingly, we decline to bar

Kuperschmidt from habeas review based solely upon his failure to meet the PCRA’s

custody requirement.

Nonetheless, our review of the full record reveals that Kuperschmidt’s

argument fails to account for, or excuse, another, more significant and

straightforward procedural default: the Superior Court’s inability to review

Kuperschmidt’s claims due to significant defects in his appellant brief. On this score,

as previously explained, “[a] procedural default occurs when a prisoner’s federal

claim is barred from consideration in the state courts by an ‘independent and

adequate’ state procedural rule.” Coleman, 501 U.S. at 750. Here, the Pennsylvania

Superior Court found that Kuperschmidt’s appeal was barred from consideration due

to defects in his brief which precluded meaningful review. Specifically, the court

explained:

Instantly, the defects in Appellant’s brief are substantial. Appellant did

not include a statement of questions presented to identify the specific

issues he wishes to raise on appeal. See Pa.R.A.P. 2116(a). Further,

Appellant’s brief lacks a statement of jurisdiction, statement of the

relevant standard and scope of review, and a comprehensible argument

section. See Pa.R.A.P. 2111(a), 2114, 2119. Appellant’s argument

section consists only of a list of bald assertions of alleged errors

committed by the PCRA court. Appellant fails to provide any

meaningful analysis or citation to relevant authority to demonstrate

error in the PCRA court’s decision that he was ineligible for PCRA

relief because he was not currently serving a sentence of imprisonment,

probation, or parole. See Pa.R.A.P. 2119(a); Hardy, supra. Appellant’s

failure to comply with our procedural rules governing appellate briefs

precludes meaningful review and constitutes sufficient grounds to

dismiss the appeal. See Pa. R.A.P. 2101; In re Ullman, supra (holding

substantial deficiencies in appellant’s brief warrant preclusion of

judicial review). Accordingly, we dismiss the appeal.

(Doc. 41-6, at 7-8). Thus, while the trial court focused on the custody issue in

dismissing his PCRA petition, it was Kuperschmidt’s failure to adequately develop

his claims at the appellate level that ultimately led to the dismissal of his appeal.1

On this score, the Third Circuit has held that claims deemed to be waived by

the state court due to a failure to be meaningfully developed are procedurally

defaulted. As the court of appeals explained:

A state procedural rule is “independent” if it is separate from the federal

issue. Here, it is beyond dispute that the Superior Court's determination

that Petitioner had waived his claims was pursuant to state law, and was

separate from the federal issues before it. See Cabrera v. Barbo, 175

F.3d 307, 313 (3d Cir.1999) (“[T]he basis for the state court's rejection

of the ineffective assistance of counsel claims was state court

procedural default ... Clearly, this disposition was an independent state

ground.”). Moreover, a state procedural rule is adequate if it was

“firmly established and regularly followed” at the time of the alleged

procedural default. Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850,

112 L.Ed.2d 935 (1991). To be considered firmly established and

regularly followed, “(1) the state procedural rule [must] speak[ ] in

unmistakable terms; (2) all state appellate courts [must have] refused to

review the petitioner's claims on the merits; and (3) the state courts'

refusal in this instance [must be] consistent with other decisions.” Nara

v. Frank, 488 F.3d 187, 199 (3d Cir.2007). This test is met here.

The requirement that Petitioner must meaningfully develop his

arguments on appeal and cite to appropriate authorities has been stated

in unmistakable terms by the Pennsylvania Supreme Court, see

Commonwealth v. Clayton, 572 Pa. 395, 816 A.2d 217, 221 (2002)

(“[I]t is a well settled principle of appellate jurisprudence that

undeveloped claims are waived and unreviewable on appeal”), and is

1 In a footnote, the Superior Court also agreed with the PCRA court that

Kuperschmidt was not eligible for PCRA relief where he was no longer serving a

sentence, but this was decidedly not the primary reason for the dismissal.

embodied in the state's rules of appellate procedure, see Pa. R.A.P.

2119(a). Moreover, the Superior Court refused to consider Petitioner's

claims on the merits and its refusal is consistent with other decisions.

See Bracey, 795 A.2d at 940 n. 4, Clayton, 816 A.2d at 221. We

conclude that the Superior Court's decision was based upon an

independent and adequate state law ground. See Nara, 488 F.3d at 199.

Moreover, “ ‘federal habeas corpus relief does not lie for errors of state

law.’ ” Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 116 L.Ed.2d

385 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct.

3092, 111 L.Ed.2d 606 (1990)). This remains true even if the state

procedural ruling is incorrect. Estelle, 502 U.S. at 71–72, 112 S.Ct. 475;

see also Kontakis v. Beyer, 19 F.3d 110, 117 n. 12 (3d Cir.1994)

(reminding that “a state court's misapplication of its own law does not

generally raise a constitutional claim.”) (citation omitted). Thus, even

if the Superior Court incorrectly deemed waived certain of Petitioner's

ineffective assistance claims—a point Petitioner does not argue here—

habeas relief would not be warranted, as it is “well established that a

state court's misapplication of its own law does not generally raise a

constitutional claim. The federal courts have no supervisory authority

over state judicial proceedings and may intervene only to correct

wrongs of constitutional dimension.” Taylor v. Horn, 504 F.3d 416, 448

(3d Cir.2007); see also id. (quoting Estelle v. McGuire, 502 U.S. 62,

67–68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)) (“Even assuming the

state court failed to follow the law of Pennsylvania, in this federal

habeas case, we are limited to deciding whether [the petitioner's]

conviction and sentence ‘violated the Constitution, laws, or treaties of

the United States.’ ”).

Leake v. Dillman, 594 F. App'x 756, 758–59 (3d Cir. 2014). In this parallel factual

scenario, where the Pennsylvania Superior Court found Kuperschmidt failed to

develop his claims for meaningful review, this Third Circuit precedent clearly bars

Kuperschmidt from seeking habeas relief on these procedurally defaulted claims.

Furthermore, any argument by the petitioner that this procedural default

should be excused fails. As the Supreme Court has explained, “[w]here a defendant

has procedurally defaulted a claim . . . the claim may be raised in habeas only if the

defendant can first demonstrate either ‘cause’ and actual ‘prejudice,’ or that he is

‘actually innocent.’” Bousley v. United States, 523 U.S. 614, 622, 118 S. Ct. 1604,

1611, 140 L. Ed. 2d 828 (1998) (citing Murray v. Carrier, 477 U.S. 478, 485 (1986);

Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Smith v. Murray, 477 U.S. 527, 537

(1986)) (internal citations omitted). To excuse the clear procedural defaults cited by

the Superior Court which bar habeas review, the petitioner simply states in a footnote

that “even if petitioner submitted a brief which completely comported with the

Pennsylvania Rules of Appellate Procedure, the Superior Court would have

dismissed the PCRA petition on the ground that petitioner was not in custody.” (Doc.

47, at 3 n.1). To the extent that the petitioner is arguing in this unsupported footnote

that he was not required to develop his arguments in a manner which could be

reviewed by the Superior Court because of the trial court’s holding that he was not

in custody and thus barred from PCRA relief, this argument is both legally and

logically flawed. At the outset, it is well settled that the futility of a claim simply

cannot constitute cause to excuse a procedural default. Bousley v. U.S., 523 U.S.

614, 623 (1998) (“[F]utility cannot constitute cause if it means simply that a claim

was unacceptable to that particular court at that particular time.”); see also United

States v. De Castro, 49 F.4th 836, 845 (3d Cir. 2022). Moreover, this precedent is

supported by the previously discussed policy limiting the availability of habeas relief

for procedurally defaulted claims “[o]ut of respect for finality, comity, and the

orderly administration of justice” and the well-settled “rule that federal courts will

not disturb state court judgments based on adequate and independent state law

procedural ground.” Hubbard, 378 F.3d at 338. Therefore, we find that the

petitioner’s failure to comply with the procedural rules which governed his PCRA

appeal bar him from federal habeas relief.2

2 We acknowledge the Supreme Court’s holding in Martinez that “a procedural

default will not bar a federal habeas court from hearing a substantial claim of

ineffective assistance at trial if, in the initial-review collateral proceeding, there was

no counsel or counsel in that proceeding was ineffective.” Martinez v. Ryan, 566

U.S. 1, 17 (2012). Indeed, it appears Kuperschmidt filed his appellate brief to support

his PCRA petition pro se. However, to invoke this narrow exception to excuse a

procedural default, “a petitioner must satisfy two factors: that the underlying,

otherwise defaulted, claim of ineffective assistance of trial counsel is ‘substantial,’

meaning that it has ‘some merit,’ and that petitioner had ‘no counsel’ or ‘ineffective’

counsel during the initial phase of the state collateral review proceeding.” Melecio

v. Zaken, No. CV 3:20-2068, 2023 WL 4138258, at *5 (M.D. Pa. June 22, 2023)

(citing Martinez, 566 U.S. at 14, 17; Glenn v. Wynder, 743 F.3d 402, 410 (3d Cir.

2014)) (internal citations omitted). Here, Kuperschmidt has not invoked the

Martinez exception or attempted to satisfy these two factors. Moreover, as discussed

below, his underlying ineffective assistance of trial counsel claims are meritless and

it appears he submitted a counseled PCRA petition, but that counsel withdrew during

the PCRA appeal. Therefore, no exception to the procedural default applies here.

2. The Petitioner’s Ineffective Assistance of Counsel Claims Are Meritless.

Not only do we find Kuperschmidt’s claims procedurally defaulted, but his

claims also fail as a matter of substance. Kuperschmidt’s petition centers around

alleged failures of trial counsel which he contends violated his right to counsel under

the Sixth and Fourteenth Amendments. Specifically, the petitioner alleges trial

counsel was ineffective for failing to object to the admission of certain testimonial

evidence, including excessive background information about the investigation by

Trooper Orlando and testimony of DePaolis regarding his conversations with co-

defendant Cowher. He also alleges that trial counsel was ineffective for informing

the jury that Kuperschmidt would testify in his opening statement.

As previously discussed, we employ a doubly deferential standard in

examining habeas petitions raising ineffective assistance of counsel, showing

deference to the decisions of state courts unless they are either “contrary to” or

involved an unreasonable application of clearly established case law; see 28 U.S.C.

§ 2254(d)(l); or “based upon an unreasonable determination of the facts.” See 28

U.S.C. § 2254(d)(2), and in assessing whether counsel’s performance was

constitutionally deficient, “[t]here is a ‘strong presumption’ that counsel’s

performance was reasonable.” Id. (quoting Berryman v. Morton, 100 F.3d 1089,

1094 (3d Cir. 1996)). Although the trial court and the Superior Court were unable to

reach the merits of Kuperschmidt’s post-conviction claims due to his procedural

defaults, on direct appeal, the Superior Court did address Kuperschmidt’s objections

to the testimony of co-defendant Cowher and his conversations with DePaolis and

found that his testimony was admissible. On direct appeal, Kuperschmidt argued that

the consolidation of his trial with Cowher deprived him of the opportunity to defend

himself against Cowher’s hearsay statements to DePaolis that relayed what he had

allegedly told Cowher. The Superior Court agreed with the trial court that the joinder

of the trials was appropriate, since Cowher and Kuperschmidt were charged as co-

conspirators and Kuperschmidt had not suffered any prejudice which required a

separate trial. (Doc. 41-2, at 16). The Superior Court also referenced the trial court’s

determination that Cowher’s testimony fell under an exception to the hearsay rule,

specifically Pa.R.E. 803(25)(E), which permits the admission of statements made by

a co-conspirator during and in furtherance of the conspiracy. As the court explained:

[O]ur Supreme Court noted that “the out-of-court declarations of one

co-conspirator can be admitted against another co-conspirator provided

that the declarations were made during the conspiracy and in

furtherance of the common design.” Coccioletti, 493 Pa. at 113; 425

A.2d at 392 referring to Commonwealth v. Evans, 489 Pa. 85, 413 A.2d

1025 (1980).

The Gribble Court subsequently recognized that Pa.R.E. 803(25)(E)

serves as a recognized exception to the hearsay rule. Rule 803(25)(E)

allows a hearsay statement to be admitted where it is made by a

defendant’s co-conspirator “during and in furtherance of the

conspiracy.” The Gribble Court further noted that “the U.S. Supreme

Court and this Court had recognized that statements admitted under the

co-conspirator exception to the hearsay rule do not violate the Sixth

Amendment.” Gribble, 580 Pa. at 664, 863 A.2d at 465; see also United

States v. Bourjaily, 483 U.S. 171, 183-84, 107 S. Ct. 2775, 2783, 97 L.

Ed. 144 (1987). Accordingly, the Sixth Amendment protections

originally explained in Bruton were not applicable in Gribble as a result

of the available co-conspirator hearsay exception provided in Pa.R.E.

803(25).

We similarly conclude herein that the out-of-court statements of the co-

defendant Cowher are admissible in a joint trial of the two (2)

defendants pursuant to Pa. R.E. 803(25)(E). The out-of-court

statements in question were made prior to completion of the alleged

conspiratorial act, i.e., election fraud. The statements were also made

in furtherance of the alleged common design of the conspiracy, i.e., to

commit election fraud in the Wild Acres community general election in

May 2014. In accordance with our Supreme Court’s interpretation of

Bruton and its progeny as set forth above and the applicability of

Pa.R.E. 803(25)(E) herein, as well as in exercising this [c]ourt’s

discretion to effectuate judicial economy, a joint trial of [Appellant] and

his co-defendant is proper.

(Id., at 15) (quoting Trial Court Opinion and Order, 3/7/16, at unnumbered 4-6). We

cannot say that the state court’s application of its own rules of evidence was

“contrary to” or involved an unreasonable application of clearly established case

law; see 28 U.S.C. § 2254(d)(l); or “based upon an unreasonable determination of

the facts.” See 28 U.S.C. § 2254(d)(2). Nor can it be said that trial counsel’s

performance in not objecting to these statements was unreasonable, given that these

statements were admissible exceptions to the hearsay rule.

Moreover, even applying an independent assessment of Strickland to those

claims which do not benefit from the state court’s rulings, Kuperschmidt’s claims

fail. As previously noted, to prevail on a claim of ineffective assistance of counsel,

a petitioner must establish that: (1) the performance of counsel fell below an

objective standard of reasonableness; and (2) that, but for counsel’s errors, the result

of the underlying proceeding would have been different. Strickland v. Washington,

466 U.S. 668, 687-88, 691-92 (1984). At the outset, Strickland requires a petitioner

to “establish first that counsel’s performance was deficient.” Jermyn v. Horn, 266

F.3d 257, 282 (3d Cir. 2001). This threshold showing requires a petitioner to

demonstrate that counsel made errors “so serious” that counsel was not functioning

as guaranteed under the Sixth Amendment. Id. Additionally, the petitioner must

demonstrate that counsel’s representation fell below an objective standard of

reasonableness under prevailing professional norms. Id. However, in making this

assessment “[t]here is a ‘strong presumption’ that counsel’s performance was

reasonable.” Id. (quoting Berryman v. Morton, 100 F.3d 1089, 1094 (3d Cir. 1996)).

On this score, we presume trial counsel’s actions were part of a sound trial strategy,

unless the petitioner can disprove this fact or show that such strategy was unsound.

At the outset, any argument by petitioner that his trial counsel was ineffective

for failing to object to the admission of alleged hearsay evidence is without merit.

Indeed, our review of the record and applicable law confirms that the challenged

testimony was admissible under Pennsylvania law. And, according to the Third

Circuit, “if there is no merit to [a defendant’s] claims that the prosecution's

statements and [testimony] should not have been permitted at trial, his counsel

cannot be deemed ineffective for not having objected to their presentation, as it was

not unreasonable for him to acquiesce in the presentation of proper statements and

testimony.” Hartey v. Vaughn, 186 F.3d 367, 372 (3d Cir. 1999).

As previously explained, the state court held that the statements made by

Cowher regarding his conversations with DePaolis were exceptions to the hearsay

rule as co-conspirator statements and were therefore admissible.3 As to the testimony

of Trooper Orlando regarding his conversations with DePaolis and how he came to

focus his investigation on Kuperschmidt, these statements were admissible under

Pennsylvania law as statements offered to explain the course of police conduct,

which are not offered for the truth of the matter asserted. As has been well-settled

by the Pennsylvania Supreme Court:

Hearsay is an out-of-court statement offered to prove the truth of the

matter asserted in the statement. Commonwealth v. Puksar, 559 Pa.

358, 740 A.2d 219, 225 (1999). The rule against admitting hearsay

evidence stems from its presumed unreliability, because the declarant

cannot be challenged regarding the accuracy of the statement.

Commonwealth v. Rush, 529 Pa. 498, 605 A.2d 792, 795 (1992). But

it is well established that certain out-of-court statements offered to

3 In his supplemental brief, the petitioner also challenges the testimony of DePaolis

in which he testified that his understanding was that when Kuperschmidt stated in

the recording “The other thing, talk to Nona what I told you.” He understood it to

mean something other than what was going on with the election. He argues DePaolis

testified what he believed petitioner’s state of mind was without establishing a

foundation. However, in our view, these statements show only DePaolis’s

interpretation of the non-hearsay statements by Kuperschmidt. Moreover, it is

unclear how these statements could have prejudiced Kuperschmidt since DePaolis

confirms he was not referencing anything to do with the election.

explain the course of police conduct are admissible because they are

offered not for the truth of the matters asserted but rather to show the

information upon which police acted. Commonwealth v. Jones, 540 Pa.

442, 658 A.2d 746, 751 (1995); Commonwealth v. Yates, 531 Pa. 373,

613 A.2d 542, 543 (1992); Commonwealth v. Palsa, 521 Pa. 113, 555

A.2d 808, 810 (1989); Commonwealth v. Cruz, 489 Pa. 559, 414 A.2d

1032, 1035 (1980). The trial court, in exercising discretion over the

admission of such statements, must balance the prosecution's need for

the statements against any prejudice arising therefrom. See Jones, 658

A.2d at 751; Yates, 613 A.2d at 543–44; Palsa, 555 A.2d at 811.

Com. v. Chmiel, 585 Pa. 547, 600–01, 889 A.2d 501, 532–33 (2005). After

reviewing the testimony challenged by the petitioner with regard to Trooper

Orlando’s investigation, we do not find trial counsel was ineffective for failing to

object to these statements. At the outset, as the petitioner admits, this testimony is

simply background information to explain to the jury how Kuperschmidt came to be

a target of the investigation; an investigation which ultimately resulted in taped

recordings between Kuperschmidt and DePaolis that were played at trial. Moreover,

the declarants of the statements about what led to the investigation into

Kuperschmidt, District Attorney Tonkin and DePaolis, both testified at trial and

were available to be cross-examined about the statements they made to Trooper

Orlando.

Nor are we persuaded by the petitioner’s argument that trial counsel was

ineffective for stating in the opening statement that petitioner would testify. The

petitioner does not challenge his decision not to testify. Indeed, that decision was

made willingly by the defendant as confirmed by the colloquy conducted by the

court during the proceedings. (Doc. 41-1, at 571-73). Moreover, the record

demonstrates that the decision by Kuperschmidt not to testify was a sound strategy

of trial counsel based on the “the way [the] trial went and some of the cross-

examination he would have to be subjected to with respect to his tape.” (Doc. 41-1,

at 569). It also appears that trial counsel went through every effort to remedy the

effects of his statements regarding Kuperschmidt testifying, including presenting

character witnesses to make up for the gaps in what his testimony would have shown,

(Id., at 575-85), and by requesting a motion in limine4 to preclude the

Commonwealth from commenting on his opening statement about Kuperschmidt

testifying. (Id., at 595).

Nonetheless, it is without question that a promise by trial counsel in an

opening statement to produce evidence that is not produced at trial may be

problematic and, in some instances, can constitute ineffective assistance of counsel.

As the Third Circuit has stated:

The rationale for holding such a failure to produce promised evidence

ineffective is that when counsel primes the jury to hear a different

version of the events from what he ultimately presents, one may infer

that reasonable jurors would think the witnesses to which counsel

4 The court denied the motion but instructed counsel to “address it factually in the

sense of that what is said in an opening statement is not evidence,” without crossing

the line to an inference of guilt. (Doc. 41-1, at 598-99).

referred in his opening statement were unwilling or unable to deliver

the testimony he promised.

McAleese v. Mazurkiewicz, 1 F.3d 159, 166–67 (3d Cir. 1993) (citing Anderson v.

Butler, 858 F.2d 16, 18 (1st Cir. 1988), aff’d sub nom. Com. V. Anderson, 408 Mass.

803, 563 N.E.2d 1353 (1990)). Indeed, other circuits have found that, in certain

circumstances, counsel may be ineffective for stating in an opening statement that

the defendant would testify when the defendant did not ultimately do so. See Ouber

v. Guarino, 293 F.3d 19, 27 (2002). But these cases often hinged on the jury hearing

a different version of events than that which was promised. See Harris v. Reed, 894

F.2d 871, 873-74 (7th Cir. 1990) (failure of defense counsel to put on any witnesses

in support of a viable theory of defense “left the jury free to believe [the informant’s]

account of the incident as the only account,” and, “primed the jury to hear a different

version of the incident. When counsel failed to produce the witness to support his

version, the jury likely concluded that counsel could not live up to the claims made

in the opening.”); Anderson v. Butler, 858 F.2d 16, 17-19 (1st Cir.1988) (Sixth

Amendment violation where counsel failed to present promised expert medical

testimony that defendant had acted without cognizance of, or feeling for, actions).

But this view is confined “where the promise is more general in nature, and/or

where the testimony to be provided would not be significant or was elicited through

other means, courts may defer to counsel's reasonable decision to change course.”

United States v. Crawford, 680 F. Supp. 2d 1177, 1197 (E.D. Cal. 2009) (citing U.S.

ex rel. Schlager v. Washington, 887 F. Supp. 1019, 1026 (N.D. Ill. 1995), aff'd sub

nom. Schlager v. Washington, 113 F.3d 763 (7th Cir. 1997)). Indeed, the Third

Circuit has explained that “backing off of a promise to give certain evidence is

unlikely to support an ineffective assistance claim when there are changed

circumstances, because ‘unexpected developments sometimes may warrant changes

in previously announced trial strategies.’” Elias v. Superintendent Fayette SCI, 774

F. App'x 745, 751 (3d Cir. 2019) (quoting Ouber, 293 F.3d at 29). Indeed, in Elias,

the Third Circuit held that the decision that the defendant should not testify despite

the promise in the opening statement that he would was a sound trial strategy based

upon the unexpected testimony of two other witnesses supporting his claim. Id.

Here, a review of the opening statement by trial counsel reveals that he made

minimal, general statements about what Kuperschmidt’s testimony would reveal. He

first promised that Kuperschmidt would testify about his background and personal

life and why he decided to move from Brooklyn to Wild Acres. He also stated that

he will testify to what his job on the Board of Directors entailed. But the balance of

the opening statement, specifically with regard to the evidence showing that

Kuperschmidt was unaware of the fraudulent voting scheme stated only generally

“you will hear evidence” or “you will hear testimony” but did not directly reference

any anticipated testimony by Kuperschmidt. The evidence demonstrates that trial

counsel promised to have him testify only to humanize him to the jury and was not

the lynchpin of his merits argument. Instead, the trial transcript demonstrates that

trial counsel substituted character witnesses to discuss the background information

he had previously stated Kuperschmidt would testify to. (Doc. 41-1, at 600). Thus,

although the jury could have anticipated some testimony from Kuperschmidt, the

absence of his testimony alone did not undermine any previously promised defense.

More importantly, it is well documented that trial counsel made a strategic choice,

based upon unexpected developments in the trial testimony and the danger of him

being cross-examined on the recordings to advise the petitioner not to testify and the

petitioner made the independent choice not to testify. Further, it appears that at the

time of trial the petitioner agreed with this tactical choice. This tactical choice is not

entirely unreasonable given the risks presented by the potential cross-examination

of Kuperschmidt on his recorded statements played at trial.

Finally, the petitioner has failed to show that he was prejudiced by any alleged

errors made by trial counsel or that they resulted in a different outcome at trial.

Indeed, in weighing the sufficiency of evidence of his conviction on direct appeal,

the Superior Court illuminated the evidence supporting the petitioner’s attempt

convictions:

Relying on accomplice liability, the trial court disposed of Appellant's

sufficiency challenge to the attempt convictions with the following

analysis:

Here, [Appellant] was convicted on numerous Counts of

Criminal Attempt to Commit Forgery (F-3) under 18

Pa.C.S. § 4101(2), numerous Counts of Criminal Attempt

to Commit Identify Theft (F-3) under 18 Pa. C. S. §

4120(a), and numerous Counts of Criminal Attempt to

Commit Tampering with Records or Identification (M-1)

under 18 Pa.C.S. § 4104(a), [Appellant's] convictions

rested on his liability as an accomplice to his co-

Defendant, Cowher.

At trial, the Commonwealth presented the PSP recording

in which [Appellant] was informed by DePaolis over the

phone that Cowher was coming into the office "to take

care [of] the ballots" and that DePaolis was "a little

nervous about it." See Commonwealth Exhibit 1.

[Appellant] responded by saying, "Don't be nervous about

it." I didn't know nothing about it. Me and Myron already

agreed." Id. [Appellant] went on to tell DePaolis to "relax"

and assured him they were "still gonna win no matter

what." Id. In addition, [Appellant] suggested that DePaolis

turn off the cameras on the office while Cowher was filing

out the ballots. Id.

The PSP recording clearly shows that [Appellant] was

fully aware and supportive of Cowher's intention to fill out

all of the S.O.S. ballots and commit fraud. Specifically,

[Appellant's] suggestion that DePaolis should turn off the

cameras shows his intent to promote and aid or agree in

Cowher's attempt to fraudulently file [sic] out the S.O.S.

ballots. Given this evidence, a reasonable fact-finder could

conclude that the verdicts on all the attempt charges were

correct and that there was sufficient evidence to support

the jury's conclusions of fact.

Trial Court Opinion, 1/3/17, at unnumbered 17-18. Notably, Appellant

makes no mention of, let alone argument against, his liability as

Cowher's accomplice. Appellant's Brief at 20-26. Additionally, viewing

all of the evidence in the light most favorable to the Commonwealth,

we discern no basis on which to disturb the trial court's findings, which

are supported by the record, or its legal conclusion, which is supported

by statutory and case law.

(Doc. 41-2, at 23). We agree with the state court that the most compelling evidence

against Kuperschmidt at trial were his own statements captured on these recordings

seemingly confirming his participation in the election fraud scheme. Thus, we are

not persuaded that the testimonial background evidence to which Kuperschmidt

objects nor any inference which may have been drawn from trial counsel’s

statements regarding him testifying at trial, would have changed the outcome in his

favor. Thus, this ineffectiveness claim fails on both prongs of the Strickland test

since Kuperschmidt has shown neither constitutionally deficient conduct by counsel,

nor demonstrable prejudice to the petitioner.

Nor should a certificate of appealability issue in this case. Under 28 U.S.C. §

2253(c)(2), a court may not issue a certificate of appealability unless “the applicant

has made a substantial showing of the denial of a constitutional right.” In other

words, a certificate of appealability should not issue unless “reasonable jurists would

find the district court's assessment of the constitutional claims debatable or wrong.”

Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). In

the instant case Kuperschmidt has made no such showing, nor can he. Rather,

Kuperschmidt’s claims are both meritless and procedurally defaulted. Therefore, we

will decline to issue a certificate of appealability.

IV. Conclusion

Accordingly, for the foregoing reasons, we conclude that the Petition for Writ

of Habeas Corpus should be DENIED and that a certificate of appealability should

not issue. An appropriate order follows.

Submitted this 14th day of January 2025.

/s/ Martin C. Carlson

Martin C. Carlson

United States Magistrate Judge