Com. v. Shauf, J.

J-S09042-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

JASON C. SHAUF :

:

Appellant : No. 1160 MDA 2017

Appeal from the PCRA Order June 23, 2017

In the Court of Common Pleas of Franklin County

Criminal Division at No(s): CP-28-CR-0000007-2013

BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.

MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 16, 2018

Appellant, Jason C. Shauf, appeals from the order entered in the

Franklin County Court of Common Pleas, denying his first petition filed

pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

In its opinions, the PCRA court accurately set forth the relevant facts

and procedural history of this case. Therefore, we have no reason to restate

them.

Appellant raises the following issues for our review:

(1) WHETHER THE PCRA COURT ERRED BY DENYING

APPELLANT’S PCRA CLAIM OF INEFFECTIVE ASSISTANCE

OF PRE-TRIAL COUNSEL WHERE PRE-TRIAL COUNSEL

FAILED TO FILE A MOTION TO SUPPRESS APPELLANT’S

STATEMENT TO THE POLICE ON THE BASIS THAT

____________________________________________

1 42 Pa.C.S.A. §§ 9541-9546.

____________________________________

* Retired Senior Judge assigned to the Superior Court.

J-S09042-18

APPELLANT DID NOT MAKE A KNOWING AND INTELLIGENT

WAIVER OF HIS MIRANDA[2] RIGHTS?

(2) WHETHER THE PCRA COURT ERRED BY DENYING

APPELLANT’S PCRA CLAIM OF INEFFECTIVE ASSISTANCE

OF PRE-TRIAL COUNSEL WHERE PRE-TRIAL COUNSEL

FAILED TO FILE A MOTION TO SUPPRESS APPELLANT’S

STATEMENT TO THE POLICE ON THE BASIS THAT

APPELLANT HAD BEEN ARRESTED WITHOUT PROBABLE

CAUSE AT THE TIME THE STATEMENT WAS MADE?

(3) WHETHER THE PCRA COURT ERRED BY DENYING

APPELLANT’S PCRA CLAIM OF INEFFECTIVE ASSISTANCE

OF PRE-TRIAL COUNSEL WHERE PRE-TRIAL COUNSEL

FAILED TO FILE A MOTION TO SUPPRESS THE SEARCH

WARRANT FOR APPELLANT’S HOME AND VEHICLE ON THE

BASIS THAT (1) THERE WAS NO NEXUS BETWEEN THE

HOMICIDE THE POLICE WERE INVESTIGATING AND THE

PLACES TO BE SEARCHED AND (2) IT FAILED TO

DISCLOSE FACTS BEARING ON THE UNRELIABILITY OF

THE IDENTIFICATION OF APPELLANT?

(4) WHETHER THE PCRA COURT ERRED BY DENYING

APPELLANT’S PCRA CLAIM OF INEFFECTIVE ASSISTANCE

OF PRE-TRIAL COUNSEL WHERE PRE-TRIAL COUNSEL

FAILED TO FILE A MOTION TO SUPPRESS A WITNESS

IDENTIFICATION THAT WAS BASED ON AN OVERLY

SUGGESTIVE PHOTO ARRAY?

(5) WHETHER THE PCRA COURT ERRED BY DENYING

APPELLANT’S PCRA CLAIM OF A VIOLATION OF HIS RIGHT

TO TRIAL BY AN IMPARTIAL JURY UNDER BOTH THE

UNITED STATES AND PENNSYLVANIA CONSTITUTIONS

WHERE JUROR #2 WAS PRESUMED BIASED AND

THEREFORE THE JURY WAS NOT IMPARTIAL?

(6) WHETHER THE PCRA COURT ERRED BY DENYING

APPELLANT’S PCRA CLAIM OF INEFFECTIVE ASSISTANCE

OF TRIAL COUNSEL WHERE TRIAL COUNSEL FAILED TO

REQUEST THAT A BIASED JUROR BE STRICKEN FROM THE

____________________________________________

2 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

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J-S09042-18

JURY FOR CAUSE?

(7) WHETHER THE PCRA COURT ERRED BY DENYING

APPELLANT’S PCRA CLAIM OF INEFFECTIVE ASSISTANCE

OF TRIAL COUNSEL WHERE TRIAL COUNSEL FAILED TO

OBJECT TO IMPROPER CHARACTER TESTIMONY

DESCRIBING APPELLANT AS VIOLENT?

(8) WHETHER THE PCRA COURT ERRED BY DENYING

APPELLANT’S PCRA CLAIM OF INEFFECTIVE ASSISTANCE

OF TRIAL COUNSEL WHERE TRIAL COUNSEL

INTENTIONALLY ELICITED TESTIMONY SUGGESTING THAT

APPELLANT HAD A PROPENSITY FOR VIOLENCE,

INCLUDING TESTIMONY THAT APPELLANT HAD A

PROTECTION FROM ABUSE ORDER ENTERED AGAINST HIM

WHERE NO SUCH ORDER EXISTED?

(9) WHETHER THE PCRA COURT ERRED BY DENYING

APPELLANT’S PCRA CLAIM OF INEFFECTIVE ASSISTANCE

OF TRIAL COUNSEL WHERE TRIAL COUNSEL FAILED TO

OBJECT TO IRRELEVANT AND INADMISSIBLE TESTIMONY

ABOUT APPELLANT’S PAST DRUG USE?

(10) WHETHER THE PCRA COURT ERRED BY DENYING

APPELLANT’S PCRA CLAIM OF INEFFECTIVE ASSISTANCE

OF TRIAL COUNSEL WHERE TRIAL COUNSEL FAILED TO

OBJECT TO THE ADMISSION OF PHOTOGRAPHS OF THE

HOMICIDE VICTIM WHILE HE WAS STILL LIVING AND THE

USE OF THOSE PHOTOGRAPHS IN THE COMMONWEALTH’S

CLOSING ARGUMENT WHERE THE PHOTOGRAPHS WERE

NOT RELEVANT AND INTRODUCED FOR THE PURPOSE OF

ENGENDERING SYMPATHY FOR THE VICTIM?

(11) WHETHER THE PCRA COURT ERRED BY DENYING

APPELLANT’S PCRA CLAIM OF INEFFECTIVE ASSISTANCE

OF TRIAL COUNSEL WHERE TRIAL COUNSEL FAILED TO

OBJECT TO VICTIM-IMPACT TESTIMONY DURING THE

GUILT PHASE OF APPELLANT’S TRIAL?

(12) WHETHER THE PCRA COURT ERRED BY DENYING

APPELLANT’S PCRA CLAIM OF INEFFECTIVE ASSISTANCE

OF TRIAL COUNSEL WHERE TRIAL COUNSEL FAILED TO

OBJECT TO TESTIMONY FROM MULTIPLE POLICE

DETECTIVES OFFERING A PERSONAL OPINION AS TO THE

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J-S09042-18

TRUTHFULNESS AND VERACITY OF APPELLANT’S

STATEMENT TO POLICE?

(13) WHETHER THE PCRA COURT ERRED BY DENYING

APPELLANT’S PCRA CLAIM OF INEFFECTIVE ASSISTANCE

OF TRIAL COUNSEL WHERE TRIAL COUNSEL FAILED TO

OBJECT TO NUMEROUS HEARSAY STATEMENTS

THROUGHOUT THE TRIAL, INCLUDING AN OUT-OF-COURT

IDENTIFICATION OF APPELLANT BY AN INDIVIDUAL WHO

DID NOT IDENTIFY APPELLANT AT TRIAL?

(14) WHETHER THE PCRA COURT ERRED BY DENYING

APPELLANT’S PCRA CLAIM OF INEFFECTIVE ASSISTANCE

OF TRIAL COUNSEL WHERE TRIAL COUNSEL FAILED TO

OBJECT TO MULTIPLE STATEMENTS IN THE DISTRICT

ATTORNEY’S CLOSING ARGUMENT DESIGNED TO APPEAL

TO THE EMOTIONS OF THE JURY RATHER THAN

SUGGESTING A DISPASSIONATE REVIEW OF THE FACTS

OF THE CASE?

(15) WHETHER THE PCRA COURT ERRED BY DENYING

APPELLANT’S PCRA CLAIM OF INEFFECTIVE ASSISTANCE

OF COUNSEL WHERE THE PERFORMANCE OF PRE-TRIAL

COUNSEL AND TRIAL COUNSEL, WHEN VIEWED IN TOTO,

INCLUDING THE NUMBER OF ERRORS OR FAILURES TO

ACT, PREJUDICED APPELLANT?

(Appellant’s Brief at 4-6).3

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinions of the Honorable Carol L. Van

Horn, we conclude Appellant’s issues merit no relief. The PCRA court

opinions comprehensively discuss and properly dispose of the questions

presented. (See Opinion in Support of Order Denying PCRA Relief, filed

June 23, 2017, at 9-70) (finding: (1) (pp. 12-16) pre-trial counsel testified

____________________________________________

3 For purposes of disposition, we have re-ordered some of Appellant’s issues.

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J-S09042-18

Appellant’s statement to police was more helpful than harmful; if Appellant

decided not to testify at trial, counsel wanted to be able to produce

statement so jury could hear Appellant’s version of events; other evidence

besides Appellant’s statement placed Appellant at crime scene; Appellant’s

statement also showed his cooperation with police; counsel had reasonable

basis for his actions; (2) (pp. 16-20) one victim/witness identified Appellant

as perpetrator and someone that victim/witness had seen before; other

victims/witnesses gave physical descriptions of one of perpetrators, which

matched Appellant’s characteristics; police had probable cause to arrest

Appellant, so his claim lacks arguable merit; (3) (pp. 20-25) search warrant

indicated that one of victims/witnesses identified Appellant as perpetrator;

search warrant also stated Appellant’s neighbor reported seeing Appellant

and his cohort at Appellant’s residence on day after murder; information

contained in search warrant created sufficient nexus between homicide and

places to be searched; Appellant’s claim lacks arguable merit; (4) (pp. 25-

28) police showed victim/witness, who ultimately identified Appellant, two

sets of photo arrays; victim/witness did not identify Appellant in first photo

array even though Appellant was in that picture; later on same day, police

showed witness second photo array containing more recent picture of

Appellant, and victim/witness was able to identify Appellant as one of

perpetrators; pre-trial counsel testified he could not even identify Appellant

from first photo array because photo in that spread did not have clear

-5-

J-S09042-18

likeness to Appellant; in any event, counsel said he did not plan to contest

Appellant’s presence at scene, as part of trial strategy; photo array was not

unduly suggestive, and Appellant’s claim lacks arguable merit; (5-6) (pp.

28-31; 68-70) prior to opening arguments, juror #2 informed court she

remembered Appellant because she had hired him for roofing job that

Appellant did not complete; following questioning from court, juror

confirmed she “harbor[ed] no ill feelings” toward Appellant and could be fair

and impartial; Appellant failed to show that removal of juror #2 was

constitutionally required, where juror confirmed she could be fair and

impartial; Appellant’s related ineffectiveness claim lacks arguable merit; (7)

(pp. 31-34) through trial counsel’s questioning of Appellant’s former

girlfriend on cross-examination about whether she knew Appellant to have

guns, defense counsel opened door for Commonwealth to pursue on re-

direct questions related to Appellant’s character/propensity for violence;4

thus, trial counsel was not ineffective for failing to object to

Commonwealth’s question on re-direct; moreover, trial counsel testified that

part of trial strategy was to show Appellant was known to use his fists in

altercations, not guns; counsel had reasonable basis for not objecting to

____________________________________________

4 Appellant now complains trial counsel was ineffective for “opening the

door” to the line of questioning about guns. Nevertheless, Appellant did not

specify this claim in his PCRA petition, so it is waived. See Commonwealth

v. Washington, 592 Pa. 698, 927 A.2d 586 (2007) (explaining general rule

that any claim not raised in PCRA petition is waived on appeal).

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J-S09042-18

Commonwealth’s inquiry on re-direct; (8) (pp. 34-36) at PCRA hearing, trial

counsel explained it was important to offer jury reason for why Appellant

parked his truck away from residence where murder took place; counsel

elicited testimony that Appellant did not park his vehicle on that street

because protection from abuse (“PFA”) order precluded Appellant from

parking there;5 apparently, PFA order did not exist; nevertheless, counsel

had reasonable basis for his trial strategy; (9) (pp. 37-40) trial counsel

testified he did not object to testimony about Appellant’s drug use because it

was not significant enough to warrant objection, counsel generally declines

to object to matters which do not harm defense trial strategy, and incessant

objections draw more attention to subject of objection; counsel had

reasonable basis for his actions; (10) (pp. 40-45) Commonwealth presented

substantial evidence of Appellant’s guilt, and Appellant cannot show

prejudice from counsel’s failure to object to pictures of murder Victim

presented at trial; (11) (pp. 46-52) Appellant fails to demonstrate that

challenged testimony constitutes “victim impact testimony”; moreover,

counsel testified that defense strategy was Appellant’s cohort killed Victim,

and to interrupt flow of trial to object during testimony about Victim would

not have aided Appellant’s trial strategy; further, Appellant makes only

____________________________________________

5 Trial counsel testified that Appellant told him there was a PFA order in

effect which had precluded him from parking on the street where the murder

occurred.

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J-S09042-18

boilerplate prejudice allegations regarding this ineffectiveness claim, which

do not afford him relief; (12) (pp. 52-58) Commonwealth elicited testimony

concerning two detectives’ perceptions of Appellant’s credibility, which was

improper; nevertheless, detectives’ testimony focused on investigative

process and challenged testimony consists of fleeting statements in context

of eight-day trial; Appellant cannot show prejudice; (13) (pp. 58-63)

challenged statements were not offered for truth of matter asserted but to

explain detective’s investigation process; Appellant’s ineffectiveness claim

lacks arguable merit; (14) (pp. 63-68) prosecutor’s closing argument did

not exceed passionate rhetoric; moreover, trial counsel testified he did not

object because court instructs jury that arguments by counsel are not

evidence, and jurors’ recollection of facts/evidence controls; counsel had

reasonable basis for his actions). (See Rule 1925(a) Opinion, filed August

22, 2017, at 10-12)6 (finding: (15) given PCRA court’s disposition of

Appellant’s individual ineffectiveness of counsel claims, Appellant’s bald

averment of “cumulative prejudice” does not merit relief). Accordingly, we

affirm on the basis of the PCRA court’s opinions.

Order affirmed.

____________________________________________

6 We add to the court’s recitation of the scope and standard of review that if

the record supports a post-conviction court’s credibility determination, it is

binding on the appellate court. Commonwealth v. Dennis, 609 Pa. 442,

17 A.3d 297 (2011).

-8-

J-S09042-18

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/16/2018

-9-

Circulated 10/01/2018 02:36 PM

IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL

DISTRICT OF PENNSYLVANIA- FRANKLIN COUNTY BRANCH

Commonwealth of Pennsylvania Criminal Action

I

v. Case No. 7-2013

Jason C. Shauf, PCRA

Petitioner

The Honorable Carol L. Van Hom

OPINION sur PA. R.A.P.1925(a) AND ORDER OF COURT

Filed AUG 2 2 201]

Before Van Horn, P.J• q� �Clerk

-

/

.

/&d

IN THE COURT OF COMMON PLEAS OF THE 39™ JUDICIAL

DISTRICT OF PENNSYLVANIA- FRANKLIN COUNTY BRANCH

Commonwealth of Pennsylvania Criminal Action

V. Case No. 7-2013

Jason C. Shauf, PCRA

Petitioner

The Honorable Carol L. Van Hom

STATEMENT OF THE CASE

On December 17, 2014, a jury found the above-captioned Petitioner, Jason

C. Shauf ("Petitioner"), guilty of various charges including Second Degree

'

Murder, - Burglary.' six (6) counts of

Robbery;' ten (10) counts ofKidnapping,4 five (5) counts of Unlawful Restraint.i ,

Criminal Conspiracy to Robbery,6 and Criminal Conspiracy to Burglary.7

Petitioner was represented in the pretrial process by Attorney Mark Bayley, and by

Attorney Shane Kope at trial. On January 7, 2015, the Petitioner was sentenced to

life in prison in addition to an aggregate term of 42 to 84 years. Petitioner filed a

timely Post-Sentence Motion on January 2 o, 2015. A hearing was originally

1

18 Pa.C.S. § 2502(b).

2

18 Pa.C.S. § 3502(c)(l).

3

18 Pa.C.S. § 3701(a)(l)(i)-(iii).

4

18 Pa.C.S. § 2901(a)(2), (3).

5

18 Pa.C.S. § 2902(a)(l).

6

18 Pa.C.S. § 903 to 18 Pa. C.S. § 3701(a)(l)(i).

7

18 Pa.C.S. § 903 to 18 Pa. C.S. § 3502(a)(l).

2

scheduled before the Petitioner requested that the Motion be decided on briefs

alone. Petitioner filed his Brief in Support on February 20, 2015. The

Commonwealth filed its Brief in Opposition on March 17, 2015.

An April 13, 2015 Opinion and Order by this Court denied the Defendant's

Post-Sentence Motion. That same day, this Court granted Petitioner's previous

counsel's Motion to Withdraw. The Petitioner was subsequently appointed legal

representation through the Franklin County Public Defender's Office. On May 7,

2015, the Franklin County Public Defender's Office filed a Motion for

Appointment of Counsel Because of Conflict of Interest. This Court granted the

Motion and subsequently appointed Jens C. Wagner to represent the Petitioner on

appeal. On June 11, 2015, the Petitioner filed a Notice of Appeal and this Court

issued its Concise Statement Order.8 On July 2, 2015, Petitioner filed his Concise

Statement of Matters Complained of on Appeal. On July 17, 2015, this Court

responded to Petitioner's Concise Statement, and transmitted the Record to the

Superior Court. On November 5, 2015, upon consideration ofan application to

discontinue appeal, the Superior Court entered an Order discontinuing Petitioner's

appeal.

8

The Court notes that the Petitioner attempted to file a pro se Notice of Appeal through a letter

he filed on May 11, 2015. Given the confusion surrounding his legal representation after his trial

counsel who filed his Post-Sentence Motion withdrew, this Court finds it proper to consider his

actual Notice of Appeal filed on June 11, 2015, timely.

3

On February 29, 2016, Petitioner filed a prose Motion for Post-Conviction

Collateral Relief. On March 1, 2016, the Court appointed Attorney Nathaniel

Spang as counsel for Petitioner. Counsel for Petitioner then filed an Amended

Petition for Post-Conviction Collateral Relief on June 27, 2016. Subsequently, an

evidentiary hearing was held before this Court on November 17, 2016. Following

the hearing, this Court directed both parties to file briefs. On February 28, 2017,

Petitioner filed his Brief in Support of Previously Filed Amended PCRA Petition.

The Commonwealth filed its Brief on February 28, 2017.

On June 23, 2017, this Court issued an Opinion and Order denying

Appellant's requested relief and dismissing his PCRA Petition. Appellant filed a

timely Notice of Appeal on July 20, 2017. On July 21, 2017, this Court ordered

the Appellant file a Concise Statement of Matters Complained of on Appeal.

Appellant filed his Concise Statement on August 9, 2017. This Court will now

respond to Petitioner's claims of error in this Opinion and Order of Court pursuant

to Pa.R.A.P. 1925(a).

BACKGROUND

On October 22, 2012, a murder occurred at 310 East King Street,

Chambersburg, Pennsylvania. Numerous individuals lived in the residence and

were present at the time of the incident including Juan Miguel Herrera Marquez,

Genaro Gonzalez Chavez, Arturo Rubio Perez, Victor Campos Olguin (Hugo), and

4

Jose Trinidad Sanchez Herrea. Two other individuals, one named Sergio and

another named Ignacio, lived in the residence but were not present on the night in

question. Additionally, another individual, Augustin Macias Marquez, did not live

in the residence but was present on the night the murder occurred.

At roughly 9:30 p.m. on that evening, two individuals forced their way into

310 East King Street brandishing firearms. The first individual, Carl Varner,

wielded a .22 Magnum Rohm single action revolver. The other individual, the

Petitioner, displayed a H. Coon .410 snake charmer shotgun. The two suspects

began yelling and demanded to see an individual named "El Gallo." It is important

to note that the six victims present spoke Spanish and almost no English. Upon

observing the two suspects enter the residence Juan bolted into a nearby bedroom

and hid in the closet. Genaro and Augustin, who were also downstairs at the time

the suspects entered, were forced upstairs at gunpoint. They were subsequently

separated into different bedrooms. Genaro was forced into a bedroom in which

Arturo was already present. Petitioner then found Jose in the bathroom preparing

to take a shower and placed him in that bedroom as well. At this point, the

Petitioner took money from Arturo at gunpoint and continued to demand to see "El

Gallo." When his demands went unfulfilled, the Petitioner fired a shot into the

ceiling and then reloaded his shotgun.

5

Meanwhile Carl Vamer had forced Augustin into the other bedroom in

which Hugo was already located. He then proceeded to rob the two at gunpoint.

Next, Varner led Hugo and Augustin down the hallway before knocking Augustin

to the floor. Varner then placed his .22 caliber revolver by Hugo's neck and fired.

As a result, Hugo stumbled into the bathroom, fell into the bathtub and later died

from his injury. Following the shot, both suspects fled the scene. Police were then

called and an initial investigation was conducted. Police were able to identify the

Petitioner and Carl Varner as suspects and they were later arrested. Following a

properly executed search warrant, both the .22 revolver and .410 snake charmer

shotgun were found wrapped in a bandana in Varner' s basement. An empty box of

.410 snake charmer shotguns shells were found in the Petitioner's truck.

At trial, Petitioner admitted that he did accompany Varner to 310 East King

Street that night. However, the Petitioner argued that he had no idea that the

Petitioner intended to rob and murder anyone. Instead, the Petitioner claimed he

believed they were simply going to the residence to pick up money that was owed

to Varner. Petitioner also testified that Vamer brandished both the .22 revolver

and the .410 snake charmer shotgun and that he only brought a stick he found on

the ground for protection. Most importantly, Petitioner testified that at no time did

he go upstairs with Varner and that he simply stayed downstairs with his stick.

Petitioner testified that following the shots he fled with Varner and drove home.

6

Unconvinced, the jury convicted the Petitioner on all counts including Second

Degree Murder,

ISSUES:

In his Concise Statement, Appellant questions whether this Court erred in

denying the ineffective assistance of counsel claim brought before it in Appellant's

PCRA Petition. Specifically, Appellant raises the following issues:

I. Whether the Trial Court erred in denying relief on claim that Petitioner's

Constitutional right to an unbiased jury was violated because Juror

Number 2 was presumably biased against Petitioner.

II. Whether the Trial Court erred in denying relief on claim that pre-trial

counsel's failed to file a Motion to Suppress Petitioner's Statement to the

police on the basis that he did not make a knowing and intelligent waiver

of his Miranda rights.

III. Whether the Trial Court erred in denying relief on claim that pre-trial

counsel's failed to file a Motion to Suppress Petitioner's statement to the

police on the basis that Petitioner had been arrested without probable

cause at the time he made the statement.

IV. Whether the Trial Court erred in denying relief on claim that pre-trial

counsel's failed to file a Motion to Suppress the search warrant for

Petitioner's home and vehicle on the basis that (I) it failed to provide a

7

nexus between the homicide the police were investigating and the places

to be searched and (2) it failed to disclose facts bearing on the

unreliability of the identification of Petitioner.

V. Whether the Trial Court erred in denying relief on claim that pre-trial

counsel's failed to file a Motion to Suppress a witness identification

based on an overly suggestive photo array.

VI. Whether the Trial Court erred in denying relief on claim that trial

counsel's failed to move that Juror Number 2 be stricken for cause.

VII. Whether the Trial Court erred in denying relief on claim that trial

counsel's failed to object to improper character testimony describing

Petitioner as violent.

VIII. Whether the Trial Court erred in denying relief on claim that trial

counsel's decision to elicit testimony suggesting Petitioner had a

propensity for violence, including testimony that Petitioner had a

Protection from Abuse ("PFA") entered against him where no such order

existed.

IX. Whether the Trial Court erred in denying relief on claim that trial

counsel's failed to object to irrelevant and inadmissible testimony about

Petitioner's past drug use.

8

X. Whether the Trial Court erred in denying relief on claim that trial

counsel's failed to object to the admission of photographs of the

homicide victim while he was still living and the use of those

photographs in the Commonwealth's closing argument where the

photographs were not relevant and introduced for the purpose of

engendering sympathy for the victim.

XI. Whether the Trial Court erred in denying relief on claim that trial

counsel's failed to object to victim-impact testimony during the guilt

phase of the trial.

XII. Whether the Trial Court erred in denying relief on claim that trial

counsel's failed to object to testimony from multiple police detectives

offering a personal opinion as to the truthfulness and veracity of

Petitioner's statement.

XIII. Whether the Trial Court erred in denying relief on claim that trial

counsel's failed to object to numerous hearsay statements throughout the

trial, including an out-of-court identification of Petitioner by an

individual who did not identify Petitioner at trial.

XIV. Whether the Trial Court erred in denying relief on claim that trial

counsel's failedto object to multiple statements in the District Attorney's

9

closing argument designed to appeal to the emotions of the jury rather

than suggesting a dispassionate review of the facts of the case.

XV. Whether the Trial Court erred in denying relief on Petitioner's PCRA

claim of ineffective assistance of counsel where the performance of pre-

trial counsel and trial counsel, when viewed in toto, including the number

9

of errors or failures to act, prejudiced Petitioner.

STANDARD OF REVIEW

Our appellate courts review an order dismissing a petition filed under the

PCRA to determine whether the decision "of the PCRA court is supported by

evidence of record and is free of legal error." Commonwealth v. Rivera, 10 A.3d

1276, 1279 (Pa. Super. 2010) (citations omitted). The "scope of review is limited

to the findings of the PCRA court and the evidence of record, viewed in the light

most favorable to the prevailing party at the trial level." Id. The decision of the

PCRA court may be affirmed "on any grounds if it is supported by the record." Id.

In the case of a purely legal question, the standard of review is de novo, and the

scope of review is plenary. See Commonwealth v. Patton, 985 A.2d 1283, 1286

(Pa. 2009).

9 Concise Statement of Matters Complained of on Appeal, August 9, 2017.

10

DISCUSSION

All but one of the issues raised by Appellant mirror the issues raised in his

PCRA Petition, and addressed by this Court in our June 23, 2017 Opinion and

Order of Court which is attached. Accordingly, this Court declines to address

those issues previously raised again here, and we refer the Superior Court to the

reasoned analysis set forth in our previous Opinion.

In his Concise Statement, the sole new issued raised by Petitioner is as

follows:

Whether the Trial Court erred in denying relief on

Petitioner's PCRA claim of ineffective assistance of

counsel where the performance of pre-trial counsel and

trial counsel, when viewed in toto, including the number

of errors or failures to act, prejudiced Petitioner.

(Concise Statement, at 2). Petitioner, therefore, contends that the cumulative effect

of counsel's errors deprived him of his Sixth Amendment right to effective

assistance of counsel. Like Petitioner, in Commonwealth v. Hutchinson, the

appellant argued that the cumulative errors of counsel deprived him of due process.

Commonwealth v. Hutchinson, 25 A.3d 277, 318 (Pa. 2011 ). The Pennsylvania

Supreme Court has provided that "[W]here a claimant has failed to prove prejudice

as the result of any individual errors, he cannot prevail on a cumulative effect

claim unless he demonstrates how the particular cumulative requires a different

analysis." Id. at 318-19 (quoting Commonwealth v. Wright, 961 A.2d 119, 158

11

(Pa. 2008)). "Although cumulative prejudice from individual claims may be

properly assessed in the aggregate when the individual claims have failed due to

lack of prejudice, nothing in our precedent relieves an appellant who claims

cumulative prejudice from setting forth a specific, reasoned, and legally and

factually supported argument for the claim." Hutchinson, 25 A.3d at 319. The

Pennsylvania Supreme Court explained that "In its entirety, [the appellant's] claim

comprises [a basis recital of appellant's previously raised claims], no [persuasive]

citations to authority or to the record, no specifics, and no argument." Id. at 318.

In the instant case, Petitioner fails to provide a "specific, reasoned, and legally and

factually supported" argument. Hutchinson, 25 A.3d at 319. Instead, Petitioner

merely offers a "bald averment of cumulative prejudice". Id. For these reasons,

Petitioner's instant claim of cumulative prejudice is meritless.

Ultimately, the Court finds the Appellant's ineffective assistance of counsel

claims to be without merit, and respectfully requests that the Superior Court affirm

our June 23, 2017 Order dismissing Appellant's claims.

12

IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL

DISTRICT OF PENNSYLVANIA - FRANKLIN COUNTY BRANCH

Commonwealth of Pennsylvania Criminal Action

v. Case No. 7-2013

Jason C. Shauf, PCRA

Petitioner

The Honorable Carol L. Van Hom

ORDER OF COURT

AND NOW THIS�DAY OF August, 2017, pursuant to Pa. R.A.P.

193 l(c),

IT IS HEREBY ORDERED THAT the Clerk of Courts of Franklin

County shall promptly transmit to the Prothonotary of the Superior Court the

record in this matter along with the attached Opinion sur Pa. R.A.P. 1925(a).

Pursuant to Pa. R. Crim. P. 114, the Clerk of Courts shall immediately

docket this Opinion and Order of Court and record in the docket the date it was

made. The Clerk shallforthwith furnish a copy ofthe Opinion and Order of Court,

by mail or personal delivery, to each party or attorney, and shall record in the

docket the time and manner thereof

By the Court,

Carol L.Van Hom, P.J.

copies:

Franklin County District Attorney's Office

Nathaniel F. Spang, Esq., Counsel for Appellant

13

Jason C. Shauf

7 of2013

Aug. 22, 2017, served a copy of the OPINION & ORDER OF COURT dated Aug. 22,

2017 signed by Judge Van Hom filed Aug. 22, 2017, by placing a copy of the same in the

Inter Office Mail to the following,

District Attorney

Nathaniel F. Spang, Esq.

Circulated 10/01/2018 02:36 PM

IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL

DISTRICT OF PENNSYLVANIA-FRANKLIN COUNTY BRANCH

--------------------------------·· _

Commonwealth of Pennsylvania Criminal Action

v. Case No. 7-2013 ./

Jason C. Shauf, PCRA

Petitioner

The Honorable Carol L. Van Hom

OPINION AND ORDER OF COURT

Filed

Before Van Horn, P.J.

�<�� ;,, Clerk

. / 15}

IN THE COURT OF COMMON PLEAS OF THE 39tH JUDICIAL

DISTRICT OF PENNSYLVANIA - FRANKLIN COUNTY BRANCH

Commonwealth of Pennsylvania Criminal Action

v. Case No. 7-2013

Jason C. Shauf, PCRA

Petitioner

The Honorable Carol L. Van Hom

STATEMENT OF THE CASE

On December 17, 2014, a jury found the above-captioned Petitioner, Jason

C. Shauf ("Petitioner"), guilty of various charges including Second Degree

Burglary.i six (6) counts of

Robbery,3 ten (10) counts of Kidnapping," five (5) counts ofUnlawful Restraint,'

Criminal Conspiracy to Robbery, 6 and Criminal Conspiracy to Burglary. 7

Petitioner was represented in the pretrial process by Attorney Mark Bayley, and by

Attorney Shane Kope at trial. On January 7, 2015, the Petitioner was sentenced to

life in prison in addition to an aggregate term of 42 to 84 years. Petitioner filed a

timely Post-Sentence Motion on January 201. 2015. A hearing was originally

1

18 Pa.C.S. § 2502(b).

2

18 Pa.C.S. § 3502(c)(l).

3

18 Pa.C.S. § 3701(a)(l)(i)-(iii).

4

18 Pa.C.S. § 2901(a)(2), (3). .

5

18 Pa.C.S. § 2902(a)(l).

618 Pa.C.S.

§ 903 to 18 Pa. C.S. § 370l(a)(l)(i).

7

18 Pa.C.S. § 903 to 18 Pa. C.S. § 3502(a)(l).

2

scheduled before the Petitioner requested.that the Motion be decided on briefs

alone. Petitioner filed his Brief in Support on February 20, 2015. The

Commonwealth filed its Brief in Opposition on March 17, 2015.

An April 13, 2015 Opinion and Order by this Court denied the Defendant's

Post-Sentence Motion. That same day, this Court granted Petitioner's previous

counsel's Motion to Withdraw. The Petitioner was subsequently appointed legal

representation through the Franklin County Public Defender's Office. On May 7,

2015, the FranklinCounty Public Defender's Office filed a Motion for

Appointment of Counsel Because of Conflict of Interest. This Court granted the

Motion and subsequently appointed Jens C. Wagner to represent the Petitioner on

appeal. On June 11, 2015, the Petitioner filed a Notice of Appeal and this Court

issued its Concise Statement Order.8 On July 2, 2015, Petitioner filed his Concise

Statement of Matters Complained of on Appeal. On July 17, 2015, this Court

responded to Petitioner's Concise Statement, and transmitted the Record to the

Superior Court. On November 5, 2015, upon consideration of an application to

discontinue appeal, the Superior Court entered an Order discontinuing Petitioner's

appeal.

8

The Court notes that the Petitioner attempted to file a prose Notice of Appeal through a letter

he filed on May 11, 2015. Given the confusion surrounding his legal representation after his trial

counsel who filed-his Post-Sentence Motion withdrew, this Court finds it proper to consider his

actual Notice of Appeal filed on June 11, 2015, timely,

3

On February 29, 2016, Petitioner filed a prose Motion for Post-Conviction·

Collateral Relief. On March 1, 2016, the Court appointed Attorney Nathaniel

Spang as counsel for Petitioner. Counsel for Petitioner then filed an Amended

Petition for Post-Conviction Collateral Relief on June 27, 2016. Subsequently, .an

evidentiary hearing was held before this Court on November 17, 2016. Following

the hearing, this Court directed both parties to file briefs. On February 28, 2017,

Petitioner filed his Brief in Support of Previously Filed Amended PCRA Petition.

The Commonwealth filed its Brief on February 28, 2017. The issue is now-ripe for

decision in this Opinion and Order of Court.

BACKGROUND

On October 22, 2012, a murder occurred at 310 East King Street,

Chambersburg, Pennsylvania. Numerous individuals lived in the residence and

were present at the time of the incident including Juan Miguel Herrera Marquez,

Genaro Gonzalez Chavez, Arturo Rubio Perez, Victor Campos Olguin (Hugo), and

Jose Trinidad Sanchez Herrea. Two other individuals, one named Sergio and

another named Ignacio, lived in the residence but were not present on the night in

question, Additionally, another individual, Augustin Macias Marquez, did not live

in the residence but was present on the night the murder occurred.

At roughly 9:30 p.m. on that evening, two individuals forced their way into

310 East King Street brandishing firearms. The first individual, Carl Varner,

4

wielded a .22 Magnum Rohm single action revolver. The other individual, the

Petitioner, displayed a H. Coon .2JTOsii.akecliarmer shotgun. The two suspects

began yelling and demanded to see an individual named "El Gallo." It is important

to note that the six victims preserit spoke Spanish and almost no English. Upon

observing the two suspects enter the residence Juan bolted into a nearby bedroom

and hid in the closet. Genaro and Augustin, who were also downstairs at the time

the suspects entered, were forced upstairs at gunpoint. They were subsequently

separated into different bedrooms. Genaro was forced into a bedroom in which

Arturo was already present. Petitioner then found Jose in the bathroom preparing

to take a shower and placed him in that bedroom as well. At this point, the

Petitioner took moriey from Arturo at gunpoint and continued to demand to see "El

Gallo." When his demands went unfulfilled, the Petitioner fired a shot into the

ceiling and then reloaded his shotgun.

Meanwhile Carl Varner had forced Augustin into the other bedroom in

which Hugo was already located. He then proceeded to rob the two at gunpoint.

Next, Varner led Hugo and Augustin down the hallway before knocking Augustin

to the floor. Varner then placed his .22 caliber revolver by Hugo's neck and fired.

As a result, Hugo stumbled into the bathroom, fell into the bathtub and later died

from his injury. Following the shot, both suspects fled the scene. Police were then

called and an initial investigation was conducted. Police were able to identify the

5

Petitioner and Carl Varner as suspects and they were later arrested.. Following a

- properly execureo searcn warrant�-both the .22 revolver-anclATU snake charmer

shotgun were found wrapped in a bandana in Vamer's basement. An empty box of

.410 snake charmer shotguns shells were found in the Petitioner's truck.

At trial, Petitioner admitted that he did accompany Vamer to 310 East King

Street that night. However, the Petitioner argued that he had no idea that the

Petitioner intended to rob and murder anyone. Instead, the Petitioner claimed he

believed they were simply going to the residence to pick up money that was owed

to Varner. Petitioner also testified that Varner brandished both the .22 revolver

and the .410 snake charmer shotgun and that he only brought a stick he found on

the ground for protection. Most importantly, Petitioner testified that at no time did

he go upstairs with Varner and that he simply stayed downstairs with his stick.

Petitioner testified that following the shots he fled with Varner and drove home.

Unconvinced, the jury convicted the Petitioner on all counts including Second

Degree Murder.

6

ISSUES:

In themstanrPCRA.-Petitiori.," Petitioner raises severarmeffective assistance

of counsel claims against Attorney Mark Bayley and Attorney Shane Kope.

Petitioner claims that Attorney Bayley was ineffective for the following reasons:

I. Failure to file a Motion to Suppress Petitioner's Statement to the police

on the basis that he did not make a knowing and intelligent waiver of his

Miranda rights.

II. Failure to file a Motion to Suppress Petitioner's statement to the police

on the basis that Petitioner had been arrested without probable cause at

the time he made the statement.

III. Failure to file a Motion to Suppress the search warrant for Petitioner's

home and vehicle on the basis that (1) it failed to provide a nexus

between the homicide the police were investigating and the places to be

searched and (2) it failed to disclose facts bearing on the unreliability of

the identification of Petitioner.

IV. Failure to file a Motion to Suppress a witness identification based on an

overly suggestive photo array.

Petitioner claims that Attorney Kope was ineffective for the following reasons:

I. Failure to move that Juror Number 2 be stricken for cause.

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II. Failure to object to improper character testimony describing Petitioner as

v10lent.

III. Trial counsel's decision to elicit testimony suggesting Petitioner had a

propensity for violence, including testimony that Petitioner had a

Protection from Abuse ("PFA") entered against him where no such order

existed.

IV. Failure to object to irrelevant and inadmissible testimony about

Petitioner's past drug use.

V. Failure to object to the admission of photographs of the homicide victim

while he was still living and the use of those photographs in the

Commonwealth's closing argument where the photographs were not

relevant and introduced for the purpose of engendering sympathy for the

victim.

VI. Failure to object to victim-impact testimony during the guilt phase of the

trial.

VII. Failure to object to testimony from multiple police detectives offering a

personal opinion as to the truthfulness and veracity of Petitioner's

statement.

8

VIII. Failure to object to numerous hearsay statements throughout the trial,

----·- -------incluifiri1fan out-of�court identification of Petitioner oy an individual -

who did not identify Petitioner at trial.

IX. Failure to object to multiple statements in the District Attorney's closing

argument designed to appeal to the emotions of the jury rather than

suggesting a dispassionate review of the facts of the case.

Petitioner also raises the following issue:

I. Petitioner's Constitutional right to an unbiased jury was violated because

Juror Number 2 was presumably biased against Petitioner.9

DISCUSSION

The Post Conviction Relief Act (PCRA) was enacted to provide individuals

who are convicted of crimes for which they are innocent, or those serving illegal

sentences, with a means to obtain collateral relief. See 42 Pa.C.S. § 9543. First,

the petitioner must demonstrate he was convicted of a crime under the law of

Pennsylvania, and that he is currently serving a sentence or waiting to do so. See

42 Pa. C.S. §9543(a)(l). Second, the petitioner must prove, by a preponderance of

the evidence, that his conviction or sentence resulted from one or more of the

enumerated statutory factors. See 42 Pa. C.S. §9543(a)(2). Third, a petitioner

must demonstrate the issues raised under the Act have not been previously litigated

9

Petitioner's PCRA Brief, February 28, 2017.

9

or waived, and finally, that the failure to litigate such .issues could not have

resulted-from a rational, strategic; oftactical decision by counsel. See id. at

§9543(a)(l), (3)-(4). "Inherent in this pleading and proof requirement is that the

petitioner must not only state what his issues are, but also he must demonstrate in

his pleadings and briefs how the issues will be proved." Commonwealth v. Rivers,

786 A.2d 923, 927 (Pa. 2001).

I. Claims for Ineffective Assistance of Counsel

Among the statutory factors from which a conviction or sentence may have

resulted in creating an entitlement to post-conviction relief is the ineffective

assistance of counsel. 42 Pa.C.S. §9543(a)(2)(ii). In light of the particular

circumstances of a case, the ineffective assistance of counsel must have so

undermined the truth-determining process that "no reliable adjudication of guilt or

innocence could have taken place." Id.

The assistance of counsel is presumed effective. See Commonwealth v.

Martin, 5 A.3d 177, 183 (Pa. 2010). Petitioner bears the burden of proving

otherwise, accomplished by satisfying the three-pronged test laid out by our

appellate courts in Pierce. See Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa.

2001 ). As explained in Pierce, Petitioner must establish that the underlying claim

of ineffectiveness has (1) arguable merit, (2) that counsel's act or omission had no

10

reasonable basis to advance the Petitioner's interests, and (3) that the Petitioner

-- suffered actual prejudice due to.the trial counsel's act or omission. Id. at 212.

Failure to satisfy any of the three prongs of the Pierce test will result in

denial of the claimed ineffective assistance. See Pierce, 786 A.2d at 221-22. The

inquiry mirrors that set forth by the United States Supreme Court, requiring both a

showing that counsel's performance was deficient, and that such deficiency was

prejudicial. See Strickland v. Washington, 466 U.S. 668, 687-91 (1984).

Significantly, a Petitioner raising a claim of ineffectiveness must demonstrate

actual prejudice-vthat is, "that counsel's ineffectiveness was of such magnitude

that it 'could have reasonably had an adverse effect on the outcome of the

proceedings."' Commonwealth v. Charleston, 94 A.3d 1012, 1019 (Pa.Super.

2014) (quoting Pierce, 527 A.2d at 977). The Pennsylvania Supreme Court has

provided that "as a general and practical matter, it is more difficult for a defendant

to prevail on a claim litigated through the lens of counsel ineffectiveness, rather

than as a preserved claim of trial court error." Commonwealth v. Spotz, 84A.3d

294, 315 (Pa. 2014) (citing Commonwealth v. Gribble, 863 A.2d 455, 472 (Pa.

2004)).

Pursuant to the above standards, this Court now analyzes each issue raised

by the Petitioner in turn.

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A. Petitioner's Claims Regarding Attorney Hayley's Ineffectiveness

Attorney Bayley represented Petitioner from approximately June 20, 2013 to

November 6, 2013, essentially from right before Mandatory Arraignment through

the time that Attorney Shane Kope entered his appearance in November of 2013.

All of the IAC allegations against Attorney Bayley are based on Attorney Bayley's

decision not to file a Motion to Suppress on behalf of Petitioner.

i. Failure to file a Motion to Suppress Petitioner's Statement to the

police on the basis that he did not make a knowing and intelligent

waiver of his Miranda rights.

In the instant case, Petitioner argues that Attorney Bayley was ineffective as

a result of his failure to file a Motion to Suppress Petitioner's statement to the

police on the basis that Petitioner did not make a knowing and intelligent waiver of

his Miranda rights. (Petitioner's PCRA Brief, February 28, 2017, at 6).

a. Arguable Merit

First, the defendant must show the underlying substantive claim has arguable

merit. "Arguable merit exists when the factual statements are accurate and 'could

establish cause for relief."' Commonwealth v. Barnett, 121 A.3d 534, 540 (Pa.

Super. 2015) (quoting Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super.

2013)). Counsel cannot be held ineffective for failing to raise a meritless claim or

.a non-existent theory. See Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. Super.

2014); Commonwealth v. Skurkis, 348 A.2d 894, 896 (Pa. 1975).

12

In the suppression realm, the Pennsylvania Supreme Court has provided:

-----------[-

" ]-

t eh -a.ilure

f to file a."suppress1oii.'"motion may be evidenceoffneffective assistance _

of counsel. However, if the grounds underpinning the suppression motion or

objection are without merit, counsel will not be deemed to have beeri ineffective in

failing to so move or object." Commonwealth v. Ransome, 402 A.2d l':3'19, 1381-

82 (Pa. 1979).

Petitioner avers that this claim could establish cause for relief through his

argument that he did not make a knowing and intelligent waiver of his Miranda

rights. (Petitioner's PCRA Brief, at 7). Accordingly, the question of whether the

instant claim has arguable merit rests on a determination of whether or not

Petitioner's Miranda waiver was knowing and intelligent.

A Miranda waiver is only valid if it is done in a knowing and intelligent

fashion. Commonwealth v. Dixon, 379 A111d 553, 556 (Pa. 1977). The

Pennsylvania Supreme Court has provided that a Miranda waiver is not "knowing

and intelligent" unless the suspect has an awareness of the "general nature of the

transaction giving rise to the investigation." Id.

At the PCRA hearing, Attorney Bayley was questioned regarding the

applicability of Commonwealth v. Dixon on the Defendant's case. (T.P. PCRA

Hearing, November 17, 2016, at 13). He indicated that while he was not aware of

the Dixon case prior to the instant case, that when he did become aware of its

13

holding "[he] realized that there was an issue with regard to suppression and Mr.

---- - -Shauf s statement thaiihafha,rpotential merit"; he also-indicated that he "thouglif- - -· ..

long and hard about whether or not a favorable suppression ruling would advance

Mr. Shaufs cause." (Id.). Through this testimony, it appears that Attorney

Bayley, and the Commonwealth in its Brief in Opposition to Defendant's Post

Conviction Relief Act Petition by citing this testimony, concede that there were

grounds upon which a suppression motion could have been made. Therefore, this

Court finds that "the grounds underpinning the suppression motion" have merit.

See Ransome, 402 A.2d at 1-;S 1-82. Petitioner therefore satisfies the first Pierce

prong by demonstrating that this claim could establish cause for relief. See

Barnett, 121 A.3d at 540.

b. Reasonable Basis

While Petitioner's instant claim that counsel's failure to file a suppression

motion constituted ineffective assistance of counsel has arguable merit, Petitioner's

claim fails as trial counsel had a reasonable basis for his failure to file the motion.

To succeed on an IAC claim, the Petitioner must demonstrate that counsel did not

have any reasonable basis for their acts or failure to act designed to effectuate the

client's interest. See Pierce, 786 A.2d at 213. "In considering whether counsel

acted reasonably, we look to 'whether no competent counsel would have chosen

that action or inaction, or, the alternative, not chosen, offered a significantly

14

greater potential chance of success.'" Barnett, 121 A.3d at 540 (quoting Stewart,

-g-4-A.-JaaI707}.---��[J]udicial scrutiny of counsel's perfomiaiice-musf6e-hTghTy -

deferential", Commonwealth v. Perry, 128 A. 3d 1285, 1290 (Pa. Super. 2015), and

"[c]ounsel's decisions will be considered reasonable if they effectuated his client's

interests. We do not employ a hindsight analysis in comparing trial counsel's

actions with other efforts he may have taken." Barnett, 121 A.3d at 540 (quoting

Stewart, 84 A.3d at 707).

At the PCRA hearing, Attorney Bayley testified as to his rationale for

ultimately deciding not to file a suppression motion. Attorney Bayley explained

that while he did consider filing a motion to suppress based on inadequate Miranda

warnings, he ultimately determined that the good in the statement outweighed the

bad. (T.P. PCRA Hearing, at 13). Attorney Bayley further stated that by not

challenging the Petitioner's statement, if the Petitioner decided not to testify at

trial, the jury would still hear what the Petitioner claimed to be a truthful and

accurate version of events that occurred on the night of the crime. (Id. at 14-15).

Attorney Bayley also explained that he considered the admission of the Petitioner's

statement to be rendered less important than it otherwise might be, because he

believed that the Commonwealth would be able to place the Petitioner at the scene

of the crime "without any problem". (Id. at 15). Finally, Attorney Bayley testified

. that anod1er beneficial aspect of Petitioner's statement was that:

15

It showed cooperation as well. There could be ari

argument made from a defense standpoint that people

wlio cooperate and give statements are potentially more

likely to be innocent, that would not be an uncommon

theory to propose in some form to a jury.

(Id. at 18).

As noted above, this Court must exercise great deference when assessing

counsel's performance. Perry, 128 A.3d at 1290. Attorney Bayley's testimony at

the PCRA hearing indicates to this Court that trial counsel had a reasonable basis

for deciding not to file a suppression motion. Accordingly, Petitioner's instant

claim for ineffectiveness fails the second Pierce prong.

ii. Failure to file a Motion to Suppress Petitioner's statement to the

police on the basis that Petitioner had been arrested without

probable cause at the time he made the statement.

In the instant case, Petitioner avers that Attorney Bayley was ineffective for

failing to file a Motion to Suppress Petitioner's statement to the police on the basis

that petitioner had been arrested without probable cause at the time he made the

statement. (Petitioner's PCRA Brief, at 10). ·

a. Arguable Merit

As noted above, to establish a meritorious ineffectiveness claim, Petitioner

must first establish that her claim has arguable merit by showing that "the factual

statements are accurate and 'could establish cause for relief.'" Barnett, 121 A.3d

at 540. Moreover, counsel will not be deemed ineffective for failing to file a

16

Motion to Suppress where the "grounds underpinning the suppression motion or

objection are without merit". Ransome, 402 A.2d at � "3� 1-82.

Here, Petitioner avers that this claim could establish cause for relief through

his argument that the police lacked probable cause to effectuate his arrest.

(Petitioner's PCRA Brief, at 10). Accordingly, the question of whether the instant

claim has arguable merit rests on a determination of whether or not probable cause

existed at the time of arrest.

Both the Federal Constitution and the Pennsylvania Constitution serve to

protect citizens from unreasonable searches and seizures. See U.S. Const. Amend.

IV; Pa. Const. art. I,§ 8; Commonwealth v. Chase, 960 A.2d 108, 112-13 (Pa.

2008) (citing In the Interest ofD.M, 781 A.2d 1161, 1163 (Pa. 2001)). (The key

question in determining if a seizure is constitutional under the Fourth Amendment

is if it is reasonable." Chase, 960 A.2d at 113 (internal citations omitted).

Evidence obtained from unreasonable, illegal seizures is inadmissible and must be

suppressed. Commonwealth v. Key, 789 A.2d 282, 290 (Pa. Super. 2001).

Investigative detentions and custodial detentions are two types of encounters

between police and citizens that constitute a seizure of a person. See

Commonwealth v. Freeman, 757 A.2d 903, 908 (Pa. 2000); see generally

Commonwealth v. Lovette, 450 A.2d 975 (Pa. 1982). Investigative detentions carry

"an official compulsion to stop and respond, but the detention is temporary, unless

17

it results in the formation of probable cause for arrest, and does not possess the

coercive conditions consistent with a formal arrest." Commonwealth v. DeHart,

745 A.2d 633, 636 (Pa. Super. 2000) (citations omitted).

"[A] custodial detention occurs when the nature, duration and conditions of

an investigative detention become so coercive as to be, practically speaking, the

functional equivalent of an arrest." DeHart, 745 A.2d at 636. To effectuate a

warrantless arrest, the police must have probable cause to believe both (I) that a

crime has been committed and (2) that the person being arrested was the person

who committed it. Commonwealth v. Clark, 735 A.2d 1248 (Pa. 1999). This

standard is more stringent than reasonable suspicion. Ranson, 103 A.3d at 77.

Probable cause exists when the facts and circumstances within the knowledge of

the officer is sufficient to warrant an officer of reasonable caution in the belief that

the suspect has committed or is committing a crime. Commonwealth v. Thompson, .

985 A.2d 928, 931 (Pa. 2009). "[Pjrobable cause does not require certainty, but

rather exists when criminality is one reasonable inference, not necessarily even the

most likely inference." Commonwealth. v. Spieler, 887 A.2d 1271, 1275 (Pa.

Super. 2005) (citations omitted). A totality of the circumstances analysis is

required to determine whether an officer had either reasonable suspicion to detain

or probable cause to arrest. Commonwealth. v. Myers, 728 A.2d 960, 962 (Pa.

Super.1999).

18

At the PCRA Hearing, when questioned about why he did not file a Motion

to Suppress on the Petitioner's behalf based on Petitioner being arrested without

probable cause, Attorney Bayley testified:

I believed then and believe now there was probable cause

to arrest him. So, I didn't identify any issues that I

believed had any merit or would advance his case. The

other thing I reviewed was the search warrant. I didn't

see any viable issues with regard to attacking the search

warrant.

(T.P. PCRA Hearing, at 21). When questioned whether he believed probable cause ·

existed when only one out of five individuals identified Petitioner, Attorney

Bayley testified:

I think all it would take was one to make probable cause.

And, the other interesting thing about identification that

the one witness made, it wasn't your routine

identification where the first time the person had ever

seen Shauf or the perpetrator was while the crime was

being committed and then the police 'came up with a

suspect, gave them a photo array and all of a sudden he

connects the person from the actual crime scene. This

was a situation where the one witness had actually seen

Shauf previous to the crime and remembered him from

being in a bar or a restaurant and been pointed out to him

by, I believe, Erika beard who had previously been

associated with Mr. Shauf.

So, this was a situation. It wasn't just a two-point

identification where he's seeing the perpetrator during

the crime and during the photo array. It's a situation

where, it's a three-point identification. He's seeing him

previously [sic] at the time of the crime and during the

· photo array.

19

(T.P. PCRA Hearing, at 22-23). Further, Attorney Bayley indicated.that while the

four other individuals in the residence on the night of the murder could not pick the

Petitioner o�t of a line up, all four individuals did give physical descriptions

pertaining to one of the perpetrators of the murder that were roughly accurate when

compared to the Petitioner. (Id. at 26).

This Court is persuaded that the one witness identification of the Petitioner,

and the four witness' descriptions that were roughly accurate when compared to

the Petitioner was sufficient to warrant an officer of reasonable caution in the

belief that the suspect has committed or is committing a crime. Thompson,' 985

A.2d at 931. Therefore, the grounds underpinning a potential Motion to Suppress

the Petitioner's statements to the police on the basis of lack of probable cause to

arrest Petitioner were meritless. Accordingly, Petitioner's instant claim for

ineffectiveness has no arguable merit, thereby failing the first Pierce prong.

iii. Failure to file a Motion to Suppress the search warrant for

Petitioner's home and vehicle on the basis that (1) it failed to provide

a nexus between the homicide the police were investigatine and the

pJaces to be searched and (2) it failed to disclose facts bearing on the

unreliability of the identification of Petitioner.

In the instant case, Petitioner avers that Attorney Bayley was ineffective for

failing to file a Motion to Suppress the search warrant for Petitioner's home and

vehicle on the basis that (1) it failed to provide a nexus between the homicide the

police were investigating and the places to be searched and (2) it failed to disclose

20

facts bearing on the unreliability of the identification of Petitioner. (Petitioner's

PCRA Brief, at 11).

a. Ar1n1able Merit

As noted above, to establish a meritorious ineffectiveness claim, Petitioner

must first establish that her claim has arguable merit by showing that "the factual

statements are accurate and 'could establish cause for relief?" Barnett, 121 A.3d

at 540. Moreover, counsel will not be deemed ineffective for failing to file a

Motion to Suppress where the "grounds underpinning the suppression motion or

objection are without merit". Ransome, 402 A.2d at �381-82. Here, Petitioner

avers that this claim could establish cause for relief through his argument that the

search warrant for Petitioner's home and vehicle (1) failed to provide a nexus

between the homicide the police were investigating and the places to be searched

and (2) failed to disclose facts bearing on the unreliability of the identification of

Petitioner. (Petitioner's PCRA Brief, at 11 ).

Under both the Federal Constitution and Pennsylvania Constitution, a

totality of the circumstances analysis is required to determine whether probable

cause exists for the issuance of a search warrant. See U.S. Const. Amend. IV; Pa.

Const. art. I,§ 8; Commonwealth v. Gray, 503 A.2d 921 (Pa. 1985) (adopting the

standard set forth in Illinois v. Gates, 462 U.S. 213 (1983)). Under a totality of the

circumstances analysis, the task of the issuing authority is:

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[S]imply to make a practical, common-sense decision

whether, given all the circumstances, set forth in the

affidavit before him, including the 'veracity' and 'basis

of knowledge' of persons supplying hearsay information,

there is a fair probability that contraband or evidence of a

crime will be found in a particular place.

Commonwealth v. Smith, 784 A.2d 182, 185 (Pa. Super. 2001) (quoting

Commonwealth v. Coleman, 769 A.2d 462, 464 (Pa. Super. 2001) (internal

citations omitted)). "However, if a search warrant is based on an affidavit

containing deliberate or knowing misstatements of material fact, the search warrant

is invalid." Commonwealth v. Clark, 602 A.2d 1323, 1325 (Pa. Super. 1992)

(citations omitted); "To succeed in attacking a warrant, a defendant must come

forward with 'allegations of deliberate falsehood or of reckless disregard for the

truth, and those allegations must be accompanied by an offer of proof.'" See

Commonwealth/ Gomolekoff, 910 A.2d 710, 715 (Pa. Super. 2006) (quoting

Franks v. Delaware, 438 U.S.154, 171 (1978)).

In the instant case, a search warrant was executed on Petitioner's residence

and his vehicle. Petitioner first argues that Attorney Bayley was ineffective for

tailing to file a Motion to Suppress the search warrant, because the search warrant

failed to provide a nexus between the homicide the police were investigating and

the places to be searched. (Petitioner's PCRA Brief, at 11).

At the PCRA Hearing, Attorney Bayley agreed with PCRA counsel that

there mustbe a nexus between the crime being investigated and the place being

22

searched. (T.P. PCRA Hearing, at 27). Attorney Bayley explained why he

believed the search warrant was supported by probable cause:

He is identified as a suspect and I believe that the search

warrants provide probable cause that he was involved in

the situation ... And, that is enough, I believe, under the

circumstances to search his house the next day and his

vehicle that's sitting right next to it.

(Id. at 29-30). Attorney Bayley also indicated, when questioned on cross-

examination, that he did not believe it was unusual for the police to execute a

search warrant on a suspect's residence in the hopes of locating a murder weapon

when a weapon was used in the commission of a murder, and further noted that it

thought it would be unusual if the police acting differently. (Id. at 40).

Review of the search warrant indicates that it included information that the

Petitioner was recognized by one of the witnesses as one of the two suspects to

enter the residence on the night of the murder, "as he knew him to be associated .

with a female named Erica whom had been to the residence in the past." (Search

Warrant, October 23, 2012, at 2). The search warrant also provided that:

On [the day after the incident giving rise to the instant

case] information was developed that Jason C. Shauf

resided at 117 Sollenberger Road in Chambersburg. A

check of the residence revealed that a vehicle associated

with and registered to Jason C. Shauf ... was parked in

the driveway of said residence.

A neighbor reported seeing Jason C. Shauf and Carl

Varner at 117 Sollenberger Road in the early morning hrs

of this same date.

23

(Id.). Under a totality of the circumstances analysis, the information contained in

the search warrant, in tandem with the testimony provided by Attorney Bayley,

persuade this Court that there was a nexus between the homicide the police were

investigating and the places to be searched. Therefore, the Court concludes the

first basis raised by Petitioner in support of his argument that Attorney Bayley was

ineffective for failing to file a suppression motion regarding the search warrant-

that it failed to provide a nexus between the homicide the police were investigating

and the places to be searched-is meritless.

The Court is likewise persuaded that the second basis Petitioner argues

should have led Attorney Bayley to file a Motion to Suppress of the search

warrant-that the search warrant failed to disclose facts bearing on the unreliability

of the identification of Petitioner-lacks arguable merit. In support of the instant

issue, Petitioner points to the fact that only one of the five witnesses present at the

residence on the night of the murder identified Petitioner as one of the two

suspects. However, at the PCRA hearing, Attorney Bayley testified that while

Petitioner is correct that only one witness positively identified Petitioner as a

suspect, the other four witnesses gave descriptions matching the Petitioner. (T.P.

PCRA Hearing, at 30-32). Attorney Bayley continued, explaining that the four

witnesses:

24

[C]ouldn't identify him from the standpoint of having

seen him before knowing who he was. I think negative

information would be if you have four other witnesses

saying, suspect number 2 was somebody else, identified

him as entirely being some other individual as opposed to

just simply not knowing his name or having seen him

before.

(Id. at 31).

It is true that a search warrant is rendered invalid if it is based on "an

affidavit containing deliberate or knowing misstatements of material fact". Clark,

602 A.2d at 1325. However, the Court, like Attorney Bayley, is not persuaded that

the search warrant's failure to indicate that there were five witnesses, and only one

witness identified Petitioner, rises to the level of "deliberate or knowing

misstatements of material fact", id., or "allegations of deliberate falsehood or

reckless disregard for the truth", Gomolekoff, 910 A.2d at 715 (quoting Franks,

438 U.S. at 171). Accordingly, Petitioner's second basis raised in support of his

instant ineffectiveness claim lacks arguable merit, thereby failing the first Pierce

prong.

iv. Failure to file a Motion to Suppress a witness identification based on

an overly suggestive photo array.

In the instant case, Petitioner avers that Attorney Bayley was ineffective for

failing to file a Motion to Suppress a witness identification based on an overly

suggestive photo array. (Petitioner's PCRA Brief, at 14).

25

a. Anrnable Merit

As noted above, to establish a meritorious ineffectiveness claim, Petitioner

must first establish that her claim has arguable merit by showing that "the factual

statements are accurate and 'could establish cause for relief?" Barnett, 121 A.3d

at 540. Moreover, counsel will not be deemed ineffective for failing to file a

Motion to Suppress where the "grounds underpinning the suppression motion or

objection are without merit". Ransome, 402 A.2d at 11,1-82. Here, Petitioner

avers that this claim could establish cause for relief through his argument that the

photo array whereby the witness identified Petitioner was overly suggestive.

(Petitioner's PCRA Brief, at 14).

"A pictorial identification is unduly suggestive when it gives rise to a

substantial likelihood of irreparable misidentification." See Commonwealth v.

Hughes, 555 A.2d 1264, 1272 (Pa. 1989). In the instant case, the witness who

ultimately identified Petitioner as one of the intruders was shown two sets of photo

arrays. Prior to having been shown either set of photos, but after the murder

occurred, the witness was interviewed by the Chambersburg Police. The witness

described two suspects, and indicated that he was familiar with the first suspect,

but did not know his name. After having been shown the �rst photo array which

included Petitioner, the witness indicated that he did not recognize anyone related

to the incident, but did state that the first suspect was thinner and did not have

26

facial hair. Later on that same date, the witness was shown a second photo array

that included a more recent photo of Petitioner than the first photo array. The

witness pointed to Petitioner's photo in this second photo array, and indicated that

was one of the murder suspects, and specifically the man he had previously

indicated he was familiar with.

At the PCRA hearing, as noted above, Attorney Bayley testified that he did

not believe there was a reasonable possibility that the District Attorney could not

place Petitioner at the house at the time the crime occurred. (T.P. PCRA Hearing,

at 34). Consequently, Attorney Bayley explained that he planned on conceding

that Petitioner was present in the house at the time of the murder. (Id. at 35).

When questioned about the manner in which the photo array was shown to the

· witness, Attorney Bayley also testified:

And, I remember vividly, when I first looked at the photo

array, the initial photo array that the witness was

provided, where he couldn't identify Shauf, when I first

looked at that photo array, I could not clearly pick Mr.

Shauf out of that photo array and that-and I looked at

that photo array shortly after being face to face with Mr.

Shauf at the prison. And, there is something about that

first photo array in-his picture in that first photo array

that is just-it was not a good likeness of him at the time

and in fact the second photo array I looked at, that

interestingly the victim identified him in, I picked him

out right away. And, I don't know what the difference

was.

I remember he had facial hair in the first one, but there

were other differences. I myself couldn't pick him out.

27

So, I was not surprised that the victim couldn't pick him

out.

(Id. at 23-24).

Given AttorneyBayley's testimony, and the fact that the witness who

identified Petitioner had previous familiarity with him, this Court is not persuaded

that the photo array was overly suggestive. Therefore, the grounds underpinning

the suppression motion are meritless. Accordingly, Petitioner's instant

ineffectiveness claim lacks arguable merit, thereby failing the first Pierce prong.

B. Petitioner's Claims Regarding Attorney Kope's Ineffectiveness

Attorney Kope entered his appearance in November of 2013,"taking over

Petitioner's legal representation from Attorney Bayley. Attorney Kope represented

Petitioner during his jury trial.

i. . Failure to move that Juror Number 2 be stricken for cause.

In the instant case, Petitioner avers that Attorney Kope was ineffective as a

result of his failure to move that Juror Number 2 be stricken for cause. (See

Petitioner's PCRA Brief, at 6). Prior to opening statements at trial, Juror Number

2 advised the Court that she remembered Petitioner because she and her husband

had hired and paid him to complete a roofing job which he never finished. (T.P.

Trial, Day 1, December 8, 2014, at 4-9). Consequently, the following questioning

occurred:

28

[Court] Now, the question I would ask you, ma'am, is

after considering this fact, would you still be able to sit as

a fair and impartial juror in this case?

[Juror] I think I would be able to. That's in the past.

Whether or not what he's accused of he did, I would only

make a fair decision after hearing all information.

[Attorney Kope] [J]ust to repeat, in a different way the

question by the Judge-would that affect your ability to

judge his credibility or are you going to have a bias

toward his credibility and think, He's [sic] just not telling

the truth because of what had happened to us?

[Juror] I pray I wouldn't. I don't think I would because I

want to be fair. I just want to listen to the facts from all

parties even Mr. Shauf, you know, before I would make a

decision. That's in the past. I harbor no ill feelings.

[Attorney Kope] I understand. And so when you say you

don't think you could, I mean, you believe you could

listen to his version and judge him based on what he says

and his credibility at the time he says it. Do you feel you

can do that without any bias?

[Juror] I feel like I could. I feel like I could.

(Id.).

a. Arguable Merit

As noted above, to establish a meritorious ineffectiveness claim, Petitioner

must first establish that her claim has arguable merit by showing that "the factual

statements are accurate and 'could establish cause for relief."' Barnett, 121 A.3d

at 540. Pursuant to Article I, Section 9 of the Pennsylvania Constitution and the 6th

29

Amendment of the United States Constitution, the criminally accused are explicitly

granted the right to an impartial jury. "[C]laims of impartiality by prospective

jurors are subject to scrutiny for credibility and reliability as is any testimony."

Commonwealth v. Ellison, 902 A.2d 419, 424 (Pa. 2006). However, disclosure of

possible conflicts does not automatically require juror disqualification. As stated

by the Pennsylvania Supreme Court "[t]he test for determining whether a

prospective juror should be disqualified is whether he is willing and able to

eliminate the influence of any scruples and render a verdict according to the

evidence, and this is to be determined on the basis of answers to questions and

demeanor." Commonwealth v. Koehler, 36 A.3d 121, 143 (Pa.2012) (internal

citations omitted). The decision of whether to excuse a juror is within the

discretion of the trial court, and is subject to review only for an abuse of discretion.

Id. at 144.

In Koehler, an alternate juror informed the court that she may have

previously encountered the defendant approximately one year before the trial. Id.

at 143. Upon the Court's inquiry as to the juror's ability to serve fairly, the juror

initially indicated that she was uncertain about her ability to serve impartially. Id.

However, after additional questions, the juror concluded this encounter would not

affect her ability to be a fair and impartial juror. Id.

30

In the case at bar, like the juror in Koehler, Juror Number 2 responded that

she believed she would be able to serve impartially. (See T.P. Trial, day 1, at 4-9).

Consequently, this Court is not persuaded by Petitioner's argument that trial

counsel should have requested the juror's excusal, rendering the instant claim of

ineffectiveness void of arguable merit. Petitioner therefore fails the first Pierce

prong as to his IAC claim for trial counsel's failure to request Juror Number 2's

excusal from trial.

ii. Failure to obiect to improper character testimony describing

Petitioner as violent. ,

In the instant case, Petitioner avers that Attorney Kope was ineffective as a

result of his failure to object to improper character testimony describing Petitioner

as violent. (See Petitioner's PCRA Brief, at 15). At trial, the Commonwealth

called Erica Beard, Petitioner's former girlfriend, as a witness. On cross-

examination by Attorney Kope, Ms. Beard provided the following testimony:

[Q]. Now, also during this second interview with

Detective Mummert, do you believe or do you

remember--excuse me-telling the detective that you've

never seen Jason with guns or known him to have guns?

[A]. No. I've not known or seen him with a gun ever.

[Q]. Now, also during that same conversation, you had

told the detectives that you would never expect Jason to

shoot anyone; is that correct?

31

[A]. That is correct.

(See T.P. Trial, Day 3, December 10, 2014, at 26-27). During re-direct, the

Commonwealth asked Ms. Beard the following questions:

[Q]. Did you know [Petitioner] to be violent?

[A]. I mean, we had physical altercations when we were

in a relationship.

[Q]. Did you ever know him to get into fights with other

people?

[A]. Yes.

(See id. at 34). Attorney Kope did not object to this line of questioning.

a. Arguable Merit

As noted above, to establish a meritorious ineffectiveness claim, Petitioner

must first establish that her claim has arguable merit by showing that "the factual

statements are accurate and 'could establish cause for relief,"' Barnett, 121 A.3d

at 540. Under the Pennsylvania Rules of Evidence, "[e]vidence of a person's

character or character trait is not admissible to prove that on a particular occasion

the person acted in accordance with the character or trait." Pa.R.E. 404(a).

Moreover, "[ejvidenceof a crime, wrong, or other act is not admissible to prove a

person's character in order to show that on a particular occasion the person acted in

accordance with the character." Pa.R.E. 404(b)(2). "This rule of evidence

encompasses the principle that, 'Generally, evidence of prior bad acts or unrelated

32

criminal activity is inadmissible to show that a defendant acted in conformity with

those past acts or to show criminal propensity." See Commonwealth v. Nypaver,

69 A.3d 708, 716 (Pa. Super. 2013) (quoting Commonwealth v. Ross, 57 A.3d 85,

98 (Pa. Super. 2012) ( quoting Commonwealth v. Sherwood, 603 Pa. 92, 982 A.2d

483(2009))). However, a litigant may "open the door" to such inadmissible

evidence; "(a] litigant opens the door to inadmissible evidence by presenting proof

that creates a false impression refuted by the otherwise prohibited evidence." See

Nypaver, 69 A.3d at 716.

Here, through his questions regarding whether Ms. Beard had seen the

Defendant with guns or known the Defendant to own guns, Attorney Kope opened

the door to the line of questioning pursued by the Commonwealth on redirect, as

these questions related to the Defendant's character or trait for violence.

Consequently, Attorney Kope was not ineffective for failing to thereafter object to

the Commonwealth's questions. Petitioner therefore fails the first Pierce prong as

to his IAC claim for trial counsel's failure to object to character testimony

describing Petitioner as violent.

b. Reasonable Basis

Even were this Court to find arguable merit in this particular

ineffectiveness claim, the claim fails the second Pierce prong of reasonable basis.

As set forth previously, the decisions made by trial counsel will be deemed

33

"reasonable if they effectuated his. client's interests." Barnett, 121 A.3d at 540

(quoting Stewart, 84 A.3d at 707).

During the PCRA hearing, Attorney Kope indicated that:

[P]art of our trial strategy with Mr. Shauf was that he was

known-and I believe in one of the officers had said this

to him, but he was known to use his fist in altercation,

not weapons and he's not known to have guns and things

of that nature. . . ; that if he ever got into fight, he never

used a weapon. That was the theory.

(T.P. PCRA Hearing, at 74). Moreover, this Court must exercise great deference

when assessing counsel's performance. Perry, 128 A.3d·at 1290. To accept

Petitioner's arguments would be to wholly disregard trial counsel's explanations.

Attorney Kope's testimony at the PCRA hearing indicates to this Court that

trial counsel had a reasonable basis for deciding not to object to the respective

character testimony. Accordingly, Petitioner's instant claim for ineffectiveness

fails the second Pierce prong.

iii. Trial counsel's decision to elicit testimony suggesting Petitioner had

a propensity for violence, including testimony that Petitioner had a

Protection from Abuse ("PFA") entered against him where no such

order existed.

In the instant case, Petitioner avers that Attorney Kope was ineffective as a

result of his decision to elicit testimony suggesting Petitioner had a propensity for

violence, including testimony that Petitioner had a PFA entered against him where

no such order existed. (See Petitioner's PCRA Brief, at 17).

34

a. Argua hie Merit

As noted above, to establish a meritorious ineffectiveness claim, Petitioner

must first establish that her claim has arguable merit by showing that "the factual

statements are accurate and 'could establish cause for relief."' Barnett, 121 A.3d

at 540.

Here, Petitioner avers that trial counsel "elicited testimony from Petitioner

which indicated that PFA order was entered against him at the time of this incident

[when i]n fact, no such order was ever in place nor could ithave been as the

individual who was supposed [sic] protected party had no relation to Petitioner."

(Petitioner's PCRA Brief, at 17). However, Petitioner fails to offer any legal

authority supporting his claim that trial counsel's questioning was inappropriate.

(See generally, Petitioner's PCRA Brief). In contrast, the Commonwealth

highlights Attorney Kope' s testimony at the PCRA hearing, that even though no

PFA was filed against Petitioner at the time of the incident, that it was important to

offer the jury a description of Petitioner's perception at the time-that he believed

he could not be on the street based on a PFA. (Commonwealth's Brief, at 13; see

also T.P. PCRA Hearing, at 79).

Petitioner has therefore failed to establish that the instant claim has any

arguable merit. Accordingly, the claim is dismissed.

b. Reasonable Basis

35

Were this Court to find arguable merit in the instant claim, Petitioner still

fails the second Pierce prong of reasonable basis. As set forth previously, the

decisions made by trial counsel will be deemed "reasonable if they effectuated his

client's interests." Barnett, 121 A.3d at 540 (quoting Stewart, 84 A.3d at 707).

At the PCRA Hearing, Attorney Kope explained that he felt it important to

offer to the jury a reason for Petitioner parking his truck on a street other than the

street the residence where the murder occurred was located; Attorney Kope further

expressed his concern that simply telling the jury that the Petitioner parked where

he did as a result of street congestion was "too flimsy" of an explanation. (T.P.

PCRA Hearing, at 79).

Moreover, Petitioner has failed to cite any authority by which this Court

would be persuaded that trial counsel had no reasonable basis as a result of the

above noted testimony. The Court notes that, pursuant to case law issued by the

Pennsylvania Supreme Court, "boilerplate allegations and bald assertions of no

reasonable basis and/or ensuing prejudice. cannot satisfy a petitioner's burden to

prove that counsel was ineffective." Commonwealth v. Chmiel, 30 A.3d 1111,

1128 (Pa. 2011) (quoting Commonwealth v. Paddy, l 5 A.3d 431, 443 (Pa. 2011 )).

For the above noted reasons, Petitioner has failed to meet the second Pierce

prong. Accordingly, the instant IAC claim is dismissed.

36

iv. Failure to obiect to irrelevant and inadmissible testimony about

Petitioner's past drug use. ·

In the instant case, Petitioner avers that Attorney Kope was ineffective as a

result of his failure to object to irrelevant and inadmissible testimony about

Petitioner's past drug use. (See Petitioner's PCRA Brief, at 18).

a. Arguable Merit

As noted above, to establish a meritorious ineffectiveness claim, Petitioner

must first establish that herclaim has arguable merit by showing that "the factual

statements are accurate and 'could establish cause for relief."' Barnett, 121 A.3d

at 540.

Here, Petitioner asserts that at trial, testimony concerning Petitioner's

previous use of illegal drugs was presented to the jury numerous times.

(Petitioner's PCRA Brief, at 18-19). Petitioner specifically argues:

[T]estimony regarding past drug use is not admissible

"unless the party offering such evidence can specifically

tie it to. the charged conduct." Commonwealth v.

Chapman, 763 A.2d 895 (Pa. Super. 2000). It is

inadmissible because it has a prejudicial effect of

creating an image in the minds of jurors that Petitioner is

a "bad person." Id.

(Petitioner's PCRA Brief, at 19). When offering the above rationale in

Commonwealth v. Chapman, the Superior Court of Pennsylvania quotes the lower

court's opinion which cites to Rule 404 of the Pennsylvania Rules of Evidence,

37

relating to character evidence and crimes or other acts. Chapman, 763 A.2d at

902.

The Pennsylvania Supreme Court has also weighed in on Pa.R.E. Rule 404:

While evidence of prior bad acts is inadmissible to prove

the character of a person in order to show conduct in

conformity therewith, evidence of prior bad acts may be

admissible when offered to prove some other relevant

fact, such as motive, opportunity, · intent, preparation,

plan, knowledge, identity, and absence of mistake or

accident.

Commonwealth v. Busanet, 54 A.3d 35, 60 (Pa. 2012) (citing Pa.R.E. Rule

404(b )(2)).

Given applicable case law, this Court is persuaded that trial counsel could

have objected to the testimony, as it is not clear how the testimony was tied

specifically to the murder in the instant case. Accordingly, Petitioner has

established the instant claim has arguable merit.

b. Reasonable Basis

Having concluded the instant claim has arguable merit, Petitioner must also

demonstrate the second Pierce prong-that trial counsel had no reasonable basis

for his actions or lack thereof at trial. Petitioner avers that trial counsel has no

reasonable basis for failin� to object to trial testimony concerning Petitioner's

illegal drug use. (Petitioner's PCRA Brief, at 18-19).

38

At the PCRA Hearing, Attorney Kope gave the following answers the

questions concerning his failure to object to the testimony concerning Petitioner's

previous use of illegal drugs:

[Q]. Other things that you didn't raise objections to, such

as drug use by Mr. Shauf?

[A]. Yes. I think one of the witnesses had said that

she-against, I don't remember exactly. I think she said

she had thought she had seen-I don't know if it was

Carl or Jason using drugs or cocaine that evening or it if

was a previous occasion. Again, I didn't find that

significant enough at the time because our whole trial

strategy, because he was drinking with Carl Varner

before they went over there. And, I think Carl Varner

may have at one point said they were using drugs.

Again, it wasn't significant enough to me to raise an

objection to.

[Q]. So, you didn't think the-let's put it this way. If

you had objected to the fact that he had previously used

drugs, do you think that was objectionable? In other

words, if you had raised an objection that it would have

been a sound objection that the Court would have

considered?

[A]. I really don't know. I mean, is it something you

could ultimately object on? You can object on anything

that you feel is-I mean, we've all been in trials where

you have an attorney that objects to every little thing that

comes up. I tend to, if it's not significant or if I felt its

harmless to our strategy, I won't object to it.

Not everybody can foresee every little thing that a

witness may say and just I tend not to object to every

little thing, draw all the more attention to the issue. And

quite franklin, you know, it breaks up the course of the

39

case to standup and object to every, you know, thing that

could be objectionable. So, quite often, if it doesn't

effect our overall strategy of the case or what we are

trying to accomplish, I will often not object to things that

I feel are just not significant enough to warrant it.·

(T.P. PCRA Hearing, at 76-78).

While this Court may agree that it would have been proper for trial counsel

to object to the testimony concerning Petitioner's illegal drug use, this Court must

exercise great deference when assessing counsel's performance. Perry, 128 A.3d

at 1290. To accept Petitioner's arguments would be to wholly disregard trial

counsel's explanations.

Consequently, Petitioner has failed to persuade this Court that there existed

no reasonable basis for trial counsel's failure to object to the testimony concerning

Petitioner's illegal drug use. Accordingly, the instant claim is dismissed for failure

to meet the second Pierce prong.

v. Failure to object to the admission of photographs of the homicide

victim while 'he was still living and the use of those photographs in

the Commonwealth's closine argument where the photographs were

not relevant and introduced for the purpose of engendering

sympathy for the victim.

In the instant case, Petitioner avers that Attorney Kope was ineffective as a

result of his failure to object to the admission of photographs of the homicide

victim while he was still living and the use of those photographs in the

Commonwealth's closing argument where the photographs were not relevant and

_40

introduced for the purpose of engendering sympathy for the victim. (See

Petitioner's PCRA Brief, at 19).

At trial, the Commonwealth introduced photographs of the victim while he

was still living. Trial counsel did not object to the admission of these photographs,

and they were thereafter displayed during the testimony of one of the victim's

friends, Augustin Marcias Marquez, 10 and during the Commonwealth's summation

to the jury.

a. Arguable Merit

As noted above, to establish a meritorious ineffectiveness claim, Petitioner

must first establish that her claim has arguable merit by showing that "the factual

statements are accurate and 'could establish cause for relief?" Barnett, 121 A.3d

at 540.

Here, Petitioner avers that the introduction of the photographs of the victim

was improper, as the victim's character and physical abilities were not at issue,

thereby rendering trial counsel's assistance ineffective due to his failure to object

to the photographs' introduction at trial. (Petitioner's PCRA Brief, at 19-21).

It is well settled that the "[a]dmission of evidence is within the sound

discretion of the trial court and will be reversed only upon a showing that the trial

10

The record indicates that the photograph was shown at the end of Mr. Marquez's direct

testimony, and the Commonwealth asked the witness if the victim had had family that lived in

the United States, and ifhe missed the victim: (T.P. Trial, Day 1, December 8, 2014, at 156).

41

court clearly abused its discretion." Commonwealth v. Tyson, 119 A.3d 353,3 57

(Pa. Super. 2015) (internal citations omitted). Moreover, "[a]n abuse of discretion

is not merely an error ofjudgment, but is rather the overriding or misapplication of

the law, or the exercise of judgment that is manifestly unreasonable, or the result of

bias, prejudice, ill-will or partiality, as shown by the evidence of the record." Id.

(internal citations omitted). "The trial court will not be found to have abused that

discretion unless the essential evidentiary value of the photograph is clearly

outweighed by the inflammatory effect the picture will have upon the minds and

passions of the jurors." Commonwealth v. Rivers, 644 A.2d 710, 716 (Pa. 1994).

During the guilt phase of a murder trial, certain "life-in-being testimony" is

admissible, to show that the victim was alive prior to the murder. Commonwealth

v. Jordan, 65 A.3d 318, 333 (Pa. 2013). However, the Pennsylvania Supreme

"Court has made clear, however, that the manner of presenting life-in-being

evidence is subject to some restraints." Id. (citing Rivers, 644 A.2d at 716). In

Commonwealth v, Rivers, the Pennsylvania Supreme Court provided that while

photographs of the victim may be admissible when the "victim's character and

physical abilities are called into question", that photographs "introduced for the

purpose of engendering sympathy for the victim with the intent of creating an

atmosphere of prejudice against the defendant ... is error." Rivers, 644 A.2d at

716.

42

As the victim's character and physical abilities were not at issue, this Court

finds Petitioner has demonstrated the instant claim's arguable merit.

b. Actual Prejudice

As the victim's character and physical abilities were not at issue, this Court

finds Petitioner has demonstrated the instant claim's arguable merit.

While this Court may agree with Petitioner that the instant claim has

arguable merit, Petitioner must also demonstrate actual prejudice resulted from

counsel's inadequate performance. See Pierce, 786 A.2d at 213. A petitioner

demonstrates prejudice where he proves that "there is a reasonable probability that,

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

been different." Commonwealth v. Spatz, 84A.3d 294, 315 (Pa. 2014) (quoting

Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012)). "To properly determine

whether prejudice resulted from the quality of counsel's representation, we must

focus on counsel's overall trial strategy and view his performance as a whole."

Hull, 982 A.2d at 1026 (quoting Weiss, 606 A.2d at 443). The Pennsylvania

Supreme Court has further explained the difference:

This standard is different from the harmless error

analysis that is typically applied when determining

whether the trial court erred in taking or failing to take

certain action. The harmless error standard, as set forth

by this Court in Commonwealth v. Story, states that

" [w]henever there is a 'reasonable possibility' that an

error 'might have contributed to the conviction,' the error

is not harmless." This standard, which places the burden

43

)

on the Commonwealth to show that the error did not

contribute to the verdict beyond a reasonable doubt, is a

lesser standard than the Pierce prejudice standard, which

requires the defendant to show that counsel's conduct had

an actual adverse effect on the outcome of the

proceedings. This distinction appropriately arises from

the difference between a direct attack on .error occurring

at trial and a collateral attack on the stewardship of

counsel. In a collateral attack, we first presume that

counsel is effective, and that not every error by counsel

can or will result in a constitutional violation. of a

defendant's Sixth Amendment right to counsel.

Spatz, 84 A.3d at 315 ( quoting Gribble, 863 A.2d at 4 72) (internal citations

omitted).

In this instance, Petitioner cites Rivers for its reference to the "atmosphere or

prejudice" that may be created by photographs of the victim while still alive.

(Petitioner's PCRA Brief, at 20-21). However, after finding that admission of the

photograph of the decedent prior to death was improper, the Rivers Court then

considered whether the error was harmless:

An error is harmless when the Commonwealth can

establish "that . the evidence of guilt was so

overwhelming, and the error ... so insignificant by

comparison, that the error was harmless beyond a

reasonable doubt." Story, 476 Pa. at 417, 383 A.2d at

169: In Story, the Commonwealth had introduced two

photographs of the victim, one of which depicted him

with his wife and their crippled daughter. The widow was

called as a witness to identify the photographs and she

went on at great length to describe for the jury how the

victim's death had devastated the lives of her and her

daughter.

44

In· the instant case the photograph was identified by the

decedent's daughter, who merely related when and where

the photograph was taken and verified that it was an

accurate depiction of her mother immediately prior to her

death. The testimony surrounding the photograph in this

case was limited. Further, the actual polaroid snapshot of

the victim does not portray her as particularly old or frail

. . .. Although admission of the photograph was clearly

improper and irrelevant, in light of the overwhelming

circumstantial evidence of the appellant's guilt, we

conclude that the error was harmless.

Id. At 716. Like Rivers, this Court finds that notwithstanding the photographs in

question, the Commonwealth presented substantial evidence establishing

Petitioner's guilt. (See generally Commonwealth v. Shauf, Opinion and Order,

April 13, 2015 (denying Petitioner's Post-Sentence Motion that alleged the jury

verdict was against the weight of the evidence)). Moreover, given the result

reached in Rivers-that admitting photographs of the victims while alive was

merely harmless error-in tandem with the higher burden imposed on a petitioner

in demonstrating actual prejudice, Petitioner fails to persuade this Court that

introduction of photographs of the victim while alive in the instant case actually

prejudiced Petitioner.

For the above noted reasons, Petitioner has failed to meet the third Pierce

prong. Accordingly, the instant claim is dismissed. ·

45

vi, Failure to obiect to victim-impact testimony during the guilt phase of

the trial.

In the instant case, Petitioner avers that Attorney Kope was ineffective as a

result of his failure to object to victim-impact testimony during the guilt phase of

the trial. (See Petitioner's PCRA Brief, at 21-22).

The Commonwealth issued the following line of questions from Juan Miguel

Herrera Marquez:

[Q]. He was your friend?

[A]. In December, it would have been a year we knew

each other that he came to live in the house.

[ Q]. How did you feel when you went to the bathroom

and saw him there?

[A]. I don't know. I didn't even know that he was in the

house. I thought he was working. I thought somebody

kill Arturo because Arturo was there in the house. When

I saw him, he used to tell me he had a little girl. And you

can just imagine.

(T.P. Trial, Day 1, December 8, 2014, at 130-31). The Commonwealth also

elicited the following testimony from Augustin Macias Marquez:

[Q]. Okay. Finally, Augustin, how long has you known

Hugo before he was killed?

[A]. Three years.

'[Q]. You were good friends?

[A]. Yes. We were very good friends.

46

[Q]. And is that Hugo onthe screen?

[A]. Yes.

[Q]. Did he have family that lived here in the United

States?

[A]. I didn't know any family here.

[Q]. Okay. Do you miss him?

[A]. Yes.·

[Q]. Thank you, that's all I have.

(T.P. Trial, Day 1, December 8, 2014, at 156).

a. Arguable Merit

As noted above, to establish a meritorious ineffectiveness claim, Petitioner

must first establish that her claim has arguable merit by showing that "the factual

statements are accurate and 'could establish cause for relief."' Barnett, 121 A.3d

at 540.

Here, Petitioner argues that trial counsel's assistance was rendered

ineffective by his failure to object to victim-impact testimony during the guilt

phase of the trial. (Petitioner's PCRA Brief, at 21-22). Petitioner cites

Commonwealthv. Jordan, 65 A.3d 318, 333 (Pa. 2013), for the proposition that

47

"victim-impact testimony during the guilt phase of a homicide trial is irrelevant

and inadmissible." (Petitioner's PCRA Brief, at 22).11

"As defined by our Sentencing Code, victim impact evidence is information

concerning the victim and the impact the victim's death has had on the family of

the victim." Commonwealth v. Carson, 913 A.2d 220, 237 (Pa. 2006) (citing 42

Pa.C.S. § 971 l(a)(2)). In both Commonwealth v. Freeman, 827 A.2d 385 (Pa.

2003), and Commonealth v. Rollins, 738 A.2d 435 (Pa. 1999), the Pennsylvania

Supreme Court considered the issue of victim impact testimony. In Freeman, the

Court considered testimony that victim was a "peaceful" woman and that she was

"nice" when she was in the witness's company; the Court reasoned:

[W]e cannot determine that the line of inquiry was

necessarily invalid, nor would we assume that an attorney

intends the worst possible interpretation of an event. In

any event, even assuming arguendo that this very brief,

non-specific testimony that, prior to her murder, [the

victim] was a "peaceful" woman, and that she was "nice"

when she was in [the witness's] company

constituted victim impact testimony, it was so fleeting

and general that it cannot be said that it rendered the jury

incapable of returning a fair and impartial sentencing

verdict.

Freeman, 827 A .. 2d at 414. In Rollins, the Court provided:

11

The Court notes that Petitioner cites "Commonwealth v. Jordan, 65 A.3d 318, 3 33 (Pa. 2013)

(citing Robinson, supra)". Notwithstanding the impropriety in the citation-using supra in a

case citation-and given the Court's own diligent review of the Petitioner's PCRA Brief, as well

as the Jordan Opinion, this Court is unable to ascertain to what "Robinson, supra" refers.

Therefore, the rationale provided above by this Court bears no reference to Robinson.

48

Appellant raises the cursory argument that victim impact

testimony was improperly admitted during the guilt phase

of his trial. This argument is so sketchily presented that

its contours are difficult to discern. Appellant apparently

is reasoning that [the witness]'s brief comment during the

guilt phase of trial that her son, who had witnessed the

crime, is now afraid of toy guns, constitutes victim

impact testimony. Even assuming arguendo that this

comment constituted victim impact testimony, it was so

fleeting that it cannot be said that it affected the outcome

of this matter; thus, Appellant has failed to establish that

he has been prejudiced.

Rollins, 738 A.2d at 447.

In the instant case, Petitioner has failed to demonstrate that the above noted

testimony constitutes victim impact testimony; the Court notes that while the

instant claim submitted by Petitioner is premised on the concept of victim impact

testimony, he has not articulated what victim impact testimony is, or why this

Court should be persuaded that the above noted testimony qualifies as such.

Therefore, like the Pennsylvania Supreme Court in both' Freeman and Rollins, this

Court is not persuaded that the instant claim has any arguable merit. Accordingly,

the instant IAC claim fails.

b. Reasonable Basis

Even were Petitioner able to demonstrate that the instant claim has arguable

merit, Petitioner must also demonstrate the second Pierce prong-that trial counsel

had no reasonable basis for his actions or lack thereof at trial.

49

Here, Petitioner argues that "there are numerous ways [trial counsel] could

have objected [to the testimony] without alienating the jury." (Petitioner's PCRA

Brief, at 22). However, Petitioner fails to identify any such way. Moreover,

Petitioner fails to provide any case law or other authority supporting his averments.

Furthermore, at the PCRA hearing, Attorney Kope was questioned regarding

his failure to object to the above noted testimony. Attorney Kope explained that:

I do remember the questioning by one of the victim's

friend, I think he was at the residence about, you know,

he thinks of his daughter, the victim's daughter or

something and it makes him sad or something to that

effect. But, again, going back to trial strategy, somebody

died here. People are going to be sad that somebody died

and friends, and roommates, and neighbors are going to

be sad and they're going to think about their children.

Again, our trial strategy is focusing on the fact that Mr.

Vamer did this, not [Petitioner]. And nor did [Petitioner]

have any idea that Mr. Varner was going to go to these r

extremes. And that's where we focused our trial strategy.

Again, to interrupt the flow of the trial and to draw all the

more attention to that issue when it's just really riot

significant enough to warrant an objection in my opinion.

(T .P. PCRA Hearing, at 95-96). As noted above, this Court must exercise great

deference when assessing counsel's performance. Perry, 128 A.3d at 1290. To

accept Petitioner's arguments would be to wholly disregard trial counsel's

explanations.

50

Consequently, Petitioner has failed to persuade this Court that there existed

no reasonable basis for trial counsel's failure to object to the testimony.

Accordingly, the instant claim is dismissed for failure to meet the second Pierce

prong.

c. Actual Prejudice

For the sake of completeness, we will address the final Pierce prong. As

noted previously, to show actual prejudice, a Petitioner must prove that "there is a

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

proceeding would have been different." Spotz, 84 A.3d at 315 (internal citations

omitted).

Here, Petitioner merely asserts that "[w]hile the admission of such testimony

can be deemed harmless in certain circumstances, trial counsel's failure to object to

it cannot be deemed harmless in this case." (Petitioner's PCRA Brief, at 22).

However, Petitioner fails to articulate how he was actually prejudiced by this

testimony. Moreover, Petitioner has failed to cite any authority by which this

Court would be persuaded that he was actually prejudiced as a result of the above

noted testimony. As noted above, "boilerplate allegations and bald assertions of

no reasonable basis and/or ensuing prejudice cannot satisfy a petitioner's burden to

prove that counsel was ineffective." Commonwealth v. Chmiel, 30 A.3d 1111,

1128 (Pa. 2011) (quoting Commonwealth v. Paddy, 15 A.3d 431, 443 (Pa. 2011)).

51

For the above noted reasons, Petitioner has failed to meet the third Pierce

prong. Accordingly, the instant IAC claim is dismissed.

vii. Failure to obied to testimony from multiple police detectives offering

a personal opinion as to the truthfulness and veracity of Petitioner's

statement.

In the instant case, Petitioner avers that Attorney Kope was ineffective as a

result of his failure to object to testimony from multiple police detective offering a

personal opinion as to the truthfulness and veracity of Petitioner's statement. (See

Petitioner's PCRA Brief, at 22-23). Petitioner cites the following instances from

Detective Mummert:

[Commonwealth]. During the interview, was he asked

whether he had been at 310 East King Street the evening

prior?

[Detective Mummert]. Yes, he was.

[Commonwealth]. What was his response?

[Detective Mummert]. Initialy, he denied any

information or knowledge or any involvement or of an

incident at 310 East King Street.

[Commonwealth]. Was that immediate?

[Detective Mummert]. From the very beginning of the

interview, correct.

[Commonwealth]. During the course of the interview,

was he generally forthcoming?

{Detective Mummert]. After about 10 or IS minutes

· once he was advised of the severity of the incident and

52

what we were dealing with, he started to disclose some

information.

[Commonwealth]. In general, can you generally describe .

his demeanor and behavior during the interview?

[Detective Mummert]. Excited, somewhat deceptive at

the beginning and throughout. And as detectives would

ask him things, he started to come up with ways to

explain what it was tat we were interpreting from the

evidence we and seen to that point.

[Attorney Kope]. Now, your response to one o the

questions asked by [the Commonwealth] is that you in·

your opinion, Mr. Shauf did not appear shocked at the

news of Hugo's death. Did I understand that correctly?

[Detective Mummert]. In my opinion?

[ Attorney Kope]. Yes.

[Detective Mummert]. He feigned being shocked, acted. ·

(T.P. Trial, Day 3, December 10, 2014, at 72, 159). Petitioner cites the following

instance from Detective Baker:

[Commonwealth]. As I said, we had an opportunity to

watch the interview [with Petitioner] yesterday. It

appears you were frustrated at the time. What was the

source of your frustration?

[Detective Baker]. I don't believe he was telling us the

truth when asked questions.

[Commonwealth].Okay. Did it appear to you at that time

as he was presented with more physical evidence that he

· had that he became a bit more forthcoming?

53

[Detective Baker]. Yes.

[Attorney Kope]. Would you categorize it that he

became more truthful once he realized the event of the

investigation or extent of what happened during the

investigation?

[Detective Baker]. I believe he changed his · story some.

I don't know if it was totally truthful.

[Attorney Kope]. If Mummert, Detective Mummert had

categorized Jason as becoming more truthful after he

learned the extent of what happened, would you disagree

with that?

[Detective Baker]. No. I would say he became more

truthful than what he was initially .

. [Commonwealth]. Attorney Kope asked you about what

you thought about the truthfulness of what Jason Shauf

told you. He said he never went upstairs. Do you recall

that?

[Detective Baker]. Yes.

[Commonwealth]. Based upon the physical evidence and

witness statements, did you believe that was truthful?

[Detective Baker]. No, I did not.

[Commonwealth]. He said he heard a bang. Back up

when he was first advised that someone had died,

describe his reaction to that.

[Detective Baker]. He animatedly said, Oh, my gosh.

54

[Commonwealth]. Did you believe that was a truthful

reaction?

[Detective Baker]. Didn't come across that way to me.

[Commonwealth]. How did it come across to you?

[Detective Baker]. Staged or acted.

(J.P. Trial, Day 4, December 11, 2014, at 43, 51, 54).

a. Ari:uable Merit

As noted above, to establish a meritorious ineffectiveness claim, Petitioner

must first establish that her claim has arguable merit by showing that "the factual

statements are accurate and 'could

. establish cause

.

for relief."' Barnett, . 121 A.3d

at 540 ..

Here, Petitioner avers that trial counsel was ineffective as a result of his

failure. to object to testimony offering a personal opinion as to the truthfulness and

veracity of Petitioner's statement. (Petitioner's PCRA Brief, at 22).

"Under Pennsylvania law, only evidence of a general reputation for

truthfulness in the community is admissible as character testimony."

Commonwealth v. Smith, 567 A.2d 1080, 1082 (Pa. Super. 1989). "Determinations

of credibility, however, are exclusively the province of the jury." Commonwealth

v. Gallagher, 547 A.2d 355, 357 (Pa. 1988).

Petitioner cites both Smith and Gallagher, avering:

55

Opinion evidence with regard to the credibility of

witnesses and statements is prohibited under

Pennsylvania law. Credibility is a matter left solely to

the finder of fact. Impermissible opinion testimony

regarding credibility infringes on [sic] duty of the finder

of fact to determine credibility and weigh the evidence.

(Petitioner's PCRA Brief, at 23 (internal citations omitted)).

Given the above noted testimony from both Detective Mummert and

Detective Baker, the Court is persuaded that both Detectives offered testimony

pertaining to the Petitioner's truthfulness. Accordingly, Petitioner has established

the instant claim's arguable merit, satisfying the first Pierce prong.

b. Actual Prejudice

To succeed on an IAC claim, a petitioner must demonstrate that he suffered

actual prejudice as a result of counsel's questioned behavior. As noted previously,

to show actual prejudice, a Petitioner must prove that "there is a reasonable

probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different." Spatz, 84 A.3d at 315 (internal citations

omitted).

Petitioner first cites Gallagher, for the proposition that testimony concerning

the credibility of witnesses infringes on the duty of the jury to determine credibility

and weigh the evidence. (Petitioner's PCRA Brief, at23). Petitioner also cites

. Smith, avering that "Pennsylvania appellate courts in the past have found that the

failure to object to improper testimony renders trial counsel ineffective and is

56

prejudicial to the. accused because it invades the jury's 'sacred domain.?'

(Petitioner's PCRA Brief, at 23).

However, while it is true that in both cases cited by Petitioner the

Pennsylvania appellate courts determined the defendant was prejudiced by the

questioned testimony, neither case created a per se rule of prejudice when such

testimony occurs. Moreover, the instant case is factually distinguished from both

Smith and Gallagher, where the challenged testimony was elicited from expert

witnesses whose testimony was 'offered purely for the purpose of rendering an

opinion as to truthfulness. See Smith, 567 A.2d at I 083 (providing that the expert

witness' testimony concerning the child's character for telling the truth usurped the

credibility determining function of the jury, and finding it improper for "an expert

witness, or any witness for that matter, takes the witness stand and under the guise

of 'rehabilitation' proceeds to testify as to the credibility of the child/witness.");

Gallagher, 547 A.2d at 356 (finding that an expert witness' testimony regarding

the victim's affliction with 'rape trauma syndrome' was inadmissible, and

reasoning that "the only purpose of the expert testimony was to enhance the

credibility of the victim.") (emphasis in original). In contrast, the testimony of the

detectives in the instant case focused on the investigative process; the testimony

concerning truthfulness consisted of fleeting statements in the context of an eight

57

(8) day trial. 12 Therefore, Petitioner has failed to persuade this Court that it should

deviate from the Pierce actual prejudice framework applied to IAC claims.

Furthermore, Petitioner has failed to articulate how he was actually

prejudiced by the testimony in question. As noted above, "boilerplate allegations

and bald assertions of no reasonable basis and/or ensuing prejudice cannot satisfy a

petitioner's burden toprove that counsel was ineffective." Commonwealth v.

Chmiel, 30 A.3d 1111, 1128 (Pa. 2011) (quoting Commonwealth v. Paddy, 15 A.3d

431, 443 (Pa. 2011)).

The factual disparity between the instant case and the two cases cited by

Petitioner, in tandem with Petitioner's failure to demonstrate actual prejudice,

leaves this Court to find that Petitioner has failed to meet the third Pierce prong.

Accordingly, the instant IAC claim is dismissed ..

viii. Failure to obiect to numerous hearsay statements throuehout the

trial, including an out-of-court identification of Petitioner by an

individual who did not identify Petitioner at.trial.

In the instant case, Petitioner avers that Attorney Kope was ineffective as a

result of his failure to object to numerous hearsay statements throughout the trial,

including an out-of-court identification of Petitioner by an individual who did not

identify Petitioner at trial. (See Petitioner's PCRA Brief, at 23-24).

12

The Court notes that Detective Mummert began his testimony prior to the brief recess taken by

this Court at 10:39 a.m. on December 10, 2014, and ran until the very end of that trial day,

concluding at 5:08 p.m.; Detective Baker's testimony ran for a significant portion of the morning

on Day 4, December 11, 2014, resulting in over twenty (20) transcript pages.

58

a. Arguable Merit

As noted above, to establish a meritorious ineffectiveness claim, Petitioner

must first establish that her claim has arguable merit by showing that "the factual

statements are accurate and 'could establish cause for relief?" Barnett, 121 A.3d

at 540.

Petitioner cites two specific instances where he avers trial counsel should

have objected. (Petitioner's PCRA Brief, at 23-24). First, Petitioner cites

testimony given by Detective Mummert concerning Erika Beard and Petitioner; the

following is an excerpt from Detective Mummer's testimony, including the

statement alleged to have been hearsay by Petitioner:

[Q]. So I want to take you back to the early stages of this

investigation, sometime in the morning of October 23rd.

You were led to Erika Beard directly by one of the

residents who was in the house at 310 East King Street,

correct?

[A]. That's correct.

[Q]. And she as interviewed-well, was she interviewd

by you that morning or someone else?

[A]. Myself and Detective Frisby spoke with her that

morning in her living room.

[Q]. And was she interviewed at a later date as well?

[A]. She was.

[Q]. And did she inform you that she did, in fact, know

an individual named El Gallo, correct?

59

[A]. She did.

[Q]. And that she was familiar with the fact that El Gallo

visited 310 East King Street, correct?

[A]. That's correct.

[Q]. Do you recall Erika giving you any information that

· she would have received through a black male about Mr.

Shaufhaving guns?

[A]. When I asked her ifshe knew Jason ever to possess

any guns, she stated that she did notwhich is what she

testified to this morning. � But during our conversation,

she referenced an incident that occurred some years ago

with an unidentified male subject who she stated was a

black male {sic] had told her some information

concerning Mr. Shaufand a weapon.

T.P. Trial, Day 3, December 10, 2014, at 114-16). In his brief, Petitioner refers

only to the end of this excerpt. (Petitioner's Brief, at 23-24) (referring to the

italicized portion of the above excerpt).

For the second instance, the Court notes that Petitioner fails to refer to a

particular statement he considers to be hearsay; rather, Petitioner vaguely cites a

two page expanse of testimony, and avers that: "Detective Mummert was asked

about an out-of-court identification of Petitioner made by one of the witnesses at

his preliminary hearing. The witness was not able to identify Petitioner at trial."

(Petitioner's PCRA Brief, at 24). The Court presumes Petitioner refers to the

following testimony:

60

[Q]. January 9th, 2013, you did attend that preliminary

hearing, correct?

[A]. Yes.

[Q]. And were you present in the courtroom when

Augustin on that day in court identified Mr. Shauf?

[A]. Yes.

(T.P. Trial, December 10, 2014, at 126-127). Petitioner does not offer argument,

or provide any case law or authority as to why the Court should consider this line

of questioning hearsay.

Under the Pennsylvania rules of Evidence, hearsay evidence is generally

inadmissible at trial unless it falls within a recognized exception. See Pa.R.E. 802;

Carson, 913 A.2d at 254 (Pa._2006). Hearsay is defined as an out of court statement

"offer[ed] in evidence to prove the truth of the matter asserted". See Pa.R.E.

80l(c). The Superior Court of Pennsylvania has explained:

"Out-of-court statements are traditionally excluded

because they lack the conventional indicia of reliability:

they are usually not made under oath or other

circumstances that impress the speaker with the

solemnity of his statements; the declarant's word is not

subject to cross-examination; and he is not available in

order that his demeanor and credibility may be assessed

by the jury." Commonwealth v. Bracero, 528 A.2d 936,

939 (Pa. 1987) (citations omitted). For these reasons, our

Supreme Court "has long adhered to the principle that the

use of hearsay evidence is to be discouraged, and [the]

policy against its use is generally recognized as

particularly strong." Heddings v. Steele, 514 Pa. 569, 526

A.2d 349, 351 (1987) (footnote omitted).

61

Commonwealth v. Thomas, 908 A.2d 351, 354 (Pa. Super. 2006). However, "it.is

well established that certain out-of-court statements offered to 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."

Chmiel, 889 A.2d at 532.

In Chmiel, the appellant argued that testimony offered by a trooper at trial

was hearsay evidence which therefore should not have been admitted at trial. (Id.

at 533). The Pennsylvania Supreme Court reasoned:

A review of the testimony reveals that Trooper Gaetano

referred to statements he had taken from Martin and

recounted the steps taken in the investigation and the

information that accumulated. The nature of the

testimony was limited to the course of conduct because it

provided the jury with a complete picture of the

investigation and did not go beyond what was reasonably

necessary to explain this conduct. We agree with the trial

court that the course-of-conduct testimony was

particularly appropriate because defense counsel had

attacked the adequacy of the police investigation.

Id. Ultimately, the Court held that the trooper's testimony regarding the course of

conduct of the investigation was· properly admitted at trial. Id. at 534.

Here, the Court is not persuaded that the statements made by Detective

Mummert were offered for the truth of the matter asserted. Like Chmiel, the

statements offered by Detective Mummert at trial were offered for the purpose of

explaining the investigation process. The similarity between the instant case and

62

Chmiel is further underscored by Petitioner's attempt at trial to challenge the

integrity of the police investigation. See supra IX. FAILURE TO OBJECT TO MULTIPLE

STATEMENTS IN THE DISTRICT ATTORNEY'S CLOSING ARGUMENT DESIGNED TO

APPEAL TO THE EMOTIONS OF THE JURY RATHER THAN SUGGESTING A DISPASSIONATE

REVIEW OF THE FACTS OF THE CASE.

Consequently, the statements were properly admitted at trial. Accordingly,

Petitioner has failed to demonstrate the first Pierce prong, and the instant IAC

claim is dismissed.

ix. Failure to object to multiple statements 'in the District Attorney's

closing argument designed to appeal to the emotions of the iury

rather than suggesting a dispassionate review of the facts of the case.

In the instant case, Petitioner avers that Attorney Kope was ineffective as a

result of his failure to object to multiple statements in the District Attorney's

closing argument designed to appeal to the emotions of the jury rather than

suggesting a dispassionate review of the facts of thecase. (See Petitioner's PCRA

Brief, at 24-25).

The following is a portion of the Commonwealth's closing argument that

Petitioner contends was improper:

There's three kinds of people in the world. In my

military experience, I've heard a lot of illustrations I

think this is useful today. There's three types of people.

First are sheep. It's about 98 percent of the population.

63

I don't know all of you personally. I suspect most, if not

all of you, are sheep. That's not a pejorative term at all.

It's someone who has a prosocial behavior, who Iives

their lives to benefit others, to stay peaceful, mind their

own business, do their job, support their friends and

family, keep their nose clean, don't have much

interaction with criminals and evil. Most people, about

98 percent.

There's lpercent who are wolves. They prey on the

sheep. That's either something that law enforcement has

to deal with or the military. There's 1 percent out there

whose jobs in their minds is to prey on the sheep,

someone weaker and not prepared to meet the challenge,

defend themselves.

Thankfully, there's another 1 percent. Sheepdogs. The

sheepdogs' job is to protect the sheep. They fight the

wolf. They're kind of similar sometimes-and they have

to be--in the sense the violence the wolf brings to the

sheep has to be met with violence to meet that, right?

The difference between the two is right here. It's

integrity, and it's morality.

I saw a picture once of a man, a Port Authority officer.

He was standing on ground Zero on September 11th,

2001. He's covered in dust. And he has three civilians

around him all covered in dust. You look at his face.

You can't find his face on the Internet. I was shown his

face in the context of this illustration. Abject fear. Not a

movie. It's not an actor. Look at the fear. It's abject

fear.

He's been up n the tower one, two, three times already.

Ground Zero, New York. September 11th. People he just

hustled out of the building. People jumping out on fire,

smoke everywhere. He's been up there three times in the

tower. Back down. Covered in dust.

64

That was after his third trip in the building. He went in a

fourth time. He didn't come out. He didn't do that

because he was tough, masculine, full of testosterone.

That officer did that out of love, out of love for the sheep,

for the flock, for the morality involved in that.

It is disgusting for these two, both of them, to denigrate

this community's police officers and say they planted

evidence so we could happen to pin a murder on

someone. It's disgusting.

If you want to believe cops planted evidence in this case

for some reason to nail these two for some vendetta they

may have for some reason, acquit them.

{T.P. Trial, Day 8, December 17, 2014, at 118-20).

a. Arguable Merit

As noted above, to establish a meritorious ineffectiveness claim, Petitioner

must first establish that her claim has arguable merit by showing that "the factual

statements are accurate and 'could establish cause for relief."' Barnett, 121 A.3d

at 540.

Here, Petitioner argues that the Commonwealth "on numerous occasions

referred to the [Petitioner] and his co-defendant in a derogatory fashion, called the

line of argument made by trial counsel 'disgusting' and improperly referred to the

September 11, 2001 terrorist attacks." (Petitioner's PCRA Brief, at 25). Petitioner

submits that the above actions were improper, rendering trial counsel's assistance

ineffective as a result of his failure to object. (Id.).

The Pennsylvania Supreme Court has provided, in pertinent part:

65

It is well established that a prosecutor must have

reasonable latitude 'in presenting a case to the jury, and

must be free to present arguments with "logical force and

vigor." Counsel may comment upon "fair deductions and

legitimate inferences from the evidence presented during

the testimony." Although a prosecutor may argue to the

jury that the evidence establishes the defendant's guilt,

arguments from personal opinion as to the guilt of the

accused are not proper. Moreover, not every remark by

the prosecutor, even assuming it is intemperate or

uncalled for, requires a new trial. A prosecutor's

comments do not amount to reversible error unless the

"unavoidable effect of such comments would be to

prejudice the jury, forming in their minds fixed bias and

hostility toward the defendant so that they could not

weigh the evidence objectively and render a true

verdict."

Commonwealth v. Chamberlain, 30 A.3d 381, 407-08 (Pa. 2011) (internal citations

omitted). "A prosecutor does not engage in misconduct when his statements are

based on the evidence or made with oratorical flair. Additionally, a prosecutor

must be permitted to respond to arguments made by the defense." Carson, 913

A.2d at 237.

Here, Petitioner has failed to persuade this Court that the Commonwealth's

closing argument went beyond passionate rhetoric. Rather, t�e rhetoric relating to

September 11 t\ in the context of the rest of the Commonwealth's closing

argument, was a discussion that referred to the significant job police officers

undertake when they are on the clock; this was the Commonwealth's response to

the Petitioner's trial strategy of insinuating that the police had planted evidence.

66

For the above noted reasons, Petitioner has failed to demonstrate the first

. Pierce prong. Accordingly, the instant IAC claim is dismissed.

b. Reasona hie Basis

Even were Petitioner able to demonstrate that the instant claim has arguable

merit, Petitioner must also demonstrate the second Pierce prong-that trial counsel

had no reasonable basis for his actions or lack thereof at trial.

Here, Petitioner asserts that trial counsel's failure to object to the

Commonwealth's closing argument renders trial counsel's assistance ineffective.

(Petitioner's PCRA Brief, at 24-25). Petitioner further submits that trial counsel

had no reasonable basis for failing to object to the Commonwealth's closing

argument. (Id.).

At the PCRA hearing, Attorney Kope was questioned regarding his failure to ·

object to the above noted statements made by the Commonwealth:

I feel like the feel the Judge in every trial makes an effort

to instruct the jury that their feelings about any particular

attorney, that any passionate argument that the attorney

makes, it's not the controlling issue. The controlling

issue is their recollection of the facts and their application

of the facts. And so, I as a standard rule do not object to

closing arguments or opening arguments. Man, many

attorneys, and good attorneys, and good district attorneys

will make passionate arguments, opening and closing and

I typically don't object to that. .

Because I do the same thing.

67

I do not and would not-I did not and would not object

to that argument made by Mr. Fogal or any other district

attorney in their closings or openings for the reasons I've

stated.

(T.P. PCRA Hearing, at 93-95). As noted above, this Court must exercise great

deference when assessing counsel's performance. Perry, 128 A.3d at 1290. To

accept Petitioner's arguments would be to wholly disregard trial counsel's

explanations.

Attorney Kope's testimony at the PCRA hearing indicates to this Court that

trial counsel had a reasonable basis for deciding not to object to the respective

character testimony. Accordingly, Petitioner's instant claim for ineffectiveness

fails the second Pierce prong.

II. Claims of Violations of Constitutional Violations

Also among the statutory factors from which a conviction or sentence may

have resulted creating an entitlement to post-conviction relief is a violation of the

Constitution of this Commonwealth or the Constitution or laws of the United

States. 42 Pa. C.S. §9543(a)(2)(i). Such a violation must have "so undermined the

truth-determining process that no reliable adjudication of guilt or innocence could

have taken place." Id.

In the instant case, Petitioner argues that Juror Number 2 was presumably

biased against him. (Petitioner's PCRA Brief, at 3-6). Petitioner further argues

68

that "[b]ecause Juror No. 2 was seated on the Petitioner's jury, his conviction was

the result of a violation of both the United States and Pennsylvania Constitutions."

(Id.).

As noted previously, prior to opening statements at trial, Juror Number 2

advised the Court that she remembered Petitioner because she and her husband had

hired and paid him to complete a roofing job which he never finished. (T.P. Trial,

December 8, 2014, at 4-9). Ultimately, Juror Number 2 responded that she

believed she would be able to serve impartially. (See T.P. Trial, day 1, at 4-9).

As discussed thoroughly above, Petitioner has failed to demonstrate that

Juror Number 2's excusal from trial was constitutionally required. See supra

SECTION I. FAILURE TO MOVE THAT JUROR NUMBER 2 BE STRICKEN FOR CAUSE.

Petitioner's recitation of his Sixth Amendment and Article, Section 9 rights is not

questioned by this Court. (See Petitioner's Brief, at 4). However, Petitioner has

failed to provide any authority or case law on the specific issue alleged by which

this Court could be guided; Petitioner himself even acknowledges that "[tjhere is

admittedly very little case law regarding this specific issue of a criminal defendant

on. an unrelated crime that is a crime of dishonesty being seated on that defendant's

jury". (Petitioner's PCRA Brief, at 4). Significantly, the Court notes that

Petitioner further fails to reconcile his argument with rationale provided by the

Pennsylvania Supreme Court in Koehler. Koehler, 36 A.3d at 143 ("The test for

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determining whether a prospective juror should be disqualified is whether he is

willing and .able to eliminate the influence of any scruples and render a verdict

according to the evidence, and this is to be determined on the basis of answers to

questions and demeanor.).

As noted above, the decision of whether to excuse a juror is within the

discretion of the trial court, and is subject to review only for an abuse of discretion.

Id. at 144. This Court finds that Petitioner has failed to demonstrate violation of

his constitutional rights warranting a new trial. Accordingly, the instant claim is

· dismissed.

CONCLUSION

After careful and diligent review, the Court finds that in each claim alleging

IAC, Petitioner has failed to meet the three pronged test provided in Pierce. This

Court also finds Petitioner has failed to.demonstrate a constitutional violation

warranting post-conviction relief. Pursuant to the attached Order, Petitioner's

PCRA Petition is DENIED.

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