Com. v. Thompson, W.

J-S41029-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

WILLIAM DARWIN THOMPSON :

:

Appellant : No. 111 WDA 2023

Appeal from the PCRA Order Entered December 21, 2022

In the Court of Common Pleas of Blair County Criminal Division at No(s):

CP-07-CR-0001230-2003

BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.: FILED: FEBRUARY 13, 2024

Appellant, William Darwin Thompson, appeals from the order entered

on December 21, 2022, dismissing his first petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

We briefly summarize the facts and procedural history of this case as

follows. “[F]ollowing a jury trial [on May 4, 2007, the jury] convicted

Appellant of two counts of second[-]degree (felony) murder [and one count

each of] robbery, aggravated assault, theft by unlawful taking and receiving

stolen property for his involvement in the robbery and brutal murder of

Raymond and Marjorie Bracken in their home on March 19, 2002.”

Commonwealth v. Thompson, 23 A.3d 586, at *1 (Pa. Super. 2010)

(unpublished memorandum). On June 26, 2007, the trial court imposed two

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* Former Justice specially assigned to the Superior Court.

J-S41029-23

consecutive terms of life imprisonment for the two counts of second-degree

murder with an additional consecutive term of 20 to 40 years of incarceration

for robbery. We affirmed Appellant’s judgment of sentence in an unpublished

memorandum on December 17, 2010. Id. On September 14, 2011, our

Supreme Court denied further review. See Commonwealth v. Thompson,

29 A.3d 797 (Pa. 2011). On October 18, 2011, Appellant filed a pro se PCRA

petition. On October 31, 2011, the PCRA court appointed counsel to represent

Appellant. Following the appointment of new counsel and the filing of various

amended PCRA petitions, the PCRA court held an evidentiary hearing on May

29, 2018. In an opinion and order entered on December 21, 2022, the PCRA

court denied relief and this timely appeal resulted.1

On appeal, Appellant presents the following issues2 for our review:

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1 Hiram A. Carpenter, III, the PCRA court judge who authored the opinion

and order denying relief on Appellant’s claims for collateral relief, has now

retired. On January 18, 2023, Appellant filed a timely notice of appeal.

Thereafter, we received a letter from the Blair County Court of Common Pleas

President Judge Elizabeth A. Doyle notifying this Court that the case was now

reassigned to her and she intended to rely on Judge Carpenter’s December

21, 2022 opinion instead of filing an opinion pursuant to Pa.R.A.P. 1925(a).

As such, the PCRA court did not order Appellant to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

2 We note that Appellant originally presented two additional issues to the

PCRA court that were later withdrawn. See PCRA Court Opinion, 12/21/2022,

at 4 and 16. Thus, we conclude that Appellant abandoned his ineffective

assistance of counsel claims pertaining to Pa.R.Crim.P. 600 and chain of

custody and find them waived. See Commonwealth v. Johnson, 985 A.2d

915, 924 (Pa. 2009) (citation omitted) (“[W]here an appellate brief fails to

provide any discussion of a claim with citation to relevant authority or fails to

develop the issue in any other meaningful fashion capable of review, that claim

(Footnote Continued Next Page)

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A. Whether trial counsel was ineffective for failing to object [or]

otherwise challenge the Commonwealth’s failure to disclose the

plea offer made to witness Stephen Espenlaub?

B. Whether trial counsel was ineffective for failing to properly

challenge the credibility of witness Nicole Allhouse?

C. Whether trial counsel was ineffective for failing to properly

challenge the autopsy report?

D. Whether trial counsel was ineffective for failing to be capital

qualified at the time of trial?

E. Whether trial counsel was ineffective for failing to properly

challenge scientific evidence offered against [Appellant]?

F. Whether trial counsel was ineffective for failing to properly

challenge [or] object to the admission of unreliable DNA

evidence?

G. Whether trial counsel was ineffective for failing to tell

[Appellant] he could be convicted as an accomplice?

H. Whether trial counsel was ineffective for failing to properly

cross[-]examine Commonwealth witnesses [to elicit] the

Commonwealth’s efforts to coerce them into testifying falsely,

and failing to preserve it for appellate review?

I. Whether trial counsel was ineffective for failing to object to the

admission of evidence of a bloody shoeprint, and failing to

preserve the issue for appellate review?

J. Whether trial counsel was ineffective for failing to properly

cross[-]examine an expert regarding tool marks?

K. Whether trial counsel was ineffective for failing to call [Billie Jo

Tashe] as a witness[?]

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is waived.”); see also Commonwealth v. Heggins, 809 A.2d 908, 912 (Pa.

Super. 2002) (an issue identified on appeal but not developed in the

appellant's brief is abandoned and, therefore, waived).

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Appellant’s Brief at 4-5.

We adhere to the following legal precepts:

Our standard of review of the denial of a PCRA petition is limited

to examining whether the evidence of record supports the court's

determination and whether its decision is free of legal error. This

Court grants great deference to the factual findings of the PCRA

court if the record contains any support for those findings. We

review the court's legal conclusions de novo.

* * *

Counsel is presumed to have rendered effective assistance.

To establish a claim of ineffective assistance of counsel, a

defendant must show, by a preponderance of the evidence,

ineffective assistance of counsel which, in the circumstances of

the particular case, so undermined the truth-determining process

that no reliable adjudication of guilt or innocence could have taken

place. The burden is on the defendant to prove all three of the

following prongs: (1) the underlying claim is of arguable merit;

(2) that counsel had no reasonable strategic basis for his or her

action or inaction; and (3) but for the errors and omissions of

counsel, there is a reasonable probability that the outcome of the

proceedings would have been different.

Commonwealth v. Washington, 269 A.3d 1255, 1262–1263, appeal

denied, 283 A.3d 1249 (Pa. 2022) (internal citations, quotations and brackets

omitted).

Based upon review of the certified record, the parties' appellate briefs,

the PCRA court's opinion,3 and applicable law, we find that the PCRA court

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3 Here, the PCRA court determined that trial counsel was effective. Regarding

Appellant’s claims pertaining to trial witnesses, the PCRA court first

determined that Stephen Espenlaub testified at trial that “his plea deal [on

unrelated charges] was sweeter than it actually was [and, therefore,] counsel

could not possibly help his credibility with the jury” and Espenlaub’s testimony

(Footnote Continued Next Page)

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thoroughly and accurately addressed the merits of Appellant’s issues in its

opinion. Consequently, we affirm on the basis of the PCRA court opinion and

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actually “provided more reason [for him] to lie[.]” PCRA Court Opinion,

12/21/2022, at 6. Regarding trial witness, Nicole Allhouse, the PCRA court

first noted that she “was an important witness at trial and that her credibility

was very much at issue” but determined that trial counsel thoroughly

cross-examined her and, “unequivocally” concluded that “no one hearing her

testimony [] could fail to conclude that [Allhouse] had repeatedly been an

unabashed liar [] on numerous occasions leading up to trial.” Id. at 10

(emphasis omitted). Regarding Billie Jo Tashe, the PCRA court noted that

she was Appellant’s “girlfriend at the time of these homicides” but “clearly

made herself unavailable; was clearly unwilling to cooperate as demonstrated

by her disappearance; and offered the defense no testimony which would have

been particularly helpful at trial.” Id. at 22. Moreover, the PCRA court was

unable to find anything “in the record where there [wa]s any showing or even

suggestion that the Commonwealth attempted to coerce any witness [or] that

suggested anyone testified falsely.” Id. at 19. The PCRA court also

determined that Appellant failed to plead and prove that trial counsel was not

capital qualified at the time of trial and, instead, only offered evidence that

trial counsel “was not qualified (for a period of time) in 2012” or “six or seven

years after this trial.” Id. at 11-12 (emphasis in original). The PCRA court

further found that there was no merit to claims that trial counsel failed to

properly challenge the admission of evidence, including the autopsy report,

DNA and other scientific evidence, and expert testimony regarding a bloody

footprint and tool marks. The PCRA court recognized that challenging the

autopsy report was meritless because “the cause of death for both [] victims

was abundantly clear from the photos of the scene – namely their throats

were cut and [one victim] was also stabbed numerous times.” Id. at 11.

Moreover, the PCRA court noted that the DNA and scientific evidence entered

into evidence at trial “was inconclusive and was the best evidence available to

the defense to support a reasonable doubt.” Id. at 13. Further, the PCRA

court recognized that “no matter the strength (or weakness) of the DNA

evidence, it was going to be admissible in this (or any) trial.” Id. at 16.

Finally, because Appellant always “denied any involvement” in the crimes and

both the trial court and this Court on direct appeal concluded that a jury

instruction regarding accomplice liability was appropriate and necessary in this

case, the PCRA court determined that Appellant did not show how he was

prejudiced or “how the case could have been tried differently.” Id. at 18.

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adopt it as our own. The parties are instructed to attach a copy of the PCRA

court's December 21, 2022 opinion to all future filings regarding this appeal.

Order affirmed.

FILED: 2/13/2024

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