Moss v. DeBlaso et al

Filing 31

MEMORANDUM re Petition for Writ of Habeas Corpus 11 filed by Craig Moss (Order to follow as separate docket entry) Signed by Honorable Sylvia H. Rambo on 7/14/21. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CRAIG MOSS,
Petitioner

:
:
:
:
:
:
:
:

v.
SUPERINTENDENT
DEBALSO, et al.,
Respondents

No. 1:19-cv-106
(Judge Rambo)

MEMORANDUM
Presently before the Court is pro se Petitioner Craig Moss (“Petitioner”)’s
amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc.
No. 11.) Respondents filed a response addressing the merits of the § 2254 petition
on June 23, 2021. (Doc. No. 30.) Petitioner’s § 2254 petition is, therefore, ripe for
disposition.
I.

BACKGROUND
A.

Procedural History

On January 15, 2017, in York County, Pennsylvania, Petitioner was arrested
and charged with: (1) terroristic threats with the intent to terrorize another; (2)
possession of an instrument of crime; (3) simple assault; (4) public drunkenness; (5)
disorderly conduct engaging in fighting; and (6) three (3) counts of harassment. See
Commonwealth v. Moss, Docket No. CP-67-CR-0001471-2017 (York Cty. C.C.P.).
A mistrial was declared on March 8, 2018. Id. Following retrial on March 18, 2018,

Petitioner was found guilty of possession of an instrument of crime, simple assault,
and two (2) counts of harassment. Id. The Superior Court of Pennsylvania set forth
the background of the case as follows:
On March 16, 2017, the Commonwealth charged [Petitioner] by way of
a criminal information with terroristic threats, [possession of an
instrument of crime], simple assault, public drunkenness, disorderly
conduct, and three counts of harassment. The charges arose out of an
incident that took place on January 14-15, 2017, at Kiro’s bar. At trial,
although there were minor inconsistencies, the Commonwealth
witnesses testified consistently about the events of the evening.
That night, Breanne Spangler, her fiancé Daniel Leiphart, and a group
of their friends, who included Brittany Graves, Bridget James, and
Emily and Devon Wallick, were at Kiro’s to celebrate its last night in
business. [Petitioner] and his wife, Tara Moss, were also present but
were not part of Spangler’s group.
At some point during the event, [Petitioner] and Tara Moss left.
[Petitioner] returned alone a few minutes later and began to behave in
an increasingly belligerent and drunken fashion. He started to accost
and grope some of the women in Spangler’s group, ignoring their
requests to stop.
When Leiphart became aware of the problem, he and [Petitioner]
engaged in a verbal dispute, which ended when Leiphart punched
[Petitioner] on the chin. The bar’s owner, Ronald Weagley, now aware
of the complaints about [Petitioner’s] behavior, escorted him off the
premises.
The group of friends remained in the bar. Immediately prior to closing,
at approximately 2:00 a.m., Tara Moss telephoned Weagley and
informed him [Petitioner] had armed himself with knives and was
returning to the bar. Weagley locked the front door of the bar, called
911 and told the patrons not to leave.
Despite this, Leiphart and several others exited the bar through the side
emergency exit. Although friends kept Leiphart and [Petitioner]
2

separated, a quarrel ensued in the parking lot next to Kiro’s and
continued into a nearby alley.
[Petitioner] brandished a knife, swinging it from side to side while
taunting the unarmed Leiphart. Spangler inserted herself between
[Petitioner] and Leiphart, grabbed the knife-blade, and attempted to
deescalate the conflict. [Petitioner] repeatedly told her he did not want
to hurt her but wanted to hurt Leiphart. Spangler pushed against
[Petitioner] backing him away from Leiphart while [Petitioner]
continued to swing the knife and state that he wanted to hurt Leiphart.
Other bar patrons backed Leiphart away from [Petitioner]. [Petitioner]
did not leave the scene until he heard police sirens, at which point he
allowed Spangler to grab the knife. When police apprehended the
fleeing [Petitioner], they heard one knife fall off him, which they
recovered under his body, and found two other knives on his person.
The police located several other knives in the area where the altercation
occurred.
Commonwealth v. Moss, No. 1533 MDA 2018, 2020 WL 618580, at *1-2 (Pa. Super.
Ct. Feb. 10, 2010). On April 9, 2018, Petitioner was sentenced to one (1) year minus
one (1) day to two (2) years minus two (2) days of incarceration, with credit for time
served. Moss, Docket No. CP-67-CR-0001471-2017. Petitioner subsequently filed
a timely post-sentence motion, which the trial court denied. Id. On September 12,
2018, Petitioner filed his notice of appeal to the Superior Court of Pennsylvania. Id.
On January 17, 2019, while his direct appeal was still pending, Petitioner filed
his initial § 2254 petition (Doc. No. 1) and a motion for a temporary stay and
abeyance (Doc. No. 2) with this Court. In a Report and Recommendation entered
on February 1, 2019, Magistrate Judge Carlson recommended that Petitioner’s
motion for a stay and abeyance be denied and that his § 2254 petition be dismissed
3

without prejudice to Petitioner’s right to refile his petition once he exhausted his
state court remedies. (Doc. No. 6.) Petitioner filed timely objections, asserting that
he met the three (3) requirements for a stay and abeyance set forth in Rhines v.
Weber, 544 U.S. 269 (2009). (Doc. No. 7.) Petitioner argued that if the Court did
not stay the action, he would “never be able to file a habeas corpus to challenge the
violations of his federal [constitutional] rights as he is no longer in custody for this
conviction.” (Id. at 2.) In a Memorandum and Order entered on March 21, 2019,
the

Court

sustained

Petitioner’s

objections,

rejected

the

Report

and

Recommendation, granted Petitioner’s motion for a stay and abeyance, and stayed
the above-captioned case pending Petitioner’s exhaustion of his available state court
remedies. (Doc. Nos. 8, 9.) The Court directed Petitioner to notify the Court of such
within thirty (30) days from the time of final denial and request that the stay be
vacated. (Doc. No. 9.)
On February 10, 2020, the Superior Court of Pennsylvania affirmed
Petitioner’s judgment of sentence. See Moss, 2020 WL 618580, at *1. On February
19, 2020, Petitioner filed a motion to proceed (Doc. No. 10) and an amended § 2254
petition (Doc. No. 11). Those filings indicated that Petitioner was no longer
incarcerated. In an Order dated February 25, 2020, the Court granted Petitioner’s
motion to proceed and lifted the stay. (Doc. No. 12.) In an administrative Order
dated that same day, the Court advised Petitioner of the limitations on filing future
4

§ 2254 petitions and directed him to complete the enclosed Notice of Election and
return it to the Court within forty-five (45) days. (Doc. No. 13.) Petitioner did not
return the Notice of Election. Accordingly, on April 13, 2020, the Court directed
Respondents to file an answer, motion, or other response to the amended § 2254
petition within twenty (20) days. (Doc. No. 14.)
On April 23, 2020, Respondents filed a motion to dismiss for lack of
jurisdiction or, in the alternative, as moot. (Doc. No. 16.) Respondents asserted that
the Court lacks jurisdiction because Petitioner’s York County sentence expired on
November 11, 2018, and, therefore, he was not in custody for purposes of that
conviction when he filed his initial § 2254 petition. (Id. at 2-3.) In support,
Respondents attached a copy of a York County Pre-Parole Investigation and Order
indicating that Petitioner received 512 days of credit toward his sentence and that
the maximum date of his sentence was November 11, 2018. (Doc. No. 16-1 at 1.)
Respondents noted that Petitioner “was in custody due to his state parole violation
which resulted from his conviction in the instant case at the time his [original § 2254
petition] was filed.” (Doc. No. 16 at 3.) They asserted, however, that “even if this
Court were to liberally construe [Petitioner’s] Petition as an attack on his
subsequently received parole revocation, such challenge was rendered moot upon
[Petitioner’s] completion of the parole violation sentence and release from
incarceration.” (Id. at 3-4.) Respondents also filed a motion “to temporarily stay
5

the deadline to file a full and complete response to the merits of [Petitioner’s]
Petition” pending resolution of their motion to dismiss. (Doc. No. 17.) Petitioner
did not file a response to Respondents’ motions. Accordingly, in a Memorandum
and Order dated May 18, 2020, the Court granted Respondents’ motion to dismiss
and dismissed Petitioner’s original § 2254 petition and amended § 2254 petition for
lack of jurisdiction. (Doc. Nos. 18, 19.)
On January 21, 2021, Petitioner filed a motion for relief pursuant to Rule 60(b)
of the Federal Rules of Civil Procedure. (Doc. No. 20.) Petitioner asserted that he
was entitled to relief because his York County sentence expired on January 13, 2019
and Respondents erroneously provided a document indicating otherwise to the
Court. (Id. at 3-6.) Petitioner asked that the Court reinstate his § 2254 petition,
sanction Respondents, and forward the matter to the Commonwealth’s disciplinary
board. (Id. at 6.) In an Order dated that same day, the Court directed Respondents
to file a response to the Rule 60(b) motion. (Doc. No. 23.) After receiving an
extension of time (Doc. Nos. 24, 25), Respondents filed their response on April 5,
2021, agreeing that Petitioner had been in custody on the challenged sentence when
he filed his initial § 2254 petition (Doc. No. 26). In an Order dated April 8, 2021,
the Court granted Petitioner’s motion to the extent he sought relief pursuant to Rule
60(b)(1). (Doc. No. 27.) The Court vacated its May 18, 2020 Memorandum and
Order dismissing Petitioner’s § 2254 petitions for lack of jurisdiction and directed
6

Respondents to file a response addressing the merits of Petitioner’s amended § 2254
petition. (Id.)
B.

Habeas Claims Presented

Petitioner raises the following claims for relief in his amended § 2254 petition:
1. The Commonwealth failed to disprove Petitioner’s affirmative defense
of self-defense;
2. The trial court’s decision not to grant Petitioner’s motion for direct
acquittal due to insufficiency of the evidence was contrary to Jackson
v. Virginia, 443 U.S. 307 (1979);
3. The Commonwealth deprived Petitioner of his Fifth, Sixth, and
Fourteenth Amendment rights when it used evidence at trial that was
not stated in the indictment or bill of particulars to gain a conviction;
4. The trial court deprived Petitioner of his Sixth and Fourteenth
Amendment right to self-representation;
5. Petitioner was constructively deprived of his Sixth Amendment right to
effective cross-examination;
6. Petitioner was constructively deprived of his right to a fair trial when
the Commonwealth suppressed then destroyed requested video/audio
evidence;
7. The Commonwealth violated Brady v. Maryland, 373 U.S. 83 (1963),
when it knowingly withheld favorable requested evidence;
8. The trial court’s decision to deny Petitioner’s motion for
neurological/head trauma expert was contrary to both Clark v. Arizona,
548 U.S. 735 (2006), and McWilliams v. Dunn, 582 U.S. __, 137 S. Ct.
1790 (2017);
9. The trial court erred when it denied Petitioner’s motion to dismiss for a
violation of his Sixth Amendment right to a speedy trial; and
7

10.Petitioner was deprived of his Sixth Amendment right to counsel and
the trial court/state law holding that Petitioner could not raise this claim
on direct appeal constitutes cause to excuse the exhaustion/procedural
default requirement.
(Doc. No. 11 at 4-5.)
II.

STANDARD OF REVIEW
Habeas corpus is an “‘extraordinary remedy’ reserved for defendants who

were ‘grievously wronged’ by the criminal proceedings.” See Dunn v. Colleran, 247
F.3d 450, 468 (3d Cir. 2001) (quoting Calderon v. Coleman, 525 U.S. 414, 146
(1998)). The exercise of restraint by a federal court in reviewing and granting habeas
relief is appropriate due to considerations of comity and federalism. See Engle v.
Isaac, 456 U.S. 107, 128 (1982). “The States possess primary authority for defining
and enforcing the criminal law.

In criminal trials they also hold the initial

responsibility for vindicating constitutional rights. Federal intrusions into state
criminal trials frustrate both the States’ sovereign power and their good-faith
attempts to honor constitutional law.” Id. States also have a recognized interest in
the finality of convictions that have survived direct review within the state court
system. See Brecht v. Abrahamson, 507 U.S. 619, 620 (1993).
A district court may entertain an application for a writ of habeas corpus filed
by a person in state custody “only on the ground that he is in custody in violation of
the Constitution or laws of the United States.” 28 U.S.C. § 2254(a). If a claim

8

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

DISCUSSION
A.

Exhaustion and Procedural Default

The Court must first determine whether Petitioner’s grounds for relief
presented in his § 2254 petition have been exhausted in the state courts and, if not,
whether circumstances exist to excuse Petitioner’s procedural default of his claims.
Respondents maintain that Grounds Seven and Ten are procedurally defaulted.
(Doc. No. 30 at 22-23.)
Absent unusual circumstances, a federal court should not entertain a petition
for writ of habeas corpus unless the petitioner has satisfied the exhaustion
requirement articulated in 28 U.S.C. § 2254(b). Under § 2254(c), a petitioner will
not be deemed to have exhausted his available state remedies if he had the right
under the law of the state to raise, by any available procedure, the question presented.
See O’Sullivan v. Boerckel, 526 U.S. 838 (1999). A petitioner may exhaust a federal
claim either by raising it on direct appeal or presenting it in post-conviction PCRA
9

proceedings. See id. at 845. In addition, a claim is exhausted when it has been
“fairly presented” to the state court. See Picard v. Connor, 404 U.S. 270, 275 (1971).
To that end, the federal habeas claim “must be the substantial equivalent of that
presented to the state courts.” See Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir.
1997). The petition must do so “in a manner that puts [the respondents] on notice
that a federal claim is being asserted.” See Bronshtein v. Horn, 404 F.3d 700, 725
(3d Cir. 2005). “The Supreme Court has instructed that a claim is not ‘fairly
presented’ if the state court ‘must read beyond a petition or brief . . . in order to find
material’ that indicates the presence of a federal claim.” Collins v. Sec’y of Pa. Dep’t
of Corr., 742 F.3d 528, 542 (3d Cir. 2014) (quoting Baldwin v. Reese, 541 U.S. 27,
32 (2004)). Moreover, a habeas corpus petitioner has the burden of proving the
exhaustion of all available state remedies. See 28 U.S.C. § 2254. Overall, the
exhaustion requirement advances the goals of comity and federalism while reducing
“piecemeal litigation.” See Duncan v. Walker, 533 U.S. 167, 180 (2001).
“When a claim is not exhausted because it has not been ‘fairly presented’ to
the state courts, but state procedural rules bar the applicant from seeking further
relief in state courts, the exhaustion requirement is satisfied because there is an
absence of available State corrective process.” McCandless v. Vaughn, 172 F.3d
255, 261 (3d Cir. 1999). Claims deemed exhausted because of a state procedural bar
are considered to be procedurally defaulted. See, e.g., Lines v. Larkins, 208 F.3d
10

153, 159 (3d Cir. 2000). The district court then analyzes the claims under the
procedural default doctrine. See id. The purpose of this rule is to prevent habeas
petitioners from avoiding the exhaustion doctrine by defaulting their claims in state
court. See Coleman v. Thompson, 501 U.S. 722, 732 (1991). In Cone v. Bell, 556
U.S. 449 (2009), the United States Supreme Court explained:
It is well established that federal courts will not review questions of
federal law presented in a habeas petition when the state court’s
decision rests upon a state law ground that is independent of the federal
question and adequate to support the judgment. In the context of federal
habeas proceedings, the independent and adequate state ground
doctrine is designed to ensure that the State’s interest in correcting their
own mistakes is respected in all federal habeas cases. When a petitioner
fails to properly raise his federal claims in state court, he deprives the
State of an opportunity to address those claims in the first instance and
frustrates the State’s ability to honor his constitutional rights.
Therefore, consistent with the longstanding requirement that habeas
petitioners must exhaust available state remedies before seeking relief
in federal court, we have held that when a petitioner fails to raise his
federal claims in compliance with relevant state procedural rules, the
state court’s refusal to adjudicate the claim ordinarily qualifies as an
independent and adequate state ground for denying federal review.
Id. at 465 (internal quotations and citations omitted).
However, habeas corpus review is not barred in every instance in which a state
court invokes a procedural rule to preclude its review of the federal claims asserted
by a state prisoner. A state procedural rule can preclude federal habeas corpus
review “only when the state rule is ‘independent of the federal question [presented]
and adequate to support the judgment.’” See Leyva v. Williams, 504 F.3d 357, 365
(3d Cir. 2007) (citing Nara v. Frank, 488 F.3d 187, 199 (3d Cir. 2007)). The
11

requirements of independence and adequacy are distinct.

See id.

A rule is

“independent” if it is not dependent on any federal constitutional question, but “[a]
state procedural ground will not bar federal habeas relief if the state law ground is
‘so interwoven with federal law’ that it cannot be said to be independent of the merits
of a petitioner’s federal claims.” See Johnson v. Pinchak, 392 F.3d 551, 557 (3d Cir.
2004). A rule is “adequate” if it was “firmly established, readily ascertainable, and
regularly followed at the time of the purported default.” See Levya, 504 F.3d at 366
(quoting Szuchon v. Lehman, 273 F.3d 299, 372 (3d Cir. 2001)).
A petitioner whose constitutional claims have not been addressed on the
merits due to procedural default can overcome the default, thereby allowing federal
court review, if the petitioner can demonstrate either: (1) “cause” for the default and
“actual prejudice” as a result of the alleged violation of federal law; or (2) that the
failure to consider the claims will result in a “fundamental miscarriage of justice.”
See Coleman, 501 U.S. at 750. In order to show “cause and prejudice” sufficient to
overcome a state court default, a petitioner must demonstrate the “cause” for his
default and “prejudice” attributable thereto. See Werts v. Vaughn, 228 F.3d 178, 192
(3d Cir. 2000) (citing Harris v. Reed, 489 U.S. 255 (1989)). “[T]he existence of
cause for a procedural default must ordinarily turn on whether the prisoner can show
that some objective factor external to the defense impeded counsel’s efforts to
comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488
12

(1986). Under the “prejudice prong,” a petitioner has the burden of showing “not
merely that the errors at his trial created a possibility of prejudice, but that they
worked to his actual and substantial disadvantage, infecting his entire trial with error
of constitutional dimensions.” See United States v. Frady, 456 U.S. 152, 170 (1982);
see also Holland v. Horn, 519 F.3d 107, 112 (3d Cir. 2008).
To show a “fundamental miscarriage of justice,” a petitioner must establish
that “a constitutional violation has probably resulted in the conviction of one who is
actually innocent.” See Schlup v. Delo, 513 U.S. 298, 326 (1995). Demonstrating
actual innocence requires a stronger showing than that needed to establish prejudice.
See id. In Goldblum v. Klem, 510 F.3d 204 (3d Cir. 2007), the United States Court
of Appeals for the Third Circuit explained the applicable two-step inquiry as follows.
First, a “court must decide ‘whether the petitioner has presented new reliable
evidence . . . not presented at trial,’” and second, if a petitioner “puts forth new
evidence not considered by the jury, a court asks ‘whether it is more likely than not
that no reasonable juror would have convicted him in light of the new evidence.’”
See id. at 225 (citing Hummard v. Pinchak, 378 F.3d 333, 340 (3d Cir. 2004)). If a
petitioner can meet this standard by establishing “cause and prejudice” or a
“fundamental miscarriage of justice,” his default will be excused, and the Court may
review the merits of the claim presented. See id.

13

In Ground Seven, Petitioner asserts that the Commonwealth violated Brady
by failing to disclose favorable discovery in the form of Officer Miller’s
supplemental narrative. (Doc. No. 11 at 16-17.) Petitioner avers that he did not
learn of the existence of this document until he received discovery in the civil matter
he filed in Moss v. Miller, 1:18-cv-2122 (M.D. Pa.). (Id. at 16.) Respondents assert
that Ground Seven is not exhausted because Petitioner “neglected to raise this issue
on appeal or collateral review.” (Doc. No. 30.) The record, however, reflects that
Petitioner did not file an application for a new trial based on after-discovered
evidence with the Superior Court, but the Superior Court denied it without prejudice
to his right to raise it in a “collateral petition.” Moss, 2020 WL 618580, at *1 n.3.
In Ground Ten, Petitioner asserts that counsel was ineffective in several ways.
(Doc. No. 11 at 25-44.) Petitioner raised some of these on direct appeal; others he
raises for the first time in his § 2254 petition. Respondents maintain that such claims
are waived because Petitioner failed to raise them on collateral review. (Doc. No.
30 at 54-60.) Upon review of the record, the Court agrees with Respondents that
Petitioner never raised the following ineffective assistance claims before the state
courts: (1) constructive denial of assistance of counsel by his overly long period of
detention; (2) counsel’s failure to obtain a medical expert; (3) counsel unreasonably
advising him against testifying; (4) counsel’s failure to object to inculpatory
testimony provided by his spouse; and (5) failure to request that the judge recuse
14

himself. (Id. at 59-60.) Consequently, because these claims are procedurally
defaulted, the Court can entertain the merits only if Petitioner demonstrates cause
and prejudice or a fundamental miscarriage of justice. Petitioner, however, advances
no compelling argument to establish that cause for the default exists or that a
fundamental miscarriage of justice will occur if the Court does not consider these
arguments. See Coleman, 501 U.S. at 750.
As noted supra, Respondents assert that Ground Seven and the remaining
ineffective assistance arguments raised in Ground Ten are unexhausted because
Petitioner did not raise them on collateral review. Petitioner, however, asserts that
his sentence has become final and he cannot now litigate these claims. (Doc. No. 11
at 25.)

While the trial court addressed the merits of Petitioner’s ineffective

assistance claims in its Rule 1925(a) opinion, the Superior Court concluded that such
claims were premature and must await collateral review, noting that none of the three
recognized exceptions to that general rule applied. Moss, 2020 WL 618580, at *10
& nn.10-11.)
One of the three exceptions to the general rule in Pennsylvania that ineffective
assistance claims must be raised in a PCRA petition is for “claims challenging trial
counsel’s performance where the defendant is statutorily precluded from obtaining
PCRA review.” Commonwealth v. Delgros, 183 A.3d 352, 361 (Pa. 2018). As the
Court previously noted in this matter, under Pennsylvania law, PCRA relief only
15

extends to those “currently serving a sentence of imprisonment, probation or parole
for the crime” challenged. 42 Pa. C.S.A. § 9543(a)(1)(i); see also Commonwealth
v. O’Berg, 880 A.2d 597, 599 (Pa. 2005). PCRA relief is unavailable to an individual
who completes his sentence, no matter the collateral consequences of that sentence.
Commonwealth v. Hart, 911 A.2d 939, 942 (Pa. Super. Ct. 2006). Petitioner
previously maintained that the sentence he now challenges expired on January 14,
2019, rendering him ineligible to file a PCRA petition. (Doc. No. 8 at 5.) Relying
on that reasoning, the Court previously stayed proceedings in this matter pending
the conclusion of Petitioner’s direct appeal.
Given this, the Court is not persuaded by Respondents’ argument that
Petitioner failed to exhaust Ground Seven and his remaining ineffective assistance
arguments in Ground Ten because he did not file a PCRA petition. The record
suggests that Petitioner’s sentence expired well before his direct appeal was
resolved, rendering him statutorily ineligible to file such a petition. The Court,
therefore, declines to find that these claims are unexhausted and procedurally
defaulted and will address the merits of these claims below.
B.

Merits of Petitioner’s Claims
1.

Grounds One and Two

In his first ground for relief, Petitioner maintains that the Commonwealth
failed to disprove his affirmative defense of self-defense. (Doc. No. 11 at 5.) As his
16

second ground, Petitioner asserts that the trial court erred by not granting his motion
for direct acquittal due to insufficiency of the evidence. (Id. at 8.) Because the
Superior Court considered these claims together, this Court will as well.
With respect to these claims, the Superior Court wrote:
In his first two issues, [Petitioner] challenges the sufficiency of the
evidence. Our standard of review is settled.
We must determine whether the evidence admitted at trial, and
all reasonable inferences drawn therefrom, when viewed in a
light most favorable to the Commonwealth as verdict winner,
support the conviction beyond a reasonable doubt. Where there
is sufficient evidence to enable the trier of fact to find every
element of the crime has been established beyond a reasonable
doubt, the sufficiency of the evidence claim must fail.
The evidence established at trial need not preclude every
possibility of innocence and the fact-finder is free to believe all,
part, or none of the evidence presented. It is not within the
province of this Court to re-weigh the evidence and substitute our
judgment for that of the fact-finder. The Commonwealth’s
burden may be met by wholly circumstantial evidence and any
doubt about the defendant’s guilty is to be resolved by the fact
finder unless the evidence is so weak and inconclusive that, as a
matter of law, no probability of fact can be drawn from the
combined circumstances.
Commonwealth v. Mobley, 14 A.3d 887, 889-90 (Pa. Super. 2011)
(citation omitted). Here, the jury convicted [Petitioner] of [possession
of an instrument of crime (“PIC”)] and simple assault, and the trial court
convicted him of harassment.
In his first claim, [Petitioner] does not dispute the proof of the elements
of simple assault, therefore we will not address them at this point;
instead, he argues the Commonwealth did not disprove his claim of
self-defense. We disagree.
17

The use of force against a person is justified when the actor
believes that such force is immediately necessary for the purpose
of protecting himself against the use of unlawful force by the
other person. See 18 Pa. C.S.[A.] § 505(a). When a defendant
raises the issue of self-defense, the Commonwealth bears the
burden to disprove such a defense beyond a reasonable doubt.
Commonwealth v. Bullock, 948 A.2d 818, 824 (Pa. Super. 2008).
In order for the Commonwealth to disprove self-defense, one of the
following elements must exist: (1) the defendant used more force than
was necessary to save himself from death, bodily injury, or the
commission of a felony; (2) the defendant provoked the use of force; or
(3) the defendant had a duty to retreat, which was possible to
accomplish with complete safety. See Commonwealth v. Burns, 765
A.2d 1144, 1148-49 (Pa. Super. 2000), appeal denied, 782 A.2d 542
(Pa. 2001). However, “[a]lthough the Commonwealth is required to
disprove a claim of self-defense arising from any source beyond a
reasonable doubt, a jury is not required to believe the testimony of the
defendant who raises the claim.” Bullock, supra at 824.
Based upon our review of the record, the Commonwealth’s evidence
was sufficient to negate the elements of self-defense. The evidence
presented at trial established, following the altercation with Leiphart,
Weagley escorted [Petitioner] off the premises and [Petitioner] left the
area for at least thirty minutes. [Petitioner] then chose to return to the
bar and lay in wait for Leiphart armed with at least four knives.
When Leiphart exited the bar, [Petitioner] stated several times that he
wanted to hurt him; [Petitioner] swung the knife in the direction of
Leiphart whie acting in a violent and agitated manner. [Petitioner]
ignored Spangler’s attempts to defuse the situation, repeatedly stating
he wanted to hurt Leiphart and did not retreat on his own. Rather,
Spangler pushed him back. Leiphart was unarmed.
Accordingly, the evidence was sufficient to establish that Leiphart was
not the aggressor. More importantly, the evidence was capable of
establishing [Petitioner], armed with at least one knife, could not have
reasonably believed he was at any real risk from Leiphart. The only
person who claims there was an alternate version of the events was
18

[Petitioner] and the finder-of-fact was free to disbelieve his arguments
in light of the overwhelming evidence offered by the Commonwealth.
See Commonwealth v. Rivera, 983 A.2d 1211, 1222 (Pa. 2009) (jury
free to discredit evidence offered by defendant relating to self-defense);
see also Commonwealth v. Jones, 332 A.2d 464, 466 (Pa. Super. 1974)
(en banc) (holding use of knife in response to fistfight is not justified
use of deadline force). Moreover, the record demonstrates [Petitioner],
who was on a public alley, had many opportunities to retreat. See
Commonwealth v. Gillespie, 434 A.2d 781, 784 (Pa. Super. 1981)
(holding opportunity to retreat existed because, “the fight occurred on
a public sidewalk, with several avenues of retreat available[]”).
[Petitioner’s] first claim does not merit relief.
As [Petitioner’s] second issue is actually a broad based challenge to
each of his convictions, we will address each type of crime individually.
Initially, we note [Petitioner’s] argument in its entirety consists of citing
to isolated bits of evidence he believes favors his argument along with
random citations to several United States Supreme Court cases and one
case from this Court, which, upon review, have no bearing upon the
instant matter. He entirely disregards our standard of review, which
requires we view the evidence in a light most favorable to the
Commonwealth as verdict winner. Further, [Petitioner] overlooks the
fact this Court does not re-weigh the evidence nor do we engage in
credibility determinations.
We define simple assault by physical menace as, “attempts by physical
menace to put another in fear of imminent serious bodily injury.” 18
Pa. C.S.A. § 2701(a)(3). Serious bodily injury is “[b]odily injury which
creates a substantial risk of death, or which cases serious, permanent
disfigurement, or protracted loss or impairment of the function of any
bodily member or organ.” 18 Pa. C.S.A. § 2301. “A person commits
an attempt when, with intent to commit a specific crime, he does any
act which constitutes a substantial step toward the commission of that
crime.” 18 Pa. C.S.A. § 901(a). An individual acts intentionally with
respect to a material element of an offense when, “it is his conscious
object to engage in conduct of that nature or to cause such a result.” 18
Pa. C.S.A. § 302(b)(1)(i).
Therefore, in order to sustain a conviction for simple assault by physical
menace, the Commonwealth must prove an appellant “intentionally
19

plac[ed] another in fear of imminent serious bodily injury through the
use of menacing or frightening activity.” Commonwealth v. Reynolds,
835 A.2d 720, 726 (Pa. Super. 2003) (citation omitted). The act of
brandishing a knife at a person is sufficient to sustain a conviction for
simple assault by physical menace. See Commonwealth v. Diamond,
408 A.2d 488, 489-90 (Pa. Super. 1979) (finding sufficient evidence to
sustain simple assault by physical menace conviction where defendant
approached and gripped door handle of victim’s car at 4:00 a.m.,
“especially since [defendant’s] friend was simultaneously threatening
[the victim] with a knife on the other side of the car”).
As set forth previously, the Commonwealth’s evidence at trial showed
[Petitioner] swung the knife back and forth while threatening Leiphart.
[Petitioner] repeatedly stated he wanted to hurt him. This evidence is
sufficient to establish that [Petitioner] wanted to place Leiphart in fear
of serious bodily injury. A reasonable person, seeing the man whom
he earlier hit in a bar fight coming at him while shouting threats and
waiving a knife, “will quite likely fear that such an injury is imminent.”
Diamond, 408 A.2d at 490. [Petitioner] must “be held to have intended
such a foreseeable consequence to his actions.” Id. Accordingly, we
find the evidence was sufficient to sustain [Petitioner’s] conviction for
simple assault by physical menace.
In order to prove possession of an instrument of crime, the
Commonwealth must show the defendant “possesses any instrument of
crime with intent to employ it criminally.” 18 Pa. C.S.A. § 907(a). The
statute defines an instrument of crime as “[a]nything specially made or
specially adapted for criminal use” or “[a]nything used for criminal
purposes and possessed by the actor under circumstances not
manifestly appropriately for lawful uses it may have.” 18 Pa. C.S.A.
§ 907(d). Evidence a defendant used a knife to attempt to perpetrate a
crime is sufficient to sustain a conviction for PIC. See Commonwealth
v. Robinson, 874 A.2d 1200, 1208-09 (Pa. Super. 2005) (holding use of
knife to perpetrate robbery was sufficient evidence of PIC).
“PIC, by its definition, is an inchoate crime, meaning that a defendant
only has to intend to employ the instrument of crime criminally; a
defendant need not actually employ it or complete an associated crime.”
Commonwealth v. Moore, 103 A.3d 1240, 1252 (Pa. 2014) (citation
omitted). “[R]ather, the focus is on whether the defendant possesses
20

the instrument for any criminal purpose.” Commonwealth v. Naranjo,
53 A.3d 66, 71 (Pa. Super. 2012) (emphasis in original). The
defendant’s criminal purpose provides the basis for his liability; we can
infer purpose from the circumstances surrounding the possession of the
instrument of the crime. See Commonwealth v. Andrews, 768 A.2d 309,
318-319 (Pa. 2001).
“Intent can be proven by direct or circumstantial evidence; it may be
inferred from acts or conduct or from the attendant circumstances.”
Commonwealth v. Miller, 172 A.3d 632, 641 (Pa. Super. 2017) (citation
omitted), appeal denied, 183 A.3d 97 (Pa. 2018). Although a factfinder
may infer criminal intent beyond a reasonable doubt based on
circumstantial evidence, intent may not be inferred based on mere
possession. See in re A.V., 48 A.3d 1251, 1254 (Pa. Super. 2012).
Here, the evidence demonstrated [Petitioner] used kitchen knives to
threaten Leiphart. Cleary, this was not in a manner appropriate for
lawful use. The evidence supporting [Petitioner’s] conviction for
simple assault is sufficient to sustain his conviction for PIC. See
Robinson, 874 A.2d at 1208-09.
{Petitioner] also challenges his two convictions for harassment. “A
person commits the crime of harassment when, with intent to harass,
annoy or alarm another, the person: [] strikes, shoves, kicks or
otherwise subjects the other person to physical contact, or attempts
or threatens to do the same[.]” 18 Pa. C.S. § 2709(a)(1) (emphasis
added). “An intent to harass may be inferred from the totality of the
circumstances.” Commonwealth v. Cox, 72 A.3d 719, 721 (Pa. Super.
2013).
At trial, multiple witnesses testified [Petitioner] grabbed the buttocks
of several women, including Emily Wallick and Bridget James, thus
subjecting them to physical contact. The evidence also showed
[Petitioner] ignored the women’s request to stop. This is sufficient to
show his intent to harass the women. See Cox, supra at 721; see also
18 Pa. C.S.A. § 2709(a)(1).
Accordingly, for the reasons discussed above, we find the evidence was
sufficient to sustain [Petitioner’s] convictions. His second claim does
not merit relief.
21

Moss, 2020 WL 618580, at *3-6 (citations to the record omitted).
The standard of review used by a federal court when addressing a claim
regarding the sufficiency of the evidence is “whether after reviewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” See Jackson
v. Virginia, 443 U.S. 307, 319 (1979). The credibility of witnesses, the resolution
of conflicts of evidence, and the drawing of reasonable inferences from proven facts
all fall within the exclusive province of the factfinder and, therefore, are beyond the
scope of federal habeas sufficiency review. See id. Accordingly, the only question
under Jackson is whether that finding was so insupportable as to fall below the
threshold of bare rationality.” See Coleman v. Johnson, 566 U.S. 650, 656 (2012).
Upon consideration of the Superior Court’s thorough discussion and the
evidence presented at Petitioner’s trial, as described supra, the Court concludes that
the state courts’ conclusions were a reasonable determination of the facts in light of
the evidence presented, and was neither contrary to, nor an unreasonable application
of, clearly established federal law. To the extent Petitioner challenges the reliability
of the evidence presented against him, a court reviewing a § 2254 petition has “no
license to redetermine credibility of witnesses whose demeanor has been observed
by the state trial court, but not by them.” See Marshall v. Lonberger, 459 U.S. 422,
434 (1983); see also Valenzuela v. Pennsylvania, No. 18-1246, 2019 WL 4139285,
22

at *1 (E.D. Pa. Aug. 30, 2019) (noting that “[i]t is for the jury to sort out any
inconsistences in the record”); Davis v. Lavan, No. 03-40211, 2004 WL 2166283, at
*9 (E.D. Pa. Sept. 23, 2004) (noting that “a claim that a verdict is against the weight
of the evidence is not cognizable on habeas review because it requires an assessment
of the credibility of the evidence presented at trial, and a state court’s credibility
determinations are binding on a federal habeas court”). Petitioner, therefore, is not
entitled to relief, and Grounds One and Two will be dismissed.
2.

Ground Three

As his third ground for relief, Petitioner asserts that the Commonwealth
violated his Fifth, Sixth, and Fourteenth Amendment rights by using evidence at trial
that was not “stated in the indictment or bill of particulars to gain a conviction.”
(Doc. No. 11 at 10.) Plaintiff avers that he was specifically charged with holding a
knife over his head in a stabbing position. (Id.) He claims, however, that the
Commonwealth never offered any evidence that he had done so during the incident.
(Id. at 11.)
With respect to this claim, the Superior Court stated:
In his third claim, [Petitioner] avers the Commonwealth violated his
constitutional rights when “it used evidence at trial that was not stated
in the indictment bills of particulars.” Specifically, [Petitioner]
complains the Commonwealth charged him for holding the knife over
his head in a stabbing position but the witnesses at trial only tested he
was either swinging the knife or brandishing it.
This Court has stated:
23

A purported variance between the indictment and the offense
proved will not be fatal to the Commonwealth’s case unless it
could mislead the defendant at trial, involves an element of
surprise prejudicial to the defendant’s efforts to prepare his
defense, precludes the defendant from anticipating the
prosecution’s proof, or otherwise impairs a substantial right of
the defendant. Generally stated, the requirement is that a
defendant be given clear notice of the charges against him so that
he can properly prepare a defense.
Commonwealth v. Fulton, 465 A.2d 650, 653 (Pa. Super. 1983)
(citations omitted). Moreover, “a variance between the proof and the
bill of particulars does not require a reversal unless the defendant has
been prejudiced by the variance.” Commonwealth v. Delbridge, 771
A.2d 1, 4-5 (Pa. Super. 2001) (citation omitted), affirmed, 859 A.2d 125
(Pa. 2004).
Here, the criminal information stated in pertinent part, “[Petitioner]
attempted, by physical menace, to put Danny Leiphart in fear of
imminent serious bodily injury, by holding a knife over his head in a
stabbing position and/or stating he was going to get victim.” At trial,
as noted above, multiple witnesses testified that, while holding the
knife, [Petitioner] repeatedly stated he wanted to hurt the victim.
Moreover, the difference between holding the knife over his head and
swinging the knife in the direction of the victim is de minimis.
[Petitioner] has utterly failed to address how this minor discrepancy
between the information and the proof at trial prejudiced him.
Therefore, his third claim does not merit relief. See Delbridge, 771
A.2d at 4-5.
Moss, 2020 WL 618580, at *6-7 (internal citations to the record omitted).
“To determine whether a variance violates the Constitution, federal courts
look to ‘whether or not there has been prejudice to the defendant,’ focusing on the
defendant’s right to notice and his ability to defend himself at trial.” Real v.
Shannon, 600 F.3d 302, 307 (3d Cir. 2010) (quoting United States v. Asher, 854 F.2d
24

1483, 1497 (3d Cir. 1988)). A variance violates the Constitution “only if it is likely
to have surprised or otherwise has prejudiced the defense.” United States v. Daraio,
445 F.3d 253, 262 (3d Cir. 2006) (citing United States v. Schurr, 775 F.2d 549, 55354 (3d Cir. 1985)). In the instant case, Petitioner has not demonstrated that the minor
discrepancy surprised or prejudiced his defense. As discussed supra, the evidence
presented at trial was sufficient to convict Petitioner, and the indictment and bill of
particulars sufficiently informed Petitioner of the charges against him so that he
could prepare an effective defense. See United States v. Somers, 496 F.2d 723, 746
(3d Cir. 1974) (noting that a variance is not unconstitutional unless the defendant
was “so surprised by the proof adduced that he was unable to prepare his defense
adequately”). Petitioner, therefore, has not demonstrated that the state court’s
disposition of his second ground for relief was contrary to, or was an unreasonable
application of, United States Supreme Court precedent. Moreover, Petitioner has
not demonstrated that the state court’s determination of the facts was unreasonable.
Accordingly, Petitioner’s third ground for relief will be dismissed.
3.

Ground Four

As his fourth ground for relief, Petitioner asserts that the trial court violated
his Sixth and Fourteenth Amendment rights by depriving him of his right to selfrepresentation. (Doc. No. 11 at 11.) With respect to this claim, the Superior Court
stated:
25

In his fourth claim, [Petitioner] contends that the trial court deprived him
of his right of self-representation. We disagree.
We review a trial court’s grant or denial of a defendant’s request to
proceed pro se for an abuse of discretion. Commonwealth v. El, 977
A.2d 1158, 1167 (Pa. 2009). The Pennsylvania Supreme Court has
“defined a court’s discretion as the foundation of reason, as opposed to
prejudice, personal motivations, caprice or arbitrary actions. An abuse
of that discretion is not merely an error of judgment, but . . . [a]
manifestly unreasonable . . . result of partiality, prejudice, bias or ill
will.” Id. (quotations and citation omitted).
In El, our Supreme Court explained,
A criminal defendant’s right to counsel under the Sixth
Amendment includes the concomitant right to waive counsel’s
assistance and proceed to represent oneself at criminal
proceedings. The right to appear pro se is guaranteed as long as
the defendant understands the nature of his choice. In
Pennsylvania, Rule of Criminal Procedure 121 sets out a
framework for inquiry into a defendant’s request for selfrepresentation. Pa. R. Crim. P. 121. Where a defendant
knowingly, voluntarily, and intelligently seeks to waive his right
to counsel, the trial court . . . must allow the individual to proceed
pro se.
The right to waive counsel’s assistance and continue pro se is not
automatic however. Rather, only timely and clear requests
trigger an inquiry into whether the right is being asserted
knowingly and voluntarily . . . . Thus, the law is well established
that in order to invoke the right of self-representation, the request
to proceed pro se must be made timely and not for purposes of
delay and must be clear and unequivocal.
Id. at 1162-63 (most citations, quotation marks and footnotes omitted).
Our review of the record reveals [Petitioner] never made a clear and
unequivocal assertion of the right to proceed pro se. Rather, the record
shows the trial court made a yeoman’s effort in an attempt to ascertain
what [Petitioner] wanted and to explain to him Pennsylvania law does
26

not allow his desire, which was clearly hybrid representation. See id.;
see also Commonwealth v. Padilla, 80 A.3d 1238, 1259 (Pa. 2013), cert.
denied, 573 U.S. 907 (2014). The discussion concluded as follows:
THE COURT: So how are you proceeding?
[Petitioner]: I have no choice but to allow counsel to represent
me.
THE COURT: So Mr. Jefferis will be the lead counsel, and you
will be working with him or consult with him?
[Petitioner]: That is correct, sir. However, it is my understanding
that a represented person is allowed to give opening arguments.
That is a Pennsylvania Rule of Criminal Procedure.
THE COURT: Whoever the attorney is may make the opening
argument. In other words, what you can’t do is you can’t cherry
pick or break this up into pieces where you say, I’ll make the
opening statement, you make the closing statement, I’ll examine
this witness, you examine that witness. You can be pro se, or
you can be represented by an attorney. What you don’t get to do
is have this kind of hybrid representation.
[Petitioner]: And I understand that, sir, and like I said, due to my
14-month unjust incarceration, I would not be able to represent
myself.
****
THE COURT: . . . are you still willing to have him proceed as
your counsel?
[Petitioner]: Indeed, I am.
Petitioner did subsequently indicate that he wished to represent himself.
However, immediately thereafter he stated that it didn’t matter who
represented him.

27

[Petitioner] does not identify any other place in the record where he
clearly requested to proceed pro se. And our independent review has
revealed none. Therefore, the record does not contain a clear and
unequivocal request to proceed pro se. Accordingly, [Petitioner’s]
fourth claim does not merit relief. See El, 977 A.2d at 1162-63.
Moss, 2020 WL 618580, at *7-8 (citations to the record omitted).
“[A] defendant in a state criminal trial has a constitutional right to proceed
without counsel when he voluntarily and intelligently elects to do so.” Faretta v.
California, 422 U.S. 806, 807 (1975). To assert the right to self-representation, a
defendant “must voluntarily and intelligently elect to conduct his own defense, and
most courts require him to do so in a timely manner.” Martinez v. Court of Appeal,
528 U.S. 152, 161-62 (2000). After a defendant asserts such a desire, “he should be
made aware of the dangers and disadvantages of self-representation, so that the
record will establish that he knows what he is doing and his choice is made with eyes
open.”

Faretta, 422 U.S. at 835.

Courts “must indulge every reasonable

presumption against a waiver of counsel;” therefore, “a defendant must clearly and
unequivocally ask to proceed pro se.” Buhl v. Cooksey, 233 F.3d 783, 790 (3d Cir.
2000). Upon review of the record, the Court cannot conclude that Petitioner clearly
and unequivocally asked to proceed pro se. The colloquy set forth above occurred
prior to the start of Petitioner’s first trial, which, as noted supra, ended in a mistrial.
At no other time did Petitioner clearly and unequivocally ask to proceed pro se.
Petitioner, therefore, has not demonstrated that the state court’s disposition of his
28

second ground for relief was contrary to, or was an unreasonable application of,
United States Supreme Court precedent. Moreover, Petitioner has not demonstrated
that the state court’s determination of the facts was unreasonable. Accordingly,
Petitioner’s fourth ground for relief will be dismissed.
4.

Ground Five

In his fifth ground for relief, Petitioner maintains that the trial court
constructively deprived him of his Sixth Amendment right to effective crossexamination. (Doc. No. 11 at 12.) He avers that prior to the start of his trial, defense
counsel informed the court that it wanted to raise the fact that Spangler planned to
commit perjury “based [solely] on the threat of imprisonment by the Commonwealth
unless she changed her story to fit the Commonwealth’s neo-version of events to
convict Petitioner.” (Id. at 13.) Petitioner argues that the trial court assured counsel
that this concern could be addressed through cross-examination, but that when
counsel attempted to do so, the trial court sustained the Commonwealth’s objection.
(Id.)
With respect to this claim, the Superior Court noted:
In his fifth claim, [Petitioner] complains the trial court denied him the
right to cross-examine Commonwealth witness Breanne Spangler
effectively. The court sustained the Commonwealth’s objection to a
question about Spangler’s desire not to press charges in the matter. See
Appellant’s Brief, at 13-15. Specifically, [Petitioner] points to the
following:
[Defense Counsel]: At first, you did not want to press charges?
29

[The Commonwealth]: Objection, Your Honor.
[Defense Counsel]: I think this goes to the witness’s state of
mind.
[The Commonwealth]: Relevance, though.
[Defense Counsel]: Bias.
[The Commonwealth]: Approach?
THE COURT: Come up here.
****
[Defense Counsel]: Your Honor, this would directly go to her—
this would directly go to her bias on why she’s testifying here
today. She changed her mind about pressing charges once her
boyfriend or fiancé was charged.
[The Commonwealth]: It was never her option to press charges
or not. It’s not that she could’ve said, well, I want to press
charges [sic] and this would’ve gone away.
[Defense Counsel]: I know, but she didn’t want to cooperate or
testify to what she testified to here today.
THE COURT: I’m going to sustain the objection.
N.T. Second Trial, 3/12/18, at 92-93.
This Court has held:
[w]ith regard to evidentiary challenges, it is well established that
[t]he admissibility of evidence is at the discretion of the trial
court and only a showing of an abuse of that discretion, and
resulting prejudice, constitutes reversible error. An abuse of
discretion is not merely an error of judgment, but is rather the
overriding or misapplication of the law, or the exercise of
judgment that is manifestly unreasonable, or the result of bias,
30

prejudice, ill-will or partiality, as shown by the evidence of
record. Furthermore, if in reaching a conclusion the trial court
overrides or misapplies the law, discretion is then abused and it
is the duty of the appellate court to correct the error.
Commonwealth v. Serrano, 61 A.3d 279, 290 (Pa. Super. 2013)
(citations and internal quotation marks omitted).
A criminal defendant has the constitutional right to confront witnesses
against him; this right includes the right of cross-examination. See
Commonwealth v. Buksa, 655 A.2d 576, 578 (Pa. Super. 1995). Crossexamination can be used to test a witness’s version of the events, to
impeach his credibility, or to establish his motive for testifying. See id.
However, even if we were to find error, an appellant must show that the
court’s decision prejudiced him. Our Supreme Court has stated:
An error will be deemed harmless where the appellate court
concludes beyond a reasonable doubt that the error could not
have contributed to the verdict. If there is a reasonable
possibility that the error may have contributed to the verdict, it is
not harmless. In reaching that conclusion, the reviewing court
will find an error harmless where the uncontradicted evidence of
guilty is so overwhelming, so that by comparison the error is
insignificant . . .
Commonwealth v. Mitchell, 839 A.2d 202, 214-15 (Pa. 2003) (citation
omitted).
In the instant matter, we need not decide whether the trial court erred
in sustaining the objection because, if there was error, it was harmless.
The record reflects Spangler’s fiancé, Leiphart, admitted he threw the
first punch in the altercation in the bar; the Commonwealth charged him
because of it; and he pleaded guilty to harassment. N.T. Second Trial,
312/18, at 135-37, 142-43.
Moreover, there were multiple witnesses to the event, and the
witnesses’ testimony was consistent. See N.T., 3/12-13.18, at 70-80,
97-107, 118-25, 133-42, 154-61, 165-70, 175-87. Thus, regardless of
whether Spangler was reluctant to testify or was biased against
31

[Petitioner], witnesses Leiphart, James, Graves, Weagler, and the
Wallicks all confirmed her testimony. See id. Given this, we find
[Petitioner] has not and cannot show the absence of this crossexamination prejudiced him. Therefore, this claim does not merit relief.
See Mitchell, 839 A.2d at 214-15.
Moss, 2020 WL 618580, at *8-9.
As the Eastern District of Pennsylvania recently noted:
The Sixth Amendment guarantees every criminal defendant the right
“to be confronted with the witnesses against him.” This right includes
the ability of every criminal defendant to test the credibility of
witnesses through cross-examination. The Supreme Court held,
however, “[i]t does not follow . . . that the Confrontation Clause of the
Sixth Amendment prevents a trial judge from imposing any limits on
defense counsel’s inquiry into the potential bias of a prosecution
witness.” The trial court instead retains discretion to impose reasonable
limits on the scope of cross-examination “based on concerns about,
among other things, harassment, prejudice, confusion on the issues, the
witness’ safety, or interrogation that is repetitive or only marginally
relevant.” In sum, the Sixth Amendment “guarantees an opportunity
for effective cross-examination, not cross-examination that is effective
in whatever way, and to whatever extent, the defense might wish.”
Heyward v. Garvin, No. 20-6098, 2021 WL 1893218, at *18 (E.D. Pa. May 11,
2021) (citations omitted).
Upon review of the record, the Court agrees with Respondents that Petitioner
has not demonstrated a violation of his Sixth Amendment rights. The trial court’s
limitations on Petitioner’s cross-examination of Spangler was harmless. On crossexamination, Leiphart admitted that he pled guilty to harassment for punching
Petitioner inside the bar. (Doc. No. 30-1 at 318-19.) Moreover, a review of the trial
transcript indicates that the witnesses against Petitioner provided consistent
32

testimony regarding the events that occurred. Thus, even if Petitioner had been able
to cross-examine Spangler about her bias, he has not demonstrated that the results
of his trial would have differed. Petitioner, therefore, has not demonstrated that the
state court’s disposition of his second ground for relief was contrary to, or was an
unreasonable application of, United States Supreme Court precedent. Moreover,
Petitioner has not demonstrated that the state court’s determination of the facts was
unreasonable. Thus, Petitioner’s fifth ground for relief will be dismissed.
5.

Grounds Six and Seven

As his sixth ground for relief, Petitioner asserts that he was denied a fair trial
when the Commonwealth suppressed then destroyed requested video/audio
evidence. (Doc. No. 11 at 14.) Petitioner maintains that at the end of his first trial,
which ended in a mistrial, the District Attorney violated his Sixth and Fourteenth
Amendment rights by recording testimony on his iPhone and then deleting it before
allowing the defense an opportunity to review it. (Id. at 15.) He avers that the loss
of what actually took place between the District Attorney and witness Devon
Wallick requires that his convictions be vacated. (Id. at 15-16.) In his seventh
ground for relief, Petitioner avers that the Commonwealth failed to disclose
exculpatory evidence in the form of Officer Miller’s supplemental narrative. (Doc.
No. 11 at 16-17.) As discussed above, the Court has concluded that Petitioner
exhausted this claim by attempting to raise it before the Superior Court and that he
33

was unable to raise it on collateral review. The Court, therefore, will discuss the
merits of this claim below.
With respect to Petitioner’s sixth claim for relief, the Superior Court stated:
In his sixth claim, [Petitioner] argues that the Commonwealth destroyed
evidence in violation of the United States Supreme Court’s decision in
Brady v. Maryland, 373 U.S. 83 (1963). We disagree.
Again, we note that we review evidentiary challenges under an abuse
of discretion standard. Serrano, 61 A.3d at 290.
The law governing alleged Brady violations is settled.
Under Brady and subsequent decisional law, a prosecutor has an
obligation to disclose all exculpatory information material to
the guilt or punishment of an accused, including evidence of an
impeachment nature. To establish a Brady violation, an
appellant must prove three elements: (1) the evidence at issue
was favorable to the accused, either because it is exculpatory or
because it impeaches; (2) the evidence was suppressed by the
prosecution, either willfully or inadvertently; and (3) prejudice
ensued. The burden rests with the appellant to prove, by
reference to the record, that evidence was withheld or suppressed
by the prosecution. The evidence at issue must have been
material evidence that deprived the defendant of a fair trial.
Favorable evidence is material, and constitutional error results
from its suppression by the government, if there is a reasonable
probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.
Commonwealth v. Ovalles, 144 A.3d 957, 965 (Pa. Super. 2016)
(citations and quotation marks omitted) (emphasis added).
In Commonwealth v. Feese, 79 A.3d 1101 (Pa. Super. 2013), this Court
discussed the appropriate standard to apply in cases where, as here, the
appellant alleges the Commonwealth destroyed potentially useful
34

evidence. The Feese court determined the standard announced by the
United States Supreme Court in Arizona v. Youngblood, 488 U.S. 51
(188) applies, and “unless a criminal defendant can show bad faith on
the part of the police, failure to preserve potentially useful evidence
does not constitute a denial of due process of law.” Feese, 79 A.3d at
1108 (citation omitted). The Court further stated, “[w]hen the value of
such evidence was not clear before its destruction, the burden is on the
defense to demonstrate bad faith.” Id. at 115.
Here, [Petitioner] alleges the Commonwealth destroyed an audio
recording made by the trial prosecution during his initial interview with
Commonwealth witness Devon Wallick. The parties litigated the issue
of the destroyed audio recording at the second hearing on [Petitioner’s]
post-sentence motions.
At the hearing, the Commonwealth explained it had not previously
interviewed Wallick, but it subpoenaed him and he appeared to testify
at [Petitioner’s] first trial. The trial assistant district attorney wanted
Wallick to speak with a detective; because he did not have any paper
with him, he recorded Wallick’s contact information on his cell phone.
He later destroyed the recording. A detective conducted a substantive
interview with Wallick and the Commonwealth turned over the notes
of that interview to [Petitioner].
We have reviewed the record in this matter. [Petitioner] does not
dispute he received the interview notes. Further, the trial court
specifically found the recording was not exculpatory, and noted, “any
exculpatory evidence would have been contained in the actual
interview with detectives, which produced a report, which was turned
over to the defense.” [Petitioner] has not presented any evidence that
would call this finding into doubt. Moreover, [Petitioner] has not
argued any facts demonstrating the Commonwealth acted in bad faith.
Therefore, [Petitioner’s] sixth claim does not merit relief. See Feese,
79 A.3d at 1111.
Moss, 2020 WL 618580, at *9-10 (citations to the record omitted).
Brady violations occur when “(1) evidence was suppressed; (2) the evidence
was favorable to the defense; and (3) the evidence was material to guilt or
35

punishment.” Simmons v. Beard, 590 F.3d 223, 233 (3d Cir. 2009) (quoting United
States v. Risha, 445 F.3d 298, 303 (3d Cir. 2006)). Evidence is material if “there is
a reasonable probability that, but for the prosecution’s failure to disclose the
evidence, ‘the result of the proceeding would have been different.’” Harshman v.
Sup’t, State Corr. Institution at Rockview, 368 F. Supp. 3d 776, 790 (M.D. Pa. 2019)
(quoting Kyles v. Whitley, 514 U.S. 419, 433-34 (1995). A “reasonable probability”
of a different result exists if the suppression of evidence “undermines confidence in
the outcome of the trial.” Kyles, 514 U.S. at 433-34. Moreover, failing to preserve
potentially useful evidence does not violate due process unless the defendant can
demonstrate that the state acted in bad faith. See Youngblood, 488 U.S. at 58.
Upon review of the record, the Court agrees that Petitioner has not
demonstrated that the deputy district attorney acted in bad faith. The parties litigated
this issue during the second hearing on Petitioner’s post-sentence motions, and the
Commonwealth established that the recording merely contained Devon Wallick’s
contact information so that a follow-up interview—the notes from which were
provided to the defense—could be scheduled. (Doc. No. 30-1 at 719-37.) Moreover,
as noted during the hearing, Petitioner received a full opportunity to cross-examine
Wallick during his trial. (Id. at 734.) Nothing in the record suggests that, but for the
prosecution’s failure to produce this recording, the result of Petitioner’s trial would
have been different. Petitioner, therefore, has not demonstrated that the state court’s
36

disposition of his second ground for relief was contrary to, or was an unreasonable
application of, United States Supreme Court precedent. Moreover, Petitioner has
not demonstrated that the state court’s determination of the facts was unreasonable.
Accordingly, his sixth ground for relief will be dismissed.
In his seventh ground, Petitioner maintains that the Commonwealth violated
Brady by not disclosing a copy of Officer Miller’s supplemental narrative. (Doc.
No. 11 at 16-17.) Petitioner suggests that the supplemental narrative indicates that
both Leiphart and an individual named Scott hit Petitioner. (Id. at 17.) Petitioner
avers that Leiphart “was viewed talking to Petitioner and then punched Petitioner.
Scott was then viewed pushing [Leiphart] out of the way and punching Petitioner as
well.” (Id.) While the actual supplemental narrative is not in the record, the Court
concludes that, in light of Petitioner’s representations, Petitioner has not
demonstrated that, but for the Commonwealth’s failure to disclose this narrative, the
outcome of his trial would have been different.

As discussed supra, the

Commonwealth presented ample and sufficient evidence to support Petitioner’s
convictions for simple assault, possession of an instrument of crime, and harassment.
Accordingly, Petitioner’s seventh ground for relief will be dismissed.
6.

Ground Eight

As his eighth ground for relief, Petitioner maintains that the trial court erred
by denying his motion to appoint a neurological/head trauma expert. (Doc. No. 11
37

at 19.) According to Petitioner, he was assaulted by multiple individuals and
received “numerous blows” to the head, causing him to fall on a hardwood floor.
(Id. at 21.) Petitioner maintains that he had severe head trauma and a concussion,
and that if he “performe[d] the proceeding criminal acts in a fog brought on by the
blows to his head by the victim, [he] is not guilty of any crime.” (Id.) He avers that
the trial court denied him due process when it prohibited him from “using mental
disease and capacity evidence directly to rebut the prosecution’s evidence that
Petitioner did form mens rea.” (Id.)
With respect to this claim, the Superior Court wrote:
In his eighth claim, [Petitioner] argues the trial court erred in denying
his motion for appointment of a neurological/head trauma expert. We
disagree.
There are several procedural issues with [Petitioner’s] motion. First,
[Petitioner] filed this motion pro se on February 26, 2018. At that time,
counsel represented [Petitioner]. As we have noted above, [Petitioner]
is not entitled to hybrid representation. See Padilla, 80 A.3d at 1259.
Therefore, courts in this Commonwealth “will not accept a pro se
motion while an appellant is represented by counsel; indeed, pro se
motions have no legal effect and, therefore, are legal nullities.”
Commonwealth v. Williams, 151 A.3d 621, 623 (Pa. Super. 2016)
(citation omitted).
Secondly, at the time [Petitioner] filed the motion, the court had not
granted him in forma pauperis status and retained counsel represented
him. Our rules only require the allocation of funds for an expert witness
for indigent defendants. See 50 P.S. § 7402(f). Lastly, the motion was
untimely. The Pennsylvania Rules of Criminal Procedure require a
defendant give notice of a defense of insanity or mental infirmity “not
later than the time required for filing an omnibus pretrial motion
provided in Rule 579.” Pa. R. Crim. P. 568(a)(1). Here, that time
38

expired in May 2017, approximately ten months before [Petitioner]
filed his motion. See Pa. R. Crim. P. 579(A).
Further, as the trial court correctly notes, a diminished capacity defense
is only available if the Commonwealth charges a defendant with murder
in the first degree. See Commonwealth v. Russell, 938 A.2d 1082, 1092
(Pa. Super. 2007) (citations omitted). Moreover, an insanity defense is
generally only available in cases where the defendant acknowledges
commission of the act, not in a case such as this where a defendant
asserts his innocence. See Commonwealth v. Hughes, 865 A.2d 761,
788 (Pa. 2004) (stating, “[a] defense of insanity acknowledges
commission of the act by the defendant, while maintaining the absence
of legal culpability”).
In any event, [Petitioner’s] claim is based on his unsupported
contention, “there [was] a reasonable probability that the [Petitioner]
was suffering from a concussion due to the multiple blows to the head
inflicted upon [Petitioner,]” during the altercation inside the bar and
this probable concussion somehow negated his ability to form the
requisite intent. Our review of the record shows [Petitioner] has never
claimed he sought medical treatment following the incident and has
never offered any medical documentation to support his speculative
contention he suffered a concussion because of the altercation. For the
reasons discussed above, [Petitioner’s] eighth claim does not merit
relief.
Moss, 2020 WL 618580, at *11.
The Supreme Court has held that “when a State brings its judicial power to
bear on an indigent defendant in a criminal proceeding, it must take steps to assure
that the defendant has a fair opportunity to present his defense.” Ake v. Oklahoma,
470 U.S. 68, 76 (1985). Thus, “fundamental fairness entitles indigent defendants to
those ‘basic tools’ necessary to launch a meaningful defense.” Christy v. Horn, 28
F. Supp. 2d 307, 319 (W.D. Pa. 1998) (citing Ake, 470 U.S. at 77). Thus, when an
39

indigent defendant demonstrates that his sanity at the time of the offense will be a
significant factor at trial, the state must provide a mental health professional capable
of evaluating the defendant and assisting in the preparation and presentation of the
defense. McWilliams, 137 S. Ct. at 1794
In the instant matter, however, Petitioner has not demonstrated that the trial
court violated his due process rights by denying his motion to appoint a
neurological/head trauma expert. At the time, Petitioner was not indigent and was
represented by retained counsel, which would have led to an improper use of funds
had his motion been granted. Moreover, nothing in the record indicates that
Petitioner acknowledged that he committed the acts alleged, which is a requirement
to rely on an insanity defense, and, as noted supra, a diminished capacity defense
was not available because he was not charged with first-degree murder. Finally, the
record is devoid of any medical evidence substantiating Petitioner’s contention that
expert testimony was necessary. Petitioner, therefore, has not demonstrated that the
state court’s disposition of his second ground for relief was contrary to, or was an
unreasonable application of, United States Supreme Court precedent. Moreover,
Petitioner has not demonstrated that the state court’s determination of the facts was
unreasonable. Accordingly, his eighth ground for relief will be dismissed.

40

7.

Ground Nine

As his ninth ground for relief, Petitioner asserts that he was deprived of his
Sixth Amendment right to a speedy trial, which warranted dismissal of the
indictment. (Doc. No. 11 at 21.) With respect to this claim, the Superior Court
stated:
In his final claim, [Petitioner] argues the trial court erred in denying his
speedy trial motion. To address this issue we observe the following
standards.
“When reviewing a trial court’s decision in a Rule 600 case, an
appellate court will reverse only if the trial court abused its discretion.”
Commonwealth v. Bradford, 46 A.3d 693, 700 (Pa. 2012). Moreover,
[t]he proper scope of review . . . is limited to the evidence on the
record of the Rule 600 evidentiary hearing, and the findings of
the trial court. An appellate court must view the facts in the light
most favorable to the prevailing party.
****
So long as there has been no misconduct on the part of the
Commonwealth in an effort to evade the fundamental speedy
trial rights of an accused, Rule 600 must be construed in a
manner consistent with society’s right to punish and deter crime.
In considering these matters . . ., courts must carefully factor into
the ultimate equation not only the prerogatives of the individual
accused, but the collective right of the community to vigorous
law enforcement as well.
Commonwealth v. Peterson, 19 A.3d 1131, 1134 (Pa. Super. 2011) (en
banc), affirmed, 44 A.3d 655 (Pa. 2012) (citations omitted).
We have reviewed the certified record, the briefs of the parties, and the
trial court’s opinion. The trial court ably and methodically addressed
this issue in its Rule 1925(a) opinion. Accordingly, we adopt the trial
41

court’s reasoning, found on pages 42-45 of its opinion, as our own for
the disposition of this issue. See Trial Court Opinion, 4/26/19, at 4245 (holding mechanical run date was January 15, 2018; trial was set for
July of 2017 but defense counsel requested continuance due to
unavailability; next available trial date was in September 2017; 57 days
were attributable to defense; therefore trial started before adjusted
mechanical run date of March 13, 2018); see also N.T., 3/7/18, at 2427. [Petitioner’s] ninth and final claim does not merit relief.
Moss, 2020 WL 618580, at *11.
As an initial matter, although Petitioner specifically asserted a Sixth
Amendment violation on direct appeal (Doc. No. 30-1 at 786), the state courts only
addressed is as a Rule 600 issue. The Third Circuit has specifically held that claims
alleging violations of Pennsylvania’s speedy trial rule are not cognizable. See Wells
v. Petsock, 941 F.2d 253, 256 (3d Cir. 1991) (explaining that Rule 600,
Pennsylvania’s speedy trial rule, is not equivalent to the Sixth Amendment right).
Thus, to the extent Petitioner bases this ground for relief upon state law, it is not
cognizable and is subject to dismissal.
The Sixth Amendment guarantees a defendant’s right to a speedy trial. When
considering whether that right has been violated, courts must consider the following
four (4) factors: (1) the length of the delay; (2) the reason for the delay; (3) the
defendant’s assertion of the right; and (4) prejudice to the defendant. See Barker v.
Wingo, 407 U.S. 514, 530 (1972). The Supreme Court has explained that “[t]he
length of the delay is to some extent a triggering mechanism. Until there is some
delay which is presumptively prejudicial, there is no necessity for inquiry into the
42

other facts that go into the balance.” Id. Generally, delays of one (1) year or more
may trigger analysis of the other Barker factors. See Doggett v. United States, 505
U.S. 647, 652 n.1 (1992).
As noted supra, Petitioner was arrested on January 15, 2017, and was not tried
until March 18, 2018. The delay of over one (1) year, therefore, triggers analysis of
the other Barker factors. As noted by the state courts in their analysis of Petitioner’s
Rule 600 claim, the continuances were requested by defense counsel. Nothing in
the record suggests that Petitioner ever asked counsel to file a speedy trial request.
Furthermore, nothing in the record demonstrates that Petitioner’s ability to present a
defense was impaired in any way due to the delay, or that he suffered any other
prejudice. Accordingly, Petitioner’s ninth claim for relief will be dismissed.
8.

Ground Ten

As noted supra, Petitioner asserts several arguments regarding ineffective
assistance of counsel in Ground Ten. Some of those arguments are unexhausted
because Petitioner never raised them in state court. The claims that are exhausted,
however, are as follows: (1) counsel failed to object to false statements made by the
Commonwealth in their opening statement; (2) counsel failed to object to solicitation
of false testimony; (3) counsel failed to object to assertions made in the
Commonwealth’s closing argument; (4) counsel failed to object to the
Commonwealth vouching for a witness; (5) counsel failed to request certain jury
43

instructions; (6) constructive deprivation of counsel; and (7) counsel was ineffective
for not being prepared for trial.
For claims of ineffective assistance of counsel raised in a habeas petition, the
Court must consider the two components to demonstrating a violation of the right to
effective assistance of counsel as set forth by the Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984). First, the petitioner must show that counsel’s
performance was deficient. This requires showing that “counsel’s representation fell
below an objective standard of reasonableness.” See id. at 688; see also Williams v.
Taylor, 529 U.S. 362, 390-91 (2000). Second, under Strickland, the petitioner must
show that he was prejudiced by the deficient performance. “This requires showing
that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.” Strickland, 466 U.S. at 687. To establish prejudice, the
defendant “must show that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” See id. at 694. The Strickland test is conjunctive and a habeas petitioner
must establish both the deficiency in the performance prong and the prejudice
prong. See Strickland, 466 U.S. at 687; Dooley v. Petsock, 816 F.2d 885, 889 (3d
Cir. 1987). As a result, if a petitioner fails on either prong, he loses. See Holladay
v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000) (“Because both parts of the test must
44

be satisfied in order to show a violation of the Sixth Amendment, the court need not
address the performance prong if the defendant cannot meet the prejudice prong, or
vice versa.”) (citation omitted); Foster v. Ward, 182 F.3d 1177, 1184 (10th Cir.
1999) (“This court may address the performance and prejudice components in any
order, but need not address both if Mr. Foster fails to make a sufficient showing of
one.”).
The two-pronged test established in Strickland “qualifies as ‘clearly
established Federal law’” for purposes of the AEDPA. See Rainey v. Varner, 603
F.3d 189, 197 (3d Cir. 2010) (quoting Williams v. Taylor, 529 U.S. 362, 391 (2000)).
Therefore, under § 2254(d)(1), the relevant inquiry in assessing ineffectiveness
claims that have been adjudicated on the merits is whether the state court’s decision
involved an unreasonable application of Strickland or are based on an unreasonable
determination of the facts. See Jacobs v. Horn, 395 F.3d 92, 107 n.9 (3d Cir. 2005).
Moreover, Pennsylvania’s three-pronged test for ineffective assistance claims, see
Commonwealth v Pierce, 515 Pa. 153, 527 A.2d 973, 975-77 (Pa. 1987), is not
contrary to Strickland, see Jacobs, 395 F.3d at 107 n.9.
As noted supra, the Superior Court dismissed Petitioner’s ineffective
assistance claims as premature. “In considering a § 2254 petition, we review the
‘last reasoned decision’ of the state courts on the petitioner’s claims.” Simmons v.
Beard, 590 F.3d 223, 231-32 (3d Cir. 2009) (citing Bond v. Beard, 539 F.3d 256,
45

289-90 (3d Cir. 2008)). The trial court considered Petitioner’s ineffective assistance
claims on their merits in its Rule 1925(a) opinion. The Court, therefore, will
consider that opinion when considering Petitioner’s remaining ineffective assistance
claims. With respect to Petitioner’s ineffective assistance claims, the trial court
wrote:
The [Petitioner] opines that the Commonwealth made false statements
during its opening statement that prejudiced the [Petitioner]. First, the
[Petitioner] argues that as this Court found him not guilty of public
drunkenness then it was false for the A.D.A. to label the [Petitioner] as
a drunk. The first prong of the test for ineffectiveness queries whether
there is any arguable merit to the claim. Commonwealth v. Cox, 983
A.2d 666, 678 (Pa. 2009) (citation omitted). There is no arguable merit
to this claim. All juries are informed that opening statements are not
evidence. Whether or not the [Petitioner] was in fact intoxicated has
no bearing upon the charges that were being decided by the jury.
Brittany Graves described the [Petitioner’s] behavior in a manner that
evidenced his decline as he imbibed. Danny Leiphart described the
[Petitioner] as drunk. Just because the Court chose not to credit the
testimony does not mean that the Commonwealth misled the jury in
their opening statement. Moreover, the prosecutor, at the time of these
remarks, was pursuing a public drunkenness charge. It stands to reason
that the Commonwealth believed that the evidence that would be
adduced would bear out that charge. Additionally, the third prong of
the test for ineffectiveness is also not met where there was no prejudice
to the [Petitioner]. As addressed supra, the Commonwealth presented
sufficient evidence to convict the [Petitioner] of the charges that the
jury found him guilty of. Per Pierce, we cannot find that, but for any
error on counsel’s part in not objecting to the Commonwealth’s
opening, there was a reasonable probability of a different outcome to
the proceeding. 786 A.2d at 213. As the [Petitioner] cannot meet two
of the prongs for the test for ineffectiveness, the claim cannot succeed.
Therefore, there would have been no merit to a hearing on this claim
and we ask for affirmance.

46

Regarding the [Petitioner’s] second sub-claim, that the
Commonwealth’s opening misled the jury regarding the initial incident
in which Danny Leiphart punched the [Petitioner], we are unsure as to
exactly what the [Petitioner] is claiming. Ms. Spangler testified that the
[Petitioner’s] wife left without him and prior to the [Petitioner] being
punched by Danny Leiphart. This accords with the Commonwealth’s
opening statement. It is true that Danny Leiphart and Ron Weagley’s
testimony support the [Petitioner’s] contention that he left with his wife
and returned without her prior to the first instance of fisticuffs.
However, an objection by trial counsel would not have succeeded
where the Commonwealth was allowed to tell the jury what evidence
they believed that they would elicit and so there is no merit to the claim.
Cox, supra. Moreover, the [Petitioner] suffered no prejudice where the
jury was fully aware that Danny Leiphart had been charged and
convicted for his conduct in punching the [Petitioner] and where Danny
Leiphart testified himself that he confronted the [Petitioner] upon the
[Petitioner’s] return. Cox, supra. This seems like nothing more than
an instance in which some of the testimony slightly differed from the
initial picture painted by the Commonwealth. It is a common
occurrence in trials and not one for which we believe trial counsel could
have been found ineffective. We pray for affirmance as to this matter.
[Petitioner] believes his trial counsel was ineffective for failing to
object to Officer Miller testifying that he had no indication, beyond the
[Petitioner’s] statement to him, that the [Petitioner’s] wife had returned
to the bar. [Petitioner] submits that this is in direct contradiction of the
testimony offered by Ron Weagley that the [Petitioner’s] wife was
outside of the bar after the first incident. We see no contradiction. Mr.
Weagley testified that he discovered that the [Petitioner’s] wife had
been outside the bar during the initial incident. Unless we are wholly
misunderstanding the [Petitioner’s] point, A.D.A. Swisher, in
questioning Officer Miller, was seemingly referring to whether there
was any evidence of the [Petitioner’s] wife having returned to the bar
after having left with the [Petitioner]. This could have encompassed
Mr. Weagley’s testimony that the [Petitioner] and his wife were outside
of the bar together after the first incident. Nothing in Mr. Weagley’s
testimony indicated that the [Petitioner’s] wife stayed behind after she
and Mr. Weagley convicted the [Petitioner] to go him. From this,
Officer Miller might have gleaned that the [Petitioner’s] wife did not
return to the bar after this point. It is only the [Petitioner’s] wife who
47

indicated that she did not accompany her husband home after he had
spoken to Ron Weagley. The [Petitioner’s] wife testified after Officer
Miller. WE see no merit to the claim. Cox, supra. The [Petitioner]
cannot meet the first prong of the test for ineffectiveness—a test in
which all three prongs must be met. This PCRA claim would have
failed and so we ask for affirmance.
The [Petitioner] alleges ineffectiveness in his counsel’s failure to object
to the Commonwealth attorney indicating that Ron Weagley testified
that the [Petitioner] and his wife left together after the first incident. In
support of this, the [Petitioner] cites to Ron Weagley testifying that he
watched the [Petitioner] proceed down the alley after the first incident.
This elides the fact that Mr. Weagley, in the referenced section, was
speaking of the [Petitioner] and not of the location of the [Petitioner’s]
wife. The jury was free to make inferences regarding the testimony and
decide for themselves what actually happened. In Commonwealth v.
Koehler, the Supreme Court of Pennsylvania stated the following
regarding prosecutorial misconduct:
[A] claim of ineffective assistance grounded in trial counsel’s
failure to object to a prosecutor’s conduct may succeed when the
petitioner demonstrates that the prosecutor’s actions violated a
constitutionally or statutorily protected right, such as the Fifth
Amendment privilege against compulsory self-incrimination or
the Sixth Amendment right to a fair trial, or a constitutional
interest such as due process. To constitute a due process
violation, the prosecutorial misconduct must be of sufficient
significance to result in the denial of the defendant’s right to a
fair trial. The Touchstone is fairness of the trial, not the
culpability of the prosecutor. Finally, not every intemperate or
improper remark mandates the granting of a new trial;
reversible error occurs only when the unavoidable effect of the
challenged comments would prejudice the jurors and form in
their minds a fixed bias and hostility toward the defendant such
that the jurors could not weigh the evidence and render a true
verdict.
36 A.3d 121, 144 (Pa. 2012) (internal citations and quotation marks
omitted). We cannot find that the jurors would have been so prejudiced
by this potential mischaracterization by the Commonwealth attorney as
48

to have been unable to render a true verdict. The [Petitioner], then,
cannot meet the third prong of the test for ineffectiveness outlined in
Cox, supra. Counsel could not have been found ineffective on this
matter and so the [Petitioner] suffered no harm regarding his PCRA not
having been heard on the matter. We request affirmance.
The [Petitioner] also points to the Commonwealth attorney
characterizing witness testimony as supporting a view that the
[Petitioner] was swinging knives and ranting and raving as an example
of mischaracterization in his closing and to which defense counsel
should have objected. As recounted in our facts section above, various
witnesses testified that Ms. Spangler restrained [Petitioner’s] knifewielding hand or the blade itself and that the [Petitioner] was taunting
Danny about the [Petitioner’s] new knife.
We see no
mischaracterization. There is neither merit to the claim, nor prejudice
to the [Petitioner]. We ask for affirmance as to this matter complained
of on appeal.
The [Petitioner] believes his counsel was ineffective for failing to
object to the prosecution’s argument to not be confused by defense
arguments about Danny Leiphart being the actual aggressor. Ab initio,
we believe the claim is waived for failure to develop it. Even if it is
sufficiently developed, there is no merit to this claim. Cox, supra. “A
prosecutor ‘has great discretion during closing argument’ and is ‘free
[to present] his [or her closing] arguments with logical force and
vigor.’” Commonwealth v. Cash, 137 A.3d 1262, 1273 (Pa. 2016)
(quoting Commonwealth v. Eichinger, 108 A.3d 821, 836 (Pa. 2014)).
And, “‘[p]rosecutorial comments based on the evidence or reasonable
inferences therefrom are not objectionable, nor are comments that
merely constitute oratorical flair.’” Ibid. (quoting Commonwealth v.
Chmiel, 30 A.3d 1111, 1146 (Pa. 2011).
Additionally, the
Commonwealth is permitted, in its closing, to confront the arguments
of the defense. See Commonwealth v. Miller, 172 A.3d 632, 644 (Pa.
Super. Ct. 2017). The Commonwealth was merely confronting the
[Petitioner’s] justification defense. It is facially apparent that the
[Petitioner] cannot meet all three prongs of the test for ineffectiveness
and this claim would have failed following a PCRA hearing. We seek
affirmance as to this matter complained of.

49

The [Petitioner] submits numerous allegations of trial counsel
ineffectiveness for failing to garner the giving of instructions he wished
the jury to have heard. We address them as succinctly as possible.
There is no merit to a claim that trial counsel was ineffective for not
procuring an instruction on the right to bear arms. The right to bear
arms does not bear upon a charge of simple assault. The right to bear
arms does not grant a person the right to assault someone. There is no
merit to the claim. Trial counsel was not ineffective for failing to obtain
instruction on this precept. The [Petitioner] cannot meet at least one of
the prongs of a test in which he must meet all three and so the PCRA
claim would have failed anyway.
The [Petitioner] was not prejudiced by trial counsel not requesting an
instruction on justification—defense of others. For, even if counsel
erred in failing to request a needed instruction, ineffectiveness will only
be found where prejudice is also shown. See Commonwealth v. Knight,
611 A.2d 1199 (Pa. Super. Ct. 1992); Commonwealth v. Potts, 566 A.2d
287 (Pa. Super. Ct. 1989). The jury having heard that the [Petitioner]
was taunting Danny Leiphart about [Petitioner’s] new knife and making
statements about wanting to hurt Danny and not Ms. Spangler, we
cannot find that a different result would have occurred had the
instruction been requested. The [Petitioner] cannot meet at least one of
the prongs of a test in which he must meet all three and so the PCRA
claim would have failed anyway.
The [Petitioner] was not prejudiced by his counsel’s failure to request
an instruction on use of force to protect property. As with his desired
defense of others instruction, the force of evidence adduced to show
that the [Petitioner] wished simply to assault Danny Leiphart convinces
this Court that the [Petitioner] was not prejudiced. No different result
would have occurred had the jury been instructed on the defense of
property. Counsel was not ineffective on this charge. Moreover,
though it is possible this Court has overlooked some evidence, we do
not find evidence in the trial transcript regarding the [Petitioner] having
been robbed or needing to defend property. Thus, he likely would not
have been entitled to an instruction on the defense of property. See
Commonwealth v. Butler, 533 A.2d 992 (Pa. 1987). The [Petitioner]
cannot meet at least one of the prongs of a test in which he must meet
all three and so the PCRA claim would have failed anyway.
50

For the reasons already stated (i.e. the [Petitioner] taunted Danny
Leiphart and stated his desire to hurt Danny Leiphart), the [Petitioner’s]
additional desired instructions on use of a device to protect property,
use of force to pass a wrongful obstructor, and peace officer’s use of
force in making an arrest also necessarily fail. The [Petitioner] simply
was not prejudiced by any failure of his counsel to request his desired
instructions where the overwhelming weight of the evidence
demonstrated that the [Petitioner] was spoiling for a fight with Danny
Leiphart. Counsel’s actions did not prejudice the [Petitioner] and a
PCRA hearing would not have developed any more useful evidence to
support such a contention. We request affirmance as to these matters
complained of on appeal.
The [Petitioner] complains that his counsel did not file motions he
wished to have been filed. It must be noted that the [Petitioner]
complains of the actions of his first trial counsel, who was replaced
following the mistrial. The [Petitioner] ignores the ethical duty of
lawyers not to burden courts with motions they deem frivolous.
Moreover, the [Petitioner] filed numerous pretrial motions pro se,
which were addressed by this Court prior to trial. As addressed in our
response to the [Petitioner’s] claim that he was deprived of his right to
self-represent, the transcripts bear out that the [Petitioner] sought at all
times to avail himself of all of the advantages of counsel and of being
pro se. His pro se motions were addressed by this Court. Thus no
prejudice accrued to the [Petitioner]. The [Petitioner] cannot meet at
least one of the prongs of a test in which he must meet all three and so
the PCRA claim would have failed anyway. We therefore humbly
request affirmance on this matter.
The [Petitioner] also complains that his first trial counsel admitted his
guilt to certain crimes in contravention of the holding in McCoy v.
Louisiana, 138 S. Ct. 1500 (2018) (holding in part that counsel could
not cede defense of a charge without consent of the accused). We agree
wholeheartedly with the [Petitioner]. However, the rub is that
[Petitioner’s] first trial ended in a mistrial. Any failures of his first trial
counsel did not harm the [Petitioner] on retrial. The [Petitioner] has
suffered no prejudice. The [Petitioner] cannot meet at least one of the
prongs of a test in which he must meet all three and so the PCRA claim
would have failed anyway. We pray for affirmance as to this matter
complained of on appeal.
51

The [Petitioner] argues that his trial counsel was ineffective as a result
of the limited time that she and the [Petitioner] spent in preparation
together. We disagree.
To begin, we note that, at the conclusion of the mistrial, the following
exchange occurred with [Petitioner’s] first trial counsel, whose firm
supplied [Petitioner] with retrial counsel:
Court:

Well, I’m noting that you indicated yesterday there was
an attorney prepared to take your place, so I’m kind of
holding you to that.

Defense: Absolutely, Your Honor.
Moreover, the [Petitioner] was aware, at the time of trial, of the issues
he highlights as wishing to have discussed with his trial counsel—save
for a lack of time. Though the [Petitioner] alleges he did not have
enough time to prepare with substitute counsel, the [Petitioner] could
have alerted counsel to these issues during trial. Finally, this complaint
lacks merit where it contradicts, in part, the [Petitioner’s] earlier claim
that this Court denied his right to self-representation. By his own
complaints, the [Petitioner] alleges that he was ready to steward his own
case. It follows, then, that the [Petitioner] was perfectly capable of
aiding his trial counsel and informing her of areas that he wished her to
delve into. Specifically, [Petitioner’s] allegation that his $100.00 bill
and $200.00 Carhartt jacket were stolen at Kiro’s could have easily
been discussed with his counsel during the course of the trial and put to
the test. The [Petitioner’s] allegation that his vehicle was parked at
“T7S Trophies” is incongruent with the testimony of the [Petitioner’s]
wife and Ron Weagley about the [Petitioner] walking him after the first
altercation when Danny Leiphart and his cohort were still inside Kiro’s.
The [Petitioner] does not allege that counsel was unwilling to hear him
out; but, rather, that there was insufficient time with his trial counsel.
This is patently false. There is no merit to this claim of ineffectiveness.
In addition to failing to meet the first prong of the test for
ineffectiveness, the [Petitioner] cannot meet the prejudice prong of the
test for ineffectiveness. The overwhelming evidence, as illustrated in
the fact section of this opinion, indicates that the [Petitioner] was
taunting Danny Leiphart with a knife, was attempting to get at Danny,
52

and proclaiming his desire to harm Danny. Moreover, the [Petitioner’s]
wife called Ron Weagley to warn him that the [Petitioner] was,
depending on whose version of events is to be believed, returning with
a knife or “something” and not to allow the [Petitioner] entry to the bar.
This evidences the [Petitioner’s] wife’s state of mind regarding the
[Petitioner’s] return to Kiro’s. Additionally, the [Petitioner] was
carrying a kitchen drawer’s worth of knives. Though the [Petitioner] is
sure to argue that not all of the knives located were found on him, some
knives were found on the [Petitioner] and others were located along the
[Petitioner’s] path of travel. As a typical person could defend
themselves with, at most, two knives at one time, the jury could
reasonably infer nefarious intent from the sheer number of knives the
[Petitioner] brought to an altercation in which no one testified that
Danny Leiphart displayed any weaponry. The [Petitioner] suffered no
prejudice from lack of evidence being presented that he may have had
some legitimate reasons to return to the bar. The [Petitioner’s]
illegitimate reason was on full display for the jury. The [Petitioner]
cannot meet at least one of the prongs of a test in which he must meet
all three and so the PCRA claim would have failed anyway. We hope
for affirmance on this matter complained of on appeal.
(Doc. No. 30-1 at 817-27) (sub-headings and citations to the record omitted).
Upon review of the record, the Court concurs with the trial court’s thorough
opinion regarding Petitioner’s ineffective assistance of counsel claims. As discussed
supra, the Commonwealth presented sufficient evidence to convict Petitioner such
that Petitioner was not prejudiced by counsel’s failure to take any of the actions set
forth in the trial court’s Rule 1925(a) opinion.

Petitioner, therefore, has not

demonstrated that the state court’s disposition of his second ground for relief was
contrary to, or was an unreasonable application of, United States Supreme Court
precedent.

Moreover, Petitioner has not demonstrated that the state court’s

53

determination of the facts was unreasonable. Accordingly, his tenth claim for relief
will be dismissed.
IV.

CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c)(1)(A), unless a circuit justice or judge issues

a certificate of appealability (“COA”), an appeal may not be taken from a final order
in a proceeding initiated pursuant to 28 U.S.C. § 2254. A COA may issue only if
the applicant has made a substantial showing of the denial of a constitutional right.
See 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating
that jurists of reason could disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude the issues presented are adequate
to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322,
327 (2003). “When the district court denies a habeas petition on procedural grounds
without reaching the prisoner’s underlying constitutional claim, a COA should issue
when the prisoner shows, at least, that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right and
that jurists of reason would find it debatable whether the district court was correct in
its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). In the case at
bar, jurists of reason would not find the disposition of this case debatable.
Accordingly, the Court will not issue a COA in this case.

54

V.

CONCLUSION
For the following reasons, Petitioner’s amended § 2254 petition (Doc. No. 11)

will be denied and a COA will not issue. An appropriate Order follows.

s/ Sylvia H. Rambo
United States District Judge
Dated: July 14, 2021

55