Case Information

NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA ^[1] IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellee

v.

MATTHEW ZIMMERMAN

Appellant No. EDA 2015 Appeal from the Order July 17, 2015 In the Court of Common Pleas Philadelphia County Criminal Division at No(s): CP-51-CR-1204831-2003

CP-51-CR-1204841-2003

BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.* FILED MAY 08, 2017

MEMORANDUM BY LAZARUS, J.: Matthew appeals from the order, entered the Court of Common Pleas Philadelphia County, dismissing petition filed pursuant Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

On March 19, 2007, after nonjury trial, Zimmerman convicted of two counts of first -degree murder related crimes stemming from the shooting deaths of parents 1997. On July 10, 2007, the court sentenced aggregate term life prison. The judgment of sentence affirmed this Court on March 9, our Supreme Court denied allowance of appeal August 2009.

* Former Justice specially assigned the Superior Court.

On November 2010, Zimmerman, through current counsel, filed a timely first PCRA petition, raising multiple complaints of ineffectiveness of counsel. filed two motions for discovery, seeking the "complete" autopsy report for victims; information pertaining to two Commonwealth witnesses; and production of an unidentified fingerprint found at the crime scene. The PCRA court denied discovery and, after issuing Pa.R.C.P. 907 notice of intent to dismiss and considering Zimmerman's response thereto, dismissed Zimmerman's petition without a hearing July 2015. This timely appeal follows, which Zimmerman raises the following issues our review:

1. Whether the PCRA court erred and violated due process when it refused to grant discovery Brady/Giglio[1] material and failed to hold an evidentiary hearing to resolve genuine issues fact material of ineffective assistance for failure investigate and actual, factual innocence arising from new reliable evidence of alibi defense?

2. Whether the PCRA erred finding . . Zimmerman received effective assistance of counsel?

Brief of Appellant, at 2.

We begin by noting our scope and standard or review: On appeal from the denial PCRA relief, our standard scope of review is limited determining whether PCRA court's findings are supported record without legal error. Our scope of review limited the findings of the court the evidence of record, viewed light most favorable Brady Maryland, U.S. (1963); Giglio United States, 405 U.S. (1972).

the prevailing party at the PCRA level. The PCRA court's credibility determinations, when supported the record, are binding on this Court. However, this Court applies de novo standard of review PCRA court's legal conclusions. Commonwealth v. Medina, 92 A.3d 1210, 1214-15 (Pa. 2014) (citations quotation marks omitted).

We will address Zimmerman's ineffectiveness of counsel claims first. To obtain relief such claim, petitioner must establish his conviction or sentence resulted from "[i]neffective assistance of counsel which, the circumstances of the particular case, so undermined the truth determining process no reliable adjudication guilt or innocence could have taken place." 42 Pa.C.S.A. § 9543(a)(2)(ii). Counsel is presumed effective; rebut presumption, petitioner must demonstrate counsel's performance deficient that such deficiency prejudiced him. Commonwealth v. Cola vita, 993 A.2d 874, (Pa. 2010); Strickland v. Washington, U.S. (1984). Prejudice requires proof that, absent the allegedly deficient performance, the outcome of would likely have been different. Commonwealth Daniels, 104 A.3d (Pa. 2014). When asserting claim of ineffective assistance counsel, appellant is required make the following showing: (1) the underlying is arguable merit; (2) had no reasonable strategic basis action or inaction; and, (3) but for the errors omissions of counsel, there a reasonable probability the outcome of the proceedings been different. Kelley, 136 A.3d Super. 2016). The failure to satisfy any prong of the test for ineffectiveness will cause the claim to fail. Id.

Zimmerman identifies five areas which he believes trial counsel was ineffective. First, we will address assertion ineffective render accurate advice regarding failing the advantages and in disadvantages of waiving right a jury trial. Zimmerman asserts that trial counsel allowed him to sign a "misleading" written jury waiver form stating as follows:

Do you understand instead a jury trial you can choose to tried a Judge sitting without a jury which case you will have all same rights you would have at jury except Judge sitting alone will decide whether or not you are guilty?

Brief Appellant, 43. claims, without citation authority, this portion of the standard waiver form misleading "because bench does not afford the same protections as jury trial." Id. Zimmerman further asserts without support - that, had he opted jury trial, have been mistrial based on prosecutorial misconduct. "We repeatedly held failure develop argument with citation to, analysis of, relevant authority waives the issue review." Plante, 914 A.2d 2006) (citation omitted). Because Zimmerman has failed to support these bald assertions with citation to authority, has waived this claim.2

Moreover, Zimmerman was colloquied extensively the trial court regarding his decision to waive a jury trial. See N.T. Trial, 3/6/07, at 5-24. The advised "[the] essential ingredients, basic to the concept of jury trial[:] jury be chosen from members of the community (a jury one's peers), verdict be unanimous, that accused be allowed to participate in the selection of the jury panel." Commonwealth v. Williams, 312 A.2d 597, 600 (Pa. 1973). Based upon totality of relevant circumstances, see Commonwealth v. Mallory, 941 A.2d 686, 698 (Pa. 2008), Zimmerman's decision waive his right to jury was knowing intelligent. Accordingly, because the underlying claim that waiver not knowing intelligent is without merit, counsel cannot deemed ineffective. Kelley, supra.

Next, ineffective for failing object the Commonwealth's violation of the Interstate Agreement on To extent Zimmerman's is based on belief that, because a trial court sitting as fact -finder is presumed to ignore prejudicial material, see Commonwealth Irwin, 639 A.2d (Pa. 1994), he would not been mistrial had the prosecution committed prejudicial misconduct, belief misplaced. Prosecutorial misconduct may form the basis mistrial not only jury trials, but bench trials. See Francis, 665 A.2d 821, 825 Super. 1995) (mistrial granted nonjury trial where prosecution's improper references were prejudicial defendant).

Detainers, 42 Pa.C.S.A. §§ 9101-9108 ("IAD"). Pursuant IAD, a State obtains prisoner purposes of trial must try him within 120 days of arrival and, if it returns him to his original place of imprisonment prior to that trial, charges shall dismissed with prejudice. Alabama v. Bozeman, 533 U.S. 146, 146 (2001). Zimmerman the Commonwealth returned him to federal custody without holding trial and, thus, dismissal of charges. This claim patently meritless.

On September 2, 2005, through counsel, filed "Motion to Dismiss Pursuant to the Interstate Agreement on Detainers" which he raised the claim now presented on appeal. On March 2007, the motion was denied by court, which concluded Zimmerman's transfer did not occur pursuant IAD, but rather via writ habeas corpus ad prosequendum.3 Because Zimmerman's counsel did raise this issue prior to trial, ineffectiveness must fail.

Zimmerman next alleges ineffective for failing move dismiss the charges based the allegedly unreasonable delay that The IAD "does not apply when custody [is] obtained means writ habeas corpus ad prosequendum." Diggs, A.2d 1979), citing United States Mauro, U.S. (1978). occurred between the time the murders were committed in the date he was arrested in 2003. This claim is meritless.

"To prevail a claim of deprivation of due process based on pre indictment delay, a defendant must establish: (1) the delay caused him or her actual prejudice, (2) the Commonwealth's reasons the delay were improper." Louden, 803 A.2d 1181, 1184 2002).

In order for defendant to show actual prejudice, he or she must show he or she meaningfully impaired in or her ability to defend against the state's charges to such an extent the disposition of the criminal proceedings likely affected. This kind of prejudice is commonly demonstrated by the loss of documentary evidence or the unavailability of key witness. It is not sufficient for defendant make speculative or conclusory claims possible prejudice as result of the passage time. When defendant prejudice through absence of witnesses, he or she must show what specific manner missing witnesses have aided defense. Furthermore, it is the defendant's burden to show lost testimony or information is not available through other means. Id. (internal citations omitted).

Here, Zimmerman asserts that, had the Commonwealth been more diligent its prosecution, could have "gathered the alibi witnesses, obtained the complete autopsy report retained expert witness to establish time death with greater precision." Brief of Appellant, 53. However, fails demonstrate how the delay prosecution actually prejudiced him. Indeed, this belied by affidavits alleged alibi witnesses attached opposition the Commonwealth's motion to dismiss his petition, which were obtained in twelve years after the murders occurred and four years after his occurred. Moreover, Zimmerman provides absolutely no foundation for his assertion that he was not given the complete autopsy report of the victims at time his trial. Rather, he inexplicably asserts that because the Commonwealth has not denied the existence more complete report, it must exist. In fact, the Commonwealth states in its brief that Zimmerman "was provided with one only report." Brief of Appellee, at 15. Because Zimmerman has failed to demonstrate that he was prejudiced by the delay his prosecution, Louden, supra, he to no relief.4

Finally, Zimmerman counsel was ineffective because "made no effort to fix time death[,] which essential to establish the alibi defense," Brief of Appellant, at 41, failed engage expert witness "confirm time of death between a.m. Sunday p.m. Sunday, which case Zimmerman had an alibi out of the mouths of the prosecution's own witnesses." Id. at 55. Zimmerman has failed demonstrate the Commonwealth's reasons for the delay were improper. Zimmerman baldly asserts "[t]he had no more evidence against than it had on February 1997 when it discovered bodies[.]" Brief of Appellant, at 53. The record belies this statement. In 2003, fellow inmate named Carl Cobbs came forward with information he had overheard Zimmerman admit murdering parents money. Cobbs subsequently testified Zimmerman's trial. Moreover, does not explain what possible "tactical advantage" the Commonwealth gained allegedly intentionally delaying prosecution.

To prevail for ineffective assistance of counsel for failure call an expert witness, petitioner must demonstrate:

(1) that witness[] existed; (2) that the witness[ was] available; (3) counsel was informed of the existence of the witness[] or should have known of the witness['] existence; (4) witness[ was] available and cooperate and would have testified on prepared Appellant's behalf; (5) absence of the testimony prejudiced the Appellant.

Commonwealth v. Lawson, [] 762 A.2d 753, 756 (Pa. Super. 2000) citing Commonwealth v. Pursell, [] 724 A.2d 293 ([Pa.] 1999). Our Supreme Court has made clear that: "[w]hen a defendant that some sort of expert testimony should have been introduced at trial, defendant must articulate what evidence available identify the witness who was willing offer such evidence." Commonwealth v. Williams, [] 640 A.2d 1251, ([Pa.] 1994) citing Commonwealth v. Holloway, [] 572 A.2d ([Pa.] 1990). This is consistent with our Supreme Court's previous mandate justify an evidentiary hearing with respect assertions of ineffectiveness trial counsel, it required an offer of proof be made that alleges sufficient facts upon which reviewing can that counsel may been conclude ineffective. Commonwealth v. Durst, [] 559 A.2d 504, ([Pa.] 1989). Claims ineffectiveness cannot considered in vacuum. Id. Commonwealth Lowery, 784 A.2d 795, 800-01 (Pa. 2001), quoting Steward, 775 A.2d 831-32 Super. 2001).

Here, Zimmerman identifies potential expert witness, whom he "believes . . will testify that time of death sometime [on] Sunday, . February 1997, between a.m. p.m." Memorandum of Law Supporting Petition, 11/1/10, "Request Evidentiary Hearing" (emphasis added). However, Zimmerman neither presents an affidavit from this expert confirming his willingness testify those facts, nor does he aver expert available testified trial. As such, has failed to demonstrate trial counsel was ineffective failing to call an expert witness. Lowery, supra. Accordingly, lacks merit.

Finally, Zimmerman claims PCRA court erred refusing grant discovery declining hold evidentiary hearing the claims raised PCRA petition. These are meritless. asserts PCRA court erred not granting him

discovery of the "complete" autopsy report, as well as information regarding any agreements the Commonwealth reached with two witnesses. requested the "rap sheets" of those witnesses.

Pennsylvania Rule of Criminal Procedure 902 provides "[e]xcept [in certain death penalty cases], no discovery shall permitted at any stage of [PCRA] proceedings, except upon leave court after showing exceptional circumstances." Pa.R.Crim.P. 902(E)(1). Neither the PCRA nor Pennsylvania Rules of Criminal Procedure define the term "exceptional circumstances." Commonwealth Watley, A.3d (Pa. 2016), citing Frey, A.3d Super. 2012). This Court, however, has held that "the court, its discretion" Id. determines whether case exceptional warrants discovery. Thus, we will not disturb court's determination regarding the abused existence of exceptional circumstances unless its discretion. Id. An abuse of discretion may not be found merely because an appellate court might have reached different conclusion, but requires a result manifest unreasonableness, or partiality, prejudice, bias or ill -will, or such lack of support as to clearly erroneous. v. Kneller, 999 A.2d 608, 614 2010) (citation omitted).

Here, PCRA court explained its decision not grant discovery as follows:

[W]e reviewed each and every request made [Zimmerman] in each discovery requests found that no exceptional circumstances existed any of those requests. To the contrary[,] each request was the nature of "fishing in expedition" hoping discover some exculpatory evidence. Accordingly, this [c]ourt properly followed Rule denied the discovery requests.

PCRA Court Opinion, 4/20/16, 12.

We can discern no abuse discretion the part of the PCRA court. Zimmerman's requests were grounded mere speculation that the evidence he sought may exist. He failed to proffer anything, such as affidavits from the two Commonwealth witnesses, tending to prove hunches have any basis fact. As such, was within its discretion conclude Zimmerman's discovery requests were nothing more than fishing expeditions did not constitute "exceptional circumstances" as required under Rule 902.

Zimmerman's evidentiary hearing is equally unavailing. asserts such hearing necessary "resolve matters of credibility" regarding the alibi witnesses who "were ready, willing and able to give [Zimmerman] an alibi Saturday night." Brief of Appellant, at 14. We disagree.

Pennsylvania Rule of Criminal Procedure 907 provides PCRA court has the discretion dismiss a petition without a hearing when the is satisfied "that there are no genuine issues concerning any material fact, defendant not entitled post -conviction collateral relief, no purpose would served any further proceedings[.]" Pa.R.Crim.P. 907(1). "[T]o obtain reversal of a court's decision dismiss a petition without hearing, an appellant must show he raised genuine issue fact which, if resolved favor, would him to relief, or that court otherwise abused denying hearing." its discretion Commonwealth Hanible, 30 A.3d 452-53 (Pa. 2011), quoting D'Amato, 856 A.2d 806,820 2004).

Here, Zimmerman has failed satisfy this burden. Zimmerman provided affidavits from four purported alibi witnesses. See Opposition Commonwealth's Motion to Dismiss PCRA, 10/5/11, at Exhibits AA -DD. The first witness, Richard Antipuna, stated, relevant part, he saw Zimmerman at party on night Saturday, February 1997. Given Zimmerman believes the murders occurred between a.m. p.m. on Sunday, Antipuna's testimony be irrelevant. Second, Mark Hoffman stated saw friend's house between p.m. p.m. the Sunday of the murders. Even if the murders occurred during the timeframe postulates, Hoffman only provides alibi for two out of twelve relevant hours. The final two witnesses, Dawn Kile and James Holton, claim also to seen at the party Saturday evening. Again, however, given Zimmerman's theory of the case, these statements fail to supply Zimmerman with an alibi relevant time period. the proffered statements actually provide

Because none Zimmerman with alibi, the court properly concluded failed to raise genuine issue concerning material fact warrants an

evidentiary hearing.

Order affirmed.

Judgment Entered.

J seph D. Seletyn,

Prothonotary

Date: 5/8/2017