Commonwealth v. Chmiel (2005)

Accordingly, memoranda or briefs prepared by counsel for his/her own use or memoranda which merely summarize the case law but contain no factual application to the client are not privileged.”) (cleaned up); , 889 A.2d 501 , 599 (Pa. 2005) (“First and foremost is the rule that the [attorney-client] privilege applies only to confidential communications made by the client to the attorney in connection with the provision of legal services.”); , 861 A.2d 269, 273 (Pa. Super.

Accordingly, memoranda or briefs prepared by counsel for his/her own use or memoranda which merely summarize the case law but contain no factual application to the client are not privileged.”) (cleaned up); , 889 A.2d 501 , 599 (Pa. 2005) (“First and foremost is the rule that the [attorney-client] privilege applies only to confidential communications made by the client to the attorney in connection with the provision of legal services.”); , 861 A.2d 269, 273 (Pa. Super.

On April 20, 2015, the Federal Bureau of Investigation (“FBI”) issued a press release admitting, for the first time, that testimony by FBI analysts regarding microscopic hair analysis in criminal trials was 1 This Court provided a thorough recitation of the facts underlying the judgment of sentence on direct appeal, Commonwealth v. Chmiel, 889 A.2d 501, 509-13 (Pa. 2005) (“Chmiel I”), and in Chmiel’s first appeal pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S…

See Commonwealth v. Chmiel, 585 Pa. 547, 611 , 889 A.2d 501, 539 (2005) ("This Court has recognized consistently that evidence regarding a defendant's past violent convictions or conduct does not implicate the issue of his or her future dangerousness.").

FACTUAL AND PROCEDURAL BACKGROUND On September 6, 2002, a jury in the Lackawanna County Court of Common Pleas found Petitioner guilty of three counts of first-degree murder and related charges for killing Angelina Lunario, James Lunario, and Victor Lunario.1 See Commonwealth v. Chmiel, 889 A.2d 501, 515 (Pa. 2005) (“Chmiel-I”).2 The evidence at trial included expert testimony concerning microscopic hair comparison analysis of two hairs recovered from a sweater sleeve mask fo…

See Commonwealth v. Chmiel, 585 Pa. 547 , 889 A.2d 501, 532 (2005) (“[i]t is well established that certain out-of-court statements offered to explain the course of police conduct are admissible because they are offered not for the truth of the matters asserted but rather to show the information upon which police acted.”).

Commonwealth v. Chmiel, 585 Pa. 547, 604 , 889 A.2d 501, 534-35 (2005) (some citations omitted).

Chmiel, 889 A.2d 501, 515-16 (Pa. 2005) (“Chmiel III”).

See Commonwealth v. Chmiel, 889 A.2d 501, 521 (Pa. 2005) (“[A]n erroneous ruling by a trial court on an evidentiary issue does not require us to grant relief where the error was harmless.”).

See Chmiel, 889 A.2d at 521 (“[h]armless error exists where . . . the error did not prejudice the defendant”).

See Commonwealth v. Chmiel, 585 Pa. 547 , 889 A.2d 501, 546 (2005) (“Trial counsel’s failure to call a particular witness does not constitute ineffective assistance without some showing that the absent witnesses] testimony would have been beneficial or helpful in establishing the asserted defense.”) (citing Commonwealth v. Durst, 522 Pa. 2 , 559 A.2d 504, 506 (1989) (citation omitted)).

Commonwealth v. Chmiel, 585 Pa. 547 , 889 A.2d 501, 540 (2005) ("Chmiel III"). .Appellant’s claims are reproduced verbatim below, but reordered for ease of disposition: 1.

See Commonwealth v. Chmiel, 889 A.2d 501, 521 (Pa. 2005) (“[A]n erroneous ruling by a trial court on an evidentiary issue does not require us to grant relief where the error was harmless.”) (citation omitted).

He may prosecute with earnestness and vigor— 52 Commonwealth v. Chmiel, 889 A.2d 501, 521 (Pa. 2005). 53 Cmwlth.’s Br. at 12. 54 In a telling part of the exchange, the prosecutor openly speculated as to Baizar’s motives for not testifying.

Pa.R.E. 404(b)(2); Commonwealth v. Chmiel, … 889 A.2d 501, 534 ([Pa.] 2005).

Appellants do not cite to any authority, nor do we know of any such authority, that would allow evidence presented in a filing after a judgment has been entered to be considered “part of the record.” Appellants cite to Commonwealth v. Chmiel, 889 A.2d 501, 521 (Pa. 2005) for the proposition that “Evidence obtained through discovery and presented to the court, even if not formally admitted during the trial testimony phase, can and should be considered by the court, particular…

Appellants do not cite to any authority, nor do we know of any such authority, that would allow evidence presented in a filing after a judgment has been entered to be considered “part of the record.” Appellants cite to Commonwealth v. Chmiel, 889 A.2d 501, 521 (Pa. 2005) for the proposition that “Evidence obtained through discovery and presented to the court, even if not formally admitted during the trial testimony phase, can and should be considered by the court, particular…

Commonwealth v. Chmiel, 889 A.2d 501, 546 (Pa. 2005).17 Accordingly, Appellant’s claim that Attorney Batz was ineffective for failing to present Ms. McKinney’s testimony lacks merit.

Commonwealth v. Chmiel, 889 A.2d 501, 521 (Pa. 2005).

Commonwealth v. Chmiel, 889 A.2d 501, 544 ([Pa.] 2005). **** Our courts have explained that a prosecutor cannot intrude upon the exclusive function of the jury to evaluate the credibility of witnesses by broadly characterizing the testimony of a witness as a “big lie.” Nonetheless, a prosecutor’s assertion that a witness had lied does not warrant a new trial where the statement was a fair inference from irrefutable evidence rather than a broad characterization.

Since trial counsel did file a post-sentence motion challenging the weight of the evidence, he could not have been ineffective for failing to do so.9 See Commonwealth v. Chmiel, 889 A.2d 501, 541 (Pa. 2005) (stating “counsel cannot be found ineffective for failing to do something that he, in fact, did”).

The Superior Court identified these comments as a separate claim of trial counsel ineffectiveness, reviewed the comments, and explicitly held: . . . we observe that the prosecutor's statements were not opinions on the truth of the testimony or Appellant’s guilt. . . . [E]ven if the remarks were an improper expression of the prosecutor's personal opinion, “they cannot be characterized as prosecutorial misconduct unless their effect was to ‘prejudice the jury, forming in their…

Rule 609(a) “requires an actual conviction of a crime involving dishonesty or false statement in order for a witness’s credibility to be attacked with evidence of the crime.” Commonwealth v. Chmiel, 889 A.2d 501, 535 (Pa. 2005).

“The burden of proving ineffectiveness rests with [the petitioner].” Commonwealth v. Chmiel, 889 A.2d 501, 540 (Pa. 2005).

“The -9- J-S31025-23 burden of proving ineffectiveness rests with [the petitioner].” Commonwealth v. Chmiel, 889 A.2d 501, 540 (Pa. 2005).

See Commonwealth v. Thomas, 44 A.3d 12, 24 (Pa. 2012) (quoting Commonwealth v. Chmiel, 889 A.2d 501, 546 (Pa. 2005) (“Trial counsel's failure to call a particular witness does not constitute ineffective assistance without some showing that the absent - 11 - J-S27037-24 witness'[s] testimony would have been beneficial or helpful in establishing the asserted defense”).

Commonwealth v. Chimel, 889 A.2d 501 , 534 (Pa. 2005) (“the veracity of a witness may not be impeached by prior arrests which have not led to convictions”).

Commonwealth v. Chimel, 889 A.2d 501 , 534 (Pa. 2005) (“the veracity of a witness may not be impeached by prior arrests which have not led to convictions”).

To demonstrate Strickland prejudice, the PCRA petitioner “must show how the uncalled witnesses’ testimony would have been beneficial under the circumstances of the case.” Commonwealth v. Gibson, … 951 A.2d 1110, 1134 ([Pa.] 2008); see also Commonwealth v. Chmiel, … 889 A.2d 501, 546 ([Pa.] 2005) (“Trial counsel’s failure to call a particular witness does not constitute ineffective assistance without some showing that the absent witness’ testimony would have been beneficial o…

See Commonwealth v. Clancy, 648 Pa. 179 , 192 A.3d 44, 62-63 (2018) (endorsing a two-part test to review a prosecutor’s remarks: (1) whether the substance of the remarks relate to the elements of the crimes charged, the evidence presented, and constitute a fair and reasonable rebuttal to the defense’s arguments, and (2) whether the unavoidable effect of the remarks was to prejudice the jury against the defendant); Commonwealth v. Chmiel, 585 Pa. 547 , 889 A.2d 501, 544 (2005…

See Commonwealth v. Chmiel, 889 A.2d 501, 540 (Pa. 2005) (“The burden of proving ineffectiveness rests with Appellant.”).

See Commonwealth v. Chmiel, 889 A.2d 501, 521 (Pa. 2005) (“[H]armless error exists where … - 16 - J-S01015-23 the error did not prejudice the defendant or the prejudice was de minimis[.]”) (citation omitted); Commonwealth v. Young, 748 A.2d 166, 193 (Pa. 1999) (stating that an erroneous ruling by a trial court on an evidentiary issue does not require an appellate court to grant relief where the error was harmless).

See Commonwealth v. Chmiel, 889 A.2d 501, 546 (Pa. 2005) (“Trial counsel’s failure to call a particular witness does not constitute ineffective assistance without some showing that the absent witness’ testimony would have been beneficial or helpful in establishing the asserted defense”).

See Commonwealth v. Chmiel, 889 A.2d 501, 521 (Pa. 2005) (“[A]n erroneous ruling by a trial court on an evidentiary issue does not require us to grant relief where the error was harmless.”) (citation omitted).

See Commonwealth v. Chmiel, 889 A.2d 501, 540 (Pa. 2005) (“we need not determine whether the first two prongs of [the ineffective assistance of counsel] standard are met if the record shows that [a]ppellant has not met the prejudice prong”).

See Commonwealth v. Chmiel, 889 A.2d 501, 541 (Pa. 2005) (“Trial counsel cannot be found ineffective for failing to do something that he, in fact, did.”).

Commonwealth v. Chmiel, 889 A.2d 501, 543 (Pa. 2005) (“[T]here was nothing wrong with the prosecutor’s remarks[,] and counsel cannot be faulted for failing to pursue a meritless claim.”). “[P]rosecutorial misconduct will not be found where comments were based on the evidence or proper inferences therefrom or were only oratorical flair.” Id. at 544 .

To demonstrate Strickland prejudice, the PCRA petitioner “must show how the uncalled witnesses’ testimony would have been beneficial under the circumstances of the case.” Commonwealth v. Gibson, [] 951 A.2d 1110, 1134 ([Pa.] 2008); see also Commonwealth v. Chmiel, [] 889 A.2d 501, 546 ([Pa.] 2005) (“Trial counsel’s failure to call a particular witness does not constitute ineffective assistance without some showing that the absent witness’s testimony would have been beneficia…

To demonstrate [] prejudice, the PCRA petitioner “must show how the uncalled witnesses' testimony would have been beneficial under the circumstances of the case.” Commonwealth v. Gibson, 951 A.2d 1110, 1134 (Pa. 2008); see also Commonwealth v. Chmiel, 889 A.2d 501, 546 (Pa. 2005) (“Trial counsel's failure to call a particular witness does not constitute ineffective assistance without some showing that the absent witness' testimony would have been beneficial or helpful in est…

To demonstrate prejudice, the PCRA petitioner "must show how the uncalled witnesses1 testimony would have been beneficial under the circumstances of the case." Comm. v. Gibson, 9 51 A.2d 1110 , 1134 (Pa. 2008); see also Comm. v. Chmiel, 889 A.2d 501, 546 (Pa. 2005) ("Trial counsel's failure to call a particular witness does not constitute ineffective assistance without some showing that the absent witness1 testimony would have been beneficial or helpful in establishing the a…

Commonwealth v. Weiss, 81 A.3d 767, 805 (Pa. 2013), citing Commonwealth v. Chmiel, 889 A.2d 501, 532 (Pa. 2005) (“[i]t is well established that certain out-of-court statements offered to explain the course of police conduct are admissible because they are offered not for the truth of the matters asserted but rather to show the information upon which the police acted.”).

This Court relied solely on the record to determine that this issue lacked merit. 13 2008); see also Commonwealth v. Chmiel, 889 A.2d 501, 546 (Pa. 2005) ("Trial counsel's failure to call a particular witness does not constitute ineffective assistance without some showing that the absent witness' testimony would have been beneficial or helpful in establishing the asserted defense.").

To demonstrate prejudice, the PCRA petitioner “must show how the uncalled witnesses’ testimony would have been beneficial under the circumstances of the case.” Commonwealth v. Gibson, 951 A.2d 1110, 1134 (Pa. 2008); see also Commonwealth v. Chmiel, 889 A.2d 501, 546 (Pa. 2005) (“Trial counsel’s failure to call a particular witness does not constitute ineffective assistance without some showing that the absent witness’ testimony would have been beneficial or helpful in establ…

To demonstrate [ ] prejudice, the PCRA petitioner “must show how the uncalled witnesses' testimony would have been beneficial under the circumstances of the case.” Commonwealth v. Gibson, 597 Pa. 402 , 951 A.2d 1110, 1134 (2008); see also Commonwealth v. Chmiel, 585 Pa. 547 , 889 A.2d 501, 546 (2005) (“Trial counsel's failure to call a particular witness does not constitute ineffective assistance without some showing that the absent witness' testimony would have been benefic…

S38010/16 uncalled witnesses’ testimony would have been beneficial under the circumstances of the case.” Commonwealth v. Gibson, 597 Pa. 402 , 951 A.2d 1110, 1134 (2008); see also Commonwealth v. Chmiel, 585 Pa. 547 , 889 A.2d 501, 546 (2005) (“Trial counsel’s failure to call a particular witness does not constitute ineffective assistance without some showing that the absent witness’ testimony would have been beneficial or helpful in establishing the asserted defense.”).

Instead, the defendant "must show how the uncalled witnesses' testimony would have been beneficial under the circumstances of the case." Id. at 536 ; Commonwealth v. Chmiel, 889 A.2d 501, 546 (Pa. 2005) ("Trial counsel's failure to call a particular witness does not constitute ineffective assistance without some showing that the absent witness' testimony would have been beneficial or helpful in establishing the asserted defense.").

See PCO at 14 (citing Commonwealth v. Chmiel, 889 A.2d 501, 527 (Pa. 2005) (“Cross-examination may be employed to test a witness’ story, to impeach credibility, and to establish a witness’ motive for testifying.”).

To demonstrate prejudice, the PCRA petitioner “must show how the uncalled witnesses' testimony would have been beneficial under the circumstances of the case.” Commonwealth v. Gibson, 951 A.2d 1110, 1134 (Pa. 2008); see also Commonwealth v. Chmiel, 889 A.2d 501, 546 (Pa. 2005) (“Trial counsel's failure to call a particular witness does not constitute ineffective assistance without some showing that the absent witness' testimony would have been beneficial or helpful in establ…

To demonstrate Strickland prejudice, the PCRA petitioner “must show how the uncalled witnesses’ testimony would have been beneficial under the circumstances of the *352 case.” Commonwealth v. Gibson, 597 Pa. 402 , 951 A.2d 1110, 1134 (2008); see also Commonwealth v. Chmiel, 585 Pa. 547 , 889 A.2d 501, 546 (2005) (“Trial counsel’s failure to call a particular witness does not constitute ineffective assistance without some showing that the absent witness’ testimony would have …

See Commonwealth v. Chmiel, 585 Pa. 547 , 889 A.2d 501, 532 (2005) (“The rule against admitting hearsay evidence stems from its presumed unreliability, because the declarant cannot be challenged regarding the accuracy of the statement.”) (citation omitted).