J-S13005-14 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

STEVEN TIELSCH 

 Appellant No. 1912 WDA 2012 

Appeal from the PCRA Order November 16, 2012 

In the Court of Common Pleas of Allegheny County 

Criminal Division at No(s): CP-02-CR-0003990-2000 

BEFORE: PANELLA, J., MUNDY, J., and STABILE, J. 

MEMORANDUM BY PANELLA, J. FILED MAY 15, 2015 

Appellant, Steven Tielsch, appeals from the order entered on 

November 16, 2012, in the Court of Common Pleas of Allegheny County, 

which denied his petition filed pursuant to the Post Conviction Relief Act 

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

As we write primarily for the parties, who are familiar with the factual 

context and legal history of this case, we set forth only so much of the facts 

and procedural history as is necessary to our analysis. 

On April 17, 1986, Tielsch and Kevin Ohm were driving 

around the Squirrel Hill section of Pittsburgh in a black Corvette. 

At approximately 9:15 p.m., the victim, Neil S. Rosenbaum, a 

rabbinical student from Canada, was walking toward the 

intersection of Phillips and Pittcock Avenues when Tielsch and 

Ohm pulled up in the Corvette. The pair asked the victim for 

directions. As the victim approached the vehicle, Tielsch opened 

fire and shot the victim four to five times. Immediately after the 

shooting, Tielsch and Ohm drove off. Shortly thereafter, before 
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he passed away, the victim told Officer Albert Stegena that a 

black Corvette had pulled up to him and that two white males 

had been in the vehicle. 

The victim had bullet wounds to his chest, right elbow, 

right buttock, left buttock, and right wrist. Leon Rozin, M.D., the 

chief forensic pathologist for Allegheny County, testified that it 

was possible that the bullet which entered the victim's chest also 

caused the wound to the elbow. See N.T., Trial 4, 9/4/02, at 

218–219. 

Although an intensive investigation took place, little was 

learned as to the killer’s identity until early 1988 when 

representatives from the District Attorney’s Office and the local 

police department met with Sanford Gordon. Gordon told the 

police that Tielsch had bragged about the killing while the two 

had been housed at the Allegheny County Jail. 

Additional evidence came to the Commonwealth’s attention 

through Michael Starr. While Starr was under federal indictment, 

he related to the authorities that he was involved in an incident 

in the summer of 1991. Starr had been at a nightclub in the 

Strip District of Pittsburgh when he got into an altercation with 

Tielsch. According to Starr, Tielsch eventually pulled his jacket to 

the side and exposed the butt of a gun to Starr, and said: “I 

wacked some Jew f—k and I would have no trouble doing you 

too.” 

Tielsch was subsequently arrested for the victim's murder 

on February 17, 2000. On January 23, 2001, the first jury trial 

commenced. On February 13, 2001, the jury informed the trial 

court that it was hopelessly deadlocked; a mistrial was 

eventually declared. On November 26, 2001, the second jury 

trial began, but again the result was a mistrial due to a 

deadlocked jury. On May 13, 2002, the third jury trial began, but 

once again, the jury informed the trial court that it was 

deadlocked without hope for a unanimous verdict. 

As stated above, this appeal is a result of the fourth jury 

trial, which began on August 27, 2002, and ended on September 

13, 2002, when the jury returned its verdict finding Tielsch guilty 

of third-degree murder. 
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Following his conviction at the fourth trial, Tielsch was 

sentenced, on November 13, 2002, to a term of imprisonment of 

ten to twenty years on the conviction for third-degree murder. 

Commonwealth v. Tielsch, 934 A.2d 81, 83-84 (Pa. Super. 2007) 

(Panella, J.) (footnotes omitted). 

This Court affirmed Tielsch’s judgment of sentence. The Pennsylvania 

Supreme Court denied an appeal; the United States Supreme Court denied 

certiorari. Tielsch filed a timely pro se PCRA petition. The PCRA court 

appointed counsel who later withdrew and the PCRA court appointed Patrick 

Kenneth Nightingale, Esquire. Tielsch then filed, pro se, an “addendum” to 

his PCRA petition and then shortly thereafter another pro se amended 

petition. On September 23, 2011, counsel filed an amended PCRA petition 

and on January 25, 2012, filed a supplement to the petition. The PCRA court 

dismissed the petition without a hearing. This timely appeal followed. 

 This case has been in this Court for some time. Tielsch’s relationship 

with his initial collateral appellate attorney, Patrick Kenneth Nightingale, 

Esquire, disintegrated and on March 11, 2014, this Court remanded the 

matter to the PCRA court for a determination of whether Tielsch was entitled 

to the appointment of new counsel. Prior to that there was a delay in 

receiving the record from the PCRA court and each side made requests for 

extensions of time in which to file briefs, which were granted. 

On April 25, 2014, Robert E. Mielnicki, Esquire, entered his appearance 

on Tielsch’s behalf. The panel granted two applications for extension of time 
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for Attorney Mielnicki to file a brief, which he filed on July 28, 2014—91 days 

after entering his appearance in this Court. The brief raises 32 issues1 and 

is 85 pages. The day after filing the brief, Attorney Mielnicki filed an 

application to amend the brief. The panel granted that request by order 

entered on August 25, 2014, and directed counsel to file a new brief by 

September 22, 2014. 

The panel also offered advice. We noted, “[t]he grant of Appellant’s 

motion should in no way be construed as permission to expand either the 

length of the brief or the number of issues. The grant is to prune not to 

enlarge.” Order, 8/25/14. We also reminded counsel that “selecting the few 

most important issues succinctly stated presents the greatest likelihood of 

success.” Id. (citation omitted). And we “strongly advise[d]” counsel to 

review certain Rules of Appellate Procedure prior to filing the amended brief. 

Id. 

Counsel took none of the advice. Instead, Attorney Mielnicki filed a 

letter, in which he notes that “[i]n light of the cautionary language and/or 

advisory language contained in the order” he “decided not to file such [i.e., 

an amended brief].” Letter, 9/23/14. He then explains, “given the time he 

had to write” the brief, and the fact that he typed it himself, that it contains 

“a few typographical errors.” Id. It is interesting to consider that had 

____________________________________________ 

1

 The brief identifies 33 issues, but omits issue ten. 
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Attorney Mielnicki decided to file an amended brief on September 22, 2014, 

that would have been 147 days since he entered his appearance in this 

Court and 56 days after the filing of his brief. 

Preliminarily, we must comment on the brief. As noted, the brief 

raises 32 issues and is 85 pages. It contains, by Attorney Mielnicki’s 

admission, typographical errors. He is correct; it does. As we warned 

counsel in our order, length in a brief does not necessarily correlate to 

effective advocacy. “Experienced advocates since time beyond memory 

have emphasized the importance of winnowing out weaker arguments on 

appeal and focusing on one central issue if possible, or at most on a few key 

issues.” Jones v. Barnes, 463 U.S. 745, 751-752 (1983). “Most cases 

present only one, two, or three significant questions[.]” Id., at 752 (citation 

omitted). See also 20A West’s Pa. Prac., Appellate Practice § 2135:4. 

Attorney Mielnicki failed to comply with Rule 2135 of the Rules of 

Appellate Procedure. See generally Commonwealth v. Spuck, 86 A.3d 

870, 872-874 (Pa. Super. 2014). That rule provides that a principal brief is 

limited to 14,000 words and that “[a] party shall file a certificate of 

compliance with the word count limit if the principal brief is longer than 30 

pages....” Pa.R.A.P. 2135(a). We caution counsel that this Court can dismiss 

an appeal for failure to comply with our Rules of Appellate Procedure. See 

Pa.R.A.P. 2101. 
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Before we proceed to the merits, we can summarily dispose of 

numerous issues. In the very first issue, Attorney Mielnicki explains why the 

issue fails. See Appellant’s Brief, at 32-34. There are many other issues 

that we can immediately find waived as Attorney Mielnicki explicitly identifies 

them as meritless or they are completely undeveloped and serve merely to 

identify an issue. We are puzzled as to why these issues are even in the 

brief. See Pa.R.A.P. 2119(a) (each point treated in an argument must be 

“followed by such discussion and citation of authorities as are deemed 

pertinent”); Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) 

(“[W]here an appellate brief fails to provide any discussion of a claim with 

citation to relevant authority or fails to develop the issue in any other 

meaningful fashion capable of review, that claim is waived.”). The issues 

are 5, 12-19, 21-24, 26-27, 29-30, 32-33. See Appellant’s Brief, at 61, 72-

75, 77-78, 82-85. 

There seems to be some confusion on Tielsch’s behalf as to whether 

this case requires layered ineffectiveness claims. See Appellant’s Brief, at 

28-29. Tielsch filed his direct appeal on December 12, 2002, just before our 

Supreme Court’s decision in Commonwealth v. Grant, 813 A.2d 726 (Pa. 

2002), which held that as a general rule claims of ineffective assistance of 

counsel should be deferred until collateral review. The amended PCRA 

petition filed by counsel and the PCRA court both treated the case as 
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presenting layered ineffectiveness claims. In other words, pre-Grant. We 

shall do the same. 

Tielsch may not now raise and prevail on a claim of his trial counsel’s 

ineffectiveness. Pursuant to the PCRA, once his counsel on direct appeal 

failed to raise the issue of trial counsel’s ineffectiveness, any claim of trial 

counsel’s ineffectiveness was waived. See Commonwealth v. McGill, 832 

A.2d 1014, 1021 (Pa. 2003). The only claim of counsel ineffectiveness 

Tielsch can presently raise is that of his counsel on direct appeal for failing to 

claim that trial counsel was ineffective. See id. This type of claim is known 

as a “layered ineffectiveness” claim. Id., at 1022. 

 To preserve and prevail on a layered ineffectivenss claim, a petitioner 

must have first pled in his petition that counsel on direct appeal was 

ineffective for failing to allege trial counsel’s ineffectiveness. See id. The 

PCRA petitioner must then present argument on each prong of the Pierce2

test with respect to appellate counsel. See id. In other words, in order to 

establish that appellate counsel was ineffective for failing to allege that trial 

counsel was ineffective, the following elements must be proven: “(1) the 

underlying claim of trial counsel’s ineffectiveness has arguable merit; (2) 

appellate counsel had no reasonable basis for failing to pursue the claim; 

and (3) but for appellate counsel’s ineffectiveness, the result on direct 

____________________________________________ 

2 Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987). 
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appeal would have differed.” Commonwealth v. Lopez, 854 A.2d 465, 469 

(Pa. 2004). 

 We first direct our attention to the performance of trial counsel 

because 

[a]n assessment of this prong requires appellant to establish 

each Pierce prong with respect to trial counsel's performance;

failure to establish any one of the prongs will defeat the entire 

claim. Commonwealth v. Basemore, 560 Pa. 258, 744 A.2d 

717, 738 n. 23 (2000) (citing Commonwealth v. Rollin, 558 

Pa. 532, 738 A.2d 435, 441 (1999)). This “merit” prong has 

been referred to as containing a “nested” argument—trial 

counsel’s performance must be addressed in order to determine 

whether appellate counsel was ineffective for failing to argue 

trial counsel's ineffectiveness. 

Id., at 469 n.5. Thus, an appellant must present argument on the following 

elements: (1) arguable merit to the underlying legal issue that is the basis 

of the contention that trial counsel is ineffective; (2) trial counsel had no 

reasonable basis for acting or failing to act; and (3) the defendant was 

prejudiced by the action or omission of trial counsel. See McGill, 832 A.2d 

at 1022-1023. 

 If an appellant fails to establish any of the Pierce prongs as to trial 

counsel’s performance, the entire claim fails. Lopez, 854 A.2d at 469 n.5; 

see also, McGill, 832 A.2d at 1023 (“Only if all three prongs as to the claim 

of trial counsel’s ineffectiveness are established, do prongs 2 and 3 of the 

Pierce test as to the claim of appellate counsel’s ineffectiveness have 

relevance....”). We proceed to the merits. 
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“On appeal from the denial of PCRA relief, our standard and scope of 

review is limited to determining whether the PCRA court’s findings are 

supported by the record and without legal error.” Commonwealth v. 

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied, 

Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013). 

 Tielsch first maintains that appellate counsel was ineffective for failing 

to raise trial counsel’s ineffectiveness for failing to move to suppress 

Tielsch’s statements made to law enforcement after his illegal arrest. 

 The affidavit of probable cause set forth that Tielsch admitted to two 

witnesses that he was the shooter. One of these witnesses, not identified by 

name in the affidavit, was Darrin Razimczyk. The affidavit also set forth that 

the witnesses would testify at the coroner’s inquest. At the coroner’s 

inquest, however, Razimczyk did not testify, claiming the Fifth Amendment 

privilege against self-incrimination. 

Tielsch contends that trial counsel was ineffective for failing to seek 

suppression of his post-arrest statements based on Razimczyk’s refusal to 

testify—that the refusal to testify rendered the arrest made without probable 

cause. See Appellant’s Brief, at 36 ¶¶ 53-54. Tielsch also argues that the 

Commonwealth was in possession of evidence that directly contradicted 

Razimczyk’s statement, but that the Commonwealth “sought an arrest 

warrant it knew that or most certainly should have known the information in 

the arrest warrant” was false. Id., at 37 ¶ 58. 
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As for the evidence in the Commonwealth’s possession that 

contradicted the affidavit, Tielsch offers nothing but conjecture. He cites no 

evidence—or to anything at all—to support this claim. It is simply his bald 

statement. That is simply not enough to sustain this claim. 

His claim that the affidavit is invalid given the later refusal to testify is 

unsupported by citation to any legal authority. Accordingly, we find this 

claim waived. See Commonwealth v. Williams, 959 A.2d 1252, 1258 

(Pa. Super. 2008); Pa.R.A.P. 2119(a). We refuse to develop Tielsch’s claims 

for him. 

 Tielsch next contends that appellate counsel was ineffective for failing 

to raise trial counsel’s ineffectiveness for failing to call a forensic expert in 

the field of tool mark identification. At trial, the Commonwealth called an 

expert to testify that the weapon found was the weapon used to kill the 

victim and that the barrel of the gun had been changed. Tielsch maintains 

that “[a]n expert who could have challenged the manner the Commonwealth 

determined that the gun found in 1996 was the gun used to Kill Rosenbaum, 

through tool mark analysis or identification, would have hampered part of 

the Commonwealth’s case.” Appellant’s Brief, at 41. 

 To succeed on a claim of counsel’s ineffectiveness for failure to call a 

witness 

a petitioner must prove that “the witness [ ] existed, the witness 

[was] ready and willing to testify, and the absence of the witness 

[’] testimony prejudiced petitioner and denied him a fair trial.” 

In particular, when challenging trial counsel’s failure to produce 
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expert testimony, “the defendant must articulate what evidence 

was available and identify the witness who was willing to offer 

such evidence.” 

Commonwealth v. Luster, 71 A.3d 1029, 1047 (Pa. Super. 2013) (en 

banc) (citations omitted; brackets in original). 

 Here, Tielsch has completely failed to identify an expert witness who 

was willing to testify at trial.3 Therefore, this claim fails. 

 In his next claim, Tielsch claims that trial counsel was ineffective for 

failing to call certain witnesses. See Appellant’s Brief, at 47. Again, Tielsch 

cannot succeed merely on a claim of trial counsel’s ineffectiveness. See 

McGill, 832 A.2d at 1021. Unlike his prior claim, however, Tielsch has 

identified numerous witnesses. See Appellant’s Brief, at 49-58. 

 There are two requirements to sustain this claim. The first is 

procedural. To be eligible for an evidentiary hearing on a claim of ineffective 

assistance for failing to call a witness a petitioner must include in his petition 

“a signed certification as to each intended witness stating the witness’s 

name, address, date of birth and substance of testimony.” Commonwealth 

v. Reid, 99 A.3d 427, 438 (Pa. 2014) (citations omitted). The second 

requirement is substantive. Namely, 

a petitioner must establish that: (1) the witness existed; (2) the 

witness was available; (3) counsel was informed or should have 

____________________________________________ 

3

 The PCRA court notes that trial counsel attempted to locate an expert 

witness to contradict the Commonwealth’s expert witness, but was unable to 

find one. See PCRA Court Opinion, 5/2/13, at 4. 
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known of the existence of the witness; (4) the witness was 

prepared to cooperate and would have testified on defendant’s 

behalf; and (5) the absence of such testimony prejudiced him 

and denied him a fair trial. 

Id. (citation omitted). 

 As noted, there are numerous potential witnesses listed in the brief. 

Tielsch fails to claim, among other things, that any of these witnesses were 

available to testify at trial. There is only one witness for whom counsel 

provided a signed certification. Counsel signed a certification for James 

Wymard, Esquire. In the signed certification, counsel notes that Attorney 

Wymard informed him that he “did not move to suppress an arrest warrant” 

and “did not follow up with any ‘investigation’ relative to the PennDOT 

records because I was no longer counsel for Mr. Tielsch[,]” but that he “did 

... build a record with the trial court setting forth allegations of prosecutorial 

misconduct.” Certified Statement of James Wymard, Esquire, filed 

11/21/11, at ¶¶ 4-5. In his brief, Tielsch focuses exclusively on Attorney 

Wymard’s potential testimony in relation to the informant, Sanford Gordon—

a subject not even mentioned in the signed certification. See Appellant’s 

Brief, at 55 ¶ k. Given the procedural and substantive deficiencies 

mentioned above, this claim fails.4 

____________________________________________ 

4

 Also in this claim, Tielsch “again reminds” us of the “Tielsch To Do Notes” 

appended to his amended petition and notes that counsel was ineffective for 

investigating the items listed therein. Appellant’s Brief, at 60. That is the 

substance of the argument. The “Tielsch To Do Notes” are 76 handwritten 

(Footnote Continued Next Page) 
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 In issue 31, Tielsch raises another claim of ineffective assistance for 

failing to call a witness. He argues that trial counsel was ineffective for 

failing to have Chris Conrad, Esquire, testify about how the Commonwealth 

misplaced documents. According to Tielsch, Conrad is the assistant district 

attorney who handled the case until 1999. Again, Tielsch cannot succeed 

merely on claims of trial counsel’s ineffectiveness. See McGill, 832 A.2d at 

1021. In any event, this claim fails procedurally and substantively. There is 

no signed certification regarding this witness and no claim that counsel knew 

of this witness or that the witness was available to testify. 

 Tielsch next claims that appellate counsel was ineffective for failing to 

raise trial counsel’s ineffectiveness for advising him not to testify on his own 

behalf. To prevail on this claim, Tielsch “must demonstrate either that 

counsel interfered with his right to testify, or that counsel gave specific 

advice so unreasonable as to vitiate a knowing and intelligent decision to 

testify on his own behalf.” Commonwealth v. Alderman, 811 A.2d 592, 

596 (Pa. Super. 2002) (citation omitted). 

At trial, the trial court informed Tielsch that he had “a constitutional 

right to testify [o]n your own behalf regardless of your lawyer’s advice. If 

you were to choose, you would have the absolute right. You are aware of 

that.” N.T., Trial 4, at 945-946. Tielsch answered, “[y]es” and declined to 

(Footnote Continued) _______________________ 

items, spanning ten pages. We decline to develop this claim for Tielsch; it is 

waived. 
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testify. Id., at 946. The trial court then informed Tielsch that the decision 

“whether to forego your right to testify is one that you feel is in your best 

interest and after consultation with Mr. Diefenderfer, you are making your 

decision knowingly, intelligently and voluntarily?” Id. Tielsch answered, 

“[y]es.” Id. The trial court then asked if trial counsel “hasn’t promised you 

anything or forced you or no one else has forced you to give up your right?” 

Id. Tielsch answered, “[n]o.” Id. Accordingly, based on Tielsch’s own 

admissions at trial, there is no evidence that trial counsel interfered with 

Tielsch’s right to testify on his own behalf. 

Alternatively, we must inquire whether counsel gave specific advice so 

unreasonable as to vitiate a knowing and intelligent decision to testify on his 

own behalf. Tielsch explains that Attorney Diefenderfer advised him not to 

testify on his own behalf as it would open the door to his federal conviction 

and the circumstances surrounding Kevin Ohm’s death. See Appellant’s 

Brief, at 61-62. Taking Tielsch’s explanation as true, counsel’s advice is 

reasonable; we fail to see how it vitiates a knowing and intelligent decision 

to testify on his own behalf. 

In any event, Tielsch notes baldly that he would have simply claimed 

he did not commit the crime and that he would have “provide[d] testimony 

to directly contradict Mr. Gordon’s claims that Appellant made inculpatory 

statements to him in 1987.” Appellant’s Brief, at 62. But he does not offer 

any further details. See Alderman, 81 A.2d at 596 (rejecting claim where 
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appellant baldly stated that he would have refuted the charges, but failed to 

indicate precisely how he would have done so). Accordingly, this claim fails. 

Tielsch next argues that appellate counsel was ineffective for failing to 

raise trial counsel’s ineffectiveness for failing to investigate “Exhibit 31” 

presented at his first trial. The first trial ended in a mistrial when the jury 

declared they were hopelessly deadlocked. We explained the circumstances 

underlying Exhibit 31 on direct appeal as follows. 

At the first trial, the Commonwealth introduced Exhibit 31, a 

certified copy of the title history of a 1977 Corvette, which 

indicated that the vehicle had been first titled in Pennsylvania on 

May 5, 1977, and registered to Tielsch, and that the registration 

had expired on April 30, 1986. During the Commonwealth’s 

closing argument, the prosecutor told the jury that Exhibit 31 

indicated that Tielsch’s uncle, Francis Tielsch, an insurance 

agent, had the Corvette destroyed in 1998, thus evidencing 

actions taken to hide Tielsch’s guilt. In so informing the jury, the 

prosecutor relied not on the actual exhibit, but a loose-leaf copy 

from a detective's file. It turned out that the page the prosecutor 

relied on was from another unrelated report. The prosecutor 

accordingly admitted his error after the mistake was discovered. 

After Tielsch’s motion for a mistrial was denied, the trial court 

appropriately provided a curative instruction to the jury telling 

them that “the parties agree that the insurance claim referred on 

that page of Exhibit 31 was actually made by Francis T. Tielsch 

on a Chrysler automobile” and to disregard the Commonwealth's 

comment that Tielsch’s uncle had disposed of the vehicle. N.T., 

Trial 1, at 1842. 

As Tielsch acknowledges in his brief, the prosecutor “claimed 

that he made an honest mistake due to confusion by a missing 

page in Exhibit 31.” Appellant's Brief, at 77. Tielsch maintains, 

however, that the aforementioned conduct requires a new trial 

“as an experienced prosecutor ... knows” that the Vehicle Code 

requires that “the defendant would have had to put the title for 

the Corvette into his uncle’s name or a salvor's name,” in order 

for Tielsch's uncle to have arranged for the car to be destroyed. 
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Appellant's Brief, at 77–78. Tielsch also notes that Francis 

Tielsch had been contacted by police investigators two times 

before the prosecutor made his final argument and had informed 

the police that he had not made a claim, nor had any claim been 

filed through his agency, for the Corvette.FN8 See id., at 77. In 

addition, Tielsch contends that the veteran prosecutor “knew or 

should have known that he could not utilize the loose leaf papers 

from a detective’s file....” Reply Brief, at 1 (emphasis added). 

FN8. Tielsch seems to concede that the prosecutor was 

unaware of the police investigators' activity with regards to 

Francis Tielsch. See Appellant’s Brief, at 22–23. In short, 

Tielsch does not claim that at trial the Commonwealth was 

aware of Francis Tielsch’s statements to the police

investigators. 

The record simply does not support Tielsch’s contention that 

the Commonwealth acted intentionally in describing Exhibit 31 to 

prejudice Tielsch. See Smith, 532 Pa. at 186, 615 A.2d at 325 

(holding that the double jeopardy clause bars retrial when the 

Commonwealth “intentionally undertake[s] to prejudice the 

defendant to the point of the denial of a fair trial.”). Although the 

prosecutor was mistaken in his assertion, there is absolutely no 

evidence of a deliberate misstatement. Tielsch’s unsupported 

theory is insufficient to show a deliberate trial tactic adopted by 

the prosecutor. As such, Tielsch’s claim fails. See, e.g., 

Commonwealth v. Simmons, 541 Pa. 211, 248, 662 A.2d 621, 

639 (1995) (finding no prosecutorial misconduct where evidence 

did not show that misstatement of fact was deliberate); FN9

Commonwealth v. Brown, 489 Pa. 285, 298–299, 414 A.2d 

70, 77 (1980) (misstatement of fact by prosecutor in closing did 

not constitute error or warrant a new trial because evidence did 

not show that misstatement was deliberately done). Because we 

find no suggestion that the Commonwealth deliberately 

undertook trial strategies to prejudice Tielsch, we cannot 

conclude that any double jeopardy violation occurred in this 

regard. 

FN9. In his statement of the question presented, Tielsch 

claims that this “misconduct ... continued through all four 

trials....” Appellant's Brief, at 3. Tielsch, however, provides 

no citation to the notes of testimony where this alleged 

misconduct occurred in the other trials. Accordingly, there is 

no evidence of prohibited prosecutorial overreaching 
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“designed to harass the defendant through successive 

prosecutions....” Commonwealth v. Martorano, 559 Pa. 

533, 538, 741 A.2d 1221, 1223 (1999). 

Tielsch, 934 A.2d at 85-86. 

 Tielsch raises this issue on collateral review as trial counsel’s failure to 

properly investigate alleged prosecutorial misconduct occurring during the 

first trial. See Appellant’s Brief, at 66 (“The fact is that ADA Fitzsimmons 

introduced a ‘bogus’ document to the court. ... There is a clear indication that 

prosecutorial misconduct may have occurred here.”). The resolution of this 

issue on direct appeal, however, refutes this claim. Tielsch is simply trying 

to relitigate a claim that he lost on direct appeal. 

 Tielsch next contends that appellate counsel was ineffective for failing 

to raise trial counsel’s ineffectiveness for failing to properly litigate the issue 

of ADA Fitzsimmons’s prosecutorial misconduct. The alleged prosecutorial 

misconduct is the Commonwealth’s “efforts to present evidence that 

Appellant’s license was suspended on the day of the Rosenbaum murder and 

the day Trooper Wiles stopped Appellant’s car when Appellant had a valid 

license.” Appellant’s Brief, at 69-70. 

 There are numerous problems with Tielsch’s convoluted argument. 

Among the most egregious is that Tielsch never argues how this alleged 

misconduct prejudiced him. He also notes that “[t]he issue of whether this 

was prosecutorial misconduct ... was addressed in Appellant’s direct appeal.” 
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Appellant’s Brief, at 69. On direct appeal, the panel found this claim had no 

merit. See Tielsch, 934 A.2d at 85 n.7. This claim fails. 

 In his next two issues, issues 9 and 11, Tielsch argues trial counsel’s 

ineffectiveness. Again, Tielsch cannot succeed on claims of trial counsel’s 

ineffectiveness. See McGill, 832 A.2d at 1021. In any event, at the time 

Tielsch filed this petition he had counsel. The pro se filing is nothing more 

than an unauthorized supplemental petition. We find the claims alleged 

therein waived. See Commonwealth v. Reid, 99 A.3d 427, 437 (Pa. 

2014). 

Tielsch next maintains that he is entitled to relief based on the 

“cumulative prejudice established by all other claims.” Appellant’s Brief, at 

75. Tielsch notes that this claim was raised in his pro se amended PCRA 

petition. At the time Tielsch filed this petition he had counsel. The pro se 

filing is nothing more than an unauthorized supplemental petition. We find 

the claim raised therein waived. See Reid, 99 A.3d at 437. Tielsch also 

raises a claim in issue 28 that he only raised in his pro se amended PCRA 

petition. That claim is also waived. See id. 

 Tielsch next claims that appellate counsel was ineffective for failing to 

raise on appeal that Charles Musselwhite’s excluded statement was 

admissible under the excited utterance exception to the hearsay rule. 

Tielsch fails to cite any pertinent legal authority to support this claim. 
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Accordingly, we find the issue waived. See Williams, 959 A.2d at 1258; 

Pa.R.A.P. 2119(a). 

 Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 5/15/2015