J-S54019-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

HENRY CULVER

Appellant No. 31 WDA 2017

Appeal from the PCRA Order December 14, 2016

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0008632-2011

BEFORE: OTT, J., MOULTON, J., and FITZGERALD, J.*

MEMORANDUM BY MOULTON, J.: FILED OCTOBER 13, 2017

Henry Culver appeals pro se from the December 14, 2016 order 

entered in the Allegheny County Court of Common Pleas dismissing his 

petition filed under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 

9541-46. We affirm.

This Court set forth the following factual and procedural history in 

deciding Culver’s direct appeal:

The trial court set forth the background of this case, as 

follows:

The Commonwealth’s evidence established that 

on December 14, 2011, the victim, Scott Goodman, 

was at the home of his father, Albert Goodman. The 

elder Goodman was sitting in his home when he 

heard an argument coming from the kitchen. He 

____________________________________________

*

Former Justice specially assigned to the Superior Court.
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recognized both voices[:] that of his son and that of 

[Culver], with whom he was also familiar. Mr. 

Goodman[1] walked into the kitchen and saw [Culver] 

shoot his son. [Culver] then turned to Mr. Goodman 

and told him to back off or he would be next. Mr. 

Goodman then fled out the front door while [Culver] 

left through the back door.

At approximately the same time that Mr. 

Goodman was leaving his house, a witness, 

[Rasheeda] Saxton, was arriving. She saw [Culver 

come from the back of the house,] get into his car 

and drive off. While she was walking towards the 

Goodman residence, she heard Albert Goodman 

calling for help and, as she went around to the back, 

she saw Scott Goodman lying on the ground, 

bleeding. [When police arrived on the scene, Ms. 

Saxton told them that “Hank (meaning [Culver]) did 

this.”] Scott Goodman was taken to the hospital 

where he eventually died of his wounds.

LaPerry Raymond, the mother of [Rasheeda] 

Saxton, also testified. She said that during that 

evening, she was on the phone with Scott Goodman. 

She heard a door slam and Scott told her to hold on. 

He then told her that it was “Hank” and he would call 

her back later. A few minutes later, her daughter 

called and told her that Scott Goodman had been 

shot. . . .

[Detective Kenneth Ruckel of the Allegheny 

County police department testified that he found a 

black leather glove with a zipper near the cuff at the 

scene of the murder. A dark brown glove that was 

inside the black one as though the two were worn 

together contained Culver’s DNA.]

____________________________________________

1 Albert Goodman’s trial testimony was video-recorded in advance of 

trial because he was in poor health. Goodman died before trial, and the jury 

was shown the video-recorded testimony. See Commonwealth v. Culver, 

No. 321 WDA 2013, unpublished mem. at 2 n.2 (Pa.Super. filed Oct. 1, 

2014).
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The Commonwealth also presented evidence 

concerning [Culver]’s arrest sometime later in Miami. 

. . .

After receiving a tip as to where [Culver] might 

be found, Deputy U[.]S[.] Marshal[] Ty Fallow and 

others went to this location [at a rescue mission in 

Miami, Florida.] They observed [Culver] and 

Marshal[] Fallow addressed [him], “Mr. Culver, Hank, 

Henry.” At this point, [Culver] turned around. 

Later, as they were asking him his name, he told 

them that his name was Rocky Wallace. He showed 

them an ID [from the rescue mission] that bore the 

name Rocky Wallace but had his photograph on it. 

[Culver] was [detained] and transported to the Dade 

County Jail [where fingerprint analysis confirmed 

that he was Henry Culver and he was then arrested.] 

He was in a holding cell for a lengthy time as he 

waited his turned to be processed. The defendants’ 

names are called out frequently. Marshal[] Fallow 

observed that on all but one occasion when the jail 

called out for Henry Culver, [Culver] did not respond. 

Once, however, when a nurse called the name Henry 

Culver, he did verbally respond.

Marshal[] Fallow also testified that he was 

present when [Culver] was provided with several 

intake forms including a property form. This form 

itemizes the property that was on his person when 

he was arrested. It has a place for the inmate’s 

signature. Marshal[] Fallow observed [Culver] sign 

the name Rocky Wallace to that form. [The 

Commonwealth] introduced [the document] into 

evidence at trial.

(Trial Court Opinion, 1/17/14, at 3-4, 5). . . .

At the conclusion of trial, the jury convicted [Culver] 

of [first-degree murder, firearms not to be carried 

without a license, terroristic threats, and simple assault 
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– physical menace.2 In a bifurcated nonjury trial, the 

trial court convicted Culver of persons not to possess 

firearms.3] On December 13, 2012, the court 

sentenced [Culver] to a term of life in prison without 

the possibly of parole on the murder of the first degree 

conviction, plus a concurrent aggregate term of 

imprisonment of not less than nine and one-half nor 

more than nineteen years on the remaining counts. 

The court denied [Culver]’s post-sentence motions on 

January 17, 2013.

Commonwealth v. Culver, No. 321 WDA 2013, unpublished mem. at 1-4 

(Pa.Super. filed Oct. 1, 2014) (some alterations in original, footnotes 

omitted).

On February 14, 2013, Culver timely filed a notice of appeal. On 

October 1, 2014, this Court affirmed Culver’s judgment of sentence. Culver 

then filed a petition for allowance of appeal, which our Supreme Court 

denied on March 31, 2015.

On July 23, 2015, Culver, acting pro se, filed a PCRA petition. On 

September 1, 2015, the PCRA court appointed counsel. On July 1, 2016, 

counsel filed a motion to withdraw as counsel and a Turner/Finley4“nomerit” letter. On September 21, 2016, the PCRA court granted counsel’s 

motion to withdraw and gave notice of its intent to dismiss Culver’s petition 

____________________________________________

2 18 Pa.C.S. §§ 2502(a), 6106(a)(1), 2706(a)(1), and 2702(a)(3), 

respectively.

3 18 Pa.C.S. § 6105(a)(1).

4 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); 

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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under Pennsylvania Rule of Criminal Procedure 907. On December 14, 

2016, the PCRA court dismissed Culver’s petition. On December 16, 2016, 

Culver filed a response to the notice of intent to dismiss, asserting that he 

had not seen the notice of intent to dismiss and only became aware of it 

after being informed that his PCRA petition had been dismissed. On January 

4, 2017, Culver timely filed a notice of appeal.

Culver raises six issues on appeal:

1. Did the ineffective assistance of [Culver]’s PCRA Counsel 

and the PCRA Court’s failure to provide [Culver] with his 

trial transcripts combine to deprive [Culver] of his due 

process rights under the state and federal constitutions?

2. Did the PCRA Court err in dismissing without a hearing the 

claim that Trial Counsel . . . was ineffective for failing to 

present expert witness testimony concerning the DNA 

sample taken from the gloves found at the scene of the 

homicide?

3. Did the PCRA Court err in dismissing without a hearing the 

claim that Trial Counsel . . . was ineffective for failing to 

properly prepare for trial by interviewing witnesses LaPerry 

Raymond and Rasheeda Saxton before they testified?

4. Did the PCRA Court err in dismissing without a hearing the 

claim that Trial Counsel . . . was ineffective for failing to 

obtain medical records from Jefferson Memorial Clinic in 

Miami, Florida that would have explained that [Culver] 

went to Florida seeking medical treatment, not to avoid 

apprehension by the police?

5. Did the PCRA Court err in denying without a hearing the 

claim that Trial Counsel . . . was ineffective for failing to 

challenge Albert Goodman’s competency to testify?

6. Was trial counsel ineffective for failing to properly impeach 

Albert Goodman’s testimony?
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Culver’s Br. at 7 (suggested answers omitted). For ease of disposition, we 

address Culver’s issues out of order.

Our standard of review from the denial of PCRA relief “is limited to 

examining whether the PCRA court’s determination is supported by the 

evidence of record and whether it is free of legal error.” Commonwealth v. 

Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011). We will not disturb the 

PCRA court’s factual findings “unless there is no support for [those] findings 

in the certified record.” Commonwealth v. Melendez-Negron, 123 A.3d 

1087, 1090 (Pa.Super. 2015).

Culver asserts a number of trial counsel ineffectiveness claims. 

To prevail on . . . [ineffective assistance of counsel] claims, 

[the PCRA petitioner] must plead and prove, by a 

preponderance of the evidence, three elements: (1) the 

underlying legal claim has arguable merit; (2) counsel had 

no reasonable basis for his action or inaction; and (3) [the 

petitioner] suffered prejudice because of counsel’s action 

or inaction.

Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011). “The law 

presumes counsel was effective[.]” Commonwealth v. Miner, 44 A.3d 684, 

687 (Pa.Super. 2012). “A claim of ineffectiveness will be denied if the 

petitioner’s evidence fails to meet any of these prongs.” Commonwealth 

v. Williams, 980 A.2d 510, 520 (Pa. 2009).

First, Culver argues that trial counsel was ineffective because counsel 

did not present an expert witness to refute the Commonwealth’s expert 

witness testimony on the DNA evidence recovered. According to Culver, 

when the Commonwealth provided trial counsel the DNA test reports, “[s]he 
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immediately sought a postponement because she found the report troubling 

. . . [and] told [Culver] it was necessary to hire a DNA expert to rebut the 

Commonwealth’s contention.” Culver’s Br. at 17. Culver asserts that trial 

counsel told him “that the DNA science the Commonwealth was using was 

questionable at best . . . .” Id. At trial, however, counsel did not present a 

rebuttal DNA expert witness. Culver asserts that trial counsel “never gave a 

reason and never offered an explanation.” Id. at 18. For these reasons, 

Culver argues that trial counsel had no reasonable basis for withholding 

expert testimony, as “testimony from a competing expert on such a critical 

issue would have been more convincing than . . . argument from [trial] 

counsel” and his “innocence claim would have been considerably more 

compelling than a simple denial of guilt.” Id. at 20. We disagree.

With respect to claims of ineffectiveness for failing to call an expert 

rebuttal witness, our Supreme Court has stated that:

[t]he mere failure to obtain an expert rebuttal witness is 

not ineffectiveness. Appellant must demonstrate than an 

expert witness was available who would have offered 

testimony designed to advance appellant’s cause. Trial 

counsel need not introduce expert testimony on his client’s 

behalf if he is able effectively to cross-examine prosecution 

witnesses and elicit helpful testimony. Additionally, trial 

counsel will not be deemed ineffective for failing to call a 

medical, forensic, or scientific expert merely to critically 

evaluate expert testimony [that] was presented by the 

prosecution. Thus, the question becomes whether or not

[defense counsel] effectively cross-examined [the 

Commonwealth’s expert witness].
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Commonwealth v. Chmiel, 30 A.3d 1111, 1143 (Pa. 2011) (internal 

quotations and citation omitted; alterations in original).

We conclude that the PCRA court did not err in dismissing Culver’s 

claim. 5 The PCRA court correctly observed that Culver’s claim fails because 

“there was no reason to believe that a DNA expert retained by [Culver] 

would have come to a conclusion different from that which was reached by 

the Commonwealth expert.” PCRA Ct. Op., 9/21/16, at 5. In addition, our 

review of the trial testimony shows that trial counsel effectively crossexamined the Commonwealth’s expert witness, pointing out possible 

inconsistencies in the results and flaws in the DNA analysis. See N.T., 9/18-

21/16, at 288-303. Because Culver failed to show that he had an expert 

who would testify differently than the Commonwealth’s expert and trial 

counsel effectively cross-examined the Commonwealth’s expert witness, trial 

counsel was not ineffective for not presenting a rebuttal expert witness. 

Accordingly, Culver’s claim lacks merit.

Next, Culver claims that trial counsel was ineffective because she did 

not interview witnesses LaPerry Raymond and Rasheeda Saxton before trial. 

According to Culver, his trial counsel received statements from both 

____________________________________________

5

 The PCRA court also found that the DNA evidence was merely 

circumstantial because it only placed Culver’s DNA at the scene. According 

to the PCRA court, the direct evidence, specifically the eyewitness testimony 

of Albert Goodman and Rasheeda Saxton, made the DNA evidence nonessential to the Commonwealth’s case.
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witnesses in discovery. Culver asserts that when trial counsel determined 

that both witnesses would be testifying against Culver, she “felt that it was 

crucial that she . . . interview the women prior to trial” but never did so. 

Culver’s Br. at 23.

With respect to interviewing witnesses prior to trial, our Supreme 

Court has stated that

trial counsel has a general duty to undertake reasonable 

investigations or make reasonable decisions which render

particular investigations unnecessary. The duty to 

investigate, of course, may include a duty to interview 

certain potential witnesses; and a prejudicial failure to 

fulfill this duty, unless pursuant to a reasonable strategic 

decision, may lead to a finding of ineffective assistance. 

Nevertheless, we have never held that trial counsel is 

obligated to interview every Commonwealth witness prior 

to trial. The failure of trial counsel to interview a particular 

witness prior to trial does not constitute ineffective 

assistance of counsel unless there is some showing that 

such an interview would have been beneficial to the 

defense under the facts and circumstances of the case.

Commonwealth v. Mitchell, 105 A.3d 1257, 1276 (Pa. 2014) (internal 

quotations and citations omitted).

In its opinion, the PCRA court concluded that this claim lacked merit 

because trial counsel cross-examined these witness effectively, Culver “did 

not explain how a pre-trial interview of an opposing witness would have 

change[d] the outcome of the trial[,]” and the witnesses “could [not] have 

been compelled to submit to such an interview.” PCRA Ct. Op., 9/21/16, at 

5. After reviewing the notes of testimony, we agree with the PCRA court’s 
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analysis and conclude that it did not err in dismissing this ineffectiveness 

claim.

Next, Culver argues that trial counsel was ineffective for failing to 

obtain medical records that would have shown that Culver traveled to Florida 

to be treated for an illness. According to Culver, he told trial counsel that 

while he was on parole, he was diagnosed as possibly having cancer and 

informed his parole officer. While the parole officer recommended that 

Culver obtain a second opinion, Culver saw an advertisement for a medical 

clinic in Miami, Florida. Knowing “that his [p]arole [o]fficer would not permit 

him to travel across state lines,” Culver chose to travel under the assumed 

name of “Rocky Wallace.” Culver’s Br. at 25.

Culver contends that his trial counsel told him that it would be 

beneficial to obtain the medical records of “Rocky Wallace” from the medical 

clinic, but trial counsel never attempted to obtain them and gave multiple 

excuses as to why she could not obtain them. According to Culver, trial 

counsel had no reasonable basis for failing to obtain these records, and this 

failure prejudiced him because the only inference the jury could draw from 

his travel was that he fled to avoid apprehension. We disagree.

With respect to ineffectiveness claims based on a failure to investigate, 

our Supreme Court has stated that

[c]ounsel has a general duty to undertake reasonable 

investigations or make reasonable decisions that render 

particular investigations unnecessary. Counsel’s strategic 

choices made after less than a complete investigation are 

considered reasonable, on a claim of ineffective assistance, 
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precisely to the extent that reasonable professional 

judgments support limitations on the investigation. Failure 

to conduct a more intensive investigation, in the absence 

of any indication that such investigation would develop 

more than was already known, is simply not 

ineffectiveness.

Commonwealth v. Eichinger, 108 A.3d 821, 847 (Pa. 2014) (internal 

citations omitted).

The PCRA court concluded that this claim was meritless:

The fact that [Culver] received medical care in Florida is 

not inconsistent with him travelling there to avoid 

apprehension. Moreover, the fact that [Culver] had a fake 

ID and provided a fake name to the officers who arrested 

him and at the jail where he was being processed certainly 

corroborated the Commonwealth’s contention that [Culver] 

fled to Florida and allowed the prosecution to argue to the 

jury that [Culver] fled this area and assumed a fake 

identity because he was conscious of his guilty and was 

trying to avoid apprehension.

PCRA Ct. Op., 9/21/16, at 6. We agree with the PCRA court’s analysis and 

conclude that it did not err in dismissing the ineffectiveness claim.

Next, Culver asserts that trial counsel was ineffective for failing to 

challenge Albert Goodman’s competency. According to Culver, Albert 

Goodman’s age and severe illness prevented him from “express[ing] 

intelligent answers to questions.” Culver’s Br. at 29. Culver relies on 

inconsistencies in Goodman’s video-recorded testimony and argues that 

while “[i]ndividually, these elements of Albert[ Goodman]’s testimony could 

be viewed as minor inconsistencies[,] . . . [t]aken as a whole . . . Albert[ 

Goodman]’s pattern of porous memory reveals that it is much more likely 

that his illness had taken such a toll on him that he was unable to maintain a 
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clear recollection of what he had seen and heard on the day of the 

homicide.” Id. at 30. We disagree.

The competency of witnesses is governed by Pennsylvania Rule of 

Evidence 601, which provides:

(a) General Rule. Every person is competent to be a 

witness except as otherwise provided by statute or in 

these rules.

(b) Disqualification for Specific Defects. A person is 

incompetent to testify if the court finds that because 

of a mental condition or immaturity the person:

(1) is, or was, at any relevant time, incapable 

of perceiving accurately;

(2) is unable to express himself or herself so as 

to be understood either directly or through an 

interpreter;

(3) has an impaired memory, or

(4) does not sufficiently understand the duty to 

tell the truth.

Pa.R.Evid. 601. This Court has explained that Rule 601

[i]s expressly intended to preserve existing Pennsylvania 

law. In general, the testimony of any person, regardless 

of [his] mental condition, is competent evidence, unless it 

contributes nothing at all because the [witness] is wholly 

untrustworthy. Thus, in Pennsylvania, [a witness is] 

presumed competent to testify, and it is incumbent upon 

the party challenging the testimony to establish 

incompetence. Above all, give the general presumption of 

competency of all witnesses, a court ought not to order a 

competency investigation, unless the court has actually 

observed the witness testify and still has doubts about the 

witness’ competency.

The capacity to remember and the ability to testify 

truthfully about the matter remembered are components 

of testimonial competency. The party alleging a witness is 
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incompetent to testify must prove that contention by clear 

and convincing evidence.

Commonwealth v. Boich, 982 A.2d 102, 109-10 (Pa.Super. 2009) (en 

banc) (internal quotations and citations omitted; some alterations in 

original).

The PCRA court concluded that this claim was meritless:

Though counsel did not seek to exclude the testimony of 

Mr. Goodman on the basis that the witness was not 

competent, [counsel] thoroughly challenged his credibility 

on the same basis upon which [Culver] now contends that 

[Goodman] was not a competent witness. This Court 

made the following findings with regard to the challenge to 

Mr. Goodman’s credibility:

This Court and the jury viewed a video tape of that 

testimony. Though it was apparent from the video 

that Mr. Goodman was ill, he did not seem to have 

difficulty recalling the events surrounding the death 

of his son and relating them. He seemed tired and 

responded slowly to some questions, but it is simply 

inaccurate to claim that his illness affected his 

perception or that his testimony was confused, 

vague, and contradictory, as [Culver] does in his 

[Rule 1925(b)] statement. It was clear to this Court 

that [Goodman’s] illness or taking of medications did 

not affect his ability to recall events or accurately 

describe what he observed. There were some things 

about which Mr. Goodman was less than certain, 

things that he acknowledged that he could not 

remember. He was, however, clear about the 

essential facts of the night that his son was shot. He 

was cross examined by the defense as to his inability 

to recall events; as to apparent inconsistencies 

between what he told the police the night of the 

incident and what he testified to in Court; and as to 

the effect his illness and medication had on his 

current state of mind. What effect, if any, to give 

the questions raised by that cross examination as to 

the accuracy of Mr. Goodman’s testimony, was 

something for the jury to decide. Clearly, Mr. 
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Goodman was a competent witness and the jury was 

allowed to believe as much of his testimony as they 

wished.

(Slip Opinion 730th, 2014). Trial counsel was not 

ineffective for seeking to challenge this witness[’]s 

competence because, as the Court pointed out, this 

witness was both competent and credible in his 

testimony.

PCRA Ct. Op., 9/21/16, at 7-8. We agree with the PCRA court’s conclusion.

Next, Culver argues that trial counsel was ineffective because she did 

not impeach Albert Goodman’s testimony. Although Culver raised this issue 

in a response to the trial court’s dismissal of his petition, he neither included 

it in his PCRA petition and nor obtained permission from the PCRA court to 

supplement or amend his petition. Accordingly, we conclude that Culver has 

waived this claim on appeal. See Commonwealth v. Mason, 130 A.3d 

601, 640 (Pa. 2015) (concluding that petitioner who first asserted claim in 

response to Commonwealth’s motion to dismiss waived claim for failure to 

obtain leave of court to supplement or amend petition).

Finally, Culver argues that his PCRA counsel was ineffective because, 

among other things, PCRA counsel failed to provide Culver with trial 

transcripts. It is well settled that “claims of PCRA counsel ineffectiveness 

cannot be raised for the first time after a notice of appeal has been taken 

from the underlying PCRA matter.” Commonwealth v. Ford, 44 A.3d 

1190, 1201 (Pa.Super. 2012). Because Culver raises ineffectiveness of 

PCRA counsel claims for the first time on appeal from the dismissal of his 

PCRA petition, this Court lacks jurisdiction to consider those claims.
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Culver also asserts that the PCRA court’s denial of his multiple 

requests for transcripts violated his due process rights under the United 

States and Pennsylvania Constitutions. Culver claims he is entitled to a copy 

of the transcripts under federal and Pennsylvania law. According to Culver, 

“there may be very significant PCRA issues that would become clear if [he] 

had the chance to review the record[, and he] . . . would also be in a better 

position to explain why the issues he’s already raised are of arguable merit if 

he had the opportunity to read his transcripts.” Culver’s Br. at 16. We 

disagree.

While we recognize that “a defendant’s right to meaningful appeal 

requires he be provided with a copy of a transcript or other equivalent 

picture of the proceedings below,” Commonwealth v. Morgan, 364 A.2d 

891, 892 (Pa. 1976), we conclude that, under these circumstances, Culver’s 

right to a meaningful appeal has not been violated.

First, when Culver initially requested transcripts on April 28, 2015, he 

had no matter pending before the courts. Thus, even with in forma pauperis

status, he was not entitled to transcripts. See Commonwealth v. Martin, 

705 A.2d 1337, 1338 (Pa.Super. 1998). 

Next, with respect to his December 21, 2016 request, we recognize 

that, had Culver followed the correct procedure, he should have received his 

trial transcripts. However, it is evident that Culver’s lack of access to those 

transcripts did not prevent him from receiving a meaningful appeal, as we 

were not hindered in determining that Culver’s issues lack merit because we 
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received the trial transcripts from the Allegheny County Clerk of Courts. 

Further, we find Culver’s claims specious, as Culver quoted a section of 

Albert Goodman’s video-recorded testimony in his appellate brief. See

Culver’s Br. at 34. Accordingly, Culver is not entitled to relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/13/2017