J-S83030-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

LOUIS RODERICK OGDEN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2315 EDA 2017

Appeal from the PCRA Order June 26, 2017

In the Court of Common Pleas of Wayne County Criminal Division at No(s): 

CP-64-CR-0000319-2014

BEFORE: GANTMAN, P.J., OLSON, J., and DUBOW, J.

MEMORANDUM BY OLSON, J.: FILED FEBRUARY 05, 2018

Appellant, Louis Roderick Ogden, appeals from the order entered on 

June 26, 2017, which denied him relief under the Post-Conviction Relief Act 

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

We have previously summarized the underlying facts of this case:

On the morning of June 20, 2014, Rebecca Pisall, 

Appellant’s 20-year-old niece, arrived at Appellant’s home in 

Lake Ariel to purchase heroin from Appellant. After a brief 

conversation in the kitchen with Rebecca, Appellant’s 

daughter, Mary Langendorfer, who lived with Appellant, 

woke Appellant up and told him Rebecca wanted to 

purchase heroin. Appellant then tossed a small black bag 

containing heroin at Mary and told Mary to “take care of it.” 

Mary took the heroin into the kitchen, gave Rebecca three 

bags of heroin in exchange for [$60.00], put the money in 

the black bag, and returned the black bag to Appellant.

When Mary returned to the kitchen, Rebecca claimed that 

the bags were empty and demanded her money back. Mary 

returned to Appellant and, after learning of Rebecca’s 

complaint, Appellant pulled a loaded gun from underneath 
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his pillow, walked into the kitchen, pointed the gun at 

Rebecca, and fatally shot Rebecca in the forehead from 

[four to eight] inches away. Appellant then pointed the gun 

at Mary’s throat and said, “it just went off” in an “angry 

tone like he was telling [Mary] what to do.” 

Appellant called 911 shortly thereafter and Appellant, who 

was very upset, admitted during the call that he had shot 

Rebecca in the head. Appellant provided a Mirandized[fn.1]

statement to Pennsylvania State Trooper Sharon Palmer, 

admitting all of the above facts but stating that he had: (1) 

traveled to Philadelphia the night before the shooting to 

purchase heroin; (2) used [20] bags of heroin while in 

Philadelphia; (3) returned to his house in Wayne County 

and went to sleep; [and,] (4) only wanted to scare Rebecca 

when the gun went off accidentally. He also admitted to 

being familiar with guns and gun safety.

[

fn.1] Miranda v. Arizona, 384 U.S. 436 (1966).

At Appellant’s jury trial . . . , the Commonwealth presented 

testimony from Appellant’s daughter Mary; 911 dispatcher 

Forest Mohn; Pennsylvania State Troopers Sharon Palmer, 

Gerald Gustas, and Sean Doran, and Corporal Michael 

Brown; [and,] forensic pathologist Dr. Gary Ross. The trial 

court admitted Appellant’s statement to police into 

evidence. Appellant presented no evidence [during his 

case-in-chief].

On September 22, 2015, the jury convicted Appellant of 

first-degree murder[fn.2] and the trial court imposed the 

statutorily mandated sentence of life in prison [without the 

possibility of parole].[fn.3] 

[

fn.2 18 Pa.C.S.A.] § 2502(a).

[

fn.3 42 Pa.C.S.A.] § 9711.

Commonwealth v. Ogden, 159 A.3d 39 (Pa. Super. 2016) (unpublished 

memorandum) at 1-3 (internal citations omitted).
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We affirmed Appellant’s judgment of sentence on October 11, 2016; 

Appellant did not file a notice of appeal with the Pennsylvania Supreme 

Court. Id. at 1-12.

On November 10, 2016, Appellant filed a counseled PCRA petition 

where he claimed, among other things, that his trial counsel was ineffective 

for: 1) failing to present expert and lay witnesses who would testify as to 

his diminished capacity due to voluntary intoxication; 2) failing to present a 

psychiatrist and toxicologist “to testify [regarding] the effect of drugs on 

[Appellant] as [to] the voluntariness of his confession to the police;” and, 3) 

failing to present a ballistics expert who would have testified that the 

shooting was accidental. Appellant’s PCRA Petition, 11/10/16, at 1-8.

On April 21, 2017, the PCRA court held an evidentiary hearing on 

Appellant’s petition. Appellant presented two witnesses during the hearing: 

Appellant’s trial attorney, Steven E. Burlein, Esquire (hereinafter “Attorney 

Burlein”), and private investigator James Sulima (hereinafter “Investigator 

Sulima”). 

As Attorney Burlein testified, Appellant chose not to testify at trial

because there was “a concern as to how he would testify.” N.T. PCRA 

Hearing, 4/21/17, at 5-6. Attorney Burlein explained:

we had a discussion throughout the case as to whether 

[Appellant] would or would not testify. And shortly before 

[Appellant’s case-in-chief], we would have started our case 

with him testifying, we went in the back room, in the back 

of the courtroom and had a discussion . . . and we had a 

discussion about whether he wanted to take the stand or 
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not. And [Appellant] gave a quote to the effect that he 

would come off the stand and bite the prosecutor on her 

neck. So, we decided that would be inappropriate on the 

stand if he wasn’t going to handle himself any better than 

that. And we said, you know, if you don’t take the stand, 

we have a problem with the intoxication defense. Well, 

essentially we have no intoxication defense, and he 

understood that . . . he essentially chose not to [testify].

Id.

Attorney Burlein testified that he investigated a voluntary intoxication 

defense for Appellant’s case and, to that end, Attorney Burlein hired a 

psychiatrist named Dr. Carla Rodgers “to look into the effects of the drugs in 

[Appellant’s] system.” Id. at 6. Attorney Burlein testified that, after Dr. 

Rogers examined Appellant, she agreed to testify during the pre-trial 

suppression hearing. Id. at 7-8. However, Dr. Rogers refused to opine on 

whether, on the night of the murder, Appellant exhibited diminished capacity 

due to voluntary intoxication and she further refused to testify on Appellant’s 

behalf at trial. As Attorney Burlein testified: 

[Dr. Rogers] said that she could testify insofar as an 

[o]mnibus [pre-trial motion] hearing and that’s where her 

testimony was used. However, she said she would not 

testify at trial, due to [Appellant’s] credibility. And[,] in 

fact, her wording to me was, he is a world class B.S. artist, 

so I cannot believe what he’s telling me and I can’t quantify 

or qualify what was in his system and the effects it would 

have had on him.

Id. at 7.

Attorney Burlein also testified that, in preparation for trial, he hired 

Investigator Sulima to investigate the case. However, Attorney Burlein 
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chose not to call Investigator Sulima as a witness at trial because “the sum 

total of the investigation produced negligible results.” Id. at 14.

Finally, Attorney Burlein testified that he did not call a ballistics expert 

because “there was really no question as to how . . . the incident occurred. 

There was no question as to what weapon was used or the bullet that 

pierced the skull. There was no question as to any of that.” Id. at 33.

Following Attorney Burlein’s testimony, Appellant called Investigator 

Sulima as a witness at the hearing. Investigator Sulima testified that he 

investigated the case at the behest of Attorney Burlein. Id. at 40. As 

Investigator Sulima testified, he began his investigation by interviewing 

Appellant. According to Investigator Sulima, during the interview, Appellant 

told him that “the gun accidentally went off” and that, on the night before 

the shooting, Appellant had ingested an unspecified amount of heroin. Id.

at 44-45.

Investigator Sulima testified that, after interviewing Appellant, he 

interviewed a number of other individuals; however, Investigator Sulima 

testified, “the witnesses that I spoke to, I felt, did not help [Appellant] in 

any way.” Id. at 51.

On June 26, 2017, the PCRA court denied Appellant PCRA relief and 

Appellant filed a timely notice of appeal. Appellant raises one broadly stated

claim on appeal:

Did the [PCRA] court err and abuse its discretion, in denying 

[Appellant’s] petition for post-conviction relief?
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Appellant’s Brief at 4.

We “review an order granting or denying PCRA relief to determine 

whether the PCRA court’s decision is supported by evidence of record and 

whether its decision is free from legal error.” Commonwealth v. Liebel, 

825 A.2d 630, 632 (Pa. 2003).

To be eligible for relief under the PCRA, the petitioner must plead and 

prove by a preponderance of the evidence that his conviction or sentence 

resulted from “one or more” of the seven, specifically enumerated 

circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily 

enumerated circumstances is the “[i]neffectiveness of counsel which, in the 

circumstances of the particular case, so undermined the truth-determining 

process that no reliable adjudication of guilt or innocence could have taken 

place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).

Counsel is, however, presumed to be effective and “the burden of 

demonstrating ineffectiveness rests on [A]ppellant.” Commonwealth v. 

Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). To satisfy this burden, 

Appellant must plead and prove by a preponderance of the evidence that:

(1) his underlying claim is of arguable merit; (2) the 

particular course of conduct pursued by counsel did not 

have some reasonable basis designed to effectuate his 

interests; and, (3) but for counsel’s ineffectiveness, there is 

a reasonable probability that the outcome of the challenged 

proceedings would have been different.

Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). As this Court 

has explained:
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A claim has arguable merit where the factual averments, if 

accurate, could establish cause for relief. See 

Commonwealth v. Jones, 876 A.2d 380, 385 (Pa. 2005) 

(“if a petitioner raises allegations, which, even if accepted 

as true, do not establish the underlying claim . . . , he or 

she will have failed to establish the arguable merit prong 

related to the claim”). Whether the facts rise to the level of 

arguable merit is a legal determination.

The test for deciding whether counsel had a reasonable 

basis for his action or inaction is whether no competent 

counsel would have chosen that action or inaction, or, the 

alternative, not chosen, offered a significantly greater 

potential chance of success. Counsel’s decisions will be 

considered reasonable if they effectuated his client's 

interests. We do not employ a hindsight analysis in 

comparing trial counsel's actions with other efforts he may 

have taken. 

Prejudice is established if there is a reasonable probability 

that, but for counsel’s errors, the result of the proceeding 

would have been different. A reasonable probability is a 

probability sufficient to undermine confidence in the 

outcome.

Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (some 

internal quotations and citations omitted). “A failure to satisfy any prong of 

the test for ineffectiveness will require rejection of the claim.” Id.

Further, to prevail on a claim that counsel was ineffective for failing to 

call a witness at trial, Appellant must establish that: “(1) the witness[] 

existed; (2) the witness[ was] available to testify; (3) counsel knew, or 

should have known, the witness[] existed; (4) the witness[ was] willing to 

testify; and (5) the absence of the witness[’] testimony was so prejudicial 

that it denied [Appellant] a fair trial.” Commonwealth v. Solano, 129 

A.3d 1156, 1166 (Pa. 2015).
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A review of Appellant’s brief reveals the following claims: 1) trial 

counsel was ineffective for failing to present a toxicologist who would testify 

as to Appellant’s diminished capacity due to voluntary intoxication; 2) trial 

counsel was ineffective for failing to present a ballistics expert who would 

testify that the firearm accidentally discharged; 3) trial counsel was 

ineffective for failing to present Appellant as a witness, so that Appellant 

could testify that he “used copious amounts of narcotics during the evening 

[] and early morning hours before the killing” and that he “had ingested 

drugs that he had on his person in the bathroom of the State Police 

Barracks” prior to confessing; 4) trial counsel was ineffective for failing to 

present Investigator Sulima to testify as to Appellant’s ingestion of narcotics 

prior to the murder and in the State Police Barracks’ bathroom; and, 5) trial 

counsel was ineffective for failing to present Appellant’s parents as character 

witnesses at trial. See Appellant’s Brief at 20-29.

We need not discuss Appellant’s claims at length, as Appellant 

produced limited evidence during the PCRA hearing and, in so doing, failed 

to satisfy his burdens of production and persuasion on his ineffectiveness of 

counsel claims. Thus, we briefly dispose of Appellant’s claims: 1) during 

the PCRA hearing, Appellant did not present a toxicologist or any other 

evidence to establish that, at the time of the murder, he suffered from 

diminished capacity due to voluntary intoxication (therefore, there is no 

arguable merit to Appellant’s claim that trial counsel was ineffective for 

failing to present a toxicologist who would testify as to Appellant’s 
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diminished capacity due to voluntary intoxication); 2) during the PCRA 

hearing, Appellant did not present a ballistics expert or any other evidence 

to establish that his firearm accidentally discharged (therefore, there is no 

arguable merit to Appellant’s claim that trial counsel was ineffective for 

failing to present a ballistics expert who would testify that the firearm 

accidentally discharged); 3) Appellant did not testify during the PCRA 

hearing and there was no evidence that Appellant was willing to testify at 

trial (therefore, trial counsel was not ineffective for failing to present 

Appellant’s testimony at trial or during the pre-trial suppression hearing); 4) 

Investigator Sulima’s proposed testimony regarding Appellant’s ingestion of 

narcotics prior to the murder and in the State Police Barracks’ bathroom was 

inadmissible hearsay (therefore, trial counsel was not ineffective for failing 

to present Investigator Sulima as a witness at trial or in the pre-trial 

suppression hearing); and, 5) Appellant’s parents did not testify at the PCRA 

hearing and no evidence exists as to whether they were willing to testify or 

as to their proposed testimony (therefore, trial counsel was not ineffective 

for failing to present Appellant’s parents as character witnesses at trial).

All of Appellant’s claims on appeal thus fail. We affirm the PCRA 

court’s order, denying Appellant post-conviction collateral relief.

Order affirmed. Jurisdiction relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/5/18