J-S78026-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SHAUN EDWARD KIMMEL

Appellant No. 359 WDA 2016

Appeal from the PCRA Order February 3, 2016

In the Court of Common Pleas of Westmoreland County

Criminal Division at No(s): CP-65-CR-0001950-2012

BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.: FILED NOVEMBER 23, 2016

Shaun Edward Kimmel1appeals pro se2from the order entered 

February 3, 2016, in the Court of Common Pleas of Westmoreland County, 

that denied his first petition for collateral relief, filed pursuant to 

Pennsylvania’s Post Conviction Collateral Relief Act (PCRA), 42 Pa.C.S. §§ 

9541–9546. Kimmel was sentenced to serve a term of three to six years’ 

incarceration, after he was convicted by a jury of three counts of delivery of 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 Kimmel’s first name also appears in the record as “Shawn.”

2 The PCRA Court granted appointed counsel’s request for leave to withdraw 

after counsel filed a no-merit letter. See Commonwealth v. Turner, 544 

A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 

1988) (en banc).
J-S78026-16

- 2 -

a controlled substance, three counts of possession of a controlled substance 

with intent to deliver, and three counts of possession of a controlled 

substance.3 Kimmel contends (1) appellate counsel was ineffective during 

the direct appeal stage in failing to preserve or argue to this Court the issues 

identified in the Pa.R.A.P. 1925(a) statement, i.e., the insufficiency of the 

evidence and the admission of hearsay testimony, and (2) appellate counsel 

was ineffective in failing to preserve and argue in this Court the issue of 

whether the trial court erred in permitting the Commonwealth to introduce 

hearsay evidence at trial. See Kimmel’s Brief at 5. Based upon the 

following, we affirm on the basis of the PCRA court’s sound opinion.

Briefly, we note the charges against Kimmel arose from his delivery of 

heroin to a confidential informant (CI) on three separate occasions. Each 

delivery involved a controlled purchase by the CI from Kimmel and each 

purchase was observed and monitored by police. 

Following sentencing, Kimmel filed a direct appeal, and this Court 

affirmed the judgment of sentence on February 12, 2014. Commonwealth 

v. Kimmel, 97 A.3d 802 [651 WDA 2013] (Pa. Super. 2014) (unpublished 

memorandum) (finding sole claim challenging the weight of the evidence 

waived for failure to present to trial court and include in the Rule 1925(b) 

statement). 

____________________________________________

3 See 35 P.S. § 780-113(a)(30) and (a)(16).
J-S78026-16

- 3 -

On August 25, 2014, Kimmel filed a pro se PCRA petition. Counsel 

was appointed and filed an amended PCRA petition on September 14, 2015. 

An evidentiary hearing was held on October 20, 2015. Subsequently, on 

November 15, 2015, appointed counsel filed a no-merit letter and requested 

leave to withdraw. On January 13, 2016, the PCRA court issued 

Pa.R.Crim.P. 907 notice of intent to dismiss. On February 3, 2016, the PCRA 

court dismissed the petition, and granted appointed counsel’s request to 

withdraw. This timely appeal followed.4

The principles that guide our review are well settled:

Under the applicable standard of review, we determine whether 

the ruling of the PCRA court is supported by the record and is 

free of legal error. We apply a de novo standard of review to the 

PCRA court’s legal conclusions. 

****

With respect to Appellant’s claims of ineffective assistance of 

appellate counsel, we begin with the presumption that counsel is 

effective. To prevail on an ineffectiveness claim, Appellant must 

satisfy, by a preponderance of the evidence, the performance 

and prejudice standard set forth in Strickland v. Washington, 

466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). This 

____________________________________________

4 We note Kimmel filed a pro se notice of appeal that is time-stamped March 

4, 2016. We also note Kimmel’s notice of appeal and brief in support of 

appeal were mailed from prison in an envelope post-marked March 1, 2016. 

According to the prisoner mailbox rule, an appeal will “be deemed ‘filed’ on 

the date that the appellant deposits the appeal with prison authorities and/or 

places it in the prison mailbox.” See Commonwealth v. Jones, 700 A.2d 

423, 426 (Pa. 1997).
J-S78026-16

- 4 -

Court has divided the performance component of Strickland

into two subparts dealing with arguable merit and reasonable 

strategy. ... Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 

973, 975-77 (Pa. 1987). With regard to “reasonable basis” in the 

appellate context, “[i]t is well settled that appellate counsel is 

entitled, as a matter of strategy, to forego even meritorious 

issues in favor of issues he believes pose a greater likelihood of 

success.” To establish Strickland/Pierce prejudice in the 

appellate representation context, the petitioner must 

show that there is a reasonable probability that the 

outcome of the direct appeal proceeding would have been 

different but for counsel's deficient performance.

The PCRA court has discretion to dismiss a petition without a 

hearing when the court is satisfied “‘that there are no genuine 

issues concerning any material fact, the defendant is not entitled 

to post-conviction collateral relief, and no legitimate purpose 

would be served by further proceedings.’” “To obtain reversal of 

a PCRA court’s decision to dismiss a petition without a hearing, 

an appellant must show that he raised a genuine issue of fact 

which, if resolved in his favor, would have entitled him to relief, 

or that the court otherwise abused its discretion in denying a 

hearing.” 

Commonwealth v. Blakeney, 108 A.3d 739, 749-50 (Pa. 2014) (some 

citations omitted) (emphasis added).

In his first issue, Kimmel contends counsel was ineffective on direct 

appeal because she failed to argue either of the issues raised in the 

Pa.R.A.P. 1925(b) statement — namely, the circumstantial evidence 

presented by the Commonwealth was insufficient to support Kimmel’s 

convictions, and the trial court erred in permitting the trial court to introduce 

hearsay evidence at trial — and argued a weight claim that this Court found 

to be waived. Kimmel posits that appellate counsel’s failures completely 

foreclosed appellate review. In this regard, Kimmel contends that appellate 
J-S78026-16

- 5 -

counsel’s ineffectiveness was equivalent to the failure to file a brief, and as 

such, he is entitled to a presumption of prejudice. In his second issue, 

Kimmel argues that appellate counsel was ineffective in failing to preserve 

and argue that the trial court erred in admitting out-of-court statements of 

identification by the CI in violation of the hearsay rule, Pa.R.E. 803.1(2). 

See Kimmel’s Brief at 9.

The PCRA judge, the Honorable Rita Donovan Hathaway, has authored 

an opinion that cogently rejects, inter alia, the two arguments raised in this 

appeal. See PCRA Court Pa.R.A.P. 1925(a) Opinion, 6/6/2016, attaching 

Order of Court and Notice of Intent to Dismiss, 1/13/2016, at 1–10, and 12 

(finding: (1) counsel’s failure to pursue on appeal every claim requested by 

a defendant is not per se ineffectiveness, and Kimmel must satisfy the 

Pierce ineffectiveness test; trial court had determined in its Rule 1925(a) 

opinion that there was a plethora of evidence to support Kimmel’s conviction 

and same facts support the notion that the jury verdict was not against the 

weight of the evidence; Kimmel’s weight of the evidence claim fails under all 

three prongs of the ineffectiveness test, and (2) Kimmel’s hearsay challenge 

to Sergeant Fiscarella’s testimony with respect to the August 14, 2011 

controlled buy, regarding the CI’s identification of Kimmel by looking at a JNET photograph, fails under the prejudice prong; although admission of such 

evidence was error because CI was not present at trial and did not testify,

see Pa.R.E. 803.1(2), the error was harmless, given the testimony of police 
J-S78026-16

- 6 -

about identifications made shortly after the controlled buys and credible incourt identifications of Kimmel). Our review confirms that further discussion 

by this Court is not warranted here. Accordingly, we affirm the denial of 

PCRA relief on the basis of the PCRA court’s able opinion.5

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/23/2016

____________________________________________

5

In the event of further proceedings, we direct the parties to attach a copy 

of the PCRA Court’s Pa.R.A.P. 1925(a) Opinion, 6/6/2016, attaching Order of

Court and Notice of Intent to Dismiss, 1/13/2016, to this memorandum. 
c.c. File 

John Petrush, Esq., Assistant District Attorney 

Shaun Edward Kimmel, Defendant 

D.O.C. #KY7015, Unit/Side: JIB, 

SCI Albion, 10745 Route 18, Albion, PA 16475-0002 

Pamela Neiderheiser, Esq., Court Administrator's Office 

ATTEST: 

Opinion dated dated January 13, 2016. A copy of that Opinion is attached hereto for reference. 

Conviction Relief dated February 3, 2016, the reasons for said decision appear in this Court's 

Defendant filed a Notice of Appeal from this Court's denial of Defendant's Petition for PostAND NOW, this & day of June, 2016, it appearing to this Court that the 

STATEMENT OF THE COURT 

ISSUED PURSUANT TO PA.R.A.P. RULE 1925 

No. 1950 C 2012 

COMMON\VEALTH OF PENNSYLVANIA ) 

) 

vs. ) 

) 

SHAUN EDWARD KIMMEL ) 

) 

Defendant. ) 

IN THE COURT OF COl\TMON PLEAS OF \VESTMORELAND COUNTY, 

PENNSYLVANIA - CRIMINAL DIVISION 

Circulated 11/01/2016 03:50 PM
Pennsylvania Superior Court affirmed this Court's Judgment of Sentence on March 28, 2014. 

filed his Notice of Appeal to the Pennsylvania Superior Court on March 28, 2013. The 

incarceration, with credit for lime served, and was deemed to be RRR[ eligible. Defendant 

separate sales of heroin. He was sentenced on March I, 2013 to a period of three to six years 

violations of the Controlled Substance, Drug, Device and Cosmetic Act arising from three 

The Defendant, Shaun Edward Kimmel, was convicted of nine counts of 

purpose to be served in further proceedings for the following reasons: 

Court that that there may be no genuine issue of material fact, no entitlement to relief and no 

has been attached to this Order) and upon a review of the record in this case, it appears to this 

James Robinson, Esq., court-appointed PCRA Counsel for the Defendant (a copy of which 

(42 Pa.C.S. §9541, et. seq). and upon consideration of the No Merit Letter submitted by 

pro-se Petition for Post-Conviction Relief filed pursuant to the Post-Conviction Relief Act. 

ANO NOW, this /.Jday of January, 2016, upon consideration of the Defendant's 

ORDER OF COURT AND 

NOTICE OF INTENT TO DISMISS 

No. 1950 C 2012 

COMMONWEALTH OF PENNSYLVANIA ) 

) 

-vs.- ) 

) 

SHAUN EDWARD KIMMEL, ) 

Defendant. ) 

IN THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTY, 

PF-NNSYLV ANIA - CRIM I NAL DIVISION 
2 

I Numerals in parenthesis preceded by the letters "TT" refer to specific pages of the transcript of the testimony 

presented at the trial of this matter, held on December 4 - 6, 2012 before this court, which is made a part of the 

record herein. 

Defendant immediately after the transaction through the use of Defendant's JNET driver's 

recorded currency. (TT 132-36).1 Chief Berger identified the seller of the heroin as 

which the CI and Berger were traveling, and transfer heroin to the CI in exchange for the pretestified that he saw Defendant exit his trailer, walk to the driver's side of the vehicle in 

been strip-searched and provided with money, drove to the parking lot of the trailer park. He 

Borough Police Department testified that he, as the undercover officer, and the CJ, who had 

Trailer Park in Derry Township, Westmoreland County. Chief John Berger of the Ligonier 

The first controlled buy was conducted on June 12, 2011 in the parking lot of the J&L 

Cl on each of the three occasions. 

with which lo conduct the transaction. Finally, an undercover police officer accompanied the 

money on his/her person. On each occasion, the CI was provided with pre-recorded currency 

each occasion. the Cl was strip searched to verify that the Cl had no controlled substances or 

"CI"), from Defendant that was monitored and observed by law enforcement authorities. On 

occasion involved a controlled purchase of heroin by the confidential informant, (hereinafter 

("Defendant") delivered heroin lo a confidential informant on three separate occasions. Each 

The evidence presented at trial established that Defendant. Shaun Edward Kimmel 

FACTUAL HISTORY 

requested leave to withdraw as counsel. 

Defense counsel James Robinson, Esq., filed a No-Merit Letter on November 16, 2015, and 

Defendant timely filed a pro-se Petition for Post Conviction Relief on August 25, 2014. 
3 

license photo. (TT 138-40). This controlled buy was also monitored by other members of the 

Westmoreland County Drug Task Force. 

The second controlled buy was conducted on August l 0, 2011 at the II Brothers Bar 

on Route 982 in Derry Township, Westmoreland County. Officer Amber Noel of the 

Ligonier Township Police Department, acting as the undercover officer, accompanied the Cl, 

who had been strip-searched and provided with pre-recorded currency, to the parking lot of 

the bar. Officer Noel testified that she observed the Cl get out of their vehicle, approach 

Defendant in his car, conduct a transaction, and return to the task force vehicle. (TT 142-44). 

Officer Noel was able to see the person who provided the heroin to the CI, and immediately 

identi tied Defendant as that person after the controlled buy through the use of Defendant's 

JNET driver's license photo. (TT 144). 

The third controlled buy was conducted on August 14, 2011, again al the II Brothers 

Bar on Route 982 in Derry Township, Westmoreland County. Officer Robert Hakel of the 

Ligonier Borough Police Department, acting as the undercover officer, accompanied the CI, 

who had been strip-searched and provided with pre-recorded currency, to the parking lot of 

the bar. Officer Hakel testified that he observed the Cl get out of their vehicle, approach 

Defendant in his car. conduct a transaction, and return to the task force vehicle. (TT 149~50). 

Officer Hakel was able to see the person who provided the heroin to the CI, and he identified 

Defendant as that person immediately after the controlled buy through the use of Defendant's 

JNET driver's license photo. (TT J 51-52). 

ELIGIBILITY FOR RELIEF: 
4 

his pro-se PCRA petition. Defendant asserts that his counsel failed to raise the issue of 

Defendant now raises the following issues as reasons why he is eligible for relief. f n 

u.. citing Commonwealth v. Holloway, 559 Pa. 258, 739 A.2d 1039, 1044 (1999). 

( 1) that there is merit to the underlying claim; (2) that counsel had no 

reasonable basis for his or her course of conduct; and (3) that there is a 

reasonable probability that, but for the act or omission challenged, the 

outcome of the proceeding would have been different. Commonwealth 

v. Jones, 546 Pa. 161, 175, 683 A.2d 1181, 1188 ( 1996). Counsel is 

presumed to be effective and Appellant has the burden of proving 

otherwise. Commonwealth v. Marshall. 534 Pa. 488, 633 A.2d 1100 

( 1993). Additionally, counsel cannot be considered ineffective for 

failing to raise a claim that is without merit. Commonwealth v. 

Peterkin. 538 Pa. 455, 649 A.2d 121 (1994) .... 

counsel. he must plead and prove, by a preponderance of the evidence: 

Additionally, because the Defendant has raised allegations of ineffective assistance of 

Commonwealth v. Rivers. 567 Pa. 239, 245-246, 786 A.2d 923, 927 (Pa. 200 l ). 

PCRA petitioners. to be eligible for relief, must, inter alia, plead 

and prove their assertions by a preponderance of the evidence. Section 

9543(a). Inherent in this pleading and proof requirement is that the 

petitioner must not only state what his issues are, but also he must 

demonstrate in his pleadings and briefs how the issues will be proved. 

Moreover, allegations of constitutional violation or of ineffectiveness 

of counsel must be discussed "in the circumstances of the case." 

Section 9543(a)(2)(i-ii). Additionally, the petitioner must establish by 

a preponderance of evidence that because of the alleged constitutional 

violation or ineffectiveness, "no reliable adjudication of guilt or 

innocence could have taken place." Section 9543(a)(2)(i-ii). Finally, 

petitioner must plead and prove that the issue has not been waived or 

finally litigated. §9543(a)(3), and if the issue has not been litigated 

earlier, the petitioner must plead and prove that the failure to litigate 

"could not have been the result of any rational, strategic or tactical 

decision by counsel." Section 9543(a)(4). 

Procedure (Pa.R.Crim.P. Rules 901 and 902). Generally speaking, 

forth both in the Ac! itself(42 Pa.C.S. §9541, et. seq.) and in the Rules of Criminal 

The requirements for eligibility for relief under the Post-Conviction Relief Act are set 
5 

The complete failure to file the 1925 concise statement 

is per se ineffectiveness because it is without reasonable basis 

designed to effectuate the client's interest and waives all issues 

on appeal. Likewise> the untimely filing is per se 

ineffectiveness because it is without reasonable basis designed 

Burton recited: 

214 (Pa. 1999): Comm. v. B11rto11, 973 A.2d 428. 432 (Pa.Super. 2009). As the court in 

functional equivalent of having no representation at all); see also Comm. v. Lantzy, 558 Pa. 

A.2d 795, 801 (Pa. 2005) (holding that the failure to perfect a requested direct appeal is the 

1925 Statement. counsel's inaction represents per-se ineffectiveness. Comm. v. Halley, 870 

counsel fails entirely lo file a direct appeal when directed by a defendant, including a Rule 

weight of the evidence in Defendant's 1925 Statement. ft is certainly true that where trial 

Defendant first asserts that trial counsel was ineffective for failing to raise a claim of 

I. WHETHF,R TRIAL COUNSEL RENDERED INEFFECTIVE 

ASSISTANCE OF COUNSEL BY FAILING TO PRESERVE THE ISSUES 

OF WEIGHT OF THE EVIDENCE ON APPEAL TO THE SUPERIOR 

COURT? 

suggestive. (No Merit Letter 3). 

that the identification procedure which was used to identify Defendant was unduly 

delivered the heroin during the drug transaction. (No-Merit Letter 3). Last, Defendant asserts 

unable to testify al trial, identified Defendant in a JNET photograph as the person who 

that it was reversible error for Sergeant James Friscarella to testify that the Cl, who was 

lo introduce hearsay statements at trial. (No-Merit Letter 3). The Defendant also contends 

by failing to preserve the issue of whether this Court erred in permitting the Commonwealth 

representation." tPro-se PCRA 18). Defendant also asserts that trial counsel was ineffective 

issue was waived al the Superior Court level, and Defendant "feels he was denied competent 

weight of the evidence in his Rule 1925(b) Statement. (No-Merit Letter 3). As a result, the 
6 

baseless or frivolous issues." Comm. v. Gwy1111, 943 A.2d 940, 948 (Pa. 2008). 

See Ali. IO A.3d at 282. Also, "counsel will not be deemed ineffective for failing to raise 

contested choices had some reasonable basis "designed to effectuate his client's interests." 

omitted). Generally, counsel's assistance is deemed constitutionally effective so long as its 

these prongs, his claim fai Is." Comm. v. Simpson. 66 A.3d 253, 260 (Pa. 2013) ( citation 

Comm. v. Ali, IO A.3d 282, 291 (Pa. 20 I 0). Further, "if a petitioner fails to prove any of 

action or inaction; and (3) the petitioner suffered actual prejudice as a result. Id.; see also 

(1) his underlying claim is of arguable merit; (2) counsel had no reasonable basis for his 

standard, a defendant must meet all of the following three prongs to prove ineffectiveness: 

meet the three prongs established in Comm v. Pierce, 527 A.2d 973 (Pa. 1987). Under this 

Thus. because per-se ineffectiveness is not implicated in this case, Defendant must 

Comm. v. Grose/la, 902 A.2d 1290, 1293-94 (Pa.Super. 2006) (citation omitted). 

"It is also well-settled that the reinstatement of direct appeal 

rights is not the proper remedy when appellate counsel 

perfected a direct appeal but simply failed to raise certain 

claims. Where a petitioner was not entirely denied his right to 

a direct appeal and only some of the issues the petitioner 

wished to pursue were waived, the reinstatement of the 

petitioner's direct appeal rights is not a proper remedy." 

defendant, per-se ineffectiveness is not implicated. 

On the other hand, where counsel fails to pursue every claim requested by a 

Id. at 432-33. 

lo effectuate the client's interest and waives all issues 

on appeal. Thus untimely filing of the 1925 concise statement 

is the equivalent of a complete failure to file. Both 

are per se ineffectiveness of counsel from which appellants are 

entitled lo the same prompt relief. 
7 

In this case, Defendant fails the first prong, as he cannot assert that his claim has arguable 

merit. A claim has arguable merit if counsel's act or omission conflicts with a constitutional 

guarantee, statute, rule of procedure, or established precedent. See, e.g., Comm. v. Bennett, 

19 A.Jd 541 (Pa.Super. 2011 ), Comm. v. Jo!,11so11. 875 A.2d 328 (Pa.Super. 2005), Comm. 

v. Poplawski, 852 A.2d 323 (Pa.Super. 2004). As stated above, although Defendant certainly 

has a constitutional right to file an appeal, reinstatement of a defendant's appellate rights are 

not the proper remedy where defense counsel does not further every argument suggested by, 

or available to, a defendant. As discussed, infra. weight of the evidence arguments are very 

narrov .. -ly construed. The facts in this case are not so extraordinary as to shock one's sense of 

justice, which would garner Defendant relief. Thus, this claim is meritless, and Defendant's 

ineffectiveness claim must fail for not meeting the arguable merit prong. 

Even assuming, arguendo, that Defendant's claim did have arguable merit, Defendant 

also fails the second prong under Pierce, as defense counsel acted reasonably in not 

furthering Defendant's weight of the evidence claim. To successfully argue that defense 

counsel had no reasonable basis for his or her actions, courts "do not question whether there 

were other more logical courses of action which counsel could have pursued; rather, we must 

examine whether counsel's decisions had any reasonable basis." Co11mL v. Washington, 927 

A.2d 586, 594 (Pa. 2007). Further, a court can only conclude that counsel's strategy lacked 

a reasonable basis if a defendant proves that "an alternative not chosen offered a potential for 

success substantially greater than the course actually pursued. H Comm. v. Williams, 899 A.2d 

I 060, 1064 (Pa. 2006). 

In this case. Defendant did not have any potential for success in his weight of the 

evidence claim. A new trial is warranted on weight of the evidence grounds only in 
8 

Except as authorized by this act, the manufacture, delivery, or 

possession with intent to manufacture or deliver, a controlled 

substance by a person not registered under this act, or a 

practitioner not registered or licensed by the appropriate State 

following acts are prohibited: 

Defendant was also convicted of §AJO of the same Act, which reads that the 

knowingly or intentionally possess] es] a controlled or 

counterfeit substance [and is not] a person not registered under 

this act. or [is] a practitioner not registered or licensed by the 

appropriate State board, unless the substance was obtained 

directly from. or pursuant to, a valid prescription order or order 

of a practitioner. or except as otherwise authorized by this act. 

35 P.S. § 780-113 §Al6. 

is in violation of the Controlled Substance, Drug, Device and Cosmetic Act where he: 

Defendant's guilty verdict was not against the weight of the evidence. An individual 

v. Widmer, 744 A.2d 745, 752 (Pa. 2000). 

that to ignore them or to give them equal weight with all the facts is to deny justice.'" Comm. 

to determine that 'notwithstanding all the facts, certain facts are so clearly of greater weight 

evidence claim, "judges do not sit as the thirteenth juror. Rather, the role of the trial judge is 

disappointed, or uncomfortable, but shocked." Criswell, 834 A.2d at 513. For a weight of the 

circumstances, to overturn those assessments when the judicial conscience is not merely 

in assessing credibility and the limited power of trial judges, in narrowly circumscribed 

because of the "obvious tension between the broad, settled, exclusive role of the fact-finder 

Supreme Court also noted that weight of the evidence arguments are narrowly construed 

also Armbruster v. Horowitz. 572 Pa. I, 8 I 3 A.2d 698, 703 (2002). The Pennsylvania 

given another opportunity to prevail.:'' Criswell v. King, 834 A.2d 505, 512 (Pa. 2003); see 

it shocks one's sense of justice and the award of a new trial is imperative so that right may be 

extraordinary circumstances, or "when the jury's verdict is 'so contrary to the evidence that 
9 

reasonable probability that the outcome of the proceedings would have been different." 

petitioner demonstrates that "but for the errors and omissions of counsel, there is a 

actual prejudice as a result of defense counsel's actions. Prejudice is established where a 

For many of the same reasons, Defendant also fails the third prong, as he did not suffer 

counsel acted reasonably in not pursuing the claim at the Superior Court level. 

Because the evidence presented at trial was not against the weight of the evidence, defense 

Further, an undercover officer accompanied the Cls on each of the three controlled buys. 

strip searched to ensure that there were no controlled substances or money on their person. 

informant was monitored and observed by Jaw enforcement authorities. The informants were 

great weight as to deny Defendant justice. During each of the controlled buys, a confidential 

This Court cannot locate any facts presented at trial or thereafter which are of such 

heroin to the Cl on three separate occasions." Id. 

clearly sufficient to support the jury's finding that Kimmel was the individual who delivered 

lssued Pursuant to Pa.R.A.P. 1925, pg. 4). Thus, this Court found that "the evidence was 

Kimmel as the heroin dealer through use of his JNET photograph." (Opinion of the Court 

the controlled buys had ample opportunity to observe Kimmel clearly and all indentified 

and at times where the undercover officers as well as the officers conducting surveillance of 

undercover officers were able to identify Defendant, and "the transactions occurred in places 

verdict was not against the weight of the evidence. This Court reiterated that each of the three 

evidence to support Defendant's conviction. The same facts support the notion that the jury 

This Court had already determined, in its 1925 Opinion, that there was a plethora of 

board. or knowingly creating, delivering or possessing with 

intent to deliver, a counterfeit controlled substance. 

35 P.S. § 780-113 §A30. 
10 

objected on the basis of hearsay. That objection was overruled. (TT 73-74). Counsel again 

201 l, Friscarella indicated that there was. When asked who that target was, defense counsel 

When asked whether there was a target for the first controlled buy conducted on June 12, 

testified regarding his role in the undercover drug investigation that led to Defendant's arrest. 

information that the police officers had gained through the CI. Sergeant James Friscarella 

objections at the outset of the trial on three occasions, seeking to bar the admission of any 

ruled that these statements were properly admitted. Defense counsel raised hearsay 

Defendant did not suffer any prejudice by the argument's omission, as this Court previously 

Even assuming arguendo that defense counsel did not properly preserve the issue, 

confidential informant." (Concise Statement 2). 

testimony through Sergeant Friscarella regarding information supplied to them by the 

one of the confidential informants, "the Commonwealth was still permitted to present ample 

counsel opined that despite the fact that the Commonwealth did not disclose the identity of 

defense counsel did raise the issue of these hearsay statements in its l 925 Statement. Defense 

issue of"improperly admitted hearsay evidence." This Court first notes that it appears that 

Defendant's second issue suggests that defense counsel also erred in not preserving the 

II. WHETHER TRIAL COUNSEL RENDERED INEFFECTIVE 

ASSISTANCE OF COUNSEL BY FAILING TO PRESERVE THE ISSUE 

OF WHETHER HEARSAY EVIDENCE WAS PROPERLY ADMITTED 

TO THE SUPERIOR COURT? 

relief. 

that had his counsel pursued such a claim. that the Superior Court would have granted him 

conviction was not against the weight of the evidence. Therefore, Defendant cannot establish 

Comm. v. Kimball, 724 A.2d 326, 333 (Pa. 1999). As discussed supra, Defendant's 
l I 

admitted has no arguable merit. Thus, this ineffectiveness argument must also fail. 

discretion in admitting this testimony, and Defendant's claim that they were improperly 

the Commonwealth and the timely objection thereto. Therefore) there was no abuse of 

given in this case. none was necessary given the very limited nature of the question posed by 

Dargan, 897 A.2d 496, 500 (Pa.Super. 2006). Although there was no limiting instruction 

this limited purpose. See, e.g., Comm. v. Estepp, 17 A.3d 939 (Pa. Super 2011); Comm. v. 

Similar challenges to the admission of such evidence have been unsuccessful when used for 

information is clearly admissible to establish the course of conduct on the part of the police. 

informant (or informants) as suggested on pages 73 ~ 74 of the trial transcript, such 

With regard to the background information provided to the police by the confidential 

was an exception to the hearsay rule. 

upon the Commonwealth's assertion that a statement made for the purpose of identification 

photograph shortly after the controlled buy. (TI l 03 ). That objection was overruled based 

both the undercover officer and the confidential informant identified Kimmel from his JNET 

Defendant's objection. Counsel objected a third time when Sergeant Friscarella testified that 

The Commonwealth withdrew that question, so there was no ruling made by the court on 

(TT 74). 

MS. ELLIOTT: Objection. Hearsay. Your Honor, this is the very 

safeguard of the hearsay rule. Mr. Kimmel is sealed before you charged 

with a variety of very serious charges, and if everything the confidential 

informant told Sergeant FriscarcJla is admissible where is his 

constitutional protection? 

Defendant: 

objected when Sergeant Friscarella was asked if law enforcement had an address for 
12 

fails. 

error, no reliable adjudication of guilt or innocence could have taken place, and his claim 

reasons, Defendant cannot prove by a preponderance of the evidence that because of such an 

controlled buys. but provided credible in-court identifications of Kimmel as welt. For these 

testify and provided not only testimony about the identifications made shortly after the 

harmless, given the testimony that was provided by the undercover police officers who did 

statements of identification made by the CL Nonetheless, it is clear that the error was 

subject to cross-examination. Therefore, it was in fact error to admit the out-of-court 

never disclosed, and the Cl was not present at trial and did not testify, and was therefore not 

cross-examination by De fondant. However, the identity of the confidential informant was 

The undercover officers were available and. in fact, testified at trial and were subject to 

803.1 (2). 

examination." Comm. v. Wilson, 580 Pa. 439, 456, 861 A.2d 919, 929 (Pa. 2004); Pa.R.E. 

regardless of impeachment, provided that the declarant is present and subject to crossidentification, it is admissible as an exception to the hearsay rule as substantive evidence, 

fal1 within that limited exception. "Where , .. the prior consistent statement is one of 

purpose of identi fication requires that the declarant be present and testify in court in order to 

be admitted al trial. The exception that has been carved out for statements made for the 

Rule 803.1 sets forth certain exceptions to the hearsay rule which permit hearsay evidence to 

identification from the undisclosed Cl through the testimony of Sergeant Fiscarella. Pa.R.E. 

Defendant also declares that it was reversible error for this Court to admit statements of 

Ill. WHETHER IT WAS REVERSIBLE ERROR FOR SERGEANT 

FISCARELLA TO TESTIFY THAT THE CONFIDENTIAL INFORMANT, 

WHO DID NOT TESTIFY AT TRIAL, IDENTIFIED THE DEFENDANT 

BY LOOKING AT A J-NET PHOTOGRAPH? 
13 

NOTICE OF INTENT TO DISMISS: 

procedures, and this argument must fail. 

preponderance of the evidence that the verdict was compromised by such identification 

individual involved in each of the three controlled buys. Thus, Defendant cannot prove by a 

identifications were sustained at trial, where each of the officers identified Defendant as the 

each of the controlled buys took place. (TT 138-40, 144j 151-52). The reliability of these 

In this case, undercover police officers were inunediately able to identify Defendant after 

(Defendant's Brief 8-9). See also Comm v. Kendricks, 30 A.2d 499 (Pa.Super, 2011). 

photographs as a means to identify suspects who are involved in criminal investigations." 

Robinson, Esq. in his No-Merit Letter, "law enforcement officers are permitted to use JNET 

McGagltey. 507 A.2d 357, 359 (Pa. 1986). And as noted by Defense Counsel James 

identification, if the reliability of a subsequent identification can be sustained." Comm. v. 

377. 383 ( 1968). However, "[s]uggestiveness alone will not forbid the use of an 

procedure that emphasizes or singles out a suspect. See Simmons v. United States, 390 U.S. 

(Pa.Super. 200 I). Suggestiveness arises "when the police employ an identification 

substantial likelihood ofmisidentification.11 Comm. v. Fisher, 769 A.2d 1116, 1126 

merit. "A photographic identification is unduly suggestive when the procedure creates a 

him. namely, through JNET photographs. was unduly suggestive. This argument is without 

Last, Defendant alleges that the identification procedure that officers used to identify 

IV. WHETHER THE IDENTIFICATION PROCEDURE USED WAS 

UNDULY SUGGESTIVE? 
14 

If a response is filed, this Court may, instead, upon consideration of the response, 

grant leave Lo file an amended petition or otherwise direct that the proceedings continue. 

Any response should address specifically the areas of defect delineated within the body of 

this Order of Court, specifically, any response by the defendant must be in writing and 

shall address the issues addressed by this Court herein. 

If no response is filed, this Court shall dismiss the Defendant's pro-se PCRA Petition. 

If a response is filed, this Court may, upon consideration of the response, dismiss the 

Petition, grant leave lo file an amended Petition or otherwise direct that the proceedings 

continue. 

Based upon this court's consideration of the "No Merit Letter" submitted by Attorney 

James Robinson, Esq., and upon a review of the record in this case, counsel's Petition to 

Withdraw as Counsel of Record in this matter is taken under advisement. The said Petition 

shal I be granted by further Order of Court provided that a meritorious response is not 

received by this Court from the defendant within the twenty-day period set forth above. 

Defendant may. if he chooses, avail himself of the assistance of PCRA counsel in the 

preparation of this response, or he may elect to file the required response pro-se. 

THE DEFENDANT MAY FILE A WRITTEN RESPONSE TO THIS NOTICE. 

SUCH A RESPONSE MUST BE FILED WITHIN 20 DAYS FROM THE DATE OF 

THIS NOTICE. IF NO RESPONSE IS FILED, THIS COURT SHALL DISMISS THE 

PETITION. 

Accordingly, the Court hereby notifies the parties of its intention to dismiss the 

defendant's pro-se post-conviction petition. 
15 

cc: File 

John Petrush, Esq., Assistant District Attorney 

James Robinson. Esq., Counsel for Defendant 

Shaun Edward Kimmel. Defendant 

D.0.C. IIK Y7015, Unit/Side: J/£3, 

SCI Albion, 10745 Roule 18, Albion, PA 16475-0002 

Pamela Neiderheiscr. Esq .. Court Administrator's Office 

Clerk of Courts 

Date