J-S78005-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ROBERT FENNELL,

Appellant No. 1280 WDA 2015

Appeal from the PCRA Order Entered July 21, 2015

In the Court of Common Pleas of Cambria County

Criminal Division at No(s): CP-11-CR-0001935-2009

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ROBERT FENNELL,

Appellant No. 1379 WDA 2015

Appeal from the PCRA Order Entered July 27, 2015

In the Court of Common Pleas of Cambria County

Criminal Division at No(s): CP-11-CR-0001935-2009

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

MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 02, 2016

Appellant, Robert Fennell, appeals from the July 27, 2015 order 

denying his petition filed under the Post Conviction Relief Act, 42 Pa.C.S. §§ 

____________________________________________

*

Former Justice specially assigned to the Superior Court.
J-S78005-16

- 2 -

9541-9546.1 Appellant raises multiple issues, including several claims of 

ineffective assistance of counsel (IAC). After careful review, we affirm the 

order entered at docket 1379 WDA 2015, and quash the appeal docketed at 

1280 WDA 2015.

This Court previously summarized the facts underlying Appellant’s 

case, as follows:

On January 24, 2009, Appellant, while a prisoner in the 

State Correctional Institution [(“SCI”)] at Cresson, Pennsylvania, 

punched a Corrections Officer, Russell Bollinger [(“C.O. 

Bollinger”)], in the face. This assault was not only witnessed by 

several people, but also recorded on a security camera 

videotape. At trial, [C.O.] Bollinger testified that he was struck 

in the jaw by Appellant, the force of which caused him to fall 

down onto a nearby metal bench. A “ruckus” ensued, during 

which time Appellant “managed to get an arm round [C.O. 

Bollinger’s] neck to try to choke” him. The melee ended with 

correction officers wrestling Appellant to the floor, and 

restraining him with handcuffs. As a result of this incident, 

[C.O.] Bollinger “tore the muscles in the right side of [his] back.” 

He further testified that as a result of his injuries he could not 

get off his “couch for about three days,” and missed “about two 

weeks” of work. 

____________________________________________

1 Appellant filed two notices of appeal - one from an order purportedly 

entered on July 21, 2015, and one from the PCRA court’s order entered on 

July 27, 2015. Those notices of appeal were docketed at 1280 WDA 2015 

and 1379 WDA 2015, respectively. This Court sua sponte consolidated 

Appellant’s appeals on October 19, 2015. Our review of the certified record 

confirms that the PCRA court did not enter any order on July 21, 2015. 

Rather, the order denying Appellant’s petition was entered on July 27, 2015. 

All of Appellant’s issues relate to the July 27, 2015 order denying his 

petition. Consequently, we quash Appellant’s appeal docketed at 1280 WDA 

2015, and our disposition herein relates only to his appeal docketed at 1379 

WDA 2015.
J-S78005-16

- 3 -

At trial, Appellant offered a somewhat hybrid defense, 

alternately claiming that he was either justified or under duress

when he assaulted [C.O.] Bollinger. He asserted that he had 

previously been a target of retaliatory conduct from corrections 

officers, during which time they had abused him, and that that 

conduct precipitated his striking of [C.O.] Bollinger.

Commonwealth v. Fennell, No. 186 WDA 2011, unpublished 

memorandum at 1-2 (filed March 19, 2012) (citations to the record 

omitted).

Based on these facts, Appellant was convicted, following a nonjury 

trial, of two counts of aggravated assault, and one count each of simple 

assault, assault by a prisoner, resisting arrest, and recklessly endangering 

another person. On August 10, 2010, he was sentenced to an aggregate 

term of 10 to 20 years’ incarceration. Appellant filed a timely direct appeal, 

and we affirmed his convictions. See Fennell, supra.

2

 Appellant did not 

file a petition for allowance of appeal with our Supreme Court. However, he 

later sought reinstatement of his right to do so in a timely-filed PCRA 

petition, which the PCRA court granted. Id. Appellant then filed a nunc pro 

____________________________________________

2 We did, however, vacate Appellant’s sentence for simple assault, 

concluding that that offense merged, for sentencing purposes, with 

Appellant’s conviction of aggravated assault on C.O. Bollinger. See Fennell, 

No. 186 WDA 2011, unpublished memorandum at 12. We also vacated the 

sentence imposed by the court for Appellant’s second count of aggravated 

assault, concluding that the trial court had improperly “imposed separate 

sentences upon Appellant for the same conduct based upon the conclusions 

that [he] violated two separate subsections of the aggravated assault 

statute[,] ... which constitutes an illegal sentence.” Id. at 12-13. Our 

decision to vacate Appellant’s sentences for simple assault and one count of 

aggravated assault did not alter his aggregate term of 10 to 20 years’ 

imprisonment; thus, we did not remand for resentencing. Id. at 14 n.7.
J-S78005-16

- 4 -

tunc petition for allowance of appeal, and the Supreme Court ultimately 

denied that petition. Commonwealth v. Fennell, 72 A.3d 600 (Pa. 2013).

On May 9, 2014, Appellant filed the pro se PCRA petition that underlies 

the present appeal. Counsel was appointed, and an amended petition was 

filed in August of 2014 presenting, inter alia, multiple IAC claims. A PCRA 

hearing was conducted on May 20, 2015. Appellant was the only witness to 

testify at that proceeding. On July 27, 2015, the PCRA court entered an 

order denying Appellant’s petition, concluding that he “failed to satisfy his 

burden of demonstrating ineffectiveness because he failed to produce 

evidence that counsel’s chosen course of action lacked a reasonable basis 

designed to effectuate [Appellant’s] interests.” PCRA Court Order, 7/27/15, 

at 1-2 (citation omitted). 

Appellant filed a timely notice of appeal, and also timely complied with 

the PCRA court’s order to file a Pa.R.A.P. 1925(b) concise statement of 

errors complained of on appeal. Herein, Appellant raises the following seven 

questions for our review:

A. Whether the PCRA [c]ourt erred and abused its discretion by 

failing to find Appellant’s constitutional rights were violated by 

his arrest through summons?

B. Whether the PCRA [c]ourt erred and abused its discretion by 

failing to find [that] Appellant’s trial counsel was ineffective for 

failing to call witnesses on his behalf?

C. Whether the PCRA [c]ourt erred and abused its discretion by 

failing to find [that] Appellant’s trial counsel was ineffective for 

failing to properly investigate the abuse perpetrated upon 

Appellant by the correctional officers at SCI Cresson?
J-S78005-16

- 5 -

D. Whether the PCRA [c]ourt erred and abused its discretion by 

failing to find [that] Appellant’s trial counsel [was] ineffective for 

failing to move the court to limit the introduction of surveillance 

video against Appellant?

E. Whether the PCRA [c]ourt erred and abused its discretion by 

failing to find [that] Appellant’s trial counsel failed to properly 

impeach [C.O.] Bollinger regarding his interaction with Appellant 

in the months before the incident?

F. Whether the PCRA [c]ourt erred and abused its discretion by 

failing to find [that] Appellant’s trial counsel was ineffective for 

failing to remove himself from Appellant’s case, as he had a 

personal relationship with the alleged victim?

G. Whether the PCRA [c]ourt erred and abused its discretion by 

failing to grant Appellant’s request for discovery contained within 

his [a]mended [PCRA] [p]etition...?

Appellant’s Brief at 4-5.

To begin, our standard of review regarding an order denying postconviction relief under the PCRA is whether the determination of the court is 

supported by the evidence of record and is free of legal error. 

Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007). The PCRA 

court’s findings will not be disturbed unless there is no support for the 

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164, 

1166 (Pa. Super. 2001).

In Appellant’s first issue, he contends that “the procedure used to 

secure his appearance at his preliminary hearing was unlawful.” Appellant’s 

Brief at 10. Specifically, Appellant asserts that because he was charged with 

felony offenses, Pennsylvania Rule of Criminal Procedure 509 required that a 

warrant for his arrest be issued, yet he only “received a summons in the 

mail advising him to report to the preliminary hearing.” Appellant’s Brief at 
J-S78005-16

- 6 -

11; see also Pa.R.Crim.P. 509(2)(a) (requiring the issuing authority to issue 

a warrant for arrest when “one or more of the offenses charged is a felony or 

murder”). 

Appellant does not offer any meaningful discussion of how his 

constitutional rights were violated by the issuance of a summons, rather 

than a warrant for his arrest. He also does not explain why this claim could 

not have been raised at the preliminary hearing, before the trial court, or on 

direct appeal. Consequently, we conclude that he has waived his challenge 

to the purported deficiency in how he was summoned to attend the 

preliminary hearing.3 See 42 Pa.C.S. § 9543(a)(3) (stating that, to be 

eligible for PCRA relief, the petitioner must plead and prove “[t]hat the 

allegation of error has not been previously litigated or waived”); 42 Pa.C.S. 

§ 9544(b) (stating that “an issue is waived if the petitioner could have raised 

it but failed to do so before trial, at trial, during unitary review, on appeal, or 

in a prior state post[-]conviction proceeding”). 

____________________________________________

3 To the extent Appellant suggests that his trial counsel was ineffective for 

not raising this ostensible deficiency, see Appellant’s Brief at 11, that claim 

was not raised in his Rule 1925(b) statement. Therefore, for that reason, it 

is also waived. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the 

Statement and/or not raised in accordance with the provisions of this 

paragraph (b)(4) are waived.”).
J-S78005-16

- 7 -

Appellant’s next five issues allege [the] ineffective assistance of his 

trial counsel, Kenneth Sottile, Esq. We review such claims under the 

following standard:

[A] PCRA petitioner will be granted relief [on such a claim] only 

when he proves, by a preponderance of the evidence, that his 

conviction or sentence resulted from the “[i]neffective assistance

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. § 9543(a)(2)(ii). “Counsel is presumed effective, and to 

rebut that presumption, the PCRA petitioner must demonstrate 

that counsel's performance was deficient and that such 

deficiency prejudiced him.” [Commonwealth v.] Colavita, 606 

Pa. [1,] 21, 993 A.2d [874,] 886 [(Pa. 2010)] (citing 

Strickland[ v. Washington, 104 S.Ct. 2053 (1984)]). In 

Pennsylvania, we have refined the Strickland performance and 

prejudice test into a three-part inquiry. See [Commonwealth 

v.] Pierce, [515 Pa. 153, 527 A.2d 973 (Pa. 1987)]. Thus, to 

prove counsel ineffective, the petitioner must show that: (1) his 

underlying claim is of arguable merit; (2) counsel had no 

reasonable basis for his action or inaction; and (3) the petitioner 

suffered actual prejudice as a result. Commonwealth v. Ali,

608 Pa. 71, 86, 10 A.3d 282, 291 (2010). “If a petitioner fails to 

prove any of these prongs, his claim fails.” Commonwealth v. 

Simpson, [620] Pa. [60, 73], 66 A.3d 253, 260 (2013) (citation 

omitted). Generally, counsel's assistance is deemed 

constitutionally effective if he chose a particular course of 

conduct that had some reasonable basis designed to effectuate 

his client's interests. See Ali, supra. Where matters of strategy 

and tactics are concerned, “[a] finding that a chosen strategy 

lacked a reasonable basis is not warranted unless it can be 

concluded that an alternative not chosen offered a potential for 

success substantially greater than the course actually pursued.” 

Colavita, 606 Pa. at 21, 993 A.2d at 887 (quotation and 

quotation marks omitted). To demonstrate prejudice, the 

petitioner must show that “there is a reasonable probability that, 

but for counsel's unprofessional errors, the result of the 

proceedings would have been different.” Commonwealth v. 

King, 618 Pa. 405, 57 A.3d 607, 613 (2012) (quotation, 

quotation marks, and citation omitted). “‘[A] reasonable 
J-S78005-16

- 8 -

probability is a probability that is sufficient to undermine 

confidence in the outcome of the proceeding.’” Ali, 608 Pa. at 

86–87, 10 A.3d at 291 (quoting Commonwealth v. Collins,

598 Pa. 397, 957 A.2d 237, 244 (2008) (citing Strickland, 466 

U.S. at 694, 104 S.Ct. 2052)). 

Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).

In Appellant’s second issue on appeal, he maintains that Attorney 

Sottile acted ineffectively by not calling “Ms. Alderman, [Appellant’s] 

counselor[,]” as a witness at trial. Appellant’s Brief at 12. Appellant claims 

that he told Ms. Alderman about the abuse he suffered at the hands of 

correctional officers and, therefore, “[h]er [testimony] would have been 

instrumental in explaining to the court why [Appellant] felt the need to use 

force in protecting himself against the correctional officers.” Id. Appellant 

speculates that “Attorney Sottile took no steps in seeking [this witness] out.” 

Id. Appellant also stresses that “Attorney Sottile did not subpoena Ms. 

Alderman, and was not present at the evidentiary hearing to explain his 

inaction.” Id.

Appellant’s argument fails for several reasons. Initially, he did not call 

Ms. Alderman to the stand at the PCRA hearing to verify that she would have 

been willing to testify at his trial, and that her testimony would have 

benefitted his defense. Accordingly, Appellant has not proven that Attorney 

Sottile was ineffective for failing to call her to the stand at trial. See 

Commonwealth v. Washington, 927 A.2d 586, 599 (Pa. 2007) (“To 

establish that counsel was ineffective for failing to call a witness, [an] 

[a]ppellant must demonstrate that: (1) the witness existed; (2) the witness 
J-S78005-16

- 9 -

was available to testify for the defense; (3) counsel knew of, or should have 

known of, the existence of the witness; (4) the witness was willing to 

testify for the defense; and (5) the absence of the testimony of the 

witness was so prejudicial as to have denied the defendant a fair 

trial.”) (citation omitted; emphasis added).

Additionally, Appellant seemingly suggests that Attorney Sottile had a 

duty to attend the PCRA hearing and defend his decision not to call Ms. 

Alderman to the stand. Appellant is incorrect; it is well-established that we 

presume that Attorney Sottile acted effectively, and the burden rests solely 

with Appellant to prove otherwise. See Washington, 927 A.2d at 599 

(“Failure to call a witness is not per se ineffective assistance of counsel, for 

such a decision implicates matters of trial strategy. It is [the] [a]ppellant’s 

burden to demonstrate that trial counsel had no reasonable basis for 

declining to call [the] ... witness.”). Here, Appellant chose not to call 

Attorney Sottile to the stand at the PCRA hearing. Nothing in the record 

suggests that Attorney Sottile was unavailable to testify at that proceeding. 

Instead, Appellant’s PCRA counsel stated at the end of the hearing that he 

believed he was “not required to call” Attorney Sottile to prove Appellant’s 

IAC claims. N.T. PCRA Hearing, 5/20/15, at 58. PCRA counsel instead 

believed that he could solely rely on Appellant’s testimony to establish 

counsel’s ineffectiveness. Id. 

Unfortunately for Appellant, his testimony alone is insufficient to prove 

that Attorney Sottile’s decision not to call Ms. Alderman to the stand 
J-S78005-16

- 10 -

amounted to ineffective representation. As the Commonwealth points out, 

Attorney Sottile “may have believed that [Ms. Alderman’s testimony] would 

ultimately hurt [Appellant’s] case by not supporting his fanciful allegations of 

abuse” by the correctional officers. Commonwealth’s Brief at 6. Because 

Appellant failed to call Attorney Sottile to testify at the PCRA hearing, there 

was no evidence regarding why counsel chose not to call Ms. Alderman, nor 

any way to determine if his decision was unreasonable. Consequently, 

Appellant’s first IAC claim fails.

The same is true for Appellant’s next claim of ineffectiveness, in which 

he argues that Attorney Sottile failed to properly investigate the abuse that 

Appellant claims he suffered at the hands of correctional officers at SCI 

Cresson. Appellant again speculates that Attorney Sottile failed to 

investigate his abuse allegations, stating that “[t]o [Appellant’s] 

knowledge, Attorney Sottile did not seek out any information regarding the 

abuse....” Appellant’s Brief at 14 (emphasis added). Appellant failed to 

present any evidence at the PCRA hearing to support his bald assertion that 

Attorney Sottile failed to sufficiently investigate his claims of abuse. Indeed, 

he even attached to his amended petition a document that proves the 

opposite conclusion. Specifically, Appellant attached a letter drafted by the 

Department of Corrections (DOC) in response to a request from Attorney 

Sottile for various documents, including any records of abuse complaints 

made by Appellant and/or other inmates against correctional officers. See 

Attachments to Appellant’s Amended PCRA Petition/Petition for Discovery, 
J-S78005-16

- 11 -

filed 8/13/14. Therefore, Appellant’s own petition belies his unsupported 

assertion that Attorney Sottile failed to investigate his allegations that he 

was abused by correctional officers.

In Appellant’s fourth issue, he asserts that Attorney Sottile was 

ineffective because counsel “took no action to limit introduction of the video 

of the incident.” Appellant’s Brief at 15. According to Appellant, the video 

should have been suppressed because “there were elements [of] the 

[incident] that the video did not show, such as the presence of a[ Restrictive 

Housing Unit] team member who was previously present during the prior 

abuse of [Appellant]. [The video] also did not show [Appellant’s] offering to 

‘lock-in’ in his cell, in an effort to avoid further confrontation with the 

correctional officers.” Id. 

Other than his own self-serving testimony, Appellant proffered no 

evidence to establish that the video admitted by the Commonwealth was 

distorted or manipulated; therefore, he has not proven that Attorney Sottile 

had any basis on which to seek suppression of that video. See 

Commonwealth v. Jones, 942 A.2d 903, 909 (Pa. Super. 2008) (“[W]here 

an assertion of ineffective assistance of counsel is based upon the failure to 

pursue a suppression motion, proof of the merit of the underlying 

suppression claim is necessary to establish the merit of the ineffective 
J-S78005-16

- 12 -

assistance of counsel claim.”) (internal quotation marks and citation 

omitted).4

Next, Appellant contends that Attorney Sottile was ineffective because 

he “did not question the victim about any specific prior interaction he had 

had with [Appellant], nor did he inquire about how the victim had treated 

him prior to [the] January 2009 assault. Attorney Sottile simply accepted 

that the victim asserted [that] he did not recall having contact with 

[Appellant].” Appellant’s Brief at 16. Appellant goes on to state: “Not 

having testified at the evidentiary hearing, Attorney Sottile could offer no 

reasonable explanation for not having inquired into the subject more during 

his cross-examination of the victim.” Id. 

Again, Appellant’s decision not to call Attorney Sottile to the stand at 

the PCRA hearing does not now permit him to argue that counsel had no 

reasonable basis for the way in which he cross-examined C.O. Bollinger. In 

any event, Appellant acknowledges that Attorney Sottile asked C.O. Bollinger 

____________________________________________

4 Within this same issue, Appellant also contends that Attorney Sottile acted 

ineffectively because there is no “evidence that he attempted to obtain views 

from other cameras on the block for a more complete version of the 

incident.” Appellant’s Brief at 15 (emphasis added). This specific assertion

was not raised in, nor suggested by, Appellant’s Rule 1925(b) statement, 

which only declared that “trial counsel [was] ineffective for failing to move 

the court to limit the introduction of surveillance video against [Appellant].” 

Pa.R.A.P. 1925(b) Statement, 9/17/15, at 1 (unnumbered). Therefore, this 

argument is waived. See Pa.R.A.P. 1925(b)(4)(vii).
J-S78005-16

- 13 -

if he had had any prior contact with Appellant, to which the officer stated, 

“No, I can’t remember ever having any kind of interaction with him.” N.T. 

Trial, 6/24/10, at 44. Attorney Sottile then asked the officer if he had ever 

written Appellant up or searched his cell. Id. C.O. Bollinger replied that it 

was possible, but again stated that he could not “remember [Appellant] at 

all.” Id. Nothing in the record of the trial, nor the evidence presented at 

the PCRA hearing, suggests that C.O. Bollinger would have admitted to 

previously abusing Appellant, if only Attorney Sottile had specifically 

questioned him about that alleged abuse. Thus, Appellant has not proven 

that counsel acted unreasonably by not asking C.O. Bollinger such questions, 

or that he was prejudiced by Attorney Sottile’s failure to do so.

In Appellant’s fifth issue, he contends that Attorney Sottile was 

ineffective for not withdrawing when counsel had “an actual - rather than 

mere[ly] potential - conflict of interest.” Appellant’s Brief at 16. According 

to Appellant, Attorney Sottile sent him a letter prior to trial informing 

Appellant that counsel had a “personal relationship” with the victim. Id. at 

17. Appellant claims that he “voiced his concern about the conflict, but 

Attorney Sottile ignored his complaint.” Id. (citing N.T. PCRA Hearing at 

39). Appellant avers that “Attorney Sottile should have withdrawn after 

discovering he knew the victim.” Id. 

Initially, Appellant overstates that Attorney Sottile’s letter indicated he 

had a ‘personal relationship’ with C.O. Bollinger. In the letter, counsel 

stated:
J-S78005-16

- 14 -

The last thing I wanted to bring up is that in reviewing the 

file I recalled that C.O. Bollinger used to be a section boss at a 

coalmine [sic] where I was the mine payroll clerk. I know him 

as one of the bosses, occasionally spoke to him at the mine but 

never socialized with him or saw him outside the mine. That 

was over 25 years ago and I did not see him since then. I don’t 

believe it is a problem but I felt it appropriate to point it out to 

you to see if you would have a problem or concern about it.

See N.T. PCRA Hearing at Exhibit No. 1 (attached to transcript). 

We disagree with Appellant that this letter demonstrates an ‘actual 

conflict’ in Attorney Sottile’s representation of him. Attorney Sottile stated 

that he worked for the same company as C.O. Bollinger 25 years earlier, and 

that he ‘occasionally’ spoke to the officer, but did not socialize with him 

outside of work. This does not support Appellant’s claim that a ‘personal 

relationship’ existed between C.O. Bollinger and Attorney Sottile at the point 

when they worked together, let alone 25 years later when Attorney Sottile 

represented Appellant. Thus, Appellant has not demonstrated that counsel 

“actively represented conflicting interests....” Commonwealth v. Collins, 

957 A.2d 237, 251 (Pa. 2008) (“To show an actual conflict of interest, the 

appellant must demonstrate that: (1) counsel “actively represented 

conflicting interests”; and (2) those conflicting interests “adversely affected 

his lawyer's performance.”) (citation omitted). 

Additionally, Appellant also cannot show that Attorney Sottile’s 

performance was “adversely affected” by this perceived conflict of interest. 

Id. Appellant states that, “Attorney Sottile failed to properly cross-examine 

[C.O. Bollinger] at trial; his personal relationship with the victim may have 
J-S78005-16

- 15 -

played a role in this failure.” Appellant’s Brief at 17. Appellant’s speculation 

about Attorney Sottile’s motives in cross-examining C.O. Bollinger fails to 

meet his burden of proving he was prejudiced by the purported conflict of 

interest between the officer and counsel. Thus, Attorney Sottile was not 

ineffective for not withdrawing from representing Appellant due to this 

alleged conflict of interest.

In Appellant’s final issue on appeal, he avers that the PCRA court erred 

by denying his petition for discovery. 

In PCRA proceedings, discovery is only permitted upon 

leave of court after a showing of exceptional circumstances. 42 

Pa.C.S.A. § 9545(d)(2); Pa.R.Crim.P. 902(E)(1). The PCRA and 

the criminal rules do not define the term “exceptional 

circumstances.” Rather, it is for the trial court, in its discretion, 

to determine whether a case is exceptional and discovery is 

therefore warranted. Commonwealth v. Dickerson, 900 A.2d 

407, 412 (Pa. Super. 2006).

We will not disturb a court's determination regarding the 

existence of exceptional circumstances unless the court abused 

its discretion. Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 

585, 591 (2000). An abuse of discretion is not a mere error in 

judgment. Commonwealth v. Riley, 19 A.3d 1146, 1149 (Pa. 

Super. 2011). Instead, it is a decision based on bias, ill will, 

partiality, prejudice, manifest unreasonableness, or 

misapplication of law. Id. Moreover, we recall that the appellant 

has the duty to convince us an abuse occurred. Commonwealth 

v. Bennett, 19 A.3d 541, 543 (Pa. Super. 2011).

Commonwealth v. Frey, 41 A.3d 605, 611 (Pa. Super. 2012).

In this case, Appellant claims that the ‘exceptional circumstance’ 

warranting discovery is a report issued by the U.S. Department of Justice 

(DOJ), in which the DOJ found that inmates suffering from ‘serious mental 
J-S78005-16

- 16 -

illness’ had been mistreated at SCI Cresson, specifically through the 

institution’s use of isolation, excessive force, and other abusive tactics. See 

“Investigation of the State Correctional Institution at Cresson and Notice of 

Expanded Investigation,” 5/31/13 (attached to Appellant’s “Petition for 

Discovery Pursuant to Pa.R.Crim.Pro. 902(E)(1), filed 8/13/14). Based on 

the DOJ’s report, Appellant requested discovery of various documents, 

including,

background reports on the correctional officers, the investigative 

reports of the incident, any reports of assaults on staff members 

or other inmates at SCI Cresson in 2009 and 2010, personnel 

files of the correctional officers involved in the incident, shift 

assignment sheets of the officers, pictures of the cell [Appellant] 

was taken to in the restricted housing unit (RHU), and the full 

video of the incident.

Appellant’s Brief at 18. According to Appellant, had the court granted 

discovery of these items, he “would have been able to demonstrate the 

abusive nature of the correctional officers involved, thus bolstering his claim 

that he needed to use force to defend himself.” Id. 

After conducting a hearing on Appellant’s petition for discovery, the 

PCRA court ultimately concluded that the DOJ report did not constitute an 

‘exceptional circumstance’ warranting discovery of the materials requested 

by Appellant. We ascertain no abuse of discretion in that decision. The DOJ 

report relied upon by Appellant was issued over four years after the incident 

underlying his convictions. The report addressed abuse inflicted on inmates 

designated by SCI Cresson officials as suffering from ‘serious mental illness.’ 

Appellant has never alleged, nor presented any evidence to prove, that he 
J-S78005-16

- 17 -

suffers from a serious mental illness, or that he was designated as such by 

SCI Cresson officials. Consequently, the PCRA court did not abuse its 

discretion in concluding that the DOJ report did not constitute an 

‘exceptional circumstance’ warranting discovery in this case.

In any event, we also point out that even if the PCRA court had 

granted Appellant’s discovery request, any evidence he would have 

unearthed could not possibly support a claim of self-defense. We have 

reviewed the video recording of the incident underlying Appellant’s 

convictions. That video shows two correctional officers approach Appellant 

and exchange words with him, after which the officers walk down a staircase 

and out of the camera’s view. For the next few minutes, Appellant - who is 

6’8” tall and weighs 280 pounds - walks in and out of a cell. Appellant then 

walks down the steps and toward the two officers, who are standing at a 

desk and talking. Appellant walks up to C.O. Bollinger and punches the 

officer in the face. C.O. Bollinger falls to the ground as two other officers 

converge on Appellant. Appellant resists the officers’ attempts to subdue 

him, and when C.O. Bollinger then joins in on the struggle, Appellant puts 

him into a headlock. It takes several minutes, and the assistance of multiple 

officers, to finally subdue and handcuff Appellant.

Based on this video, we fail to see - and Appellant does not explain -

how evidence that C.O. Bollinger had previously abused him would assist 

Appellant in proving that his attack on C.O. Bollinger was justified in the 

moment in which Appellant struck the unsuspecting officer. See 18 Pa.C.S. 
J-S78005-16

- 18 -

§ 505(a) (“The use of force upon or toward another person is justifiable 

when the actor believes that such force is immediately necessary for the 

purpose of protecting himself against the use of unlawful force by such other 

person on the present occasion.”). Consequently, the PCRA court did not 

abuse its discretion in denying Appellant’s request for discovery in order to 

uncover evidence that such abuse occurred. 

In sum, none of Appellant’s seven claims on appeal demonstrates that 

the PCRA court erred or abused its discretion in denying his petition for postconviction relief. Accordingly, we affirm the court’s order.

Order entered at docket 1379 WDA 2015 affirmed. Appeal docketed at 

1280 WDA 2015 quashed. 

Judge Ott joins this memorandum.

Justice Fitzgerald concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/2/2016