J-S02028-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JASON MCMASTER

Appellant No. 156 EDA 2015

Appeal from the PCRA Order December 8, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-1202641-2003

BEFORE: SHOGAN, J., LAZARUS, J., and STABILE, J.

MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 03, 2016

Jason McMaster appeals from the order of the Court of Common Pleas 

of Philadelphia County that dismissed his petition filed pursuant to the Post 

Conviction Relief Act.1 After careful review, we affirm.

On direct appeal, this Court summarized the underlying facts as 

follows:

At about 8:45 p.m., on November 16, 2003, McMaster 

approached the victim, Joseph Briglia (“Briglia”), who was at a 

bar with several of his friends. Briglia and his friends did not 

respond to McMaster’s attempts to engage the group in 

conversation. When the group did not respond, McMaster, who 

appeared to be intoxicated, returned to his seat at the far end of 

the bar. Sometime within the next hour, McMaster again 

approached the group and attempted to engage them in 

conversation. As he did so, he leaned over Briglia and dropped 

cigarette ashes on him. Briglia asked McMaster to back away. 

____________________________________________

1 42 Pa.C.S. §§ 9541-9546.
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When McMaster failed to leave, Briglia asked the bar manager 

for assistance. The bar manager asked McMaster to leave the 

group alone. As McMaster began to return to his seat, he stated 

that “you don’t know who I am. I’ll kill you.” After a few 

minutes, McMaster again approached the group, this time 

stabling Briglia with a knife in the side of Briglia’s neck. Briglia 

died as a result of the attack.

After a bench trial, the trial court convicted McMaster of [first 

degree murder and possession of an instrument of crime (PIC)]. 

The trial court sentenced McMaster to life in prison for his 

conviction of murder, and a concurrent prison term of two and 

one-half to five years for his conviction of [PIC].

Commonwealth v. McMaster, No. 2683 EDA 2004, unpublished 

memorandum at 1-2 (Pa. Super. filed September 11, 2006).

After this Court affirmed McMaster’s judgment of sentence on 

September 11, 2006, he filed a petition for allowance of appeal, which our 

Supreme Court denied on March 27, 2007. The PCRA court summarized the 

subsequent history as follows:

On October 31, 2007, [McMaster] filed a pro se PCRA petition. 

He filed a supplemental pro se PCRA petition the following year. 

In his pleadings, [McMaster] alleged ineffective assistance of 

both trial and appellate counsel, and asked to represent himself. 

On July 10, 2008, the court conducted a hearing with regard to 

[McMaster’s] request to proceed pro se and determined that 

[McMaster] no longer wanted to represent himself. The court 

subsequently appointed David Rudenstein, Esq. as PCRA counsel. 

On October 6, 2008, Mr. Rudenstein filed an amended PCRA 

petition.2 Mr. Rudenstein also requested funds for a forensic 

psychologist and private investigator. On February 11, 2009, 

this court approved counsel’s request.

2 Counsel raised three issues in his amended PCRA 

petition: (1) trial counsel was ineffective for failing to call 

alleged eyewitness Thomas Esposito and Sylvia Ricchezza; 

(2) trial counsel was ineffective for failing to retain the 

services of an expert witness to determine whether 

[McMaster’s] mental health issues and intoxication on the 
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night in question would have prevented him from forming 

a specific intent to kill; and (3) all counsel were ineffective 

for failing to preserve a weight of the evidence claim.

Subsequently, Dr. Stephen Samuels, a well-respected forensic 

psychologist, interviewed and examined [McMaster], and a 

private investigator looked into [McMaster’s] eyewitness claims. 

On May 13, 2010, based upon the findings of Dr. Samuels and 

the private investigator, Mr. Rudenstein informed the court that 

he could not successfully present a claim of ineffective assistance 

for failing to retain a medical expert or failing to present Mr. 

Esposito and Ms. Ricchezza as witnesses at trial. Counsel still 

intended to present the remaining PCRA claim.

In response to Mr. Rudenstein’s determination, [McMaster] filed 

multiple pro se pleadings – the first was entitled “Motion to 

Amend PCRA Petition” and the second was a written request that 

Mr. Rudenstein be removed. On April 25, 2011, the court 

permitted Mr. Rudenstein to withdraw and ordered new counsel 

be appointed.

On April 29, 2011, Lee Mandell, Esq., was appointed PCRA 

counsel. On February 27, 2012, Mr. Mandell filed a 

supplemental PCRA petition alleging after-discovered evidence in 

the form of a witness, Kenneth Blanda, whom trial counsel failed 

to call at trial. The case was continued on numerous occasions 

over the next two years to allow [McMaster] and PCRA counsel 

to investigate this new claim. During this same time, 

[McMaster] filed additional pro se PCRA filings in an attempt to 

supplement counsel’s pleadings. At a status conference on 

October 4, 2013, all parties agreed that [McMaster] was entitled 

to an evidentiary hearing limited to the issue regarding counsel’s 

alleged failure to call Kenneth Blanda.

On May 2, 2014, this court conducted an evidentiary hearing. 

[McMaster’s] father . . . and Kenneth Blanda testified for the 

defense. At the conclusion of the hearing, the court took the 

matter under advisement and directed the parties to submit 

proposed Findings of Fact and Conclusions of Law.

On December 15, 2014, after reviewing the trial and evidentiary 

hearing record and considering the arguments and briefs of 

counsel, this court dismissed the instant PCRA petition for lack of 

merit. 
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PCRA Court Opinion, 2/26/15, at 1-3.

On January 9, 2015, McMaster’s counsel filed a notice of appeal, and 

on February 11, 2015, in response to an order from the court, counsel filed a 

timely concise statement of errors complained of on appeal pursuant to 

Pa.R.A.P. 1925(b). The trial court issued its Rule 1925(a) opinion on 

February 26, 2015.

On February 23, 2015, McMaster petitioned this Court for permission 

to proceed pro se. We remanded the matter to the PCRA court to conduct a 

hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). 

On March 16, 2015, the PCRA court determined that McMaster’s decision to 

waive appellate counsel was knowingly, voluntarily and intelligently made. 

The court permitted appellate counsel to withdraw and granted McMaster’s 

request to file a supplemental Rule 1925(b) statement.

McMaster filed his supplemental statement on April 22, 2015, and the 

PCRA court filed a supplemental opinion on July 6, 2015.

On appeal, McMaster raises the following issues for our review:

1. Was the evidence sufficient to sustain a verdict of first degree 

murder when the Commonwealth’s evidence strongly 

suggested that [McMaster] was so in toxicated [sic] that he 

could not have formed an [sic] spicific [sic] intent to kill?

2. Was the guilty verdict of murder in the first degree against 

the weight of the evidence because [McMaster] was so 

intoxicated, and was assaulted by four individuals, that he 

could not have formed a specific intent to kill, and the 

elements of first, second or even third degree [murder] were 

clearly not present?
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Appellant’s Brief at 2.

Clearly, the PCRA does not provide relief for the claims of trial court 

error that McMaster raises in his statement of questions presented. See 42 

Pa.C.S. § 9543(a). However, because McMaster’s brief discusses issues that 

(1) are cognizable under the PCRA, (2) were preserved in his Rule 1925(b) 

statement; and (3) were addressed by the PCRA court in its opinion, we will 

reach the substance of his argument. See Commonwealth v. Phillips, 

580 A.2d 840, 842 n.3 (Pa. Super. 1990) (“Although our review of the issues 

raised on appeal has been hampered by the defects in appellant’s brief, we 

are not precluded from reaching the merits of appellant’s claim as the lower 

court has addressed each contention.”).

In reviewing an appeal from the denial of PCRA relief, “our standard of 

review is whether the findings of the court are supported by the record and 

free of legal error.” Commonwealth v. Martin, 5 A.3d 177, 182 (Pa. 

2010) (citations omitted).

McMaster’s claims all involve allegations of ineffectiveness of trial 

counsel. To be eligible for relief under the PCRA, McMaster must prove by a 

preponderance of the evidence that his conviction resulted from “ineffective 

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 to be effective and the burden of demonstrating 

ineffectiveness rests on appellant.” Commonwealth v. Ousley, 21 A.3d 
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1238, 1244 (Pa. Super. 2011). To prevail on an ineffectiveness claim, the 

defendant must show that the underlying claim had arguable merit, counsel 

had no reasonable basis for his or her action, and counsel’s action resulted 

in prejudice to the defendant. Commonwealth v. Prince, 719 A.2d 1086, 

1089 (Pa. Super. 1998).

McMaster first argues that his trial counsel was ineffective for failing to 

effectively cross-examine Steven DiGregorio and Edward Renzi, who were 

witnesses to McMaster’s confrontation with the victim at the bar. 

At trial, DiGregorio and Renzi both testified that McMaster walked 

across the bar and stabbed the victim in the neck. Renzi testified that after 

he saw McMaster swing at the victim, he grabbed McMaster by the back of 

his sweatshirt. At that point, he did not realize that the victim had been 

stabbed. N.T. Trial, 9/22/01, at 85-86, 114-16. DiGregorio testified that he 

grabbed McMaster and threw him off the victim after he saw McMaster punch 

the victim’s face. N.T. Trial, 9/21/04, at 85-88.

McMaster asserts that if trial counsel had questioned the witnesses 

about their “differing testimonies,” trial counsel could have achieved “a 

better outcome on the part of the appellant, even proving justification/selfdefense on the behalf of the appellant.” Appellant’s Brief, at 7. 

Our review of the trial testimony indicates that counsel engaged in 

lengthy cross-examination of DiGregorio and Renzi. Although counsel 

attempted to identify inconsistencies in their testimony, they steadfastly 

maintained that McMaster was not provoked or threatened before he 
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approached the victim and stabbed him in the neck. Accordingly, McMaster 

has failed to establish there is arguable merit to his claim that counsel 

provided ineffective assistance by failing to properly cross-examine the 

eyewitnesses. 

McMaster next asserts that counsel was ineffective for failing to 

request a mistrial after the court admitted McMaster’s written statement to 

Detective Dennis Dusak. He argues that Detective Dusak knew that he had 

difficulty reading and writing, and that the detective intentionally misled 

McMaster into believing that he had written down McMaster’s statement 

verbatim, when in fact, he had written down a version that made McMaster 

appear guilty. McMaster fails to note that counsel relied on McMaster’s 

statement to Detective Dusak, and the circumstances surrounding the 

statement, to support a defense that McMaster was incapacitated and was 

unable to form an intent to kill at the time of the murder. 

At trial, McMaster attempted to prove that he could not formulate the 

specific intent to kill because he was bipolar and intoxicated at the time of 

the stabbing. Counsel relied on McMaster’s statement to Detective Dusak to 

support his diminished capacity defense. 

In the statement, McMaster averred that he had been drinking earlier 

on the night of the stabbing. During cross-examination, Detective Dusak 

admitted that he smelled alcohol on McMaster during the interview. Defense 

counsel also got Detective Dusak to admit that McMaster told him that he 

could not write and “could only read a little.” N.T. Trial, 9/22/04, at 206. 
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Counsel argued that McMaster’s signature on the statement, which was 

misspelled and written on several lines, demonstrated that he was unable to 

form the specific intent to kill because he was a bipolar individual of limited 

cognitive skills who was drunk when the killing occurred.

Because counsel used McMaster’s statement to support a diminished 

capacity defense, he had a reasonable basis for not objecting to the 

admission of the statement. Accordingly, McMaster’s claim of ineffective 

assistance must fail. See Ousley, supra.

McMaster next argues that counsel was ineffective for failing to call 

Sylvia Ricchezza, an employee of the bar, as a witness.

“Where a[n appellant] claims that counsel was ineffective for failing to 

call a particular witness, we require proof of that witness’s availability to 

testify, as well an adequate assertion that the substance of the purported 

testimony would make a difference in the case.” Commonwealth v. Clark, 

961 A.2d 80, 90 (Pa. 2008). With respect to such claims, an appellant must 

demonstrate: 

(1) that the witness existed; (2) that the witness was available; 

(3) that counsel was informed of the existence of the witness or 

should have known of the witness’s existence; (4) that the 

witness was prepared to cooperate and would have testified on 

appellant's behalf; and (5) that the absence of the testimony 

prejudiced appellant.

Commonwealth v. Michaud, 70 A.3d 862, 868 (Pa. Super. 2013) (citation 

omitted).
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At trial, the court colloquied McMaster regarding his complaint that 

counsel failed to contact several witnesses including Ricchezza. Defense 

counsel stated:

[McMaster] also indicated that Sylvia, the barmaid, would, 

although he indicated that she would be [a] helpful witness to 

him, and I indicated to him that her statement, as I showed it to 

him, was not what he said it would be and they were attacking 

him and that he was defending himself. His indication was that 

he had some information that that was going to be different 

when she came and testified.

N.T. Trial, 9/22/04, at 101.

Although counsel believed that Ricchezza’s testimony would be 

harmful to the case, he hired an investigator to locate her. When the 

investigator was unsuccessful, counsel asked the Commonwealth to assist in 

finding her. The Commonwealth indicated that it had subpoenaed Ricchezza 

and tried to contact her, but that it was unable to do so. Id. at 101-02.

After hearing argument from counsel and the Commonwealth, the trial 

court told McMaster:

As far as the barmaid is concerned, Mr. McMaster, it’s clear to 

me that your lawyer reviewed her statement, and 

notwithstanding his professional judgment, that based on what’s 

in the statement, she would not be a helpful witness. Based on 

what you said to him, he’s doing everything possible with the 

help of the Commonwealth in locating this woman, so he’ll have 

a chance to speak with her again. It’s going to be his decision 

as a lawyer to make the determination as to whether or not she 

would be helpful or harmful to you in the end.

Id. at 102-03.
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McMaster attached to his pro se PCRA petition two affidavits from 

Ricchezza. The first stated that McMaster’s counsel never contacted her and 

that she never told counsel that she was in rehab. This affidavit was 

unsigned and undated. The second affidavit indicated that she was available 

to testify but was never notified of trial or subpoenaed. The affidavit 

provided no details as to what the substance of her testimony would have 

been.

An evidentiary hearing is properly denied on a claim that counsel was 

ineffective for calling a witness where the appellant failed to include a signed 

certification as to each intended witness, including name, address and the 

substance of the proposed testimony. Commonwealth v. Brown, 767 

A.2d 576 (Pa. Super. 2001).

McMaster failed to prove that the absence of Ricchezza’s testimony 

was prejudicial. Therefore, the court properly dismissed the unproven 

allegations of ineffectiveness. See Commonwealth v. Lawson, 762 A.2d 

753, 756-57 (Pa. Super. 2000) (counsel not ineffective for failing to present 

witness where there was no reason to believe outcome at trial would have 

been different if testimony had been heard in court). 

McMaster next argues that trial counsel was ineffective for coercing 

him into waiving his right to a jury trial. Although McMaster initially raised 

this issue in his pro se PCRA petition, it is waived because it was not raised 

in McMaster’s counseled Rule 1925(b) statement or in his pro se 

supplemental Rule 1925(b) statement. 
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Rule 1925(b)(4)(ii) provides, in relevant part, that “[t]he [s]tatement 

shall concisely identify each ruling or error that the appellant intends to 

challenge with sufficient detail to identify all pertinent issues for the judge.” 

Failure to raise an issue in a Rule 1925(b) statement will result in waiver. 

Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998). Accordingly, we 

are precluded from reviewing this issue.2

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/3/2016

____________________________________________

2 Referring to the evidentiary hearing on May 2, 2014, McMaster states, 

“Kenny Blanda did testify that . . . McMaster . . . was in fact assaulted by the 

victim and two of his friends before (McMaster) pulled [] his pocket knief 

[sic], and acted completely in self-defense.” Appellant’s Brief, at 5. He 

further states, “a witness has come forward that was present on the night of 

November 16, 2003, Mr. Kenneth Blanda, who had nothing to benefit from 

doing so, and did so of his own accord.” Id. at 12. These statements 

regarding Blanda present no issue for us to address. See Commonwealth 

v. D’Amato, 856 A.2d 806, 814 (Pa. 2004) (relief unavailable based upon 

underdeveloped claims for which insufficient arguments presented on 

appeal).