J-S25011-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CARL LEONARD VARNER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 872 MDA 2019

Appeal from the PCRA Order Entered April 25, 2019

In the Court of Common Pleas of Franklin County Criminal Division at 

No(s): CP-28-CR-0002100-2012

BEFORE: LAZARUS, J., DUBOW, J., and KING, J.

MEMORANDUM BY LAZARUS, J.: FILED JULY 06, 2020

Carl Leonard Varner appeals pro se from the trial court’s order 

dismissing his amended petition, after hearings, filed pursuant to the Post 

Conviction Relief Act (PCRA). See 42 Pa.C.S. §§ 9541-9546. After careful 

review, we affirm.

Following a jury trial, in December of 2014, Varner was convicted of 

first-degree murder1 and twenty five associated charges.

2 The charges 

stemmed from an incident that occurred on October 22, 2012, when Varner 

and a co-defendant, Jason Shauf, both brandishing firearms, forced their way 

into a Chambersburg residence occupied by six men. The assailants separated 

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1 18 Pa.C.S. § 2502(a).

2 The other offenses included robbery, burglary, conspiracy, kidnapping to 

facilitate a felony, kidnapping to commit burglary, and unlawful restraint 

(serious bodily injury).
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the victims into different bedrooms in the home and robbed each of them. 

Shauf fired a shotgun into the ceiling of one of the rooms. Shauf saw Varner,

wielding a firearm, go upstairs with two of the residents. Shauf then heard 

two gunshots fired from upstairs, and subsequently saw Varner run down the 

stairs. A fatal shot was fired into the neck of one victim using a .22 caliber 

revolver. During their investigation, police found a .22 caliber revolver 

wrapped in a bandana and a .410 shotgun in Varner’s basement. At trial, 

Shauf and several individuals identified Varner as the man who shot the 

victim. 

On January 7, 2015, Varner was sentenced to life imprisonment without 

the possibility of parole, as well as a consecutive term of 44-88 years in prison. 

Our Court affirmed his judgment of sentence on April 26, 2016. See 

Commonwealth v. Varner, 208 MDA 2015 (Pa. Super. filed April 26, 2016)

(unpublished memorandum). Subsequently, Varner moved to dismiss courtappointed counsel. After conducting a hearing, the trial court granted the 

motion and dismissed counsel. On April 25, 2017, Varner filed a pro se PCRA 

petition. The court appointed PCRA counsel for Varner; however, on July 10, 

2017, Varner filed a pro se amended PCRA petition. On July 24, 2017 and 

September 18, 2017, Varner filed motions for extension of time to file a 

supplemental PCRA petition, both of which the court granted.3 The court held 

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3 On December 29, 2017, Varner filed a notice of intent not to file a 

supplemental PCRA petition and requested that the court incorporate his pro 

se amended petition filed on July 10, 2017. 
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hearings on the petition on April 2, 2018 and July 19, 2018. On April 25, 

2019, the trial court denied Varner’s pro se amended petition. 

Varner filed a timely notice of appeal on May 17, 2019. On June 7, 

2019, Varner filed a motion for extension of time to file his Pa.R.A.P. 1925(b) 

concise statement of errors complained of on appeal (Statement), which the 

court granted, giving Varner until July 5, 2019 to file his Statement. On June 

28, 2019, counsel filed a motion to withdraw; subsequently, Varner filed a 

motion to dismiss counsel and proceed pro se. Following a Grazier4 hearing, 

which included a full colloquy regarding Varner’s right to counsel, the court 

permitted Varner to proceed without counsel after concluding that he had 

made a knowing, intelligent and voluntary decision to proceed pro se in his 

collateral appeal. Varner filed a Rule 1925(b) Statement on July 5, 2019, and 

an amended pro se Statement on September 9, 2019, by leave of court.

On appeal, Varner presents the following issues for our consideration:

(1) Whether [the] PCRA court has abused its discretion in 

determining that trial counsel was not ineffective for their 

failure to timely challenge misrepresentations within the 

affidavit of probable cause, where [a] co-defendant has 

recanted [a] prejudicial testimonial statement?

(2) Whether [the] PCRA court abused its discretion where the 

court determined trial counsel was not ineffective for their 

failure to procure Jose Espinosa at trial, when Espinosa 

could impeach the credibility of the Commonwealth[’]s

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4 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) (when defendant 

seeks waiver of right to counsel at post-conviction and appellate stages, trial 

court must conduct on-the-record determination that waiver is knowing, 

intelligent, and voluntary).
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eyewitnesses, and could testify as to the lighting conditions 

and layout of the home?

(3) Whether [the] PCRA court abused its discretion where the 

court determined that trial counsel was not ineffective for 

their failure to pursue witness identification testimony from 

the crime scene which is material to appellant’s innocence, 

and where the court ignored the fact that the prosecution 

withheld such vital information in violation of Brady v. 

Maryland, 373 U.S. 83 [] (1963)?

(4) Whether [the] PCRA court erred in its determination that 

trial counsel was not ineffective for failing to object to the 

prosecution[’]s willful [] and bad[]faith introduction of 

suppressed identification testimony of Jose Herrera?

(5) Whether [the] PCRA court erred where it determined that 

trial counsel w[ere] not ineffective for their failure to object 

to the prosecution[’]s use of false timeline identification 

testimony, as well as where the court did not address the 

prosecution[’]s use of known false testimony?

(6) Whether [the] PCRA court abused its discretion in 

determining that trial counsel is not ineffective for their 

failure to timely file and serve a notice of alibi defense, and 

furthermore for their failure to seek an alibi instruction.

(7) Whether the PCRA court erred, where the court determined 

that counsel was not ineffective for their failure to object to 

the introduction of [Varner’s] prior bad acts, crimes, and 

mental health, as[] well [] as where the court did not 

address the prosecutors’ bad[]faith introduction of such 

evidence.

(8) Whether [the] PCRA court erred, where the court ruled that 

counsel was not ineffective for failing to object to the seating 

of Juror No. 2? 

(9) Whether the PCRA court abused its discretion where the 

court determined that counsel was not ineffective for failure 

to object to the prosecution[’]s use of inflammatory tactics 

and commentary during closing arguments, as well as where 

the court failed to address the prosecution[’]s bad faith use 

of epithets which inflamed the passions and prejudices of 

the jury?
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(10) Whether [the] PCRA court abused its discretion where it 

determined that [Varner] failed to raise prosecutorial 

misconduct issues and that those issues are now waived, 

when the court assured [Varner] and PCRA counsel that the

prosecutorial misconduct issues raised by [Varner] would be 

reviewed and considered within the PCRA court’s opinion, 

and the PCRA court ultimately failed to issue any robust 

determination which would enable effective appellate 

review.

Appellant’s Brief, at 5-9 (unnecessary capitalization omitted).

“The standard of review of an order denying a PCRA petition is whether 

that determination is supported by the evidence of record and is free of legal 

error.” Commonwealth v. Johnston, 42 A.3d 1120, 1126 (Pa. Super. 

2012). The PCRA court’s findings will not be disturbed unless there is no 

support for the findings in the certified record. Id.

Nine of Varner’s ten PCRA claims allege counsel5 were ineffective in 

representing him at trial. With respect to claims of ineffective assistance of 

counsel, we begin with the presumption that counsel is effective. 

Commonwealth v. Spotz, 47 A.3d 63, 76 (Pa. 2012). To prevail on an 

ineffectiveness claim, a petitioner must plead and prove, by a preponderance 

of the evidence, three elements: (1) the underlying legal claim has arguable 

merit; (2) counsel had no reasonable basis for his or her action or inaction; 

and (3) the petitioner suffered prejudice because of counsel’s action or 

inaction. Id. (citation omitted).

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5 Varner was represented by two attorneys at trial, Michael Palermo, Esquire, 

and Eric Weisbrod, Esquire.
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Varner first contends that trial counsel were ineffective for failing to 

challenge misrepresentations in the affidavit of probable cause supporting the 

warrant to search his residence. Specifically, Varner asserts that a detective 

in the Chambersburg Police Department intentionally misrepresented his codefendant’s statement that Varner “shot [t]he [m]an in the upstairs of the

residence,” when Shauf never said this in his videotaped interview with

investigating officers. Appellant’s Brief, at 16 (citation omitted).

At the PCRA hearing, Varner’s trial attorneys testified that they believed 

a motion to challenge the affidavit of probable cause would have been 

unsuccessful based on the fact that a full preliminary hearing had been held 

in the case, after which all charges were bound over for trial. N.T. PCRA 

Hearing, 4/2/18, at 191-92. Under the circumstances, we agree that any such 

motion would have been frivolous. See Commonwealth v. Chamberlain, 

30 A.3d 381, 423 (Pa. 2011) (any issue concerning defect in affidavit of 

probable cause becomes moot upon district justice’s finding at preliminary 

hearing that prima facie case has been established). Thus, this claim is 

meritless.

Varner next claims that counsel were ineffective for failing to call Jose 

Espinosa as a defense witness at trial. 

When raising a failure to call a potential witness claim, a PCRA petitioner 

must establish that:

(1) the witness existed; (2) the witness 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 
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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.

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

Attorney Weisbrod testified at the PCRA hearing that his office had 

prepared a trial subpoena for Espinosa; however, counsel could not recall why 

Espinosa did not testify. Although Espinosa existed, was available to testify, 

and counsel was aware of him, Washington, supra, the PCRA court 

determined that the absence of Espinosa’s testimony was not so prejudicial so 

as to deny Varner a fair trial. Specifically, the court found that the Espinosa’s 

testimony would have been cumulative of other individuals’ testimony that the 

occupants of the Chambersburg residence were drinking heavily and using 

illegal drugs on the night of the incident. Because the jury heard evidence of 

the drug and alcohol use from other witnesses and any other information 

Varner claims Espinosa would have offered would have been inadmissible 

hearsay, Varner was not prejudiced by the absence of Espinosa’s testimony. 

Thus, there is no merit to this claim.

Varner next asserts that trial counsel were ineffective for failing to 

pursue witness identification testimony from the crime scene; —specifically a 

reference in a police report indicating that two black men were seen in the 

vicinity of the crime scene on the night in question. He claims such testimony 

was material to his innocence, and that the prosecution withheld this vital 

information in violation of Brady, supra.
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Chambersburg Police Officer Victor Dimoff allegedly prepared a police 

report referencing two black men being seen in the vicinity of the crime scene 

on the night of the incident. At the PCRA hearing, Attorney Palermo testified 

that he believed the officer’s notes had been requested, but they did not exist. 

Varner, himself, indicated that the defense had, in fact, filed a motion to 

compel the officer’s notes, which was granted. N.T. PCRA Hearing, 4/2/18, at 

50. However, Attorney Palermo testified that Attorney Weisbrod told him that 

the notes did not exist and, therefore, could not be provided by the 

Commonwealth. Id. at 159-60, 194. Attorney Weisbrod also testified that 

the defense subpoenaed Officer Dimoff and called him as a witness at trial. 

Id. Because counsel filed a motion to compel and subpoenaed Officer Dimoff 

to be a witness at Varner’s trial, the underlying ineffectiveness claim has no 

merit. Spotz, supra. Moreover, because counsel testified that the notes did 

not exist, Varner’s Brady claim is moot.

Varner next contends that counsel was ineffective for failing to object to 

the identification testimony of Jose Herrera, which he claims had been 

suppressed prior to trial.

At the PCRA hearing, counsel acknowledged that Herrera identified 

Varner in-court as the individual who shot and killed the victim. However, 

counsel understood the court’s suppression order to only apply to Herrera’s 

photo line-up identification of Varner, and not his in-court identification. 

Counsel is in fact correct; a plain reading of the trial court’s ruling and order 

indicates that it only suppressed Herrera’s out-of-court, photo array 
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identification. See Trial Court Opinion, 9/4/14, at 24; see also Trial Court 

Order, 9/4/14, at ¶ 3; N.T. PCRA Hearing, 4/2/18, at 213. Thus, there is no 

merit to this claim. 

In his next issue, Varner claims that counsel were ineffective for their 

failure to object to the prosecution’s use of false timeline identification 

testimony. Specifically, Varner contends that he was only identified by a photo 

line-up that occurred four days after he was charged and not on the same 

evening of the crimes as “asserted by the prosecution through witness[es] 

Augustine Marquez and Arturo Perez.” Appellant’s Brief, at 58.

Varner fails to explain how the fact that witnesses identified him days 

after the shooting, as opposed to on the day of the crime, “resulted in 

prejudice.” Appellant’s Brief, at 65. In fact, multiple witnesses, in addition to 

Marquez and Perez, positively identified Varner as the victim’s assailant. 

Because Varner cannot prove that he suffered prejudice as a result of counsel’s 

alleged action or inaction, Spotz, supra, Varner is not entitled to relief on this

claim. 

Next, Varner contends that counsel was ineffective for failing to timely 

file and serve a notice of alibi defense and seek an alibi instruction. 

An alibi is “a defense that places the defendant at the relevant time in 

a different place than the scene involved and so removed therefrom as to 

render it impossible for him to be the guilty party.” Commonwealth v. 

Roxberry, 602 A.2d 826, 827 (Pa. 1992) (citations omitted). When a 

defendant intends to offer an alibi defense at trial, Pa.R.Crim.P. 567 requires 
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the defendant file a notice6 of the alibi with the clerk of courts, and serve a 

copy of the notice and a certificate of service on the attorney for the

Commonwealth. See Pa.R.Crim.P. 567(A). 

Here, Varner’s counsel testified that they employed more of a 

“backdoor” or “quasi”-alibi defense at trial, using Varner’s testimony as well 

as a witness’s testimony to place Varner at Shauf’s residence on the night of 

the crime around 9:30-9:45 PM. While counsel never filed a formal notice of 

alibi defense or requested an alibi instruction, the jury had the opportunity to 

consider the evidence to determine whether Varner was present at the crime 

scene during the relevant time period. However, even though witness 

Eichelberger testified that Varner was sleeping on Shauf’s couch just prior to 

the time the crimes were committed, his testimony did not completely 

eliminate the possibility that Varner could have committed the offenses. 

Under such circumstances, we do not find counsels’ failure to serve a notice 

of alibi or seek an alibi instruction unreasonable, especially where there was 

overwhelming evidence, including eyewitness testimony, placing Varner at the 

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6 Rule 567 mandates, “[t]he notice shall contain specific information as to the 

place or places where the defendant claims to have been at the time of the 

alleged offense and the names and addresses of the witnesses whom the 

defendant intends to call in support of the claim.” Pa.R.Crim.P. 567(A)(2). 

Furthermore, if a defendant fails to file and serve the requisite notice of alibi, 

subsection (B)(1) of Rule 567 provides that “the court may exclude entirely 

any evidence offered by the defendant for the purpose of proving the defense, 

except testimony by the defendant, may grant a continuance to enable the 

Commonwealth to investigate such evidence, or may make such other order 

as the interests of justice require.” Pa.R.Crim.P. 567(B)(1).
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scene of the crime. See Commonwealth v. Hawkins, 894 A.2d 716, 730 

(Pa. 2006) (court found reasonable basis for failure to seek alibi instruction 

where counsel explained that “in his twenty years of experience he had come 

to the conclusion that where alibi testimony is weak, or is predicated on the 

defendant’s testimony alone, calling attention to that testimony explicitly as 

alibi evidence disserves the defendant’s interests”). Id. at 730. This claim of 

ineffectiveness, therefore, is meritless.

In his next issue, Varner asserts that counsel were ineffective for failing 

to object to the improper admission of his prior bad acts, crimes, and mental 

health issues, all of which were part of Shauf’s un-redacted video 

interrogation. At the PCRA hearing, Varner testified that he did not ask 

counsel to object to the use of Shauf’s unredacted video and, in fact, at trial, 

did not want counsel to object to its use because he did not want to have a 

mistrial declared. N.T. PCRA Hearing, 4/3/18, at 80-81. Varner cannot now

claim counsel was ineffective when he specifically told counsel not to object 

to the admission of such evidence. 

With regard to his eighth issue on appeal, Varner contends that counsel 

was ineffective for failing to object to the seating of Juror #2. At the PCRA 

hearing, counsel testified that Juror #2 had a prior relationship with Shauf 

“because of a poor business dealing.” N.T. PCRA Hearing, 4/2/18, at 211. In 

determining not to object to the juror being empaneled, counsel explained 

that he had a full conversation with Varner that it was in Varner’s best interest 

to keep her on the jury so the defense could convince “the jury to believe that 
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Mr. Shauf was a liar.” Id. at 212. Because the strategy pursued by counsel

was reasonable, Varner’s ineffectiveness claim fails. Spotz, supra; 

Commonwealth v. Koehler, 36 A.3d 121 (Pa. 2012) (generally, where 

matters of strategy and tactics are concerned, counsel’s assistance is deemed 

constitutionally effective if he chose particular course that had some 

reasonable basis designed to effectuate client’s interests).

In his next issue, Varner asserts that counsel was ineffective for failing 

to object to the prosecution’s use of inflammatory tactics and commentary 

during closing arguments which, he claims, inflamed the passions and 

prejudices of the jury. Specifically, Varner objects to the use of photographs 

of the victim, while he was alive, during witness testimony and the 

Commonwealth’s closing argument. Varner contends that the photos

“remained on display in the presence of the jury . . . . [t]hroughout the 

majority of the prosecution’s misconduct.” Appellant’s Brief, at 102. 

Our standard of review is well-settled. “Decisions regarding the 

admissibility of photographs are committed to the sound discretion of the trial 

judge and will not be reversed absent a showing that the trial court abused its 

discretion.” Commonwealth v. Hernandez, 590 A.2d 325, 329 (Pa. Super. 

1991). In Commonwealth v. Robinson, 864 A.2d 460 (Pa. 2004), our 

Supreme Court stated:

In relation to admissibility of victim photographs, the Supreme 

Court of Pennsylvania has promulgated the following test. A court 

must determine whether the photograph is inflammatory. If not, 

it may be admitted if it has relevance and can assist the jury’s 

understanding of the facts. If the photograph is inflammatory, 
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the trial court must decide whether or not the photographs are of 

such essential evidentiary value that their need clearly outweighs 

the likelihood of inflaming the minds and passions of the jurors.

If an inflammatory photograph is merely cumulative of other 

evidence, it will not be deemed admissible.

Id. at 501 (citations omitted).

Varner testified at the PCRA hearing that he did not know the 

significance of displaying the victim’s photograph during trial. N.T. PCRA 

Hearing, 4/2/18, at 85-87. In fact, Varner was not aware of a potential 

prosecutorial misconduct claim based on the photos until he “read some of the 

things [in several cases]” during a paralegal course he took in prison. Id. at 

87. Attorney Weisbrod testified at the PCRA hearing that he “couldn’t 

formulate any prejudice which would be the basis [to object to the display of

the pictures].” Id. at 203-04. In addition, Attorney Palermo testified that 

unless they are of a graphic nature, he would not normally object to pictures

of a victim being shown during trial because such an objection is normally 

overruled. Id. at 173. 

Here, counsel acknowledged that the pictures were not graphic, they 

were pictures of the victim while he was alive. Thus, they were not 

inflammatory. Since the photographs were not inflammatory, they are

admissible if relevant and if they assisted the jury in understanding the facts 

of the case. Robinson, supra. Instantly, the photographs were shown 

during the district attorney’s direct examination of Augustin Marquez. 

Specifically, the D.A. showed Marquez a photograph of the victim while alive 

and asked him: (1) Did the victim have family that lived in the United States; 
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and (2) Do you miss him? N.T. PCRA Hearing, 12/8/14, at 156. The other 

time the photographs were displayed was during the Commonwealth’s closing 

argument. See id., 12/17/14, at 96-98. The D.A. talked about how the 

victim’s family had not spent the holidays with him since 2012 and how “[the 

victim] won’t have another one, never open another gift . . . [n]ever give 

another gift because of [Varner and Shauf], dumb and dumber.” Id. at 97.

While the attorneys referenced the fact that the victim’s family had to 

spend the past two holidays without him, the statement was not so highly 

emotional that it prejudiced Varner. Cf. Commonwealth v. Story, 383 A.3d 

155 (Pa. 1978) (where victim’s wife described photographs of her husband 

with their child, defendant was prejudiced as prosecutor created sympathy for 

victim and his family; prosecutor stated victim was married man, father, and 

used term “family man,” told jury victim “is more than a body” and wanted 

jury “to get some feel for this activity of his life.”). Critically, here the 

photographs of the victim were not sent out with the jury for deliberations and 

the jury was also instructed that they “should keep deliberations free of 

prejudice or bias.” N.T. 12/17/14, at 162; Hernandez, supra. Moreover, 

the witness was not questioned extensively about the victim’s life. Balancing 

the probativeness of the evidence against its prejudicial impact, we cannot 

find that the limited viewing of the non-inflammatory pictures of the living 

victim was erroneous. Commonwealth v. Mehmeti, 462 A.2d 657 (Pa. 
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1983).7 Counsel, therefore, were not ineffective for failing to object to the 

prosecution’s use of the photographs.

Finally, Varner contends that the PCRA court abused its discretion when 

it determined that Varner failed to raise prosecutorial misconduct issues and 

that those issues are now waived, especially “when the court assured Varner 

and PCRA counsel that the prosecutorial misconduct issues raised by [Varner] 

would be reviewed and considered within the PCRA court’s opinion, and the 

PCRA court ultimately failed to issue any robust determination which would 

enable effective appellate review.” Appellant’s Brief, at 9.

Having independently reviewed the record, including the notes of 

testimony from the PCRA hearings, we conclude that there is no merit to 

Varner’s prosecutorial misconduct issues. See Commonwealth v. Tedford, 

960 A.2d 1, 29 (Pa. 2008) (“In order to obtain relief for alleged prosecutorial 

‘misconduct,’ a petitioner must first demonstrate that the prosecutor’s action 

violated some statutorily or constitutionally protected right.”) (citation 

omitted). Therefore, the court did not abuse its discretion in finding those 

meritless issues waived.

Order affirmed.

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7 Moreover, after reading the entirety of the Commonwealth’s closing 

argument, we conclude that the prosecutor’s comments were not so highly 

prejudicial as to prevent the jury from rendering a true verdict. See 

Commonwealth v. Clancy, 192 A.3d44 (Pa. 2018) (prosecutor’s “language 

must be such that its unavoidable effect would be to prejudice the jury, 

forming in their minds fixed bias and hostility toward the defendant, so that 

they could not weigh the evidence and render a true verdict”).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 07/06/2020