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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

v. 

MATTHEW ZIMMERMAN 

Appellee 

Appellant No. 2433 EDA 2015 

Appeal from the PCRA Order July 17, 2015 

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-1204831-2003 

CP-51-CR-1204841-2003 

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

MEMORANDUM BY LAZARUS, J.: FILED MAY 08, 2017 

Matthew Zimmerman appeals from the order, entered in the Court of 

Common Pleas of Philadelphia County, dismissing his petition filed pursuant 

to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. 

After careful review, we affirm. 

On March 19, 2007, after a nonjury trial, Zimmerman was convicted of 

two counts of first -degree murder and related crimes stemming from the 

shooting deaths of his parents in 1997. On July 10, 2007, the court 

sentenced Zimmerman to an aggregate term of life in prison. The judgment 

of sentence was affirmed by this Court on March 9, 2009, and our Supreme 

Court denied allowance of appeal on August 13, 2009. 

* Former Justice specially assigned to the Superior Court. 
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On November 1, 2010, Zimmerman, through current counsel, filed a 

timely first PCRA petition, raising multiple complaints of ineffectiveness of 

counsel. Zimmerman also filed two motions for discovery, seeking the 

"complete" autopsy report for the victims; information pertaining to two 

Commonwealth witnesses; and production of an unidentified fingerprint 

found at the crime scene. The PCRA court denied discovery and, after 

issuing a Pa.R.C.P. 907 notice of intent to dismiss and considering 

Zimmerman's response thereto, dismissed Zimmerman's petition without a 

hearing on July 17, 2015. This timely appeal follows, in which Zimmerman 

raises the following issues for our review: 

1. Whether the PCRA court erred and violated due process when 

it refused to grant discovery of Brady/Giglio[1] material and 

failed to hold an evidentiary hearing to resolve genuine issues of 

fact material to the claims of ineffective assistance of counsel for 

failure to investigate and actual, factual innocence arising from 

new reliable evidence of an alibi defense? 

2. Whether the PCRA court erred in finding that . . Zimmerman 

received effective assistance of trial counsel? 

Brief of Appellant, at 2. 

We begin by noting our scope and standard or review: 

On appeal from the denial of PCRA relief, our standard and scope 

of review is limited to determining whether the PCRA court's 

findings are supported by the record and without legal error. 

Our scope of review is limited to the findings of the PCRA court 

and the evidence of record, viewed in the light most favorable to 

1 Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 

U.S. 150 (1972). 

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the prevailing party at the PCRA court level. The PCRA court's 

credibility determinations, when supported by the record, are 

binding on this Court. However, this Court applies a de novo 

standard of review to the PCRA court's legal conclusions. 

Commonwealth v. Medina, 92 A.3d 1210, 1214-15 (Pa. Super. 2014) 

(citations and quotation marks omitted). 

We will address Zimmerman's ineffectiveness of counsel claims first. 

To obtain PCRA relief on such a claim, a petitioner must establish that his 

conviction or sentence resulted from "[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.A. § 9543(a)(2)(ii). Counsel is presumed to 

be effective; to rebut that presumption, the petitioner must demonstrate 

counsel's performance was deficient and that such deficiency prejudiced him. 

Commonwealth v. Cola vita, 993 A.2d 874, 886 (Pa. 2010); Strickland v. 

Washington, 466 U.S. 668 (1984). Prejudice requires proof that, absent 

the allegedly deficient performance, the outcome of trial would likely have 

been different. Commonwealth v. Daniels, 104 A.3d 267, 285 (Pa. 2014). 

When asserting a claim of ineffective assistance of counsel, an appellant is 

required to make the following showing: (1) the underlying claim is of 

arguable merit; (2) counsel had no reasonable strategic basis for his action 

or inaction; and, (3) but for the errors and omissions of counsel, there is a 

reasonable probability that the outcome of the proceedings would have been 

different. Commonwealth v. Kelley, 136 A.3d 1007, 1012 (Pa. Super. 

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2016). The failure to satisfy any prong of the test for ineffectiveness will 

cause the claim to fail. Id. 

Zimmerman identifies five areas in which he believes trial counsel was 

ineffective. First, we will address his assertion that counsel was ineffective 

in failing to render accurate advice regarding the advantages and 

disadvantages of waiving his right to a jury trial. Zimmerman asserts that 

trial counsel allowed him to sign a "misleading" written jury waiver form 

stating as follows: 

Do you understand that instead of a jury trial you can choose to 

be tried by a Judge sitting without a jury in which case you will 

have all the same rights you would have at a jury trial except 

that the Judge sitting alone will decide whether or not you are 

guilty? 

Brief of Appellant, at 43. Zimmerman claims, without citation to authority, 

that this portion of the standard waiver form is misleading "because a bench 

trial does not afford the same protections as a jury trial." Id. Zimmerman 

further asserts - also without support - that, had he opted for a jury trial, 

he would have been entitled to a mistrial based on prosecutorial misconduct. 

"We have repeatedly held that failure to develop an argument with citation 

to, and analysis of, relevant authority waives the issue on review." 

Commonwealth v. Plante, 914 A.2d 916, 924 (Pa. Super. 2006) (citation 

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omitted). Because Zimmerman has failed to support these bald assertions 

with citation to authority, he has waived this claim.2 

Moreover, Zimmerman was colloquied extensively by the trial court 

regarding his decision to waive a jury trial. See N.T. Trial, 3/6/07, at 5-24. 

The trial court advised Zimmerman of "[the] essential ingredients, basic to 

the concept of a jury trial[:] that the jury be chosen from members of the 

community (a jury of one's peers), that the verdict be unanimous, and that 

the accused be allowed to participate in the selection of the jury panel." 

Commonwealth v. Williams, 312 A.2d 597, 600 (Pa. 1973). Based upon 

the totality of relevant circumstances, see Commonwealth v. Mallory, 941 

A.2d 686, 698 (Pa. 2008), Zimmerman's decision to waive his right to a jury 

was knowing and intelligent. Accordingly, because the underlying claim that 

his waiver was not knowing and intelligent is without merit, counsel cannot 

be deemed ineffective. Kelley, supra. 

Next, Zimmerman claims that trial counsel was ineffective for failing to 

object to the Commonwealth's violation of the Interstate Agreement on 

2 To the extent that Zimmerman's claim is based on a belief that, because a 

trial court sitting as fact -finder is presumed to ignore prejudicial material, 

see Commonwealth v. Irwin, 639 A.2d 52, 54 (Pa. Super. 1994), he 

would not have been entitled to a mistrial had the prosecution committed 

prejudicial misconduct, his belief is misplaced. Prosecutorial misconduct 

may form the basis for a mistrial not only in jury trials, but also in bench 

trials. See Commonwealth v. Francis, 665 A.2d 821, 825 (Pa. Super. 

1995) (mistrial granted in nonjury trial where prosecution's improper 

references were prejudicial to defendant). 

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Detainers, 42 Pa.C.S.A. §§ 9101-9108 ("IAD"). Pursuant to the IAD, a State 

that obtains a prisoner for purposes of trial must try him within 120 days of 

his arrival and, if it returns him to his original place of imprisonment prior to 

that trial, charges shall be dismissed with prejudice. Alabama v. 

Bozeman, 533 U.S. 146, 146 (2001). Zimmerman claims that the 

Commonwealth returned him to federal custody without holding a trial and, 

thus, he was entitled to a dismissal of charges. This claim is patently 

meritless. 

On September 2, 2005, through counsel, Zimmerman filed a "Motion 

to Dismiss Pursuant to the Interstate Agreement on Detainers" in which he 

raised the claim now presented on appeal. On March 7, 2007, the motion 

was denied by the trial court, which concluded that Zimmerman's transfer 

did not occur pursuant to the IAD, but rather via a writ of habeas corpus ad 

prosequendum.3 Because Zimmerman's counsel did raise this issue prior to 

trial, his ineffectiveness claim must fail. 

Zimmerman next alleges that trial counsel was ineffective for failing to 

move to dismiss the charges based on the allegedly unreasonable delay that 

3 The IAD "does not apply when custody [is] obtained by means of writ of 

habeas corpus ad prosequendum." Commonwealth v. Diggs, 416 A.2d 

1119, 1120 (Pa. Super. 1979), citing United States v. Mauro, 436 U.S. 

340 (1978). 

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occurred between the time the murders were committed in 1997 and the 

date he was arrested in 2003. This claim is meritless. 

"To prevail on a claim of deprivation of due process based on pre - 

indictment delay, a defendant must establish: (1) that the delay caused him 

or her actual prejudice, and (2) that the Commonwealth's reasons for the 

delay were improper." Commonwealth v. Louden, 803 A.2d 1181, 1184 

(Pa. 2002). 

In order for a defendant to show actual prejudice, he or she 

must show that he or she was meaningfully impaired in his or 

her ability to defend against the state's charges to such an 

extent that the disposition of the criminal proceedings was likely 

affected. This kind of prejudice is commonly demonstrated by 

the loss of documentary evidence or the unavailability of a key 

witness. It is not sufficient for a defendant to make speculative 

or conclusory claims of possible prejudice as a result of the 

passage of time. When a defendant claims prejudice through 

the absence of witnesses, he or she must show in what specific 

manner missing witnesses would have aided the defense. 

Furthermore, it is the defendant's burden to show that the lost 

testimony or information is not available through other means. 

Id. (internal citations omitted). 

Here, Zimmerman asserts that, had the Commonwealth been more 

diligent in its prosecution, he could have "gathered the alibi witnesses, 

obtained the complete autopsy report and retained an expert witness to 

establish the time of death with greater precision." Brief of Appellant, at 53. 

However, Zimmerman fails to demonstrate how the delay in prosecution 

actually prejudiced him. Indeed, this claim is belied by the affidavits of 

alleged alibi witnesses Zimmerman attached to his opposition to the 

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Commonwealth's motion to dismiss his PCRA petition, which were obtained 

in 2011 - twelve years after the murders occurred and four years after his 

trial occurred. Moreover, Zimmerman provides absolutely no foundation for 

his assertion that he was not given the complete autopsy report of the 

victims at the time of his trial. Rather, he inexplicably asserts that because 

the Commonwealth has not denied the existence of a more complete report, 

it must exist. In fact, the Commonwealth states in its brief that Zimmerman 

"was provided with the one and only report." Brief of Appellee, at 15. 

Because Zimmerman has failed to demonstrate that he was prejudiced by 

the delay in his prosecution, Louden, supra, he is entitled to no relief.4 

Finally, Zimmerman claims that trial counsel was ineffective because 

he "made no effort to fix the time of death[,] which was essential to 

establish the alibi defense," Brief of Appellant, at 41, and failed to engage 

an expert witness to "confirm that the time of death was between 5 a.m. 

Sunday and 5 p.m. Sunday, in which case Zimmerman would have had an 

alibi out of the mouths of the prosecution's own witnesses." Id. at 55. 

4 Zimmerman has also failed to demonstrate that the Commonwealth's 

reasons for the delay were improper. Zimmerman baldly asserts that "[t]he 

Commonwealth had no more evidence against Zimmerman in 2003 than it 

had on February 4, 1997 when it discovered the bodies[.]" Brief of 

Appellant, at 53. The record belies this statement. In 2003, a fellow inmate 

named Carl Cobbs came forward with information that he had overheard 

Zimmerman admit to murdering his parents for money. Cobbs subsequently 

testified at Zimmerman's trial. Moreover, Zimmerman does not explain 

what possible "tactical advantage" the Commonwealth gained by allegedly 

intentionally delaying his prosecution. 

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To prevail on a claim for ineffective assistance of counsel for failure to 

call an expert witness, a petitioner 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['] 

existence; (4) that the witness[ was] available and 

prepared to cooperate and would have testified on 

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

testimony prejudiced the Appellant. 

Commonwealth v. Lawson, [] 762 A.2d 753, 756 (Pa. Super. 

2000) citing Commonwealth v. Pursell, [] 724 A.2d 293 ([Pa.] 

1999). Our Supreme Court has also made clear that: "[w]hen a 

defendant claims that some sort of expert testimony should have 

been introduced at trial, the defendant must articulate what 

evidence was available and identify the witness who was willing 

to offer such evidence." Commonwealth v. Williams, [] 640 

A.2d 1251, 1265 ([Pa.] 1994) citing Commonwealth v. 

Holloway, [] 572 A.2d 687 ([Pa.] 1990). This is consistent with 

our Supreme Court's previous mandate that to justify an 

evidentiary hearing with respect to assertions of ineffectiveness 

of trial counsel, it is required that an offer of proof be made that 

alleges sufficient facts upon which a reviewing court can 

conclude that trial counsel may have been ineffective. 

Commonwealth v. Durst, [] 559 A.2d 504, 505 ([Pa.] 1989). 

Claims of ineffectiveness of trial counsel cannot be considered in 

a vacuum. Id. 

Commonwealth v. Lowery, 784 A.2d 795, 800-01 (Pa. Super. 2001), 

quoting Commonwealth v. Steward, 775 A.2d 819, 831-32 (Pa. Super. 

2001). 

Here, Zimmerman identifies a potential expert witness, whom he 

"believes . . . will testify that the time of death was sometime [on] Sunday, 

February 2, 1997, between 5 a.m. and 5 p.m." Memorandum of Law 

Supporting PCRA Petition, 11/1/10, "Request for an Evidentiary Hearing" 

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(emphasis added). However, Zimmerman neither presents an affidavit from 

this expert confirming his willingness to testify to those facts, nor does he 

aver that the expert was available and would have testified at trial. As such, 

he has failed to demonstrate that trial counsel was ineffective for failing to 

call an expert witness. Lowery, supra. Accordingly, his claim lacks merit. 

Finally, Zimmerman claims that the PCRA court erred in refusing to 

grant discovery and declining to hold an evidentiary hearing on the claims 

raised in his PCRA petition. These claims are meritless. 

Zimmerman asserts that the PCRA court erred by not granting him 

discovery of the "complete" autopsy report, as well as information regarding 

any agreements the Commonwealth reached with two trial witnesses. 

Zimmerman also requested the "rap sheets" of those witnesses. 

Pennsylvania Rule of Criminal Procedure 902 provides that "[e]xcept 

[in certain death penalty cases], no discovery shall be permitted at any 

stage of [PCRA] proceedings, except upon leave of court after a showing of 

exceptional circumstances." Pa.R.Crim.P. 902(E)(1). Neither the PCRA nor 

the Pennsylvania Rules of Criminal Procedure define the term "exceptional 

circumstances." Commonwealth v. Watley, 153 A.3d 1034, 1048 (Pa. 

Super. 2016), citing Commonwealth v. Frey, 41 A.3d 605, 611 (Pa. Super. 

2012). This Court, however, has held that "the trial court, in its discretion" 

determines whether a case is exceptional and warrants discovery. Id. 

Thus, we will not disturb a PCRA court's determination regarding the 

existence of exceptional circumstances unless the court abused its 

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discretion. Id. An abuse of discretion may not be found merely because an 

appellate court might have reached a different conclusion, but requires a 

result of manifest unreasonableness, or partiality, prejudice, bias or ill -will, 

or such lack of support as to be clearly erroneous. Commonwealth v. 

Kneller, 999 A.2d 608, 614 (Pa. Super. 2010) (citation omitted). 

Here, the PCRA court explained its decision not to grant discovery as 

follows: 

[W]e reviewed each and every request made by [Zimmerman] in 

each of his discovery requests and found that no exceptional 

circumstances existed for any of those requests. To the 

contrary[,] each request was in the nature of a "fishing 

expedition" hoping to discover some exculpatory evidence. 

Accordingly, this [c]ourt properly followed Rule 902 and denied 

the discovery requests. 

PCRA Court Opinion, 4/20/16, at 12. 

We can discern no abuse of discretion on the part of the PCRA court. 

Zimmerman's requests were grounded in mere speculation that the evidence 

he sought may exist. He failed to proffer anything, such as affidavits from 

the two Commonwealth witnesses, tending to prove that his hunches have 

any basis in fact. As such, the PCRA court was within its discretion to 

conclude that Zimmerman's discovery requests were nothing more than 

fishing expeditions that did not constitute "exceptional circumstances" as 

required under Rule 902. 

Zimmerman's claim that he was entitled to an evidentiary hearing is 

equally unavailing. Zimmerman asserts that such a hearing was necessary 

to "resolve matters of credibility" regarding the alibi witnesses who "were 

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ready, willing and able to give [Zimmerman] an alibi Saturday night." Brief 

of Appellant, at 14. We disagree. 

Pennsylvania Rule of Criminal Procedure 907 provides that the PCRA 

court has the 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 

purpose would be served by any further proceedings[.]" Pa.R.Crim.P. 

907(1). "[T]o 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. Hanible, 30 A.3d 426, 452-53 (Pa. 2011), quoting 

Commonwealth v. D'Amato, 856 A.2d 806,820 (Pa. 2004). 

Here, Zimmerman has failed to satisfy this burden. Zimmerman 

provided affidavits from four purported alibi witnesses. See Opposition to 

Commonwealth's Motion to Dismiss PCRA, 10/5/11, at Exhibits AA -DD. The 

first witness, Richard Antipuna, stated, in relevant part, that he saw 

Zimmerman at a party on the night of Saturday, February 1, 1997. Given 

that Zimmerman believes the murders occurred between 5 a.m. and 5 p.m. 

on Sunday, Antipuna's testimony would be irrelevant. Second, Mark 

Hoffman stated that he saw Zimmerman at a friend's house between 3 p.m. 

and 6 p.m. on the Sunday of the murders. Even if the murders occurred 

during the timeframe Zimmerman postulates, Hoffman only provides an alibi 

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for two out of twelve relevant hours. The final two witnesses, Dawn Kile and 

James Holton, claim also to have seen Zimmerman at the party on Saturday 

evening. Again, however, given Zimmerman's theory of the case, these 

statements fail to supply Zimmerman with an alibi for the relevant time 

period. 

Because none of the proffered statements actually provide 

Zimmerman with an alibi, the PCRA court properly concluded that he failed 

to raise a genuine issue concerning a material fact that warrants an 

evidentiary hearing. 

Order affirmed. 

Judgment Entered. 

J seph D. Seletyn, 

Prothonotary 

Date: 5/8/2017 

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