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NON-PRECEDENTIALDECISION - SEE 

### SUPERIORCOURT

### I.O.P. 

### 65.37 COMMONWEALTH OF PENNSYLVANIA

1 IN THE SUPERIORCOURT OF PENNSYLVANIA

v. MATTHEWZIMMERMANAppellee



### Appellant No. 2433 EDA 2015 Appeal 

### fromthe PCRAOrderJuly 17, 2015 In the CourtofCommon 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. Aftercareful review, we 

### affirm. On March 19, 2007, 

### after a 

### nonjurytrial, Zimmermanwas 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 ofsentence was 

### affirmed by 

### this Court on March 9, 2009, and our Supreme Courtdenied allowanceofappeal on 

### August 13, 2009.

* FormerJusticespecially assigned to

### the SuperiorCourt.J

### -S13020-17

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 raisesthefollowing issues

### forour review: 1. 

### Whetherthe PCRA

### court erred and 

### violated due processwhen 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 

### ofcounsel

### for failure to 

### investigate and actual, factual innocence arising 

### from new reliable evidenceof an alibi defense? 2. 

### Whetherthe PCRA

### courterred in

### finding

### that

. . 

### Zimmerman received 

### effective assistanceof

### trial counsel? BriefofAppellant, at 2. We begin by noting ourscope and standard or review: On appeal 

### fromthe denial 

### of PCRA 

### relief, ourstandard 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 inthe 

### light most favorable to

1 

### Bradyv.

### Maryland, 373 U.S. 83 

### (1963); 

### Giglio v. 

### UnitedStates,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 reviewtothe 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 ofthe 

### 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 

### performancewas 

### deficientand 

### thatsuch 

### deficiency prejudiced him. 

### Commonwealthv. 

### Cola

### vita, 993 A.2d 874, 886 (Pa. 

### 2010); 

### Stricklandv. 

### 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, 104A.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

### thatthe outcome ofthe proceedingswould 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
causethe claimtofail. 

### Id. Zimmerman identifiesfive 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

### jurytrial. 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

### jurytrial you can choose to be 

### tried by a Judge 

### sitting 

### without a

### jury in which caseyou 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, thatthis portion ofthe standard 

### waiverform is misleading "because a bench 

### trial does not afford the same 

### protections as a

### jurytrial." 

### Id. Zimmerman 

### further asserts

## - also 

### without support 

## - that, had he opted 

### for a

### jurytrial, 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, 914A.2d 916, 924 (Pa. Super. 

### 2006) 

### (citation



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omitted). Because 

### Zimmerman has failed to 

### support these bald assertions 

### with citationto 

### authority, he haswaived

### 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[:] thatthe

### jury be chosen 

### from members of the 

### community (a

### jury of one's peers), 

### thatthe 

### 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 ofrelevant circumstances,

### see

### Commonwealthv. 

### Mallory, 941 A.2d 686, 698 (Pa. 

### 2008), Zimmerman's decision to waive his 

### rightto a

### jury
was knowing and 

### intelligent. Accordingly, because the underlying claim

### that his 

### waiver was not knowing and 

### intelligent is 

### without merit, counsel 

### cannot bedeemed 

### ineffective. 

### Kelley,supra. Next, 

### Zimmerman claims

### thattrial counselwas 

### ineffective

### for failing to 

### object to the Commonwealth's 

### violation of the 

### Interstate Agreement on

2To the 

### extent

### thatZimmerman'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 referenceswere 

### prejudicial to

### defendant). 

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Detainers, 42 Pa.C.S.A. §§ 

### 9101-9108 ("IAD"). Pursuantto 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 priorto 

### 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 

### pursuantto 

### the IAD, but 

### rathervia a 

### writ of habeas corpus

### ad prosequendum.3 Because 

### Zimmerman's counsel 

### did raise

### this issue 

### priorto 

### trial, his 

### ineffectiveness claim 

### mustfail. Zimmerman next alleges

### thattrial counsel was 

### ineffectiveforfailing 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 

### UnitedStates v. 

### Mauro, 436 U.S. 340 

### (1978).


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occurred between the 

### time the murders were 

### committed in 1997 and the date hewas arrested in 2003. Thisclaim is 

### meritless. "To prevail on a claim of 

### deprivation of due process based on pre- 

### indictment delay, a 

### defendant must establish: (1)

### thatthedelaycaused him
or her actual 

### prejudice, and (2) 

### that the Commonwealth's reasons 

### for the delaywere 

### 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

### thatthe disposition ofthe 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 

### defendantto make 

### speculative or 

### conclusory claims 

### of possible 

### prejudice as a 

### result of the passage of 

### time. When a 

### defendant claims 

### prejudice 

### through the absence ofwitnesses, 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 notavailable 

### throughother 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

### timeofdeath 

### with greater precision." Briefof

### 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 

## - twelveyears 

### 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 existenceof a morecomplete 

### report, it 

### must exist. In fact, the Commonwealth states in its 

### brief

### thatZimmerman "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

### entitledto 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 ofAppellant, 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

### outofthe mouthsof

### the prosecution'sown 

### witnesses." 

### Id. at 55.

4 

### Zimmerman has also failed to 

### demonstrate 

### that the Commonwealth's reasons 

### forthe delaywere 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 

### thisstatement. In 2003, a

### fellow inmate named Carl Cobbs came 

### forward with 

### information 

### that he had overheard 

### Zimmermanadmit 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 ofcounsel

### for failureto call an

### expertwitness, a 

### petitioner mustdemonstrate: (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 theAppellant. 

### Commonwealth v. 

### Lawson, [] 762 A.2d 753, 756 (Pa. Super. 2000) citing 

### Commonwealth v. 

### Pursell, [] 724A.2d 293 

### ([Pa.] 1999). OurSupreme Court has also madeclear 

### that: 

### "[w]hen a 

### defendantclaims

### thatsome 

### sortofexpert

### 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 

### testifythatthe

### 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 

### affidavitfrom this 

### expert confirming his 

### willingness to 

### testify to those facts, nor does he aver

### thatthe 

### expertwas available and would have

### testified at

### trial. As such, he has failed to 

### demonstrate 

### that trial counsel was 

### ineffective 

### for failing to call an

### expertwitness. 

### 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. Theseclaimsare 

### meritless. 

### Zimmerman asserts 

### that the PCRA 

### court erred by not 

### granting him 

### discoveryofthe 

### "complete" autopsy report, as well as 

### information regarding any 

### agreements the Commonwealth reached 

### with two 

### trial witnesses. 

### Zimmermanalso requested the

### "rapsheets"ofthose 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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### -S13020-17

discretion. 

### Id. An abuse 

### ofdiscretion 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, 999A.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 requestmade 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 CourtOpinion, 

### 4/20/16,at 12. We can discern no abuse of

### discretion on the part ofthe PCRA court. 

### Zimmerman's requestswere grounded in mere speculation 

### thatthe evidence he 

### sought 

### mayexist. He failed to 

### profferanything, 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 

### "thatthere 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'sdecision 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 

### Commonwealthv. 

### D'Amato,856A.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 duringthe

### timeframe Zimmerman postulates, Hoffmanonly provides an alibi

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### -S13020-17

fortwo 

### out of

### twelve relevant hours. Thefinal twowitnesses, Dawn Kile and James Holton, claim also to have seen

### Zimmerman atthe 

### 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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