J-S65013-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JASON KOEHLER

Appellant No. 3059 EDA 2013

Appeal from the PCRA Order October 28, 2013

In the Court of Common Pleas of Monroe County

Criminal Division at No(s): CP-45-CR-0000447-2004

BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J. FILED JANUARY 30, 2015

Appellant, Jason Koehler, appeals pro se from the order entered on 

October 28, 2013, by the Honorable Margherita Patti Worthington, which 

denied his petition filed pursuant to the Post-Conviction Relief Act (“PCRA”).1 

After careful review, we affirm. 

A panel of this Court previously summarized the history of this case as 

follows:

[I]n the early morning hours of February 13, 2004, 

[Appellant] entered the home of Jennifer Cullinan to 

purchase crack cocaine from Jason Gray, whom 

[Appellant] has dealt with on previous occasions. Ms. 

Cullinan, Mr. Gray, and Jose Joubert were all inside [Ms. 

Cullinan’s home] at the time. According to Mr. Joubert, 

[Appellant] had appeared at the residence with a loaded 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 42 PA.CONS.STAT.ANN. §§ 9541-9546.
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.357 revolver. While Mr. Joubert was putting wood in the 

fireplace, [Appellant] shot Mr. Joubert in the lower left side 

of his back and face. He fell to the ground. Mr. Joubert, 

although unable to see anything at this time, was able to 

hear an ensuing struggle between Mr. Gray and 

[Appellant]. Another shot was fired and Mr. Joubert heard 

Mr. Gray fall to the ground. Seconds later, Mr. Joubert 

heard Ms. Cullinan screaming, asking [Appellant] what he 

had done. He heard another struggle, this time between 

Ms. Cullinan and [Appellant]. Ms. Cullinan was repeatedly 

telling [Appellant] to get off her. Another shot was fired 

and Mr. Joubert did not hear Ms. Cullinan again. 

[Appellant’s] version of the events is quite different. 

[Appellant] states that he had been to the Cullinan 

residence two previous times that day to purchase drugs. 

During the second time, [Appellant] says he [left] the .357 

revolver with Mr. Gray as a loan for more crack cocaine 

because he did not have any money. On his third time 

back at Ms. Cullinan’s home, [Appellant] stated that Mr. 

Joubert, whom he had never seen before, let him in. 

[Appellant] stood at the arm of the couch closest to the 

door, Mr. Joubert was to his left, and Mr. Gray was to his 

right. Ms. Cullinan was in the kitchen. While Mr. Joubert 

was handing [Appellant] a bag of drugs, [Appellant] heard 

a noise to his right side coming from where Mr. Gray was.

[Appellant] states that Mr. Gray was pulling a rifle, 

which had been chambered, from underneath the couch 

and was pointing it in his direction. Thinking that his life 

was in danger, [Appellant] grabbed the .357 revolver from 

the arm of the couch, stepped toward Mr. Gray so that he 

was approximately two feet from him and shot him in the 

“face area.” The gun made contact with Mr. Gray’s head 

when it went off. Believing that Mr. Joubert was running 

for more weapons, [Appellant] turned to his left and fired 

three more times in his direction, hitting both Mr. Joubert 

and Ms. Cullinan. Then [Appellant], seeing the bag of crack 

cocaine that Mr. Joubert was trying to hand him, picked up 

the bag and ingested some of the drugs.

The next set of facts is relatively uncontradicted. 

[Appellant] and Mr. Daniels, [Appellant’s accomplice,] 

began looking for money and drugs throughout the house, 

taking anything they could find. [Appellant] even [went] as 
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far to stick his hands in all three of the victim’s [sic] pants 

pockets to find more. [Appellant] then open[ed] the 

basement door, grab[bed] each victim one at a time and 

thr[ew] their bodies down the stairs. Mr. Joubert hear[d] 

someone mention that he [was] still breathing and to finish 

him. The other person respond[ed] that Mr. Joubert [was] 

going to die slowly. Once [Appellant] and his accomplice 

[left] the residence, Mr. Joubert [was] able to crawl up the 

stairs and eventually out of the residence to safety.

Trial Court Opinion (Post-Sentence Motion), 11/24/10, at 42-43.

On November 2, 2005, Appellant pled guilty to two counts 

of third degree murder and aggravated assault. Shortly 

thereafter, Appellant filed a motion to withdraw his guilty plea 

before sentencing. On March 24, 2006, the trial court denied this 

motion and sentenced Appellant to an aggregate sentence of not 

less than 40 years nor more than 80 years[’] imprisonment.

Appellant filed a post-sentence motion which the trial court 

denied on September 7, 2006. Appellant appealed, challenging 

the trial court’s denial of his request to withdraw his guilty plea 

prior to sentencing. This Court reversed, vacating Appellant’s 

judgment of sentence and remanding the case for trial. The 

Commonwealth filed a Petition for Allowance of Appeal, which 

our Supreme Court denied on November 17, 2008.

Appellant proceeded to a jury trial after which he was 

convicted of the aforementioned offenses on October 21, 2009. 

On the same day, the jury imposed a sentence of life 

imprisonment. On December 11, 2009, the trial court imposed a 

life sentence without parole to be followed by a sentence of not 

less than 35 years nor more than 73 years. On December 21, 

2009, Appellant filed a post-sentence motion seeking 

reconsideration of his sentence. The trial court did not enter an 

order denying Appellant’s post-sentence motion until June 1, 

2010. Appellant appealed to this Court on June 24, 2010.

Commonwealth v. Koehler, 1763 EDA 2010, at 1-4 (Pa. Super., filed June 

27, 2011) (mem. op.). On appeal, this Court affirmed Koehler’s judgment of 

sentence and the Pennsylvania Supreme Court denied allocatur. 
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Koehler filed a lengthy pro se PCRA petition, after which the PCRA 

court appointed counsel. PCRA counsel filed a brief, which largely 

incorporated by reference Koehler’s original pro se petition. On August 8, 

2013, the PCRA court ordered counsel to file within 30 days an additional 

brief which did not incorporate by reference the pro se petition, and which 

clarified and distilled Koehler’s claims. Counsel did not comply with the 

court’s directive. 

A PCRA evidentiary hearing was conducted on June 25, 2013. PCRA 

counsel filed a brief that addressed only three of the approximately fifteen 

issues raised in Koehler’s pro se brief. The PCRA court entered an order 

denying Koehler’s petition and this timely appeal followed.

During the pendency of this appeal, Koehler filed in this Court a 

request to proceed pro se due to the ineffective assistance of PCRA counsel. 

By order dated January 1, 2014, we remanded the proceedings and 

instructed the PCRA court to conduct a hearing pursuant to Commonwealth 

v. Grazier, 713 A.2d 81 (Pa. 1998), in order to determine whether Koehler’s 

waiver of counsel was knowing, intelligent, and voluntary. After the PCRA 

court conducted the Grazier hearing on March 3, 2014, it permitted Koehler 

to proceed pro se. 

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

I. Whether PCRA counsel’s ineffective assistance was so 

egregious that it nullified the purpose of the PCRA causing 

a complete denial of the opportunity to obtain relief?
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II. Whether trial counsel rendered ineffective assistance by: 

failing to obtain an expert report analyzing blood located 

on the barrel of a rifle; failing to obtain certain criminal 

records; and failing to investigate or call witnesses 

requested by the defendant?

III. Whether direct appeal counsel rendered ineffective 

assistance by: failing to raise a claim that police, in bad 

faith, either destroyed or failed to properly document 

exculpatory evidence; and by failing to argue a Brady 

claim with regard to certain criminal records[?]

Appellant’s Brief at 4.

“Our standard of review of a trial court order granting or denying 

relief under the PCRA calls upon us to determine whether the determination 

of the PCRA court is supported by the evidence of record and is free of legal 

error.” Commonwealth v. Barndt, 74 A.3d 185, 191-192 (Pa. Super. 

2013) (citation and internal quotation marks omitted). “The PCRA court’s 

findings will not be disturbed unless there is no support for the findings in 

the certified record.” Id. (citation omitted). The PCRA court’s credibility 

determinations are binding on this Court, where there is record support for 

those determinations. See Commonwealth v. Timchak, 69 A.3d 765, 769 

(Pa. Super. 2013). 

To establish ineffectiveness of counsel, “a PCRA petitioner must show 

the underlying claim has arguable merit, counsel's actions lacked any 

reasonable basis, and counsel’s actions prejudiced the petitioner.” 

Commonwealth v. Jones, 71 A.3d 1061, 1063 (Pa. Super. 2013) (citation 

omitted), appeal denied, 84 A.3d 1062 (Pa. 2014). “Prejudice means that, 

absent counsel’s conduct, there is a reasonable probability the outcome of 
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the proceedings would have been different.” Id. (citation omitted). If a 

reasonable basis exists for the particular course chosen by counsel, the 

inquiry ends and counsel’s performance is deemed constitutionally effective. 

See Commonwealth v. Lauro, 819 A.2d 100, 106 (Pa. Super. 2003). 

Failure to satisfy any prong of the test requires that the claim be dismissed. 

See Commonwealth v. O’Bidos, 849 A.2d 243, 249 (Pa. Super. 2004).

In his first issue, Koehler raises a blanket challenge to PCRA counsel’s 

effectiveness. We note, however, that Koehler did not challenge his PCRA 

counsel’s effectiveness before the PCRA court.2 As such, this claim is 

waived. See Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 

2014), appeal denied, 101 A.3d 785 (Pa. 2014) (claims of PCRA counsel’s 

ineffectiveness may not be raised for the first time on appeal). 

Koehler’s remaining claims challenge the effectiveness of trial counsel. 

In his second issue on appeal, Koehler alleges that trial counsel was 

ineffective for failing to obtain blood spatter analysis and for failing to 

request the criminal records of victims Jason Gray and Jose Joubert. 

However, Koehler has not himself obtained either the blood spatter analysis 

or the aforementioned criminal records for our review. As we are prevented 

from examining the very evidence Koehler now deems trial counsel was 

____________________________________________

2 Although Koehler filed an application to proceed pro se on appeal on the 

basis of PCRA counsel’s ineffectiveness, he did not raise the issue of 

counsel’s effectiveness during the Grazier hearing, and the PCRA court did 

not have the opportunity to address this issue below. 
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ineffective for failing to obtain, we are unable to determine in what way 

Koehler was prejudiced by counsel’s alleged misconduct in this regard. 

Accordingly, these claims fail. 

We likewise find no merit to Koehler’s claim that trial counsel was 

ineffective for failing to investigate or call certain witnesses. Trial counsel 

will not be deemed ineffective for failing to call a witness to testify unless it 

is demonstrated that:

(1) the witness existed; (2) the witness was available; (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 was so prejudicial to 

petitioner to have denied him or her a fair trial. 

Commonwealth v. Brown, 18 A.3d 1147, 1160-1161 (Pa. Super. 2011) 

(citation omitted). 

Instantly, although Koehler insists that trial counsel was informed of 

the existence of the alleged witnesses, he does not establish the identity of 

any witnesses or their availability at the time of trial. Koehler does not even 

set forth the substance of the witnesses’ testimony. Without this necessary 

evidence we are unable to conclude that the the absence of the testimony 

was so prejudicial to petitioner to have denied him or her a fair trial. 

Accordingly, Koehler’s claim that counsel was ineffective for failing to call 

certain unidentified witnesses is without merit.

Koehler presents two related claims in his third and final issue. 

Koehler first argues that trial counsel was ineffective for failing to raise a 

claim that the police, in bad faith, destroyed or failed to preserve potentially 
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exculpatory evidence. Koehler references a Pennsylvania State Police lab 

report indicating that three swabs of human blood were taken from the rifle 

used in the murders and retained for potential DNA analysis. See 

Appellant’s Brief at 22-23. Koehler does not indicate that he has 

independently attempted to ascertain the existence of the blood swabs; nor 

does he present this evidence for our review. Koehler’s claim that the police 

destroyed or failed to preserve this evidence, or even that the alleged 

evidence would prove exculpatory, is purely speculative. We therefore find 

no basis on which to deem counsel ineffective for failing to advance this 

specious argument. 

Koehler alternatively contends that counsel was ineffective for failing 

to argue that the Commonwealth’s alleged failure to provide the blood swab 

evidence violated the Supreme Court’s decision in Brady v. Maryland, 373 

U.S. 83 (1963). 

In Brady, the United States Supreme Court held that a 

defendant’s due process rights are violated when the prosecution 

withholds favorable, material evidence from the defense. To 

prove a Brady violation, the defendant bears the burden of 

demonstrating that: (1) the prosecutor has suppressed 

evidence; (2) the evidence, whether exculpatory or impeaching, 

is helpful to the defendant, and (3) the suppression prejudiced 

the defendant. Therefore, even if the first two prongs have been 

established, a defendant must establish that he was prejudiced 

by the failure to disclose. To establish prejudice, the defendant 

must prove that there is a reasonable probability that, had the 

evidence been disclosed to the defense, the result of the 

proceeding would have been different. 
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Commonwealth v. Pugh, 101 A.3d 820, 825 (Pa. Super. 2014) (internal 

citations and quotation marks omitted). 

Herein, Koehler fails to satisfy his burden of demonstrating any of the 

three prongs required to establish a Brady violation. Koehler does not 

demonstrate that the Commonwealth suppressed the evidence, that the 

evidence was exculpatory, or in what way he was prejudiced by the alleged 

suppression. This claim is patently meritless.3 

As we find no merit to any of the claims Koehler raises on appeal, we 

affirm the order denying PCRA relief. 

Order affirmed. 

Judge Platt joins the memorandum.

Judge Olson concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/30/2015

____________________________________________

3 Koehler bootstraps to his Brady claim the Commonwealth’s alleged failure 

to produce the criminal records of Jason Gray and Jose Joubert. See 

Appellant’s Brief at 24-25. As Koehler similarly fails to satisfy any of the 

three prongs necessary to establish a Brady violation with regard to this 

bald allegation, we find this claim is also without merit.