J-S23033-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

HUGO M. SELENSKI 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1265 MDA 2021

Appeal from the PCRA Order Entered August 26, 2021

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

No(s): CP-40-CR-0002700-2006

BEFORE: STABILE, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED: SEPTEMBER 8, 2023

Appellant, Hugo M. Selenski, appeals from the order denying his first 

petition filed under the Post Conviction Relief Act (“PCRA”)1in which he alleged

numerous claims of ineffective assistance by the attorneys who represented 

him at his jury trial. We affirm. 

This case arises out of the May 3, 2002 killings of Michael Kerkowski, 

Jr., and Tammy Fassett. The evidence presented at trial established that 

Kerkowski was a licensed pharmacist and owner of a pharmacy who was 

arrested in April 2001 and ultimately convicted of the unauthorized sale of 

controlled substances. Appellant befriended Kerkowski while he was awaiting 

trial and gave him advice on his criminal case. In March 2002, Kerkowski paid 

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* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.
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Appellant an amount between $60,000 and $80,000, which Appellant 

represented to others was for legal assistance he provided to Kerkowski. 

Appellant quickly spent the money he had obtained from Kerkowski, 

including by putting a down payment on a house on Mount Olivet Road in

Kingston Township, which was to be purchased in the name of his girlfriend, 

Christina Strom. Appellant and Strom closed on the purchase of the property

on April 30, 2002, but they lacked funds to cover approximately $10,000 in

closing costs associated with the transaction. In order to raise the funds to 

pay the closing costs, Appellant devised a plan with Paul Weakley, a former 

prison associate, to kill Kerkowski and take the cash that Kerkowski had 

accumulated while he was selling drugs from his pharmacy. 

Appellant and Weakley arrived at Kerkowski’s house during the 

afternoon of May 3, 2002, and discovered that Fassett, Kerkowski’s girlfriend, 

was also present. After socializing and drinking beer for approximately one

hour, Appellant pulled out a firearm and ordered Kerkowski and Fassett to the 

floor. The two were bound with flex ties and duct tape, and Appellant and 

Weakley tortured Kerkowski by striking him with a rolling pin and strangling 

him with a zip tie in order to force him into disclosing where his money was 

located. Kerkowski divulged the location of two bags of approximately 

$60,000 in his house and told Appellant that his father had possession of an 

additional $60,000 of the younger Kerkowski’s money. Appellant ultimately 

tightened the zip tie so tightly around Kerkowski’s neck that he stopped 
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breathing and died. Appellant then caused Fassett’s death by the same 

method. 

With the money taken from Kerkowski, Appellant was able to pay the 

closing costs for the purchase of the Mount Olivet Road property. Several 

days after the murders but before he and Strom moved into the property, he 

and Weakley buried the two bodies on the Mount Olivet Road Property after 

Appellant asked the seller of the house to leave the property for a day. 

Appellant also contacted Kerkowski’s parents, who believed at that time that 

Kerkowski had absconded prior to his May 14, 2002 sentencing hearing. Over 

the next several months, Appellant convinced Kerkowski’s father to give him 

the $60,000 that Kerkowski had entrusted to his father with the promise that 

the money would be used to pay Kerkowski’s new lawyers who were trying to 

help him avoid going to prison. Appellant later extorted an additional $40,000 

from Kerkowski’s father by threatening him with a firearm. 

Weakley began providing statements to detectives in June 2003

regarding the killings, although he initially attempted to distance himself from 

Appellant’s actions. Eventually, Weakley confessed to his involvement in the 

murders and led law enforcement to the burial site on Mount Olivet Road. 

As this Court has previously stated:

Following a joint county and state criminal investigation into the 

deaths of [] Kerkowski[] and [] Fassett, the Commonwealth 

charged Appellant on May 19, 2006, with two counts each of 

homicide, conspiracy (homicide), solicitation, robbery, conspiracy 

(robbery), and one count of theft. After years of preliminary 

proceedings, appeals, changes of counsel and jurists, discovery, 

and extensions, Appellant proceeded to a jury trial in January of 
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2015, which resulted in guilty verdicts on all but [solicitation to 

commit homicide and conspiracy to commit robbery]. Following a 

penalty hearing on February 17, 2015, the jury returned verdicts 

of life imprisonment on the dual first-degree-murder convictions. 

The trial court sentenced Appellant on March 27, 2015, to

consecutive terms of life imprisonment without possibility of 

parole, followed by [56] to 120 years of incarceration. Appellant 

filed a post-sentence motion on April 6, 2015, regarding 

restitution. The trial court scheduled a hearing for April 29, 2015,

where Appellant’s post-sentence motion was resolved by 

stipulation.

Commonwealth v. Selenski, No. 904 MDA 2015, 2016 WL 5745642, at *1–

2 (Pa. Super. filed Aug. 11, 2016) (unpublished memorandum) (some 

reformatting; record citations omitted).

Appellant appealed, and on August 11, 2016, this Court affirmed his 

judgment of sentence. See id. Appellant filed a petition for allowance of 

appeal, which our Supreme Court denied on January 24, 2017. 

Commonwealth v. Selenski, 165 A.3d 890 (Pa. 2017) (per curiam order). 

Appellant filed a timely pro se PCRA petition on August 21, 2017. The 

PCRA court appointed counsel to represent Appellant and directed him to file 

any supplemental petition by November 10, 2017. After various extensions 

were granted, PCRA counsel filed a supplemental PCRA petition on February 

19, 2019, and a second supplemental petition on January 13, 2020. The PCRA 

court held hearings on October 14, 2020, March 12, 2021, and April 8, 2021. 

Following the hearings and the submission of post-hearing briefs by the 
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parties, the PCRA court denied relief on August 26, 2021, through an order 

and accompanying opinion. Appellant then filed this timely appeal.2

Appellant raises the following issues on appeal:

I. The PCRA court erred when holding Appellant[’]s argument that 

trial counsel was ineffective in dealing with witnesses that were 

called at trial and presenting evidence as it relates to those 

witnesses lacked merit.

II. The PCRA court erred when holding Appellant[’]s argument that 

trial counsel was ineffective for failing to call witnesses in support 

of the Appellant[’]s defense at trial lacked merit.

III. The PCRA court erred when holding Appellant[’]s argument 

that trial counsel was ineffective in their challenging of the 

Commonwealth[’]s timeline of events lacked merit.

IV. The PCRA court erred when holding Appellant[’]s argument 

that trial counsel was ineffective in their handling of the DNA 

evidence lacked merit.

V. The PCRA court erred when holding Appellant[’]s argument that 

trial counsel was ineffective for not using the Appellant[’]s cell 

phone records to support the defense at trial lacked merit. 

Appellant’s Brief, at 7 (unnecessary capitalization omitted). 

We review the denial of PCRA relief to decide whether the PCRA court’s 

factual determinations are supported by the record and its legal conclusions 

are free of error. Commonwealth v. Small, 238 A.3d 1267, 1280 (Pa. 

2020). When supported by the record, the PCRA court’s factual findings and 

credibility determinations are binding on this Court, but we review the lower 

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2 The PCRA court did not require Appellant to file a concise statement of errors 

pursuant to Pa.R.A.P. 1925 and entered an order on October 14, 2021,

indicating that it was relying on its August 26, 2021 opinion for the reasoning 

underlying the denial of PCRA relief.
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court’s legal conclusions under a de novo standard of review. Id. Our scope 

of review is limited to the findings of the PCRA court and the evidence of 

record, which we view in the light most favorable to the Commonwealth, the 

party who prevailed below. Id.

Appellant’s arguments in this appeal all concern the purported 

ineffectiveness of his counsel for his January 2015 trial, where he was 

represented by Bernard J. Brown, Esquire and Edward J. Rymsza, Esquire.

3

 

In assessing a claim of ineffective assistance under the PCRA, we begin our

analysis with the presumption that counsel has rendered effective assistance. 

Commonwealth v. Reid, 259 A.3d 395, 405 (Pa. 2021). To overcome the 

presumption, the petitioner must show that:

(1) the underlying substantive claim has arguable merit; (2) 

counsel did not have a reasonable basis for his or her act or 

omission; and (3) the petitioner suffered prejudice as a result of 

counsel’s deficient performance, that is, a reasonable probability 

that but for counsel’s act or omission, the outcome of the 

proceeding would have been different.

Id. (citation and quotation marks omitted). The petitioner must satisfy all

three prongs of this test to obtain relief under the PCRA. Id.

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3 Appellant’s PCRA issues nearly uniformly concern the conduct of Attorney 

Brown, his lead counsel at trial. In light of this fact and for the sake of 

readability, we refer to Appellant’s claims as being addressed to the 

performance of “trial counsel,” in the singular, throughout this memorandum. 

Appellant had a third attorney who represented him at trial, Hugh Taylor, but 

Appellant expressly disavowed bringing any ineffectiveness claims against 

Attorney Taylor. See N.T., 10/14/20, at 42.
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Witnesses Who Were Called

Paul Weakley

In his first appellate issue, Appellant argues that that trial counsel was

ineffective with respect to various witnesses who testified at trial. Appellant 

first challenges trial counsel’s failure to object to the admission of the federal 

plea agreement of Paul Weakley, who admitted at trial to his participation with 

Appellant in the murders of Kerkowski and Fassett. Appellant argues that the 

plea agreement “improperly makes it look like [Weakley] must be telling the 

truth.” Appellant’s Brief, at 11. 

We agree with the PCRA court that this claim lacks arguable merit. PCRA 

Court Opinion, 8/26/21, at 9-10. Trial counsel did in fact object to any 

mention of the requirement in the federal plea agreement that Weakley testify 

truthfully, and, while that argument was unsuccessful,4the plea agreement 

was not published to the jury and the Commonwealth did not elicit testimony 

from Weakley that the agreement required his truthful testimony following 

trial counsel’s objection. See N.T. (Trial), at 1012-17. Therefore, the 

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4 Trial counsel did not object to the admission of Weakley’s federal plea 

agreement but immediately thereafter objected to a question posed to 

Weakley as to whether the agreement required his testimony in the present 

trial. N.T. (Trial), at 1012-13. At a sidebar, counsel argued that the 

Commonwealth should not be permitted to elicit testimony that the plea 

agreement required Weakley to testify truthfully as that would constitute 

improper vouching for the credibility of a witness; the trial court overruled the 

objection. Id. at 1013-14.
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agreement was not used to make it seem as if Weakley were testifying 

truthfully, as Appellant asserts.

Appellant next argues that trial counsel was ineffective for not using 

Weakley’s October 21, 2005 prior inconsistent statement as impeachment. In 

that statement, Weakley told authorities that, on the day of the murders, he 

dragged Kerkowski and Fassett’s bodies out of his car and into the Luzerne 

residence he shared with Appellant and his girlfriend; at trial, Weakley stated 

that he stayed at a hotel for the two nights after the murder and left the bodies 

in his vehicle during this time. PCRA Stipulation 1, ¶3; PCRA Joint Exhibit 1A,

at 13; N.T. (Trial), at 1136-41. Appellant contends that using this statement 

on cross-examination “would [have] help[ed] hammer home the point that 

Weakley kept changing his story[] and then eventually settled on the story 

that the police wanted to hear.” Appellant’s Brief, at 12. 

The PCRA court found that trial counsel had a reasonable basis for the

decision not to cross-examine Weakley regarding the October 21, 2005

statement. PCRA Court Opinion, 8/26/21, at 11. The court discussed the 

testimony of Attorney Brown, which it found to be credible, that he extensively 

cross-examined Weakley regarding his 17 interviews with police and forced 

him to admit that he “lied a lot of times in [those] different interviews and 

statements that he made.” Id. (quoting N.T., 3/12/21, at 22-24). The court 

further noted Attorney Brown’s testimony that “there’s only so many times 

that you can call a liar, liar. At some point, it’s got to stop. You’ve made your 
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point and you want to stop beating a dead horse.” Id. (quoting N.T., 3/12/21, 

at 24). 

The PCRA court’s determination that trial counsel had a reasonable basis 

for not impeaching Weakley based upon the October 21, 2015 statement is 

supported by the record. Attorney Brown examined Weakley regarding his 17 

interviews from his first interview in June 2003 to his December 10, 2007 

meeting where “the information [he provided finally] start[ed] to comply and 

comport with” the account he would provide at trial. N.T. (Trial), at 1216-24, 

1251, 1272. Attorney Brown questioned Weakley regarding his evolving

falsehoods through the course of those interviews, including such lies as that 

he was not present when the murders occurred and only assisted in reburying

the bodies at the Mount Olivet Road property and that Patrick Russin and 

Kerkowski’s ex-wife were involved in the murders. Id. at 1224-29, 1233, 

1239-40, 1252-53, 1258, 1260. Weakley admitted on cross-examination to 

being a “liar” with a record of various crimen falsi convictions and that he 

added various details to his accounts to make them more believable. Id. at

1224, 1234, 1251, 1261-63, 1281. In short, the record shows that Weakley’s 

mendaciousness was amply probed by trial counsel on cross-examination. We 

find no basis to second guess the PCRA court’s determination that trial 

counsel’s strategic decision to not address every single one of Weakley’s lies 

was reasonable, notwithstanding that the jury ultimately convicted Appellant 

of the bulk of the charges related to the murders. See Commonwealth v. 

Mason, 130 A.3d 601, 618 (Pa. 2015) (PCRA court does not look into question 
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of “whether there were other more logical courses of action which counsel 

could have pursued” and will only find a chosen strategy as not reasonable 

when an alternative is shown that “offered a potential for success substantially 

greater than the course actually pursued”) (citations omitted).

Appellant next argues that trial counsel was ineffective for not 

impeaching Weakley’s trial testimony concerning the amount of money that 

Kerkowski gave Appellant in March 2002 with his June 4, 2003 statement

regarding the same topic. At trial, Weakley testified that Appellant showed 

him a shoebox in March 2002 with approximately $60,000 to $80,000 in cash 

inside that Appellant said Kerkowski paid him “[f]or services he was providing 

for Mr. Kerkowski”; Weakley stated that the amount of money he testified to 

was only an estimate as he was never able to physically count the money. Id.

at 1036-40. In his June 4, 2003 statement, Weakley told law enforcement 

that Appellant had in his possession a shoebox filled with cash Kerkowski had 

given him, constituting “an incredibly large sum of money, like maybe a 

hundred thousand dollars.” PCRA Stipulation 2, ¶3; PCRA Joint Exhibit 2A, at 

27. Appellant argues that “[a]ny showing that Appellant did not need money 

would have been useful in destroying the motive issue,” and additionally

alleges that the conflict between his trial testimony and his earlier statement

would have further discredited Weakley’s testimony. Appellant’s Brief, at 13. 

Appellant essentially argues that the prior inconsistent statement should 

be admitted for two purposes: first, to impeach Weakley based upon his 

differing accounts at trial and in a prior interview concerning the amount of 
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cash in the shoebox and, second, as substantive evidence to show that 

Appellant in fact acquired $100,000 from Kerkowski in late March 2002 and 

thus would not have had the motive to kill him just over a month later to get 

more cash. However, pursuant to Pennsylvania Rule of Evidence 803.1(1), a 

prior inconsistent statement may only be admitted substantively as an 

exception to the rule against hearsay if it:

(A) was given under oath subject to the penalty of perjury at a 

trial, hearing, or other proceeding, or in a deposition;

(B) is a writing signed and adopted by the declarant; or

(C) is a verbatim contemporaneous recording of an oral 

statement.

Pa.R.E. 803.1(1) (in effect March 18, 2013 to April 1, 2017)

5; see also id., 

Comment (“An inconsistent statement of a witness that does not qualify as an 

exception to the hearsay rule may still be introduced to impeach the credibility 

of the witness. See Pa.R.E. 613.”); Pa.R.E. 802 (“Hearsay is not admissible 

except as provided by these rules, by other rules prescribed by the 

Pennsylvania Supreme Court, or by statute.”).

Weakley’s June 4, 2003 statement, which the Commonwealth stipulated

to having been provided to trial counsel before trial, does not meet the 

requirements of Rule 803.1(1). See PCRA Stipulation 2, ¶5; PCRA Joint 

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5 Rule 803.1(1)(C) was amended subsequent to Appellant’s trial to provide 

that the prior inconsistent statement must have been “a verbatim 

contemporaneous electronic recording of an oral statement.” Pa.R.E. 

803.1(1)(C) (emphasis added).
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Exhibit 2A. First, the statement was not given under oath and subject to the 

penalty of perjury at an official proceeding but rather was an informal 

interview with the Pennsylvania State Police. Pa.R.E. 803.1(1)(A). Second, 

the statement, as admitted at the PCRA hearings, was not signed and adopted 

by Appellant nor was proof offered that Appellant signed or adopted the 

statement. Pa.R.E. 803.1(1)(B). Finally, while the statement appears to be 

a transcript prepared from a tape recording to which Weakley consented, See

PCRA Joint Exhibit 2A, at 1, there is no evidence of record that trial counsel 

was in possession of the audiotape recording of the June 4, 2003 at the time 

of trial as opposed to merely the transcript. Pa.R.E. 803.1(1)(C) (in effect 

March 18, 2013 to April 1, 2017); see Commonwealth v. Wilson, 707 A.2d 

1114, 1118 (Pa. 1998) (“[W]hen the prior inconsistent statement is a 

contemporaneous verbatim recording of a witness’s statement, the recording 

of the statement must be an electronic, audiotaped or videotaped recording 

in order to be considered as substantive evidence.”). Therefore, Appellant has 

not demonstrated that Weakley’s June 4, 2003 statement was admissible as 

substantive evidence at trial to show that Appellant did not have a financial 

motive to kill Kerkowski and Fassett.6

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6 Even if the June 4, 2003 statement could be admitted as substantive 

evidence, we would still find that Appellant has not shown that he was 

prejudiced by the fact that Weakley was not cross-examined regarding his 

statement that Appellant had as much as $100,000 of Kerkowski’s cash in a 

shoebox several weeks before the murder. Both the $100,000 and $60,000 

to $80,000 figures were clearly rough estimates as Weakley admittedly never 

(Footnote Continued Next Page)
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To the extent the June 4, 2003 statement could be offered to impeach 

Weakley, see Pa.R.E. 613, the PCRA court’s finding that trial counsel had a 

reasonable basis for not cross-examining Weakley as to every one of his false 

statements to law enforcement applies equally here. PCRA Court Opinion, 

8/26/21, at 11. Attorney Brown was not required to continue “beating a dead 

horse” regarding Weakley’s pattern of lying to authorities, when he had 

already spent considerable time doing so during his cross-examination. Id.

(quoting N.T., 3/12/21, at 24).

Appellant next argues that trial counsel was ineffective for not 

impeaching Weakley with letters he wrote to Appellant’s family in which he 

“ridiculed the Kerkowski family.” Appellant’s Brief, at 14. Appellant argues 

that cross-examination of Weakley with these prior inconsistent statements 

would have rebutted his trial testimony that he was testifying as to his role in 

the murders because “he wanted to do the right thing and help the Kerkowski 

family.” Id. at 13-14; see also N.T. (Trial), at 1343-44.

The PCRA court found that Appellant did not meet his burden in 

establishing his entitlement to relief on this claim. PCRA Court Opinion, 

8/26/21, at 12. The court further concluded trial counsel had a reasonable 

____________________________________________

counted the cash, PCRA Joint Exhibit 2A at 27; N.T. (Trial), at 1036-37, but 

the import of this testimony was not the amount Appellant started out with or 

how it was distributed but how the money was quickly exhausted and 

Appellant then needed to find more to complete the purchase of the Mount

Olivet Road property. See, e.g., N.T. (Trial), at 1037 (the money “got burnt 

through really fast”), 1041 (“shortly after [Appellant] received [the money,] 

it was all gone”).
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basis for not using the letters as counsels’ strategy was to minimize any 

sympathy for the Kerkowski family. Id. at 14-15. The record supports the 

PCRA court’s conclusions. Appellant did not admit a copy of the letters in the 

record at the PCRA hearings, nor did he show how these letters would 

“ridicule” the Kerkowski family or assist in impeaching his testimony that he 

admitted to his role in the murders “to do what’s right for the families of the 

victims, the Kerkowskis . . .” N.T. (Trial), at 1344. Therefore, he did not 

prove his entitlement to relief on this claim as required by the PCRA. 42 

Pa.C.S. § 9543(a) (a PCRA “petitioner must plead and prove” his entitlement 

to relief under the PCRA “by a preponderance of the evidence”); see also

Commonwealth v. Bretz, 830 A.2d 1273, 1276 (Pa. Super. 2003) (“Inherent 

in this pleading and proof requirement is that the petitioner must not only 

state what his issues are, but also he must demonstrate in his pleadings and 

briefs how the issues will be proved.”) (citation omitted). Furthermore, 

Attorney Brown testified at the PCRA hearing that he weighed whether to use 

the letters and determined that it would not benefit Appellant to disparage the 

Kerkowski family—which was represented at trial by Kerkowski’s octogenarian 

mother who had lost her son and husband—particularly in light of the fact that 

trial counsel had already effectively shown that Weakley was a liar. N.T., 

3/12/21, at 33-35. We find no fault in the PCRA court’s determination that 

this strategic decision was reasonable. See Commonwealth v. Williams, 

141 A.3d 440, 463 (Pa. 2016) (when counsel makes an informed strategic 

choice that could be reasonably viewed at the time as advancing the 
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defendant’s interests, the defendant cannot show that counsel had no 

reasonable basis for his actions, even though in hindsight counsel’s strategy 

was not successful).

Appellant further contends that trial counsel was ineffective for not 

rebutting Weakley’s claim that he received no benefit for his trial testimony. 

See N.T. (Trial), at 1015-16 (testifying on direct that he received a federal 

sentence of life imprisonment for the Kerkowski and Fassett murders and had 

been promised “[a]bsolutely nothing” for his trial testimony). Appellant 

asserts that counsel should have raised two specific benefits that Weakley 

received, a move out of solitary confinement when he began cooperating with 

authorities and the fact that he was not charged with taking his one-time 

cellmate Francis McBride hostage during an escape attempt. 

This claim fails as it lacks arguable merit. Attorney Brown elicited 

testimony from Weakley on cross-examination that his plea agreement 

provided that charges related to several robberies and possession of child 

pornography were dropped as part of his federal plea agreement and that the 

Luzerne County District Attorney had also agreed not to prosecute him for the 

instant murders, which could have led to a potential death sentence. Id. at 

1286-89. Attorney Brown testified at the plea hearing that he investigated 

whether Weakley received any other benefit for his testimony, including a 

move to a different facility or a change in status in prison, and uncovered no 

evidence of any additional benefit; Attorney Brown further testified that he 

never received any information substantiating the allegation that Weakley 
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took McBride hostage. N.T., 3/12/21, at 26-28, 55-57. Appellant did not offer 

any evidence at the PCRA hearing that contradicts Attorney Brown’s 

recollection and showed that Weakley did in fact receive the claimed benefits. 

Appellant next claims trial counsel’s ineffectiveness for not disputing 

Weakley’s testimony that Appellant came up with the plan to rob and kill 

Kerkowski. Appellant asserts that trial counsel should have rebutted this 

testimony by presenting the evidence that a search of Weakley’s residence 

uncovered bomb-making equipment, disguises, and a “how-to-murder 

manual,” which, Appellant maintains, would have shown that the robbery and 

murders were not “an abrupt decision by Appellant” and instead that Weakley 

was involved in the planning. Appellant’s Brief, at 13-14. 

The PCRA court found that trial counsel had a reasonable basis for not

raising the defense that Appellant was not involved in the planning of the 

crimes because Appellant himself decided not to pursue this theory. PCRA 

Court Opinion, 8/26/21, at 13. This finding has support in the record. 

Attorney Brown testified that trial counsel developed the theory that Weakley 

and Russin devised and carried out the plan to rob and kill Kerkowski without 

any participation or knowledge by Appellant, which Attorney Brown believed 

“would be [a] successful [defense] based on [his] review of the evidence.” 

N.T., 3/12/21, at 28-29. However, Attorney Brown explained that this 

strategy “got shot down [by Appellant] and it wasn’t something that 

[Appellant] wanted to put forth for reasons that were in the testimony in the 

Commonwealth’s . . . case.” Id. at 29. Appellant’s decision to not pursue the 
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strategy that Weakley independently planned to rob and kill Kerkowski

explains why the trial counsel raised the “[d]isguises, bomb-making 

equipment, [and] a magazine with a how-to-murder manual in it” found in 

Weakley’s home in the defense’s opening statement, N.T. (Trial), at 82, but 

did not cross-examine Weakley related to this evidence at trial. 

Additionally, as the PCRA court found, there is no arguable merit to the 

claim that cross-examination on the discovery of these items in Weakley’s 

home would have cast doubt on Appellant’s participation in the planning of 

the crimes. PCRA Court Opinion, 8/26/21, at 13. These items were apparently 

found during a search in June 2003 after the murders at issue in this case 

when Weakley was arrested for a separate robbery, N.T. (Trial), at 81-82, and 

therefore they do not show Weakley’s planning of the crimes at issue here, 

which took place more than one year prior. Further, the items uncovered

during the search have no apparent relation to the subject crimes: Weakley 

and Appellant did not use disguises but instead entered Kerkowski’s home 

under the pretenses of a social visit and there is no indication that a bomb 

was ever intended to be used. See id. at 1051-60 (describing materials 

gathered by Weakley and Appellant in anticipation of the crime); N.T., 

3/12/21, at 31-32 (Attorney Brown explaining that he did not know “how 

bomb making equipment . . . would be relevant” to the case). Moreover, 

Appellant did not make any presentation regarding the contents of the 

magazine “how-to-murder manual” that could in any way show that it was 

involved in the preparation of the killings at issue in this case.
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The final claim concerning Weakley relates to a 2006 statement he made 

in federal court that “they wanted him to admit to crimes he did not commit.” 

Appellant’s Brief, at 14. Appellant argues that this statement “could have 

been used to further support the argument that Weakley would change his 

story and say whatever he needed to in order to help himself.” Id.

The PCRA court found that this claim lacked arguable merit as there was 

no evidence that trial counsel was in possession of this statement at the time 

of trial. Attorney Brown testified that he was not provided with a transcript 

documenting the statement in discovery, and that trial counsel did not uncover 

it during pre-trial investigation. N.T., 3/12/21, at 32-33. Appellant has made 

no showing that trial counsel was or should have been aware of this alleged 

statement by Weakley at the time of trial. Therefore, this issue warrants no 

relief.

Louise Bensacon

Appellant’s next argument concerns Louise Bensacon, Kerkowski’s 

neighbor, who testified that she observed a man with a tattoo driving away 

from Kerkowski’s house as a passenger in a brown car at approximately 5:00 

p.m. on May 3, 2002, the date of the murders. N.T. (Trial), at 1392-1405. 

Bensacon identified Appellant as the individual she saw on the date of the 

murders from a contemporaneous photograph of Appellant and the brown 

vehicle from a photograph as one that belonged to Carey Bartoo, an 

acquaintance of Appellant who stated at trial that she may have given him a 
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ride from Kerkowski’s house on that date. Id. at 111, 1399-1401, 1479-83; 

Commonwealth Trial Exhibits 4, 145. 

Appellant argues that Bensacon’s “overreaching” account “was not 

challenged enough” by trial counsel, Appellant’s Brief, at 14-15, and that she 

should have been asked various questions on cross-examination, including 

why she contradicted her deposition testimony that her children were of 

elementary school age by testifying at trial that they were in junior high school 

and high school. Appellant further notes that trial counsel did not call into 

question Bensacon’s improbable testimony that she was working at a desk in 

her home by the window and yet “somehow was paying close enough attention 

to what was happening outside her window to see Appellant.” Id. at 14. 

Appellant posits that trial counsel should have asked why Bensacon continued 

to stare with locked eyes at Appellant despite the fear this aroused in her and 

why she did not tell police about this memorable episode notwithstanding the 

fact that she kept a journal, at the request of Kerkowski’s mother, of the 

comings and goings from Kerkowski’s house beginning on May 3, 2002.

We agree with the PCRA court that this claim of trial counsel’s allegedly 

faulty cross-examination of Bensacon lacks merit. PCRA Court Opinion, 

8/26/21, at 15-16. Attorney Brown thoroughly cross-examined Bensacon, 

raising numerous issues that would call her observations into doubt, including

why she would have noticed a vehicle drive by her house when she was sitting 

at her desk and engaged in crafts, the fact that she did not tell police during 

an interview a week after the murders that she had seen the brown car, and 
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how she never recorded seeing a man in her car in her journal or reported this 

information to Kerkowski’s parents, or indeed to anyone, for over four years. 

N.T. (Trial), at 1408-09, 1414-20, 1424-27, 1448-49. In addition, Attorney 

Brown also addressed Bensacon’s near and farsightedness and a potential 

obstruction to her view from her window, in the form of a rhododendron bush. 

Id. at 1403-04, 1407-08. 

Further, while Appellant argues that Bensacon should have been 

examined regarding the contradiction between her account of her children’s 

age in her trial and deposition testimony, this claim is wholly unsubstantiated

as her deposition transcript was not admitted into the record at the PCRA 

hearing. In any event, Appellant has not explained why a mother’s apparent 

misstatement of the age of her own children would damage her credibility as 

to an eyewitness observation in a murder trial. Finally, Appellant’s claim that 

trial counsel should have asked Bensacon why she “locked eyes” with 

Appellant as he was seated in the passenger seat of the brown car, Appellant’s 

Brief, at 15, is unsupported by the record where Bensacon merely testified 

that she observed Appellant staring at her house, not her specifically. N.T. 

(Trial), at 1401-02.

Geraldine Kerkowski

Appellant argues that trial counsel was ineffective for not offsetting the 

sympathy that was aroused during the Commonwealth’s direct examination of

Geraldine Kerkowski, Michael Kerkowski’s mother, by eliciting facts that made 

the “whole [Kerkowski] family look bad.” Appellant’s Brief, at 16. These facts
J-S23033-22

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included testimony concerning the fact that Geraldine and Michael Kerkowski, 

Sr., her husband and the victim’s father, knew that their son was involved in 

criminal acts yet hid a significant amount of Michael Kerkowski’s ill-begotten 

gains in their home, the parents’ removal of $40,000 in cash from their son’s 

house after his disappearance without telling the police, and the fact that the 

parents paid off their son’s bail bondsman after he did not show up for 

sentencing. 

However, as Attorney Brown pointed out in his PCRA hearing testimony, 

Geraldine Kerkowski was in her eighties at the time of trial, of diminutive 

stature, and she had recently lost her husband; Attorney Brown believed that 

it would not benefit Appellant’s defense to disparage an aging widow and 

mother of a murder victim by raising her involvement in illegal acts. N.T., 

3/12/21, at 34-35. Attorney Brown’s strategy was thus to “[t]ry to get her 

on and off as quick as possible.” Id. at 68. Attorney Brown further explained 

that the victim’s father was much more involved with the illegal acts than his 

mother and therefore he would have raised these issues with the father, if he 

were alive and testified at trial, but that it would “be very difficult to get to 

the bottom [of these issues] through Mrs. Kerkowski.” Id. at 64-66. 

Citing Attorney Brown’s testimony, the PCRA court found that trial 

counsel had a reasonable basis for not questioning Mrs. Kerkowski regarding

her awareness of her son’s crimes and what little involvement she may have 

had in covering up his misdeeds. PCRA Court Opinion, 8/26/21, at 16. The 

record supports this conclusion.
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Appellant also argues that trial counsel could have challenged the 

Commonwealth’s timeline of the events before and after the murders on May 

3, 2002 by asking Mrs. Kerkowski to resolve the contradiction between her 

trial testimony that she called her son’s house on that date between 2:30 and 

4:00 p.m. and spoke to Fassett for 15 minutes, N.T. (Trial), at 354, and her 

preliminary hearing testimony that the call was closer to 4:00 p.m. PCRA 

Exhibit D-3, at 63-64. However, as the PCRA court explained in its opinion, 

this claim lacks arguable merit as Attorney Brown did attempt, unsuccessfully, 

to establish the exact time of the call during cross-examination of Mrs. 

Kerkowski. PCRA Court Opinion, 8/26/21, at 16. Attorney Brown asked Mrs. 

Kerkowski whether the call was closer to 4:00 p.m. than 2:30 p.m., but she 

stated that she “really can’t say” and did not remember when the call occurred 

exactly, except that it was during the afternoon and shortly before Kerkowski 

and Fassett were to leave and pick up the victim’s children from daycare. N.T. 

(Trial), at 432-33; PCRA Court Opinion, 8/26/21, at 16. 

Robert Steiner

Appellant challenges trial counsel’s examination of Robert Steiner, the 

owner of the Mount Olivet Road property, which Appellant and his girlfriend, 

Christina Strom, purchased in late April 2002 and on which Appellant and 

Weakley buried the bodies of Kerkowski and Fassett. Appellant first argues 

that trial counsel was ineffective for not confronting Steiner with statements 

during his deposition testimony that would have called into question whether 

it was plausible that the bodies were buried without being seen. Specifically, 
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Appellant points out Steiner’s deposition testimony that trees and shrubbery 

were removed in the portion of the Mount Olivet Road property where the 

bodies were buried, opening up that area to view of passersby. PCRA Joint 

Exhibit 4A, at 78-79. 

The PCRA court determined that there is no arguable merit to this 

ineffectiveness claim, a finding that has support in the record. PCRA Court 

Opinion, 8/26/21, at 17. While Steiner testified at his deposition that the trees 

and shrubs along the property line were removed, he further stated that the 

vegetation remained through May 15, 2002—the day he moved out of the 

Mount Olivet Road property and several days after the bodies were buried—

and at trial he similarly indicated that the trees and shrubs were still there 

when he left the property. PCRA Joint Exhibit 4A, at 78-79; N.T. (Trial), at

585-86. Thus, trial counsel’s examination of Steiner on this point would not 

have shown that the trees and shrubs did not shield the burial from public 

view. 

Appellant also argues that trial counsel was ineffective for not raising 

the issue discussed in his deposition testimony regarding a house that was 

being built across the street from the Mount Olivet Road property at the time 

of the sale, PCRA Joint Exhibit 4A, at 26, which Appellant contends would have 

placed construction workers in the vicinity who could have seen the burial

process. We agree with the PCRA court that Appellant has not shown prejudice 

from this alleged claim of deficient performance by counsel. Notwithstanding 

Steiner’s deposition testimony as to a house being built across the street, he 
J-S23033-22

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did not indicate whether construction was ongoing at the time of the burial

and whether workers at the construction site would have been in a vantage 

point where they could have seen Weakley and Appellant digging on the 

property. Absent any further evidence regarding the under-construction 

home, Appellant’s claim that examination of Steiner on this topic would have 

strengthened the defense is merely speculative. Moreover, as discussed 

throughout this memorandum decision, the Commonwealth presented 

overwhelming evidence of Appellant’s guilt in the robbery and murder of 

Kerkowski and the murder of Fassett.7 

____________________________________________

7 This evidence includes Paul Weakley’s testimony regarding Appellant’s role 

in the planning of the crimes, the robbery and murders, and burial of the 

bodies; the eyewitness testimony of Louise Bensacon showing that Appellant 

left Michael Kerkowski’s house on the date of the murders; the testimony of 

Appellant’s girlfriend, Christina Strom, regarding their immediate need to raise 

approximately $10,000 to cover the closing costs associated with the purchase 

of the Mount Olivet Road property; testimony of a bank employee showing 

that Appellant deposited approximately $10,000 in Strom’s account the day 

after the robbery and murders; Appellant’s and Weakley’s statements to 

Patrick Russin regarding Kerkowski’s murder prior to the discovery of the 

bodies; the June 2003 discovery of the bodies on the Mount Olivet Road 

property, where Appellant was then living; Steiner’s testimony that Appellant 

asked him to absent himself from that property in the days after the murders; 

Samuel Goosay’s testimony regarding Appellant’s participation in a robbery of 

Goosay that had similar characteristics to the Kerkowski robbery; and 

Appellant’s statement in a prison recording, “If I did do it, who gives a fuck?,” 

referring to the murders. 

Additional evidence of Appellant’s guilt not otherwise discussed in this decision 

includes the testimony of Rodney Samson that Appellant offered him $20,000 

in April 2002 to assist in “[t]aking care” of Kerkowski, which Samson 

understood to be a reference to murder; Carey Bartoo’s testimony that

Appellant gave her $1,000 several hours after the murders occurred and told 

her to give $300 of that amount to Kim Kerkowski, Bartoo’s cousin and Michael 

(Footnote Continued Next Page)
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Appellant’s last ineffectiveness claim with respect to Steiner relates to a 

statement he made to defense investigator Bill Jesse in April 2005 that 

Appellant asked Steiner to leave the Mount Olivet Road property for a day

prior to the closing. PCRA Exhibit D-5, at 2. Appellant claims that, because 

the closing occurred on April 30, 2002, several days prior to the murders, N.T. 

(Trial), at 606, any pre-closing effort by Appellant to have Steiner vacate the 

property could not have related to the murders in any way. Nevertheless, as 

the PCRA court observes, Steiner clearly testified at his deposition and at trial 

that Appellant’s visit to ask if Steiner could vacate the property for a day 

occurred in the several days after the closing when he continued to live on the 

Mount Olivet Road property under an occupancy agreement executed at 

closing. PCRA Joint Exhibit 4A, at 64-65; N.T. (Trial), at 613-16; PCRA Court 

Opinion, 8/26/21, at 17. We agree with the PCRA court that Appellant has 

not shown prejudice from trial counsel’s decision not to confront Steiner with 

his statement to Jesse, in light of the overwhelming evidence against Appellant 

and where Appellant has not shown that Steiner would have changed his 

sworn deposition and trial testimony based upon the defense investigator’s 

notes of a conversation with him. PCRA Court Opinion, 8/26/21, at 17.

____________________________________________

Kerkowski’s ex-wife, “from Michael”; Appellant’s offer, made five days after 

the murders, to Kim Kerkowski’s boyfriend to pay for diapers and food for 

Michael and Kim’s children; and the testimony of Ernie Culp, the tenant on the 

Mount Olivet Road property, that he saw Appellant and Weakley in early May 

2002, holding digging implements, near a freshly dug patch of land on the 

property. N.T. (Trial), at 191-97, 658-664, 1476-75, 1564-69.
J-S23033-22

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Christina Strom

Appellant argues that trial counsel was ineffective for not eliciting 

testimony from Christina Strom that her motive for providing negative 

testimony against Appellant was to receive a lighter sentence in a related 

prosecution. This claim lacks arguable merit as Strom did in fact testify on 

direct regarding her federal guilty plea agreement to resolve money 

laundering and perjury charges associated with the investigation into the 

Mount Olivet Road property transaction; Strom had not been sentenced as of 

the date of trial, and the agreement required her to cooperate and testify

truthfully in the prosecution of Appellant. N.T. (Trial), at 713-18. On crossexamination, Attorney Brown raised Strom’s cooperation and how “it’s to [her] 

benefit” to testify against Appellant in the present case, while also discussing 

Strom’s lies in earlier proceedings that had led to her perjury prosecution. Id.

at 841-43, 910-12.

Appellant also contends that trial counsel should have asked Strom 

whether Appellant smoked cigarettes, as this evidence would have 

undermined the testimony of Samuel Goosay. Goosay was the victim of an 

unrelated robbery committed by Appellant and Weakley under similar 

circumstances that was admitted at trial to show Appellant’s identity as a 

perpetrator in the robbery, and ultimate killing, of Kerkowski. At trial, Goosay 

identified Appellant as one of the robbers and stated that the two smoked a 

cigarette together. Id. at 2333-34. We agree with the PCRA court’s 

determination that Appellant has not shown prejudice from trial counsel’s 
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failure to ask Strom whether Appellant smoked as he “has not provided any 

evidence showing [she] would have testified that [Appellant] did not smoke.” 

PCRA Court Opinion, 8/26/21, at 18. Appellant’s claim is purely speculative 

as to what Strom would testify if asked that question. Furthermore, as noted 

above, the Commonwealth presented overwhelming evidence of Appellant’s

guilt. 

Cheryl Breen

The next claim of ineffectiveness concerns the testimony of Cheryl 

Breen, a bank teller, who testified at trial that Appellant deposited $9,900 in 

Strom’s checking account on Saturday, May 4, 2002, the day after the 

murders, and explained that it was for the purpose of buying a house with 

Strom. N.T. (Trial), at 1492-1500. Breen further stated that Strom had only 

$400.46 in her account prior to the deposit and that a check was drawn from 

her account in the amount of $10,079.50 on the following Monday. Id. at 

1501-02. 

Trial counsel did not cross-examine Breen. See id. at 1502. Appellant 

argues that counsel should have asked her various questions to probe the 

veracity of her account, and to see if it is possible whether the deposit occurred 

prior to the murders, which would have called into question the alleged motive 

for the robbery. Specifically, Appellant avers that trial counsel should have 

asked Breen (1) whether she worked on the date of the alleged deposit; (2) 

whether there were cameras at the bank that would have captured the 

transaction; (3) whether a deposit on Friday, May 3, 2002 would have also 
J-S23033-22

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cleared on the following Monday; and (4) why Appellant was so recognizable 

to her that she came forward to authorities nearly two years after the murder 

after seeing his picture on a TV news program. 

Appellant’s claim lacks arguable merit. While Breen did not specifically 

state that she was working on the Saturday in question, it is readily apparent 

from her testimony that she was working that day as she stated that the 

transaction occurred on the Saturday, as documented by copies of bank 

statements, and she observed Appellant, spoke with him, and recalled the 

manner in which the bills were wrapped in a rubber band. Id. at 1493-1500; 

Commonwealth Trial Exhibits 88, 89. Breen also explained to the jury that 

Appellant’s appearance was memorable to her based upon his “very sparkly” 

eyes. N.T. (Trial), at 1496. Finally, while Appellant contends that trial counsel 

should have asked Breen whether there were cameras at the bank or whether 

the deposit could have been made the day before, there is simply nothing in 

the record to support a claim that such questions would have led to Breen 

providing testimony favorable to the defense. 

Patrick Russin

Appellant raises four claims of trial counsel ineffectiveness with respect 

to the cross-examination of Commonwealth witness Patrick Russin, who 

testified that, during the period after the victims’ murders and prior to the 

discovery of the bodies, he participated in Appellant’s efforts to extort money 

from Kerkowski’s father and had conversations with Appellant in which 

Appellant alternately said that Kerkowski was dead and alive. N.T. (Trial), at 
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2078-92. Appellant first argues that his attorneys provided ineffective 

representation by not cross-examining Russin regarding his inconsistent 

statements in discovery as compared to his testimony at the “Rudy Redman” 

trial.8 The PCRA court rejected this claim, finding that trial counsel had a 

reasonable basis for not cross-examining Russin based on his “Rudy Redman” 

trial testimony as he did not want to provide the opportunity to introduce 

evidence that would cast Appellant in a negative light. PCRA Court Opinion, 

8/26/21, at 20. This conclusion is supported by the record. Attorney Brown 

testified at the PCRA hearing that he was concerned about “[o]pening the 

door” to “Rudy Redman” trial evidence, N.T., 3/12/21, at 22-23, 41, and the 

trial transcript reflects that a sidebar conference took place in which counsel

discussed how to raise issues related to the “Rudy Redman” trial, such as 

Russin’s plea in that case that required his cooperation in the present trial, 

without opening the door to a discussion of the facts of the killings. N.T. 

(Trial), at 2030-38.

Appellant next claims that trial counsel was ineffective for not crossexamining Russin with respect to a statement he made to officers during a 

June 5, 2003 police interview: “Do you want me to say [Appellant] and 

____________________________________________

8 The “Rudy Redman” trial refers to the killing of two individuals known by 

their nicknames “Rudy” and “Redman”; Russin entered a guilty plea to thirddegree murder with respect to those killings and testified at Appellant’s 2006 

trial in that case. N.T. (Trial), at 1456, 2030-32, 2069. While the result of 

that trial is not entirely clear from the record in this case, it appears that 

Appellant was not found guilty of the “Rudy Redman” killings.
J-S23033-22

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[Weakley], is that the story? Okay?” PCRA Exhibit D-12, at 1. Appellant 

asserts that this interview shows that Russin was “trying to tell the police the 

story they want to hear,” rather than what truthfully happened. Appellant’s 

Brief, at 20. However, aside from introducing a two-page excerpt of the

interview at the PCRA hearing and the Commonwealth’s stipulation that this 

document was provided to defense counsel during discovery, id.; N.T., 

10/14/20, at 24-25, Appellant did not present any additional evidence to 

demonstrate why trial counsel was ineffective for not cross-examining Russin 

on this statement. Appellant does not acknowledge that the June 5, 2003 

police interview occurred on the date that police unearthed Kerkowski and 

Fassett’s bodies on the Mount Olivet Road property and also arrested Russin, 

who was also living at that property, or that Attorney Brown extensively crossexamined Russin on the series of interviews with police investigators 

beginning on June 5, 2003 that ultimately led to his cooperation in this case. 

N.T. (Trial), at 2069, 2093-99, 2106. In the absence of any demonstration 

how cross-examination of Russin on a single comment during a contentious 

police interview would have led to a reasonable probability of a different 

outcome in a proceeding where an overwhelming amount of evidence was 

elicited to show Appellant’s guilt, we conclude that Appellant has not 

demonstrated prejudice with respect to this ineffectiveness claim.

In his third ineffectiveness claim with respect to Russin, Appellant 

argues that trial counsel did not cross-examine Russin regarding the benefit 

he received from testifying. Specifically, Appellant avers that Russin was not 
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charged for selling Kerkowski’s gun, extorting money from Kerkowski’s father, 

and for his role in two separate burglaries. “Together,” Appellant contends, 

“these items would [have] put doubt in the jury’s mind as to whether Russin 

was making up a story, telling the police what the[y] wanted to hear, [] all to 

get himself out of trouble.” Appellant’s Brief, at 21. As the PCRA court 

observed, however, Russin extensively testified regarding the benefit he 

received in his plea bargain in the “Rudy Redman” case of a 10-to-20-year 

sentence from testifying truthfully in the present prosecution of Appellant. 

N.T. (Trial), at 2066-72, 2111-15. Appellant has failed to present any 

evidence in the PCRA proceedings demonstrating any additional benefit that 

accrued to Russin from his testimony. Therefore, we conclude that Appellant’s 

claim that counsel failed to cross-examine Russin regarding the benefits he 

received from his testimony has no arguable merit. 

Finally, Appellant contends that trial counsel was ineffective for not 

asking Russin whether he was aware that Weakley told his cousin, Attorney 

Basil Russin, that he knew where the victims’ bodies were buried on the Mount 

Olivet Road property in December 2002, six months before the bodies were 

discovered by police. Russin discussed this conversation in a July 14, 2003 

police interview, which trial counsel was provided during discovery. See PCRA 

Exhibit D-13; N.T., 10/14/20, at 26. Attorney Brown did examine Russin 

regarding Weakley’s revelations to Russin and his cousin regarding his

involvement in the murders in December 2002, N.T. (Trial), at 2103-04, but 

Attorney Brown did not specifically mention that Weakley sought immunity, a 
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fact that Russin related in his July 14, 2003 interview, PCRA Exhibit D-13, and 

which Appellant now argues “shows that [Weakley] was scheming to find a 

way of getting himself benefits to this and other legal cases in exchange for 

information.” Appellant’s Brief, at 21. 

Notwithstanding trial counsel’s failure to ask Russin regarding Weakley’s 

attempt to get immunity in December 2002 in exchange for providing 

information relating to the murders, we find that Appellant has not shown 

prejudice from this ineffectiveness claim. Weakley’s statements to Attorney 

Russin in December 2002 are consistent with Weakley’s trial testimony 

concerning the murders and burial of the bodies and therefore it is unclear 

what additional value would be obtained regarding a further examination of 

Russin regarding what he overheard of this conversation. Furthermore, 

Weakley was cross-examined himself regarding his December 2002 

“confession” to Attorney Russin, N.T. (Trial), at 1224-25, and Weakley’s 

various attempts to use his knowledge of the murders for his own benefit were

exhaustively run through during his cross-examination. See supra. 

Samuel Goosay

Appellant raises two PCRA claims issues concerning Samuel Goosay, a 

Commonwealth witness who testified regarding his role as the victim of a 

home invasion robbery committed by Appellant and Weakley involving similar 

methods as the Kerkowski robbery. Appellant first submits that trial counsel 

should have cross-examined Goosay on the discrepancies between his trial 

account of the robbery and his earlier statements to police, including on the 
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issue of whether the robbers used a bag or pillowcase and regarding the 

number of individuals involved in the robbery. However, Attorney Brown 

explained at the PCRA hearing that he was in the process of questioning 

Goosay on the details of the robbery when Appellant informed Attorney 

Rymsza that he was not happy that facts related to the robbery were being 

discussed during cross-examination while an appeal in that case was pending 

at the time.

9

 N.T., 3/12/21, at 43. Attorney Brown stated that, because 

Appellant did not want to pursue cross-examination of Goosay on topics 

related to the facts of the robbery, a recess was taken and afterward Attorney 

Brown “recalibrate[d]” his cross-examination of Goosay to steer clear of those 

topics. Id. at 43-44. The trial transcript confirms this account as a recess 

was taken during the cross-examination of Goosay, which had to that point 

concerned the events of the robbery, N.T. (Trial), at 2356-63, and after the 

recess Attorney Brown switched his focus to Goosay’s subsequent police

identification of his assailants after the robbery. Id. at 2366-76. On the basis 

of Attorney Brown’s testimony, the PCRA court concluded that counsel’s 

performance could not have been deficient in not asking Goosay about 

discrepancies between his accounts of the robbery when Appellant personally 

____________________________________________

9 See Commonwealth v. Selenski, 158 A.3d 102, 104-05 (Pa. Super. 2017) 

(discussing procedural history of direct appeal from Goosay robbery 

convictions, which showed that direct appeal was pending at time of January 

2015 trial in this matter, following remand from the Pennsylvania Supreme 

Court).
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instructed counsel not to delve into these issues further, PCRA Court Opinion, 

8/26/21, at 20-21, and we concur in that determination. 

Appellant also claims that trial counsel should have cross-examined 

Goosay regarding his pulling out a pack of cigarettes from his shirt pocket and 

handing a cigarette to Appellant just after the two had been involved in a fight 

over Appellant’s gun that involved them rolling around on the floor and 

punching each other. N.T. (Trial), at 2329-34. Appellant argues that this 

account “is not believable” and, if challenged, would have led to the jury 

calling into question Goosay’s entire trial testimony. Appellant’s Brief, at 21. 

This claim merits no relief as Attorney Brown had a reasonable basis for not 

questioning Goosay regarding his interactions with Appellant; as discussed in

the prior paragraph, Appellant expressed his desire during trial that his 

counsel not delve into the facts of the robbery while his direct appeal was 

pending. Furthermore, Appellant has not demonstrated prejudice to this claim 

based upon (1) the fact that he did not demonstrate that Goosay would answer 

the question in a way favorable to the defense; (2) Appellant has not shown 

that questioning regarding the issue of whether Goosay had a pack of 

cigarettes in his shirt pocket could potentially have led to a different result in 

light of the overwhelming evidence of Appellant’s guilt; and (3) Weakley 

provided independent confirmation of Appellant’s participation in the Goosay 

robbery. N.T. (Trial), at 1189.
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Brook Selenski

Appellant argues that trial counsel was ineffective in the examination

Brook Selenski, Appellant’s younger sister who testified as a defense witness 

that Appellant invited her onto the Mount Olivet Road property in 2002 and 

2003 when she was approximately 12 years old and she explored the full 

property on foot and on all-terrain vehicles without Appellant placing any limit 

on what parts of the property she could visit. N.T. (Trial), at 2464-68. 

Appellant argues that trial counsel should have questioned his sister regarding

how “Weakley was obsessed with Appellant’s family and gave Brook gifts,” 

which Appellant argues would have further undermined Weakley’s credibility. 

Appellant’s Brief, at 21-22. We agree with the PCRA court that Appellant failed 

to prove his entitlement to relief on this claim by not pointing to any evidence 

of Weakley’s obsession with Appellant’s family or any gifts that were given to 

Appellant’s sister. PCRA Court Opinion, 8/26/21, at 21; see also 42 Pa.C.S. 

§ 9543(a); Bretz, 830 A.2d at 1276.

Ronald Selenski, Jr.

Appellant argues that trial counsel was ineffective for calling Appellant’s 

brother, Ronald Selenski, Jr., as a witness when he provided no benefit for the 

defense and “was a better witness for the Commonwealth” because the 

Commonwealth was able to play a short excerpt of an audio recording of a 

prison conversation where Appellant stated, “If I did do it,”—referring to the 

murders—"who gives a fuck?” N.T. (Trial), at 2492; Appellant’s Brief, at 22. 
J-S23033-22

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Appellant is entitled to no relief on this claim. First, we note that Ronald 

did provide beneficial testimony for the defense, stating that Appellant 

provided him with free rein to drive all-terrain vehicles on the Mount Olivet 

Road property and that the digging implements found on the property were 

used to create trails for the vehicles and other construction projects. N.T. 

(Trial), at 2476-81. Second, as the PCRA court observed, the recording could 

have been admitted by the Commonwealth during its case as it fell within the 

hearsay except for a statement of an opposing party. See Pa.R.E. 

803(25)(A); Commonwealth v. Edwards, 903 A.2d 1139, 1157-58 (Pa. 

2006). Therefore, we find no arguable merit to the claim that trial counsel’s 

decision to call Ronald damaged, rather than benefited Appellant’s case.

10

____________________________________________

10 Further contributing to our decision that the decision to call Ronald Selenski, 

Jr., was not constitutionally ineffective is the fact that Ronald was not in fact 

Appellant’s interlocutor on the audio tape in which Appellant made the 

incriminating statement at issue. After the Commonwealth’s crossexamination of Ronald, a recess was taken and the defense requested that it 

be permitted to play an approximate six-minute excerpt of the recording, 

which the trial court permitted. N.T. (Trial), at 2495-99. When Attorney 

Brown played the longer excerpt during redirect, Ronald confirmed that it was 

his and Appellant’s father—Ronald Selenski, Sr.—with whom Appellant was 

speaking, rather than Ronald Jr. Id. at 2502-04. Therefore, trial counsel was

not ineffective for calling Ronald Jr. as a witness to open the door for the 

playing of the recording in which Appellant stated, “who gives a fuck?” about 

whether he had killed Kerkowski and Fassett, id. at 2492, because Ronald Jr. 

was not the individual to whom Appellant made that statement. To the extent 

Appellant could have argued that trial counsel was ineffective for not objecting 

on the basis that the recording was being admitted on the wrong witness 

(Ronald Sr. was deceased at the time of trial, id. at 2504), that is not a claim 

that Appellant raised in his PCRA petition. 
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Appellant also argues that trial counsel’s performance was deficient 

because Ronald was not asked about “Appellant ma[king] a $9,436.00 cash 

deposit on a truck for Ronald just days before the bad check was written by” 

Strom. Appellant’s Brief, at 22. Appellant argues that such evidence would 

have challenged the “crux of the case on motive,” as it would have made “no 

sense for [Appellant] to make this cash deposit,” if he “knew that he had to 

come up with almost the same amount for a closing just days later.” Id.

Appellant has not sufficiently proved his entitlement to relief on this 

claim. See 42 Pa.C.S. § 9543(a); Bretz, 830 A.2d at 1276. Appellant

provided no evidence to substantiate that he made the deposit for Ronald’s 

truck or that his counsel was aware of the deposit11 and he does not even 

allege how long prior to the Kerkowski robbery this alleged deposit occurred. 

In any event, we would agree with the PCRA court that Appellant did not show 

prejudice from trial counsel’s failure to cross-examine Ronald on the deposit 

in light of the overwhelming evidence against Appellant. PCRA Court Opinion, 

8/26/21, at 22. Further, the evidence of the deposit would not have bolstered 

Appellant’s defense because it is consistent with the evidence presented by 

the Commonwealth that Appellant rapidly exhausted the $60,000 to $80,000 

he received from Kerkowski in March 2002 before hatching the plan to rob 

Kerkowski to cover the closing costs in early May 2002.

____________________________________________

11 Attorney Brown testified at the PCRA hearing that he did not recall the 

alleged deposit for Ronald’s truck. N.T., 3/12/21, at 75.
J-S23033-22

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Caine Pelzer

Appellant’s next ineffectiveness claims concern the testimony of defense 

witness Caine Pelzer, who testified that he met Weakley in a correctional 

institutional and Weakley provided him with a fabricated presentence 

investigation report (“PSI”), which Weakley told Pelzer “was written to show 

that [Appellant] is a rat and that [Weakley is] not a rat.” N.T. (Trial), at 2614-

18. Appellant first argues that counsel should have sought to introduce the 

PSI into evidence as a prior inconsistent statement, rather than under another

hearsay exception. This claim lacks merit because, after extended argument, 

the trial court ultimately ruled that the PSI was admissible, and it was 

admitted during Pelzer’s testimony. Id. at 2576, 2616; Defense Trial Exhibit 

59.

Appellant further claims that trial counsel should have asked Caine to 

testify that “Weakley said he was being pressured into lying to beat another 

case[] and that he was being asked to say something not true in exchange for 

the promise of saving himself.” Appellant’s Brief, at 22. However, as the 

PCRA court explained, this statement by Weakley was clear hearsay, and no 

hearsay exception is asserted that would have allowed for its admission. PCRA 

Court Opinion, 8/26/21, at 22. Therefore, this claim lacks arguable merit. 

Donald Chaump

The final ineffectiveness claim concerning witnesses who testified at trial 

relates to Donald Chaump, who was called as a defense witness to testify that 

he was Weakley’s former employer and that Weakley had a poor reputation 
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for truthfulness and honesty in the community. N.T. (Trial), at 2590-92. 

Appellant argues that trial counsel was ineffective for failing to ask Chaump 

whether Weakley had access to flex ties through his work of the kind used to 

bind Kerkowski and Fassett; he avers that this fact, if established, would have 

lent credence to the theory that Weakley planned the robbery and murders, 

rather than Appellant. However, Chaump testified that Weakley worked for 

him for six weeks in 2003, id. at 2591, after the date the murders were 

committed on May 3, 2002. Because Weakley’s access to flex ties through his 

job after the murders were committed has no bearing on who planned the 

crimes of which Appellant was convicted, this claim has no arguable merit.

Witnesses Who Were Not Called

In his second issue, Appellant argues that trial counsel provided 

ineffective assistance by failing to call ten witnesses. In order to establish

that trial counsel was ineffective for failing to call a witness at trial, the PCRA

petitioner must demonstrate 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 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.

Prejudice in this respect requires the petitioner to show how the uncalled 

witnesses’ testimony would have been beneficial under the 

circumstances of the case. Therefore, the petitioner’s burden is to show 

that testimony provided by the uncalled witnesses would have been 

helpful to the defense.
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Commonwealth v. Bishop, 266 A.3d 56, 65 (Pa. Super. 2021) (citation

omitted).

Robert Higdon

The first individual as to which Appellant argues trial counsel was

ineffective for failing to call as a witness is Robert Higdon, Appellant’s uncle. 

Appellant avers that Higdon would have testified that Appellant had worked 

for him in the past, Higdon had previously lent Appellant money, and Appellant 

could have asked Higdon for money in May 2002 if needed. With respect to 

Higdon, Attorney Brown agreed with Appellant’s counsel that the first three 

factors of the five-part test for ineffectiveness claims related to failure to call 

a witness were satisfied, specifically that Higdon existed, Higdon was available 

to testify for the defense, and trial counsel knew of the existence of Higdon. 

N.T., 3/12/21, at 76-77. However, Attorney Brown stated that it was his belief 

that he was not sure that Higdon would cooperate with the defense. Id. at 

79-80. Appellant was required to prove that Higdon was willing to testify for 

the defense, Bishop, 266 A.3d at 65, yet Appellant did not offer any evidence 

to meet his burden, such as by presenting Higdon as a witness or introducing 

an affidavit or certification from the witness. See Commonwealth v. 

Selenski, 228 A.3d 8, 17 (Pa. Super. 2020) (holding, in Appellant’s appeal 

from denial of PCRA relief related to Goosay robbery convictions, that 

Appellant did not demonstrate that a witness was willing to testify for the 

defense absent that witness’s testimony at the PCRA hearing, admission of an 

affidavit from the witness indicating willingness to testify, or any other 
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evidence establishing willingness to testify). Accordingly, Appellant is not 

entitled to relief on this claim.

With respect to the remaining nine individuals not called as a witness as 

to whom Appellant alleges ineffectiveness, Attorney Brown agreed in his PCRA 

hearing testimony that each of the four factors of the five-part test were 

satisfied, that is that the witness existed, that the witness was available to 

testify for the defense, that trial counsel knew of the existence of the witness, 

and that the witness was willing to testify for the defense. N.T., 3/12/21, at 

76-77. Therefore, for these remaining individuals, we will only address the 

fifth factor, whether “the absence of the testimony of the witness was so 

prejudicial as to have denied the defendant a fair trial.” Bishop, 266 A.3d at 

65 (citation omitted).

Bill Jesse

Appellant argues that trial counsel should have called Bill Jesse, an 

investigator hired by the defense, to testify regarding a 2005 interview he 

conducted with Robert Steiner, the Commonwealth witness who discussed his 

sale of the Mount Olivet Road property to Strom and Appellant’s request that 

Steiner remain away from the property for a day, which gave Appellant and 

Weakley the opportunity to bury the bodies. Appellant argues that Jesse’s 

testimony would have established that Appellant’s request to Steiner occurred 

prior to the April 30, 2002 closing on the house and thus before the date the 

murders occurred, May 3, 2002. See PCRA Exhibit D-5, at 2 (Jesse’s report 

of April 21, 2005 interview with Steiner).
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As the PCRA court points out in its opinion, however, Appellant seeks to 

introduce Jesse’s account of his conversation with Steiner for the truth of the 

matter asserted, and, as such, it constitutes hearsay without any proffered 

exception. PCRA Court Opinion, 8/26/21, at 25. Jesse’s testimony as to this 

conversation could not have been admitted substantively as a prior 

inconsistent statement by Steiner under our Rules of Evidence as it was not 

given under oath, did not appear in a writing signed and adopted by Steiner, 

and was not recorded. Pa.R.E. 803.1(1) (in effect March 18, 2013 to April 1, 

2017). Further, Appellant does not argue that Jesse’s testimony should be 

admitted for impeachment purposes, see Pa.R.E. 613, and instead he only 

sought to call Jesse to show that Steiner absented himself from the property

on a date when it was impossible that the burial of the bodies could have 

occurred. Therefore, Appellant has not demonstrated that Jesse could offer 

any relevant testimony at all, and we cannot infer any prejudice from trial 

counsel’s decision not to call him. 

Francis McBride and Jeff Schultz

Appellant raises similar ineffectiveness arguments with respect to two 

individuals who were incarcerated with Weakley after the murders, Francis 

McBride and Jeff Schultz. Appellant maintains that McBride, who was 

Weakley’s cell mate in 2007,

would have given significant testimony showing Weakley gave 

inconsistent statements, and also admitted to doing the crime and 

looking to blame [Appellant] for it. [McBride] had information that 

Weakley admitted to him he killed Tammy [Fassett] and gave 

details about how; that Weakley had threatened McBride and his 
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family if McBride ever said anything; the flex ties were from the 

company Weakley worked for; and that Weakley said he was 

receiving preferential treatment from [the] DA’s office for his 

cooperation.

Appellant’s Brief, at 24; see also PCRA Joint Exhibit 6A (McBride’s April 30, 

2007 and May 18, 2007 statements to law enforcement). Appellant argues 

that Schultz “would have testified that he heard Weakley say[, while they were 

incarcerated together,] that prosecutors were coaxing him into embellishing 

his story to implicate [Appellant] and that Weakley was getting a deal for 

testifying.” Appellant’s Brief, at 24; see also N.T., 3/12/21, at 88. Appellant 

argues that these statements would have called into question Weakley’s 

motives for cooperating with the police and whether his trial testimony was 

truthful. Appellant’s Brief, at 24

Again, Appellant has failed to explain under what exception this clear 

hearsay testimony by McBride and Schultz would be admissible at trial, 

although it appears that the proffered testimony could have been admitted as 

prior inconsistent statements for impeachment purposes if the statements had 

first been disclosed to Weakley during his testimony.

12

 Assuming the

____________________________________________

12 See Pa.R.E. 613(b) (extrinsic evidence of prior inconsistent statement 

admissible for impeachment where first disclosed to the witness, witness is 

given opportunity to explain or deny statement, and adverse party has 

opportunity to question witness); Commonwealth v. Charleston, 16 A.3d 

505, 527 (Pa. Super. 2011), abrogated on other grounds by In re L.J., 79 

A.3d 1073 (Pa. 2013) (Commonwealth was permitted to admit impeachment 

witness who testified as to other witness’s prior inconsistent statement when 

first witness was confronted with statement as required by Rule 613(b)). We 

note, however, to the extent McBride would have testified that Weakley 

(Footnote Continued Next Page)
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admissibility of the testimony, the PCRA court found that the absence of 

McBride’s and Schultz’s testimony was not so prejudicial as to have denied 

Appellant a fair trial, noting that trial counsel had already successfully assailed

Weakley’s credibility and motives during cross-examination and any such 

further evidence would be repetitive and that any further attack on Weakley 

through the testimony of McBride and Schultz would not have altered the 

course of the trial in light of the prodigious evidence marshalled by the 

Commonwealth to show Appellant’s guilt. PCRA Court Opinion, 8/26/21, at 

25-27. We agree with the lower court’s conclusion and find that it is supported 

by the record at the PCRA hearing. N.T., 3/12/21, at 23-24 (Attorney Brown 

testifying, referring to Weakley, that “there’s only so many times that you call 

a liar, a liar. . . You’ve made your point and you want to stop beating a dead 

horse.”); id. at 88 (Attorney Brown testifying that there were diminishing 

returns to continually attempting to cast Weakley as a liar and having a 

greater involvement in the murders than what his testimony portrayed and 

further that he did not have independent confirmation of the veracity of 

McBride’s statements to police, which were made long after the murders).

____________________________________________

threatened McBride and his family if McBride disclosed certain information 

Weakley said to him, this would likely be inadmissible as a specific, unrelated 

instance of Weakley’s conduct reflecting on his credibility. See Pa.R.E. 

608(b)(1).
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Jennifer Dysart, PhD

Appellant claims that trial counsel was ineffective for not calling Dr. 

Jennifer Dysart, a psychologist who authored an expert report concerning the 

accuracy and reliability of eyewitness identifications, specifically related to 

Louise Bensacon, Kerkowski’s neighbor who identified him driving away from 

the scene of the murder, and Samuel Goosay, the victim of another robbery 

perpetrated by Appellant. Appellant argues that Dr. Dysart’s expert report 

and testimony would have illustrated “how well a witness could identify and 

provide facts under the circumstances . . ., which could have placed doubt in 

the jurors[’] minds as to whether these witnesses, even doing their best, could 

accurately make these identifications.” Appellant’s Brief, at 25.

The PCRA court addressed this issue as follows:

[T]he absence of Dr. Dysart’s testimony was not so prejudicial as 

to have denied [Appellant] a fair trial, as trial counsel did not need 

Dr. Dysart’s expert opinion, due to the cross-examinations of 

[Bensacon] and [] Goosay. [N.T., 3/12/21, at 11]; see 

Commonwealth v. K.M., 680 A.2d 1168, 1172 (Pa. Super. 1996) 

(Trial counsel is not ineffective for failing to call an expert witness 

if counsel can “effectively cross-examine prosecution witnesses 

and elicit helpful testimony”). Trial counsel elicited testimony on 

cross-examination that [Bensacon] was near and far-sighted, 

requiring the use of glasses[,] and [that there were] obstructions 

from her vantage point looking out the window when she saw the 

[Appellant]. [N.T. (Trial), at 1403-08]. Trial counsel gauged 

[Bensacon’s] ability to identify by showing her a picture and 

asking questions “regarding that, and whether or not she could 

accurately see what was going on outside the window.” [N.T., 

3/12/21, at 37, 63; N.T. (Trial), at 1410-13.] Trial counsel also 

cross-examined [] Goosay regarding identifying the Defendant 

during the robbery. [N.T. (Trial), at 2366-75, 2379-82.]
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Trial counsel elicited testimony on cross-examination that []

Goosay did not “get a good look at the person that stayed behind”

during the robbery, he was unable to identify [Appellant] during 

multiple picture lineups, and his eventual identification of the 

[Appellant] was months after the robbery and could have been 

influenced by the media. [Id. at 2366-75.]

Further, Dr. Dysart’s testimony would not have helped the 

defense. Trial counsel made a

judgment call in terms of whether or not she was needed. 

In my view, the cross-examination of [] Goosay and 

[Bensacon] . . . by itself casts serious doubt on the 

identification; and frankly, I just didn’t think that Dr. Dysart 

could add anything else. She couldn’t conclude that any 

particular factor influenced these particular witnesses. I 

think her testimony would really be limited to be able to say 

that in these identifications there existed factors that could 

[a]ffect a witness’s accuracy. And I think that at the end of 

the day, given the cross-examination, how the testimony 

played out with the alleged two eyewitnesses, that the —

their testimony through cross was sufficient to cast doubt 

on their perceptions and their ability to recall.

[N.T., 3/12/21, at 11 (testimony of Attorney Rymsza).] 

Furthermore, Dr. Dysart “didn't have any specific literature

[related to the present identifications] . . . she couldn’t offer any

opinion about identification of vehicles, for instance.” [Id. at 14.]

Dr. Dysart could not “say that any particular factor influenced 

[Bensacon] . . . [s]o I think it had some limited value.” [Id. at 

17-18.] Additionally, Dr. Dysart’s testimony would not have 

helped to discredit [] Goosay’s identification of the [Appellant], as 

[] Weakley stated that he and the [Appellant] robbed [] Goosay’s 

home. [N.T. (Trial), at 1189.]

PCRA Court Opinion, 8/26/21, at 27-28.

The PCRA court’s analysis is supported by the record. Trial counsel 

effectively cross-examined Bensacon and Goosay, eliciting helpful testimony 

casting doubt on their identification of Appellant, which obviated the need to 

call Dr. Dysart to opine generally regarding eyewitness identification issues. 
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Williams, 141 A.3d at 464; K.M., 680 A.2d at 1172. Appellant presents no 

argument to this Court as to how Dr. Dysart’s analysis would have benefited 

his case more than the cross-examination by trial counsel. 

Greg Pockevich

Appellant argues that trial counsel was ineffective for failing to call Greg 

Pockevich as a witness, who “would have testified that he heard Weakley [tell 

Patrick] Russin in December 2002 that Weakley could have put [Appellant] 

away for a long time if he just [told] police to look near the well.” Appellant’s 

Brief, at 25; see also PCRA Exhibit D-7, at 3-5; PCRA Exhibit D-8, at 3. 

Appellant asserts that trial counsel should have called Pockevich “to keep 

hammering Weakley’s involvement and showing he was setting Appellant up.” 

Appellant’s Brief, at 25. 

This claim fails because Pockevich’s testimony as to Weakley’s 

statement to Russin is hearsay and Appellant has not explained what hearsay 

exception would have allowed its admission. Moreover, as the PCRA court 

stated in its opinion, this claim lacks merit where it does not challenge 

Weakley’s account of his involvement in the murders or burial of the bodies. 

PCRA Court Opinion, 8/26/21, at 29. The lower court further explained that, 

to the extent Pockevich would have portrayed Weakley in a negative light, his 

testimony “would have been repetitive of previous evidence” as trial counsel 

did not need to “call [] an endless number of witnesses to discredit [] Weakley 

and show his involvement in the murders.” Id. Appellant is entitled to no 

relief on this claim. 
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Trooper Gerald Sachney

Appellant argues that trial counsel was ineffective for failing to call 

Trooper Gerald Sachney, who investigated the Goosay robbery, to testify as 

to the following information he learned during his investigation: (1) a witness 

saw an Oldsmobile or Buick pulling away from Goosay’s house, rather than a 

white Honda; (2) blood found at Goosay’s house matched Weakley, not 

Appellant; (3) a hair on a glove in Weakley’s car did not match Weakley, 

Appellant, or Goosay; (4) certain unspecified DNA did not match Weakley, 

Appellant, or Goosay; (5) Weakley sold jewelry from the Goosay robbery along 

with coins presumably stolen in another robbery; (6) there two other named 

suspects in the robbery; and (7) Weakley admitted to smoking a cigarette 

with Goosay. Appellant contends that Trooper Sachney’s testimony “would 

have challenged Goosay’s credibility and Appellant’s involvement in the 

murders.” Appellant’s Brief, at 26. 

Appellant did not prove his entitlement to relief on this claim as he did 

not call Trooper Sachney to testify at the PCRA hearing and he submitted no 

evidence showing that Troper Sachney uncovered the information described 

above during his investigation of the Goosay robbery and would have testified

to that effect during the instant trial. See 42 Pa.C.S. § 9543(a); Bretz, 830 

A.2d at 1276. Furthermore, we fail to discern any prejudice to Appellant from 

not calling Trooper Sachney when Appellant specifically directed his counsel 

not to examine Goosay regarding the facts of the robbery because his direct 
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appeal in that case remained pending, see supra, an instruction that he 

presumably would have carried over to Trooper Sachney’s testimony as well. 

Dave Kelly

Appellant claims that trial counsel was ineffective for not calling Dave 

Kelly, who was incarcerated with Patrick Russin at a state correctional 

institution and who “could testify that Russin admitted to getting off just by 

putting [Appellant] away and that Russin got special privileges” in prison. 

Appellant’s Brief, at 26. Appellant avers that this testimony “would call into 

question Russin’s testimony and his motive for implicating Appellant.” Id. 

Appellant has failed to prove his entitlement to relief on this claim when 

he did not present Kelly at the PCRA hearing or submit any evidence that 

would show that Kelly would testify as described above. See 42 Pa.C.S. § 

9543(a); Bretz, 830 A.2d at 1276. Further, when asked if he recalled the 

substance of Kelly’s testimony, Attorney Brown only responded that he was 

“[v]aguely” aware of Kelly’s name and that “a number of inmates” had “made 

statements like that.” N.T., 3/12/21, at 80. 

Even assuming Appellant proved that Kelly would have testified to

Russin’s admissions and his special privileges in prison and that such 

testimony would be found admissible through a hearsay exception, we agree 

with the PCRA court that no prejudice is evident from the exclusion of Kelly’s 

testimony. PCRA Court Opinion, 8/26/21, at 30-31. Russin’s statement that 

he was “getting off just by putting [Appellant] away,” Appellant’s Brief, at 26, 

was truthful and did not serve to discredit him where he entered into a plea 
J-S23033-22

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agreement with the Commonwealth whereby he was convicted of third-degree 

murder in the “Rudy Redman” killings and received a sentence of 10-to-20 

years’ imprisonment in exchange for his testimony in the present case. N.T. 

(Trial), at 2066-72; PCRA Court Opinion, 8/26/21, at 30. Furthermore, 

Appellant testified extensively to this benefit at trial, N.T. (Trial), at 2066-72, 

2111-15, and it is unclear how testimony to other, unspecified “special 

privileges” that Russin received would have had any greater effect on the 

jury’s consideration of his testimony. PCRA Court Opinion, 8/26/21, at 30-

31; Appellant’s Brief, at 26. 

Roger Brown

Appellant contends that trial counsel was ineffective for failing to call 

Roger Brown, Kerkowski’s bail bondsman, who would have testified that 

Kerkowski’s father paid off his son’s bond when his son did not appear for 

sentencing. See PCRA Exhibit D-12 (Brown’s statement to police). Appellant 

argues that this testimony “would show that the Kerkowski parents knew of 

their son’s illegal activities, and believed that his disappearance was not 

surprising, and that they did not want people out there looking for Kerkowski.” 

Appellant’s Brief, at 26. 

The absence of Brown’s testimony was not so prejudicial as to have 

denied Appellant a fair trial. As the PCRA court explained, Brown’s testimony 

was immaterial to Appellant’s convictions as it only related to events after the 

robbery and murders and had no bearing on Appellant’s culpability to his

crimes. PCRA Court Opinion, 8/26/21, at 31. Furthermore, there is reason to 
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believe that such testimony would have actually damaged Appellant’s case 

when it would have drawn more sympathy to Kerkowski’s aged mother, the 

only member of the family to testify at trial. Id.; see also N.T., 3/12/21, at 

34-35, 64-66. 

Rose Manfre

Appellant argues that his representation at trial was deficient based 

upon the failure of trial counsel to present Rose Manfre, Kerkowski’s neighbor, 

as a witness to testify that there was no cellular phone coverage in the vicinity 

of her and Kerkowski’s homes at the time of the murders. Appellant asserts

that this testimony would call into question how Appellant could have 

telephoned for a ride and left Kerkowski’s house before Weakley if he never 

used Kerkowski’s home phone. Appellant contends that calling Manfre would 

also have cast doubt on Bensacon’s testimony that she saw Appellant driving 

away from Kerkowski’s house in a brown vehicle. 

Appellant did not call Manfre as a witness at the PCRA hearing or present 

any evidence to demonstrate how Manfre would testify regarding cell service; 

therefore, Appellant has not proved his entitlement to relief on this claim. See 

42 Pa.C.S. § 9543(a); Bretz, 830 A.2d at 1276. Furthermore, we agree with 

the PCRA court that Manfre’s testimony would be of limited value and 

therefore would not have called into question whether Appellant received a 

fair trial. PCRA Court Opinion, 8/26/21, at 33. Manfre was a lay witness who 

could not offer testimony as to the range of all cellular service providers in the 

vicinity of her home in May 2002; further, there was no indication that she 
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shared the same provider as Appellant. Id. Moreover, even if there was no 

service, this would not rule out that Appellant was picked up from Kerkowski’s 

house as he could have used a landline or arranged for a ride in advance. Id.

Timeline of Events on Date of Murder

Appellant next argues that trial counsel was ineffective for not doing 

more to challenge the “very specific timeline” of events on May 3, 2002, the 

date of the murders. Appellant’s Brief, at 27. Appellant contends that “[h]ad 

counsel pointed out these impossibilities properly, the jury would [have] 

call[ed] into question the credibility of various Commonwealth witnesses, 

which likely would have resulted in a different result at trial.” Id. at 28.

Appellant points to three sets of inconsistencies. First, Appellant insists 

that the Commonwealth’s timeline from the point of Appellant and Weakley’s 

arrival at the Kerkowski house to the time when the robbery began “does not 

make sense.” Id. at 29. Appellant cites Weakley’s testimony that he arrived 

with Appellant at approximately 2:00 p.m. and that the two men drank beer 

and talked with Kerkowski and Fassett for over an hour; yet Weakley also 

stated that Kerkowski needed to leave at 3:00 p.m. to pick up his children at 

daycare by 4:00 p.m. and “there [was] no issue that Kerkowski was ever late 

in leaving or having to get ready to leave.” Id.; N.T. (Trial), at 1067-77, 

1080. Appellant also points to Bensacon’s testimony that she saw Kerkowski 

mowing his lawn between 2:00 and 4:00 p.m.—which means that Appellant 

and Weakley would have had to have arrived well after 2:00 p.m.—and 

Kerkowski’s mother’s testimony that she had a 15-minute telephone 
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conversation with Fassett while Appellant and Weakley were present that took 

place between 2:30 p.m. and 4:00 p.m. N.T. (Trial), at 354-55, 359, 1390. 

Appellant also argues that “[t]here is no possible way that the timeline 

immediately after the murders could be accurate.” Appellant’s Brief, at 29. 

He notes Weakley’s testimony that he left Appellant behind to finish cleaning 

up and drove away from Kerkowski’s house with the two bodies, arriving at 

the Luzerne home he shared with Appellant at approximately 7:00 p.m. N.T. 

(Trial), at 1132. Appellant contends that this timeline does not accord with 

Bensacon’s testimony that she saw Appellant drive by at approximately 5:00 

p.m. Id. at 1405. 

Lastly, Appellant argues that the timeline later on the evening of the 

murders “was similarly impossible.” Appellant’s Brief, at 29. Appellant 

references Kerkowski’s parents’ testimony that they returned home from 

dinner on May 3, 2002, at approximately 10:00 to 11:00 p.m., to discover 

that their son had not picked up his children from daycare and they then drove 

to Kerkowski’s house. N.T. (Trial), at 357, 1615. However, Bensacon stated

that she began taking notes after speaking with Kerkowski’s father and that 

the journal Bensacon kept tracking the events related to Kerkowski’s 

disappearance shows her first entry at 9:36 p.m., which preceded the time 

that the Kerkowski parents had even arrived home from dinner. Id. at 1445. 

The PCRA court concluded that Appellant was not prejudiced by trial 

counsel’s decision not to probe further at trial into the timeline on the date of 

the murders. The court explained that the timeline “was derived years after 
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the murders” and “is only an approximation.” PCRA Court Opinion, 8/26/21, 

at 34. “It is possible that the time estimations given by witnesses were off, 

however, they were not so far off as to make the murders impossible or would 

have changed the outcome of the proceeding.” Id. The court noted that

Appellant’s timeline issue concerning the events before the murder was based 

upon Kerkowski having to leave at 3:00 p.m. to go to the daycare, but this 

argument ignores that 3:00 p.m. was not a deadline for the murders to have 

been completed by as Kerkowski never in fact left his home due to Appellant 

and Weakley’s acts. Id. The court further found that Appellant had not 

demonstrated that his departure from Kerkowski’s house at 5:00 p.m., 

according to Bensacon, and Weakley’s arrival in Luzerne by 7:00 p.m. were 

inconsistent or unfeasible. Id. at 35. Finally, the PCRA court concluded, with 

respect to the inconsistency between Kerkowski’s parents’ arrival home from 

dinner at 10:00 p.m. and Bensacon’s first journal entry at 9:36 p.m., that the

discrepancy of when the phone call took place [between 

Bensacon] and Mr. and Mrs. Kerkowski was not so prejudicial as 

to warrant a new trial. Pointing out a twenty-four minute time 

difference between when a phone call took place, hours after the

murder, would [not] have discredited three witnesses so much as 

to have changed the jury’s mind as to not convict [Appellant], 

especially with the overwhelming amount of evidence presented 

by the Commonwealth.

Id. at 35-36.

We agree with the PCRA court’s analysis. We emphasize, as the PCRA 

court did, that the trial took place 13 years after murders and that the bodies 

were not discovered for more than a year after the murders took place; thus,
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the witnesses were not required to rigorously record the victims’ and their own 

movements as more likely would have occurred if the case had been a 

homicide investigation from the outset. The witnesses’ trial testimony was 

accordingly set forth as ranges of time or explicitly as an approximation of 

when the events occurred. See, e.g., N.T. (Trial), at 1405 (Bensacon stating 

that she saw Appellant drive away “[b]efore dinner, about 5:00-ish, 

something like that”); id. at 432-33 (trial counsel asking Mrs. Kerkowski 

whether conversation with Fassett occurred closer to 4:00 than 2:30 p.m. and 

Mrs. Kerkowski responding that she “really can’t say” when it occurred exactly, 

but it was in the afternoon before the two needed to leave to pick up 

Kerkowski’s children from daycare). Furthermore, as the PCRA court 

explained, the timeline of the events on May 3, 2002 appeared to be feasible

with minor discrepancies that the jury could easily understand based upon the 

passage of time and the fact that no one was contemporaneously tracking 

their movements in detail on the day in question. Appellant also failed to 

present any evidence at the PCRA hearing to back up his assertion that the 

timeline was actually impossible, such as the distance between Kerkowski’s 

house and his daycare or the Luzerne house at which Appellant and Weakley 

resided or records of the exact time of telephone calls made on the date in 

question. Accordingly, and in light of the copious evidence presented at trial 

against Appellant, we conclude that he is not entitled to relief on this PCRA 

claim. 
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DNA Evidence

Appellant next argues that trial counsel was ineffective in the handling 

of DNA evidence found in Goosay’s house and in Weakley’s trunk that showed 

the presence of another individual who may have been involved in the Goosay 

robbery. Appellant’s ineffectiveness claim is two-fold; first, he contends that 

counsel should not have stipulated to this evidence, N.T. (Trial), at 2680-82, 

and instead should have presented a forensic scientist to testify to that effect. 

Second, Appellant argues that trial counsel should have investigated the DNA 

test results further to demonstrate “a different accomplice to Weakley for both 

the Goosay robbery and the murder[s]” of Kerkowski and Fassett. Appellant’s 

Brief, at 30.

As Appellant concedes, his trial counsel did in fact present the evidence 

showing that there was DNA on objects found at Goosay’s residence and in 

Weakley’s car matching an additional individual through a stipulation entered 

into between the defense and Commonwealth. N.T. (Trial), at 2680-82. 

Additionally, the trial court instructed the jury that they were to treat the 

stipulation as a proven fact. Id. at 108-09, 2683. Appellant has done nothing 

to demonstrate that the choice to present this evidence through a stipulation 

rather than a live witness was anything more than a reasonable strategic 

choice by counsel. See Commonwealth v. Thuy, 623 A.2d 327, 334 (Pa. 

Super. 1993) (counsel was not constitutionally ineffective for presenting 

character evidence through stipulation rather than witnesses when trial court 

properly instructed the jury to consider stipulation as evidence; “Whether to 
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use live witnesses or place before the jury appellant’s good character by 

stipulation is nothing more than a strategic decision.”). Appellant has also not 

shown prejudice from trial counsel’s apparent failure to investigate the identity 

of the individual whose DNA was recovered. To the extent another individual 

was involved in the Goosay robbery that is of little consequence to the present 

case, and any suggestion that this individual was also involved in the 

Kerkowski and Fassett murders, which occurred nine months prior to the 

Goosay robbery, is based upon nothing more than tenuous speculation. 

Appellant’s PCRA claim based upon trial counsel’s alleged mishandling of the 

DNA evidence thus fails. 

Cell Phone Records

In his final PCRA claim, Appellant contends that trial counsel was 

ineffective for not “using [Appellant’s] cell phone records at trial,” which he 

alleges would have “showed multiple calls being made at the same time 

Weakley claimed that he and Appellant were beating, killing[,] and torturing 

the victims.” Appellant’s Brief, at 31. Appellant asserts that “[i]t would have 

made no sense for [] Appellant to be making calls during this time period.” 

Id.

Appellant did not submit any evidence concerning his cell phone records 

or elicit any testimony concerning the use of these records at the PCRA 

hearing, nor has he presented any substantive argument concerning the 

manner in which his cell phone records would contradict the other evidence 

set forth at trial or how the absence of these records prejudiced him. 
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Therefore, Appellant did not prove this claim as mandated by the PCRA. See 

42 Pa.C.S. § 9543(a); Bretz, 830 A.2d at 1276. Moreover, we agree with the 

PCRA court that this argument directly contradicts his other claims concerning 

the absence of cell phone service at the Kerkowski house and further that 

evidence of Appellant making phone calls before or after the murders took 

place does not negate his involvement in the murders. See PCRA Court 

Opinion, 8/26/21, at 37. Appellant is not entitled to relief on his final PCRA

claim. 

Conclusion

Based upon our thorough review of Appellant’s PCRA petition, the trial 

and PCRA records, the PCRA court’s opinion, and the parties’ appellate briefs, 

we conclude that each of Appellant’s PCRA claims fails for the reasons outlined 

above. We therefore affirm the PCRA court’s August 26, 2021 order denying 

Appellant’s PCRA petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/08/2023