J-S01019-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

TIMOTHY JAMES BRUNNER

Appellant No. 663 WDA 2014

Appeal from the PCRA Order February 19, 2014

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0013465-2009

BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.: FILED JANUARY 30, 2015

Timothy Brunner (“Appellant”) appeals from the order dismissing his 

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

affirm.

The trial court opinion sets forth the relevant facts and procedural 

history of the case. See PCRA Court Pa.R.A.P. 1925(a) Opinion, September 

12, 2014 (“1925(a) Opinion”), pp. 1-8. Therefore, we have no need to 

restate them.

Appellant raises one issue for our review:

I. Did the lower court abuse its discretion in dismissing the 

PCRA petition without a hearing and allowing counsel leave to 

withdraw, insofar as [Appellant] averred that his waiver of his 

____________________________________________

1 42 Pa.C.S. §§ 9541-9546.
J-S01019-15

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right to call character witnesses was involuntary and unknowing 

because trial counsel was ineffective for failing to contact, 

interview and prepare the character witnesses that [Appellant] 

identified to counsel as being willing to testify on his behalf?

Appellant’s Brief, p. 4 (all capitals removed).

In reviewing an order denying PCRA relief, our well-settled standard of 

review is “to determine whether the determination of the PCRA court is 

supported by the evidence of record and is free of legal error. The PCRA 

court’s findings will not be disturbed unless there is no support for the 

findings in the certified record.” Commonwealth v. Barndt, 74 A.3d 185, 

191-192 (Pa.Super.2013) (internal quotations and citations omitted).

After a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinion of the Honorable Edward J. 

Borkowski, we conclude Appellant’s issue merits no relief. The PCRA court 

opinion discusses and properly disposes of the question presented. See

1925(a) Opinion, pp. 8-13 (finding: trial counsel not ineffective for failing to 

call character witnesses where Appellant failed to illustrate prejudice – the 

alleged witnesses’ testimony would not have negated the substantial 

evidence of Appellant’s guilt; the trial court conducted a thorough oral 

colloquy with Appellant regarding his right to testify and call character 

witnesses during which Appellant acknowledged that he understood his right 

to call character witnesses, discussed the right with his attorney, and that he 

understood that the decision whether to call character witnesses was his 

alone before knowingly, voluntarily, and intelligently waiving his right to call 
J-S01019-15

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character witnesses). Accordingly, we affirm on the basis of the PCRA 

court’s opinion.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/30/2015
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FILED 

IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA 

COMMONWEALTH OF 

PENNSYLVANIA, 

APPELLEE 

v. 

TIMOTHY BRUNNER, 

APPELLANT 

CRIMINAL DIVISION 

CC 200913465 

663 WDA 2014 

OPINION 

FILED BY: 

THE HONORABLE 

'EDWARDJ. BORKOWSKI 

COPIES TO: 

Suzanne Swan, Esq. 

428 Forbes A v.enue 

Suite 1710 Lawyers Building 

Pittsburgh,PA 15219 

Michael W.Streily, Esq. 

Office ·of .the District Attorney 

'. . . .. ,., . 401.County'Courthouse. ..- -~ ". .. . 

436 Grant Street 

Pittsburgh, PA 15219 

• '.' ", -'.~. ,.., . ":' <",' ,:., ,< '-', ,< ,", 

APP.ENDIXA . 
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iN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA 

COMMONWEALTH OF 

PENNSYLVANIA, 

APPELLEE 

v. 

TIMOTHY BRUNNER, 

APPELLANT. 

BORKOWSKI, 1. 

CRIMINAL DIVISION 

CC 200913465 

OPINION 

PROCEDURAL HISTORY 

Appellant, Timothy Brunner, was charged by criminal information (CC 

200913465) with one count of criminal homicide, 1 one count of kidnapping,2 one 

count of abuse of corpse,3 and one count of criminal conspiracy4 

Appellant proceeded to a jury trial on April 4, 2010, with codefendant 

Kristopher Benjamin, at the conclusion of which Appellant was found guilty of 

second degree murder, kidnapping, abuse of corpse, and criminal conspiracy . . ..... : .. 

118 Pa.C.S. § 2502. 

2 18 Pa. CoS. § 2901. 

!l ' ," . ' 18 Pa, c.s. § 35lO. ' 

4 18 Pa.CoS. § 903. 

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) On July 7, 2010, Appellant was sentenced by the Trial Court as follows: 

Count one: second degree murder -life imprisonment without the possibility 

of parole; 

Count two: kidnapping - four to eight years incarceration to be served 

consecutive to the period of incarceration imposed at count one; 

Count three: .abuse of corpse - one to two years incarceration to be served 

consecutive to the period of incarceration imposed at count two; 

Count four: criminal conspiracy - four to eight years incarceration to be 

served consecutive to the period of incarceration imposed at count three. 

Appellant filed a post sentence motion on July 13, 2010, which was denied 

by the Trial Court on August 20, 2010. Appellant filed a timely notice of appeal on 

September l7, 2010. 

On January 18, 2013, the Superior Court vacated Appellant's judgment of 

.sentence and remanded to the Trial Court for resentencing as counts one and two 

merged. Appellant filed a Petition for Allowance of Appeal to the Supreme Court 

on February IS, 2013, which was denied on July 17, 2013. On September 5,2013, 

Appellant was resentenced by the Trial Court as follows: 

Count one: second degree murder - life imprisonment without the possibility ., .. , ,. 

of parole; 

Count two: kidnapping - merged with count one; 

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Count three: abuse of corpse - one to two years incarceration to be served 

consecutive to the period of incarceration imposed at count one; 

Count four: criminal conspiracy - four to eight years incarceration to be 

served consecutive to the period of incarceration imposed at count three. 

On October 25, 2013, Appellant filed a pro se PCRA petition. The Trial 

Court .appointed counsel on October 29, 2013, and appointed counsel filed a 

motion to withdraw pursuant to Turner-Finely on January 28, 2014. On January 

30,2014, the Trial Court granted counsel's motion to withdraw and filed its notice 

of intent to dismiss for the reasons stated in counsel's Turner-Finley letter. On 

February 19,2014, the Trial Court denied Appellant's PCRA petition. 

This timely appeal follows. 

STA TEMENT OF ERRORS ON APPEAL 

Appellant raises the following issues on appeal, and they are set forth 

exactly.as Appellant framed them: 

A. The lower court abused its discretion in finding no merit to the 

claims raised in the PCRA petition, and denying the petition 

alleging trial counsel's ineffectiveness without a hearing, where 

the witnesses Mr. Brunner sought to present at his trial, but whom 

counsel failed to contact, interview and call to the stand, would 

have given testimony that would have raised a reasonable doubt as 

to Mr. Brunner's culpability, particularly as to the degree of 

'" homicide charged. 

B. The lower court abused its discretion in finding no merit to the 

claims raised in the PCRA petition, and denying the petition 

,alleging trial counsel's ineffectiveness without ahearing, insofar as 

Mr. Brunner claimed in his petition that his waiver of his right to 

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call character witnesses was involuntary and unintelligent because 

counsel failed to contact, interview and prepare the character 

witnesses Mr. Brunner identified to counsel as being willing to 

testify on his behalf. 

FINDINGS OF FACT 

The facts of the case have previously been summarized as follows: 

In the early summer of 2009 Amy Kucsmas (victim) was 

actively involved in daily drug seeking behavior in the Mt. Oliver and 

Carrick section of Allegheny County. (TT 206-208, 223, 245-246)5 

In late June or early July Kucsmas spent several days in the apartment 

of Timothy Brunner. (T.T 283, 384-385, 738, 813-816) Brunner's 

residence was apartment number two (2) of a four (4) unit building 

located in Mt. Oliver, and at that time he was residing there with his 

girlfriend, Ceira Brown. (T.T. 280-281) Kristopher Benjamin was a 

friend and former co-worker of Brunner and lived in that same 

apartment building - apartment number four (4), which was located 

above Brunner's apartment. (TT. 281-282,679, 774-775, 809) 

Shortly after Kucsmas began staying at Brunner's apartment she 

"disappeared", taking approximately $200 of Brunner's money as 

well as his photo identification card (ID). (TT 282, 385-386,818) 

In the evening ofJuly 11,2009 Brunner, Benjamin and Brown 

went to the Hazelwood section of the City of Pittsburgh. In the early 

morning hours of July 12th they were returning to their Mt. Oliver 

apartment building when Benjamin saw Kucsmas walking along 

Brownsville Road in the Carrick section of the city. (T T 287, 342) 

They were traveling in a pick-up truck driven by Benjamin that 

belonged to a neighbor James House. (T.T. 285) Upon observing 

Kucsmas, Benjamin stated, "Fucking Amy", and pulled the truck 

over. (T.T. 287,343) Brunner and Benjamin got out of the truck and 

both men angrily confronted Kucsmas about the stolen money and ID. 

Kucsmas denied taking the money and eventually became so 

frightened during the confrontation that she urinated on herself. (TT 

209-216, 287-292, 387) Brunner took Kucsmas' ,purse and searched 

'5 The designation "T.T" followed by numerals refers to Trial Transcript of April 4-14, 2010, 

which 'is comprised of two (2) volumes. 

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through it until he found the ID that had been stolen. (T.T. 213, 290, 

347,387-388) 

Once Brunner discovered his ID, he and Benjamin told 

Kucsmas that she was going with them, and they began pulling her 

toward the truck. (T.T. 214) Kucsmas initially resisted, but Brunner 

assured her that everything would be okay and that she should come 

home with them; Kucsmas ceased her resistant andgot into the truck, 

followed by Brunner and Benjamin. (T.T. 214, 291) 

Benjamin drove to an isolated and hilly area of a nearby park 

where Kucsmas was ordered out of the truck. (T.T. 294, 394) Brunner 

and Benjamin again angrily confronted Kucsmas about the money and 

repayment, threatening to throw her over the hill. (T.T. 295-296, 397-

401) Kucsmas was scared and crying, assuring the men that she would 

pay the money back. (T.T. 296-297) Kucsmas was ordered back into 

the truck whereupon they drove back to their apartment building. 

(T.T.298-299) 

Once there Brown was ordered by Brunner to take Kucsmas by 

the hand to prevent her from fleeing, and Kucsmas was escorted to 

Brunner's apartment by Brunner, Benjamin, and Brown. (T.T. 301) 

Once in the living room, Benjamin behan yelling at Kucsmas about 

the money and made her take off her clothes whereupon he retrieved 

$60 from her "private area", which in tum was given to Brunner. (T.T. 

413, 425-427) Brunner, now armed with a handgun, and Benjamin 

begin to beat and yell at Kucsmas. (T.T. 304,415, 845-849) During 

this time Brunner cocked the weapon and fired a shot into the floor of 

the apartment. (T.T. 304, 415) Brown retreated to her bedroom, but 

heard Brunner and Benjamin continue the beating, as well as Kucsmas 

pleading with the two men to stop. (T.T. 306, 845-848) 

Eventually the beating stopped and Kucsmas was ordered to go 

to the bathroom and shower. (T.T. 307, 849) While Kucsmas was in 

the bathroom Brunner and Benjamin had a discussion regarding the 

serious nature of the injuries they had inflicted on her, and they came 

to an agreement that she could not leave the apartment because of 

that. (T. T. 310, 418, 852) 

When Kucsmas finished showering Brown witnessed Brunner 

go into the bathroom and help Kucsmas out of the shower. (T. T. 311) 

As Kucsmas began to walk out of the bathroom Brown saw Brunner 

put his .arm around her neck from behind, and Benjamin approach her 

from the front. (IT. 311., .327, 855) Brown thenput her head under 

the covers of her bed, but she heard Kucsmas struggling and gasping 

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for air. (T. T. 311) Kucsmas was punched in the head, which knocked 

her to the bathroom floor. As she lay there her chest was stomped on, 

and bloody foam oozed out of her mouth and nose. (TT. 855) When 

the struggling and gasping stopped, Brown heard Brunner remark to 

Benjamin, "she fought hard". (T.T. 311, 368) Brown took her head 

out from under the covers and saw Kucsmas laying motionless on the 

bathroom floor with Brunner and Benjamin standing around her (T.T. 

312) Brunner and Benjamin picked Kucsmas up and laid her on the 

floor in front of Brown's bed. (TT 313) Brown was ordered to go 

outside and make certain that no one was .around. (T.T. 313) 

Brunner went.to the basement of the building and returned with 

a roll of carpet. (TT 558-560, 857-862) Brunner and Benjamin rolled 

Kucsmas' body in the carpet and placed her in the back of the pick-up 

. truck. (T.T. 865-868) At Benjamin's suggestion they then drove to 

Hunter Park in Wilkinsburg Borough Where the body was left in a 

weeded/wooded area. (T.T. 868) Benjamin was familiar with this area 

because he grew up nearby. 

When Brunner returned to his apartment he awakened Brown 

and told her that .they had left Kucsmas behind a dumpster, and he 

planned to go back and bum the body. (T.T. 317, 319) Brown was 

instructed to clean up some blood spots on the living room carpet, as 

well as some pieces of cut carpet that Kucsmas' body had been 

wrapped in. (T.T 317-318,419-420) Brunner instructed Brown that if 

she were ever questioned by the police, that she was to acknowledge 

the confrontation with Kucsmas on the street and the return with her 

to the apartment building, but to inform the police that upon their 

return they went their separate ways and Kucsmas never went into 

Brunner's apartment. (T T. 324) 

On July 23, 2009 a tree cutting crew was dumping wood chips 

at Hunter Park, when they discovered the carpet and partially 

decomposed body of Amy Kucsmas dumped by Brunner and 

Benjamin eleven (II) days earlier. CTT. 71-73, 89, 96) 

The medical examiner was not able to determine the exact 

cause of death due to the advanced stage of decomposition, however 

there were multiple areas of blunt force trauma to the body including 

broken ribs and head trauma. (T.T. 140-142) Given all the 

circumstances presented, including the trauma to the body and where 

and how the body was found, the pathologist concluded that the 

manner·of death was homicide. (T.T. 141-146, 167) 

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Superior Court Memorandum Opinion, January 18, 20l3, pp. 1-4, quoting Trial 

Court Opinion, 1120112, at 3-8. 

DISCUSSION 

An appellate court's role in reviewing PCRA appeals is "limited to 

determining whether the findings of the PCRA court are supported by the record 

and free from legal error." Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 

2009). The scope of review is .limited to the PCRA court's findings and the 

evidence of record, which are to be viewed in the light most favorable to the 

Commonwealth. Commonwealth v. Koehler, 36 A.3d 121, l31 (Pa. 2012). A denial 

will not be disturbed unless it is found that the certified record does not support the 

PCRA court's findings. Commonwealth v. Gandy, 38 A.3d 899, 902 Pa. Super. 

2012). The law surrounding dismissing a PCRA Petition without a hearing has 

been stated thusly: 

The PCRA court has discretion to dismiss a petition without a 

hearing when the court is satisfied that there are no genuine 

issues concerning any material fact, the defendant is not entitled 

to post-conviction collateral relief, and no legitimate purpose 

would be served by further proceedings. To obtain reversal of a 

PCRA court's decision to dismiss a petition without a hearing, 

an appellant must show that he raised a genuine issue of fact 

which, if resolved in his favor, would have entitled him to 

relief, or that the court otherwise abused its discretion in 

denying a hearing. We stress that an evidentiary hearing is not 

meant to function as a fishing expedition for any possible 

evidence that may support some speculative claim of 

ineffecti venes s. 

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Commonwealth v. Roney, 79 A.3d 595, 604-605 (Pa. 2013) (citations and 

quotations omitted). 

1. 

Appellant first claims that the PCRA Court erred in denying his claim of 

ineffective assistance of counsel for failing to call character witnesses based on the 

argument that their testimony would have raised a reasonable doubt as to 

culpability and the degree of homicide charged. This claim is without merit. 

The standard of review for ineffective assistance of counsel claims is well 

settled: 

In evaluating claims of ineffective assistance of counsel, we 

presume that counsel is effective. To overcome the presumption 

of effectiveness, Appellant must establish three factors: first 

that the underlying claim has arguable merit; second, that 

counsel had no reasonable basis for his action or inaction; and 

third, that Appellant was prejudiced. Counsel's assistance is 

deemed constitutionally effective once this Court determines 

that the defendant has not established anyone of the prongs of 

the ineffecti veness test. 

Commonwealth v. Rolan, 964 A.2d 398, 406 (Pa. Super. 2008) (citations and 

quotations omitted).. When the claim of ineffective assistance of counsel is based 

on the failure to call a potential witness, petitioner must establish that: "(1) the 

witness existed; (2) the witness was available to testify for the defense; (3) counsel 

knew of, Or should have known of, the existence of the witness; (4) the witness was 

willing to testify for the defense; and (5) the absence of .the testimony of the 

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witness was so prejudicial as to have denied the defendant a fair trial." 

Commonwealth v. Sneed, 45 A.3d 1096, 1108-1109 (Pa. 2012). Accordingly, 

"counsel will not be found ineffective for failing to call a witness unless the 

petitioner can show that the witness's testimony would have been helpful to the 

defense." Sneed, 45 A.3d at 1109. 

Here, the jury heard substantial evidence connecting Appellant to the 

kidnapping and murder of Amy Kucsmas, as well as the subsequent attempted 

cover-up. This evidence included the testimony of Appellant and Appellant's 

girlfriend. While Appellant had several witnesses available to testify to his own 

good character and the bad character of his co-defendant, none of these witnesses 

would have negated the substantial evidence implicating Appellant. Appellant 

failed to show that the witnesses would have been helpful to the defense given the 

substantial amount of evidence against Appellant and the heinous nature of the 

cnmes. 

Upon reviewing the record, the PCRA Court found that there were no 

genuine issues of material fact, that Petitioner was not entitled to post-conviction 

relief as he had failed to establish prejudice, and no legitimate purpose would be 

served by a further proceeding. The PCRA Court properly dismissed Appellant's 

PCRA claim without a hearing. See Commonwealth v. Pire/a, 726 A.2d 1026, 1035 

{Pa. 1999) (defendant failed to establish prejudice for counsel's failure to call 

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character witnesses during the sentencing hearing, and evidence of a troubled past 

might be perceived as an attempt to trivialize the gravity of the crime). 

Appellant's claim is without merit. 

II. 

Appellant alleges in his second claim that the PCRA Court erred in denying 

his claim of ineffective assistance of counsel based on the argument that 

Appellant's waiver of his right to call character witnesses was involuntary and 

unintelligent. This claim is without merit. 

Defendants have the right to call character witnesses in their defense at trial, 

but may choose to waive that right as follows: 

Where the defendant chooses not to call character witnesses, the 

trial judge shall ascertain from the defendant whether this is a 

knowing, voluntary and intelligent waiver. A waiver colloquy, 

on the record, should be conducted by defense counsel, but may 

be supplemented by the Court andlor the Attorney for the 

Commonwealth. In a jury trial, the colloquy shall be held 

outside the presence of the jury before the defense rests its case. 

All. C. R. Crill. P. 602.2. Appellant's claim that he involuntarily waived his right 

to call character witnesses, couched in an ineffective assistance of counsel claim, is 

examined as follows: 

When a presumptively-valid waiver is collaterally attacked 

under the guise of ineffectiveness of counsel, it must be 

analyzed like any other ineffectiveness claim. Such an inquiry 

is not resolved by the mere absence of an oral waiver colloquy; 

instead, the analysis must focus on the totality of relevant 

circumstances. Those circumstances include the defendant's 

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knowledge of and experience with jury trials, his explicit 

written waiver (if any), and the content of relevant off-therecord discussions counsel had with his client. 

Commonwealth v. Birdsong, 24 A.3d 319, 339 (Pa. 2011) (in the context of a jury 

waiver colloquy claim). In order to prevail, Appellant must demonstrate that: (1) 

he did not understand the right that he was waiving; (2) that counsel caused the 

failure to understand; and, (3) that but for counsel's ineffectiveness, Appellant 

would not have waived that right. Birdsong, 24 A.3d at 340. 

Appellant's claim here is based on the assertion that counsel's ineffective 

assistance of counsel in failing to call character witnesses caused Appellant to 

involuntarily waive his right to call character witnesses. As noted above, counsel 

was nOLineffective for failing to call character witnesses. See supra pp. 9-10. 

Further, Appellant's claim that his waiver was involuntary is belied by the record. 

Following the close of the Commonwealth's case, the Trial Court conducted a 

thorough oral colloquy with Appellant and his co-defendant regarding their rights 

to testify and to call character witnesses. (T.T. 665-671). Appellant acknowledged 

that he understood his right to call character witnesses, that he had discussed if 

with his attorney, and that it was Appellant's decision alone whether to call 

character witnesses. (T. T. 669-670). Thus, Appellant stated under oath that it was 

his decision not to call character witnesses, and that he had not been threatened or 

promised anything in exchange for making that decision. (T.T. 670-671). Trial 

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counsel William Brennan further stated that he believed Appellant was making a 

knowing, intelligent, voluntary, and fully-informed decision to not call character 

witnesses. (T.T. 671). Given the oral colloquy, the demeanor of Appellant, and his 

concurrent decision to testify in his own defense, the Trial Court found that 

Appellant had made a knowing, voluntary, intelligent, and fully informed decision 

not to call character witnesses. The PCRA Court properly denied Appellant'S claim 

that his waiver was involuntary. See Birdsong, 24 A.3d at 341 (defendant failed to 

establish that ineffective assistance of counsel caused him to waive his right to a 

jury based on a bald allegation of prejudice). 

Appellant'S claim is without merit. 

--'eeNCLUSION 

Based upon the foregoing, the judgment of sentence imposed by this Court 

should be affirmed. 

By the Court, 

§ier;4t6~;L/'J.I 7.011 

Date 

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