Kuperschmidt v. Angradi

        IN THE UNITED STATES DISTRICT COURT                          
    FOR THE MIDDLE DISTRICT OF PENNSYLVANIA                          

DIMITRY KUPERSCHMIDT,         :    Civil No. 1:21-cv-00363                
                         :                                           
     Petitioner,         :                                           
                         :                                           
v.                            :    (Magistrate Judge Carlson)             
                         :                                           
JEFF ANGRADI, et al.,         :                                           
                         :                                           
     Respondents.        :                                           


               MEMORANDUM OPINION                                    

I.   Introduction                                                         
The instant petition for writ of habeas corpus filed by the petitioner, Dimitry 
Kuperschmidt,  was  reassigned  to  the  undersigned  on  November  1,  2023.  This 
petition involves a unique set of facts and circumstances arising out of a fraudulent 
voting scheme in a 2014 Board of Directors election at the private community called 
Wild  Acres.  In  May  of  2016,  following  a  jury  trial,  the  petitioner,  Dimitry 
Kuperschmidt, was convicted of 190 counts including forgery, identity theft, and 
criminal conspiracy for conspiring with his co-defendant, Myron Cowher, to cast 
ballots for historically non-voting property owners of the Wild Acres Community in 
order to influence the election results.                                  
Our initial review of this petition revealed that the primary issue raised by the 
parties was that of exhaustion and procedural default. Specifically, it was undisputed 
that, at the state court level, Kuperschmidt had filed a timely petition for post-
conviction relief under the Post-Conviction Relief Act (PCRA), but, because he 

served less than one year in custody, he no longer met the custody requirement of 
the PCRA at the time the trial court considered his petition and thus it was dismissed. 
While the respondents argued this constituted a procedural default, the petitioner’s 

position was that, in circumstances where the habeas petitioner has filed a timely 
petition for relief in federal court and is precluded from seeking state court relief due 
to lack of custody, it has long been held that exhaustion is excused. Since the parties’ 
initial briefing did not reach the merits of Kuperschmidt’s ineffective assistance of 

counsel  claims,  we  ordered  supplemental  briefing  so  we  could  benefit  from  a 
complete review of the record of proceedings.                             
After our independent review of the full record of the state court proceedings, 

and upon consideration of the supplemental briefing by the parties, although we 
agree Kuperschmidt’s inability to meet the PCRA custody requirement alone does 
not bar him from habeas relief, his failure to comply with other state procedural rules 
in filing his PCRA appeal resulted in his claims being procedurally defaulted. 

Moreover, a review of the merits of his claims reveals that he has failed to raise any 
claim  that  rises  to  a  constitutional  violation  warranting  federal  intervention. 
Accordingly, for the reasons set forth below, this petition will be denied. 
II.   Statement of Facts and of the Case                                  
The factual background of the instant petition was summarized by the trial 

court in considering the PCRA petition as follows:                        
Dmitry Kuperschmidt (“Petitioner”) was charged with two hundred      
seventeen (217) counts related to a fraudulent voting scheme in a 2014 
election held by the Wild Acres Community Association. In particular, 
the  fraudulent  acts  involved  filling  out  election  ballots  of  S.O.S. 
property owners in the community. Following trial, the jury returned a 
verdict of guilty on one hundred ninety (190) counts. The Petitioner 
was found not guilty on twenty-seven (27) counts for the offenses of 
Identity Theft, Tampering with Records or Identification, and Forgery. 
The Defendant’s original sentencing took place on September 8, 2016, 
during which he received a total aggregate sentence of not less than 
twelve  (12)  months  not  more  than  twenty-nine  (29)  months  of 
incarceration in a state prison.                                     

(Doc. 41-4, at 1-2).                                                      
Kuperschmidt was tried jointly with his co-conspirator in the election fraud 
scheme,  Myron  Cowher.  At  trial,  the  prosecution  introduced  recordings  of 
wiretapped conversations between the director of operations of Wild Acres, Robert 
DePaolis, who had informed the Pennsylvania State Police that Kuperschmidt’s co-
defendant,  Myron  Cowher,  was  planning  on  forging  ballots  in  the  upcoming 
election, and Cowher and Kuperschmidt. (Doc. 41-1, at 115-19). State Trooper 
Frank Orlando, also testified at length about the investigation. (Id., at 99-208). 
The Pennsylvania Superior Court aptly summarized the procedural history 
following Kuperschmidt’s conviction:                                      
On direct appeal, this Court reversed the conviction for criminal use of 
a  communication  facility,  vacated  the  judgement  of  sentence  and 
remanded  the  matter  for  resentencing.  See  Commonwealth  v.     
Kuperschmidt,  185  A.3d  1093  (Pa.  Super.  2018)  (unpublished    
memorandum), appeal denied, 647 Pa. 313, 189 A.3d 378 (2018). On     
November 1, 2018, the trial court resentenced Appellant and imposed  
the same aggregate sentence of 12 to 29 months’ imprisonment. Once   
again,  Appellant  appealed  and  this  Court  vacated  the  judgment  of 
sentence and remanded for resentencing, holding that the trial court 
imposed an illegal sentence on one count of attempted identity theft, 
where the minimum sentence for that crime exceeded one-half of the   
maximum sentence. See Commonwealth v. Kuperschmidt, 221 A.3d         
312 (Pa.Super. 2019) (unpublished memorandum), appeal denied, ___    
Pa. ___, 234 A.3d 400 (2020). The trial court resentenced Appellant on 
July 17, 2020, maintaining an aggregate sentence of 12 to 29 months’ 
imprisonment.                                                        

(Doc. 41-6, at 2).                                                        

According  to  the  petitioner,  his  period  of  incarceration  and  subsequent 
probation expired on February 28, 2021, less than a year after his final sentence was 
imposed. (Doc. 7, ⁋ 3). The relative brevity of the petitioner’s custodial period 
following the multiple appeals of his sentence and final disposition of his case was 
problematic  in  his  quest  for  post-conviction  relief.  Attempting  to  obviate  any 
question concerning his custody status and habeas corpus jurisdiction, Kuperschmidt 
filed  the  instant  petition  for  writ  of  habeas  corpus  on  February  6,  2021,  and 
subsequently sought a stay and abeyance of these habeas proceedings pursuant to 
Rhines v. Weber, 544 U.S. 269 (2005), to exhaust his remedies in State court before 
pursuing habeas relief in this Court. The respondents did not object to this motion, 
and it was granted on July 6, 2021. (Docs. 7, 8, 14, 18).                 

Meanwhile, Kuperschmidt sought to exhaust his remedies in state court, filing 
a  timely  counseled PCRA petition  on  February  25, 2021.  (Doc.  41-3).  As the 
Pennsylvania Superior Court summarized:                                   

On March 9, 2021, the PCRA court issued notice of its intent to dismiss 
the petition without a hearing per Pa.R.Crim.P. 907. Specifically, the 
court noted that Appellant was not serving a sentence of imprisonment, 
probation, or parole at the time the notice was issued and ineligible for 
PCRA relief. Appellant did not respond to the Rule 907 notice and the 
court dismissed the PCRA petition on March 29, 2021.                 

On April 26, 2021, Appellant timely filed a pro se notice of appeal. On 
the same day, the PCRA court ordered Appellant to file a Pa.R.A.P.   
1925(b) concise statement of errors complained of on appeal. Appellant 
complied on May 14, 2021. Appellant’s counsel filed a motion to      
withdraw on August 2, 2021, which the court granted on September 1,  
2021. On October 12, 2021, Appellant filed a pro se appellate brief with 
this Court.                                                          

(Doc. 41-6, at 2-3).                                                      
The Pennsylvania Superior Court subsequently dismissed Kuperschmidt’s 
appeal of his PCRA petition, citing a series of substantial defects in his brief which 
failed to comply with the court’s procedural rules and precluded meaningful review. 
(Id., at 7-8). Specifically, the Superior Court noted that Kuperschmidt’s brief did not 
identify the specific issues he wished to raise on appeal, lacked a statement of 
jurisdiction, relevant standard and scope of review, and a comprehensible argument 
section. (Id.) The Superior Court also noted in passing in a footnote that “we agree 
with the PCRA court that Appellant is not eligible for PCRA relief where he is no 

longer serving a sentence.” (Id., at 8 n.4). The Pennsylvania Supreme Court denied 
allowance of appeal on June 6, 2022. (Doc. 47, at 3).                     
Following the termination of Kuperschmidt’s state court proceedings, the 

Court lifted the stay and ordered briefing on the instant habeas petition. (Doc. 20). 
The Court then ordered supplemental briefing of the merits of Kuperschmidt’s 
petition on April 5, 2024. (Doc. 36). The petition is now fully briefed and ripe for 
disposition. (Doc. 21, 28, 32, 41, 47). In his petition, Kuperschmidt claims he was 

deprived of effective assistance of counsel at trial in violation of the Sixth and 
Fourteenth Amendments. The factual allegations in his petition relate to the failure 
of trial counsel to object to certain hearsay conversations that were introduced as 

evidence at trial, among other failures. The respondents’ primary argument is that 
Kuperschmidt’s  PCRA  petition  was  procedurally  defaulted,  barring  him  from 
federal habeas review. They also argue that his constitutional claims do not warrant 
habeas relief. For his part, the petitioner argues that he should be excused from the 

exhaustion requirement since he is precluded from pursuing State relief, despite still 
being eligible for habeas relief post-release from custody. As the petitioner points 
out, this gap makes PCRA relief, and thus exhaustion, challenging for those with 

short sentences.                                                          
But, as the respondents point out, the Superior Court’s decision to dismiss his 
PCRA appeal was based not upon the fact that Kuperschmidt was no longer in 

custody, but due to multiple substantive deficiencies in his brief which precluded the 
court from meaningfully reviewing the issues. The Pennsylvania Superior Court 
having  been  unable  to  review  the  issues  raised  by  Kuperschmidt  similarly 

significantly constrains this Court from conducting the meaningful review required 
to evaluate this petition and thus fits the definition of a procedural default. Moreover, 
having benefitted from the supplemental briefing of the parties as to the merits of 
Kuperschmidt’s  claims,  we  find  that  the  discretionary  evidentiary  rulings  he 

challenges do not rise to the level of a constitutional infraction and seem to be in 
accord with the law of Pennsylvania. Thus, given the deferential standard of review 
that applies to habeas petitions like Kuperschmidt’s, we will deny his petition.  

III.  Discussion                                                          
A. State Prisoner Habeas Relief–The Legal Standard.                  
     (1) Substantive Standards                                       
In order to obtain federal habeas corpus relief, a state prisoner seeking to 

invoke the power of this Court to issue a writ of habeas corpus must satisfy the 
standards prescribed by 28 U.S.C. § 2254, which provides in part as follows: 
(a) The Supreme Court, a Justice thereof, a circuit judge, or a district 
court shall entertain an application for a writ of habeas corpus on behalf 
of a person in custody pursuant to the judgment of a State court only on 
the ground that he is in custody in violation of the Constitution or laws 
or treaties of the United States.                                    

 (b) (1) An application for a writ of habeas corpus on behalf of a person 
in custody pursuant to the judgment of a State court shall not be granted 
unless it appears that—                                              

(A) the applicant has exhausted the remedies available in the courts of 
the State;                                                           
..........                                                           
(2) An application for a writ of habeas corpus may be denied on the  
merits,  notwithstanding  the  failure  of  the  applicant  to  exhaust  the 
remedies available in the courts of the State.                       

28 U.S.C. § 2254(a) and (b).                                              
As this statutory text implies, state prisoners must meet exacting substantive 
and procedural benchmarks in order to obtain habeas corpus relief. At the outset, a 
petition must satisfy rigorous substantive standards to warrant relief. Federal courts 
may “entertain an application for a writ of habeas corpus on behalf of a person in 
custody pursuant to the judgment of a State court only on the ground that he is in 
custody in violation of the Constitution or laws or treaties of the United States.” 28 
U.S.C.  § 2254(a).  By  limiting habeas  relief  to  state  conduct  that  violates  “the 
Constitution or laws or treaties of the United States,” § 2254 places a high threshold 
on the courts. Typically, habeas relief will only be granted to state prisoners in those 
instances where the conduct of state proceedings led to a “fundamental defect which 
inherently  results  in  a  complete  miscarriage  of  justice”  or  was  completely 
inconsistent with rudimentary demands of fair procedure. See e.g., Reed v. Farley, 
512 U.S. 339, 354 (1994). Thus, claimed violations of state law, standing alone, will 
not entitle a petitioner to § 2254 relief, absent a showing that those violations are so 

great as to be of a constitutional dimension. See Priester v. Vaughan, 382 F.3d 394, 
401–02 (3d Cir. 2004).                                                    
     (2)  Deference Owed to State Courts                             

These same principles which inform the standard of review in habeas petitions 
and limit habeas relief to errors of a constitutional dimension also call upon federal 
courts to give an appropriate degree of deference to the factual findings and legal 
rulings made by the state courts in the course of state criminal proceedings. There 

are two critical components to this deference mandated by 28 U.S.C. § 2254. 
First, with respect to legal rulings by state courts, under § 2254(d), habeas 
relief is not available to a petitioner for any claim that has been adjudicated on its 

merits in the state courts unless it can be shown that the decision was either: (1) 
“contrary to” or involved an unreasonable application of clearly established case 
law;  see  28  U.S.C.  §  2254(d)(l);  or  (2)  was  “based  upon  an  unreasonable 
determination of the facts.” See 28 U.S.C. § 2254(d)(2). Applying this deferential 

standard  of  review,  federal  courts  frequently  decline  invitations  by  habeas 
petitioners to substitute their legal judgments for the considered views of the state 
trial and appellate courts. See Rice v. Collins, 546 U.S. 333, 338–39 (2006); see also 
Warren v. Kyler, 422 F.3d 132, 139–40 (3d Cir. 2006); Gattis v. Snyder, 278 F.3d 
222, 228 (3d Cir. 2002).                                                  

In addition, § 2254(e) provides that the determination of a factual issue by a 
state court is presumed to be correct unless the petitioner can show by clear and 
convincing  evidence  that  this  factual  finding  was  erroneous.  See  28  U.S.C.  § 

2254(e)(1).  This  presumption  in  favor  of  the  correctness  of  state  court  factual 
findings has been extended to a host of factual findings made in the course of 
criminal proceedings. See, e.g., Maggio v. Fulford, 462 U.S. 111, 117 (1983) (per 
curiam); Demosthenes v. Baal, 495 U.S. 731, 734–35 (1990). This principle applies 

to state court factual findings made both by the trial court and state appellate courts. 
Rolan v. Vaughn, 445 F.3d 671 (3d Cir.2006). Thus, we may not re-assess credibility 
determinations made by the state courts, and we must give equal deference to both 

the explicit and implicit factual findings made by the state courts. Weeks v. Snyder, 
219 F.3d 245, 258 (3d Cir. 2000). Accordingly, in a case such as this, where a state 
court judgment rests upon factual findings, it is well-settled that:      
A state court decision based on a factual determination, ..., will not be 
overturned on factual grounds unless it was objectively unreasonable in 
light of the evidence presented in the state proceeding. Miller–El v. 
Cockrell, 537 U.S. 322, 123 S. Ct. 1029, 154 L.Ed.2d 931 (2003). We  
must presume that the state court’s determination of factual issues was 
correct,  and  the  petitioner  bears  the  burden  of  rebutting  this 
presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); 
Campbell v. Vaughn, 209 F.3d 280, 285 (3d Cir.2000).                 
Rico v. Leftridge–Byrd, 340 F.3d 178, 181 (3d Cir. 2003). Applying this standard of 
review, federal courts may only grant habeas relief whenever “[o]ur reading of the 

PCRA court records convinces us that the Superior Court made an unreasonable 
finding of fact.” Rolan, 445 F.3d at 681.                                 
     (3)  Ineffective Assistance of Counsel Claims                   

These general principles apply with particular force to habeas petitions that 
are grounded in claims of ineffective assistance of counsel. It is undisputed that the 
Sixth Amendment to the United States Constitution guarantees the right of every 
criminal defendant to effective assistance of counsel. Under federal law, a collateral 

attack of a sentence based upon a claim of ineffective assistance of counsel must 
meet  a  two-part  test  established  by  the  Supreme  Court  in  order  to  survive. 
Specifically, to prevail on a claim of ineffective assistance of counsel, a petitioner 

must establish that: (1) the performance of counsel fell below an objective standard 
of reasonableness; and (2) that, but for counsel’s errors, the result of the underlying 
proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-
88, 691-92 (1984). A petitioner must satisfy both of the Strickland prongs in order 

to maintain a claim of ineffective counsel. George v. Sively, 254 F.3d 438, 443 (3d 
Cir. 2001).                                                               
At the outset, Strickland requires a petitioner to “establish first that counsel’s 

performance was deficient.” Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir. 2001). This 
threshold showing requires a petitioner to demonstrate that counsel made errors “so 
serious” that counsel was not functioning as guaranteed under the Sixth Amendment. 

Id. Additionally, the petitioner must demonstrate that counsel’s representation fell 
below an objective standard of reasonableness under prevailing professional norms. 
Id. However, in making this assessment “[t]here is a ‘strong presumption’ that 

counsel’s performance was reasonable.” Id. (quoting Berryman v. Morton, 100 F.3d 
1089, 1094 (3d Cir. 1996)).                                               
But a mere showing of deficiencies by counsel is not sufficient to secure 
habeas  relief.  Under  the  second  Strickland  prong,  a  petitioner  also  “must 

demonstrate  that  he  was  prejudiced  by  counsel’s  errors.”  Id.  This  prejudice 
requirement compels the petitioner to show that “there is a reasonable probability 
that, but for counsel’s unprofessional errors, the result of the proceeding would have 

been different.” Id. A “reasonable probability” is defined as “a probability sufficient 
to undermine confidence in the outcome.” Id.                              
Thus, as set forth in Strickland, a petitioner claiming that his criminal defense 
counsel was constitutionally ineffective must show that his lawyer’s “representation 

fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. “A 
fair  assessment  of  attorney  performance  requires  that  every  effort  be  made  to 
eliminate the distorting effects of hindsight, to reconstruct the circumstances of 

counsel’s  challenged  conduct,  and  to  evaluate  the  conduct  from  counsel’s 
perspective at the time.” Thomas v. Varner, 428 F.3d 491, 499 (3d Cir. 2005) 
(quoting Strickland, 466 U.S. at 689). The petitioner must then prove prejudice 

arising from counsel’s failings. “Furthermore, in considering whether a petitioner 
suffered  prejudice,  ‘[t]he  effect  of  counsel’s  inadequate  performance  must  be 
evaluated in light of the totality of the evidence at trial: a verdict or conclusion only 

weakly supported by the record is more likely to have been affected by errors than 
one  with  overwhelming  record  support.’”  Rolan,  445  F.3d  at  682  (quoting 
Strickland, 466 U.S. at 696) (internal quotations omitted).               
Although  sometimes  couched  in  different  language,  the  standard  for 

evaluating  claims  of  ineffectiveness  under  Pennsylvania  law  is  substantively 
consistent with the standard set forth in Strickland. See Commonwealth v. Pierce, 
527 A.2d 973, 976–77 (Pa.1987); see also Werts v. Vaugh, 228 F.3d 178, 203 (3d 

Cir. 2000) (“[A] state court decision that applied the Pennsylvania [ineffective 
assistance of counsel] test did not apply a rule of law that contradicted Strickland 
and thus was not ‘contrary to’ established Supreme Court precedent”). Accordingly, 
a federal court reviewing a claim of ineffectiveness of counsel brought in a petition 

under 28 U.S.C. § 2254 may grant federal habeas relief if the petitioner can show 
that the state court’s adjudication of his claim was an “unreasonable application” of 
Strickland. Billinger v. Cameron, 2010 WL 2632286, at *4 (W.D. Pa. May 13, 

2010). In order to prevail against this standard, a petitioner must show that the state 
court’s  decision  “cannot  reasonably  be  justified  under  existing  Supreme  Court 
precedent.” Hackett v. Price, 381 F.3d 281, 287 (3d Cir. 2004); see also Waddington 

v. Sarausad, 555 U.S. 179, 190 (2009) (where the state court’s application of federal 
law is challenged, “the state court’s decision must be shown to be not only erroneous, 
but objectively unreasonable”) (internal citations and quotations omitted).  

This additional hurdle is added to the petitioner’s substantive burden under 
Strickland.  As the Supreme Court has observed a “doubly deferential judicial review 
that  applies  to  a  Strickland  claim  evaluated  under  the  §  2254(d)(1)  standard.” 
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009); see also Yarborough v. Gentry, 

540 U.S. 1, 6 (2003) (noting that the review of ineffectiveness claims is “doubly 
deferential when it is conducted through the lens of federal habeas”). This doubly 
deferential standard of review applies with particular force to strategic judgment like 

those thrust upon counsel in the instant case. In this regard, the Court has held that: 
“The  proper  measure  of  attorney  performance  remains  simply    
reasonableness under prevailing professional norms.” Id., at 688, 104 
S. Ct. 2052. “Judicial scrutiny of counsel's performance must be highly 
deferential,”  and  “a  court  must  indulge  a  strong  presumption  that 
counsel's conduct falls within the wide range of reasonable professional 
assistance.” Id., at 689, 104 S. Ct. 2052. “[S]trategic choices made after 
thorough investigation of law and facts relevant to plausible options are 
virtually unchallengeable.” Id., at 690, 104 S. Ct. 2052.            
Knowles v. Mirzayance, 556 U.S. 111, 124, 129 S. Ct. 1411, 1420, 173 L. Ed. 2d 
251 (2009). The deference which is owed to these strategic choices by trial counsel 

is great.                                                                 
Therefore, in evaluating the first prong of the Strickland test, courts 
“must indulge a strong presumption that counsel's conduct falls within 
the  wide  range  of  reasonable  professional  assistance;  that  is,  the 
defendant  must  overcome  the  presumption  that,  under  the       
circumstances, the challenged action ‘might be considered sound trial 
strategy.’” Id. The presumption can be rebutted by showing “that the 
conduct was not, in fact, part of a strategy or by showing that the  
strategy employed was unsound.”                                      

Lewis v. Horn, 581 F.3d 92, 113 (3d Cir. 2009) (quoting Thomas v. Varner, 428 
F.3d 491, 499-500 (3d Cir. 2005)) (footnote omitted).                     
     (4) Procedural Benchmarks – Exhaustion and Procedural Default   
          a.  Exhaustion of State Remedies                           

State prisoners seeking relief under section 2254 must also satisfy specific, 
procedural standards. Among these procedural prerequisites is a requirement that the 
petitioner “has exhausted the remedies available in the courts of the State” before 
seeking relief in federal court.  28 U.S.C. § 2254(b).  In instances where a state 
prisoner has failed to exhaust the legal remedies available to him in the state courts, 
federal courts typically will refuse to entertain a petition for habeas corpus.  Whitney 
v. Horn, 280 F.3d 240, 250 (3d Cir. 2002).                                
This statutory exhaustion requirement is rooted in principles of comity and 
reflects the fundamental idea that the state should be given the initial opportunity to 

pass upon and correct alleged violations of the petitioner’s constitutional rights.  
O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). The Supreme Court has explained 
that “a rigorously enforced total exhaustion rule” is necessary in our dual system of 

government to prevent a federal district court from upsetting a state court decision 
without first providing the state courts the opportunity to correct a constitutional 
violation.  Rose v. Lundy, 455 U.S. 509, 518 (1982).  Requiring exhaustion of claims 
in state court also promotes the important goal of ensuring that a complete factual 

record is created to aid a federal court in its review of § 2254 petitions.  Walker v. 
Vaughn, 53 F.3d 609, 614 (3d Cir. 1995).  A petitioner seeking to invoke the writ of 
habeas corpus, therefore, bears the burden of showing that all of the claims alleged 

have been “fairly presented” to the state courts, and the claims brought in federal 
court must be the “substantial equivalent” of those presented to the state courts.  
Evans v. Court of Common Pleas, 959 F.2d 1227, 1231 (3d Cir. 1992); Santana v. 
Fenton,  685  F.2d  71,  73-74  (3d  Cir.  1982).  A  petitioner  cannot  avoid  this 

responsibility merely by suggesting that he is unlikely to succeed in obtaining state 
relief, since it is well-settled that a claim of “likely futility on the merits does not 
excuse failure to exhaust a claim in state court.”  Parker v. Kelchner, 429 F.3d 58, 

63 (3d Cir. 2005).                                                        
Although this exhaustion requirement compels petitioners to have previously 
given the state courts a fair “opportunity to apply controlling legal principles to the 

facts bearing upon [the petitioner’s] constitutional claim,” Picard v. Connor, 404 
U.S. 270, 276 (1971), this requirement is to be applied in a commonsense fashion.  
Thus, the exhaustion requirement is met when a petitioner submits the gist of his 

federal complaint to the state courts for consideration, without the necessity that the 
petitioner engage in some “talismanic” recitation of specific constitutional clams.  
Evans, 959 F.2d at 1230-33.  Similarly, a petitioner meets his obligation by fairly 
presenting a claim to state courts, even if the state courts decline to address that 

claim.  Dye v. Hofbauer, 546 U.S. 1 (2005) (per curiam); Johnson v. Pinchak, 392 
F.3d 551, 556 (3d Cir. 2004).                                             
          b. Procedural Default                                      

A necessary corollary of this exhaustion requirement is the procedural default 
doctrine, which applies in habeas corpus cases.  Certain habeas claims, while not 
exhausted in state court, may also be incapable of exhaustion in the state legal system 
by the time a petitioner files a federal habeas petition because state procedural rules 

bar further review of the claim.  In such instances:                      
In order for a claim to be exhausted, it must be “fairly presented” to the 
state courts “by invoking one complete round of the State’s established 
appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 844-
45, 119 S. Ct. 1728, 144 L.Ed.2d 1 (1999). If a claim has not been fairly 
presented to the state courts and it is still possible for the claim to be 
raised in the state courts, the claim is unexhausted . . . .         

If a claim has not been fairly presented to the state courts but state law 
clearly forecloses review, exhaustion is excused, but the doctrine of 
procedural default may come into play.  A procedural default occurs  
when a prisoner’s federal claim is barred from consideration in the state 
courts by an “independent and adequate” state procedural rule.  Federal 
courts may not consider the merits of a procedurally defaulted claim 
unless the default and actual “prejudice” as a result of the alleged 
violation of the federal law or unless the applicant demonstrates that 
failure to consider the claim will result in a fundamental “miscarriage 
of justice.”  Coleman v. Thompson, 501 U.S. 722, 750, 111 S. Ct. 2546, 
115 L.Ed.2d 640 (1991).                                              

Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002).                    
“[A]  federal  court  will  ordinarily  not  entertain  a  procedurally  defaulted 
constitutional claim in a petition for habeas corpus ‘[o]ut of respect for finality, 
comity, and the orderly administration of justice.’  This is a reflection of the rule that 
‘federal  courts  will  not  disturb  state  court  judgments  based  on  adequate  and 
independent state law procedural ground.’”  Hubbard v. Pinchak, 378 F.3d 333, 338 
(3d Cir. 2004) (citations omitted).  Given these concerns of comity, the exceptions 
to the procedural default rule, while well-recognized, are narrowly defined.  Thus, 
for purposes of excusing a procedural default of a state prisoner seeking federal 
habeas relief, “[t]he Supreme Court has delineated what constitutes ‘cause’ for the 
procedural default:  the petitioner must ‘show that some objective factor external to 
the defense impeded counsel’s efforts to comply with the State’s procedural rule.’”  
Werts v. Vaughn, 228 F.3d 178, 192-93 (3d Cir. 2000) (citations omitted).  Similarly, 

when examining the second component of this “cause and prejudice” exception to 
the procedural default rule, it is clear that:                            
With regard to the prejudice requirement, the habeas petitioner must 
prove “‘not merely that the errors at … trial created the possibility of 
prejudice,  but  that  they  worked  to  his  actual  and  substantial 
disadvantage,  infecting  his  entire  trial  with  error  of  constitutional 
dimensions.’”  This standard essentially requires the petitioner to show 
he was denied “fundamental fairness” at trial.  In the context of an 
ineffective assistance claim, we have stated that prejudice occurs where 
“there  is  a  reasonable  probability  that,  but  for  counsel’s  deficient 
performance, the result of the proceeding would have been different.” 

Id. at 193 (citations omitted).                                           

Likewise, the “miscarriage of justice” exception to this procedural bar rule is 
also narrowly tailored and requires a credible assertion of actual innocence to justify 
a petitioner’s failure to comply with state procedural rules.  Hubbard, 378 F.3d at 
338.                                                                      
Procedural bar claims typically arise in one of two factual contexts.  First, in 
many instances, the procedural bar doctrine is asserted because an express state court 
ruling in prior litigation denying consideration of a habeas petitioner’s state claims 
on some state procedural ground.  In such a situation, courts have held that: 
A habeas claim has been procedurally defaulted when “a state court   
declined to address a prisoner’s federal claims because the prisoner had 
failed to meet a state procedural requirement.”  Coleman v. Thompson, 
501 U.S. 722, 730, 111 S. Ct. 2546, 115 L.Ed.2d 640 (1991).  For a   
federal habeas claim to be barred by procedural default, however, the 
state rule must have been announced prior to its application in the  
petitioner’s case and must have been “firmly established and regularly 
followed.”  Ford v. Georgia, 498 U.S. 411, 423-24, 111 S. Ct. 850, 112 
L.Ed.2d  935  (1991).  Whether  the  rule  was  firmly  established  and 
regularly followed is determined as of the date the default occurred, not 
the date the state court relied on it, Doctor v. Walters, 96 F.3d 675, 684 
(3d Cir. 1996), because a petitioner is entitled to notice of how to 
present a claim in state court.                                      

Taylor v. Horn, 504 F.3d 416, 427-28 (3d Cir. 2007) (citing Ford, 498 U.S. at 423-
24).                                                                      
In other instances, the procedural default arises, not because of an express 
state court ruling, but as a consequence of a tactical choice by a habeas petitioner, 
who elects to waive or forego a claim in the course of his state proceedings, and thus 
fails to fully exhaust the claim within the time limits prescribed by state statute or 
procedural rules.  In such instances the petitioner’s tactical choices in state court 
litigation also yield procedural defaults and waivers of claims federally.  See, e.g., 
Johnson v. Pinchak, 392 F.3d 551 (3d Cir. 2004) (procedural default where petitioner 
failed to timely pursue state claim); Hull v. Freeman, 991 F.2d 86 (3d Cir. 1993) 
(same).  Accordingly,  a  petitioner’s  strategic  choices  in  state  court  waiving  or 
abandoning state claims may act as a procedural bar to federal consideration of his 
claims, unless the petitioner can show either “cause and prejudice” or demonstrate a 
“fundamental miscarriage of justice.”                                     

It is against these legal benchmarks that we assess Kuperschmidt’s petition. 
B. This Petition Should Be Denied.                                   

1.  The Petitioner’s Claims Are Procedurally Defaulted.              
The respondents’ threshold argument is that this petition is barred from federal 
habeas review because his claims are procedurally defaulted since they were not 
fairly presented at the state court level. Indeed, neither the trial court nor the Superior 
Court  addressed  the  merits  of  Kuperschmidt’s  claims  in  their  dismissal  of  his 

petition. For his part, the petitioner’s primary focus is that he should be excused from 
the exhaustion requirement since he is precluded from pursuing State relief due to 
the fact that he is no longer in custody, despite being otherwise eligible for habeas 

relief post-release from custody. As we previously noted in ordering supplemental 
briefing on this petition, the requirement that a petitioner be in custody to pursue 
PCRA relief makes exhaustion challenging for those serving short state sentences. 
But the Pennsylvania Supreme Court has provided an avenue for post-conviction 

review by requiring trial courts to address claims of ineffective assistance of counsel 
even when a defendant is statutorily precluded from subsequent review under the 
PCRA.  See  Commonwealth  v.  Delgros,  183  A.3d  352  (Pa.  2018).  Thus, 
Kuperschmidt has focused on differentiating his case from Delgros in attempting to 
excuse his procedural default in this case.                               

As  our previous hesitancy to  rule on  this  issue  without  a  more  fulsome 
understanding  of  the  merits  of  Kuperschmidt’s  claims  demonstrates,  we  are 
sympathetic  to  the  idea  that  the  State  court’s  custody  requirement  may  create 

obstacles in pursuing post-conviction relief for petitioners like Kuperschmidt who 
serve short sentences. Indeed, while the Third Circuit has explained that “the absence 
of state corrective process is generally an excuse to the exhaustion requirement, not 
the application of procedural default,” it has also “declined to treat a petitioner’s 

failure to comply with Pennsylvania’s custody requirement as a basis for procedural 
default.” Leyva v. Williams, 504 F.3d 357, 369 (3d Cir. 2007) (citing Parker v. 
Kelchener, 429 F.3d 58, 62 (3d Cir. 2005); Coss v. Lackawanna County District 

Attorney, 204 F.3d 453, 460 n.8 (3d Cir. 2000), rev’d on other grounds 532 U.S. 
394, 121 S.Ct.1567, 149 L.Ed.2d 608 (2001)). As the court of appeals explained in 
Leyva, “[n]oncompliance with Pennsylvania's custody requirement did not result 
from any failure on the part [of the petitioner], but simply from the expiration of his 

sentence. This factor was outside [the petitioner’s] control and need not form the 
basis for a default.” Id. (emphasis in original). Accordingly, we decline to bar 
Kuperschmidt from habeas review based solely upon his failure to meet the PCRA’s 

custody requirement.                                                      
Nonetheless,  our  review  of  the  full  record  reveals  that  Kuperschmidt’s 
argument  fails  to  account  for,  or  excuse,  another,  more  significant  and 

straightforward  procedural  default:  the  Superior  Court’s  inability  to  review 
Kuperschmidt’s claims due to significant defects in his appellant brief. On this score, 
as previously explained, “[a] procedural default occurs when a prisoner’s federal 

claim  is  barred  from  consideration  in  the  state  courts  by  an  ‘independent  and 
adequate’ state procedural rule.” Coleman, 501 U.S. at 750.  Here, the Pennsylvania 
Superior Court found that Kuperschmidt’s appeal was barred from consideration due 
to defects in his brief which precluded meaningful review. Specifically, the court 

explained:                                                                
Instantly, the defects in Appellant’s brief are substantial. Appellant did 
not include a statement of questions presented to identify the specific 
issues he wishes to raise on appeal. See Pa.R.A.P. 2116(a). Further, 
Appellant’s brief lacks a statement of jurisdiction, statement of the 
relevant standard and scope of review, and a comprehensible argument 
section.  See  Pa.R.A.P.  2111(a),  2114,  2119.  Appellant’s  argument 
section  consists  only  of  a  list  of  bald  assertions  of  alleged  errors 
committed  by  the  PCRA  court.  Appellant  fails  to  provide  any 
meaningful analysis or citation to relevant authority to demonstrate 
error in the PCRA court’s decision that he was ineligible for PCRA   
relief because he was not currently serving a sentence of imprisonment, 
probation, or parole. See Pa.R.A.P. 2119(a); Hardy, supra. Appellant’s 
failure to comply with our procedural rules governing appellate briefs 
precludes  meaningful  review  and  constitutes  sufficient  grounds  to 
dismiss the appeal. See Pa. R.A.P. 2101; In re Ullman, supra (holding 
substantial  deficiencies  in  appellant’s  brief  warrant  preclusion  of 
judicial review). Accordingly, we dismiss the appeal.                
(Doc. 41-6, at 7-8). Thus, while the trial court focused on the custody issue in 
dismissing his PCRA petition, it was Kuperschmidt’s failure to adequately develop 

his claims at the appellate level that ultimately led to the dismissal of his appeal.1  
On this score, the Third Circuit has held that claims deemed to be waived by 
the state court due to a  failure to be  meaningfully developed are procedurally 

defaulted. As the court of appeals explained:                             
A state procedural rule is “independent” if it is separate from the federal 
issue. Here, it is beyond dispute that the Superior Court's determination 
that Petitioner had waived his claims was pursuant to state law, and was 
separate from the federal issues before it. See Cabrera v. Barbo, 175 
F.3d 307, 313 (3d Cir.1999) (“[T]he basis for the state court's rejection 
of  the  ineffective  assistance  of  counsel  claims  was  state  court 
procedural default ... Clearly, this disposition was an independent state 
ground.”).  Moreover,  a  state  procedural  rule  is  adequate  if  it  was 
“firmly established and regularly followed” at the time of the alleged 
procedural default. Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850, 
112  L.Ed.2d  935  (1991).  To  be  considered  firmly  established  and 
regularly followed, “(1) the state procedural rule [must] speak[ ] in 
unmistakable terms; (2) all state appellate courts [must have] refused to 
review the petitioner's claims on the merits; and (3) the state courts' 
refusal in this instance [must be] consistent with other decisions.” Nara 
v. Frank, 488 F.3d 187, 199 (3d Cir.2007). This test is met here.    

The  requirement  that  Petitioner  must  meaningfully  develop  his 
arguments on appeal and cite to appropriate authorities has been stated 
in  unmistakable  terms  by  the  Pennsylvania  Supreme  Court,  see 
Commonwealth v. Clayton, 572 Pa. 395, 816 A.2d 217, 221 (2002)       
(“[I]t  is  a  well  settled  principle  of  appellate  jurisprudence  that 
undeveloped claims are waived and unreviewable on appeal”), and is   

1  In  a  footnote,  the  Superior  Court  also  agreed  with  the  PCRA  court  that 
Kuperschmidt was not eligible for PCRA relief where he was no longer serving a 
sentence, but this was decidedly not the primary reason for the dismissal.  
embodied in the state's rules of appellate procedure, see Pa. R.A.P. 
2119(a). Moreover, the Superior Court refused to consider Petitioner's 
claims on the merits and its refusal is consistent with other decisions. 
See Bracey, 795 A.2d at 940 n. 4, Clayton, 816 A.2d at 221. We       
conclude  that  the  Superior  Court's  decision  was  based  upon  an 
independent and adequate state law ground. See Nara, 488 F.3d at 199. 

Moreover, “ ‘federal habeas corpus relief does not lie for errors of state 
law.’ ” Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 116 L.Ed.2d 
385 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct.   
3092, 111 L.Ed.2d 606 (1990)). This remains true even if the state   
procedural ruling is incorrect. Estelle, 502 U.S. at 71–72, 112 S.Ct. 475; 
see also Kontakis v. Beyer, 19 F.3d 110, 117 n. 12 (3d Cir.1994)     
(reminding that “a state court's misapplication of its own law does not 
generally raise a constitutional claim.”) (citation omitted). Thus, even 
if the Superior Court incorrectly deemed waived certain of Petitioner's 
ineffective assistance claims—a point Petitioner does not argue here—
habeas relief would not be warranted, as it is “well established that a 
state court's misapplication of its own law does not generally raise a 
constitutional claim. The federal courts have no supervisory authority 
over  state  judicial  proceedings  and  may  intervene  only  to  correct 
wrongs of constitutional dimension.” Taylor v. Horn, 504 F.3d 416, 448 
(3d Cir.2007); see also id. (quoting Estelle v. McGuire, 502 U.S. 62, 
67–68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)) (“Even assuming the    
state court failed to follow the law of Pennsylvania, in this federal 
habeas  case,  we  are  limited  to  deciding  whether  [the  petitioner's] 
conviction and sentence ‘violated the Constitution, laws, or treaties of 
the United States.’ ”).                                              

Leake v. Dillman, 594 F. App'x 756, 758–59 (3d Cir. 2014). In this parallel factual 
scenario, where the Pennsylvania Superior Court found Kuperschmidt  failed to 
develop his claims for meaningful review, this Third Circuit precedent clearly bars 
Kuperschmidt from seeking habeas relief on these procedurally defaulted claims. 
Furthermore,  any  argument  by  the  petitioner  that  this  procedural  default 
should be excused fails. As the Supreme Court has explained, “[w]here a defendant 

has procedurally defaulted a claim . . . the claim may be raised in habeas only if the 
defendant can first demonstrate either ‘cause’ and actual ‘prejudice,’ or that he is 
‘actually innocent.’” Bousley v. United States, 523 U.S. 614, 622, 118 S. Ct. 1604, 

1611, 140 L. Ed. 2d 828 (1998) (citing Murray v. Carrier, 477 U.S. 478, 485 (1986); 
Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Smith v. Murray, 477 U.S. 527, 537 
(1986)) (internal citations omitted). To excuse the clear procedural defaults cited by 
the Superior Court which bar habeas review, the petitioner simply states in a footnote 

that “even if petitioner submitted a brief which completely comported with the 
Pennsylvania  Rules  of  Appellate  Procedure,  the  Superior  Court  would  have 
dismissed the PCRA petition on the ground that petitioner was not in custody.” (Doc. 

47, at 3 n.1). To the extent that the petitioner is arguing in this unsupported footnote 
that he was not required to develop his arguments in a manner which could be 
reviewed by the Superior Court because of the trial court’s holding that he was not 
in custody and thus barred from PCRA relief, this argument is both legally and 

logically flawed. At the outset, it is well settled that the futility of a claim simply 
cannot constitute cause to excuse a procedural default. Bousley v. U.S., 523 U.S. 
614, 623 (1998) (“[F]utility cannot constitute cause if it means simply that a claim 

was unacceptable to that particular court at that particular time.”); see also United 
States v. De Castro, 49 F.4th 836, 845 (3d Cir. 2022). Moreover, this precedent is 
supported by the previously discussed policy limiting the availability of habeas relief 

for procedurally defaulted claims “[o]ut of respect for finality, comity, and the 
orderly administration of justice” and the well-settled “rule that federal courts will 
not disturb state court judgments based on adequate and independent state law 

procedural  ground.”    Hubbard,  378  F.3d  at  338.  Therefore,  we  find  that  the 
petitioner’s failure to comply with the procedural rules which governed his PCRA 
appeal bar him from federal habeas relief.2                               





2 We acknowledge the Supreme Court’s holding in Martinez that “a procedural 
default will not bar a federal habeas court from hearing a substantial claim of 
ineffective assistance at trial if, in the initial-review collateral proceeding, there was 
no counsel or counsel in that proceeding was ineffective.” Martinez v. Ryan, 566 
U.S. 1, 17 (2012). Indeed, it appears Kuperschmidt filed his appellate brief to support 
his PCRA petition pro se. However, to invoke this narrow exception to excuse a 
procedural  default,  “a  petitioner  must  satisfy  two  factors:  that  the  underlying, 
otherwise defaulted, claim of ineffective assistance of trial counsel is ‘substantial,’ 
meaning that it has ‘some merit,’ and that petitioner had ‘no counsel’ or ‘ineffective’ 
counsel during the initial phase of the state collateral review proceeding.” Melecio 
v. Zaken, No. CV 3:20-2068, 2023 WL 4138258, at *5 (M.D. Pa. June 22, 2023) 
(citing Martinez, 566 U.S. at 14, 17; Glenn v. Wynder, 743 F.3d 402, 410 (3d Cir. 
2014))  (internal  citations  omitted).  Here,  Kuperschmidt  has  not  invoked  the 
Martinez exception or attempted to satisfy these two factors. Moreover, as discussed 
below, his underlying ineffective assistance of trial counsel claims are meritless and 
it appears he submitted a counseled PCRA petition, but that counsel withdrew during 
the PCRA appeal. Therefore, no exception to the procedural default applies here. 
2.  The Petitioner’s Ineffective Assistance of Counsel Claims Are Meritless. 
Not only do we find Kuperschmidt’s claims procedurally defaulted, but his 

claims also fail as a matter of substance. Kuperschmidt’s petition centers around 
alleged failures of trial counsel which he contends violated his right to counsel under 
the  Sixth  and  Fourteenth  Amendments.  Specifically,  the  petitioner  alleges  trial 

counsel was ineffective for failing to object to the admission of certain testimonial 
evidence, including excessive background information about the investigation by 
Trooper Orlando and testimony of DePaolis regarding his conversations with co-
defendant Cowher. He also alleges that trial counsel was ineffective for informing 

the jury that Kuperschmidt would testify in his opening statement.        
As  previously  discussed,  we  employ  a  doubly  deferential  standard  in 
examining  habeas  petitions  raising  ineffective  assistance  of  counsel,  showing 

deference to the decisions of state courts unless they are either “contrary to” or 
involved an unreasonable application of clearly established case law; see 28 U.S.C. 
§ 2254(d)(l); or “based upon an unreasonable determination of the facts.” See 28 
U.S.C.  §  2254(d)(2),  and  in  assessing  whether  counsel’s  performance  was 

constitutionally  deficient,  “[t]here  is  a  ‘strong  presumption’  that  counsel’s 
performance was reasonable.” Id. (quoting Berryman v. Morton, 100 F.3d 1089, 
1094 (3d Cir. 1996)). Although the trial court and the Superior Court were unable to 

reach the merits of Kuperschmidt’s post-conviction claims due to his procedural 
defaults, on direct appeal, the Superior Court did address Kuperschmidt’s objections 
to the testimony of co-defendant Cowher and his conversations with DePaolis and 

found that his testimony was admissible. On direct appeal, Kuperschmidt argued that 
the consolidation of his trial with Cowher deprived him of the opportunity to defend 
himself against Cowher’s hearsay statements to DePaolis that relayed what he had 

allegedly told Cowher. The Superior Court agreed with the trial court that the joinder 
of the trials was appropriate, since Cowher and Kuperschmidt were charged as co-
conspirators and Kuperschmidt had not suffered any prejudice which required a 
separate trial. (Doc. 41-2, at 16). The Superior Court also referenced the trial court’s 

determination that Cowher’s testimony fell under an exception to the hearsay rule, 
specifically Pa.R.E. 803(25)(E), which permits the admission of statements made by 
a co-conspirator during and in furtherance of the conspiracy. As the court explained: 

[O]ur Supreme Court noted that “the out-of-court declarations of one 
co-conspirator can be admitted against another co-conspirator provided 
that  the  declarations  were  made  during  the  conspiracy  and  in 
furtherance of the common design.” Coccioletti, 493 Pa. at 113; 425  
A.2d at 392 referring to Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 
1025 (1980).                                                         

The Gribble Court subsequently recognized that Pa.R.E. 803(25)(E)    
serves as a recognized exception to the hearsay rule. Rule 803(25)(E) 
allows  a  hearsay  statement  to  be  admitted  where  it  is  made  by  a 
defendant’s  co-conspirator  “during  and  in  furtherance  of  the  
conspiracy.” The Gribble Court further noted that “the U.S. Supreme  
Court and this Court had recognized that statements admitted under the 
co-conspirator exception to the hearsay rule do not violate the Sixth 
Amendment.” Gribble, 580 Pa. at 664, 863 A.2d at 465; see also United 
States v. Bourjaily, 483 U.S. 171, 183-84, 107 S. Ct. 2775, 2783, 97 L. 
Ed.  144  (1987).  Accordingly,  the  Sixth  Amendment  protections  
originally explained in Bruton were not applicable in Gribble as a result 
of the available co-conspirator hearsay exception provided in Pa.R.E. 
803(25).                                                             

We similarly conclude herein that the out-of-court statements of the co-
defendant  Cowher  are  admissible  in  a  joint  trial  of  the  two  (2) 
defendants  pursuant  to  Pa.  R.E.  803(25)(E).  The  out-of-court  
statements in question were made prior to completion of the alleged  
conspiratorial act, i.e., election fraud. The statements were also made 
in furtherance of the alleged common design of the conspiracy, i.e., to 
commit election fraud in the Wild Acres community general election in 
May 2014. In accordance with our Supreme Court’s interpretation of   
Bruton and its progeny as set forth above and the applicability of   
Pa.R.E.  803(25)(E)  herein,  as  well  as  in  exercising  this  [c]ourt’s 
discretion to effectuate judicial economy, a joint trial of [Appellant] and 
his co-defendant is proper.                                          

(Id., at 15) (quoting Trial Court Opinion and Order, 3/7/16, at unnumbered 4-6). We 
cannot  say  that  the  state  court’s  application  of  its  own  rules  of  evidence  was 
“contrary to” or involved an unreasonable application of clearly established case 
law; see 28 U.S.C. § 2254(d)(l); or “based upon an unreasonable determination of 
the facts.” See 28 U.S.C. § 2254(d)(2). Nor can it be said that trial counsel’s 
performance in not objecting to these statements was unreasonable, given that these 
statements were admissible exceptions to the hearsay rule.                
Moreover, even applying an independent assessment of Strickland to those 
claims which do not benefit from the state court’s rulings, Kuperschmidt’s claims 
fail. As previously noted, to prevail on a claim of ineffective assistance of counsel, 
a  petitioner  must  establish  that:  (1)  the  performance  of  counsel  fell  below  an 
objective standard of reasonableness; and (2) that, but for counsel’s errors, the result 

of the underlying proceeding would have been different. Strickland v. Washington, 
466 U.S. 668, 687-88, 691-92 (1984). At the outset, Strickland requires a petitioner 
to “establish first that counsel’s performance was deficient.” Jermyn v. Horn, 266 

F.3d  257,  282  (3d  Cir.  2001).  This  threshold  showing  requires  a  petitioner  to 
demonstrate that counsel made errors “so serious” that counsel was not functioning 
as guaranteed under the Sixth Amendment. Id. Additionally, the petitioner must 
demonstrate  that  counsel’s  representation  fell  below  an  objective  standard  of 

reasonableness under prevailing professional norms. Id. However, in making this 
assessment  “[t]here  is  a  ‘strong  presumption’  that  counsel’s  performance  was 
reasonable.” Id. (quoting Berryman v. Morton, 100 F.3d 1089, 1094 (3d Cir. 1996)). 

On this score, we presume trial counsel’s actions were part of a sound trial strategy, 
unless the petitioner can disprove this fact or show that such strategy was unsound. 
At the outset, any argument by petitioner that his trial counsel was ineffective 
for failing to object to the admission of alleged hearsay evidence is without merit. 

Indeed, our review of the record and applicable law confirms that the challenged 
testimony was admissible under Pennsylvania law. And, according to the Third 
Circuit,  “if  there  is  no  merit  to  [a  defendant’s]  claims  that  the  prosecution's 

statements and [testimony] should not have been permitted at trial, his counsel 
cannot be deemed ineffective for not having objected to their presentation, as it was 
not unreasonable for him to acquiesce in the presentation of proper statements and 

testimony.” Hartey v. Vaughn, 186 F.3d 367, 372 (3d Cir. 1999).           
As previously explained, the state court held that the statements made by 
Cowher regarding his conversations with DePaolis were exceptions to the hearsay 

rule as co-conspirator statements and were therefore admissible.3 As to the testimony 
of Trooper Orlando regarding his conversations with DePaolis and how he came to 
focus his investigation on Kuperschmidt, these statements were admissible under 
Pennsylvania law as statements offered to explain the course of police conduct, 

which are not offered for the truth of the matter asserted. As has been well-settled 
by the Pennsylvania Supreme Court:                                        

Hearsay is an out-of-court statement offered to prove the truth of the 
matter asserted in the statement. Commonwealth v. Puksar, 559 Pa.    
358, 740 A.2d 219, 225 (1999). The rule against admitting hearsay    
evidence stems from its presumed unreliability, because the declarant 
cannot  be  challenged  regarding  the  accuracy  of  the  statement. 
Commonwealth v. Rush, 529 Pa. 498, 605 A.2d 792, 795 (1992). But     
it is well established that certain out-of-court statements offered to 

3 In his supplemental brief, the petitioner also challenges the testimony of DePaolis 
in which he testified that his understanding was that when Kuperschmidt stated in 
the recording “The other thing, talk to Nona what I told you.” He understood it to 
mean something other than what was going on with the election. He argues DePaolis 
testified what he believed petitioner’s state of mind was without establishing a 
foundation.  However,  in  our  view,  these  statements  show  only  DePaolis’s 
interpretation  of  the  non-hearsay  statements  by  Kuperschmidt.  Moreover,  it  is 
unclear how these statements could have prejudiced Kuperschmidt since DePaolis 
confirms he was not referencing anything to do with the election.         
explain the course of police conduct are admissible because they are 
offered not for the truth of the matters asserted but rather to show the 
information upon which police acted. Commonwealth v. Jones, 540 Pa.  
442, 658 A.2d 746, 751 (1995); Commonwealth v. Yates, 531 Pa. 373,   
613 A.2d 542, 543 (1992); Commonwealth v. Palsa, 521 Pa. 113, 555    
A.2d 808, 810 (1989); Commonwealth v. Cruz, 489 Pa. 559, 414 A.2d    
1032, 1035 (1980). The trial court, in exercising discretion over the 
admission of such statements, must balance the prosecution's need for 
the statements against any prejudice arising therefrom. See Jones, 658 
A.2d at 751; Yates, 613 A.2d at 543–44; Palsa, 555 A.2d at 811.      

Com.  v.  Chmiel,  585  Pa.  547,  600–01,  889  A.2d  501,  532–33  (2005).  After 
reviewing  the  testimony  challenged  by  the  petitioner  with  regard  to  Trooper 
Orlando’s investigation, we do not find trial counsel was ineffective for failing to 
object to these statements. At the outset, as the petitioner admits, this testimony is 
simply background information to explain to the jury how Kuperschmidt came to be 
a target of the investigation; an investigation which ultimately resulted in taped 
recordings between Kuperschmidt and DePaolis that were played at trial. Moreover, 
the  declarants  of  the  statements  about  what  led  to  the  investigation  into 
Kuperschmidt, District Attorney Tonkin and DePaolis, both testified at trial and 
were available to be cross-examined about the statements they made to Trooper 
Orlando.                                                                  
Nor are we persuaded by the petitioner’s argument that trial counsel was 
ineffective for stating in the opening statement that petitioner would testify. The 
petitioner does not challenge his decision not to testify. Indeed, that decision was 
made willingly by the defendant as confirmed by the colloquy conducted by the 
court  during  the  proceedings.  (Doc.  41-1,  at  571-73).  Moreover,  the  record 

demonstrates that the decision by Kuperschmidt not to testify was a sound strategy 
of trial counsel based on the “the way [the] trial went and some of the cross-
examination he would have to be subjected to with respect to his tape.” (Doc. 41-1, 

at 569). It also appears that trial counsel went through every effort to remedy the 
effects of his statements regarding Kuperschmidt testifying, including presenting 
character witnesses to make up for the gaps in what his testimony would have shown, 
(Id.,  at  575-85),  and  by  requesting  a  motion  in  limine4  to  preclude  the 

Commonwealth from commenting on his opening statement about Kuperschmidt  
testifying. (Id., at 595).                                                
Nonetheless, it is without question that a promise by trial counsel in an 

opening  statement  to  produce  evidence  that  is  not  produced  at  trial  may  be 
problematic and, in some instances, can constitute ineffective assistance of counsel. 
As the Third Circuit has stated:                                          

The rationale for holding such a failure to produce promised evidence 
ineffective is that when counsel primes the jury to hear a different 
version of the events from what he ultimately presents, one may infer 
that  reasonable  jurors  would  think  the  witnesses  to which  counsel 

4 The court denied the motion but instructed counsel to “address it factually in the 
sense of that what is said in an opening statement is not evidence,” without crossing 
the line to an inference of guilt. (Doc. 41-1, at 598-99).                
referred in his opening statement were unwilling or unable to deliver 
the testimony he promised.                                           
McAleese v. Mazurkiewicz, 1 F.3d 159, 166–67 (3d Cir. 1993) (citing Anderson v. 
Butler, 858 F.2d 16, 18 (1st Cir. 1988), aff’d sub nom. Com. V. Anderson, 408 Mass. 
803, 563 N.E.2d 1353 (1990)). Indeed, other circuits have found that, in certain 

circumstances, counsel may be ineffective for stating in an opening statement that 
the defendant would testify when the defendant did not ultimately do so. See Ouber 
v. Guarino, 293 F.3d 19, 27 (2002). But these cases often hinged on the jury hearing 

a different version of events than that which was promised. See Harris v. Reed, 894 
F.2d 871, 873-74 (7th Cir. 1990) (failure of defense counsel to put on any witnesses 
in support of a viable theory of defense “left the jury free to believe [the informant’s] 
account of the incident as the only account,” and, “primed the jury to hear a different 

version of the incident. When counsel failed to produce the witness to support his 
version, the jury likely concluded that counsel could not live up to the claims made 
in the opening.”); Anderson v. Butler, 858 F.2d 16, 17-19 (1st Cir.1988) (Sixth 

Amendment violation where counsel failed to present promised expert medical 
testimony that defendant had acted without cognizance of, or feeling for, actions). 
 But this view is confined “where the promise is more general in nature, and/or 
where the testimony to be provided would not be significant or was elicited through 

other means, courts may defer to counsel's reasonable decision to change course.” 
United States v. Crawford, 680 F. Supp. 2d 1177, 1197 (E.D. Cal. 2009) (citing U.S. 
ex rel. Schlager v. Washington, 887 F. Supp. 1019, 1026 (N.D. Ill. 1995), aff'd sub 
nom. Schlager v. Washington, 113 F.3d 763 (7th Cir. 1997)). Indeed, the Third 

Circuit has explained that “backing off of a promise to give certain evidence is 
unlikely  to  support  an  ineffective  assistance  claim  when  there  are  changed 
circumstances, because ‘unexpected developments sometimes may warrant changes 

in previously announced trial strategies.’” Elias v. Superintendent Fayette SCI, 774 
F. App'x 745, 751 (3d Cir. 2019) (quoting Ouber, 293 F.3d at 29). Indeed, in Elias, 
the Third Circuit held that the decision that the defendant should not testify despite 
the promise in the opening statement that he would was a sound trial strategy based 

upon the unexpected testimony of two other witnesses supporting his claim. Id. 
Here, a review of the opening statement by trial counsel reveals that he made 
minimal, general statements about what Kuperschmidt’s testimony would reveal. He 

first promised that Kuperschmidt would testify about his background and personal 
life and why he decided to move from Brooklyn to Wild Acres. He also stated that 
he will testify to what his job on the Board of Directors entailed. But the balance of 
the  opening  statement,  specifically  with  regard  to  the  evidence  showing  that 

Kuperschmidt was unaware of the fraudulent voting scheme stated only generally 
“you will hear evidence” or “you will hear testimony” but did not directly reference 
any anticipated testimony by Kuperschmidt. The evidence demonstrates that trial 

counsel promised to have him testify only to humanize him to the jury and was not 
the lynchpin of his merits argument. Instead, the trial transcript demonstrates that 
trial counsel substituted character witnesses to discuss the background information 

he had previously stated Kuperschmidt would testify to. (Doc. 41-1, at 600). Thus, 
although the jury could have anticipated some testimony from Kuperschmidt, the 
absence of his testimony alone did not undermine any previously promised defense. 

More importantly, it is well documented that trial counsel made a strategic choice, 
based upon unexpected developments in the trial testimony and the danger of him 
being cross-examined on the recordings to advise the petitioner not to testify and the 
petitioner made the independent choice not to testify. Further, it appears that at the 

time of trial the petitioner agreed with this tactical choice. This tactical choice is not 
entirely unreasonable given the risks presented by the potential cross-examination 
of Kuperschmidt on his recorded statements played at trial.               

Finally, the petitioner has failed to show that he was prejudiced by any alleged 
errors made by trial counsel or that they resulted in a different outcome at trial. 
Indeed, in weighing the sufficiency of evidence of his conviction on direct appeal, 
the Superior Court illuminated the evidence supporting the petitioner’s attempt 

convictions:                                                              
Relying on accomplice liability, the trial court disposed of Appellant's 
sufficiency challenge to the attempt convictions with the following  
analysis:                                                            
Here, [Appellant] was convicted on numerous Counts of           
Criminal  Attempt  to  Commit  Forgery  (F-3)  under  18        
Pa.C.S. § 4101(2), numerous Counts of Criminal Attempt          
to  Commit  Identify  Theft  (F-3)  under  18  Pa.  C.  S.  §   
4120(a), and numerous Counts of Criminal Attempt to             
Commit Tampering with Records or Identification (M-1)           
under  18  Pa.C.S.  §  4104(a),  [Appellant's]  convictions     
rested  on  his  liability  as  an  accomplice  to  his  co-    
Defendant, Cowher.                                              

At trial, the Commonwealth presented the PSP recording          
in which [Appellant] was informed by DePaolis over the          
phone that Cowher was coming into the office "to take           
care  [of]  the  ballots"  and  that  DePaolis  was  "a  little 
nervous  about  it."  See  Commonwealth  Exhibit  1.            
[Appellant] responded by saying, "Don't be nervous about        
it." I didn't know nothing about it. Me and Myron already       
agreed." Id. [Appellant] went on to tell DePaolis to "relax"    
and assured him they were "still gonna win no matter            
what." Id. In addition, [Appellant] suggested that DePaolis     
turn off the cameras on the office while Cowher was filing      
out the ballots. Id.                                            

The PSP recording clearly shows that [Appellant] was            
fully aware and supportive of Cowher's intention to fill out    
all of the S.O.S. ballots and commit fraud. Specifically,       
[Appellant's] suggestion that DePaolis should turn off the      
cameras shows his intent to promote and aid or agree in         
Cowher's attempt to fraudulently file [sic] out the S.O.S.      
ballots. Given this evidence, a reasonable fact-finder could    
conclude that the verdicts on all the attempt charges were      
correct and that there was sufficient evidence to support       
the jury's conclusions of fact.                                 

Trial Court Opinion, 1/3/17, at unnumbered 17-18. Notably, Appellant 
makes  no  mention  of,  let  alone  argument  against,  his  liability  as 
Cowher's accomplice. Appellant's Brief at 20-26. Additionally, viewing 
all of the evidence in the light most favorable to the Commonwealth, 
we discern no basis on which to disturb the trial court's findings, which 
are supported by the record, or its legal conclusion, which is supported 
by statutory and case law.                                           

(Doc. 41-2, at 23). We agree with the state court that the most compelling evidence 
against Kuperschmidt at trial were his own statements captured on these recordings 
seemingly confirming his participation in the election fraud scheme. Thus, we are 
not persuaded that the testimonial background evidence to which Kuperschmidt 
objects  nor  any  inference  which  may  have  been  drawn  from  trial  counsel’s 

statements regarding him testifying at trial, would have changed the outcome in his 
favor. Thus, this ineffectiveness claim fails on both prongs of the Strickland test 
since Kuperschmidt has shown neither constitutionally deficient conduct by counsel, 
nor demonstrable prejudice to the petitioner.                             

Nor should a certificate of appealability issue in this case. Under 28 U.S.C. § 
2253(c)(2), a court may not issue a certificate of appealability unless “the applicant 
has made a substantial showing of the denial of a constitutional right.” In other 

words, a certificate of appealability should not issue unless “reasonable jurists would 
find the district court's assessment of the constitutional claims debatable or wrong.” 
Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). In 
the instant case Kuperschmidt has made no such showing, nor can he. Rather, 

Kuperschmidt’s claims are both meritless and procedurally defaulted. Therefore, we 
will decline to issue a certificate of appealability.                     
IV. Conclusion                                                            

Accordingly, for the foregoing reasons, we conclude that the Petition for Writ 
of Habeas Corpus should be DENIED and that a certificate of appealability should 
not issue. An appropriate order follows.                                  

Submitted this  14th day of January 2025.                            
                              /s/ Martin C. Carlson                  
                              Martin C. Carlson                      
                              United States Magistrate Judge