from the PCRA Order Entered July 20, 2018 In the Court of
Common Pleas of Philadelphia County Criminal Division at
BEFORE: GANTMAN, P.J.E., STABILE, J., and STEVENS [*] , P.J.E.
Salvatore F Chimenti, appeals from the July 20, 2018, order
entered in the Court of Common Pleas of Philadelphia County
dismissing Appellant's third petition filed under the
Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A.
§§ 9541-9546. After a careful review, we affirm.
Court has previously set forth the relevant facts and
procedural history, in part, as follows:
At approximately 11:30 p.m. on May 10, 1982, [Appellant] shot
Andrew Tucker seven times causing his death.
Several days prior to the shooting, [Appellant] and Tucker
had engaged in a verbal altercation, which [Appellant]
concluded made him "look bad" in the neighborhood.
[Appellant] instructed Bobby Harris to bring the victim to
[Appellant's] home. [O]n May 10, Harris saw the victim in
a tavern and offered to drive him to see [Appellant]. When
the two men confronted each other again, another angry verbal
exchange ensued in front of several witnesses, including
Harris, [Appellant's] brother Mario, and Mike Cavanaugh.
Tucker was unarmed. [Appellant] and Mario both carried guns.
Mario and Cavanaugh were standing on the porch of
[Appellant's] house. [Appellant] was on the third step
leading up to the porch. As the argument became more heated,
[Appellant] drew a .38 caliber weapon and fired seven shots
at Tucker, striking him three times in the chest, in the
groin, through his back and into his heart, the back of his
knee[, ] and the back of his armpit. Mario also opened fire
with a .25 caliber weapon, which likely caused a wound to
Tucker's face. Harris was standing next to Tucker on the
pavement when he was shot. When the police arrived, they
found a fully loaded .38 caliber gun lying next to
Tucker's left leg. Tucker was right-handed.
No witnesses came forward for several weeks. During that
period, [Appellant] repeatedly left messages for Bobby
Harris's family, threatening to harm them if Harris
implicated [Appellant]. Harris responded by seeking legal
counsel, and [he] gave a full statement to the police.
[Appellant] testified in his own behalf. He stated that
Harris and Tucker were members of an organized crime family,
which had a "contract" on his life because he had
not repaid a loan. He claimed that on the night of the
shooting he retrieved a gun for self-defense, and shot Tucker
as he was screaming out of control and displaying a gun
wrapped around a jacket. Additional evidence was presented
that Harris was on the porch and tried to shoot [Appellant],
but Mario deflected the gun away. One of the several defense
eye-witnesses to support the above scenario was Gregory
In rebuttal, the Commonwealth produced a witness who
testified that Spain had told her that he [would testify] as
a surprise witness at trial, even though he had not witnessed
Commonwealth v. Chimenti, No. 2599 PHL 1995, at *1-2
(Pa.Super. filed 7/3/97) (unpublished memorandum) (citation
to PCRA court opinion omitted). At the conclusion of trial,
the jury convicted Appellant of first-degree murder and
possession of an instrument of crime, and Appellant's
trial counsel, Joel Moldovsky, Esquire, filed post-verdict
motions. Thereafter, Appellant retained new counsel, A.
Charles Peruto, Jr., Esquire, who filed supplemental
post-verdict motions. On January 26, 1984, the trial court
denied Appellant's post-verdict motions; however, four
days later, Appellant filed additional supplemental
post-verdict motions, and he retained new counsel, Michael M.
Mustokoff, Esquire, who contacted the Philadelphia District
Attorney's Office with information concerning trial
counsel's alleged subornation of perjury, particularly as
to Gregory Spain.
[Thereafter, the] Commonwealth and [Appellant] struck a deal
providing that if [Appellant] cooperated in the
Commonwealth's investigation of trial counsel [and did
not file post-sentence motions raising claims of
ineffectiveness with regard to the subornation of perjury so
that trial counsel would not be "tipped off, "] the
parties would enter into a plea agreement whereby
[Appellant's] conviction would be vacated and he would
plead guilty to murder generally, with a certification that
the degree of guilt would rise no higher than third degree.
On July 9, 1984, the trial court denied [the] supplemental
post-verdict motions and sentenced [Appellant] to life
imprisonment for first-degree murder and to a concurrent two
and one-half years' imprisonment for [possession of an
instrument of crime]. [Appellant did not file post-sentence
motions.] Appellant filed a [protective] direct appeal to
this [C]ourt and cooperated in the Commonwealth's
investigation of trial counsel.
On March 15, 1985, the parties jointly petitioned
then-President Judge Edmund B. Spaeth, Jr., of [this Court]
to effectuate the agreement between [Appellant] and the
Commonwealth by remanding the case to the Common Pleas Court
for "special assignment to a judge who, after sentence
has been vacated, will accept [Appellant's] negotiated
guilty plea." In an order dated April 18, 1985, Judge
Spaeth granted the petition.
On June 20, 1985, upon application of the trial judge, the
Honorable Lisa Richette, our Supreme Court assumed plenary
jurisdiction of the case to determine "whether the
Superior Court has the power to entertain a plea bargain
after the entry of a judgment of sentence." In the
Matter of Commonwealth v. Chimenti, 510 Pa. 149, 151,
507 A.2d 79, 80 (1986). On March 27, 1986, the [Supreme]
Court vacated Judge Spaeth's order and remanded the case
to [this Court] for proceedings on [Appellant's] direct
appeal. [Specifically, our Supreme Court rejected enforcement
of the agreement entered into by the District Attorney's
Office and Appellant.] The [Supreme] Court [held] that
the order of Judge Spaeth directed the yet unnamed hearing
judge to vacate the prior judgment of sentence and to accept
the guilty plea of [Appellant] to murder generally (not to
rise higher than third degree). This order reduced the
prospective hearing judge to a "rubber stamp,"
empowered only to perform a ministerial function. Neither
Judge Spaeth, nor the Superior Court at large, possessed such
power. The order in question was also problematic on another
score in that Judge Spaeth effectively abrogated a jury
verdict without any semblance of a record. We can in no way
condone such an action….
Id. at 155-56, 507 A.2d at 83.
On May 6, 1986, through new counsel, Paul Schechtman,
Esquire, [Appellant] petitioned this [C]ourt for a remand to
the trial court for an evidentiary hearing on whether trial
counsel suborned perjury at trial. In an order dated May 20,
1986, this [C]ourt denied the request "without prejudice
to renew the request and argue the issue of ineffectiveness
of trial counsel in briefs and before the panel."
Chimenti, No. 2599 PHL 1995, at *3-4.
direct appeal, Appellant relevantly argued Attorney Moldovsky
was ineffective for suborning perjury and failing to call two
witnesses who would have truthfully testified to seeing the
gun lying next to the decedent's body immediately after
the shooting. In finding Appellant was not entitled to relief
on his ineffectiveness claims,  we held the two potential
witnesses would not have assisted Appellant's defense
and, in fact, would have impeached aspects of Appellant's
self-defense theory. Also, we held there was no evidence in
the certified record indicating that trial counsel suborned
perjured testimony.Consequently, we affirmed the judgment of
sentence on April 20, 1987. Commonwealth v.
Chimenti, 524 A.2d 913 (Pa.Super. 1987). Appellant's
petition for allowance of appeal was denied by our Supreme
Court on September 29, 1987.
September 18, 1990, Appellant filed a counseled petition
under the PCRA, which the lower court denied, and Appellant
filed a counseled appeal to this Court. On appeal, Appellant
averred, inter alia, that he was entitled to
specific performance of the agreement he made with the
Commonwealth relating to trial counsel's alleged
subornation of perjury, and all prior counsel were
ineffective in failing to raise either trial counsel's
ineffectiveness in allegedly suborning perjury or
post-verdict counsel's ineffectiveness in attempting to
enter into an agreement with the Commonwealth that was void
finding Appellant was not entitled to relief on his claims,
we relevantly held the following:
Appellant first claims he is entitled to specific performance
of a written agreement to vacate his statutorily-mandated
judgment of sentence and enter a guilty plea to, at most,
third-degree murder. However, our Supreme Court invalidated
that agreement, despite the Commonwealth's advocacy of
it, because it "effectively abrogated a jury verdict
without any semblance of a record." Chimenti,
510 Pa. at 155, 507 A.2d at 83. Indeed, what the agreement
clearly contemplated, though not specifically spelling it
out, was vacating a jury verdict, not on the basis of a
hearing or a record but simply on the basis of allegations in
[A]ppellant's uncontested PCRA petition. A
defendant's conviction and mandatory sentence may not be
set aside merely by agreement of the parties. This claim does
not entitle [A]ppellant to PCRA relief.
Appellant's final two claims are related. He argues he is
entitled to a new trial or the opportunity to file post-trial
motions nunc pro tunc because all prior counsel were
ineffective for failing to raise trial counsel's
ineffectiveness in allegedly suborning perjury and
post-verdict counsel's ineffectiveness in entering into
an agreement that was void ad initio.
The record shows it was [A]ppellant himself who gave perjured
testimony at trial and willingly participated in presenting a
perjured defense. N.T. PCRA, 11/17/92, at 39. Appellant
testified he personally asked Gregory Spain to contact trial
counsel so that both he and Spain could testify Spain drove
[A]ppellant to the crime scene (when in fact Spain had not).
Thus, the record shows [A]ppellant's own testimony at
trial was in furtherance of a deliberate trial strategy
chosen by himself and counsel. Our Supreme Court has
responded to a similar claim defense counsel compelled his
client to offer false testimony:
Having freely and deliberately chosen to offer testimony
which he now asserts was false, [the] appellee stands before
this Court and attempts to reap a windfall new trial on
account of his own perjury. The criminal justice system
cannot and will not tolerate such an obvious and flagrant
affront to the integrity of the truth determining process
thinly disguised under the rubric of "ineffective
Commonwealth v. McNeil, 506 Pa. 607, 618-19, 487
A.2d 802, 807-08 (1985)[.]
We note [A]ppellant apparently never attempted to
substantiate the allegation that counsel suborned perjury by
calling trial counsel to testify. This claim remains further
unsubstantiated by any record evidence. The PCRA court
appointed counsel for witnesses who testified at trial and
who [A]ppellant claimed would support this allegation. None,
however, did so.
Appellant's claims regarding all prior counsels'
ineffectiveness are similarly unsupported. Appellant raised
no clear claim of ineffectiveness against [Attorney] Peruto
in his counseled PCRA petition. Even assuming this claim is
properly before us, nothing in the record-including five
hearings over seven months-suggests [Attorney] Peruto refused
to pursue the claim that trial counsel suborned perjury.
Regarding [Attorney] Mustokoff's ineffectiveness in
advising [A]ppellant to enter into an agreement which later
was effectively rendered null and void by our Supreme Court,
the law is clear that counsel is not ineffective in failing
to predict future decisions….Since [A]ppellant has no
witness willing to substantiate his claim that trial counsel
suborned perjury, no counsel can be deemed ineffective for
failing to pursue, much less prevail on it.
Chimenti, No. 2599 PHL 1995, at *6-13 (some
this Court affirmed the PCRA court's denial of ...