J-S66021-19

                               2020 PA Super 43

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 PEDRO COLON                             :
                                         :
                   Appellant             :   No. 1006 EDA 2019

           Appeal from the PCRA Order Entered March 21, 2019
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0010694-2009

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 PEDRO COLON                             :
                                         :
                   Appellant             :   No. 1007 EDA 2019

           Appeal from the PCRA Order Entered March 21, 2019
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0010695-2009

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 PEDRO COLON                             :
                                         :
                   Appellant             :   No. 1008 EDA 2019

           Appeal from the PCRA Order Entered March 21, 2019
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0010697-2009

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
J-S66021-19


                                                 :
                                                 :
    PEDRO COLON                                  :
                                                 :
                       Appellant                 :   No. 1009 EDA 2019

              Appeal from the PCRA Order Entered March 21, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0010698-2009

    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                                 :        PENNSYLVANIA
                                                 :
                v.                               :
                                                 :
                                                 :
    PEDRO COLON                                  :
                                                 :
                       Appellant                 :   No. 1010 EDA 2019

              Appeal from the PCRA Order Entered March 21, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0010700-2009

BEFORE: STABILE, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

OPINION BY NICHOLS, J.:                               FILED FEBRUARY 21, 2020

        Appellant Pedro Colon appeals from the orders dismissing his first Post

Conviction Relief Act1 (PCRA) petition filed at each of the above-captioned

docket numbers.2          Appellant raises several claims of trial counsel’s

ineffectiveness. We affirm.




____________________________________________


1   42 Pa.C.S. §§ 9541-9546.
2Because Appellant filed an identical petition at each of the above-captioned
docket numbers, we refer to the petition in the singular.


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J-S66021-19


      We state the facts and procedural history as set forth by a prior decision

of this Court:

      On June 21, 2009, at approximately 1:00 am[], Appellant was at
      the La Quinta Restaurant and Bar on the corner of North 5th Street
      and Courtland Street when he got into a physical altercation with
      Christian Aguilar, who was at the bar with his family. After
      Appellant punched Christian Aguilar, two of Christian Aguilar’s
      aunts, Jacqueline Santiago and Jacqueline Quintas, got involved
      in the fight and began to punch Appellant. One of the bar’s
      bouncers intervened in the fight and escorted Appellant from the
      bar. After the fight broke up and Appellant was ejected from the
      bar, Appellant told a blonde woman standing nearby to “clear the
      area,” and that he “was coming back.”

      Approximately 10 to 20 minutes later, a car pulled up in front of
      the bar and Appellant got out of the passenger seat. Appellant
      then pulled out a black handgun, and opened fire into the bar.
      After shooting at least 15 rounds, Appellant walked away from the
      bar and got back into the car, which pulled away. Police arrived
      on the scene, where they found Damien Aguilar, Christian
      Aguilar’s uncle, unresponsive on the floor of the bar. Damien
      Aguilar was taken to Albert Einstein Hospital, where he was
      pronounced dead from a single gunshot wound to the abdomen.
      Several other patrons of the bar were shot and were transported
      to the hospital, including Luis Corcino, Richard Soto, Lizandra
      Perocier, Carmelo Fernandez, and Naiomi Ruiz.

      Juan Aguilar, who knew Appellant from the neighborhood and was
      Damien Aguilar’s nephew, was standing in front of the bar when
      the shooting took place and identified Appellant to police from a
      photo array.    Ms. Santiago and Ms. Collado each identified
      Appellant from a photo array as the man who had fought with their
      nephew and as the man who had returned to the bar and opened
      fire. Mr. Corcino also identified Appellant from a photo array as
      the man in the fight and as the shooter.

      Police went to Appellant’s residence, but he was not at home.
      Later that day, at approximately 7:00 p.m., Philadelphia Police
      Officer Timothy Stephan and Officer Ruben Santiago were
      patrolling the area of 6th Street and Clearfield Street when they
      saw a vehicle, which was being operated by . . . Appellant, fail to
      use a turn signal. Officer Stephan attempted to pull over the car,

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      but Appellant slowed the car to a stop and stuck his head out of
      the window, then continued to drive the car at a high rate of
      speed. One block away, he was struck by another vehicle after
      running a stop sign. He then got out of the car and ran from the
      police. Officer Stephan began pursuing Appellant on foot. As
      Appellant ran, he passed two men sitting in front of a car-detailing
      store. As he passed the men, he yelled something in Spanish,
      pulled a heavy-looking object from the front of his body that was
      wrapped in a t-shirt, and threw it at the two men. Officer Stephan
      continued to chase Appellant, eventually catching up to him and
      subduing him with a taser. Appellant was arrested. The object
      that he discarded during the police chase was never recovered.

Commonwealth v. Colon, 2014 WL 10965819, *1 (Pa. Super. filed Mar. 28,

2014) (unpublished mem.) (some formatting altered). “Appellant’s first jury

trial on these charges commenced on July 14, 2011[,] and resulted in a hung

jury as to all charges on July 26, 2011.” Id. at *2 n.2.

      At Appellant’s second trial in September 2012, a jury convicted

Appellant of first-degree murder, criminal conspiracy, attempted murder,

aggravated assault, carrying a firearm without a license, and possession of an

instrument of crime. The trial court sentenced Appellant to life imprisonment.

Appellant filed post-sentence motions, which were denied.             Appellant

appealed, this Court affirmed, and our Supreme Court denied Appellant’s

petition for allowance of appeal on September 18, 2014. Commonwealth v.

Colon, 99 A.3d 923 (Pa. 2014).

      On February 4, 2015, the PCRA court docketed Appellant’s pro se PCRA

petition at each of the above-captioned docket numbers.        The PCRA court

appointed PCRA counsel, who filed an amended PCRA petition at each docket

number. The counseled amended PCRA petition claimed that Appellant’s trial

                                     -4-
J-S66021-19


and direct appeal counsel were ineffective “because counsel failed to call an

expert witness at trial or request a remand while on appeal, to testify to

scientific studies pertaining to the fallibility of human memory and recall

relating to the reliability of eyewitness testimony.” Am. PCRA Pet., 3/10/16,

at ¶ 4a. On August 9, 2017, PCRA counsel filed a supplemental amended

PCRA petition raising a claim that trial counsel was ineffective for failing to

request a Kloiber3 charge.

       On December 13, 2017, PCRA counsel filed another supplemental

amended PCRA petition asserting that trial counsel was ineffective for not

objecting to the testimony of Officer Ruben Santiago.            Am. PCRA Pet.,

12/13/17, at ¶ 4a.       Specifically, Officer Santiago “testified at trial that he

overheard a woman describing the details of . . . the alibi testimony to Jose

Benesario and heard Benesario ask should I say that in court and then

Benesario went into the courtroom.” Id. PCRA counsel argued as follows:

       This testimony should not have been admitted because Jose
       Ben[e]sario testified as an alibi witness at the first trial and his
       testimony was the same as the second trial and his alleged
       conversation with the woman was not relevant to Benesario’s
       credibility as an alibi witness and should have not been admitted.

Id.

       On January 31, 2019, the PCRA court issued a Pa.R.Crim.P. 907 notice,

which stated that Appellant’s issues lacked merit.          PCRA counsel filed a


____________________________________________


3   Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).


                                           -5-
J-S66021-19


response on February 12, 2019, asserting that the law had changed since

Appellant’s trial to permit expert witness testimony regarding the reliability of

eyewitness testimony.4 Appellant’s Rule 907 Resp., 2/12/19, at 1. The PCRA

court dismissed Appellant’s petition on March 21, 2019.

       PCRA counsel filed a timely notice of appeal at each docket number.5

Appellant timely filed a court-ordered Pa.R.A.P. 1925(b) statement reiterating

all of the issues raised in his PCRA petition.

       Appellant raises the following issues:

       1. Did the [PCRA] court err in denying an evidentiary hearing to
       [A]ppellant when [A]ppellant raised a material issue of fact that
       trial defense counsel was ineffective in not requesting a Kloiber
       charge to the jury?

       2. Did the [PCRA] court err in denying an evidentiary hearing to
       [A]ppellant when [A]ppellant raised a material issue of fact as to
       trial and appellate defense counsel’s ineffectiveness, who were the
       same attorney, in not securing a forensic psychologist w[h]o could
       have testified to the unreliability of the Commonwealth
       eyewitnesses at trial?

       3. Did the [PCRA] court err in denying an evidentiary hearing to
       the [A]ppellant when [A]ppellant raised a material issue of fact
       that [A]ppellant is entitled to a new trial because of evidence that
       was unavailable at the time of trial is now available?


____________________________________________


4 PCRA counsel’s Rule 907 response did not address the other issues raised in
the PCRA petition.
5We note that Appellant’s appeal complies with Commonwealth v. Walker,
185 A.3d 969 (Pa. 2018), in which the Pennsylvania Supreme Court
announced a prospective rule that “the proper practice under [Pa.R.A.P.]
341(a) is to file separate appeals from an order that resolves issues arising on
more than one docket.” Walker, 185 A.3d at 977.


                                           -6-
J-S66021-19


      4. Did the [PCRA] court err in denying appellant funds for expert
      witness, a forensic psychologist, who could have testified to the
      unreliability of Commonwealth eyewitnesses in the case, when the
      [A]ppellant was indigent?

      5. Did the [PCRA] court err in denying [A]ppellant an evidentiary
      hearing when [A]ppellant raised a material issue of fact that trial
      defense counsel was ineffective in failing to object to improper
      Commonwealth rebuttal evidence?

Appellant’s Brief at 2.

      We begin by stating the standard of review.

      This Court’s standard of review regarding an order denying a
      petition under the PCRA is 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. Grayson, 212 A.3d 1047, 1051 (Pa. Super. 2019)

(citation omitted). We have stated that

      to establish a claim of ineffective assistance of counsel, a
      defendant must show, by a preponderance of the evidence,
      ineffective assistance of counsel which, in the circumstances of
      the particular case, so undermined the truth-determining process
      that no reliable adjudication of guilt or innocence could have taken
      place. The burden is on the defendant to prove all three of the
      following prongs: (1) the underlying claim is of arguable merit;
      (2) that counsel had no reasonable strategic basis for his or her
      action or inaction; and (3) but for the errors and omissions of
      counsel, there is a reasonable probability that the outcome of the
      proceedings would have been different.

      We have explained that

         a claim has arguable merit where the factual averments, if
         accurate, could establish cause for relief. Whether the facts
         rise to the level of arguable merit is a legal determination.

         The test for deciding whether counsel had a reasonable
         basis for his action or inaction is whether no competent

                                     -7-
J-S66021-19


         counsel would have chosen that action or inaction, or, the
         alternative, not chosen, offered a significantly greater
         potential chance of success. Counsel’s decisions will be
         considered reasonable if they effectuated his client’s
         interests. We do not employ a hindsight analysis in
         comparing trial counsel’s actions with other efforts he may
         have taken.

         Prejudice is established if there is a reasonable probability
         that, but for counsel’s errors, the result of the proceeding
         would have been different. A reasonable probability is a
         probability sufficient to undermine confidence in the
         outcome.

Commonwealth v. Sandusky, 203 A.3d 1033, 1043-44 (Pa. Super. 2019)

(citations omitted and some formatting altered), appeal denied, 216 A.3d

1029 (Pa. 2019). Boilerplate allegations of ineffectiveness do not establish a

defendant’s burden of establishing relief.    Commonwealth v. Jones, 811

A.2d 994, 1003 (Pa. 2002).

      Furthermore,

      A petitioner is not entitled to a PCRA hearing as a matter of right;
      the PCRA court can decline to hold a hearing if there is no genuine
      issue concerning any material fact and the petitioner is not entitled
      to post-conviction collateral relief, and no purpose would be
      served by any further proceedings. A reviewing court on appeal
      must examine each of the issues raised in the PCRA petition in
      light of the record in order to determine whether the PCRA court
      erred in concluding that there were no genuine issues of material
      fact and in denying relief without an evidentiary hearing.

Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa. Super. 2015) (citations

omitted and some formatting altered).




                                      -8-
J-S66021-19


     By way of background for Appellant’s first issue challenging the Kloiber

charge, the trial court held a conference to discuss the jury charge. At that

conference, the following exchange occurred:

     [Appellant’s Trial Counsel]: I think for the record I better request
     the Kloiber charge.

     THE COURT: Okay. And I will deny the Kloiber charge for the
     reason -- I can’t remember if we were on the record, but under
     the Sanders case, [Commonwealth v. Sanders, 42 A.3d 325
     (Pa. Super. 2012),] -- was it Sanders? I don’t have it with me.
     I believe it’s Commonwealth versus Sanders, the Superior Court
     2012 case, if the witness does not give -- does not make an in-
     court identification Kloiber is not necessary if you give the
     instruction I’m going to give which lays out all of the factors. And
     I took careful notes, I did not see any witnesses who made an in-
     court identification who made an erroneous identification at either
     a photo spread or at a line-up. Everybody who identified in court
     was unmistaken at the line-up or the photo array. So for that
     reason your request for Kloiber is denied. Now, if I’m factually
     incorrect, I’m sure you’ll point that out to me.

     [Appellant’s Trial Counsel]: Did Angela Tate identify in court?

     [Assistant District Attorney]: No, she did not.

                                 *    *    *

     THE COURT: . . . As for -- you asked about Tate?

     [Appellant’s Trial Counsel]: Tate.

     THE COURT: Tate, that’s what we were just talking about. . . .

     THE COURT: Was there anybody else you asked about? I just don’t
     remember, [Appellant’s Trial Counsel].

     [Appellant’s Trial Counsel]: Well, Charlene [Collins] was not able
     to make an identification and she picked out the wrong person in
     the photo array and did not attend a line-up.

     THE COURT: Right. And there was no in-court I.D?

                                     -9-
J-S66021-19



       [Assistant District Attorney]: Correct.

       THE COURT: Okay. If you find somebody who made an in-court
       I.D. who did not make the correct I.D. at the line-up or who picked
       the wrong person out at the photo spread -- I guess the only issue
       at all would be Angela Tate.

                                       *       *    *

       THE COURT: Angela Tate did not make an in-court identification.

       [Assistant District Attorney]: Right. Angela Tate, she also
       narrowed it down to two pictures at the photo spread and made a
       mis-I.D. at the line-up and I did not elicit an in-court I.D. from
       her.

       THE COURT: She did not make an in-court I.D.

       [Assistant District Attorney]: Right.

N.T. Trial, 9/11/12, at 12-16.

       In support of the first issue, Appellant argues that trial counsel was

ineffective for failing to request a Kloiber charge, specifically with respect to

Tate and Collins.6       Appellant’s Brief at 9.        He contends that these two

eyewitnesses did not identify him as the assailant prior to trial.       Appellant

asserts that trial counsel failed to object when the trial court did not issue a

Kloiber charge notwithstanding counsel’s request for such a charge. Id. He

reasons he is entitled to an evidentiary hearing on the issue.

       In Sanders, which the trial court cited above, this Court noted:


____________________________________________


6 Appellant identified the two witnesses at issue in the supplemental PCRA
petition but not in the appellate brief.


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      A Kloiber instruction informs the jury that an eyewitness
      identification should be viewed with caution when either the
      witness did not have an opportunity to view the defendant clearly,
      equivocated on the identification of the defendant, or has had
      difficulties identifying the defendant on prior occasions.

Sanders, 42 A.3d at 332 (citation and footnote omitted).

      However, “[w]here an eyewitness has had protracted and unobstructed

views of the defendant and consistently identified the defendant throughout

the investigation and at trial, there is no need for a Kloiber instruction.”

Commonwealth v. Ali, 10 A.3d 282, 303 (Pa. 2010) (citations omitted and

some formatting altered). Moreover, when a witness does not identify the

defendant in court or declines to identify the defendant in court, a Kloiber

instruction is not required. Sanders, 42 A.3d at 335.

      Here, Appellant’s trial counsel actually requested a Kloiber charge. See

N.T. Trial, 9/11/12, at 12-16. Therefore, Appellant is mistaken, and his trial

counsel cannot be found ineffective for not requesting such a charge. See

Appellant’s Brief at 9-10; Sandusky, 203 A.3d at 1043-44.

      To the extent Appellant contends trial counsel was ineffective for not

objecting when the trial court refused to give a Kloiber charge for Tate and

Collins, see Appellant’s Brief at 10, neither Tate nor Collins identified Appellant

at trial. See N.T. Trial, 9/11/12, at 12-16. Therefore, the trial court was not

obligated to issue a Kloiber charge for those witnesses. See Sanders, 42

A.3d at 335. Because Appellant failed to establish the underlying claim is of

arguable merit, Appellant cannot establish that trial counsel was ineffective


                                      - 11 -
J-S66021-19


for not objecting when the trial court did not issue the requested Kloiber

charge. See Sandusky, 203 A.3d at 1043-44.

      We add that several other eyewitnesses identified Appellant as the

shooter.   See Colon, 2014 WL 10965819 at *1 (noting that Juan Aguilar,

Jacqueline Santiago, and Collado identified Appellant prior to and at trial).

Therefore, even if the issue had arguable merit, Appellant would not have

been able to establish a reasonable probability that the outcome of the

proceedings would have been different. See Sandusky, 203 A.3d at 1043-

44. Accordingly, Appellant’s first issue fails.

      We summarize Appellant’s next three issues together, as they are

interrelated. Appellant argues that trial counsel was ineffective for failing to

call an expert witness “who could have testified to scientific studies pertaining

to the fallibility of human memory and recall relating to the reliability of

eyewitness    testimony.”     Appellant’s      Brief   at   14   (citing,   inter   alia,

Commonwealth v. Walker, 92 A.3d 766, 793 (Pa. 2014), which was filed

on May 28, 2014). Appellant acknowledges that Walker was not in effect at

the time of his trial, but maintains that because Walker was issued while his

direct appeal was pending, his counsel was ineffective for not filing a motion

to remand. Id. at 14-15. Appellant baldly argues that an expert could have

provided exculpatory evidence that was unavailable at his trial. Id. at 18.

      Appellant similarly claims that he petitioned the trial and PCRA court for

funds to pay for such an expert. Id. at 22. He claims that the Commonwealth


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had an affirmative obligation to treat indigent defendants identical to

financially well-off defendants and that a financially well-off defendant could

have retained the expert at issue. Id. at 23. Appellant argues that he was

entitled to have funds for such an expert because the Commonwealth’s entire

case was based on eyewitness testimony. Id. at 23-24.7

       The principles governing our review are as follows.                  “[C]ounsel’s

stewardship must be judged under the existing law at the time of trial and

counsel    cannot    be    deemed      ineffective   for   failing   to   predict   future

developments or changes in the law.” Commonwealth v. Todaro, 701 A.2d

1343, 1346 (Pa. Super. 1997) (citation omitted).              Prior to May 28, 2014,

expert testimony on eyewitness identification was per se inadmissible. See

generally Commonwealth v. Abdul-Salaam, 678 A.2d 342, 352 (Pa.

1996). On May 28, 2014, our Supreme Court issued Walker, holding “that

the admission of expert testimony regarding eyewitness identification is no

longer per se inadmissible in our Commonwealth.” Walker, 92 A.3d at 793.

       It is well-settled in this Commonwealth, however, that “in order for a

new rule of law to apply retroactively to a case pending on direct appeal, the

issue had to be preserved at all stages of adjudication up to and including the

direct appeal.” Jones, 811 A.2d at 1005. In Jones, the defendant argued


____________________________________________


7 The Commonwealth mistakenly asserts that Appellant argued that the
“Walker decision constitutes after-discovered evidence.” Commonwealth’s
Brief at 20. Appellant did not raise such an argument.


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that because a particular case was decided while his direct appeal was

pending, the defendant’s counsel was ineffective “for failing to demand relief

in light of the new . . . decision.” Id. at 1004. Our Supreme Court rejected

the defendant’s argument, reasoning that because counsel failed to preserve

the issue “at trial, counsel could not demand retroactive application of the new

rule upon appeal.” Id. at 1005. The Jones Court reiterated that “[c]ounsel

cannot be held ineffective for failing to predict such a new course in the law.”

Id. (citation omitted).

      Finally, we review the PCRA court’s denial of funds for an expert for an

abuse of discretion:

      The provision of public funds to hire experts to assist in the
      defense against criminal charges is a decision vested in the sound
      discretion of the court and a denial thereof will not be reversed
      absent an abuse of that discretion. At the trial stage, an accused
      is entitled to the assistance of experts necessary to prepare a
      defense. This [C]ourt has never decided that such an appointment
      is required in a PCRA proceeding. We must review the PCRA
      court’s exercise of its discretion in the context of the request, that
      an expert’s testimony is necessary to establish his entitlement to
      relief under 42 Pa.C.S. § 9543(a)(2)(vi), the provision of the PCRA
      which deals with claims of innocence based on after-discovered
      evidence.

Commonwealth v. Reid, 99 A.3d 470, 505 (Pa. 2014) (citation omitted and

some formatting altered).

      Initially, we view Appellant’s trial counsel’s stewardship under the law

that existed at the time of trial, which was that expert testimony on

eyewitness identification was per se inadmissible. See Abdul-Salaam, 678

A.2d at 352; Todaro, 701 A.2d at 1346. Appellant’s trial counsel cannot be

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held ineffective for failing to predict a change in the law. See Jones, 811

A.2d at 1005.        Further, in order for Appellant to have Walker apply

retroactively to his case, Appellant’s trial counsel had to have preserved the

issue at trial. See id. As in Jones, Appellant argued that his “case was not

final until after the Walker case was decided and appellate defense counsel

not only could file a motion to remand but was required to in order to be

effective.” Appellant’s Brief at 15; see Jones, 811 A.2d at 1005. Moreover,

Appellant summarily claimed that such expert testimony on eyewitness

identification   was    exculpatory     without    identifying   which   eyewitnesses

testimony would have been affected.

       To the extent Appellant claims the trial court erred by denying him funds

for an expert witness, such a claim is not cognizable under the PCRA. See 42

Pa.C.S. § 9543(a)(2). Additionally, Appellant failed to identify where in the

record Appellant’s trial counsel requested funds.8 In any event, even if the

request was made, such expert testimony was per se inadmissible at trial.

See Abdul-Salaam, 678 A.2d at 352. To the extent Appellant argues the

PCRA court erred by denying him funds for an expert, he failed to establish

the testimony would have achieved a different outcome or a more favorable

verdict at trial. See Reid, 99 A.3d at 505. Rather, Appellant baldly argues



____________________________________________


8 The docket, however, reflects Appellant’s request to the PCRA court for funds
to hire a psychologist.


                                          - 15 -
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that the expert testimony was exculpatory without discussing any of the

witnesses at issue. Based on this record, the PCRA court did not abuse its

discretion in denying Appellant’s request for funds. See id.

         For his final issue, Appellant argues that trial counsel was ineffective for

failing to object to Officer Santiago’s rebuttal testimony concerning a

conversation that he overheard outside the courtroom during Appellant’s first

trial.   At the second trial, Appellant testified in addition to alibi witnesses

Benesario and Jaira Aponte, Benesario’s wife.9 In relevant part, Benesario

testified that he, his wife, and Appellant were with Appellant on the night of

the shooting. N.T. Trial, 9/11/12, at 200-06. Some of the time was spent at

Penn Treaty Park, eating at a fast food restaurant, answering a phone call,

and smoking marijuana. Id. at 200.

         In rebuttal, the Commonwealth presented the testimony of Officer

Santiago, who had testified at Appellant’s first trial. N.T. Trial, 9/12/12, at

67. Officer Santiago testified that at Appellant’s first trial, he was standing

outside the courtroom with the other sequestered witnesses when Aponte

exited the courtroom after testifying. Id. at 68. According to Officer Santiago,

he heard a woman that he did not see, speaking in Spanish to a person later

identified as Benesario about “Penn Treaty Park, eating at a fast food place

____________________________________________


9 Because Aponte was unavailable to testify at Appellant’s second trial, her
testimony from the first trial was read into the record.




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J-S66021-19


and a phone[]call received,” as well as “using marijuana.” Id. at 68-69, 77.

Officer Santiago testified that Benesario responded to the woman by saying in

Spanish, “Should I say that?” or “Should I say that in court?” Id. at 69, 78.10

At Appellant’s second trial, Appellant’s trial counsel did not object to Officer

Santiago’s rebuttal testimony, but counsel cross-examined Officer Santiago

about what he overheard.

       In this appeal, Appellant contends that trial counsel was ineffective for

not objecting to Officer Santiago’s rebuttal testimony that “Benesario was

prompted by the woman as to what to testify to as an alibi witness.”

Appellant’s Brief at 26.        Specifically, Appellant argues that “the alleged

prompting occurred so far in the past that it would have had no effect on the

testimony of [Benesario] at the second trial.” Id. at 27.

       “The admission of evidence is a matter vested within the sound

discretion of the trial court, and such a decision shall be reversed only upon a

showing that the trial court abused its discretion.”        Commonwealth v.

Antidormi, 84 A.3d 736, 749 (Pa. Super. 2014) (citations omitted).

       [T]he admission of rebuttal testimony is within the sound
       discretion of the trial court, and the appropriate scope of rebuttal
       evidence is defined by the evidence that it is intended to rebut.
       Where the evidence proposed goes to the impeachment of the
       testimony of his opponent’s witnesses, it is admissible as a matter

____________________________________________


10Officer Santiago’s attention was then diverted by another officer informing
him that the trial court was breaking for lunch, at which point he saw the
assistant district attorney and notified him of the conversation he overheard.
N.T. Trial, 9/12/12, at 69-70.


                                          - 17 -
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      of right.   Rebuttal is proper where facts discrediting the
      proponent’s witnesses have been offered.

Commonwealth v. Ballard, 80 A.3d 380, 401-02 (Pa. 2013) (citations

omitted and some formatting altered); see also U.S. v. Arias-Santos, 39

F.3d 1070, 1074 (10th Cir. 1994) (“Questions directed at revealing that the

testimony of a witness was coached are clearly relevant to a jury’s assessment

of the reliability of that witness.” (citation omitted)); U.S. v. Carrillo, 16 F.3d

1046, 1050 (9th Cir. 1994) (“Coaching is a proper subject of impeachment in

cross-examination.” (citation omitted)).

      Here, the Commonwealth presented Officer Santiago’s rebuttal to

Benesario’s alibi testimony, which the trial court properly admitted as

impeachment. See Ballard, 80 A.3d at 401-02; see also Arias-Santos, 39

F.3d at 1074.    Further, Appellant did not cite any legal authority for the

proposition that Officer Santiago’s rebuttal testimony of what he overheard

during the first trial should be excluded from Appellant’s second trial.

Accordingly, Appellant failed to establish the claim has arguable merit and that

trial counsel was ineffective for not objecting to Officer Santiago’s testimony.

See Sandusky, 203 A.3d at 1043-44. For these reasons, because the PCRA

court did not err by dismissing Appellant’s petition and not ordering an

evidentiary hearing, we affirm the order below. See Grayson, 212 A.3d at

1051; Smith, 121 A.3d at 1052.

      Order affirmed.




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J-S66021-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/21/20




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