J-S65007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellee

                    v.

JEFFREY THOMAS

                         Appellant                 No. 378 EDA 2017


              Appeal from the PCRA Order December 21, 2016
             In the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0004364-2013


BEFORE: OLSON, J., OTT, J. and MUSMANNO, J.

MEMORANDUM BY OLSON, J.:                      FILED NOVEMBER 07, 2017

      Appellant, Jeffrey Thomas, appeals from the order entered on

December 21, 2016, denying him relief under the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      On May 26, 2013, Appellant stabbed a man named K.S. (hereinafter

“the Victim”).   The Commonwealth then charged Appellant with attempted

murder, aggravated assault, and other, related crimes.

      The case proceeded to a jury trial.     During the trial, Havertown

Township Police Officer Harvey Pike testified that he was on duty during the

early-morning hours of May 26, 2013.      N.T. Trial, 2/12/14, at 104-105.

Officer Pike testified that, at approximately 1:50 a.m. on May 26, 2013, he

received a call of a reported stabbing outside the Palombaro Club, in

Haverford Township. Id. at 107. Officer Pike arrived on the scene less than
J-S65007-17



a minute after the call, located the Victim, and observed that the Victim “had

a severe laceration on the . . . right bicep, armpit [,] and chest.” Id. at 108.

As Officer Pike testified, the Victim’s arm was “kind of flayed open like a

shrimp, how it butterflies” and the Victim’s “blood was actually pumping” out

of his body from a severed brachial artery. Id. at 109 and 110.

      At the time, Officer Pike had been an emergency medical technician for

over twenty years. Id. at 104. Officer Pike testified that he “went to the

trunk of the car, got the first aid bag, grabbed a bunch of trauma bandages,

four-by-four’s, and tried to use direct pressure and bandage the wound as

best as I could.” Id. at 109. However, Officer Pike testified that the aid was

ineffective and that he was “getting blood-soaked.” Id. at 110. Therefore,

he and a fellow officer decided to use the Victim’s belt as a tourniquet. Id.

at 112.     The effort slowed the bleeding and enabled the Victim to be

transported, via medical helicopter, to Hahnemann University Hospital in

Philadelphia. Id. at 5.

      Dr. James Eakins testified that he was the on-call trauma surgeon on

May 26, 2013 and that he treated the Victim that night.         Id. at 9.   Dr.

Eakins testified:

          [The Victim] had two penetrating wounds one was in his
          neck. The back of his neck as I recall. And the other one
          was in his right arm. He was brought by the helicopter,
          Medi-Vac. According to them, when he came in there he
          had been bleeding a lot. His blood pressure was low.
          Someone prehospital, I don’t know who had put a
          tourniquet on his arm so it wasn’t bleeding when he got to
          us. He had . . . been put to sleep medically, he had a


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        breathing tube in which is pretty common practice for
        patients that are bleeding a lot. We took a look, you know,
        after he got there, took the tourniquet down to take a look
        and it was obvious he had an injury to the major artery in
        his arm. At that point, we involved the vascular surgeon
        and they took him to the operating room to fix it.

                                       ...

        His [major] injury [was to his brachial artery. The artery]
        wasn’t completely cut in half which is actually – you would
        think it would be worse for the artery to be cut in half
        completely. But sometimes – most of the time when that
        happens the ends kind of retract and clamp down and it
        doesn’t bleed as much. His injury was partial which means
        it stays open and it bleeds more actually.        What the
        vascular surgeons did was they took out that piece of the
        artery that was injured and they substituted in – they took
        a piece of vein from his leg and they put it in there as a
        substitute.

Id. at 10-11.

     Dr. Eakins also testified that:    if the wound were to have been left

untreated, the Victim would have died; “[w]ith an injury of this type where

there’s a significant amount of blood loss,” “it [can] cause memory loss;”

and, on the night in question, the Victim’s blood alcohol content was either

.243 or .293. Id. at 13-14 and 19-20.

     The Victim testified at trial and told the jury that he could not

remember anything that happened on the night in question, that he suffers

from lasting, continuous memory loss, and that he experiences a constant

numbness and tingling in his right hand. Id. at 142-148.

     Haverford Township Police Detective Stephen Laughlin also testified at

trial. Detective Laughlin testified that, at approximately 1:59 a.m. on May



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26, 2013, he was told to report to the Palombaro Club to investigate a

reported stabbing.    N.T. Trial, 2/11/14, at 169.     The detective arrived on

location within 30 minutes and, when he arrived, the Victim had already left

in the ambulance. Id. at 170.

       After interviewing eyewitnesses on scene, Detective Laughlin was able

to identify Appellant as a suspect in the stabbing. See id. at 192-193 and

196.   Appellant was arrested days later.       Id. at 206.    On June 6, 2013,

Appellant waived his Miranda rights and spoke to the detective about the

night in question. Detective Laughlin testified:

         I just began speaking to [Appellant] about that night. He –
         initially he did admit that he was at the Palombaro Club. He
         provided me with the names of Pierre Long and Anthony
         Moore who he rode with. At that time he stated to me that
         there were no problems outside – either inside or outside of
         the club the night of this incident. . . . He said that . . . the
         party had ended and he left with Pierre Long and at that
         point no incident had occurred.

                                       ...

         After I spoke to [Appellant] for about an hour, I did tell him
         that I had video of the complete incident. At that time I
         believe it was only at the point where he was admitting that
         he had a verbal argument with the [V]ictim that possibly
         turned physical meaning with a fist fight, not involving a
         knife. He adamantly denied the presence of a knife. I then
         advised him approximately an hour into the interview that I
         did have the video of the whole incident. . . . He denied
         even after [me] letting him know that I had video of the
         incident he still adamantly denied that he was carrying a
         knife that night. . . . It was not until about an hour and a
         half to two hours into the interview that he finally admitted
         that at one point he did pull a small [razor-type] knife out of
         his pocket and strike [the Victim]. . . .          [Appellant]
         described it as a small, [two-inch] knife that he used for

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          work, a [razor-type] knife for stucco work that he typically
          carried on his person for work purposes.

Id. at 213-215.

        Appellant provided a final, written statement to the detective.

Appellant’s statement declares:

          When I left the party two guys were arguing. I tried to
          calm the situation down. The one guy turns to me and says
          “f[**]k you we kill,” so I tried to punch him in the face. I
          walked away and he says “I’m going to come to Norristown
          and get you,” so I turned around and ran to him. I tried to
          punch him again just to try and knock him out. I ended up
          cutting him by accident. I had my knife out because he
          scared me. It wasn’t my intent to cut him. I didn’t know he
          was cut that bad. I really didn’t mean to cut anybody. I
          had my knife out because I was scared. I’m really sorry
          that this happened.

Id. at 219-220; Commonwealth’s Exhibit 26 at 1.

        Detective Laughlin testified that he “asked [Appellant] if the [V]ictim

at the time had a weapon.” Appellant told the detective that the Victim did

not have a weapon and “that at no time did [the Victim] deserve to be

stabbed.”    Id. at 220.   Further, Detective Laughlin testified that Appellant

was the initial aggressor on the night in question. N.T. Trial, 2/12/14, at 80-

81.     Detective Laughlin testified that he based this conclusion on the fact

that:

          [Appellant] told me that he threw the first punch.          I
          reviewed the [surveillance] video and already had
          knowledge that he did from reviewing the video, that he . . .
          struck the victim. And at no point did [the Victim] actually
          attempt to strike [Appellant].

Id.



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        Finally, Detective Laughlin testified that, when Appellant was arrested,

the criminal complaint specified that Appellant was five-feet, ten-inches in

height and that Appellant weighed 200 pounds.           Id. at 93.     The Victim

testified that, on the night in question, the Victim was six-feet, two-inches

tall and weighed 200 pounds. Id. at 157.

        The Commonwealth introduced into evidence surveillance video from

the Palombaro Club, which captured the incident.1         Id. at 34.   The video

shows Appellant, the Victim, Anthony Moore, and James Pierre Long

standing in the street outside of the Palombaro Club.2 See Commonwealth’s

Exhibit 35 at 2:09; N.T. Trial, 2/12/14, at 279 and 312. The Victim began

an apparent argument with James Pierre Long and Appellant,3 which
____________________________________________


1   The surveillance video contains no audio.

2 During trial, Anthony Moore explained the video from his perspective and
James Pierre Long testified (without the aid of the video) as to what
occurred. See N.T. Trial, 2/12/14, at 278-289, 312-317, and 326-327. In
this Court’s summary of the video, we have used Anthony Moore’s narration
testimony and James Pierre Long’s independent testimony to identify the
individuals in the video.

3   Anthony Moore testified that, at the outset of the argument:

          [The Victim] was [initially] talking to Pierre. And we tried to
          stop [the Victim]. But he’s like talking to all of us. He’s
          like, this is my family, man. And that’s what he’s saying,
          this is my family. F[**]k that, this is my family. He threw
          it down, threw it down. We was trying to say [] come on,
          man. But he’s really like talking to all of us. But then I
          guess at that point is when he said, f-you. You know what
          I’m saying, like that.

(Footnote Continued Next Page)


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escalated when the Victim threw a food plate to the ground, ripped off his

shirt,    and   began   to   aggressively      posture   towards   Appellant.   See

Commonwealth’s Exhibit 35 at 2:28 and 2:57; N.T. Trial, 2/12/14, at 283

and 313. After more aggressive posturing and apparent argument by both

the Victim and Appellant, Appellant lunged at the Victim and punched him in

his head. See Commonwealth’s Exhibit 35 at 3:22; N.T. Trial, 2/12/14, at

284 and 314.       James Pierre Long then got in between Appellant and the

Victim and separated the two.          See Commonwealth’s Exhibit 35 at 3:24;

N.T. Trial, 2/12/14, at 284 and 314.

         At this point, Anthony Moore grabbed the Victim and James Pierre

Long grabbed Appellant – and, while Anthony Moore and the Victim stayed

across the street from the Palombaro Club, James Pierre Long and Appellant

walked a half-block up the road. See Commonwealth’s Exhibit 35 at 4:08-

5:04; N.T. Trial, 2/12/14, at 284-286 and 314.

         While James Pierre Long and Appellant walked up the road, the Victim

continued his aggressive posturing and yelling towards Appellant.               See

Commonwealth’s Exhibit 35 at 4:08-5:04; N.T. Trial, 2/12/14, at 284-286

and 314. Nevertheless, throughout this time, the Victim stayed in the area

of the Palombaro Club and did not follow Appellant up the street.               See




(Footnote Continued) _______________________

N.T. Trial, 2/12/14, at 283.



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Commonwealth’s Exhibit 35 at 4:08-5:04; N.T. Trial, 2/12/14, at 284-286

and 314.

        However, when James Pierre Long and Appellant were a half-block

away – and with the Victim still restrained by Anthony Moore and standing

across the street from the Palombaro Club – Appellant suddenly turned

around, sprinted at the Victim, and began striking the Victim on his head

and body.      See Commonwealth’s Exhibit 35 at 5:04-5:20; N.T. Trial,

2/12/14, at 288 and 315.

        When the two separated, Appellant walked up the street and turned

the corner, out of range of the surveillance camera; the Victim stood in the

same general area of where the fight occurred; and, James Pierre Long

walked down the street to meet the Victim. See Commonwealth’s Exhibit 35

at 5:30. The video then shows James Pierre Long attempting to tie

something around the Victim’s arm, and the two walk out of range of the

security camera.    See Commonwealth’s Exhibit 35 at 5:44; N.T. Trial,

2/12/14, at 316.    Approximately two-and-a-half minutes later, the video

shows Officer Pike arriving on scene.   See Commonwealth’s Exhibit 35 at

8:16.

        The Commonwealth also presented the testimony of eyewitness James

Pierre Long. James Pierre Long testified that, on the night of May 25, 2013,

he, Appellant, and Anthony Moore drove to the Palombaro Club together, to

attend a party at the club. N.T. Trial, 2/12/14, at 306. At the party, James

Pierre Long began speaking with the Victim – and the two spoke at various

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times throughout the night.       James Pierre Long testified that, at the

conclusion of the party:

        we got outside it was – me and [the Victim] were still – the
        conversation from the bathroom was still going on it but it
        was nothing aggressive. It was nothing aggressive. Like I
        never at no point felt like that I was going to strike him or I
        felt threatened by him. . . . And then . . . we started
        walking towards the car. . . .

        [W]hat I recall was when we were walking towards the car[,
        the Victim] . . . had his food in his hands and he had threw
        his food. I don’t know what was said between [the Victim
        and Appellant] that triggered that. . . .

        And then at that point I think [Anthony Moore] went to go
        like push on [the Victim] and, you know, like – kind of like
        get [the Victim]. And then I think I might have grabbed
        [Appellant]. And, you know, words were being exchanged
        but I don’t really recall what was actually said that night. . .
        .

        They like kind of squared up like they were going to fight
        like, you know. And they were just kind of moving around
        each other and they were throwing punches but I don’t
        remember nobody getting hit. And then I guess after me
        and [Anthony Moore] must have separated it then [Anthony
        Moore] had [the Victim]. And again me and [Appellant]
        were walking up to the corner towards my car. . . .

        At this point and that’s when [Appellant] pulled his knife
        out. And then when I seen the knife come out that’s when I
        grabbed the tail of his shirt. . . . And then . . . his shirt
        came out of my hands. And that was it. Then after that,
        you know, he ran back down there. . . . And he ran back
        down there and they just looked like they were boxing. It
        looked like they were fighting, they were fighting again. So
        I didn’t realize that [the Victim] had been cut until [the
        Victim] lifted his arm and I seen the blood squirting out of
        his arm. And so – and then that’s when I came in and I
        seen that. And I took my tie off and I told [the Victim] . . .
        hold still because you’re cut. . . . And I tied my tie under

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        this arm here to try and stop – because all this was – when
        I got over there like all this from here to here was open. . .
        . [T]hat whole piece right here was just open. And it was
        just a lot of blood. So I tried to tie him off here, up under
        here but it didn’t work. So I tried to tie him off again here
        by like the bend here and it was still squirting blood. . . .

        [The Victim] was telling me, he was like, [P], I’m okay. He
        called me “P” for Pierre. But he said, P, I’m okay, I’m okay.
        And then at that point he blacked out in my arms and he
        collapsed. So [the Victim] was a little bigger than when this
        took place so it was like dead weight. He just like – this big
        – he just fell in my arms. And I was trying to hold him up
        but he’s heavy so me and him both went down. And then I
        tried to pick him up and put him up on the grass. . . . I
        believe that I picked him up and put him on the grass.
        Because we were on the street. We were like real close to
        the curb. So I got him up and tried to get him up on the
        grass the best that I could.

Id. at 312-317.

     James Pierre Long also testified that he did not remember the Victim

ever saying to Appellant “hey, we kill and I know where you live,” as

Appellant declared in his written statement to the police. Id. at 326-327.

     After the Commonwealth rested, Appellant presented a number of

character   witnesses   who   testified   as   to   Appellant’s   reputation   for

peacefulness and non-violence in the community. See N.T. Trial, 2/19/14,

at 10-40. Appellant did not present any other witnesses. Id.

     The trial court charged the jury on February 19, 2014 and, as is

relevant to the current appeal, the trial court charged the jury on self-

defense. Id. at 136-140.

     On February 19, 2014, the jury found Appellant guilty of one count

each of attempted murder, possession of an instrument of crime, simple

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assault, and recklessly endangering another person and two counts of

aggravated assault.4 On March 28, 2014, the trial court sentenced Appellant

to serve an aggregate term of 12 to 24 years in prison, followed by 12 years

of probation, for his convictions. This Court affirmed Appellant’s judgment of

sentence on March 23, 2015; Appellant did not file a petition for allowance of

appeal with the Pennsylvania Supreme Court.            See Commonwealth v.

Thomas, 120 A.3d 1060 (Pa. Super. 2015) (unpublished memorandum) at

1-9.

       Appellant filed a timely PCRA petition on April 7, 2016. As is relevant

to the case at bar, Appellant claimed in the petition that he was entitled to a

new trial because:         1) his trial counsel was ineffective for failing to

thoroughly investigate his case and discover an eyewitness to the stabbing

named Brandon Gibbs, and his counsel was also ineffective for failing to call

Brandon Gibbs as a witness at trial, and 2) Brandon Gibbs’ statement and

potential testimony constitutes after-discovered evidence, which would likely

compel a different verdict.          Appellant’s PCRA Petition, 4/7/16, at 1-10.

Appellant also attached Brandon Gibbs’ affidavit to his PCRA petition. In the

affidavit, Brandon Gibbs averred:

         1. After midnight on May 26, 2013, I was outside Palombaro
         Club with Turquois Gibbs.
____________________________________________


4 18 Pa.C.S.A. §§ 901(a), 907(a), 2701(a)(1), 2705, 2702(a)(1), and
2702(a)(4), respectively.




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         2. I observed a tall, light skinned man with curly hair, the
         alleged victim in this case, start a fight with [Appellant],
         and continue to try to fight with him even as [Appellant]
         walked away.

         3. I observed that this man was very intoxicated and was
         not going to leave [Appellant] alone, despite being much
         bigger than [Appellant].

         4. I believe that [Appellant] did what he had to do, based
         on the fight that the alleged victim was trying to start, and
         that [Appellant] acted in self-defense.

                                      ...

         6. I and Turquoise Gibbs were both living in the same
         apartment we live in now, and we were both willing to
         testify for [Appellant]; no one ever contacted me to testify
         at trial.

         7. I attempted to find out who [Appellant’s] attorney was by
         reading the newspaper and asking around in Norristown.

         8. I was told by someone who did testify, after the fact, that
         the Gold Pacifica [automobile], which is registered in my
         name, was clearly visible on the video of the incident and
         that that witness believed it was our car.

         9. I would be willing to testify to this information at a PCRA
         hearing. . . .

Affidavit of Brandon Gibbs, dated 3/15/16, at 1.

     On September 15, 2016, the PCRA court held a hearing on Appellant’s

petition and, during the hearing, Appellant called one witness:           Brandon

Gibbs.

     Mr. Gibbs testified that, at the time of the incident, he was familiar

with Appellant and James Pierre Long, but that he did not know the Victim or



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Anthony Moore.     N.T. PCRA Hearing, 9/15/16, at 14, 16, and 39.         As Mr.

Gibbs testified, at the time of the altercation, he was sitting in a vehicle that

was parked directly outside of the Palombaro Club. Id. at 13 and 25. Mr.

Gibbs testified that he observed the following:

        I had just finished helping my dad and my brother pack up
        the speakers [from inside the Palombaro Club]. I went back
        in, got my wife and on the way out this tall light skinned
        guy[, who was the Victim,] he was out there acting
        erratic[ly]. . . . He was using profanity [and] . . . was just
        very aggressive and argumentative. . . . To me he seemed
        to be inebriated. . . . He was being confrontational towards
        . . . [p]retty much everybody.

        [H]e was being more directly aggressive towards Pierre
        [Long]. . . . I guess [Appellant] tried to tell him to calm
        down. [The Victim] then turned his aggression towards
        [Appellant]. . . . [The Victim t]ook his shirt off and started
        wanting to fight [Appellant]. . . .

        I observed [Appellant] try to basically get [Pierre] Long and
        his self to walk away. I observed [the Victim] take a swing
        and punch [Appellant]. . . . I think [Appellant] swung back
        and then [Pierre] Long put his self in-between to try to
        separate them. The [Victim] was still trying to continue to
        fight. [Appellant] started to walk down the street. . . . The
        [Victim] kept walking down after him and threatening him,
        trying to still fight. Like he was – the [Victim] had Pierre
        and there was another guy, I don’t know his name, but they
        was trying to calm him down, but he was a pretty big guy.
        So, there wasn’t so much they could do. . . .

        Well, when [Appellant] was trying to walk away and [the
        Victim] was walking after him, [Appellant] I thought he
        punched him. I guess he stabbed him because I seen blood
        after that and the [Victim] was still, you know, acting – that
        made him even more erratic and as far as his threats and
        the things that he was saying.

Id. at 17-29.


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      Mr. Gibbs testified that, immediately prior to the stabbing, Appellant

was walking away from the confrontation and the Victim “was right behind

him.” Id. at 60. According to Mr. Gibbs, Appellant simply “turned around

and stabbed [the Victim].” Id.

      Mr. Gibbs testified that, after the stabbing, he left the scene in his

vehicle. As Mr. Gibbs testified:

        the next day after the incident I . . . googled like some key
        words, stabbing in Ardmore, a couple other things to try to
        see what happened because I don’t know what happened to
        the [Victim] or [Appellant]. I just wanted to see if there
        was anything written about it and I . . . couldn’t find
        anything. I looked for maybe a couple days and . . . I
        couldn’t find anything.      So, I figured nothing ever
        happened.

Id. at 30.

      Mr. Gibbs testified that he first learned of Appellant’s arrest after

Appellant had been convicted and sentenced; Mr. Gibbs testified that he

contacted Appellant’s attorney as soon as he was able to obtain a contact

number. Id. at 31-32.

      On December 21, 2016, the PCRA court entered an order denying

Appellant relief on his petition.   As the PCRA court explained, Appellant’s

after-discovered evidence claim failed because:

        [Appellant] fail[ed] to show that [Mr. Gibbs’] testimony is
        not cumulative. Mr. Gibbs testified to similar if not the
        same facts already introduced at trial. The only difference
        is the perspective from where the incident was witnessed. .
        . . From Mr. [Gibbs’] testimony, it is clear that his account
        is relatively the same as what was visible in the



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        [surveillance] video as well as from [the testimony of] other
        witnesses. . . .

        [Appellant] here fails also to show that such evidence would
        likely compel a different verdict. As stated above[,] the
        testimony of Mr. Gibbs is cumulative as well as the
        testimony offered does not rise to the level of exculpatory
        evidence.    The level of doubt created by Mr. [Gibbs’]
        testimony does not go beyond that doubt created, if any,
        that was introduced with the video evidence or the other
        testimony offered at trial. . . .

PCRA Court Order, 12/21/16, at 6 (internal citations omitted).

      Moreover, the PCRA court concluded that Appellant’s ineffective

assistance of counsel claim failed because: “Mr. Gibbs was a witness who

was difficult, if not impossible, to locate” and because Mr. Gibbs’ testimony

was cumulative of other evidence that was introduced at trial. Id. at 4-5.

      Appellant filed a timely notice of appeal. Appellant raises three claims

to this Court:

        1. Did the PCRA court err in finding that [Appellant] did not
        have newly discovered evidence that would have been likely
        to change the outcome of trial through the testimony of
        Brandon Gibbs?

        2. Did the PCRA court err in finding that the PCRA [petition]
        should be denied based on a finding of no ineffective
        assistance of counsel, which is not required in a claim for
        newly discovered evidence?

        3. Did the PCRA court err in finding that [Appellant’s trial
        counsel] was not ineffective for his failure to present
        evidence of the self-defense witness, as presented at the
        PCRA evidentiary hearing?




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Appellant’s Brief at 8.5

        As we have stated:

          [t]his Court’s standard of review regarding an order
          dismissing a petition under the PCRA is whether the
          determination of the PCRA court is supported by evidence of
          record and is free of legal error. In evaluating a PCRA
          court’s decision, our scope of review is limited to the
          findings of the PCRA court and the evidence of record,
          viewed in the light most favorable to the prevailing party at
          the trial level. We may affirm a PCRA court’s decision on
          any grounds if it is supported by the record.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010) (internal

citations omitted).

        To be eligible for relief under the PCRA, the petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

resulted from “one or more” of the seven, specifically enumerated

circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily

enumerated circumstances is the “unavailability at the time of trial of

exculpatory evidence that has subsequently become available and would

have changed the outcome of the trial if it had been introduced.”             42

Pa.C.S.A. § 9543(a)(2)(vi).

        To obtain relief based on after-discovered evidence, an appellant must

show that the evidence:

          (1) could not have been obtained prior to the conclusion of
          the trial by the exercise of reasonable diligence; (2) is not
____________________________________________


5   For ease of discussion, we have reordered Appellant’s claims on appeal.



                                          - 16 -
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        merely corroborative or cumulative; (3) will not be used
        solely to impeach the credibility of a witness; and (4) would
        likely result in a different verdict if a new trial were granted.

Commonwealth v. Foreman, 55 A.3d 532, 537 (Pa. Super. 2012), citing

Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008). To determine

whether the evidence is “of such nature and character” to compel a different

verdict in a new trial, a court should consider “the integrity of the alleged

after-discovered evidence, the motive of those offering the evidence, and

the   overall   strength   of   the   evidence   supporting    the   conviction.”

Commonwealth v. Padillas, 997 A.2d 356, 365 (Pa. Super. 2010), appeal

denied, 14 A.3d 826 (Pa. 2010).

      In the case at bar, we agree with the PCRA court that Mr. Gibbs’

testimony would have been cumulative of the evidence presented at trial

and that Mr. Gibbs’ testimony was not “of such nature and character” to

compel a different verdict in a new trial. To be sure, during Appellant’s trial,

the Commonwealth introduced clear video evidence of the entire incident.

When combined with the Commonwealth’s other evidence at trial, Mr. Gibbs’

proposed testimony largely restated the contents of the video and the

Commonwealth’s evidence, from Mr. Gibbs’ perspective and memory.              In

particular, the jury was well-aware that: prior to the fight, the Victim “was

out there acting erratic[ly],” “using profanity,” and “was just very aggressive

and argumentative;” the Victim was inebriated; the Victim’s aggression was

initially directed towards James Pierre Long, but was quickly turned towards

Appellant; “[the Victim t]ook his shirt off and started wanting to fight


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[Appellant];” there was a fight between the Victim and Appellant; the Victim

“was a pretty big guy” and was larger than Appellant; and, prior to the

stabbing, Appellant was walking away from the confrontation.

      We acknowledge that, in some instances, Mr. Gibbs’ proposed

testimony differs from the clear video evidence.       For example, Mr. Gibbs

testified during the PCRA hearing that:      the Victim punched Appellant first

and, immediately prior to the stabbing, when Appellant was walking away

from the Victim, the Victim walked after Appellant and got so close that

Appellant merely “turned around and stabbed” the Victim.            See PCRA

Hearing, 9/15/16, at 27 and 60. However, this proposed testimony is not

“of such nature and character” as to compel a different verdict in a new trial

because the testimony is clearly refuted by the video evidence, which

reveals that: Appellant was the first to strike the Victim and, immediately

prior to the stabbing, Appellant was approximately one-half of a block away

from the Victim – with the Victim being restrained by Anthony Moore – when

Appellant suddenly turned around, sprinted the half-block towards the

Victim, and began striking the Victim about his head and body.             See

Commonwealth’s Exhibit 35 at 5:04-5:20; N.T. Trial, 2/12/14, at 288 and

315; see also Padillas, 997 A.2d at 365 (“before granting a new trial, a

court must assess whether the alleged after-discovered evidence is of such

nature and character that it would likely compel a different verdict if a new

trial is granted. In making that determination, a court should consider the

integrity of the alleged after-discovered evidence, the motive of those

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offering the evidence, and the overall strength of the evidence

supporting the conviction”) (internal citations omitted) (emphasis added).

       Thus, the PCRA court did not abuse its discretion in denying Appellant

relief on his after-discovered evidence claim.

       Appellant’s second and third claims on appeal may be quickly disposed

of, as:    the PCRA court did not engraft ineffective assistance of counsel

requirements upon Appellant’s after-discovered evidence claim (therefore,

the PCRA court did not “err in finding that the PCRA [petition] should be

denied based on a finding of no ineffective assistance of counsel, which is

not required in a claim for newly discovered evidence”)6 and, during the

PCRA hearing, Appellant did not present the testimony of trial counsel

(therefore, Appellant did not satisfy his burden of production on his

ineffective assistance of counsel claim and the PCRA court did not “err in

finding that [Appellant’s trial counsel] was not ineffective for his failure to

present evidence of the self-defense witness”).

       Order affirmed. Jurisdiction relinquished.




____________________________________________


6 Certainly, within the PCRA court’s December 21, 2016 order, the PCRA
court explicitly declared that Appellant’s after-discovered evidence claim
failed because Mr. Gibbs’ proposed testimony was both cumulative and not
“of such nature and character” as to compel a different verdict in a new trial.
See PCRA Court Order, 12/21/16, at 6.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/7/2017




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