J-S02026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

NAEEM JONES

                            Appellant                No. 1432 EDA 2016


                   Appeal from the PCRA Order April 28, 2016
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0006591-2007


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MOULTON, JJ.

MEMORANDUM BY STABILE, J.:                           FILED APRIL 19, 2017

        Appellant, Naeem Jones, appeals from the April 28, 2016 order

entered in the Court of Common Pleas of Philadelphia County (“PCRA

court”), denying his petition for collateral relief pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46.      Upon review, we

affirm.

        The procedural history of the matter is undisputed. Following a jury

trial from August 18-25, 2008, Appellant was found guilty of first-degree

murder and possessing instruments of crime (“PIC”).1       Appellant     was

sentenced to life without parole on the murder charge.      After having his

direct appellate rights reinstated on November 19, 2010, Appellant appealed

____________________________________________


1
    18 Pa.C.S.A. §§ 2502(a) and 907, respectively.
J-S02026-17



to this court.     On November 15, 2011, this Court affirmed Appellant’s

judgment of sentence.       See Commonwealth v. Jones, 3389 EDA 2010,

Unpublished Memorandum at 11 (Pa. Super. Filed Nov. 15, 2011).                  Our

Supreme Court denied Appellant’s petition for allowance of appeal on April 4,

2012. Appellant filed a timely pro se PCRA petition on December 21, 2012.

The PCRA court appointed counsel, who filed an amended PCRA petition on

August 12, 2015, an addendum to the petition on October 15, 2015, and a

motion to supplement evidence on January 20, 2016.

         The PCRA court held a hearing on January 21, 2016, and April 1, 2016.

Following post-hearing briefs by the parties, the PCRA court denied the

petition on April 28, 2016. Appellant filed a timely appeal on May 4, 2016.

The PCRA court did not direct Appellant to file a concise statement; however,

the PCRA court filed a Pa.R.A.P. 1925(a) opinion on May 24, 2016.

   Appellant raises three questions on appeal, which we quote verbatim.

   I.      Was trial counsel ineffective for failing to request an alibi instruction
           where counsel presented alibi testimony and argued that alibi in his
           closing? Was this failure the cause of significant prejudice to
           Appellant’s cause?

   II.     Was trial counsel ineffective for failing to object to the introduction
           of bad acts evidence, including a police photo, that met none of the
           exceptions of a Pa.R.E. 404§(b)(1)? Was this failure the cause of
           significant prejudice to Appellant’s cause?

   III.    Was after discovered evidence that was wholly exculpatory, credible
           and compelling enough to warrant a new trial?

Appellant’s Brief at 1 (sic).




                                        -2-
J-S02026-17



      Our standard of review of a PCRA court’s denial of a PCRA petition is

well settled.

      We review an order dismissing a petition under the PCRA in the
      light most favorable to the prevailing party at the PCRA level.
      This review is limited to the findings of the PCRA court and the
      evidence of record. We will not disturb a PCRA court’s ruling if it
      is supported by evidence of record and is free of legal error.
      This Court may affirm a PCRA court’s decision on any grounds if
      the record supports it. Further, we grant great deference to the
      factual findings of the PCRA court and will not disturb those
      findings unless they have no support in the record. However, we
      afford no such deference to its legal conclusions. Where the
      petitioner raises questions of law, our standard of review is de
      novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      After careful review of the record, the briefs, and the relevant case

law, we find that the PCRA court’s May 24, 2016 opinion, thoroughly and

adequately addresses all of Appellant’s claims.     See Trial Court Opinion,

5/24/2016, at 4-12. The PCRA court’s findings are supported by the record

and are free of legal error. We direct that a copy of the PCRA court’s May

24, 2016 opinion be attached to any future filings in this case.

      Order affirmed.




                                     -3-
J-S02026-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/19/2017




                          -4-
     ,--- ..      --· ..                                                                                            Circulated 03/23/2017 01:00 PM




                                              IN
                                              IN     THE
                                                     THE COURT OF COMMON
                                                         COURT OF COMMON PLEAS
                                                                         PLEAS
                                      FIRST
                                      FIRST JUDICIAL DISTRICT OF
                                            JUDICIAL DISTRICT OF PENNSYLVANIA
                                                                 PENNSYLVANIA
                                                      CRIMINAL
                                                      CRIMINAL TRIAL
                                                               TRIAL DIVISION
                                                                     DMSION


          COMMONWEALTH OF PENNSYLVANIA
          COMMONWEALTH OF PENNSYLVANIA                                      : CP-51-CR-0006591-2007
                                                                              CP-51-CR-0006591-2007




                     v.                   FILED
                                          FILED
                                                                                                             Comm. v. Jones,
                                                                                       CP-51-CR-QoQ659127 Comm
                                                                                       CP,51.CR-0006591-2007          Jones Naoam
                                                                                                                             Naeem

                                            MAY 2 4 2016
                                            MAY     2016                                                 e>p;r;on
                                                                                                         Opiron




          NAEEM JONES
          NAEEM JONES                 Criminal Appeals Unit
                                      Criminal Appeals Unit

                                    First Judicial Distrtct of PA
                                    First Judicial   District  PA
                                                                of
                                                                                            II 111111111111111111111
                                                                                                    7451116811
                                                                                                    7451116811


,I
                                                                      OPINION
                                                                      OPINION
          McDermott,
          McDermott            J.                                                                                   May
                                                                                                                    May 24
                                                                                                                        24,     2016
                                                                                                                                2016



          Proceduralllistory
          Procedural History



                     On
                     On November
                        November         8, 2006,
                                            2006 the
                                                  the Petitioner,
                                                      Petitioner Naeem
                                                                  Naeem Jones,
                                                                        Jones was
                                                                               was arrested·
                                                                                   arrested and
                                                                                             and charged
                                                                                                 charged with
                                                                                                         with



          Murder and
          Murder and       related
                           related offenses. On August
                                   offenses On  August 25,
                                                       25 2008,
                                                           2008 before the Honorable
                                                                before the Honorable Carolyn
                                                                                     Carolyn Temin,
                                                                                             Temin a jury
                                                                                                     jury



          returned guilty
          returned guilty verdicts
                          verdicts to First-Degree Murder
                                   to First-Degree Murder and
                                                          and Possession
                                                              Possession of an Instrument
                                                                         of an Instrument of
                                                                                          of Crime
                                                                                             Crime


          PlC On
          ("PIC"). On December
                      December 18
                               18, 2008,
                                   2008 Judge
                                         Judge Temin
                                               Temin imposed
                                                     imposed a term
                                                               term of imprisonment of
                                                                    of imprisonment of life without
                                                                                            without                      life




                                           1
                                          The Petitioner
          parole for First-Degree Murder. The
          parole for First-Degree Murder.1    Petitioner did
                                                         did not
                                                             not file an
                                                                      an appeal.
                                                                         appeal file




                     On May
                     On     13, 2009,
                        May 13  2009          the
                                              the Petitioner
                                                  Petitioner filed
                                                             filed a Post-ConvictionRelief
                                                                     Post-Conviction Relief Act PCRA petition,
                                                                                            Act ("PCRA") petition



          seeking reinstatement of
          seeking reinstatement of his appellant rights.·
                                   his appellant rights OnOn November
                                                             November 19,
                                                                      19 2010,
                                                                          2010 the
                                                                               the Petitioner's
                                                                                   Petitioners direct
                                                                                                direct




          appeal
          appeal rights
                 rights were
                        were reinstated.
                             reinstated  On December
                                         On December 9, 2010,
                                                        2010 the
                                                              the Petitioner
                                                                  Petitioner filed
                                                                             filed an
                                                                                   an appeal
                                                                                      appeal with
                                                                                             with Superior
                                                                                                  Superior



          Court
          Court alleging
                alleging that
                         that the
                              the evidence
                                  evidence was insufficient
                                               insufficient to
                                                            to support
                                                               support First-Degree
                                                                       First-Degree Murder.
                                                                                    Murder On November



          15,
          15 2011,
              2011 Superior
                   Superior Court
                            Court affirmed
                                  affirmed his
                                           his judgment
                                               judgment of
                                                        of sentence.
                                                           sentence  On December
                                                                     On December 7, 2011,
                                                                                    2011 the
                                                                                          the



          Petitioner
          Petitioner filed
                     filed a Motion
                             Motion to
                                    to Vacate
                                       Vacate and/or
                                              and/or Reconsider
                                                     Reconsider Fines,
                                                                Fines Costs,
                                                                       Costs and
                                                                             and Restitution,
                                                                                 Restitution which
                                                                                              which Judge
                                                                                                    Judge



          Temin
          Temin denied
                denied on
                       on December 21 On
                          December 21. On April
                                          April 4, 2012,
                                                   2012 the
                                                         the Supreme
                                                             Supreme Court
                                                                     Court denied
                                                                           denied Petitioner's
                                                                                  Petitioners




          I The
           The Petitioner received
                          received no
                  Petitioner       no further penalty
                                              penalty on
                                           ftrther    on the PIC
                                                             PlC charge.
                                                                the
                                                                 charge
     Petition for Allowance
     Petition for
                  Allowance of Appeal. On
                            of Appeal  On December
                                          December 21, 2011, the
                                                   21 2011       Petitioner filed
                                                             the Petitioner filed   PCRA -petition.
                                                                                  a PCRA petition




     On August 122015
     On August 12, 2015,        appointed PCRA
                                appointed PCRA counsel
                                               counsel, Susan
                                                        Susan Burt
                                                              Burt, Esquire, filed an
                                                                    Esquire filed     Amended Petition
                                                                                   an Amended Petition




     alleging layered
     alleging layered claims
                      claims of
                             of ineffective
                                ineffective assistance
                                            assistance and
                                                       and a claim
                                                             claim of after-discovered evidence
                                                                   of after-discovered evidence.                  Qn
                                                                                                                  On

     October 15
     October     2015, PCRA
             15, 2015  PCRA counsel
                            counsel filed an addendum
                                    filed an addendum to
                                                      to that petition. On
                                                         that petition     December 28
                                                                        On December     2015 the
                                                                                    28, 2015, the




     Commonwealth
     Conunonwealth         filed   Motion to
                           filed a Motion to Dismiss,
                                             Dismiss but
                                                      but did not oppose
                                                          did not        an evidentiary
                                                                  oppose an             hearing with
                                                                            evidentiary hearing with regard
                                                                                                     regard



     to the Petitioners after-discovered
     to the Petitioner's after-discovered evidence
                                          evidence claim.
                                                   claim



               On January
               On January 20  2016, PCRA
                          20, 2016  PCRA counsel
                                         counsel filed
                                                 filed a Motion
                                                         Motion to
                                                                to Supplement
                                                                   Supplement Evidence of
                                                                              Evidence of



     Ineffectiveness
     Ineffectiveness       of Trial
                           of Trial Counsel,
                                    Counsel arguing
                                             arguing an
                                                     an additional claim. On
                                                        additional claim  On January
                                                                             January 21,
                                                                                     21 2016, this Court
                                                                                         2016 this Court



     held an evidentiary hearing, in
     held an evidentiary hearing     which Robert
                                  in which Robert Corbin
                                                  Corbin testified
                                                         testified concerning
                                                                   concerning after-discovered
                                                                              after-discovered




     evidence. The
     evidence  The hearing
                   hearing was
                           was bifurcated,
                               bifurcated with  Corbin testimony
                                           with Corbin's testimony concluding on April
                                                                   concluding on          2016
                                                                                 April 1, 2016.



     Trial counsel,
     Trial counsel Fred  Harrison, Esquire
                    Fred Harrison  Esquire also
                                           also testi:~ed on this
                                                testified on this date. On April
                                                                  date On  April 21,
                                                                                 21 the·
                                                                                     the



     Commonwealth filed
     Commonwealth filed a Post-Hearing
                          Post-Hearing Brief
                                       Brief requesting this Court
                                             requesting this Court to
                                                                   to deny the
                                                                           the Petitioner PCRA
                                                                               Petitioner PCRA




     relief. On
     relief  On April
                April 25,
                      25 2916, the Petitioner
                          2016 the            filed a Supplemental
                                   Petitioner filed   Supplemental Brief
                                                                   Brief in
                                                                         in Support
                                                                            Support of   New Trial.
                                                                                    of a New Trial



     On
     On   April 28
          April 28,     this Court dismissed the Petitioner's claims. Ori
                        this Court dismissed the Petitioners claims   On May
                                                                          May 4, 2016,
                                                                                 2016 the  Petitioner filed
                                                                                       the Petitioner filed a




     Notice
     Notice of
            of Appeal
               Appeal to
                      to Superior
                         Superior Court.
                                  Court




     Facts



               In
               In its November
                  its November 15,
                               15 2011
                                   2011 opinion,
                                        opinion the
                                                 the SuperiorCourt
                                                     Superior Court summarized the facts
                                                                    summarized the facts as
                                                                                         as follows:
                                                                                            follows



                        On the
                        On   the evening
                                  evening ofof February
                                                February 20,20 2006,
                                                                2006 thethe victim
                                                                            victim [Steven Bartley]
                                                                                               Bartley and and

                    his Mend
                     his
                        friend, Terrance     Speller ("Speller"),
                                 Terrance Speller      Speller        went
                                                                      went  to
                                                                            to  the
                                                                                the Big
                                                                                    Big   Fells'a
                                                                                          Fellsa  sports
                                                                                                  sports bar
                                                                                                           bar

                    at 33rd and Reed Streets in Philadelphia.
                    at 33rd and Reed Streets in
                                                        Philadelphia     Although
                                                                         Although Speller
                                                                                      Speller was treating
                                                                                                     treating

                    the bar's patrons
                    the bars
                                patrons toto thinks
                                             drinks, hehe and   the victim
                                                           and the   victim were notnot warmly
                                                                                          warmly received.
                                                                                                   received

                    Testimony
                    Testimony was was presented
                                        presented that
                                                     that [the Petitioner]
                                                                 Petitioner argued
                                                                               argued with
                                                                                        with Speller
                                                                                              Speller about
                                                                                                         about

                    the use   of the juke box in the bar. Additionally,
                    the use of the juke     box  in  the  bar   Additionally one of [the Petitioner's]
                                                                                  one  of      Petitioners

                    friends,
                    Mends Charles='Biggie"
                              Charles Biggie Waters           Waters had
                                                    Waters ("Waters"),      had a heated
                                                                                    heated argument
                                                                                             argument withwith

                    the
                    the victim   when the
                        victim when      the victim
                                              victim tried
                                                       tried to
                                                             to talk
                                                                 talk to
                                                                      to a woman whom whom Waters
                                                                                              Waters stated
                                                                                                        stated

                    was
                    was there    with him
                         there with    him and
                                             and the
                                                  the [the Petitioner].
                                                            Petitioner

                        Later
                        Later that    evening, Kamira
                                that evening     Kamira Woods         Woods was
                                                            Woods ("Woods")               screaming in
                                                                                    was screaming       in the
                                                                                                            the

                    mens
                    men's bathroom. James Frager
                            bathroom       James   Frager ("Frager")
                                                            Frager and others rushed in and found
                                                                         and  others  rushed   in and   found

                    Speller
                    Speller with
                             with his
                                   his pants
                                       pants and
                                               and belt
                                                    belt open.
                                                          open Speller
                                                                  Speller had
                                                                          had his
                                                                                his hands
                                                                                    hands around     Woods
                                                                                            around Woods'


                                                                2

·t
             neck.
             neck        [The Petitioner
                                  Petitioner] had          dated Woods
                                                    had dated       Woods for   for five
                                                                                      five years
                                                                                            years but but they
                                                                                                             they broke
                                                                                                                     broke up   up
              the year
             the
                   year before
                            before, as      as she
                                                she alleged
                                                      alleged he  he had
                                                                       had hit
                                                                             hit herher and     threated her
                                                                                          and threated          her. Frager
                                                                                                                          Frager
              testified that
             testified      that [the Petitioner
                                             Petitioner] and  and the     other men
                                                                    the other       men argued
                                                                                            argued with with Speller
                                                                                                                 Speller and  and
              the victim about this incident until the bartender announced "last call
             the  victim      about       this   incident    until  the   bartender       announced          last    call" andand
              the bar
             the  bar patrons
                          patrons thereafter
                                         thereafter wentwent outout onto
                                                                     onto thethe street
                                                                                    street.                          .
                  Frager testified
                  Frager       testified that        when he
                                               that when      he left the
                                                                  left
                                                                        the bar
                                                                              bar, [the Petitioner
                                                                                            Petitioner] was    was standing
                                                                                                                       standing
              outside with the victim, Speller
             outside      with     the    victim     Speller, Waters, and Curtis Scott. A police
                                                                  Waters     and     Curtis   Scott           police officer
                                                                                                                         officer
              driving to the scene
             driving      to  the      scene of an
                                                 of  an unrelated accident observed the victim talking
                                                         unrelated      accident       observed       the   victim       talking
              emphatically to
             emphatically            to another
                                          another man man outside
                                                             outside the      bar. As
                                                                        the bar        As Frager
                                                                                            Frager got got into
                                                                                                              into his
                                                                                                                     his carcar[,]
              he heard
             he   heard gunshots
                             gunshots, but      but did
                                                     did notnot observe       anything. Frager
                                                                  observe anything              Frager then  then observed
                                                                                                                     observed
              [the Petitioner
                   Petitioner] and       and others
                                                others standing
                                                         standing over over thethe victim
                                                                                     victim inunediately
                                                                                                immediately after              the
                                                                                                                       after the


              shooting.
             shooting

                  Testimony was
                  Testimony              was presented
                                                presented that  that the
                                                                       the victim
                                                                             victim died died of  of multiple
                                                                                                       multiple gunshot gunshot
              wounds and
             wounds        and the  the manner
                                           manner of  of death
                                                           death was      homicide. Dr
                                                                    was homicide             Dr. Gregory
                                                                                                   Gregory McDonaldMcDonald
              stated    that the
              stated that       the victim
                                       victim sustained
                                                   sustained approximately
                                                                  approximately nine     nine toto twelve
                                                                                                     twelve gunshots
                                                                                                                  gunshots[,]
              fired from at least two semi-automatic weapons
             fired    from       at   least    two    semi-automatic          weapons. The victim was
                                                                                                 The    victim       was shotshot

              twice in the face at close range
             twice     in  the    face      at close    range. Those bullets penetrated
                                                                   Those     bullets     penetrated his skull
                                                                                                           his    skull, brain
                                                                                                                            brain

              stem,
              stem and  and cerebellum
                               cerebellum[,] and       and immediately
                                                              immediately destroyeddestroyed his   his ability
                                                                                                         ability to        move
                                                                                                                       to move
              volitionally. The
             volitionally            The victim
                                             victim waswas also      shot in the back, arms, legs, and chest.
                                                              also shot in the back arms legs and chest

              Those bullets
              Those     bullets pierced
                                      pierced his       spine, liver, kidney, and lungs.
                                                   his spine liver kidney and lungs


                  The Commonwealth presented
                  The       Commonwealth                 presented evidence
                                                                         evidence that    that    later
                                                                                                  later thatthat    day,
                                                                                                                    day [the
              Petitioner]
              Petitioner called his friend,
                                called       his  Mend Vincent Dickerson ("Dickerson"),
                                                            Vincent     Dickerson          Dickerson and            and stated
                                                                                                                           stated


              that there
             that   there had had been  been a problem
                                                   problem with          Woods at
                                                                 with Woods           at the
                                                                                          the bar.
                                                                                                bar [The Petitioner]
                                                                                                                   Petitioner

              stated    that W
              stated that      Woodscods had had been      prostituting herself
                                                   been prostituting         herself and and that
                                                                                               that hehe shot
                                                                                                           shot a man  man that
                                                                                                                              that
              was    trying to
              was trying          to get get involved
                                               involved on         Woods behalf
                                                              on Woods'           behalf        [The Petitioner]'
                                                                                                          Petitioner told     told

                               that he thought the police were looking for him and that he did
              Dickerson
              Dickerson that            he thought the police were looking for him and that he did
              not  know
              not know where    where to      to gogo oror what
                                                             what to  to do.
                                                                           do.22 TheThe police
                                                                                           police encountered
                                                                                                       encountered            [the
              Petitioner]
              Petitioner later   later that       night in
                                           that night     in an
                                                              an unrelated
                                                                   unrelated incident;
                                                                                   incident he   he was in     in a car car with
                                                                                                                             with

              Biggie
              Biggie and  and others.
                                   others         The police
                                                  The    police stopped
                                                                    stopped the         car due to a suspicion
                                                                                  the car due to                suspicion of     of

              marijuana          The
              marijuana The car was searched and [the Petitioner]
                                          car  was   searched      and          Petitioner was arrested for drug
                                                                                                  was    arrested       for  drug

              possession.
              possession
                   Woods gave
                  Woods           gave a statement
                                                statement to    to the    police on February 21, 2006
                                                                    the police on February 21                       2006 and   and

              November 3, 2006.
             November                 2006 In        her first statement,
                                                  In her  first    statement she     she omitted
                                                                                           omitted reference
                                                                                                        reference to      to [the

              Petitioner];
              Petitioner in       in thethe second
                                              second [statement], she       she overcame
                                                                                   overcame her    her fear
                                                                                                          fear of  of him
                                                                                                                        him andand

              his
              his history
                   history        of
                                  of violence
                                         violence      and
                                                       and described
                                                              described his   his participation
                                                                                     participation         in
                                                                                                           in thethe murder.
                                                                                                                         murder
              Woods told
              Woods                police that
                          told police          that she
                                                      she observed
                                                             observed [the Petitioner]
                                                                                    Petitioner point point a gun   gun at   at the
                                                                                                                                the

             victim,
              victim stretch
                          stretch out   out his
                                              his arm,
                                                   arm   and
                                                          and   shoot
                                                                 shoot  at
                                                                         at the
                                                                            the    victim
                                                                                   victim    numerous          times.
                                                                                                               times       When
                                                                                                                           When
              [the Petitioner]
                     Petitioner learned    learned that       Woods gave
                                                       that Woods
                                                                          gave a statement
                                                                                        statement to    to thethe police
                                                                                                                    police on    on

              February
              February 21,   21 2006,2006 he   he sought
                                                    sought her her out
                                                                    out the
                                                                          the next
                                                                                 next dayday toto ask
                                                                                                   ask if if the·
                                                                                                              the detectives
                                                                                                                    detectives


             mentioned
              mentioned his      his name,
                                         name whosewhose picture
                                                             picture theythey showed
                                                                                 showed her,  her and  and whose
                                                                                                              whose names  names

              the police
              the             had
                  police had. Thereafter, in early
                                         Thereafter        in  early November, Dickerson also provided
                                                                       November           Dickerson        also    provided a




2
 Dickerson testified that the statement
            testified         statement presented
                        that the        presented by
                                                  by the Commonwealth
                                                         Commonwealth that the Petitioner confessed
                                                                  the                      that the
                                                                                          confessed   Petitioner                 was fabricated
                                                                                                                                  was   fabricated

by
by police.
   police



                                                                         3
I




                             statement to
                               statement   to the   police detailing [the Petitioner's]
                                                the police detailing          Petitioners      involvement .in
                                                                                              involvement           the
                                                                                                                in the


                             murder.
                             murder.3
                                        3 [The Petitioner]   was arrested
                                                 Petitioner was   arrested onon November
                                                                                November 8, 2006. 2006
                                 A Cobra
                                    Cobra Arms
                                            Arms M-lM-11 semi-automatic
                                                           semi-automatic weapon
                                                                              weapon was     found in
                                                                                        was found     in an
                                                                                                         an abandoned
                                                                                                            abandoned

                            house around the comer from 33rd street. Officer Ernest Bottomer;a
                            house   around    the corner  from       street   Officer  Ernest   Bottomer       forensic
                                                                                                               forensic


                            ballistics expert, testified that the gun
                            ballistics expert testified that the
                                                                         was one
                                                                   gun was         of the  murder
                                                                               one of the murder weapon.
                                                                                                     weapon Officer
                                                                                                                 Officer

                            Bottomer testified that there was a least
                            Bottomer testified that there was
                                                                      least one
                                                                             one other
                                                                                 other gun    used in
                                                                                         gun used    in the
                                                                                                        the murder.
                                                                                                            murder
                                 The
                                 The defense presented the testimony of Debbie Royster ("Royster'').
                                        defense   presented   the testimony of Debbie          Royster     Royster
                            Royster    testified that when the shots
                            Royster testified     that when the shots rang      out she
                                                                         rang out[,]        was in
                                                                                       she was    in the
                                                                                                      the ladies'
                                                                                                          ladies room
                                                                                                                   room

                            of the bar with [the Petitioner].
                            of the bar with          Petitioner   Royster averred
                                                                  Royster    averred that
                                                                                       that she
                                                                                            she and
                                                                                                  and [the Petitioner]
                                                                                                            Petitioner

                            were doing
                            were    doing cocaine
                                             cocaine together
                                                       together  at that
                                                                 at        time and
                                                                     that time   and exited
                                                                                        exited the
                                                                                                 the bathroom
                                                                                                       bathroom upon
                                                                                                                   upon
                            hearing the
                            hearing   the gunshots.
                                           gunshots



         Commonwealth
         Commonwealth                 Naeem Jones,
                                   v. Naeem Jones 3389  EDA 2010
                                                   3389 EDA 2010 (November
                                                                 November 15,
                                                                           15 2011) (non-precedential
                                                                              2011 non-precedential


         decision) (internal
         decision            citations omitted).
                   internal citations  omitted


         Discussion
         Discussion



                        The Petitioner
                        The            raises four layered ineffective assistance of counsel claims along with a
                            Petitioner raises four layered ineffective assistance of counsel claims along with




         claim of after-discovered evidence. To
         claim of after-discovered evidence  To obtain relief based
                                                obtain relief based on
                                                                    on a claim
                                                                         claim of
                                                                               of ineffective
                                                                                  ineffective assistance
                                                                                              assistance of
                                                                                                         of



         counsel, a petitioner
         counsel               must show
                    petitioner must      that such
                                    show that      ineffectiveness "in
                                              such ineffectiveness in the
                                                                       the circumstances
                                                                           circumstances of
                                                                                         of the
                                                                                            the particular
                                                                                                particular




         case, so undermined the truth-determining process
         case so undermined the truth-determining  process that
                                                           that no
                                                                no reliable
                                                                   reliable adjudication
                                                                            adjudication of
                                                                                         of guilt
                                                                                            guilt or
                                                                                                  or



         innocence
         innocence could have taken
                   could have taken place
                                    place." Commonwealth
                                            Commonwealth v. Jones,
                                                            Jones 912  A.2d 268,
                                                                   912 A.2d 268 278
                                                                                 278 (Pa.
                                                                                     Pa 2006);
                                                                                          2006 42
                                                                                               42



         PaC.S.
         Pa.C.S           § 9543(aX2Xii).
                            9543a2ii Counsel
                                          Counsel is strongly
                                                     strongly presumed
                                                        is
                                                                       to have
                                                              presumed to      rendered effective
                                                                          have rendered effective assistance
                                                                                                  assistance and
                                                                                                             and



         made
         made all significant
                  significant decisions
                    all
                              decisions in
                                        in the
                                           the exercise of reasonable
                                               exercise of reasonable professional
                                                                      professional judgment.
                                                                                   judgment Strickland
                                                                                             Strickland v.



         Washington  466 U.S
         Washington, 466 U.S. 668 1984 Commonwealth
                              668 (1984); Commonwealth v. Weiss, 81 A.3d
                                                          Weiss 81  A.3d 7_67,
                                                                         767 783
                                                                               783 (Pa.
                                                                                   Pa 2013).
                                                                                        2013

                        To overcome this
                        To overcome this strong
                                         strong presumption
                                                presumption, the
                                                             the Petitioner
                                                                 Petitioner has
                                                                            has to
                                                                                to satisfy
                                                                                   satisfy the
                                                                                           the performance
                                                                                               performance and
                                                                                                           and



         prejudice test     forth in
                        set forth    Strickland v. Washington,
         prejudice test set       in Strickland
                                                   Washington 466
                                                               466 U.S.
                                                                   U.S 668
                                                                        668 {1984).
                                                                            1984 TheThe Strickland
                                                                                        Strickland test
                                                                                                   test




         applies by
         applies    looking to
                 by looking to three
                               three elementswhether
                                     elements-whether:(1) the
                                                          the underlying· claim has
                                                              underlying claim  has arguable
                                                                                    arguable merit;
                                                                                             merit (2)
    ·1


         no reasonable basis
         no reasonable basis existed
                             existed for
                                     for counsel's
                                         counsels actions  or failure
                                                   actions or failure to
                                                                      to act;
                                                                         act and
                                                                              and (3) the
                                                                                      the petitioner
                                                                                          petitioner has
                                                                                                     has



         shown
         shown          that he
                        that
                             he suffered
                                suffered prejudice
                                         prejudice as
                                                   as a result
                                                        result of
                                                               of counsel's
                                                                  counsels lapse, i.e., that
                                                                            lapse i.e   that there
                                                                                             there is a reasonable
                                                                                                        reasonable
                                                                                                            is




         3At trial, Woods
         3At        Woods did
                trial         not contradict her
                          did not            her statement, but indicated that she
                                                 statement but
                                           contradict                 indicatedshe did not remember
                                                                                   did not
                                                                                  that     remember the incident due
                                                                                                          the    due to
                                                                                                                incident   to   ckug
                                                                                                                                drug
         use.
         use


                                                                         4
 probability that
probability  that the result of
                  the result of the            would have
                                the proceeding would have been different. Commonwealth
                                                          been different  Commonwealth v.

Bennett 57 A.3d 1185
 Bennett, 57 A.3d 1185, 119596  Pa 2012
                        1195-96 (Pa.       (citing Commonwealth
                                     2012) citing  Commonwealth v. Pierce  527 A.2d
                                                                   Pierce, 527 A.2d 973
                                                                                    973, 975
                                                                                         975



(Pa. 1987
Pa   1987)). Failure
             Failure to
                     to satisfy
                        satisfy any
                                any prong
                                    prong of this test
                                          of this test for
                                                       for ineffectiveness
                                                           ineffectiveness will require rejection of
                                                                           will require rejection of




 the claim. Commonwealth v. Fulton
the claim Commonwealth      Fulton, 830
                                    830 A.2d 567, 572
                                        A.2d 567      Pa Super
                                                  572 (Pa.        2003 If
                                                           Super. 2003). If
                                                                              claim fails under
                                                                            a claim       under               fails




 any necessary element of the Strickland test, the court may proceed
any necessary element of the Strickland test the court       proceed to
                                                                     to that element first. Bennett,
                                                                        that element first  Bennett



 57 A.3d at 1196
 57 A.3d    1196. A claim
            at      "claim has arguable merit
                           has arguable merit where
                                              where the
                                                    the factual
                                                        factual avennents, if accurate,
                                                                averments if  accurate could
                                                                                        could



 establish cause
establish        for relief
           cause for relief." Commonwealth
                              Commonwealth v. Pander,
                                              Pander 100
                                                      100 A.3d 626, 631
                                                          A.3d 626      Pa Super.
                                                                    631 (Pa.       2013
                                                                             Super 2013).


           An
           An    adequate and properly layered claim must contain more than boilerplate assertions of
                 adequate and properly layered claim must contain more than boilerplate assertions of



 prior counsels
prior  counsel's ineffectiveness, because "[sjuch an
                 ineffectiveness because          an undeveloped argument, which
                                                     undeveloped argument  which fails to
                                                                                       to             fails




 meaningfully
 meaningfully discuss and apply
              discuss and       the standard
                          apply the standard governing
                                             governing the
                                                       the review
                                                           review of
                                                                  of ineffectiveness
                                                                     ineffectiveness claims,
                                                                                     claims



 simply does not satisfy Appellant's burden of
 simply does not satisfy Appellants burden  of establishing
                                               establishing that
                                                            that he
                                                                 he is entitled
                                                                       entitled to
                                                                                to any
                                                                                   is
                                                                                   any

                                      .                                                          .
 relief." Commonwealth v. Rivera
 relief Commonwealth      Rivera, 816 A.2d 282
                                  816 A.2d 282 (Pa.
                                               Pa Super.  2003) (quoting
                                                    Super 2003  quoting Commonwealth
                                                                         Commonwealth v.


Abdul-Salaam, 808
Abdul-Salaam  808 A.2d 558
                  A.2d 558                     (Pa. 2001).
                                               Pa   2001 A layered
                                                           layered claim
                                                                   claim also
                                                                         also cannot
                                                                              cannot be
                                                                                     be sustained
                                                                                        sustained where
                                                                                                  where the
                                                                                                        the


                                                                 .                      .    .
 underlying-claim
 underlying claim is unmeritorious.
                     unmeritorious Commonwealth
                           is       Commonwealth v. Williams,
                                                    Williams 950
                                                              950 A.2d
                                                                  A.2d 294,
                                                                       294 300
                                                                            300 (Pa.
                                                                                Pa 2008);
                                                                                     2008

 Commonwealth
 Commonwealth          v. McGill,
                          McGill 832
                                  832 A.2d
                                      A.2d 1014  102 122 (Pa.
                                           1014, 1021-22 Pa 2003).
                                                              2003 This Court finds
                                                                   This Court finds that
                                                                                    that the
                                                                                         the




 Petitioner has submitted
 Petitioner has submitted properly
                          properly layered
                                   layered claims.
                                           claims



           In
           In his
              his first issue
                   first
                        issue, the
                               the Petitioner
                                   Petitioner claims
                                              claims that his first PCRA counsel
                                                     that his            counsel was
                                                                     first       was ineffective
                                                                                     ineffective for
                                                                                                 for




. failing
  failing to
          to raise the issue that trial counsel
             raise the issue that       counsel did
                                                did not
                                              trial not request
                                                        request records
                                                                records for
                                                                        for a landline
                                                                              landline phone
                                                                                       phone at               at




 Dickerson's home.
 Dickersons        4 In his statement, Dickerson told police that the Petitioner called him on the
             home.4 In his statement Dickerson told police that the Petitioner called him on the



 phone
 phone after
       after the
             the shooting
                 shooting and told him
                          and told     that Woods
                                   him that Woods had
                                                  had been
                                                      been prostituting
                                                           prostituting herself
                                                                        herself at
                                                                                at a bar,
                                                                                     bar and
                                                                                          and that
                                                                                              that




 he
 he shot   man who
    shot a man who was trying
                       trying to
                              to get
                                 get involved
                                     involved on
                                              on her
                                                 her behalf.
                                                     behalf The
                                                             The Petitioner
                                                                 Petitioner also
                                                                            also told
                                                                                 told Dickerson
                                                                                      Dickerson



 that he
 that he thought the police
         thought the police were
                            were looking
                                 looking for
                                         for him
                                             him and
                                                 and that
                                                     that he
                                                          he did
                                                             did not know where
                                                                 not know where to
                                                                                to go.
                                                                                   go N.T.
                                                                                       N.T



 4 This claim
  This claim was added
              was added by
                        by      the Petitioner in his January
                                the       Petitioner  January 20,
                                                       in his 20 2016
                                                                  2016 Motion
                                                                       Motion to Supplement
                                                                             to  Supplement Evidence
                                                                                            Evidence of
                                                                                                     of Ineffectiveness
                                                                                                         Ineffectiveness

 of
 of Trial Counsel.
   Trial  Counsel



                                                                5
8/21/2008 at 18890
8/21/2008 at ~ 88-90. At
                      At both
                         both the
                              the preliminary hearing and
                                  preliminary hearing and at trial, Dickerson
                                                          at trial  Dickerson refuted
                                                                              refuted his
                                                                                      his

statement and
statement and said
              said that
                   that he
                        he did not own
                           did not own a landline phone at 1518
                                         landline phone    1518 Conies
                                                                Corlies Street
                                                                        Street at
                                                                             at
                                                                                  the time
                                                                               at the time of
                                                                                           of the
                                                                                               the

call. N.T
call  N.T. 5/29/2007
           5/29/2007 at 67; N.T
                     at 67  N.T. 8/21/2008 at 193
                                 8/21/2008 at 193. From
                                                   From a records
                                                          records subpoena
                                                                  subpoena issued
                                                                            issued to Verizon in
                                                                                   to Verizon in

2015,
2015     the Petitioner maintains
         the Petitioner maintains that
                                  that there
                                       there was
                                             was no
                                                 no record
                                                    record of
                                                           of a landline
                                                                landline at Dickerson's home in
                                                                            Dickersons homeat
                                                                                             in

2006
2006.5     Petitioner argues
           Petitioner argues that
                             that because
                                  because trial counsel
                                                counsel knew
                                                        knew about
                                                    trial
                                                             about this
                                                                   this issue
                                                                        issue from the preliminary
                                                                              from the preliminary

hearing, he
hearing  he should
            should have
                   have issued
                         issued a subpoena before trial to
                                  subpoena before       to verify that Dickerson
                                                           verify that Dickerson did
                                                                   trial
                                                                                 did not
                                                                                     not have
                                                                                         have a

landline phone
landline phone.

           The Petitioner
           The Petitioner has
                          has            failed to
                                         failed to meet
                                                   meet his
                                                        his burden
                                                            burden in demonstrating that
                                                                   in demonstrating that the
                                                                                         the underlying
                                                                                             underlying claim
                                                                                                        claim

has arguable merit Based upon the evidence provided
has arguable merit Based upon the evidence provided, this
                                                     this Court cannot conclude
                                                          Court cannot conclude that
                                                                                that




Dickerson did
Dickerson did not have a landline
              not have   landline phone. In April
                                  phone In  April 2015,
                                                  2015 the  Petitioner subpoenaed Verizon
                                                        the Petitioner subpoenaed Venizon




requesting "[ a]ny and
requesting         and all records
                           records of
                                   of a telephone
                                   all  telephone number
                                                  number issued to 1518
                                                         issued to 1518 S. Corlies
                                                                           Corlies Street,
                                                                                   Street



Philadelphia PA
Philadelphia, PA during 2006 On
                 during 2006."    April 2, 2015,
                               On April    2015 Verizon's
                                                 Verizons Legal
                                                          Legal Compliance Office
                                                                           Office



responded by
responded by stating
             stating that
                     that the subpoena was "being returned ...
                          the subpoena was being returned
                                                                                        [as] no accounts, documents,
                                                                                             no accounts  documents


records,
records or
         or other
            other materials were responsive
                  materials were responsive to
                                            to the
                                               the legal
                                                   legal 'r equest, based
                                                          request   based upon
                                                                          upon the
                                                                               the information
                                                                                   information



provided,"
provided   Verizon
           Verizon added
                   added that,
                         that "land
                               land line
                                    line records are telephone"
                                         records are telephone number
                                                                number driven."
                                                                       driven (emphasis
                                                                                emphasis


added Verizon
added). Verizon's response
                  response did
                           did not attest
                                   attest that there w_ere not landline phones at 1518
                                          that there were not landline phones     1518 S. Corlies
                                                                                          Corlies    at




Street
Street Rather,
       Rather their
               their response
                     response plainly
                              plainly indicated.
                                      indicated  that the
                                                 that the subpoena
                                                          subpoena was
                                                                   was insufficient
                                                                       insufficient as
                                                                                    as the
                                                                                       the



Petitioner
Petitioner needed to provide
           needed to provide more
                             more information
                                  information to
                                              to fulfill the
                                                         the request.
                                                             request Moreover,
                                                                      Moreover even
                                                                   fulfill     even if'Verizon
                                                                                    if Verizon




could
could attest that it did
      attest that    did not
                         not have
                          it have any
                                  any landline
                                      landline ·phones
                                                phones at
                                                       at the
                                                          the subject
                                                              subject address,
                                                                      address that
                                                                               that information
                                                                                    information



would
would still not
            not be
           stillbe dispositive
                   dispositive as
                               as Verizon
                                  Verizon was not
                                              not the
                                                  the sole
                                                      sole provider
                                                           provider for
                                                                    for landline
                                                                        landline phones
                                                                                 phones in
                                                                                        in




Philadelphia
Philadelphia in 2006 For
             in 2006. For these
                          these reasons;
                                reasons this
                                         this 'claim is dismissed.
                                               claim    dismissed     is




s The
  The Petitioner attached
                 attached Verizon's
        Petitioner         Verizons subpoena
                                     subpoena response
                                              response to his January
                                                              January 21,
                                                            to his     21 2006
                                                                           2006 Motion
                                                                                 Motion to Supplement
                                                                                           Supplement Evidence
                                                                                                to       Evidence ofof

Ineffectiveness of
Ineffectiveness  of Trial Counsel.
                          Counsel Although
                         Trial               Verizons response
                                   Although Verizon's  response was
                                                                 was dated
                                                                      dated April
                                                                            April 2, 2015, Ms Burt
                                                                                     2015 Ms.  Burt stated that she
                                                                                                          statedshe did
                                                                                                                   that   did

not receive the response
not   receive   response until January
                   the         January 15,
                                 until     2016, because
                                        152016   because it was
                                                            was directed to an
                                                              it            an address
                                                                               address where
                                                                        directed   to   where she
                                                                                              she no
                                                                                                  no longer
                                                                                                      longer received
                                                                                                             received

mail.
mail



                                                               6
                      The
                      The   Petitioner asserts that his first PCRA
                            Petitioner asserts that his
                                                              PCRA counsel
                                                                   counsel failed
                                                                first
                                                                           failed to raise trial counsels
                                                                                  to raise       counsel's failure
                                                                                             trial
                                                                                                                   to
                                                                                                           failure to




                  to evidence
           object to
           object    evidence that
                              thatthe                                small amount
                                       Petitioner was arrested for a small
                                   the Petitioner was arrested for
                                                                           amount of
                                                                                  of          drugs within a day
                                                                                              drugs within   day of
                                                                                                                 of the   the




           murder
           murder. At
                   At trial  Officer Gamble
                      trial, Officer Gamble            testified that
                                                       testified
                                                                 that he         small amount
                                                                         found a small
                                                                      he found         amount of
                                                                                              of marijuana
                                                                                                 marijuana on
                                                                                                           on the
                                                                                                              the




           Petitioner during
           Petitioner
                      during a vehicle
                               vehicle stop
                                       stop, about
                                             about twenty
                                                   twenty hours
                                                          hours after
                                                                after the
                                                                      the shooting.6 N.T 8/21/2008
                                                                          shooting.6 N.T. 8/21/2008 at 234
                                                                                                    at 234.

           At sidebar
           At sidebar, the
                       the judge
                           judge sought
                                 sought         the relevancy
                                                the relevancy of
                                                              of the
                                                                 the· officer's
                                                                      officers testimony. The Commonwealth
                                                                                testimony The Commonwealth stated
                                                                                                           stated




           that the testimony
           that the testimony was relevantto
                              was relevant to show that the
                                              show that the description
                                                            description of
                                                                        of the Petitioner's clothing
                                                                           the Petitioners  clothing at the
                                                                                                        the          at




           time of the stop matched his
           time of the stop matched     clothing from
                                    his clothing from the
                                                      the shooting.
                                                          shooting  Defense counsel stated
                                                                    Defense counsel        that he
                                                                                    stated that he was
                                                                                                   was


           cross-examining the officer to show that the Petitioner did not attempt to flee from police during
           cross-examining the officer to show that the Petitioner did. not attempt to flee from police during .

           the stop
           the stop. Id
                     Id. at 25 152
                            251-52.
                            at




                      This
                      This Court
                           Court finds that the
                                 finds that the Petitioner's claim is without
                                                Petitioners claim             merit as
                                                                      without merit as trial counsel
                                                                                    is       counsel offered
                                                                                           trial     offered a




           reasonable basison the
           reasonable basis-on the recordon
                                   record-on why he did
                                             why he did not
                                                        not object
                                                            object to
                                                                   to the.officer's
                                                                      the officers testimony.
                                                                                    testimony Further,
                                                                                              Further




     II.   the drug reference
           the drug           was minimal
                    reference was minimal and
                                          and no~ dwelled onby
                                              not dwelled       the Commonwealth
                                                          on by the Commonwealth. For
                                                                                  For these
                                                                                      these reasons..
                                                                                            reasons


     I
     I     the Petitioner cannot
           the Petitioner cannot show
                                 show that
                                      that without this testimony
                                           without this testimony about
                                                                  about a small
                                                                          small amount
                                                                                amount of
                                                                                       of marijuana,
                                                                                          marijuana a
     i
           reasonable probability -existed
           reasonable probability  existed that the result
                                           that the result of
                                                           of the
                                                              the proceeding
                                                                  proceeding would have been
                                                                             would have been different.
                                                                                             different See
                                                                                                        See



           Commonwealth
           Commonwealth          v. Weiss,
                                    Weiss 81  A.3d 767
                                           81 A.3d 767 (Pa.
                                                       Pa 2013)
                                                            2013 (finding
                                                                 fmding a minimal
                                                                          minimal drug reference that-was
                                                                                  drug reference that was not
                                                                                                          not



           dwelled on by
           dwelled on by the
                         the Commonwealth
                             Com.tnonwealth did
                                            did not
                                                not amount
                                                    amount toprejudice).
                                                           to prejudice




                      The
                      The Petitioner
                          Petitioner also
                                     also claims
                                          claims that
                                                 that his       PCRA counsel
                                                      his first PCRA counsel failed
                                                                        firstfailed to·
                                                                                    to raise
                                                                                        raise trial counsel's
                                                                                                    counsels
                                                                                                     trial




           failure
           failure to
                   to object
                      object to the jury
                             to the      seeing the
                                    jury seeing the Petitioner's
                                                    Petitioners photograph
                                                                 photograph related
                                                                            related to
                                                                                    to the
                                                                                       the marijuana
                                                                                           marijuana arrest.
                                                                                                     arrest At
                                                                                                             At


           trial, when questioning
           trial when  questioning a witness
                                     witness (James
                                             James Frager)
                                                    Frager about
                                                           about hispolice
                                                                 his police statement,
                                                                            statement the
                                                                                       the Commonwealth
                                                                                           Commonwealth


           showed
           showed the
                  the Petitioner's
                      Petitioners photograph
                                   photograph related
                                              related to·
                                                      to the
                                                          the marijuana
                                                              marijuana arrest.
                                                                        arrest  At
                                                                                At sidebar,
                                                                                   sidebar trial counsel
                                                                                                 counsel     trial




·)         indicated
           indicated
                     that
                     that he
                          he did not object
                             did not object because
                                            because the
                                                    the Petitioner
                                                        Petitioner was arrested
                                                                       arrested later
                                                                                later that
                                                                                      that day
                                                                                           day for
                                                                                               for the
                                                                                                   the subject
                                                                                                       subject




           homicide. N.T 8/21/2008
           homicide N.T. 8/21/2008 at 54S
                                   at.54-55.



           6 The
             The   drug charge was
                   drug charge     dismissed prior to trial.
                               was dismissed   prior to trial




                                                                                7
                ThePetitioner
                The Petitioner     fails to
                                   fails
                                         to show
                                            show prejudice
                                                 prejudice as
                                                           as courts
                                                              courts have
                                                                     have held
                                                                          held that
                                                                               that an
                                                                                    an arrest
                                                                                       arrest photo
                                                                                              photo itself does
                                                                                                           does
                                                                                                            itself




     not infer that the Defendant is a criminal
     not infer that the Defendant                See Commonwealth
                                       criminal. See
                                           is
                                                     Commonwealth v. Lawrence  596 A.2d
                                                                     Lawrence, 596 A.2d 165, 169
                                                                                        165 169


     (Pa. Super
     Pa   Super. 1991
                 1991) abrogated
                       (abrogated on
                                  on other
                                     other giound by Commonwealth
                                           ground by Commonwealth                       v. Jette  23 A.3d
                                                                                           Jette, 23 A.3d 1032
                                                                                                          1032 Pa
                                                                                                               (Pa.

     2011)). In
     2011    InLawrence
                Lawrence,          where a photographic
                                   where   photographicarray
                                                        array including
                                                               including the
                                                                         the appellants
                                                                             appellant's photograph was
                                                                                         photograph was



     shown to
     shown to the
               the jury
                   jury, the
                         the court
                             court held
                                   held that
                                        that "[ajlthough no
                                                         no testimony
                                                            testimony existed
                                                                      existed to
                                                                              to explain
                                                                                 explain police
                                                                                         police




     possession of the photo, the
     possession of the photo  the most
                                  most that couldbe
                                       that could    inferred from
                                                  be inferred from such
                                                                   such a reference
                                                                          reference was
                                                                                    was that
                                                                                        that appellant
                                                                                             appellant




     had had prior contact with the police and not a prior
     had had prior contact with the police and not         record or
                                                     prior record or a previous
                                                                       previous conviction
                                                                                conviction." 596
                                                                                             596 A.2d
                                                                                                 A.2d


     at 16970
     at 169-70; see
                see also Commonwealth v. Allen
                    also Commonwealth           292 A.2d
                                         Allen, 292 A.2d 272
                                                         272 (Pa. 1972) (no
                                                             Pa 1972        prejudice found
                                                                        no prejudice  found where
                                                                                            where

     police assembled
     police assembled a photo
                        photo array
                              array with
                                    with the
                                         the Petitioner's
                                             Petitioners police  photo); see
                                                          police photo   see also Commonwealth v.
                                                                             also Commonwealth




     Brown,
     Brown       512 A.2d 596 Pa
                512 A.2d 596  (Pa. 1986
                                   1986) (where
                                         where "mugshots" were shown
                                                mugshots were  shown to the jury,
                                                                     to the jury the
                                                                                  the court held that
                                                                                      court held that




     ''prior contact with the police in itself proves nothing
     prior contact with the police in itself proves   nothing. It doesnot  prove a prior
                                                                  does not prove   prior record
                                                                                   It    record or
                                                                                                or




     previous crime;
     previous crime it only
                       only proves
                            proves a previous
                              it     previous contact.").
                                              contact. Prior
                                                          Prior contact with the
                                                                contact with the police
                                                                                 police can
                                                                                        can occur
                                                                                            occur



     under a variety
     under   variety of
                     of circumstances
                        circumstances that
                                      that are.
                                           are not
                                                not criminal
                                                    criminal in nature including
                                                             in nature including involvement
                                                                                 involvement in
                                                                                             in a motor
                                                                                                  motor



     vehicle accident
     vehicle accident or
                      or violation,
                         violation or
                                    or being
                                       being a witness
                                               witness or
                                                       or a victini
                                                            victim to
                                                                    to a crime;
                                                                         crime Commonwealth
                                                                                Commonwealth v. Young,
                                                                                                Young


     849
     849 A,2d
         A.2d 1152,
              1152 1156
                    1156 (Pa.
                         Pa 2004). At best
                              2004 At best, the
                                            the photograph
                                                photograph in
                                                           in the
                                                              the instant
                                                                  instant matter
                                                                          matter indicated
                                                                                 indicated prior
                                                                                           prior




     contact
     contact with
             with police;
                  police not
                          not a prior
                                prior arrest or conviction."
                                      arrest or conviction.7 Because
                                                             Because the
                                                                     the Petitioner
                                                                         Petitioner cannot
                                                                                    cannot show
                                                                                           show


     prejudice, he is not
     prejudice he     not entitled
                        isentitled to
                                   to relief.
                                      relief  .

.I              The
                The Petitioner
                    Petitioner claims
                               claims that.
                                      that his
                                            his first PCRA
                                                      PCRA counsel
                                                           counsel was
                                                        first      was ineffective
                                                                       ineffective for
                                                                                   for failing
                                                                                       failing to
                                                                                               to raise
                                                                                                  raise trial        trial




     counsel,
     counselss failure
               failure to
                       to request
                          request an
                                  an alibi
                                     alibi instruction..
                                           instruction AtAt trial,
                                                            trial Royster
                                                                   Royster testified
                                                                           testified that
                                                                                     that she
                                                                                          she was in the
                                                                                              was in  the




     bathroom
     bathroom doing
              doing drugs
                    drugs with
                          with the
                               the Petitioner
                                   Petitioner at
                                              at the
                                                 the time
                                                     time of
                                                          of the
                                                             the shooting;
                                                                 shooting and
                                                                           and that
                                                                               that after
                                                                                    after hearing
                                                                                          hearing



     gunfire,
     gunfire she
              she and
                  and the
                      the Petitioner
                          Petitioner ran
                                     ran to
                                         to the
                                            the bar's
                                                bars front
                                                      front door,
                                                            door which
                                                                  which was
                                                                        was locked
                                                                            locked by
                                                                                   by the
                                                                                      the .b artender,
                                                                                           bartender




     7 Even
      Even if the photograph
                  photograph did
              if the          did indicate a prior arrest,'
                                     indicate      arrest the Petitioner cannot
                                                prior           the      cannot show
                                                                      Petitionershow prejudice
                                                                                     prejudice as the jury
                                                                                                as thejury was
                                                                                                           was aware
                                                                                                               aware that
                                                                                                                     that

     he
     he was
        was arrested for a small
               arrested forsmallamount
                                 amount of
                                         of marijuana.
                                            marijuana



                                                                        8
temporarily preventing them from going outside
temporarilypreventing                                               N.T 8/22/2008
                                           them from going outside. N.T. 8/22/2008 at 233
                                                                                      233. Defense
                                                                                           Defense counsel
                                                                                                   counsel did
                                                                                                           did
                                                                                                          at




not request an alibi instruction; nor was one given in the jury charge.
not request an alibi instruction nor was one given in the jury charge



                  Failure to request
                  Failure to
                             request an
                                     an alibi
                                        alibi instruction
                                              ~nstructio~ is 'not per se
                                                              not per se ineffectiveness.
                                                                         is               Commonwealth v.
                                                                         ineffectiveness Commonwealth



Hawkins, 894
Hawkins      A.2d 716
         894 A.2d 716                      Pa
                                           (Pa. 2006).
                                                2006 For
                                                       For counsel to be
                                                           counsel to be deemed
                                                                         deemed ineffective
                                                                                ineffective for
                                                                                            for failing to request
                                                                                                failing to request



an alibi instruction
an       instruction, all three
        alibi
                          three prongs
                                prongs of
                                       of the
                                     all
                                          the Pierce/Strickland
                                              Pierce/Strickland test for ineffectiveness
                                                                test for ineffectiveness must    met.
                                                                                              be met'
                                                                                         must be


Commonwealth
Commonwealth                 v. Sileo
                                Sileo, 32
                                       32 A.3d 753 Pa
                                          A.3d 753 (Pa .. Super
                                                          Super. 2011
                                                                 2011) stating
                                                                       (stating that
                                                                                that there must be
                                                                                     there must    prejudice for
                                                                                                be prejudice for




ineffectiveness regarding
ineffectiveness regarding failure
                          failure to
                                  to request
                                     request an
                                             an alibi
                                                alibi instruction
                                                      instruction); see
                                                                    see also Hawkins, 894
                                                                        also Hawkins  894 A.2d
                                                                                          A.2d 716
                                                                                               716



(if counsel had
if counsel  had a reasonable
                  reasonable explanation
                             explanation for failing to
                                         for falling to request
                                                        request an alibi instruction
                                                                an alibi instruction, no
                                                                                      no


ineffectiveness is present).
ineffectiveness    present.88
                            is                 ·


                  At
                  At   the evidentiary hearing
                       the evidentiary hearing, trial counsel
                                                      counsel offered
                                                              offered a reasonable
                                                           trial        reasonable explanation
                                                                                   explanation for not
                                                                                               for not




requesting an alibi
requesting an alibi instruction  He articulated
                    instruction. He             that he
                                    articulated that he did
                                                        did not
                                                            not request
                                                                request one
                                                                        one because the Petitioner
                                                                            because the Petitioner




was
was       still on the
          still    the premises
                       premises at
                                at the
                                   the time of the
                                       time of the shooting.
                                                   shooting Trial
                                                             Trial counsel believed an
                                                                   counsel believed    argument could
                                                                                    an argument could



still be
still
      be made
         made that the Petitioner
              that the Petitioner left the          left                                      6869
                                           bar and committed the murder . .N.T.. 4/01/2016 at 68-69.
                                       the bar and committed the murder N.T 4/01/2016                                             at




                  Even if trial counsel
                  Even if       counsel did
                            trial       did not
                                            not have
                                                have a-reasonable
                                                       reasonable basis
                                                                  basis for his inaction,
                                                                        for his inaction this
                                                                                          this Court
                                                                                               Court still finds
                                                                                                           finds                  still




that the Petitioner
that the Petitioner fails to show how
                          to show how counsel's
                                 failscounsels failure
                                                failure to
                                                        to request
                                                           request an
                                                                   an alibiinstruction
                                                                      alibi instruction prejudiced
                                                                                        prejudiced



him.
him Commonwealth
     Commonwealth v. Ali
                     AU, 10
                         10 A.3d
                            A.3d 282
                                 282 (Pa.
                                     Pa 2010)
                                          2010 (Petitioner
                                               Petitioner has  not suffered
                                                           has not suffered prejudice.
                                                                            prejudice ffrom
                                                                                        rom

counsel's
counsels alleged
          alleged deficient
                  deficient performance
                            performance unless there is a 'reasonable
                                        unless there       reasonable probability
                                                                      probability that-the
                                                                                  that the verdict
                                                                                    is     verdict




would
would have
      have been
           been different).
                different Trial   counsel highlighted
                            Trial counsel highlighted Royster's
                                                      Roysters testimony
                                                                testimony in
                                                                          in closing
                                                                             closing arguments
                                                                                     arguments



and
and argued
    argued not
           not only
               only that the jury_
                    that the jury should
                                   should evaluate
                                          evaluate her
                                                   her testimony,
                                                       testimony but
                                                                  but also
                                                                      also that
                                                                           that the
                                                                                the Commonwealth
                                                                                    Commonwealth



had
had failed
    falled to
           to offer
              offer a witness to refute
                      witness to refute her,
                                        her including
                                             including .ssubpoenalng
                                                          ubpoenaing the
                                                                     the bartender
                                                                         bartender who
                                                                                   who Royster
                                                                                       Royster had
                                                                                               had



testified
testified locked
          locked her
                 her and
                     and the
                         the Petitioner
                             Petitioner inside
                                        inside the
                                               the bar   N.T
                                                   bar.. N. T. 8/25/2016
                                                               8/25/2016 at 6364 The
                                                                         at 63-64. The jury's
                                                                                       jurys verdict
                                                                                              verdict




88Hawkins
 Hawkins found
            found that counselhad
                       counsel had a reasonable
                          that       reasonable basis for not
                                                          not requesting
                                                              requesting an
                                                                         an alibi instruction where
                                                                   basis for                  where counsel
                                                                                                    counsel stated that·
                                                                                                  alibi    instruction              stated   that

where
where alibi testimony
             testimony is weak,
            alibi         weak highlighting that testimony
                                    is
                                                 testimony explicitly as alibi evidence
                                             highlighting that                 evidence disserves the defendant's
                                                                               explicitly   as alibi  defendants  disserves the

interests. Commonwealth
interests  Commonwealth v. Hawkins,
                              Hawkins 894
                                        894 A.2d
                                            A.2d 716
                                                 716 (Pa.
                                                      Pa 2006).
                                                           2006

                                                                               9
     indicates that
     indicates
               that they
                    they chose
                         chose not
                               not to
                                   to believe
                                      believe Roysters
                                              Royster's testimony
                                                        testimony. It is extremely
                                                                     It
                                                                         extremely unlikely-with
                                                                          is       unlikelywith or
                                                                                                 or




     without an
     without    alibi instructionthat
             an alibi instruction-thatthe
                                      the jury
                                          jury would
                                               would have believed Royster
                                                     have believed Roysteryet
                                                                           yet still convicted
                                                                                     convicted the
                                                                                    still
                                                                                               the

     Petitioner of
     Petitioner of the
                   the crime
                       crime.

               Moreover, the
               Moreover  the Commonwealth
                             Commonwealth presented
                                          presented overwhelming evidence to
                                                    overwhelming evidence to support the
                                                                             support the



     Petitioner's guilt
     Petitioners  guilt. Two
                         Two witnesses
                             witnesses placed
                                       placed the
                                              the Petitioner
                                                  Petitioner outside the bar
                                                             outside the bar at the time
                                                                             at the time of the shooting.
                                                                                         of the shooting


     Woods
     Woods told
           told police
                police that
                       that she
                            she    witnessed the Petitioner
                                   witnessed the Petitioner point
                                                            point a gun
                                                                    gun at
                                                                        at the
                                                                           the victim
                                                                               victim and
                                                                                      and shoot
                                                                                          shoot him
                                                                                                him


[:   numerous times. Frager testified
     numerous times Frager  testified that
                                      that when
                                           when he
                                                he left the
                                                        the bar,
                                                       left
                                                                 the Petitioner
                                                            bar the  Petitioner was standing outside
                                                                                was standing outside


:
     with the victim. Immediately
     with the victim
                      Immediately after hearing gunshots, Frager saw the Petitioner standing over the
                                  after hearing gunshots Frager saw the Petitioner standing over the




     · victim
       victim. In
               In addition to there
                  addition to there being
                                    being two
                                          two witnesses,
                                              witnesses the
                                                         the Petitioner
                                                             Petitioner also
                                                                        also confessed
                                                                             confessed to
                                                                                       to the
                                                                                          the murder.
                                                                                              murder


     Following the shooting
     Following the shooting, the
                             the Petitioner
                                 Petitioner told Dickerson of
                                            told Dickerson of his
                                                              his involvement in the
                                                                  involvement in the murder
                                                                                     murder as
                                                                                            as well
                                                                                               well as
                                                                                                    as




     his motive for
     his motive     the shooting.
                for the shooting  For
                                  For these
                                      these reasons,
                                            reasons the
                                                     the Petitioner
                                                         Petitioner cannot
                                                                    cannot demonstrate
                                                                           demonstrate prejudice.
                                                                                       prejudice



     Thus,
     Thus no
           no relief
              relief is warranted.
                        warranted
                       is




               This
               This Court examined the
                    Court examined the cumulative prejudicial effect
                                       cumulative prejudicial effect of
                                                                     of the alleged errors
                                                                        the alleged errors of
                                                                                           of trial
                                                                                               trial




     counsel,
     counsel and
              and finds
                  finds there
                        there was no reasonable
                              was no reasonable probability
                                                probability that
                                                            that had
                                                                 had these matters been
                                                                     these matters been handled
                                                                                        handled



     differently,
     differently the
                  the result
                      result of
                             of the
                                the trial would
                                   trial  would have
                                                have been
                                                     been different.
                                                          different None
                                                                     None of
                                                                          of the
                                                                             the Petitioner's
                                                                                 Petitioners claims
                                                                                              claims



     necessitates   new trial.
     necessitates a new trial  See
                               See Commonwealth    Johnson 966
                                   Commonwealth v. Johnson, 966 A2d
                                                                A.2d 523 Pa 2009 (stating
                                                                     523 (Pa."2009) stating that
                                                                                            that if     if




     multiple instances of
     multiple instances    deficient performance
                        of deficient performance are
                                                 are found,
                                                     found the
                                                            the assessment
                                                                assessment of
                                                                           of prejudice
                                                                              prejudice properly
                                                                                        properly may
                                                                                                 may


     be premised upon cumulation). Courts
     be premised upon cumulation   Courts have
                                          have consistently
                                               consistently held
                                                            held that
                                                                 that no
                                                                      no number
                                                                         number of
                                                                                of failed
                                                                                   failed claims
                                                                                          claims



     may
     may collectively
         collectively warrant
                      warrant relief
                              relief if they
                                        they fail to
                                           if     to do
                                                fail    so individually.
                                                     do so individually Commonwealth     Cox 983
                                                                         Commonwealth v. Cox, 983



     A.2d 666 (Pa.
     A.2d 666 Pa 2009)
                   2009 (citing
                        citing Commonwealth     Washington 927
                                Commonwealth v. Washington, 927 A.2d
                                                                A.2d 586,
                                                                     586 617
                                                                          617 (Pa.
                                                                              Pa 2007)).
                                                                                   2007 This
                                                                                         This



     Court
     Court is satisfied
            issatisfied that
                        that no
                             no cumulative
                                cumulative prejudice
                                           prejudice relief
                                                     relief is warranted.
                                                               warranted
                                                              is




               Lastly,
               Lastly the
                       the Petitioner
                           Petitioner makes
                                      makes a claim
                                              claim of
                                                    of after-discovered
                                                       after-discovered evidence.
                                                                        evidence The
                                                                                  The Petitioner
                                                                                      Petitioner averred
                                                                                                 averred



     that
     that on
          on June
             June J17
                    7, 20   5nine years
                       201J 5-nine years after
                                         after the
                                               the murder-he
                                                   murderhe became
                                                             became aware
                                                                    aware of
                                                                          of a witness,
                                                                               witness Robert
                                                                                        Robert




                                                        10
                                                        10
                             ----····   ----·




Corbin. Corbin
Corbin  Corbin      asserted that he
                    asserted that he witnessed
                                     witnessed the
                                               the subject
                                                   subject shooting
                                                           shooting while
                                                                    while on
                                                                          on his
                                                                             his way
                                                                                 way to
                                                                                     to purchase
                                                                                        purchase .

cigarettes for
cigarettes  for his
                his then-fiancé  Corbin, who
                    then-fiance. Corbin  who knew
                                             knew the Petitioner from
                                                  the Petitioner from the
                                                                      the neighborhood
                                                                          neighborhood, claimed
                                                                                        claimed

that he
that he did
        did not
            not see
                see the
                    the Petitioner
                        Petitioner outside
                                   outside the
                                           the bar
                                               bar at
                                                   at the
                                                      the time
                                                          time of
                                                               of the
                                                                  the shooting
                                                                      shooting and
                                                                               and that
                                                                                   that two other
                                                                                        two other



men shot
men shot the
         the     victim. N.T
                 victim  N.T. 1/21/20
                              1/21/2016  4060
                                      16 40-60.



        ForFor a new
                 new trial
                     trial, based
                            based on
                                  on after-discovered
                                     after-discovered evidence
                                                      evidence, the
                                                                the Petitioner must show by a
                                                                    Petitioner must show by




preponderance of
preponderance of the
                 the evidence
                     evidence that
                              that: (1) the
                                        the evidence
                                            evidence has
                                                     has been
                                                         been discovered
                                                              discovered after
                                                                         after trial and
                                                                                     and it could
                                                                                            could
                                                                                            trial   it




not have been
not have been obtained
              obtained at
                       at or
                          or prior
                             prior to
                                   to trial through
                                            through reasonable
                                        trial
                                                    reasonable diligence;
                                                               diligence (2) the
                                                                             the evidence
                                                                                 evidence is not
                                                                                             not     is




cumulative; (3) it is not
cumulative         it
                      not being
                        isbeing used
                                used solely
                                     solely to
                                            to impeach
                                               impeach credibility
                                                       credibility; and
                                                                    and (4) it would
                                                                                  it
                                                                                     likely compel
                                                                               would likely compel a

different verdict
different verdict. Commonwealth
                   Commonwealth v. D 'Amato, 856 A.2d
                                     Amato 856        806, 823
                                                 A.2d 806      Pa 2004).
                                                           823 (Pa.        PCRA court
                                                                    2004 A PCRA court is                   is




tasked with assessing a witnesss
tasked with assessing   witness's credibility
                                  credibility      PCRA hearing
                                              at a PCRA
                                                  at    hearing, and
                                                                 and its credibility
                                                                            its
                                                                         credibility




determinations should be
determinations should be provided great deference
                         provided great           by a reviewing
                                        deference by   reviewing court.
                                                                 court Johnson,
                                                                        Johnson 966
                                                                                966 A.2d
                                                                                    A.2d at               at




539 one of
539 ("one    the primary
          of the primary reasons PCRA hearings
                         reasons PCRA hearings are
                                               are held
                                                   held in the first place
                                                        in the       place is so
                                                                    first     so that
                                                                                 that credibility
                                                                                       is
                                                                                      credibility




determinations can be made;
determinations can be made otherwise, issues of
                            otherwise issues of material
                                                material fact
                                                         fact could
                                                              could be decided on
                                                                    be decided    pleadings and
                                                                               on pleadings and



affidavits alone.").
affidavits alone.


        This
        This Court finds Corbins
             Court finds Corbin's testimony
                                  testimony contrived,
                                            contrived inconsistent,
                                                       inconsistent and incredible. First,
                                                                    and incredible  First




Corbin's
Corbin story
         story on
               on why
                  why he
                      he waited
                         waited nine
                                nine years
                                     years to
                                           to come
                                              come forward.
                                                   forward lacked
                                                            lacked believability.
                                                                   believability  Corbin
                                                                                  Corbin



testified that he
testified that he failed
                  failed to
                         to come
                            come forward
                                 forward at
                                         at his mother's request.
                                            his mothers           N.T 4/1/2016
                                                         request N.T. 4/1/2016 at 4142 A year
                                                                               at 41-42.
                                                                                         year



later
later when
      when his
           his motherdied,
               mother died Corbin
                           Corbin again
                                  again failed
                                        failed to
                                               to come
                                                  come forward,
                                                       forward even
                                                                even though
                                                                     though he
                                                                            he knew
                                                                               knew the
                                                                                    the




wrong
wrong man
      man had
          had been
              been arrested
                   arrested for
                            for the
                                the murder-he
                                    murderhe claimed
                                              claimed that
                                                      that his
                                                           his father prevented him
                                                               father prevented him from
                                                                                    from



doing
doing so. When his
      so When      father moved away
               his father moved
                                away a few
                                       few years
                                           years later,
                                                 later Corbin
                                                        Corbin failed
                                                               failed to
                                                                      to come
                                                                         come forward
                                                                              forward yet
                                                                                      yet




again In
again. In the
          the
              subsequent
              subsequent years,
                         years no
                                no longer
                                   longer afraid
                                          afraid nor
                                                 nor under
                                                     under his
                                                           his parents'
                                                               parents control-and
                                                                        controland admittedly
                                                                                   admittedly



still able
still able to
           to identify
              identify the
                       the two
                           two shooters-Corbin
                               shootersCorbin still failed
                                                    failed to
                                                           to go
                                                       still  go the
                                                                 the police
                                                                     police or
                                                                            or inform
                                                                               inform anyone
                                                                                      anyone of
                                                                                             of



what
what he
     he saw
        saw that
            that night.
                 night N.T.
                        N.T 1/21/2016
                            1/21/2016 at
                                      at 59;
                                         59 N.T.
                                             N.T 4/1/2016
                                                 4/1/2016 at 4549
                                                          at 45-49.




                                                        11
                                                        11 .
                       Next, Corbin
                       Next  Corbin's testimony
                                       testimony was
                                                 was inconsistent
                                                     inconsistent. The record
                                                                   The record                                 reflects that the shooting occurred
                                                                                                              reflects that the shooting occurred




            right after last
            right after "last call
                              call," at
                                     at or about 2 a.m
                                        or about        In Corbins
                                                   a.m. In Corbin's statement
                                                                    statement attached
                                                                              attached to
                                                                                       to the
                                                                                          the Petitioners
                                                                                              Petitioner's

            petition, Corbin
            petition  Corbin asserted
                             asserted that
                                      that he
                                           he was
                                              was outside
                                                  outside the bar at 145
                                                          the bar          a.m when
                                                                     1 :45 a.m. when he
                                                                                     he witnessed
                                                                                        witnessed the
                                                                                             at
                                                                                                      shooting.
                                                                                                  the shooting




       ·!   Yet at the
            Yet    the evidentiary
                  at   evidentiary hearing
                                   hearing, Corbin
                                            Corbin stated
                                                   stated that
                                                          that he
                                                               he was
                                                                  was outside the bar
                                                                      outside the        1240 a.m
                                                                                      at 12:40
                                                                                  bar at       a.m. N.T
                                                                                                    N.T.
        I


            1/21/2016 at 43
            1/21/2016    43. This
                           atThis Court
                                  Court finds
                                        finds this
                                              this disparity even more
                                                   disparity even more glaring
                                                                       glaring since Corbin testified that he
                                                                               since Corbin testified that he




            knew
            knew what
                 what time
                      ti.me          the bar closed2
                                     the bar closed-2 a.m.because  the bar
                                                      a.m.-because the "bar close[
                                                                            close  d] at the same
                                                                                      at the same time
                                                                                                  time every night."
                                                                                                       every night


            N.T
            N.T.   4/01/2016 at 9 (emphasis
                   4/01/2016      emphasis added).
                                     at     added.99



                       Finally, Corbin's testimony
                       Finally Corbins   testimony also
                                                   also conveniently eliminated all of
                                                        conveniently eliminated     of the people who
                                                                                       the people who were
                                                                                                      were     all




            outside the
            outside the bar
                        bar at
                            at the
                               the time
                                   time of
                                        of the
                                           the shooting
                                               shooting. As
                                                         As noted above, Corbin
                                                            noted above  Corbin stated that he
                                                                                stated that he still could
                                                                                                     could                                  still




            identify the two
            identify the two shooters
                             shooters; yet
                                       yet when
                                           when shown
                                                shown photographs
                                                      photographs at the evidentiary hearing
                                                                     the evidentiary         of Terrance
                                                                                     hearing of Terrance
                                                                                                  at




            Speller, Steven Barkley
            Speller Steven  Barkley the
                                    (the victim), Curtis Scott,
                                         victim Curtis   Scott Charles
                                                                Charles "Biggie" Waters, as
                                                                        Biggie Waters       well as
                                                                                         as well as James
                                                                                                    James



                                             the aforementioned people and the Petitioner outside the bar 10Corbin
            Frager-who
            Fragerwho              witnessed
                                   witnessed the aforementioned people and the Petitioner outside the bar10-Corbin

            failed to identify any
            failed to identify     of them
                               any of them as
                                           as being
                                              being present
                                                    present outside
                                                            outside the bar at
                                                                    the bar at the time of
                                                                               the time of the
                                                                                           the shooting.
                                                                                               shooting Id.
                                                                                                         Id at
                                                                                                            at




            22-25, 48-49,
            2225   4849 54.
                          54               Because Corbin
                                           Because Corbin was unable
                                                          was unable              to identify any
                                                                                  to identify any of the participants
                                                                                                  of the participants outside
                                                                                                                      outside the bar,
                                                                                                                              the bar




            this
            this Court
                 Court finds
                       finds it exceedingly
                                exceedingly unlikely
                                     it     unlikely that
                                                     that he
                                                          he could
                                                             could say
                                                                   say with
                                                                       with any
                                                                            any level
                                                                                level of
                                                                                      of certainty
                                                                                         certainty that
                                                                                                   that the
                                                                                                        the




            Petitioner was
            Petitioner was not
                           not one of those participants.
                                   of those participants  Accordingly,
                                                          Accordingly this
                                                                       this Court
                                                                            Court finds
                                                                                  fmds Corbin's
                                                                                        Corbins testimony
                                                                                                testimony



            unlikely
            unlikely to
                     to compel
                        compel a different
                                 different verdict
                                           verdict.

                       For the foregoing
                       For the foregoing reasons,
                                         reasons these
                                                  these claims
                                                        claims are DENIED
                                                               are DENIED.




                                                                                                        BY THE COURT,
                                                                                                        BY THE COURT




., i
  I
                                                                                                        Barbara
                                                                                                        Barbara A. McDermott,
                                                                                                                   McDermott J


            9
              This
              This Court
                   Court is not
                           isnot persuaded
                                 persuaded by
                                            by the fact that Corbin
                                                  the   fact Corbin later gave
                                                               that        gave an
                                                                                 an accurate time
                                                                              later          time for the shooting
                                                                                                  accurateshooting on
                                                                                                                    on day
                                                                                                                        day two
                                                                                                                     for thetwo of
                                                                                                                                 of the                     the

            bifurcated evidentiary hearing
            bifurcated               hearing.
            1°
                         evidentiary

               Frager testified that everyone
            Frager     testified     everyone he
                                    that       he saw
                                                  saw inside the
                                                              the bar
                                                           inside bar that night
                                                                           night was
                                                                              thatwas outside when
                                                                                               when he
                                                                                                    he left the bar
                                                                                                    outside     bar right before
                                                                                                                          before the
                                                                                                                          left   the        right         the

            shooting.
            shooting N.T.
                       N.T 8/21/2008
                             8/21/2008     3031 Woods
                                        at 30-31.
                                             at    Woods also told police that Frager
                                                                  also told       Frager was
                                                                              police     was outside the bar
                                                                                           that           bar atthe time
                                                                                                                     time of
                                                                                                              outside the of the   at the           the

            shooting.
            shooting N.T.
                       N.T 8/2212008
                             8/22/2008  at 56.
                                           56at




                                                                                      12
                                                                                      12
