J-S33025-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
               v.                          :
                                           :
                                           :
    STANLEY GREEN                          :
                                           :
                     Appellant             :   No. 1257 EDA 2017

                   Appeal from the PCRA Order April 10, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0009234-2008

BEFORE:       OTT, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                       FILED AUGUST 29, 2018

       Stanley Green appeals from the denial of collateral relief for his

convictions for third-degree murder and firearms offenses arising from the

shooting death of Jameil Martin. He makes numerous claims that trial counsel

was ineffective. He also argues trial counsel’s cumulative errors rendered his

trial fundamentally unfair, and that the PCRA court erred by not granting an

evidentiary hearing. We affirm.

       In April 2008, during an altercation on a corner in Philadelphia, Green

pulled out a gun and shot Martin, who died from his wounds. Police

investigated and charged Green. At Green’s jury trial in December 2009, the

prosecution presented the testimony of numerous witnesses, including three

eyewitnesses who testified that Green fired multiple shots at Martin, even after

Martin turned and ran. See N.T., 12/10/09, at 107, 219-221; N.T., 12/15/09,


____________________________________

*    Former Justice specially assigned to the Superior Court.
J-S33025-18



at 38-41. One of the eyewitnesses testified that Green chased after Martin

and continued to shoot at him. That witness also said that although Martin

had his hands in his pockets, the “pockets were too small to conceal any

weapon.” N.T., 12/10/09, at 211. That testimony was corroborated by

testimony of a police crime scene investigator that, based on where the shell

cases landed, the shooter was moving while firing at Martin. N.T., 12/15/09,

at 160-161.

      The Commonwealth also presented the testimony of a medical

examiner, Dr. Gary Collins. Dr. Collins testified that he did not perform the

victim’s autopsy, but offered opinions based on information in the autopsy

report, including that the victim might have been holding his arms in a

“defensive posture” when Green shot him. N.T., 12/16/09, at 80-81. Trial

counsel did not object either to the admission into evidence of the autopsy

report, or to Dr. Collins’ testimony.

      Green testified in his own defense that Martin was pulling a gun from

his pocket when Green fired at him, and that a man who was with Martin at

the time of the shooting took Martin’s gun from the scene. Green described

the man as “short, brown skin, he had a brown hoody on, and a Muslim kufi.”

N.T., 12/16/09, at 171. The only other witness for the defense testified she

did not did not see the shooting, but was nearby, and said that a “short and

stocky” man with a mustache who was wearing a brown sweatshirt, black

coat, and a kufi “may have” had a gun. Id. at 138-139.

      Following the close of evidence, the trial court instructed the jury,

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including about the Commonwealth’s burden of proving guilt beyond a

reasonable doubt. The court illustrated the reasonable doubt analysis by

drawing an analogy to having to decide whether a loved one should go through

with a medical procedure for a life-threatening condition.

        The jury found Green guilty of third-degree murder, firearms not to be

carried without a license, carrying a firearm on public streets or public

property in Philadelphia, and possession of an instrument of crime.1 The Court

sentenced him in January 2010 to an aggregate term of incarceration of 19½

to 39 years. Green filed a direct appeal, and this Court affirmed the judgment

of sentence. The Pennsylvania Supreme Court denied Green’s petition for

allowance of appeal on November 14, 2011.

        On November 6, 2012, Green filed a timely pro se Post Conviction Relief

Act (“PCRA”) petition. The court appointed counsel who filed both an amended

petition and a supplemental amended petition. The PCRA court dismissed the

petition on April 7, 2017.2 This appeal followed.3
____________________________________________


1   18 Pa.C.S.A. §§ 2502(c), 6106, 6108, and 907(a).

2  Although neither the lower court docket nor the certified record
demonstrates that the PCRA court sent Pa.R.Crim.P 907 notice of its intent to
dismiss the PCRA petition, we will not remand. The PCRA court’s opinion states
that it did, in fact, send Rule 907 notice, and in any event, Green does not
claim that he did not receive the Rule 907 notice. Rather, he argues that the
Rule 907 notice was substantively deficient. Green’s Br. at 45-46. No remand
is necessary because Green implicitly concedes having received the notice,
and, as discussed below, his claims lack merit.

3   The PCRA court ordered Green to file a Pennsylvania Rule of Appellate



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       Green raises the following claims on appeal:

       1.     Whether PCRA counsel was ineffective for failing to raise a
              meritorious trial counsel ineffectiveness claim for failing to
              object to the trial court’s reasonable doubt instruction.

       2.     Whether trial counsel failed to object on confrontation
              grounds to Dr. Gary Collins’s [sic] forensic pathology
              testimony concerning Martin’s gunshot wounds because Dr.
              Collins did not perform Martin’s autopsy or write the autopsy
              report, yet he based his opinions regarding the gunshot
              wounds on the autopsy report written and certified by Dr.
              Bennett Preston.

       3.     Trial counsel failed to retain and present an independent
              forensic pathologist to rebut the Commonwealth’s claim that
              Green shot Martin as Martin had his hands in a defensive
              posture.

       4.     Trial counsel’s cumulative errors rendered Green’s trial
              fundamentally unfair.

       5.     The PCRA court erred by not granting an evidentiary
              hearing.

Green’s Br. at 4.

I.     Green Is Not Entitled to Relief on his Ineffectiveness Claims.

       Green claims his PCRA counsel was ineffective for failing to raise a claim

that trial counsel was ineffective for not objecting to the reasonable doubt

instruction. He further argues the PCRA court should not have dismissed his

PCRA petition because he raised meritorious claims that his trial counsel was

ineffective for failing to make a Confrontation Clause objection to Dr. Collins’

____________________________________________


Procedure 1925(b) statement, but Green did not comply. We decline to find
waiver, however, because there is no notation on the docket that the trial
court prothonotary gave Green the required notice of the entry of the Rule
1925(b) order. See Pa.R.C.P. 236(a); Commonwealth v. Davis, 867 A.2d
585, 588 (Pa.Super. 2005) (en banc).

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testimony, and for failing to present expert testimony to rebut Dr. Collins’

testimony.

      When reviewing the dismissal of a PCRA petition, we examine the PCRA

court’s “findings of fact to determine whether they are supported by the

record, and . . . its conclusions of law to determine whether they are free from

legal error.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). To

prevail on an ineffectiveness claim, a petitioner must establish that (1) the

underlying claim is of arguable merit; (2) counsel had no reasonable basis for

the action or inaction; and (3) the petitioner suffered actual prejudice as a

result. Id. We presume counsel was effective and the petitioner bears the

burden of demonstrating ineffectiveness. Id. The prejudice prong requires the

petitioner to show that there is a reasonable probability that the outcome of

the proceedings would have been different but for counsel’s alleged

ineffectiveness. Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011).

The petitioner must establish all three prongs of the ineffectiveness test in

order to prevail. Spotz, 84 A.3d at 311.

      A.     Failure to Object to the Trial Court’s Reasonable
             Doubt Instruction

      Green first argues his PCRA counsel was ineffective for not arguing that

trial counsel was ineffective for failing to object to the trial court’s reasonable

doubt jury instruction. He argues that the hypothetical the trial court used to

explain reasonable doubt overstated the degree of uncertainty necessary to

secure an acquittal, and in effect increased it to something greater than


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reasonable doubt. Green raises this claim for the first time on appeal. He did

not make such a claim in any of his filings before the PCRA court. He has

therefore waived it. Pa.R.A.P.302; Commonwealth v. Henkel, 90 A.3d 16,

20, 29 (Pa.Super. 2014) (en banc) (holding that PCRA petitioner cannot raise

claim that PCRA counsel was ineffective for the first time on appeal).

      Even if Green had preserved this claim, we would deny relief because

the underlying objection lacks arguable merit. “[A] jury charge must be read

as a whole to determine whether it is fair or prejudicial.” Commonwealth v.

Miller, 746 A.2d 592, 604 (Pa. 2000). “The trial court has broad discretion in

phrasing its instructions so long as the law is clearly, adequately and

accurately presented to the jury.” Id.

      Here, the trial court began its reasonable doubt instruction by telling the

jury that reasonable doubt is “not proof beyond all doubt,” but one “that would

cause a reasonably careful and sensible person to pause, to hesitate, to refrain

from acting upon a matter of the highest importance to their own affairs”:

         Proof beyond a reasonable doubt is not proof beyond all
         doubt. Proof beyond a reasonable doubt is not proof to a
         mathematical certainty. It is likewise not a requirement that
         the Commonwealth demonstrate the complete impossibility
         of innocence.

         A reasonable doubt is a doubt that would cause a reasonably
         careful and sensible person to pause, to hesitate, to refrain
         from acting upon a matter of the highest importance to their
         own affairs.

         A reasonable doubt must fairly arise out of the evidence that
         was presented or out of the lack of evidence presented with
         respect to some element of each of the crimes charged.


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N.T., 12/17/09, at 131-32.

      The court then illustrated reasonable doubt to the jury by drawing an

analogy to having to decide whether a loved one should go through with a

medical procedure for a life-threatening condition:

         If you were told by that loved one’s physician that the loved
         one had a life-threatening condition, very likely, ladies and
         gentlemen, you are going to get a second opinion, you are
         probably going to get a third opinion.

         If you are like me, you . . . are going to call everybody you
         know about – who got some knowledge about medicine.

         What do you know? Tell me about this illness. Tell me what
         the protocols are for it. How do we best treat it? Who is the
         best doc in town? What do you know? You might do Internet
         research. You do a ton of stuff.

         But at some point the question will be called. Do I go forward
         with the medical procedure for my loved one? . . .

         If you go forward, it is not because you have moved beyond
         all doubt. There are no guaranties in life. If you go forward,
         it is because you have moved beyond a reasonable doubt.

         Ladies and gentlemen, a reasonable doubt must be a real
         doubt. It is not a doubt that is imagined or manufactured to
         avoid carrying out an unpleasant responsibility. I told you,
         I’m not asking you to do something easy. I’m asking you to
         do something hard.

N.T. Trial, 12/17/2009, at 132-134.

      The court concluded the reasonable doubt instruction by stating that “a

mere suspicion of guilt” is insufficient for the jury to convict, and that the

prosecution bears the burden of proving guilt beyond a reasonable doubt:

         To find a citizen guilty, it must be grounded on the evidence
         that proves the elements of the crimes beyond a reasonable
         doubt. A mere suspicion of guilt is insufficient to meet the


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         Commonwealth's burdens. The Commonwealth bears the
         burden of proving Stanley Green guilty beyond a reasonable
         doubt.

Id. at 134.

      Green argues that the trial court’s hypothetical unconstitutionally

increased the degree of doubt. In support, he cites a federal habeas decision,

Brooks v. Gilmore, 2:15-cv-05659, 2017 WL 3475475, at *5 (E.D. Pa. Aug.

11, 2017), appeal dismissed sub nom. Brooks v. Superintendent

Greene SCI, No. 17-2971, 2018 WL 1304895 (3d Cir. Feb. 28, 2018). His

reliance on Brooks is misplaced for two reasons. First, we are not bound by

decisions of the federal district courts. See Commonwealth v. Orie, 88 A.3d

983, 1009 (Pa.Super. 2014). Second, the jury instruction at issue here

differed in material ways from the instruction the federal district court found

unconstitutional in Brooks.

      In Brooks, the trial court analogized the reasonable doubt analysis to

having to decide whether a loved one should undergo “the only known protocol

or the best protocol” for “a life-threatening condition,” where the protocol “was

an experimental surgery. . . .” Id. at 3. The federal district court in Brooks

trained on these additional facts – a single or best protocol that was

experimental – in finding that the instruction increased the degree of doubt to

something more than reasonable doubt. The court explained that, in its view,

rather than reasonable doubt, one would need “profound, if not overwhelming,

doubt to deny a loved one their only or best opportunity for a cure” of a “life-

threatening condition.” Id. at *4. The court reasoned that such a “powerful


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and emotionally charged metaphor” erroneously instructed the jury to

disregard doubts and to favor conviction, because “any person of decency and

morals would strive to put aside doubt when faced with a single life-saving

option for a loved one.” Id.

      The instruction in this case included no such details, or any other factor

that would be improper under Brooks. Unlike the analogy at issue in Brooks,

the hypothetical here only referred to a “protocol” as a piece of information

one might want to know before deciding whether to “go forward with the

medical procedure.” In contrast, in Brooks, the condition was one for which

there was an “only known” or “best” protocol, and that protocol was an

“experimental surgery.” Because these key facts were absent from the

hypothetical the court used in this case, and there were no other factors in

the hypothetical here that would have caused the jury improperly to put aside

doubts, Brooks is inapposite and does not persuade us that the instruction

here was erroneous.

      When the analogy is read in the context of the total jury instruction, the

trial court’s explanation of reasonable doubt was not improper. The jury

instructions in this case first correctly informed the jury that a reasonable

doubt “is a doubt that would cause a reasonably careful and sensible person

to pause, to hesitate, to refrain from acting upon a matter of the highest

importance to their own affairs,” and must arise from the evidence, or lack

thereof. N.T. Trial, 12/17/2009, at 131. The hypothetical to which Green

belatedly objects then followed, and the court closed the reasonable doubt

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instruction by reminding the jury that the Commonwealth bore the burden of

proving guilt beyond a reasonable doubt, and that it could not carry that

burden with a “mere suspicion of guilt.” Id. at 134. The hypothetical was in

no way contrary to the other portions of the reasonable doubt instruction,

which are undisputed here. Overall, the instruction correctly informed the jury

about the Commonwealth’s burden of proving guilt beyond a reasonable

doubt. Accordingly, the underlying claim lacks arguable merit.

      Although Green complains that the hypothetical described reasonable

doubt in terms of deciding whether to “go forward” with a treatment, rather

than as a factor that would cause hesitation, that observation does not tell the

whole story. A more complete consideration of the charge in its entirety

reveals that the judge, in fact, first told the jury that a reasonable doubt is

one that would “cause a reasonably careful and sensible person to pause, to

hesitate, to refrain. . . .” N.T., 12/17/09, at 131. When the court later used

the phrase, “go forward,” it did so as a way of telling the jury that the

Commonwealth bore the burden of convincing the jury beyond a reasonable

doubt. That was a correct statement of the law.

      Moreover, even if the use of the hypothetical constituted error, Green

fails to establish prejudice. The evidence against Green was quite strong. The

Commonwealth presented the testimony of multiple eyewitnesses that was

corroborated by physical and ballistics evidence. Green has not established

that there is a reasonable probability that the outcome of his trial would have

been different if trial counsel had objected to the reasonable doubt jury

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instruction. See Commonwealth v. Fisher, 813 A.2d 761, 775 (Pa. 2002)

(Saylor, J., concurring) (finding no prejudice, despite concluding that

objection to hypothetical on reasonable doubt would have had arguable merit,

where other parts of instructions gave jury correct definitions of reasonable

doubt and the evidence was overwhelming). Accordingly, even if PCRA counsel

had raised this claim before the PCRA court, Green would not be entitled to

relief.

          B.   Failure to Object to the Testimony of Dr. Gary Collins
               and the Admission of the Autopsy Report

          Green next argues trial counsel was ineffective for not objecting to the

admission of the autopsy report and to Dr. Gary Collins’ expert forensic

pathology testimony. He contends that such an objection would have been

meritorious because Dr. Collins did not perform the victim’s autopsy, and

rather based his opinions on the autopsy report that Dr. Bennett Preston

prepared. Green argues that if his trial counsel had objected to the autopsy

report and Dr. Collins’ testimony, it is reasonably likely that the jury would

have found him not guilty of third-degree murder.

          The admission of an autopsy report without the accompanying

testimony of the person who prepared it violates a defendant’s Sixth

Amendment right to confront witnesses, unless the preparer “was unavailable

and [the defendant] ‘had a prior opportunity to cross-examine’ him.”

Commonwealth v. Brown, 185 A.3d 316, 329 (Pa. 2018). Further, the

Confrontation Clause “precludes the admission of a testimonial report through


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‘surrogate’ in-court testimony.” Id. at 319 n.3 (citing Bullcoming v. New

Mexico, 564 U.S. 647, 652-53 (2011)); but see Commonwealth v. Yohe,

79 A.3d 520, 538 (Pa. 2013) (distinguishing Bullcoming and finding no

Confrontation Clause violation where the testifying witness reviewed the entire

file, compared test printouts, certified the accuracy of results, and signed the

report).

       Here, Green cannot prevail on his ineffectiveness claim because he fails

to establish prejudice. To the extent the autopsy report was evidence that

Martin died from gunshot wounds, Green’s own testimony was evidence of

that same fact. Green took the stand and testified at trial that he shot Martin.

N.T., 12/16/09, at 172. Further, Howard and Mumford testified that Martin

died. N.T., 12/10/09, at 170; N.T., 12/15/09, at 71. It is therefore difficult to

see how the report independently influenced the jury’s decision to such an

extent that there is a reasonable probability that the verdict would have been

different without it.

       As for Dr. Collins’ testimony, to the extent it posed a Confrontation

Clause issue,4 Green is similarly unable to prove prejudice. Green’s arguments

focus on Dr. Collins’ testimony that the position of bullet holes in Martin

indicated that Martin’s arms were in a defensive position when Green shot

____________________________________________


4 But see Williams v. Illinois, 567 U.S. 50, 58 (2012) (plurality) (citing
F.R.E. 703, and stating, “Out-of-court statements that are related by the
expert solely for the purpose of explaining the assumptions on which that
opinion rests are not offered for their truth and thus fall outside the scope of
the Confrontation Clause”), cited in Brown, 185 A.3d at 327.

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him. Green fails to establish that testimony prejudiced him because Dr. Collins’

testimony played a minor role in the Commonwealth’s evidence disproving

Green’s claim of self-defense.

      A claim of self-defense requires evidence of three elements: (a) the

defendant reasonably believed that he or she was in imminent danger of death

or serious bodily injury and that it was necessary to use deadly force against

the victim to prevent such harm; (b) the defendant was free from fault in

provoking the difficulty which culminated in the slaying; and (c) the defendant

did not violate any duty to retreat. Commonwealth v. Mouzon, 53 A.3d 738,

740 (Pa. 2012). If the evidence before the factfinder raises a question about

whether the defendant acted in self-defense, the Commonwealth must

disprove   self-defense    beyond     a   reasonable     doubt.    Id.   (citing

Commonwealth v. Black, 376 A.2d 627, 630 (Pa. 1977)).

      In this case, the evidence that Green was not acting in self-defense was

extensive. Three eyewitnesses testified that Martin was unarmed, and police

did not find a gun anywhere at the scene or on Martin’s person. N.T.,

12/10/09, at 100-101, 211; N.T., 12/15/09, at 41; N.T., 12/15/09, at 140;

N.T., 12/16/09, at 37. Two of the eyewitnesses stated that, after Green began

shooting, Martin ran away as Green chased him and continued to shoot at

him. N.T., 12/10/09, at 101, 107; 219-21; N.T., 12/15/09, at 38-39, 160-61.

Green was the only person to testify that Martin had a gun, and no evidence

corroborated his testimony that Martin had a gun. N.T., 12/16/09, at 171-72.

The only other defense witness did not testify that she saw the shooting, and,

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inconsistently with Green’s testimony, said that it was Martin’s companion at

the time of the shooting who “may have” had a gun, not Martin. Id. at 138-

39.

       In view of this evidence, we cannot say that if trial counsel had

successfully objected to Dr. Collins’ testimony, there is a reasonable likelihood

the outcome of Green’s trial would have been different. Cf. Brown, 185 A.3d

at 318 (rejecting Confrontation Clause challenge on harmless error grounds).5

       C.     Failure to Retain and                Present   an   Independent
              Forensic Pathologist

       Green also claims that trial counsel was ineffective for failing to retain

and present the testimony of an independent forensic pathologist to rebut Dr.

Collins’ testimony that Martin suffered defensive wounds. N.T. 12/16/09, 79-

80. The PCRA court properly dismissed this claim because Green again cannot

establish prejudice.

       “Where a claim is made of counsel's ineffectiveness for failing to call

witnesses, it is the appellant's burden to show that the witness existed and

was available; counsel was aware of, or had a duty to know of the witness;

the witness was willing and able to appear; and the proposed testimony was

necessary in order to avoid prejudice to the appellant.” Commonwealth v.

Chmiel, 30 A.3d 1111, 1143 (Pa. 2011) (quoting Commonwealth v.

____________________________________________


5 The Court in Brown unanimously agreed that the Confrontation Clause error
in admitting an autopsy report “presented without accompanying testimony
by its author” was harmless error, but no majority of the Court was in
agreement as to the reason the error was harmless.

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Wayne, 720 A.2d 456, 470 (Pa. 1998).

      Here, the PCRA court found that even if trial counsel had presented

rebuttal expert testimony, it would not have altered the outcome of the trial

because of the extent of the evidence against Green. Trial Court Opinion, flied

Aug. 31, 2017, at 8. We agree. As we explain above, the testimony of the

three eyewitnesses, the testimony of the crime scene investigator, and the

absence of evidence corroborating Green’s testimony, were strong evidence

against Green. The testimony that Green chased after Martin while continuing

to shoot at him was particularly persuasive evidence that Green did not shoot

Martin in self-defense. We cannot say that there is a reasonable probability

that even if trial counsel had obtained and introduced into evidence rebuttal

expert testimony, the verdict would have been different. PCRA court did not

err in denying Green’s ineffectiveness claims.

II.   Green is not          Entitled          to   Relief     for      Cumulative
      Ineffectiveness.

      Green seeks PCRA relief based on the cumulative effect of the purported

errors raised in his Amended Petition. However, “no number of failed claims

may    collectively   warrant   relief   if    they   fail   to   do    so   individually.”

Commonwealth v. Tedford, 960 A.2d 1, 56 (Pa. 2008) (quoting

Commonwealth v. Washington, 927 A.2d 586, 617 (Pa. 2007)). Therefore,

Green’s claim of cumulative errors does not render counsel’s assistance

ineffective.

III. The PCRA Court Did Not Err in Refusing to Grant an


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      Evidentiary Hearing.

      Green claims that the PCRA court erred in refusing to grant an

evidentiary hearing. “[T]he PCRA court can decline to hold a hearing if there

is no genuine issue concerning any material fact and the petitioner is not

entitled to post-conviction collateral relief, and no purpose would be served

by any further proceedings.” Commonwealth v. Taylor, 933 A.2d 1035,

1040 (Pa.Super. 2007). On appeal, to determine whether the failure to

conduct a hearing was error, we “examine each issue raised in the PCRA

petition in light of the record certified before it in order to determine if the

PCRA court erred in its determination that there were no genuine issues of

material fact in controversy and in denying relief without conducting an

evidentiary hearing.” Id. (quoting Commonwealth v. Turetsky, 925 A.2d

876, 882 (Pa.Super. 2007)).

      There was no genuine issue of material fact as to any claim before the

trial court (i.e., Green’s claims other than regarding the reasonable doubt

instruction, which he challenges for the first time on appeal). As explained

above, the record establishes that trial counsel was not ineffective for failing

to object to the autopsy report and medical examiner testimony, or for not

calling a rebuttal expert. There was no need for an evidentiary hearing, and

the PCRA court did not err in dismissing Green’s petition without holding one.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/29/18




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