J-S75004-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
            v.                          :
                                        :
                                        :
WENDELL JONES                           :
                                        :
                  Appellant             :   No. 1781 WDA 2016

               Appeal from the PCRA Order October 25, 2016
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0008512-2010


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

MEMORANDUM BY SHOGAN, J.:                      FILED DECEMBER 19, 2017

      Appellant, Wendell Jones, appeals from the October 25, 2016 order

that denied his petition filed pursuant to the Post Conviction Relief Act

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

      The PCRA court provided the factual background of this matter as

follows:

            The victims in this case were Sonsiarae Watts and Dahl
      Palm, who were dating each other at the time they were
      murdered on July 4, 2008. Ms. Watts and Mr. Palm were found
      dead on the floor of the master bedroom of Ms. Watt[s’]
      apartment located at 1096 Valley Street. Michael Panella, a
      forensic pathologist with the Allegheny County Medical
      Examiner’s Office, testified that Ms. Watts suffered two gunshot
      wounds to her left breast and another gunshot wound to her
      sternum. The bullet which penetrated her sternum severed her
      aorta. Mr. Panella testified that this gunshot killed her within
      minutes. She also suffered two gunshots to her abdomen, one
      gunshot to her right thigh and one gunshot to her left upper leg.
      Mr. Panella testified that the cause of Ms. Watts’ death was the
      gunshot wounds and the manner of her death was homicide.
J-S75004-17



           Mr. Panella also testified that Mr. Palm suffered four
     gunshot wounds to his right lower belly. The wounds struck his
     heart and aorta and he was dead within minutes. He also
     suffered two gunshot wounds to his right chest cavity and a
     gunshot wound to his right forearm. Mr. Panella also noticed a
     scalp injury resulting from blunt force trauma which he believed
     was consistent with being pistol whipped. Mr. Panella testified
     that the cause of death was the gunshot wounds and manner of
     [Mr. Palm’s] death was homicide.

            Brandon Palm, the son of victim, Dahl Palm, testified that
     his father was the president of the West End Chapter of the
     Brother of the Hammer Motorcy[c]le Club. [Appellant] was the
     Vice-President of the Chapter. Brandon Palm testified about an
     encounter between Ms. Watts and [Appellant]. He testified that
     on May 31, 2008 he was at his father’s garage with his father,
     Ms. Watts and some other people. At one point, [Appellant]
     showed up at the garage. [Appellant] approached Ms. Watts and
     she expressed to him that she didn’t want to speak to him. She
     began walking away from him. [Appellant] grabbed the back of
     her head and began punching her in the face. Mr. Palm
     intervened and stopped the assault. [Appellant] got on his
     motorcycle and drove away. Ms. Watts then went to the hospital
     for treatment.

           Marquita Harris testified that she was the sister of Ms.
     Watts. She testified that Ms. Watts began dating [Appellant] in
     2007 and that Ms. Watts broke off the relationship sometime in
     March or April of 2008. She testified that Ms. Watts then began
     dating Mr. Palm. She testified that she was aware of the assault
     committed by [Appellant] on May 31, 2008. On the night of the
     assault, she met her sister at the hospital. After Ms. Watts was
     discharged, Ms. Harris accompanied her sister to the police
     station to file a report. She then accompanied Ms. Watts to
     obtain a Protection From Abuse order (“PFA”) against
     [Appellant]. She became aware at some point that Ms. Watts did
     not proceed with the final PFA order due to an agreement
     between Ms. Watts and [Appellant] which involved the fact that
     Mr. Palm was facing assault charges for assaulting [Appellant].
     [Appellant] and Ms. Watts agreed that Ms. Watts would
     terminate the PFA proceedings and [Appellant] would drop the
     assault charges against Mr. Palm.


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           Ms. Harris testified that she was with Ms. Watts a couple of
     days after [Appellant] assaulted [Ms.] Watts. While they were
     together, Ms. Watts received a text message from [Appellant] in
     which [Appellant] threatened to shoot Mr. Palm and Ms. Watts
     and then to put a bullet in his own head. Ms. Harris and Ms.
     Watts went to the police station to report the text message.

            Jordan Palm, another of Dahl Palm’s sons, testified that he
     was present when [Appellant] assaulted Ms. Watts at his father’s
     garage. His testimony was consistent with the testimony of his
     brother. He testified that shortly after this incident, he was
     sitting with his father at the garage when his father received a
     phone call from [Appellant]. His father put the call on the
     phone’s loud speaker and Jordan Palm heard [Appellant] tell Mr.
     Palm that he “was not just going to ride off into the sunset.”
     [Appellant] specifically threatened to kill Mr. Palm, Ms. Watts
     and himself.

            City of Pittsburgh Police Officer Deborah Stiokis testified
     that she was the officer who received the complaint made by Ms.
     Watts relative to the assault committed by [Appellant] on May
     31, 2008. Officer Stiokis advised Ms. Watts to obtain a PFA order
     and she provided her with an informational sheet indicating how
     such an order could be obtained. Officer Glenn Aldridge also
     testified that he was at the police station on May 31, 2008 and
     he interviewed both Ms. Watts and Mr. Palm. After the
     interviews, he intended to obtain an arrest warrant for
     [Appellant]. Before he could obtain the warrant, Ms. Watts and
     Mr. Palm were murdered.

            Curtis Tina Lockhart-Palm testified that she was the wife of
     Mr. Palm. She and Mr. Palm were separated. She testified that in
     June, 2008, [Appellant] telephoned her to discuss the
     relationship between Ms. Watts and Mr. Palm. [Appellant]
     appeared at Ms. Lockhart-Palm’s place of employment and Mr.
     Palm appeared a short time later. An altercation ensued between
     [Appellant] and Mr. Palm. Police Officer Donald Mitchell testified
     that he responded to the incident described by Curtis Tina
     Lockhart-Palm. He testified that [Appellant] appeared to have
     received a broken jaw during the incident. He intended to arrest
     Mr. Palm but he was murdered before Officer Mitchell could
     arrest him.




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            Channing Buefort testified that he was a member of the
     same motorcycle club as [Appellant] and the victims. He testified
     that shortly before July 4, 2008, [Appellant] called him and
     asked if he could get [Appellant] a gun. Mr. Buefort was not able
     to fulfill the request but he referred him to another person,
     Warren Horton. Mr. Horton was a state constable. Mr. Horton
     testified that he received a telephone call from [Appellant] about
     three weeks before the murders seeking to join the Pittsburgh
     Chapter of the Brother of the Hammer Motorcycle Club because
     he was having some difficulties at the West End Chapter due to
     the relationship between the victims in this case. Mr. Horton
     testified that [Appellant] asked to purchase a gun from him. Mr.
     Horton offered to sell him a .38 caliber handgun for $350. Mr.
     Horton told [Appellant] that the sale had to be legal with all
     necessary      paperwork.    After   [Appellant]    heard    these
     requirements, he asked Mr. Horton if he knew anyone else from
     whom he could purchase a gun.

           Detective Terry Rediger from the Allegheny County Police
     Department testified about the crime scene. He testified that Ms.
     Watts was found lying on her back on the floor between the bed
     and a wall in the master bedroom and Mr. Palm was found lying
     on his back on the floor next to the other side of the bed. There
     was no sign of forced entry into the apartment. Spent .40 caliber
     bullet casings were found throughout the bedroom. Bullet holes
     were found in the floor of the bedroom and these holes
     corresponded to holes found in the ceiling of the basement.

            Aaron Adams testified that Ms. Watts was his mother. He
     testified that he lived at his mother’s residence at 1096 Valley
     Street. He testified that [Appellant] had a key to the residence.
     He testified that at the time of the murder[s], he was living at
     the residence along with Amber Durrett and her daughter Tijha,
     who were friends of Ms. Watts. He testified that he left the
     residence at approximately 1:30-2:00 a.m. on the date of the
     murder[s] to spend the night with a lady friend. He explained
     that the doors were locked when he left.

           Regina Heckert testified that she lived at 705 Russellwood
     Avenue in McKees Rocks, Pennsylvania. Ms. Watts’ apartment
     building was next to her backyard. Sometime around 4:00 a.m.,
     she heard gunshots. She heard a series of gunshots, then a
     pause, then more gunshots. She looked out her window. There
     were streetlights that illuminated the area around the

                                   -4-
J-S75004-17


     apartment. She observed a person walking up Blumling Way, an
     alley next to the apartment. She noticed that the person was
     black. He was wearing a light colored short-sleeved shirt and
     was wearing dark shorts. She believed the shorts to be denim
     shorts. His hair was cropped, not long and not short. She
     described the person as being of medium height and stocky. She
     admitted that she did not see the face of the person but that it
     could have been [Appellant]. After the person disappeared, she
     heard a woman scream. Soon thereafter, police arrived on
     scene.

           Amber Durrett testified that she was in the apartment on
     the night of the murders. She was sleeping in an adjacent room
     with her daughter when she was awakend by the gunshots. She
     grabbed her young daughter and retreated to a back room. She
     heard some shots then she heard Ms. Watts screaming “no, no,
     stop!” After the shooting stopped, she heard the kitchen door
     slam shut. She went into the master bedroom, which was filled
     with smoke. She saw Mr. Palm lying on the floor riddled with
     gunshots and bleeding. She fled the house with her daughter
     and got into her car. She drove around the corner and called the
     police. She had not seen Ms. Watts in the bedroom and initially
     feared that Ms. Watts shot Mr. Palm. She relayed her concerns
     to the police.

            Leo Thomas testified in this case. He testified that on July
     4, 2008, he noticed a car parked in front of his residence. This
     was unusual to him because cars were not often parked in that
     area. The car was [Appellant’s] vehicle. He observed the car at
     approximately 4:00 a.m. In the early morning hours, he received
     a call from [Appellant’s] brother indicating that [Appellant] may
     be a suspect in a homicide. Later that day, he interacted with
     [Appellant’s] family and was asked to drive [Appellant] to
     downtown Pittsburgh so [Appellant] could turn himself in to
     police. When Mr. Thomas picked [Appellant] up, [Appellant] had
     a blank look on his face and appeared mentally “disheveled”. On
     the ride to the police station, Mr. Thomas asked [Appellant] if he
     was okay. [Appellant] responded by saying “I’m okay now. They
     got what they deserved.” According to Mr. Thomas, [Appellant]
     had an arrogant and boastful demeanor when he made those
     comments.

          Detective Timothy Lanigan testified that he obtained
     samples from [Appellant] to perform gunshot residue testing of

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     [Appellant’s] skin and clothing. He encountered [Appellant]
     around 11:00 a.m. on the day of the murders. Detective Lanigan
     testified that [Appellant] was wearing a dark blue pullover style
     shirt, a light-colored yellow t-shirt, denim shorts and white
     tennis shoes. Swabs of [Appellant’s] hands were obtained as well
     as samples from his clothing. These swabs were submitted for
     gunshot residue testing. Detective Lanigan also testified that
     [Appellant] was arrested in May of 2010 and at that time
     [Appellant] was approximately 5’8” and weighed approximately
     185 lbs. According to Detective Lanigan, [Appellant] was heavier
     on the date of the murder[s] than he was when he got arrested.

           Robert Levine testified that he was employed by the
     Allegheny County Medical Examiner’s Office and that among his
     duties are performing gunshot residue tests and ballistics
     examinations. He performed the gunshot residue testing on the
     sample taken from [Appellant] on July 4, 2008. Gunshot residue
     was found on [Appellant’s] left palm. He also testified that all of
     the bullets fired from the shell casings found at the murder
     scene were fired from the same weapon.

            Detective Scott Towne testified that he investigated
     whether [Appellant] has a license to carry a firearm on the date
     of the murders. He testified that [Appellant] did not have the
     appropriate license. Detective Towne also testified concerning
     cell phone records relating to [Appellant’s] cell phone. Cell phone
     records indicated that [Appellant] made calls from his cell phone
     at 3:53 a.m. He made another call at 3:59 and 4:10 a.m. The
     murders occurred at 4:35 a.m. on July 4, 2008. Various other
     calls were made to [Appellant] by his daughter, Jaunel Jones
     between 5:00 a.m. and 6:00 a.m.

           Elona Somple testified that she worked for the R.J. Lee
     Company. This company is in the business of testing evidence
     for the presence of gunshot residue. She testified that she tested
     [Appellant’s] blue pullover, yellow t-shirt and denim shorts for
     the presence of gunshot residue. Ms. Somple testified that she
     received the clothing on July 30, 2008. The items were tested on
     August 7, 2008. All three elements of gunshot residue,
     antimony, barium and lead, w[ere] present on the denim shorts.
     Two of these elements were found on the yellow t-shirt and on
     the inside of the blue pullover [Appellant] was wearing on July 4,
     2008.


                                    -6-
J-S75004-17


              [Appellant] presented a number of witnesses in his case-
        in-chief. Jessica Pluechel testified that she was with [Appellant]
        on July 3, 2008 and it was hot. She testified that she was taking
        care of him due to his broken jaw. She recalled him being
        pleasant on that day.

               Juanel Jones testified for the defense. She is [Appellant’s]
        daughter. She testified that [s]he called [Appellant] multiple
        times in the early morning hours of July 4, 2008 because she
        was afraid that the father of her baby was harassing her. She
        never spoke to [Appellant] but she left him messages. At
        approximately 6:30 a.m., [Appellant] came to her residence to
        stay with her. She was awakened later that morning by her
        brother who had called her to tell her that the police were
        looking for [Appellant]. She looked for [Appellant] in her
        residence but found that he was no longer there. On cross-
        examination, Ms. Jones was confronted with her grand jury
        testimony during which she denied calling [Appellant] or seeing
        him in the early morning hours of July 4, 2008. She repeatedly
        testified that she couldn’t recall her grand jury testimony.

              Wendell Jones, Sr. testified that he was [Appellant’s]
        father. He testified that he, not Leo Thomas, drove [Appellant]
        to turn himself in on July 4, 2008.

              [Appellant] testified at trial. He denied murdering the
        victims and he testified that a number of the Commonwealth
        witnesses were not telling the truth. He also testified that he was
        home alone at the time of the murder[s].

PCRA Court Opinion, 6/22/17, at 2-10.

        A jury found Appellant guilty of two counts of first-degree murder,1

one count of violating the Uniform Firearms Act (“VUFA”),2 and one count of



____________________________________________


1   18 Pa.C.S. § 2502(a).

2   18 Pa.C.S. § 6106(a)(1).



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burglary, graded as a felony of the first degree.3 On the first-degree murder

convictions, the trial court sentenced Appellant to two consecutive terms of

life imprisonment.       On the burglary conviction, the trial court sentenced

Appellant to a term of ten to twenty years of imprisonment, consecutive to

the sentences on the murder convictions. The trial court imposed no further

penalty on the VUFA conviction.

        Appellant failed to file a timely direct appeal.        However, Appellant’s

appellate rights were reinstated nunc pro tunc on November 7, 2012.

Appellant filed a timely appeal nunc pro tunc on November 28, 2012, and

this Court affirmed Appellant’s judgment of sentence. Commonwealth v.

Jones, 105 A.3d 27, 1870 WDA 2012 (Pa. Super. Filed June 6, 2014)

(unpublished memorandum). Appellant filed a timely petition for allowance

of appeal to the Supreme Court of Pennsylvania on July 3, 2014, and the

Supreme      Court   denied     Appellant’s    petition   on   December   26,   2014.

Commonwealth v. Jones, ___ A.3d ___, 313 WAL 2014 (Pa. 2014).

        On December 22, 2015, Appellant, through counsel, filed a timely

PCRA petition. In his PCRA petition, Appellant averred that his trial counsel

was ineffective for failing to request an alibi instruction, a jury instruction

concerning third-party liability, and a jury instruction regarding Appellant’s

prior inconsistent statement. PCRA Petition, 12/22/15, at ¶¶ 8-11. On April

____________________________________________


3   18 Pa.C.S. § 3502(c)(1).



                                           -8-
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5, 2016, the PCRA court informed Appellant of its intent to dismiss the PCRA

petition without a hearing pursuant to Pa.R.Crim.P. 907. On April 25, 2016,

Appellant filed a response to the PCRA court’s notice of intent to dismiss,

and on October 25, 2016, the PCRA court denied Appellant’s PCRA petition.

This timely appeal followed.      Both Appellant and the PCRA court have

complied with Pa.R.A.P. 1925.

      On appeal, Appellant presents the following issues for this Court’s

consideration:

      I. Whether trial counsel was ineffective for failing to request a
      jury instruction on alibi and failing to object to the court’s failure
      to provide such an instruction in its final charge to the jury?

      II. Whether trial counsel was ineffective for failing to request a
      jury instruction on the third-party culpability defense and failing
      to object to the court’s charge omitting same?

      III. Whether trial counsel was ineffective for failing to request a
      specific jury instruction on Appellant’s prior inconsistent
      statement to police that he was at his home when the murders
      were committed and that he didn’t do it?

Appellant’s Brief at 1.

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”     Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.

2014) (en banc)). This Court is limited to determining whether the evidence

of record supports the conclusions of the PCRA court and whether the ruling

is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

                                      -9-
J-S75004-17


Super. 2012). We grant great deference to the PCRA court’s findings that

are supported in the record and will not disturb them unless they have no

support in the certified record.   Commonwealth v. Rigg, 84 A.3d 1080,

1084 (Pa. Super. 2014).

      We observe that each of Appellant’s claims challenges the effective

assistance of his trial counsel. Our Supreme Court has long stated that in

order to succeed on a claim of ineffective assistance of counsel, an appellant

must demonstrate (1) that the underlying claim is of arguable merit; (2)

that counsel’s performance lacked a reasonable basis; and (3) that the

ineffectiveness of counsel caused the appellant prejudice. Commonwealth

v. Pierce, 786 A.2d 203, 213 (Pa. 2001).

      We have explained that trial counsel cannot be deemed ineffective for

failing to pursue a meritless claim.   Commonwealth v. Loner, 836 A.2d

125, 132 (Pa. Super. 2003) (en banc). Moreover, with regard to the second

prong, we have reiterated that trial counsel’s approach must be “so

unreasonable   that   no   competent    lawyer   would    have   chosen    it.”

Commonwealth v. Ervin, 766 A.2d 859, 862-863 (Pa. Super. 2000)

(quoting Commonwealth v. Miller, 431 A.2d 233 (Pa. 1981)).

      Our Supreme Court has defined “reasonableness” as follows:

            Our inquiry ceases and counsel’s assistance is deemed
      constitutionally effective once we are able to conclude that the
      particular course chosen by counsel had some reasonable basis
      designed to effectuate his client’s interests. The test is not
      whether other alternatives were more reasonable, employing a
      hindsight evaluation of the record.        Although weigh the

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      alternatives we must, the balance tips in favor of a finding of
      effective assistance as soon as it is determined that trial
      counsel’s decision had any reasonable basis.

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (quoting

Commonwealth ex rel. Washington v. Maroney, 235 A.2d 349 (Pa.

1967)) (emphasis in original).

      In addition, we are mindful that prejudice requires proof that there is a

reasonable probability that, but for counsel’s error, the outcome of the

proceeding would have been different. Pierce, 786 A.2d at 213. “A failure

to satisfy any prong of the ineffectiveness test requires rejection of the claim

of ineffectiveness.”   Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa.

2009) (citing Commonwealth v. Sneed, 899 A.2d 1067 (Pa. 2006)). Thus,

when it is clear that a petitioner has failed to meet the prejudice prong of an

ineffective-assistance-of-counsel claim, the claim may be disposed of on that

basis alone, without a determination of whether the first two prongs have

been met.     Commonwealth v. Baker, 880 A.2d 654, 656 (Pa. Super.

2005).

      It is presumed that counsel was effective, unless the petitioner proves

otherwise. Commonwealth v. Williams, 732 A.2d 1167, 1177 (Pa. 1999).

We are bound by the PCRA court’s credibility determinations where there is

support for them in the record. Commonwealth v. Battle, 883 A.2d 641,

648 (Pa. Super. 2005) (citing Commonwealth v. Abu-Jamal, 720 A.2d 79




                                     - 11 -
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(Pa. 1998)). Furthermore, claims of ineffective assistance of counsel are not

self-proving. Commonwealth v. Wharton, 811 A.2d 978, 986 (Pa. 2002).

      Additionally, we note that Appellant’s issues involve the trial court’s

jury instructions. Our standard of review in assessing jury instructions is as

follows:

      When evaluating the propriety of jury instructions, this Court will
      look to the instructions as a whole, and not simply isolated
      portions, to determine if the instructions were improper. We
      further note that, it is an unquestionable maxim of law in this
      Commonwealth that a trial court has broad discretion in phrasing
      its instructions, and may choose its own wording so long as the
      law is clearly, adequately, and accurately presented to the jury
      for its consideration. Only where there is an abuse of discretion
      or an inaccurate statement of the law is there reversible error.

Commonwealth v. Roane, 142 A.3d 79, 95 (Pa. Super. 2016).

      In his first issue on appeal, Appellant avers that trial counsel was

ineffective for failing to request a jury instruction on alibi and failing to

object when this instruction was not provided. Appellant’s Brief at 7. We

discern no error of law.

      An alibi is “a defense that places the defendant at the relevant
      time in a different place than the scene involved and so removed
      therefrom as to render it impossible for him to be the guilty
      party.” [Commonwealth v. Roxberry], 602 A.2d [826,] 827
      [(Pa. 1992) (Roxberry II)] (quoting Commonwealth v.
      Jones, 529 Pa. 149, 602 A.2d 820, 822 (1992)). In
      Commonwealth v. Pounds, [417 A.2d 597 (Pa. 1980),] we
      held that a trial court, faced with alibi evidence,3 should instruct
      a jury generally that “it should acquit if defendant’s alibi
      evidence, even if not wholly believed, raises a reasonable doubt
      of his presence at the scene of the crime at the time of its
      commission and, thus, of his guilt.” [Pounds, 417 A.2d at 603].
      The instruction,4 we held, is critically important to offset “the
      danger that the failure to prove the defense will be taken by the

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     jury as a sign of the defendant’s guilt.” Id. We explained that
     the defendant bears no burden of proof in a criminal case, and
     that to infer guilt based upon a failure to establish an alibi
     “contravenes     the   presumption      of  innocence    and   the
     Commonwealth’s burden of proving the offense beyond a
     reasonable doubt.” Id. at 603 n. 17. Given these concerns, we
     have held unequivocally that “a defendant is entitled to an alibi
     instruction when evidence of alibi ... has been introduced.” Id. at
     602 (citing Commonwealth v. Bonomo, 396 Pa. 222, 151 A.2d
     441 (1959)). Further, we held in Pounds that “general
     instructions on the Commonwealth’s burden of proving each
     element of the offense beyond a reasonable doubt, the absence
     of a burden of proof on the defendant, and assessing the
     credibility of witnesses do not adequately protect against” the
     danger posed by the misapprehensions a jury might indulge
     regarding the relevance and effect of alibi evidence. Id. at 603.

           3 Although an alibi defense typically is presented with
           accompanying testimonial or other evidence, “the
           testimony of the accused may, by itself, be sufficient
           to raise an alibi defense and entitle him to an
           appropriate jury instruction.” Pounds, 417 A.2d at
           602.

           4   A model alibi instruction follows:

                   In this case, the defendant has
                   presented evidence of an alibi, that is,
                   that [he] was not present at the scene or
                   was rather at another location at the
                   precise time that the crime took place.
                   You should consider this evidence along
                   with all the other evidence in the case in
                   determining whether the Commonwealth
                   has met its burden of proving beyond
                   reasonable doubt that a crime was
                   committed and that the defendant
                   [himself] committed or took part in
                   committing] it. The defendant’s evidence
                   that [he] was not present, either by itself
                   or together with other evidence, may be
                   sufficient to raise a reasonable doubt of
                   [his] guilt. If you have a reasonable


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                    doubt of the defendant’s guilt, you must
                    find [him] not guilty.

            Pa. Suggested Std. Crim. Jury Instr. § 3.11.
            Although courts are not bound to utilize this precise
            instruction, see Commonwealth v. Ragan, 560 Pa.
            106, 743 A.2d 390, 399 (1999) (declining to require
            use if the “even if not wholly believed” language
            used in Pounds); cf. Commonwealth v. Blount,
            538 Pa. 156, 647 A.2d 199, 209 (1994) (“The trial
            court has discretion in phrasing its instructions to the
            jury ....”), an alibi instruction should simply “indicate
            that the failure of the evidence to prove alibi is not
            evidence of guilt, that the defendant bears no burden
            to disprove any element of the offense, and alibi
            evidence may negate proof beyond a reasonable
            doubt even if it is not wholly believed....” Pa.
            Suggested Std. Crim. Jury Instr. § 3.11, Adv. Comm.
            Note.

Commonwealth v. Hawkins, 894 A.2d 716, 717-718 (Pa. 2006) (internal

citations omitted).

      However, the failure to request an alibi instruction does not constitute

prejudice per se.     Hawkins, 894 A.2d at 729.       Thus, Appellant remains

responsible to establish that counsel had no reasonable basis for his failure

to request the alibi instruction and that he was prejudiced. Id.; Pierce, 786

A.2d at 213.

      The record reveals that Appellant testified at trial that he was alone in

his home watching television at the time of the murders. N.T., 7/22-26/11,

at 390. Thus, Appellant argues that his testimony established that he could

not have committed the crimes and an alibi instruction was required.

Appellant’s Brief at 5. While Appellant did in fact claim he was not at the


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crime scene, we cannot conclude that the failure to request an alibi

instruction or object to the trial court’s failure to give such instruction was

without a reasonable basis or prejudicial.

      Here, the notes of testimony reveal that counsel had a reasonable

basis for not pursuing an alibi defense. Counsel stated that he believed that

alibi was a weak defense because no one could corroborate the alibi. N.T.,

8/24/16, at 17. Counsel testified that he believed the better strategy was to

establish that another individual committed the crime. Id. at 18.

      Moreover, there was ample evidence establishing that Appellant was

the perpetrator of the crimes.   A prior panel noted as follows:

            Detective Terry Hediger testified that there was no sign of
      forced entry at the crime scene. See N.T., Trial, 7/20/2011, at
      339. Watts’s son, Aaron Adams, testified that [Appellant] had a
      key to Watts’s residence. See id., at 393. Adams also testified
      that he had locked the doors to his mother’s residence when he
      left at 2 a.m., approximately two hours before the crime
      occurred. See id., at 398–399. This evidence, taken together,
      was sufficient to establish that [Appellant] was one of a small
      group of likely suspects that had access to Watts’s residence
      without breaking in.

            Furthermore, a neighbor, Regina Heckert, testified that she
      heard gunshots around 4 a.m. on the night of the crime. See
      id., at 412. After hearing the gunshots, she looked out her
      window and observed a dark-skinned male walking down the
      alley next to Watts’s residence. See id., at 421. The male had
      on a light-colored t-shirt and dark shorts. See id., at 421–422.
      He had short hair. See id. He was of medium height with a
      stocky build. See id., at 425. She did not see any firearm visible
      on his person. See id., at 425–426.

           Detective Timothy Lanigan testified that he met with
      [Appellant] later that same morning, at approximately 11:00
      a.m. See N.T., Trial, 7/21/2011, at 600. [Appellant] was

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        wearing a dark blue pullover shirt over a yellow t-shirt and blue
        denim shorts. See id., at 603. When [Appellant] was
        subsequently arrested, he was measured as being 5′8″ tall, and
        weighed 185 pounds. See id., at 616.

              Detective Lanigan also testified that he tested [Appellant’s]
        hands for gunshot residue. See id., at 602. The swabs of
        [Appellant’s] left palm tested positive for gunshot residue. See
        N.T., Trial, 7/22/2011, at 31. Furthermore, gunshot residue was
        found on [Appellant’s] clothing. See, N.T., 7/25/2011, at 266.

Jones, 105 A.3d 27, 1870 WDA 2012 (unpublished memorandum at *8-9).

        Additionally, at the PCRA hearing, the PCRA court discussed the

absence of prejudice and the weakness of an alibi defense in Appellant’s

case:

        THE COURT: To me, that’s the meat of your argument because
        the jury was instructed to weigh the evidence and testimony of
        all witnesses, and that included [Appellant] who did testify. The
        jury wasn’t specifically told that includes [Appellant] and quite
        that way because, to me, that would not be proper, but they
        were instructed to determine the credibility of all witnesses and
        to weigh the evidence, and so, [Appellant’s] testimony would
        have been included in that, and though there was not a specific
        alibi instruction given, [Appellant’s] testimony was, I was home.
        And if the jury found his testimony credible, they’d have a
        problem to find him guilty beyond a reasonable doubt since they
        believed he was home. How could he have done it.

               So my view, Mr. Eyster [(counsel for Appellant)], is that as
        to that argument, perhaps it might have been better had an alibi
        instruction been given, but the lack of one in the circumstances
        of this case where other witnesses were not called to say, wait,
        [Appellant] was with me, it was [Appellant] himself testifying, I
        didn’t do it, I was home.

              The jury was told to evaluate that evidence with all the
        other evidence. I don’t see that he suffered prejudice warranting
        a new trial for the failure of a specific alibi instruction.

N.T., 8/24/16, at 43-44.

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      The PCRA court succinctly addressed this issue in its opinion as

follows:

             This Court does not believe that [Appellant] can overcome
      the presumption that trial counsel rendered effective assistance
      of counsel nor does the record reflect that [Appellant] was
      prejudiced by counsel’s failure to request the jury instructions he
      now advances. [Appellant’s] first claim is that trial counsel
      should have requested an alibi instruction because [Appellant]
      testified at trial that he was at his home alone on the evening of
      the murder[s], July 3, 2008, watching television. He testified
      that he w[oke] up at 6:00 a.m. on the morning of July 4, 2008
      and went to his daughter’s house. This Court agrees that, if
      believed, [Appellant’s] testimony would have constituted an alibi.
      However, this Court simply does not believe that there is a
      reasonable probability that the result of the trial would have
      been different has an alibi instruction been read to the jury.
      [Appellant] clearly testified at trial as to his location at the time
      of the murder[s] and he denied committing the murder[s]. The
      jury obviously rejected this testimony when it convicted
      [Appellant]. There is no reason to believe that, had the jury been
      instructed that this testimony, if believed, would constitute an
      alibi, the verdict would have been different. Accordingly, this
      claim fails.

PCRA Court Opinion, 6/22/17, at 12.

      We agree with the PCRA court’s conclusion. While Appellant may have

been arguably entitled to an alibi instruction, Appellant cannot prove that,

had the instruction been given, the result of the trial would have been

different. Pierce, 786 A.2d at 213. Accordingly, we discern no error of law

in the PCRA court’s determination.

      Next, Appellant alleges that trial counsel was ineffective for failing to

request a jury instruction on the third-party culpability defense and failing to




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object when the trial court did not provide this instruction. Appellant’s Brief

at 9. We conclude that no relief is due.

       Foremost, we point out that there is no “third-party culpability” jury

instruction in Pennsylvania. However, we concede that it would have been

possible for Appellant’s trial counsel to have crafted such an instruction and

proposed it to the trial court.          Nevertheless, the evidence admitted at

Appellant’s trial would not support such an instruction as there was no

evidence that a third-party committed the crimes.4             It is well settled that

jury instructions concerning matters that are not before the court or which

are not supported by the evidence serve no purpose other than to confuse

the jury.    Commonwealth v. Patton, 936 A.2d 1170, 1176 (Pa. Super.

2007) (citations omitted). Thus, despite counsel’s trial strategy and desire

to place the blame on a third-party, N.T., 8/24/16, at 18, there was no

supporting evidence of this theory.            Id. at 51-52.   Because there was no

evidence, counsel cannot be deemed ineffective for failing to craft and

present such a jury instruction to the trial court as the underlying claim is of

no merit. See Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015)

(“[C]ounsel cannot be deemed ineffective for failing to raise a meritless

claim.”).
____________________________________________


4 Moreover, Appellant has failed to direct our attention to where evidence of
a third-party’s involvement in the crimes appears in the record. The PCRA
court noted that Appellant’s argument regarding the involvement of a third
party was speculation. N.T., 8/24/16, at 51-52.



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      Finally, Appellant claims that trial counsel was ineffective for failing to

request a jury instruction regarding Appellant’s prior inconsistent statement

to police that he was at his home when the murders were committed and

that he did not commit the crimes. No relief is due.

      At the outset, it is evident that Appellant is in fact arguing for an

instruction regarding his prior “consistent” statement and not a prior

“inconsistent” statement.     Appellant’s Brief at 10.    It is undisputed that

Appellant informed investigating officers that he was at home at the time of

the murders. N.T., 7/22-26/11, at 386-390. In his brief, Appellant merely

asserts that “Had the trial court highlighted Appellant’s prior consistent

statement in its instructions, the jury would have been aware of the

significance of Appellant’s prior consistent statement, which would have

provided a reasonable probability that the result would have been different.”

Appellant’s   Brief   at 10-11.     Appellant’s   argument on this         issue   is

undeveloped, and this conclusory and self-serving averment fails to satisfy

the   requirements     of   the   Pierce   test   for   ineffectiveness.       See

Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007) (“An

undeveloped argument, which fails to meaningfully discuss and apply the

standard governing the review of ineffectiveness claims, simply does not

satisfy Appellant’s burden of establishing that he is entitled to any relief.”)

(citations omitted).   Additionally, we are constrained to point out that the

trial court did instruct the jury on prior inconsistent statements, prior


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consistent statements, and how such statements may be weighed in

deliberations concerning credibility. N.T., 7/22-26/11, at 593-594.

      For the reasons set forth above, we conclude that Appellant is entitled

to no relief.   Accordingly, we affirm the order denying Appellant’s PCRA

petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/2017




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