J-S64024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

DUANE LEE FREY

                            Appellant                No. 169 MDA 2015


             Appeal from the PCRA Order of December 31, 2014
                In the Court of Common Pleas of York County
            Criminal Division at Nos.: CP-67-CR-0001293-2003
                                       CP-67-CR-0005052-2002


BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and FITZGERALD, J.*

MEMORANDUM BY WECHT, J.:                        FILED DECEMBER 16, 2015

       Duane Lee Frey appeals the denial of his third petition for relief

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541-46,

after an evidentiary hearing. We affirm.

       On April 25, 2003, following a jury trial, Frey was convicted of first-

degree murder, 18 Pa.C.S. § 2502(a), arson, 18 Pa.C.S. § 3301, tampering

with physical evidence, 18 Pa.C.S. § 4910, and receiving stolen property, 18

Pa.C.S. § 3925. In an earlier appeal, a panel of this Court summarized the

facts offered by the Commonwealth in support of Frey’s convictions as

follows:


____________________________________________


*
       Former Justice specially assigned to the Superior Court.
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     On May 25, 2002, Hopethan Johnson bought a motorcycle. At
     some point, he left the motorcycle in a garage belonging to a
     man named Stacey Farmer.

     On May 26, 2002, at roughly 11:30 a.m., a neighbor of Stacey
     Farmer reported to police that she had heard approximately five
     gunshots in the woods behind Farmer’s home.              Upon
     investigating, police found nothing unusual, but did notice a
     truck registered to Frey in Farmer’s driveway.

     In June 2002, police received an anonymous tip that a murder
     had happened near Farmer’s residence. During the ensuing
     investigation, police found shotgun wads in the woods behind
     Farmer’s house. Also found near Farmer’s home was a garbage
     bag containing, inter alia, Johnson’s cell phone. Police found
     shotgun shells in Frey’s house and car. Additionally, police
     located Johnson’s motorcycle hidden under a pile of items near
     Frey’s place of employment.       Embedded in parts of the
     motorcycle were shotgun pellets.

     Although Johnson’s body had not yet been found, Frey was
     eventually arrested in connection with Johnson’s death. Frey
     later admitted to the killing[, telling the police that he dumped
     Johnson’s body in the Susquehanna River.]

     There are at least some indications in the record that police also
     suspected Farmer was connected, directly or indirectly, to
     Johnson’s death. It appears police charged him with, inter alia,
     tampering with evidence in connection with the homicide. The
     allegations against Farmer seem to have included the claim that
     he lied to police by giving false or incomplete information in one
     way or another as to what he knew about Johnson’s demise. It
     also appears police believed Farmer had helped Frey hide
     Johnson’s motorcycle.

     While Frey was in custody for Johnson’s murder, Farmer was
     shot dead in his driveway. At some point, police questioned Frey
     in connection with Farmer’s death. Although the reasons are not
     entirely clear to us, it seems that Farmer’s manner of death was
     not determined to be homicide until 2010.

     There are indications in the record that, prior to the homicides in
     question, Johnson, Farmer, and Frey had all been connected by
     drug activity. More particularly, it may be that Johnson sold
     drugs from Farmer’s residence and Frey bought drugs from
     Johnson.

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Commonwealth v. Frey, 41 A.3d 605, 607-08 (Pa. Super. 2012).1

        At the conclusion of trial, Frey was convicted of the crimes set forth

above. The trial court sentenced Frey to, inter alia, life imprisonment on the

first-degree murder charge.         On January 21, 2005, a panel of this Court

affirmed Frey’s judgment of sentence. Id. at 1. Frey sought allowance of

appeal with our Supreme Court, which the Court denied on December 20,

2005.      See Commonwealth v. Frey, 890 A.2d 1056 (Pa. 2005) (per

curiam).

        On August 7, 2006, Frey filed a timely first PCRA petition, which the

PCRA court denied after an evidentiary hearing. On April 27, 2010, a panel

of this Court affirmed the PCRA court’s order.        See Commonwealth v.

Frey, No. 1843 MDA 2008 (Pa. Super. Apr. 27, 2010).           Once more, Frey

filed a petition for allowance of appeal with the Pennsylvania Supreme Court,

and, again, the Court denied the petition. Commonwealth v. Frey, 8 A.3d

341 (Pa. 2010) (per curiam).

        Another panel of this Court, in a published opinion, summarized the

subsequent events that led to the instant appeal:

        Sometime in 2008, certain skeletal remains were found near the
        Susquehanna River. Also in 2008, the Commonwealth obtained
____________________________________________


1
       As noted, Frey also was convicted of arson. The record reveals that
Johnson borrowed a vehicle from Stephanie Summers. That vehicle was
later found in Harrisburg destroyed by fire. Police later determined that Frey
had driven the car to Harrisburg and intentionally set it ablaze. This was the
factual basis for the arson charge.



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     a forensic report relating to the skeleton. Thereafter, apparently
     in 2010, the Commonwealth secured DNA testing that identified
     the remains as being those of Johnson.

     On or after May 27, 2010, the Commonwealth mailed Frey and
     his counsel a letter indicating [that] Johnson’s skeletal remains
     had been discovered. It appears [that] the Commonwealth
     provided Frey a copy of the 2008 forensic report on or about
     June 8, 2010.

     On or about July 30, 2010, Frey filed for relief under the PCRA.
     His petition essentially sought a new trial based on after-
     discovered evidence—specifically, Johnson’s remains and the
     forensic report relating thereto. Part of Frey’s allegations was
     that the forensic report indicated Johnson’s death may have
     occurred between six months and several years prior to the
     report. Frey essentially contended this new evidence cast doubt
     on the question of whether Johnson was killed in 2002, as the
     Commonwealth maintained during Frey’s trial.

     Additionally, Frey alleged that the forensic report contained
     information indicating there were multiple sizes of shotgun
     pellets found in Johnson’s skeleton. It was Frey’s position that
     the information concerning the pellet sizes could reasonably
     suggest the existence of multiple shooters, thereby casting
     doubt on the Commonwealth’s theory that Frey had been the
     only principal killer.

     On or about October 29, 2010, Frey supplemented his PCRA
     petition, alleging that police first determined in 2010 that
     Farmer’s death was a homicide.           Subsequently, in PCRA
     proceeding convened by the court, Frey essentially took the
     position that Johnson’s killer or an accomplice thereto may have
     killed Farmer, perhaps because the common killer feared Farmer
     was going to reveal facts which he knew about Farmer’s death.

     In March 2011, Frey filed a motion for discovery.            More
     particularly, he sought discovery of police and ballistic reports,
     eyewitness statements, photographs, and autopsy reports
     regarding the death of Stacey Farmer. Frey contended the
     requested information could demonstrate similarities between
     the murders of Farmer and Johnson, possibly evidencing a
     common shooter. Because Frey was incarcerated at the time,
     Frey’s position was that proving a shooter common to both
     Farmer and Johnson could cast doubt on the Commonwealth’s
     theory that Frey shot Johnson.

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       The PCRA court granted Frey’s discovery request[, and the
       Commonwealth appealed].

Frey, 41 A.3d at 608-09 (footnotes omitted). The panel affirmed the PCRA

court’s order, and remanded for discovery related to Frey’s PCRA claims.

Id. at 614.2 The Commonwealth filed a petition for allowance of appeal with

the Pennsylvania Supreme Court, which the Court denied on April 11, 2013.

See Commonwealth v. Frey, 65 A.3d 413 (Pa. 2013) (per curiam).

       Following discovery, Frey filed a second supplement to his PCRA

petition. Once more, Frey argued, among other things, that the murders of

Farmer and Johnson, both of which were committed near Farmer’s home

within approximately thirty-two days of each other, were connected.    Frey

maintained that the connections between the murders strongly suggested

that they were committed by the same man, but that the man could not

have been Frey, because Frey was incarcerated at the time of Farmer’s

murder. Notably, a man named John Ruth had been arrested and charged

with Farmer’s death. Apparently, Ruth and Johnson were rivals in the drug

trade, which Frey argued was Ruth’s motive to kill Johnson. Frey contended

that Ruth killed both Farmer and Johnson.        Subsequently, however, the




____________________________________________


2
       Notably, the panel also determined that Frey’s second PCRA petition,
and its supplements, were timely pursuant to the after-discovered fact
exception to the PCRA’s one-year time bar. See Frey, 41 A.3d at 610-11
(citing 42 Pa.C.S. § 9545(b)(1)(ii)).



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Commonwealth released Ruth from custody, and withdrew the murder

charges against him.

      On July 31, 2014, the PCRA court held a hearing. On December 31,

2014, the PCRA court entered an order denying Frey’s PCRA petition.         On

January 21, 2015, Frey filed a timely notice of appeal.      In response, the

PCRA court directed Frey to file a concise statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(b).        On February 11, 2015, Frey

timely filed a concise statement. Finally, on March 18, 2015, the PCRA court

issued an opinion pursuant to Pa.R.A.P. 1925(a).

      Frey raises a single issue for our review:    “Whether the PCRA court

erred in denying [Frey’s] PCRA petition where [after-]discovered exculpatory

evidence required a new trial?” Brief for Frey at 4. Our standard of review

in PCRA cases is well-settled. We review the PCRA court’s findings of fact to

determine whether they are supported by the record, and we review its

conclusions of law to determine whether they are free from legal error.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). The scope of our

review is limited to the findings of the PCRA court and the evidence of

record, viewed in the light most favorable to the prevailing party at the trial

level. Id.

      The crux of Frey’s appeal is that the litany of evidence that he

discovered after his judgment of sentence became final constituted after-

discovered evidence under the PCRA, and entitled him to a new trial. Frey

divides the new evidence into three overarching categories: (1) “evidence

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showing [that Frey] did not confess to killing the victim and putting his body

in the Susquehanna River (namely the body itself, discovered on a mountain

five years post-conviction);” (2) “evidence that John Ruth killed the second

victim (Farmer);” and (3) “evidence that the same killer (not Frey) also

killed the first victim.”   Brief for Frey at 10.   We consider each of these

categories in turn, and conclude that Frey has not demonstrated that he is

entitled to a new trial. However, we begin by reciting the elements that a

PCRA petitioner must satisfy in order to demonstrate that after-discovered

evidence warrants a new trial.

      Pursuant to the PCRA, an appellant may be eligible for relief based

upon after-discovered evidence only if he pleads and proves that his

conviction or sentence was the result of “[t]he unavailability at the time of

trial of exculpatory evidence that has subsequently become available and

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

Pa.C.S. § 9543(a)(2)(vi).      Thus, as our Supreme Court has explained, to

obtain relief based upon subsection 9543(a)(2)(vi), an appellant must

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

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

the evidence is not cumulative; (3) it is not being used solely to impeach

credibility; and (4) it would likely compel a different verdict.           See

Commonwealth         v.     D’Amato,   856   A.2d    806,   823   (Pa.   2004);

Commonwealth v. Abu–Jamal, 720 A.2d 79, 94 (Pa. 1998). “The test is

conjunctive; the defendant must show by a preponderance of the evidence

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that each of these factors has been met in order for a new trial to be

warranted.” Commonwealth v. Padillas, 997 A.2d 356, 363 (Pa. Super.

2010).

      We begin with Frey’s first category of after-discovered evidence: the

discovery of the first victim’s body. At trial, the Commonwealth presented

evidence of Frey’s confession to the police. In that confession, he admitted

to killing Johnson, and told the police that he had deposited the body in the

Susquehanna River. Years later, Johnson’s body was found at the base of a

mountain, and not in the Susquehanna River, as Frey had stated. Frey now

maintains that the location of the body constitutes after-discovered evidence

that satisfies all four prongs of the above-stated test.

      Frey relies most heavily upon the contention that the discovery of the

body in a different location constitutes exculpatory information. He points to

the fact that, at trial, the prosecutor repeatedly told the jury that the body

was unavailable for trial because Frey had destroyed it by depositing it in the

river. Frey argues that “[a]t a minimum, the discovery of the victim’s body

robs the Commonwealth of [] Frey’s confession and inculpatory statements

made by witnesses that [] Frey put the body in the Susquehanna River at

the location [where] he enjoyed fishing.” Brief for Frey at 13. Frey further

argues that the discrepancy between where the body eventually was located

and his confession essentially nullifies the confession, and, without that

piece of evidence, the evidence would not be overwhelming, as the trial

court determined. Id. at 14.

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       Frey’ argument fails for a number of reasons. First, Frey has not made

a comprehensive argument that the discovery of Johnson’s body satisfies all

four prongs of the after-discovered evidence test.        As noted, Frey must

argue and prove all four elements. See Padillas, supra. Frey focuses upon

only the final element, that the evidence likely would compel a different

verdict. He does not touch upon the first three prongs. For that reason, he

has not demonstrated that he is entitled to relief. Id.

       Frey’s claim also fails because he cannot satisfy the third prong of the

test, that the evidence would not be used upon retrial solely for the

purposes of impeaching credibility. If we assume that Frey did tell the police

that he placed Johnson’s body in the river,3 the actual location where the

body was found would be used solely to discredit his own confession.

Notably, the evidence would not have eradicated the effect of his confession
____________________________________________


3
       We assume this fact for purposes of disposing of this argument.
However, we note that the Commonwealth argues that the record does not
support Frey’s claim that placing Johnson’s body in the river was part of his
truthful confession. The Commonwealth cites the testimony of the police
officer who obtained Frey’s confession, which follows:

       We then got talking, and I knew [Frey] liked to fish, and I asked
       him about Green Branch at the Susquehanna River and I asked
       him if that’s where the body was, and at that point he kind of
       agreed with me and said, and this is a quote, Yea, probably
       that’s where it is but it’s probably long gone by now. I wasn’t
       sure if he was being truthful with me at that time because he
       kind of—because of his actions and reactions, and I just wasn’t
       sure at that point in time.

Notes of Testimony (“N.T.”), April 21-25, 2003, Vol. II, at 504.



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in its entirety, just a portion of it.   Again, the sole effect that the after-

discovered evidence would have had would have been to discredit what he

purportedly told the police in his confession, which is a use prohibited by the

after-discovered test. See D’Amato, supra.

      Finally, the evidence simply was not exculpatory. The actual location

where the body was found does not, in any way, prove that Frey did not

murder Johnson. Nor would it have negated definitively the portion of his

statement to the police where he confessed to killing Johnson.

      The evidence also would not have altered the outcome of the trial. In

addition to the facts recited above, the record was replete with additional,

inculpatory evidence. That evidence established the following events, which

overwhelmingly demonstrate Frey’s complicity in Johnson’s murder. On May

26, 2002, Johnson left a friend’s house to go for a motorcycle ride.

Approximately one hour after he left, shots were fired from somewhere

behind Farmer’s house, which is where Johnson was storing his motorcycle.

The police initially investigated a report of shots fired, and learned only that

Frey’s truck was seen in the driveway of Farmer’s house around the time of

the shots.

      When Johnson did not appear for a family outing, Johnson’s friend

began filing missing persons reports.      Approximately one week later, the

police received an anonymous tip that someone had been murdered behind

Farmer’s residence. The police found shotgun wads in a wooded area behind

Farmer’s home. The police also found Johnson’s motorcycle. It was buried

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underneath pallets and a tarp approximately sixty feet from where Frey

worked. The motorcycle had shotgun pellets embedded in various parts of

the bike. The pellets were consistent with the wads found behind Farmer’s

residence, and with shotgun shells that were found in Frey’s vehicle and

residence.

     At trial, various witnesses testified that Frey frequently purchased

drugs from Johnson, and that Frey believed that Johnson had been

overcharging him. One witness, David Holloway, testified that Frey admitted

to him that he wanted to kill Johnson because Frey believed that Johnson

had swindled him during drug purchases. Holloway testified that Frey stated

that he intended to “get a shotgun and start taking mother fuckers out.”

N.T., Vol. I, at 156. Another witness, Chad Snyder, testified that Frey said,

“I’d like to kill [Johnson],” id. at 195, after one incident in which Johnson

would not sell drugs to Frey on the street. Frey also told Snyder that he had

a shotgun behind the seat of his truck, and that he was going to shoot

Johnson with that particular gun. Id. at 196.

     On the day of Johnson’s murder, Farmer woke up his girlfriend, Holly

Strausbaugh, and told her that Frey had murdered Johnson.       Strausbaugh

described Farmer as “all freaked out,” while he explained that Frey had shot

Johnson with a shotgun in the woods behind his house. Id. at 332-36. Frey

returned to the house later that day looking for things that belonged to

Johnson.     Strausbaugh showed Frey to the basement, where Johnson had

stored the motorcycle and his other items. Frey found a jacket, a shirt, and

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a helmet that belonged to Johnson. Frey took those items and left. Id. at

338-40.

      A few days after the murder, Frey, Farmer, and Strausbaugh got into

Frey’s truck, and drove to purchase crack cocaine. During the drive, Farmer

asked Frey what he did with Johnson’s body. Frey “freaked out, just started

saying don’t ever fucking ask me again what I did with it.” Id. at 348-49.

Frey then stated that “no one would ever know where it was.” Id. at 349.

      On June 18, 2002, police located Frey at his mother’s home.     When

they arrived there, they called the residence. Frey’s mother answered the

phone and told the police that Frey was there, but that he was sleeping. The

police asked her to wake him up. Frey picked up the phone and agreed to

exit the residence and speak with them.     When Frey left the house, the

officers advised Frey of his constitutional rights, and patted him down for

weapons.    Frey was then placed into the police cruiser and transported to

the police station.

      At the station, Frey told the police that Johnson had been selling him

crack cocaine, which had caused Frey to give Johnson over $13,000 and

computer equipment for the drugs.      Frey told the officers that Johnson

always threatened him and tried to scare him. Initially, Frey denied killing

Johnson. However, he eventually became fidgety and nervous. After more

prodding by a police officer, Frey admitted that he killed Johnson.   Id. at

502-03. Frey stated that Johnson entered Farmer’s residence on the day in

question and started pestering Frey about money. Frey became upset. He

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left the house and went out back to the wooded area. Johnson followed him

outside, and continued to berate Frey about money. Frey then shot him with

the shotgun. Frey stated that he “shot him until he was dead.” Id. at 503.

Later, Frey’s mother arrived at the police station.       During an embrace

between mother and son, Frey said to his mother “I did it, Mom, I killed

him.” Id. at 513.

      The evidence was overwhelming. Frey had the motive and opportunity

to kill Johnson.     Frey expressed his desire to kill Johnson repeatedly, and

then admitted to doing so both to the police and to his mother, among

others.    Frey gathered up the evidence of his crime and attempted to

conceal it, which further evinces his guilt.    He even burned the car that

Johnson had been driving. The fact that the body was not exactly where he

told the police (assuming that he did so) is just a minor piece of evidence

among the substantial body of inculpatory evidence presented by the

Commonwealth. The discovery of this piece of evidence would not compel a

different verdict.

      Frey’s remaining two claims are premised upon Frey’s contention that

John Ruth killed Farmer.      We consider them together.     Frey argues that

evidence discovered after his trial, such as statements from Farmer’s

parents that implicate Ruth, proves that the same person killed both Farmer

and Johnson. Because Frey was incarcerated at the time of Farmer’s death,

he could not have killed Farmer, and, ipso facto, he could not have killed

Johnson.

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     Frey offers the following pieces of after-discovered evidence to prove

that Ruth killed Farmer, and that the two murders were connected in such a

way that Ruth also must have killed Johnson:

           Farmer’s father told the police that Ruth killed Farmer.

           Farmer’s   mother   told    the     Commonwealth   that:   (1)   after

            Johnson’s death, Farmer was scared of and angry at Ruth; (2)

            Ruth frequently sat at Farmer’s window while holding guns; (3)

            Ruth destroyed Farmer’s house at a time when Ruth was living

            with Farmer; and (4) there was a possibility that Farmer did not

            commit suicide, which was initially believed to be a potential

            cause of Farmer’s death.

           The Commonwealth knew, but did not inform Frey, that Farmer’s

            death was classified as a homicide since 2002.         Suicide was

            unlikely because no weapon was found near Farmer’s body, and

            because there was a trail of blood one-quarter mile long that

            emanated from a vehicle in which Farmer was shot.

           An individual named Dana Underwood would testify that Farmer

            was afraid for his life between the time of the first murder and

            the time of his death, which included a period of time when Frey

            was incarcerated.    Other witnesses would have testified that

            Farmer was afraid for his life during that period and did not want

            to return to his home on the night that he was murdered.




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             These witnesses were known to the Commonwealth, but not to

              Frey.

             Raymond Burd would have testified that Ruth would have killed

              anyone who interfered with his drug business.           Burd believed

              that Johnson was stealing Ruth’s business.

             Another witness known to the Commonwealth, but not Frey,

              John Topper, provided two statements to the Commonwealth in

              which he stated that Johnson was “shorting” Ruth during crack

              cocaine drug deals.

             Ruth’s phone records demonstrated that Ruth called both

              Johnson and Farmer shortly before they both were murdered.

       Frey   maintains     that   this   evidence,   considered   individually   and

cumulatively, satisfies the after-discovered evidence test.4          We disagree.

Even if we assume, arguendo, that Frey can satisfy the first three elements

of the test, he cannot satisfy the last element.

       The evidence pertaining to how and why Farmer was murdered is not

exculpatory by itself, and has little bearing on Johnson’s murder.                The
____________________________________________


4
      Frey goes to considerable length to demonstrate that the
Commonwealth violated their duty do disclose much of the above-listed
evidence pursuant to Brady v. Maryland, 373 U.S. 83 (1963). See Brief
for Frey at 20-25. Frey did not raise a Brady claim in his Rule 1925(b)
concise statement. It is well-settled that claims that are not raised in a
concise statement are waived for purposes of appeal. See Commonwealth
v. Lord, 719 A.2d 306, 309 (Pa. 1998). Hence, Frey’s Brady arguments are
waived.



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evidence demonstrates that Farmer did not kill himself, but instead was

murdered. It also proves that Ruth may have been the person who killed

Farmer. None of that is relevant to Frey. Frey must prove that there was a

concrete connection between the Farmer murder and the Johnson murder.

The only evidence that he offers are statements from witnesses who would

say that Ruth and Johnson were competing in the drug trade, and did not

have amicable feeling for each other due to alleged misdealings, and the fact

that Ruth called both Farmer and Johnson before they were killed.       This

evidence hardly amounts to meaningful proof either that Ruth killed

Johnson, or that Ruth killed both men.

     More importantly, these very tenuous allegations based upon after-

discovered material cannot overcome the nearly insurmountable body of

evidence presented by the Commonwealth, and recited in detail above, to

prove that Frey killed Johnson. We find it unreasonable to believe that the

jury would have disregarded the physical evidence, Frey’s suspicious cover-

up behavior, and his multitude of confessions, including to his own mother,

and, instead, would have found him not-guilty based upon unsubstantiated

phone calls and an alleged drug feud. Simply put, Frey has not convinced us

that any of this after-discovered evidence would have compelled a different

verdict. See D’Amato, supra.

     We have reviewed the record, the claims, and the arguments by the

parties. Having done so, and for the reasons explained in depth above, the




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PCRA court’s order was supported by the record, and was not an abuse of

discretion. Frey has not demonstrated that he is entitled to a new trial.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/16/2015




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