                                  [J-43-2015]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                               EASTERN DISTRICT

        SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.


COMMONWEALTH OF PENNSYLVANIA,                  :   No. 701 CAP
                                               :
                     Appellee                  :   Appeal from the Order entered on
                                               :   07/10/2014 in the Court of Common
                                               :   Pleas, Criminal Division of Philadelphia
              v.                               :   County at No. CP-51-CR-0936052-1991
                                               :
                                               :   SUBMITTED: July 1, 2015
WILLIAM A. JOHNSON,                            :
                                               :
                     Appellant                 :


              Justice Wecht delivers the Opinion of the Court, except with
              respect to Part IV(D). Justices Baer and Dougherty join the
              opinion in full. Justices Todd and Donohue join the opinion,
              except with respect to Part IV(D), and Justice Todd files a
              concurring opinion, joined by Justice Donohue. Chief
              Justice Saylor joins Parts I, II, III, and IV(A), (E) and (F) of
              the opinion and files a concurring opinion.


                                         OPINION

JUSTICE WECHT                                                    DECIDED: June 20, 2016
       In this capital case, William Johnson appeals the lower court’s denial of his

petition for post-conviction relief and denial of an evidentiary hearing on that petition.1

Johnson raises seven claims. As to the latter six of those listed issues, Johnson has

not demonstrated that he is entitled to relief. In a portion of the first of his seven issues,

Johnson alleges that trial counsel was ineffective for failing to investigate, discover, and

1
      Johnson’s petition was filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541-46.
present two alibi witnesses at trial. With respect to that claim alone, Johnson has

demonstrated that a genuine issue of material fact exists such that the PCRA court

should have held an evidentiary hearing. Hence, we vacate the PCRA court’s order on

that claim, and we remand this case to the PCRA court for an ineffectiveness hearing

on the alibi issue alone.

                                    I. Background

       To resolve Johnson’s post-conviction issues, we first must provide a detailed

description of the facts that were developed at his 1992 murder trial, as well as a

recitation of the relevant procedural events that preceded this opinion. In 1991, the

Commonwealth charged Johnson with first-degree murder, 18 Pa.C.S. § 2502(a),

criminal conspiracy, 18 Pa.C.S. § 903, possessing an instrument of crime, 18 Pa.C.S. §

907, and recklessly endangering another person, 18 Pa.C.S. § 2705. Those charges

concerned the June 10, 1993 homicide of John McDonald on a street in Philadelphia.

The Commonwealth filed similar charges against Robert Holmes and Lamont Bruce.

The three defendants were tried together before a jury.

       The following is a summary of the relevant evidence presented by the

Commonwealth at Johnson’s capital jury trial.

       During the early morning hours of June 10, 1991, Sonya Carr, who was engaged

to be married to the victim John McDonald, was talking to, and listening to music with,

Nancy Jennings, Paul McDonald (the victim’s uncle), Al McDonald, and two individuals

named Billy2 and Rocky on the porch of 4837 Marion Street in Philadelphia. Some of


2
       As we noted in our opinion resolving Johnson’s direct appeal, Billy and Johnson
(whose first name is William) are not the same person. We explained that “all of the
witnesses who observed the incident on the porch testified that Billy and [Johnson] were
different people.    Neither Billy [n]or Rocky were further identified at trial.”
Commonwealth v. Johnson, 668 A.2d 97,100 n.8 (Pa. 1995).



                                    [J-43-2015] - 2
the individuals in this group were drinking beer. Carr did not know the surnames of Billy

or Rocky. At one point during the gathering, the home’s electrical power suddenly went

out. Paul McDonald went inside and then downstairs to flip the tripped circuit breaker

back into the on position. Carr explained at trial what happened while Paul McDonald

was inside the house:

       We were talking on the porch and we were listening to music, and Billy
       grabbed my butt. Billy was trying to blame it on Rocky, and Rocky knew
       that Billy did it and I knew that Billy did it and I told Billy, no, that’s violating
       me and not to do it, and Paul McDonald also told him not to do it.
Notes of Testimony (“N.T.”), 5/27/1992, Vol. I, at 54. Upset by the incident, Carr went

inside the house. Paul McDonald, the victim’s uncle, came back outside and spoke to

Billy about the incident. Billy denied that he had touched Carr. He accused Rocky of

being the culprit.

       The victim arrived at the residence a short time later. Carr met the victim at his

vehicle and explained what had happened on the porch. Visibly angered, the victim told

Carr to get into the vehicle, and the two drove up and down the street looking for Billy

and Rocky.

       The victim found Rocky nearby and chased him until Rocky ran into a nearby

house.    Lamont Bruce (also known as Wayne), who was one of Johnson’s co-

defendants, approached the victim and told him that his aggressive and accusatory

behavior was disrespectful to Bruce’s aunt, who apparently owned the residence into

which Rocky had fled. The victim explained that he did not mean to be disrespectful,

but that he only wanted to locate the person who had touched Carr inappropriately.

Bruce grew angrier, and stated that “I am going to have to have you knocked off.” N.T.,

5/28/1992, at 6.

       The victim returned to his vehicle and retrieved a car phone. As he walked, the

victim saw Billy and confronted him, threatening Billy with physical violence if he


                                         [J-43-2015] - 3
touched Carr again. N.T., 5/27/1992, Vol. II, at 81. The victim and Billy immediately

began arguing about whether Billy had touched Carr’s buttocks. Billy denied fondling

Carr. The victim removed the chain that he was wearing around his neck and the rings

on his fingers, acts that the people on the aunt’s porch recognized as a step in

preparation for a fight. Paul McDonald pulled the victim away to prevent the fight that

was about to ensue. Billy then fled the scene.

       Bruce remained at the scene and continued to argue with the victim, repeating

his prior assertions that the victim was being disrespectful by being aggressive on his

aunt’s porch. The victim went to his vehicle and removed a two-by-four piece of lumber

from the trunk, placing it under his car. Bruce, believing that the victim was going to the

car to retrieve a weapon, stated that “this nigger wants to die tonight.” Id. at 53. By this

point, someone had called the police, who had arrived in a marked police van. Paul

McDonald and his brother-in-law, Ardell McDaniel, took the victim a few houses away to

talk to the police. After that discussion, the police left the scene.

       Soon after the police departed, Carr looked toward the parking area of a Pep

Boys automotive service station and noticed a white Chevrolet Blazer in the empty lot.

She also noticed Johnson and Robert Holmes, another of Johnson’s co-defendants,

walking from the Blazer toward Bruce, who was on the porch of his aunt’s nearby

residence.    Johnson and Holmes talked to Bruce for a brief period, and then

approached Carr and Jennings. One of the men yelled out to Carr, “where is your punk

boyfriend now?” Id. at 56. Jennings sent for Paul McDonald, believing that something

dangerous was afoot.

       Ardell McDaniel arrived first. Holmes asked if Ardell McDaniel was one of the

people involved in the earlier argument. Someone yelled out that he was not one of

them. One of the men in the Johnson-Holmes-Bruce group then yelled to Carr and




                                       [J-43-2015] - 4
Jennings that “he didn’t give a fuck about [the victim’s] bitch, and the man was going to

die tonight.” N.T., 5/27/1992, Vol. I, at 59. Carr then took the radio that the group had

been listening to into the house at 4837 Marion Street, so that she and Jennings could

go inside and shut the door and windows. When she came back outside, she saw Paul

McDonald walking back towards the 4837 Marion Street house with the victim walking

behind him. When Paul McDonald arrived, Holmes and Bruce were standing nearby.

Some witnesses reported seeing Holmes brandishing a gun. Bruce told Paul McDonald

that he hoped that the victim would die. Paul McDonald responded by telling Bruce that

the victim had calmed down, and that violence was unnecessary.           The victim then

arrived at the residence.    Notably, all of the Commonwealth’s witnesses, including

police officers who had interacted with him, stated that the victim had calmed down by

this point and just wanted to resolve the situation. Nonetheless, Johnson ran between

two parked cars and fired approximately six shots at the victim. Johnson, Holmes, and

Bruce then ran from the scene.

      Meanwhile, Carr had reentered the house to take the radio upstairs, whereupon

she heard gunshots. She ran outside, and saw the victim fall to the ground. People

scattered from the scene, and Carr saw a group of men running toward the white

Blazer.

      Carr did not see anyone fire the shots, nor did she see anyone carrying a gun.

Two days after the shooting, in an attempt to have Carr identify the men involved in the

victim’s death, police detectives provided Carr with two envelopes, each of which

contained eight photographs of black men. Carr was unable to make any positive

identifications from the photographs. However, during her trial testimony, Carr identified

Johnson, Bruce, and Holmes as the perpetrators of the murder.




                                     [J-43-2015] - 5
      Nancy Jennings, who was Paul McDonald’s wife and the victim’s aunt by

marriage, had departed the scene after the victim and Billy argued about whether Billy

had touched Carr’s buttocks. Jennings returned when she saw the white Blazer pull

into the Pep Boys lot. She testified at trial that she saw Johnson move between two

parked cars and shoot the victim. She immediately ran into the residence and called

the police. Initially, Jennings had told the police that Bruce shot the victim.   Later,

Jennings selected the three defendants, Johnson, Bruce, and Holmes, from

photographs provided to her by the police.

      Notwithstanding her previous identification of Bruce as the shooter, Jennings was

confident at trial in her identification of Johnson as the shooter, because she knew

Johnson from the neighborhood for approximately twelve years. Jennings testified that

she had named Bruce only because she was in a state of shock, which caused her to

speak too quickly when interviewed by the police. At trial, Jennings also identified

Bruce and Holmes as Johnson’s cohorts on the night in question. She testified that

Holmes was carrying a gun when the trio returned to the scene immediately before the

shooting occurred, but that she never saw Bruce with a gun. Paul McDonald also

selected all three defendants from police photo arrays shortly after the shooting,

although he had seen Johnson only for a matter of seconds.

      Francis Bruce, who was biologically unrelated to Lamont Bruce but nonetheless

considered him to be a brother, also was at the scene of the murder, although she did

not arrive there until after someone had touched Carr’s buttocks. She knew each of the

defendants in various ways for a number of years. Francis Bruce identified Johnson as

the person who shot the victim. She also selected Johnson’s picture from a photo array

shortly after the murder. However, Francis Bruce, an admitted crack cocaine addict,

had been smoking the narcotic earlier on the day of the murder. Despite being a crack




                                    [J-43-2015] - 6
addict and despite having smoked it that day, Francis Bruce claimed at trial that she

was not high when the victim was shot. After the murder occurred, Francis Bruce

testified, she smoked more crack cocaine.

      Ardell McDaniel, who had been drinking alcohol earlier in the evening, was

standing only a few feet from the victim when the shooting occurred.          McDaniel

identified Johnson as the shooter, although he also had seen Johnson only for a few

seconds prior to the shots being fired. McDaniel followed Johnson and the other men

after they entered the white Blazer and fled. Eventually McDaniel stopped trailing the

Blazer, because someone in the vehicle began firing shots at him. Later, McDaniel was

unable positively to select Johnson’s photograph from a police photo array. However,

McDaniel was able to narrow the photographs to two (from eight), and selected Johnson

as the person who looked “the most familiar of the men involved in the shooting.” N.T.,

6/1/1992, at 31.

      On the date in question, a Philadelphia Police Officer named, memorably,

Benjamin Franklin was dispatched in the early morning hours to 4837 Marion Street to

respond to an emergency call. When Officer Franklin arrived, a large crowd of people

had congregated around the residence. Officer Franklin immediately noticed the victim

lying in front of 4835 Marion Street.   Officer Franklin observed that the victim was

bleeding from the stomach area.

      Officer Franklin received preliminary reports at the scene from various witnesses.

He quickly learned that the victim had been arguing with another black male prior to the

shooting after the black male had groped the victim’s fiancée’s buttocks.        Officer

Franklin first spoke to Paul McDonald. Paul McDonald told Officer Franklin that, soon

after the argument, the alleged groper went into a nearby house, whereupon a different

black male arrived on the scene in a white vehicle.        This newly arrived person,




                                    [J-43-2015] - 7
described by Paul McDonald as a black male with a light complexion, a heavy build, and

approximately five feet seven inches tall, exited the white vehicle, approached the victim

from the rear, fired several shots at the victim from a handgun, and then reentered the

vehicle and drove away.

       Ardell McDaniel also approached Officer Franklin at the scene of the crime. He

told the officer that he had followed the white vehicle and that one of the occupants of

that vehicle had fired numerous shots at him. He told Officer Franklin that he followed

the vehicle all the way to Penns Grove Street, where he saw the shooter and four other

individuals exit the vehicle and flee the area on foot.

       When Detective William Schol, assigned to the Philadelphia Police Department’s

homicide unit, arrived at the scene, the victim already had been taken to a local

hospital. Detective Schol first observed a bullet strike mark on the front door. Detective

Schol located a bullet directly below the strike mark, as well as shell casings on the

sidewalk in front of 4837 Marion Street and the neighboring residences. The casings all

were fired from the same weapon. During the autopsy, five bullets were removed from

the victim’s body. All five of those bullets were fired from the same gun.

       A silver Mercedes, with a blown-out passenger side window, was parked near

the murder scene.      As the investigation unfolded, Detective Schol learned that the

suspects may have fled the scene in a white Chevrolet Blazer. A few blocks away, at

4124 Penns Grove Street, Detective Schol located the Blazer.

       Officer Joanne Beres, from the Mobile Crime Detection Unit, examined the

Blazer for latent fingerprints. Officer Beres was able to lift twelve prints from the vehicle.

Eugene Famiglitti, an expert in fingerprint identification from the Philadelphia Police

Department’s Fingerprint Identification Unit, received the lifts obtained by Officer Beres

and compared those lifts with the known fingerprints of the three co-defendants.




                                       [J-43-2015] - 8
Famiglitti was able to match some of the fingerprints to Holmes to a reasonable degree

of certainty. However, Famiglitti could not match any of the fingerprints lifted from the

Blazer with either Johnson’s or Bruce’s fingerprints.

       Detective William Wynn, assigned to the Philadelphia Police Department’s Major

Crimes Division, was ordered by the trial court to construct a live line-up that included

Holmes and Johnson.3 The purpose of the line-up was for Paul McDonald to identify

the individuals who were involved in the murder. Paul McDonald was brought to the

police station and sequestered in a room. In the meantime, counsel for Holmes and

Johnson met with their clients, and then with Detective Wynn. After consultation with

their clients, the attorneys produced sworn statements from Holmes and Johnson

indicating that they refused to participate in the line-up process, including in the

selection of the stand-in volunteers that comprised the remainder of the line-up. As a

result, the line-up was canceled. Johnson did not offer any reason at that time as to

why he would not participate, and his attorney did not proffer any reasons at trial.

       With that evidence, the Commonwealth rested. The defendants presented the

following witnesses, who portrayed the victim as uncontrollable and as the aggressor in

each confrontation.4

       Sarah Morris lived on Marion Street at the time of the shooting. She had been

sitting on her steps with her son when she heard an argument between the victim and

two other people whom she could neither see nor identify. During the time that Morris

observed the argument, the victim acted aggressively and abusively. He repeatedly


3
       At trial, the court refused to permit the witness to testify as to who requested the
line-up. The trial court believed that the jury only needed to know that the line-up was
ordered by the court.
4
       All of the defense witnesses were called as fact witnesses by Lamont Bruce.



                                      [J-43-2015] - 9
used foul language and insulted the neighbors and the neighborhood. Morris saw the

victim go to his car and retrieve an item from his trunk, although she could not identify

the item. Morris then felt that she had seen and heard enough to convince her that

something violent or dangerous was afoot. She went inside her house and called the

police, who arrived shortly thereafter. Once the police left, Morris went back inside her

residence. A few minutes later, she heard gunshots. When Morris went outside, she

saw the victim on the ground. Morris knew Bruce, but did not see him in or around the

area where the murder occurred. She also did not see Johnson or Holmes at the scene

of the murder.

      Jody Morris, Sarah Morris’ son, was inside his house when he heard the victim

arguing with “a guy by the name of Bill,” on Paul McDonald’s front porch.           N.T.,

6/1/1992, at 46. After noticing the dispute, he went outside and sat with his mother.

Unlike his mother, Jody saw Bruce at the scene. Bruce had followed the victim, who

had been chasing Rocky and screaming that he was going to kill Rocky. The victim was

screaming obscenities that were directed at the neighbors and the neighborhood.

Bruce was trying to keep Rocky and the victim separate, and trying to get everyone to

take the argument off of his aunt’s porch.

      Jody then joined Bruce in trying to get everyone to depart from that particular

area. According to Jody, the victim was in a rage and could not be calmed down. The

victim eventually walked away, and Jody returned to his residence. He then observed

the victim go to his car and retrieve an unknown item. Jody went back inside of his

house, and only reemerged when he heard the shooting. He ran across the street and

saw the victim lying shot on the ground. Jody did not see Holmes or Johnson at the

scene of the murder at any time on the night in question.




                                     [J-43-2015] - 10
       The argument between the victim and Rocky, which resulted in Bruce telling the

victim that he was disrespecting his aunt’s porch, took place on Theresa Field’s porch.5

On the night in question, Fields was sitting on her porch with some family members

when Rocky ran up to her house and stood in front of the hedges. The victim arrived

immediately thereafter “ranting and raving,” and threatening to kill Rocky. Id. at 62. The

victim’s sudden appearance caused Fields to fall out of her chair. Her husband, George

Fields, came out of the house to see what the fuss was all about. The victim then ran

down the steps and started arguing with Billy. Lamont Bruce and Jody Morris showed

up and tried to restrain the victim, and attempted to get him to stop causing problems at

Fields’ house. George Fields stepped in and told the victim and Billy to get away from

the residence, and that, if the victim did not leave, George Fields was going to hit him.

       After George Fields threatened him, the victim “went crazy.”         Id. at 64.   He

started running up and down the street, insulting and threatening to kill everyone. His

behavior caused Theresa Fields, like Sarah Morris, to call the police.

       When the victim went to his vehicle, Fields told everyone at her house to go

inside, because she believed that the victim was going to retrieve a gun. She then

rushed her grandchildren into the house, while warning Billy that “he is going to kill you.”

Id. at 66.   Shortly after she took her grandchildren into the house, Fields heard

gunshots. She went back outside and saw numerous people scattering and running

from the scene. She did not see Johnson on the street from the time she observed the

victim go to his car or at any time after the shooting.

5
       Notably, Fields stated that she was merely Bruce’s friend. However, the
Commonwealth produced a log from the state prison that housed Bruce prior to trial. In
the log, Bruce identified Fields as his wife. The Commonwealth produced this evidence
to demonstrate that the relationship was more than friendly and to illuminate Fields’
potential bias for the jury. Fields repeatedly testified that George Fields, and not Bruce,
was her husband.



                                      [J-43-2015] - 11
       Sheri Stewart, Fields’ daughter, was upstairs in Fields’ house when she heard

the victim causing a disturbance in front of the home, and threatening to kill everyone in

sight. She went outside, at which time she observed the victim walk to his car and

retrieve a gun. The victim walked back towards the house with the gun and stood near

Paul McDonald. Eventually, the victim walked back to Paul McDonald’s house and

stood outside. Stewart then saw two men walk from the Pep Boys parking lot and open

fire on the victim. Stewart saw Bruce sitting on the steps of his house across the street

from the scene of the shooting. Johnson was not one of the two men that she saw

approach and shoot the victim. Stewart also stated that Holmes was not present at the

time of the murder.

       Wesley Bruce, Francis Bruce’s brother, and also of no relation to Lamont Bruce,

was standing in his doorway on Marion Street when the shooting occurred. At the time

of the shooting, Wesley Bruce saw Lamont Bruce sitting on his own doorstep across the

street from Paul McDonald’s house. Wesley Bruce did not see Johnson or Holmes on

the street at the time of the shooting.

       Denise Frazier, Sheri Stewart’s cousin, was upstairs in Fields’ home on Marion

Street after having suffered an asthma attack, whereupon she heard the victim causing

a disturbance.    She ran downstairs and saw the victim arguing with Rocky.           She

described the victim as “hyper” and outraged. Id. at 133. The victim said that he was

“tired” and “ready to kill,” and walked to his car. Id. at 134. Frazier watched him open

his trunk and pull out a silver firearm, and then walk away to talk with Paul McDonald.

       Frazier was standing on the sidewalk in front of Fields’ house, and then moved to

her front door, whereupon the shots that killed the victim were fired. At the time, Frazier

saw Bruce standing on his front steps. She did not see Johnson or Holmes at the




                                      [J-43-2015] - 12
scene at all. However, Frazier admitted that she was not looking at anyone’s face when

the shots were fired.

      As is evident, the Commonwealth and the defendants presented distinctly

different versions of the relevant facts. The Commonwealth portrayed the victim as

upset initially, but calmer and restrained as the night went on.            None of the

Commonwealth witnesses testified that the victim had a gun. Many of the

Commonwealth’s witnesses could not identify Johnson as the shooter from photo arrays

shortly after the murder, but were able to identify him positively as such at trial. On the

other hand, the defense portrayed the victim as aggressive, uncontrollable, and in

possession of a weapon.       The defense witnesses described Lamont Bruce as a

peacemaker and an observer to the murder, not a participant. Every one of the defense

witnesses testified that they did not see Johnson at the scene of the murder. The jury

resolved these factual disputes in favor of the Commonwealth, finding Johnson guilty of

first-degree murder, conspiracy, possessing an instrument of crime, and recklessly

endangering another person.6

      Having been convicted of first-degree murder, Johnson then proceeded to the

death penalty phase of his trial. At the conclusion of the death penalty hearing, the jury

found two aggravating circumstances, to wit, that Johnson had knowingly created a

grave risk of death to another person in addition to the victim of the offense, 42 Pa.C.S.

§ 9711(d)(7), and that Johnson had a significant history of felony convictions involving

the use or threat of violence to the person, 42 Pa.C.S. § 9711(d)(9). The jury found only

one mitigating circumstance, namely that Johnson was twenty-five years old at the time


6
      Bruce and Holmes each were convicted of third-degree murder, 18 Pa.C.S. §
2502(c), and conspiracy. Holmes also was convicted of possessing an instrument of
crime. Both were acquitted of recklessly endangering another person.



                                     [J-43-2015] - 13
of the offense, 42 Pa.C.S. § 9711(e)(4).       The jury concluded that the aggravating

circumstances outweighed the mitigating circumstance, and returned a death sentence.

On June 10, 1992, the trial court formally sentenced Johnson to die by lethal injection.

The court imposed no further penalty on Johnson’s convictions for conspiracy,

possessing an instrument of crime, and recklessly endangering another person.

Johnson filed post-verdict motions, which the trial court denied.

       Johnson, still represented by trial counsel, filed a direct appeal to this Court. In

that appeal, Johnson raised, inter alia, challenges to the weight and sufficiency of the

trial evidence, to the prosecutor’s exercise of peremptory challenges on prospective

black jurors, to the trial court’s denial of his multiple motions for a mistrial, and to the

admission of evidence pertaining to his refusal to participate in the pre-trial line-up. On

November 22, 1995, this Court affirmed the judgment of sentence. See Commonwealth

v. Johnson, 668 A.2d 97, 109 (Pa. 1995).7

       On November 4, 1996, Johnson filed a pro se PCRA petition. The PCRA court

appointed counsel, who filed an amended petition on Johnson’s behalf on October 26,

1998. In the amended petition, counsel raised numerous claims, most of which alleged

that trial counsel was ineffective for various reasons.       In the years that followed,

numerous attorneys were permitted to withdraw as counsel, and new attorneys were

appointed. Johnson was represented by as many as four different attorneys during this

period, until the Federal Community Defender’s Office (“FCDO”) undertook his

representation. During this time, the various attorneys filed additional pleadings and

supplements to the PCRA petition on Johnson’s behalf.            The FCDO continues to

represent Johnson.

7
      Johnson filed a petition for a writ of certiorari with The Supreme Court of the
United States. The Supreme Court denied Johnson’s petition on October 7, 1996.



                                     [J-43-2015] - 14
      The PCRA court held a hearing on January 4, 2001, at which the court permitted

only trial counsel to testify. Both the defense lawyer and the prosecutor acknowledged

at the hearing’s outset that the PCRA court explicitly limited the hearing only to trial

counsel’s testimony.    See N.T., 1/4/2001, at 4.        Nonetheless, at the hearing’s

conclusion, the PCRA court asked defense counsel if he intended to present any other

evidence. Defense counsel informed the court that he would like to do so. The court

then indicated that it would receive additional testimony on a date that the parties would

select. Id. at 82-83. A subsequent hearing did occur on October 9, 2001. However,

that hearing addressed only a petition to withdraw, which defense counsel had filed in

the interim. The court granted the withdrawal petition. See N.T., 10/9/2001, at 3-4.

Notably, the prosecutor characterized the state of the case as being “in the midst of an

evidentiary hearing.” Id. at 5. Notwithstanding the clear intention of the parties and the

PCRA court, no other PCRA hearing occurred.

      Following a lengthy delay after the hearing, the Commonwealth stipulated that

trial counsel had been ineffective during the penalty phase of Johnson’s trial, and

consented to a new sentencing hearing. In light of the stipulation, the PCRA court

vacated Johnson’s judgment of sentence, and ordered a new death penalty hearing.

The PCRA court subsequently denied all of Johnson’s guilt-phase claims. However,

rather than proceed to the penalty hearing immediately, Johnson elected to appeal his

guilt-phase claims to this Court.    Johnson filed a notice of appeal and a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).            On

February 23, 2007, the PCRA court issued an opinion pursuant to Pa.R.A.P. 1925(a),

finding that many of the claims raised by Johnson in his Rule 1925(b) statement either

were waived or were previously litigated. See 42 Pa.C.S. § 9544.




                                    [J-43-2015] - 15
      Before filing a brief, Johnson filed a “Motion to Remand and to Correct the

Record.” Johnson noted that the PCRA court had determined that some of his claims

had been waived because those claims were not raised in any of Johnson’s PCRA

filings. However, Johnson discovered that, at some point, the PCRA court had lost the

record and had attempted to reconstruct it. The court submitted a reconstructed record

to this Court that, Johnson maintained, did not contain various material time-stamped

pleadings. Johnson requested that this Court remand the case back to the PCRA court

for the purpose of constructing a complete record, which Johnson presumably believed

would demonstrate that all of his claims had been preserved.

      On June 10, 2011, this Court denied Johnson’s motion. However, on November

18, 2011, after the parties submitted briefs, this Court entered a per curiam order

vacating the PCRA court’s order dismissing Johnson’s PCRA petition. Noting that our

review of Johnson’s claims necessarily was hindered by the incomplete record, we

remanded the case and directed the PCRA court to investigate and correct any

discrepancies in the reconstructed record.     We further directed the PCRA court to

review and dispose of any issues raised by Johnson in his amended PCRA petition, and

to hold “an evidentiary hearing on any claim which the court believes raises a material

issue of fact and is not resolvable as a matter of law, in accordance with applicable

rules and decisional law.” Order, 11/18/2011, at 1.8

      On April 10, 2014, the parties gathered in the PCRA court to correct any

deficiencies in the record. On May 15, 2014, Johnson filed an amended PCRA petition


8
       We also directed the PCRA court to review the issue of whether the FCDO, a
federal entity, should continue to represent Johnson, a state prisoner, or whether state
counsel should be appointed. Order, 11/18/2011, at 3. On remand, the PCRA court
noted that, at that time, the federal courts approved of FCDO’s involvement in state
cases. See PCRA Ct. Op., 9/26/2014, at 2 n.2.



                                    [J-43-2015] - 16
that reflected the changes made to the reconstructed record. He listed fourteen claims

for relief. On May 22, 2014, the PCRA court heard oral argument, but not testimony, on

the claims raised in Johnson’s May 15, 2014 amended petition. On June 10, 2014, the

PCRA court issued a notice of intent to dismiss the petition without an evidentiary

hearing pursuant to Pa.R.Crim.P. 909(B)(2).          On June 30, 2014, Johnson filed a

response to the court’s Rule 909 notice. On July 10, 2014, the PCRA court entered an

order dismissing the petition.

       On August 6, 2014, Johnson filed a notice of appeal. The PCRA court did not

direct Johnson to file another Rule 1925(b) concise statement.         On September 26,

2014, the PCRA court issued an opinion pursuant to Rule 1925(a).

                                        II. Issues

       Presently, Johnson raises the following seven issues for this Court’s

consideration:

       1.     Was trial counsel ineffective for failing to investigate, develop, and
              present exculpatory and impeachment evidence at trial and did the
              PCRA court err by failing to hold a full evidentiary hearing?

       2.     Was trial counsel ineffective for failing to present evidence of the
              actual reason [that Johnson] did not participate in a pre-trial lineup?

       3.     Were [Johnson’s] rights violated by extensive prosecutorial
              misconduct, and did appellate counsel render ineffective
              assistance?

       4.     Were [Johnson’s] due process rights violated by the improper
              admission of in-court identification testimony and was counsel
              ineffective?

       5.     Was counsel ineffective for failing to object to the trial court’s
              inadequate and misleading cautionary charge on eyewitness
              identification testimony?

       6.     Did the PCRA court err in refusing to grant a hearing on [Johnson’s]
              claim that the Commonwealth discriminated against African-
              American venirepersons in its exercise of peremptory challenges,
              and that trial counsel was ineffective for failing to object?


                                     [J-43-2015] - 17
       7.     Was [Johnson] denied his constitutional right to effective assistance
              of counsel, a fair trial, and due process because of the cumulative
              prejudice of the errors set forth in this brief?
Brief for Johnson at 1-2 (capitalization modified).

                              III. Governing Legal Principles.

       Each of Johnson’s claims involves, at least in part, allegations that, at trial and on

appeal, his lawyer was ineffective in some fashion. Hence, we begin by setting forth the

time-honored legal precepts that govern such claims.

       Our standard of review is well-settled. When reviewing the denial of a PCRA

petition, we must determine whether the PCRA court’s order “is supported by the record

and free of legal error.” Commonwealth v. Sepulveda, 55 A.3d 1108, 1117 (Pa. 2012)

(citing Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)). Generally, we are

bound by a PCRA court’s credibility determinations. However, with regard to a court’s

legal conclusions, we apply a de novo standard. Commonwealth v. Rios, 920 A.2d 790,

810 (Pa. 2007).

       To be entitled to relief under the PCRA, a petitioner must establish, by a

preponderance of the evidence, that his conviction or sentence resulted from one or

more of the errors enumerated in 42 Pa.C.S. § 9543(a)(2), and that his claims have not

been previously litigated or waived. 42 Pa.C.S. § 9544. An issue is previously litigated

if “the highest appellate court in which [the appellant] could have had review as a matter

of right has ruled on the merits of the issue.” Id. § 9544(a)(2). An issue is waived if the

appellant “could have raised it but failed to do so before trial, at trial, . . . on appeal or in

a prior state postconviction proceeding.” Id. § 9544(b).

       To prevail on a claim of ineffective assistance of counsel, a PCRA petitioner must

satisfy the performance and prejudice test set forth by the United States Supreme Court

in Strickland v. Washington, 466 U.S. 668, 687 (1984). See Sepulveda, 55 A.3d at

1117. This Court has recast the two-part Strickland standard into a three-part test by


                                       [J-43-2015] - 18
dividing the performance element into two distinct components. Commonwealth v.

Busanet, 54 A.3d 35, 45 (Pa. 2012); Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa.

1987).     Accordingly, to prove that counsel was ineffective, the petitioner must

demonstrate: (1) that the underlying claim has arguable merit; (2) that no reasonable

basis existed for counsel’s actions or failure to act; and (3) that the petitioner suffered

prejudice as a result of counsel’s error. Sepulveda, 55 A.3d at 1117 (citing Pierce, 527

A.2d at 975). To prove that counsel’s chosen strategy lacked a reasonable basis, a

petitioner must prove that “an alternative not chosen offered a potential for success

substantially greater than the course actually pursued.” Commonwealth v. Cox, 983

A.2d 666, 678 (Pa. 2009) (quoting Commonwealth v. Williams, 899 A.2d 1060, 1064

(Pa. 2006)). Regarding the prejudice prong, a petitioner must demonstrate that there is

a reasonable probability that the outcome of the proceedings would have been different

but for counsel’s action or inaction. Commonwealth v. Dennis, 950 A.2d 945, 954 (Pa.

2008). Counsel is presumed to be effective; accordingly, to succeed on a claim of

ineffectiveness the petitioner must advance sufficient evidence to overcome this

presumption. Sepulveda, 55 A.3d at 1117.

         We need not analyze the prongs of an ineffectiveness claim in any particular

order. Rather, we may discuss first any prong that an appellant cannot satisfy under the

prevailing law and the applicable facts and circumstances of the case. Id. at 1117-18;

Commonwealth v. Albrecht, 720 A.2d 693, 701 (Pa. 1998). Finally, counsel cannot be

deemed ineffective for failing to raise a meritless claim. Commonwealth v. Jones, 912

A.2d 268, 278 (Pa. 2006).

         The PCRA court may dismiss a petition without a hearing when the court is

satisfied “that there are no genuine issues concerning any material fact, the defendant

is not entitled to post-conviction collateral relief, and no legitimate purpose would be




                                     [J-43-2015] - 19
served by any further proceedings.” Pa.R.Crim.P. 909(B)(2). “[T]o obtain reversal of a

PCRA court’s decision to dismiss a petition without a hearing, an appellant must show

that he raised a genuine issue of fact which, if resolved in his favor, would have entitled

him to relief, or that the court otherwise abused its discretion in denying a hearing.”

Commonwealth v. D'Amato, 856 A.2d 806, 820 (Pa. 2004).



                                       IV. Analysis

       We begin our discussion with Johnson’s second listed issue. As noted at the

outset, we grant relief in the form of an evidentiary hearing on the alibi portion of

Johnson’s first listed issue. We will discuss that issue last.



    A. Failure to Explain Johnson’s Refusal to Participate in Pre-Trial Line-Up

       In his second issue, Johnson contends that trial counsel was ineffective for failing

to present evidence to explain the actual reason that Johnson declined to participate in

the court-ordered pre-trial lineup. As detailed above, Paul McDonald was brought to the

police station to participate in a lineup.       Detective Wynn described the aborted

procedure at trial, and testified that, immediately before the line-up was to commence,

he was informed by Johnson’s counsel that Johnson refused to participate. Detective

Wynn told the jury that he was not offered a reason for this refusal.

       Counsel for Johnson did not proffer an explanation to the jury for Johnson’s

decision.   During closing arguments, the Commonwealth seized upon Johnson’s

decision not to participate:

       There was a court-ordered line-up in this case. [Counsel for Johnson] . . .
       would have you believe it wasn’t fair. . . . They refused to even
       participate? Why? Because as soon as Paul McDonald shows up they
       say uh-oh, this guy is going to pick me out. He is going to pick me out.
       And what does this mean? That means I am gone. I did it. They are



                                      [J-43-2015] - 20
      hiding. They are hiding. Listen to the court charge. Efforts to conceal
      identity, to flee are all indicia of guilt, the guilty mind.
N.T., 6/2/1992, at 106-07. The trial court instructed the jury generally on the concept of

consciousness of guilt. N.T., 6/3/1992, at 12-13.

      During the PCRA proceedings, Johnson’s counsel stated that, on the day of the

scheduled line-up, Johnson was wearing a short sleeved shirt, which revealed a tattoo

on Johnson’s arm that read “WILL.” Counsel maintained that, with no long sleeved shirt

to cover it, the tattoo would have identified Johnson to Paul McDonald as a participant

in the murder by name instead of by sight. Simply put, Johnson believed that the tattoo

would have rendered the line-up overly, and prejudicially, suggestive.

      Trial counsel did not present any evidence in this regard at trial, and later testified

that he did not have a particular reason to omit this evidence as part of his strategy.

Johnson now argues that effective counsel would have presented evidence to the jury

of Johnson’s actual reason for not participating in the line-up. At a minimum, Johnson

maintains that effective counsel would have filed a pretrial motion in limine seeking to

preclude Detective Wynn’s testimony at trial. Johnson argues that counsel lacked a

reasonable basis for failing to do so.      Finally, Johnson contends that he suffered

prejudice by counsel’s omission of such evidence. He asserts that, without evidence in

response to Detective Wynn’s testimony, the jury necessarily construed his refusal to

participate in the line-up as an admission of guilt. Johnson points out that there was no

physical evidence linking him to the murder, and that he had not confessed to the crime.

As such, he argues, had counsel successfully rebutted Detective Wynn’s testimony, the

outcome of the trial would have been different.

      The Commonwealth responds that Johnson has not identified the evidence that

his counsel should have produced for the jury. The Commonwealth then argues that

Johnson has not demonstrated that he was prejudiced by counsel’s inaction.              The



                                     [J-43-2015] - 21
Commonwealth notes that Johnson’s tattoo was too small and indistinct to have had an

actual impact upon any identification.       Moreover, the Commonwealth asserts that

Detective Wynn’s testimony was relevant only to consciousness of guilt, which “was of

merely peripheral significance given the extensive direct evidence of guilt from the

eyewitnesses.” Brief for the Commonwealth at 30 (emphasis in original).

       Johnson’s claim fails. He has not demonstrated that it has arguable merit. We

first note that there is no constitutional right to refuse to participate in a line-up. See

United States v. Wade, 388 U.S. 218, 221-23 (1967). Moreover, as the Commonwealth

astutely observes, Johnson has not explained the type of evidence that he would have

had counsel proffer to the jury.     Presumably, the only two people that could have

communicated that information to the jury were Johnson and his trial attorney. Johnson

knowingly waived his right to testify at trial, and counsel could not testify as a witness in

the trial. See Pa.R.P.C. 3.7(a) (“A lawyer shall not act as advocate at a trial in which the

lawyer is likely to be a necessary witness. . . .”). In other words, counsel had no

competent evidence at his disposal that he could have presented to the jury concerning

the tattoo.

       Johnson’s claim also fails because Johnson cannot demonstrate that, had

counsel presented the tattoo evidence (if such competent evidence existed), the

outcome of the trial would have been different. Paul McDonald, who was the person

that was to view the lineup, identified Johnson at trial as the murderer. The jury was

required to assess the credibility of that identification based upon, inter alia, Paul

McDonald’s demeanor and opportunity to observe Johnson in the seconds during which

the assailant appeared and shot the victim. We fail to comprehend how knowing that

Johnson elected not to participate in the line-up because of a tattoo on his arm would

have impacted the jury’s assessment of Paul McDonald’s in-court identification in any




                                      [J-43-2015] - 22
way. Johnson has not demonstrated prejudice, nor has he shown that he is entitled to

an evidentiary hearing on this issue.



       B. Failure to Appeal Alleged Instances of Prosecutorial Misconduct

      In his next argument, Johnson alleges numerous instances of prosecutorial

misconduct during closing arguments, and asserts that counsel was ineffective for

failing to pursue relief for such misconduct on direct appeal. In his closing argument,

the prosecutor suggested that the jury consider the eyewitness testimony first “before

[they] acquit, and . . . send these people back on the street.” N.T., 6/2/1992, at 113.

Johnson maintains that this comment “undermined the presumption of innocence and

focused the jury’s attention on [Johnson’s] likely future dangerousness instead of

whether [he] committed the charged offense.” Brief for Johnson at 36. Johnson also

asserts that the prosecutor committed misconduct by implying that defense counsel was

attempting to manipulate the jury and play to its emotions by stating that the victim was

“gunned down like a dog on the street.” Id. at 38 (quoting N.T., 6/2/1992, at 108).

Furthermore, Johnson takes issue with the prosecutor’s suggestion that, because the

defense witnesses “lied for Robert Holmes and William Johnson,” they lied for Lamont

Bruce as well. Id. at 40 (quoting N.T., 6/2/1992, at 108). Johnson insists that the

prosecutor injected victim impact evidence into the guilt-phase of the trial when he

stated that “a man [that the victim’s family] knew and loved was slaughtered that night.”

Id. at 41 (quoting N.T., 6/2/1992, at 95-96). Finally, Johnson outlines various other

instances in which he believes that the prosecutor mischaracterized defense counsel’s

arguments and implied that those arguments were proffered for the sole purpose of

misleading the jury.    Id. at 36-38 (quoting N.T., 6/2/1992, at 105-07).       Johnson




                                        [J-43-2015] - 23
concludes that the prosecutor’s comments, individually and collectively, constituted

misconduct that, if challenged on direct appeal, would have resulted in a new trial.

      Johnson points out that, although counsel objected to these statements, he did

not pursue relief from the statements on direct appeal. Johnson asserts that counsel

could not have had a reasonable basis for failing to do so. Brief for Johnson at 42.

      Johnson maintains that he was prejudiced by counsel’s decision not to pursue

the issues on direct appeal. Johnson argues that, because the prosecutor’s comments

unconstitutionally “tainted the fairness of the jury deliberations and consideration of

whether the Commonwealth met its burden,” see id. at 43, this Court would have

awarded him a new trial on direct appeal had the issue been presented.

      In response, the Commonwealth focuses first upon the reasonable basis prong.

The Commonwealth points out that Johnson did not query counsel at the first PCRA

hearing about counsel’s decision to forego these arguments on direct appeal.

Consequently, the Commonwealth explains, Johnson cannot satisfy that prong of the

ineffectiveness test. The Commonwealth then proceeds to examine each instance of

misconduct alleged by Johnson, and argues that none of the comments would have

warranted any form of relief on appeal.

      “Generally, a prosecutor's arguments to the jury are not a basis for the granting

of a new trial unless the unavoidable effect of such comments would be to prejudice the

jury, forming in their minds fixed bias and hostility towards the accused which would

prevent them from properly weighing the evidence and rendering a true verdict.”

Commonwealth v. Jones, 683 A.2d 1181, 1199 (Pa. 1996) (citation omitted).              A

prosecutor enjoys reasonable latitude during closing arguments, and may advocate with

force, vigor, and oratorical flair. Commonwealth v. Brown, 711 A.2d 444, 454 (Pa.

1998) (citation omitted). Nonetheless, this latitude is not unrestrained. Argument must




                                     [J-43-2015] - 24
be based upon matters in evidence, or upon the legitimate inferences that can be drawn

from that evidence. Commonwealth v. Chester, 587 A.2d 1367, 1377 (Pa. 1991). We

must consider the challenged statements within the context in which they were offered.

We will not view those statements in a vacuum. Commonwealth v. Weiss, 776 A.2d

958, 968 (Pa. 2001).

       Although Johnson pays lip service to these long-standing principles, he does not

measure each challenged statement against them. Instead, Johnson elects to assail

the   Commonwealth’s       closing    with   broad      allegations   of   impropriety   and

unconstitutionality. Even so, the arguable merit prong is not where Johnson’s argument

most obviously fails. Even if we assume, arguendo, that Johnson has demonstrated

that each of his challenges to the prosecutor’s statements has arguable merit, Johnson

fails entirely to satisfy the reasonable basis prong.

       As noted above, at a minimum, to establish the reasonable basis prong, a PCRA

petitioner must prove that “an alternative not chosen offered a potential for success

substantially greater than the course actually pursued.” Cox, 983 A.2d at 678. Johnson

makes no attempt to satisfy this standard, failing entirely in his present brief to proffer

any compelling advocacy on this point. Instead, Johnson baldly asserts that counsel

“could have had no reasonable strategic basis for failing to raise each instance.” Brief

for Johnson at 42.     In effect, Johnson is claiming that counsel could have had no

reasonable basis for declining to pursue these issues. We cannot accept such an

argument. It is within an attorney’s purview to decide which issues to pursue on appeal.

See Commonwealth v. Jette, 23 A.3d 1032, 1043 (Pa. 2011).9 Counsel may have

9
       In Jette, we noted the following:
       It is well settled that appellate counsel is entitled, as a matter of strategy,
       to forego even meritorious issues in favor of issues he believes pose a
       greater likelihood of success. See Commonwealth v. Robinson, 864 A.2d
(continuedM)

                                      [J-43-2015] - 25
reviewed the governing case law and determined that these issues were unlikely to

garner any form of relief. Counsel may have elected to advance only the arguments

that he believed would give Johnson the best chance of success. Counsel may have

determined that the challenged statements would not have fallen within that category. It

is Johnson’s burden to elicit counsel’s reasons, and to demonstrate that the chosen

course of action by counsel was objectively unreasonable in light of the alternatives.

Johnson’s bald claim that there could not have been a reasonable basis falls short of

satisfying this burden. Johnson has not established that he is entitled to a hearing on

this claim.



              C. Failure to Seek Suppression of Identification Testimony

       Next, Johnson argues that counsel was ineffective for not seeking to suppress

identification testimony from certain witnesses. Johnson notes that counsel did file a

motion to suppress identification testimony from witnesses who had identified Johnson

from the photo array, asserting that the photo arrays were unduly suggestive. The trial




(Mcontinued)
     460, 479 n.28 (Pa. 2004), cert denied, 546 U.S. 983, 126 S.Ct. 559, 163
     L.Ed.2d 470 (2005) (“This process of ‘winnowing out weaker arguments
     on appeal and focusing on’ those more likely to prevail, far from being
     evidence of incompetence, is the hallmark of effective appellate
     advocacy.”) (quoting Smith v. Murray, 477 U.S. 527, 536, (1986)); Jones
     v. Barnes, 463 U.S. 745, 751-52, (1983) (observing that “experienced
     advocates since time beyond memory emphasized the importance of
     winnowing out weaker arguments on appeal and focusing on one central
     issue if possible, or at most on a few key issues”).
Jette, 23 A.3d at 1043 (citations modified)




                                     [J-43-2015] - 26
court denied the motion.10 However, Johnson maintains that counsel did not seek, and

should have sought, to have the trial court suppress any identification testimony from

witnesses who had not positively identified Johnson from the photo array but who later

identified him “in the suggestive circumstances inherent at a preliminary hearing.” Brief

for Johnson at 45. Johnson contends that those latter identifications were “rife with

suggestiveness,” and were the result of repeated witness exposure to Johnson’s identity

in the photo arrays, at the preliminary hearing, or both, all while knowing that Johnson

had been charged with murder. Id.

       Johnson first challenges Sonya Carr’s identification. Johnson points out that

Carr did not identify him from the photo array that was presented to her hours after the

murder. Two days later, Carr again was unable to identify Johnson as the shooter from

a second photo array. Johnson observes that Carr only was able to identify him at trial,

nearly one year later, knowing that he had been charged with her fiancée’s murder.

Given the totality of the circumstances surrounding Carr’s testimony, Johnson contends

that the “identification procedure was impermissibly suggestive so as to give rise to a

substantial risk of misidentification.” Id. at 53 (citation omitted).

       Johnson next challenges Ardell McDaniel’s identification. McDaniel also was

unable to identify Johnson positively from a photo array immediately after the murder.

Two days later, McDaniel was provided a second photo array, from which he selected

Johnson. However, he did not identify Johnson conclusively. Rather, McDaniel stated

that Johnson and another male from the photos “looked like they could have been

there.” N.T., 5/26/1992, at 24. When pressed, McDaniel further stated that Johnson’s

photo “looks more familiar.” Id. At Johnson’s preliminary hearing three months later,

10
      On direct appeal, this Court affirmed the trial court’s denial. See Johnson, 668
A.2d at 103.



                                       [J-43-2015] - 27
McDaniel positively identified Johnson as the shooter.         Johnson maintains that the

“procedures leading to [] McDaniel’s identification of [him] as the shooter were

unconstitutionally suggestive,” as the “setting of a preliminary hearing removed any and

all initial doubt from McDaniel’s identification.” Brief for Johnson at 56.

       Johnson also argues that Francis Bruce’s identification of him was unduly

suggestive because the police only showed her one photograph, and that picture

depicted Johnson.     Francis Bruce identified Johnson at trial one year later as the

shooter as well.    Johnson asserts that, because Francis’ pre-trial identification was

based upon only a single photograph, the process was tainted from the beginning, and

rendered her trial identification “highly unreliable.” Id. at 61 (citing Commonwealth v.

Buehl, 508 A.2d 1167, 1178 (Pa. 1986) (stating that the use of a single photograph of a

suspect when obtaining an identification may be impermissibly suggestive)). Johnson

further claims that there was no independent basis for Francis’ identification because

she did not have a meaningful opportunity to view the shooter on the night in question,

because she indicated that she saw very little of the shooter, and because she gave no

initial description of the shooter to the police before being shown the lone photograph.

Finally, Johnson assails the credibility of Francis’ identification due to Francis’ use of

crack cocaine on the day of the murder.

       Johnson alleges that trial counsel was ineffective for not challenging the above-

described identifications in any manner. He submits that the claim has arguable merit

because the identifications were overly suggestive and argues that counsel had no

reasonable basis for failing to object to this testimony.         Johnson believes that a

challenge to the admissibility of these identifications would have been consistent with,

and necessary to, his misidentification defense. Had counsel sought to preclude the

identification testimony either before or during trial, or via a motion for a mistrial,




                                      [J-43-2015] - 28
Johnson argues, there is a reasonable possibility that the outcome of the case would

have been different.

       The Commonwealth responds that the witnesses in question were not subject to

unduly suggestive      identification   procedures    and       that   the witnesses’ in-court

identifications were correctly admitted as evidence. The Commonwealth further argues

that each witness had an independent basis for his or her in-court identification. Thus,

even if the witnesses had been subjected to suggestive pre-trial procedures, Johnson

cannot demonstrate that he was prejudiced by his counsel’s failure to object.

       A court must assess the reliability of an out-of-court identification by examining

the totality of the circumstances. Manson v. Brathwaite, 432 U.S. 98, 114 (1977). A

pre-trial identification violates due process only when the facts and circumstances

demonstrate that the identification procedure was so impermissibly suggestive that it

gave   rise   to   a   very   substantial    likelihood    of    irreparable   misidentification.

Commonwealth v. Hughes, 555 A.2d 1264, 1272-73 (Pa. 1989).                     The PCRA court

determined that the pre-trial identification procedures in this case did not create such a

danger. We agree.

       The court noted that, although both Carr and McDaniel failed to identify Johnson

from an initial photo array, both identified him from a subsequent array. PCRA Ct. Op.,

9/26/2014, at 12. Furthermore, the photographs utilized during the arrays were selected

randomly by the police, and depicted individuals that were similar in age, had similar

facial hair, and bore “strikingly similar outlines of their face.” N.T., 5/26/1992, at 51.

These were the photos that were shown to Carr. Johnson has not demonstrated that

the photographs were unduly suggestive, or that anything about the procedure

unconstitutionally tainted Carr’s in-court identification. See Commonwealth v. Floyd,

431 A.2d 984, 987 (Pa. 1981) (stating that, where an initial one-on-one confrontation




                                        [J-43-2015] - 29
between the accused and the identifying witness occurs in court, identification evidence

derived therefrom is not automatically unreliable). Johnson’s claim as it pertains to Carr

lacks arguable merit.

         The police also showed similarly selected photographs to Ardell McDaniel, who

tentatively selected Johnson from that array, although the identification was not definite.

The mere fact that, at best, McDaniel was unsure about the identification does not mean

that later identifications, ipso facto, were unreliable. Initial equivocation does not render

later identifications constitutionally unreliable per se. Johnson has not demonstrated

anything in the pre-trial proceedings with regard to Ardell McDaniel that would give rise

to a very substantial likelihood of irreparable misidentification, see Hughes, supra.

Accordingly, Johnson has not proven that this particular claim has arguable merit.

         We turn, finally, to Francis Bruce’s in-court identification of Johnson. Unlike the

others, Francis Bruce was shown only a single photograph of Johnson during the police

identification procedure. The PCRA court noted that Ms. Bruce had known Johnson for

years.     This, the court believed, overcame any suggestiveness in the procedures

involving her. See Commonwealth v. Abdul-Salaam, 678 A.2d 342, 349 (Pa. 1996)

(holding that, if a pre-trial identification is tainted, “the subsequent in-court identification

will be admissible if there exists an independent basis for the identification”).            To

determine whether a sufficiently independent basis for the identification exists, a court

must consider: (1) the opportunity of the witness to view the suspect at the time of the

offense; (2) the witness’ focus or attention upon the suspect; (3) the accuracy of the

witness’ description of the suspect; (4) the level of certainty demonstrated by the

witness at the confrontation; and (5) the length of time between the crime and the

confrontation. Commonwealth v. Carter, 643 A.2d 61, 71 (Pa. 1994).




                                       [J-43-2015] - 30
       Despite the apparent pre-trial suggestiveness of the single photograph

procedure, Ms. Bruce had an independent basis for the in-court identifications. She

testified that she was able to observe Johnson at all of the critical points on the night in

question, albeit for brief periods of time.       More importantly, as the PCRA court

explained, Ms. Bruce had known Johnson for a number of years prior to the incident, a

fact that we have held is sufficient to serve as an independent basis for an otherwise

illegally tainted identification procedure. See Commonwealth v. Small, 741 A.2d 666,

679 (Pa. 1999) (“Since the witnesses were acquainted with [the suspect] prior to the

commission of the crime, there is an independent corroboration that the in-court

identification was not tainted.”) Once more, Johnson has not demonstrated that this

claim has arguable merit.

       Because Johnson has not proven arguable merit with regard to the identifications

of each of the witnesses that he claims were tainted, we need not consider the

remaining prongs of the ineffectiveness test. This claim fails. No evidentiary hearing

was warranted on this claim.



                       D. Failure to Object to Kloiber Instruction

       In his next argument, Johnson argues that trial counsel was constitutionally

ineffective for failing to object to the trial court’s instruction to the jury regarding the

reliability of eyewitness testimony, commonly known as a Kloiber charge.11 At trial,

recognizing the difficulties that some witnesses had in identifying Johnson shortly after

the murder as well as other credibility problems with some of the witnesses, the trial

court provided the jury with the following instruction:

11
        See Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954), discussed in more
detail infra.



                                      [J-43-2015] - 31
       You have heard testimony about who was where and when called identity
       testimony, who was there, who was not there. I am not going to outline
       that for you. It’s your recollection of who was there and who was not there
       that controls. If you heard a witness [testify] and if that witness was
       positive of the identification, if you believe that the identification was not
       weakened by any prior failure to identify[,] but remained even after cross[-
       ]examination, [sic] need not be received with caution.

       Indeed, positive testimony as to identity may be treated as a statement of
       fact. On the other hand, where a witness is not in a position to clearly
       observe or is not positive as to identity, or the positive statement in [c]ourt
       as to identity are [sic] weakened by a qualification or by failure to identify a
       person on one or more prior occasions such as in a photo array or such as
       seeing screens or any other prior identification, if you believe that the . . .
       positive statements in [c]ourt were weakened because[,] on a prior
       occasion[,] that the person did not identify the same individual, then you
       have to decide on the accuracy of the identification as to whether or not
       the identification becomes so doubtful that the testimony as to identity
       must be received with caution.

       The rule is that a positive, unqualified identification of a defendant by one
       witness is sufficient for a conviction. But[,] if you believe that there was a
       prior failure to identify on one or more prior occasions, then the accuracy
       of the identification is so doubtful that the testimony as to identity must be
       received with caution.
N.T., 6/3/1992, at 14-15.

       Johnson steadfastly maintains that trial counsel should have objected to this

instruction, and should have offered an alternative instruction for the court’s

consideration. Johnson further argues that the Kloiber instruction was inadequate and

misleading because the instruction “did not require jurors to receive that testimony with

caution and, instead, encouraged them to accept the identifications as proven facts

simply because the witness claimed to be certain.” Brief for Johnson at 67. Johnson

asserts that the instruction did not comply with Kloiber’s mandate because the court

instructed the jurors that they did not need to receive a witness’ identification testimony

with caution if the identification “remained even after cross[-]examination positive and

unqualified[.]”   Id. at 68 (quoting N.T., 6/3/1992, at 15).     Johnson submits that the

central premise of Kloiber is that “where the predicate circumstances are met, the jurors


                                      [J-43-2015] - 32
are to be instructed that they must receive the testimony with caution, regardless of the

witness’ certainty after cross[-]examination.” Id. at 69.

        Johnson claims that the trial court erred in telling the jurors that, if they believed

that the identification testimony was weakened “because[,] on a prior occasion . . . the

person did not identify the same individual, then you have to decide on the accuracy of

the identification as to whether or not the identification becomes so doubtful that the

testimony as to identity must be received with caution.”           Id. at 70 (quoting N.T.,

6/3/1992, at 15). Johnson suggests that this articulation of the rule negates the very

purpose of Kloiber because, “[i]f the jury already doubts the reliability of the testimony, a

charge requiring caution is unnecessary and redundant.” Id. Finally, Johnson contends

that the instruction emphasized that an identification need not be received with caution if

the witness is positive in the identification, and that a single positive identification is

sufficient for a conviction. Such an instruction, Johnson concludes, merely emphasizes

that the jury may accept identifications as facts if it has no particular reason to doubt

them.

        The Commonwealth submits that the instruction did not circumvent Kloiber, and,

that, even if it did, Johnson has not demonstrated that he was prejudiced in any way.

The Commonwealth contends that Johnson considers the trial court’s instruction out of

context, and reads the challenged portions in isolation. When read as a whole, the

instruction, according to the Commonwealth, is an adequate and accurate statement of

the law.     Even if the instruction veered from Kloiber in a substantive way, the

Commonwealth maintains that Johnson suffered no prejudice, because the instruction

was “relevant only to the testimony of [] Carr--the one person among the five

eyewitnesses who did not see the murder.”             Brief for the Commonwealth at 54

(emphasis in original).      The Commonwealth notes that four other eyewitnesses




                                      [J-43-2015] - 33
positively identified Johnson as the shooter, eliminating any purported prejudice from

the allegedly defective instruction.

       In Kloiber, this Court held as follows:

       [W]here the witness is not in a position to clearly observe the assailant or
       he is not positive as to identity, or his positive statements as to identity are
       weakened by qualification, or by the failure to identify the defendant on
       one or more prior occasions, the accuracy of the identifications is so
       doubtful that the Court should warn the jury that the testimony as to
       identity must be received with caution.
Kloiber, 106 A.2d at 826-27. A defendant is entitled to a Kloiber instruction where a

witness: (1) was not in a position to clearly observe the defendant, or is not positive as

to identity; (2) equivocated on the identification; or (3) failed to identify the defendant on

prior occasions. Commonwealth v. Ali, 10 A.3d 282, 303 (Pa. 2010) (citation omitted).

In Kloiber, we also explained that, “[w]here the opportunity for positive identification is

good and the witness’ identification is not weakened by prior failure to identify, but

remains, even after cross-examination, positive and unqualified, the testimony as to

identification need not be received with caution.” Kloiber, 106 A.2d at 826 (emphasis

added).

       There is no question in this case that Johnson was entitled to a Kloiber

instruction, and that the trial court provided the instruction. The instruction, as given,

was not a model of clarity.       However, we observe no substantial defect in that

instruction such that counsel was required to object in order to be constitutionally

effective. To the contrary, the trial court’s instruction, in considerable part, tracked this

Court’s language in Kloiber, as cited immediately above, and imparted to the jurors the

necessary and relevant information. Reviewed in its entirety, the instruction informed

the jurors that it was their duty to decide whether the identification testimony was “so

doubtful that the testimony as to identity must be received with caution.” N.T., 6/3/1992,

at 15. Contrary to Johnson’s arguments, the jury was not afforded the discretion to


                                       [J-43-2015] - 34
decide whether to receive the testimony with caution. Rather, the jury was given the

discretion only to decide whether the testimony was unreliable, and, if so, the jury then

was instructed that it must receive the testimony with caution. Additionally, it is well-

established in Pennsylvania that the jury may treat a positive identification as a

statement of fact. See Kloiber, 106 A.2d at 826; Commonwealth v. Trivigno, 750 A.2d

243, 253 (Pa. 2000); Commonwealth v. Henderson, 438 A.2d 951, 958 (Pa. 1981).

Although, the court’s instruction lacked precision, we detect nothing about that

instruction that was inaccurate or that was an attempt to circumvent Kloiber.           See

Commonwealth v. Uderra, 862 A.2d 74, 92 (Pa. 2004) (“[A]n imperfect instruction does

not constitute reversible error where the charge, taken as a whole, fairly and accurately

conveys the essential meaning.”). Johnson has not demonstrated that this claim has

arguable merit. No evidentiary hearing was warranted on this claim.


E. Batson Claim of Racial Discrimination During Jury Selection; Failure to Object
       In his next argument, Johnson alleges that the PCRA court erred by refusing to

grant a hearing on his claim that the Commonwealth impermissibly excluded African-

American venirepersons, in violation of the United States Supreme Court’s decision in

Batson v. Kentucky, 476 U.S. 79 (1986). In light of this perceived error, Johnson argues

that trial counsel was ineffective for neglecting to object to the process, which, in effect,

resulted in failure to preserve a Batson challenge. In support of his argument, Johnson

notes that the Commonwealth utilized seven of its fourteen peremptory challenges to

strike African-American potential jurors, compared to only seven of twenty-five non-

African-Americans.      Johnson further alleges that this created a “suspicion of

discrimination” that is sufficient to establish a prima facie Batson violation. Brief for

Johnson at 77 (quoting Johnson v. California, 545 U.S. 162, 170 (2005) (explaining that

a “defendant satisfies the requirements of Batson’s first step by producing evidence


                                      [J-43-2015] - 35
sufficient to permit the trial judge to draw an inference that discrimination has

occurred”)).

       The Commonwealth responds that Johnson did not “come close to carrying his

burden to proffer evidence of actual, purposeful discrimination.”           Brief for the

Commonwealth at 58.         The Commonwealth points out that Johnson presented no

evidence of the racial composition of the full venire. Moreover, the Commonwealth

asserts, the numerical evidence offered by Johnson was “far less compelling than

proffers that have been deemed inadequate to establish . . . a prima facie case of

discrimination.” Id. at 58-59 (citations omitted). Finally, the Commonwealth notes that

the trial court, addressing the prosecutor’s strikes sua sponte during trial, credited the

prosecutor’s race-neutral reasons for the peremptory challenges to the stricken African-

American venirepersons,12 and concludes that there is “no basis that would warrant a

disturbance of the trial court’s ruling.” Id. at 61.

       We agree with the Commonwealth. Johnson’s Batson claim is meritless, as is

the derivative ineffective assistance of counsel claim alleging failure to preserve a

Batson issue. In Batson, the United States Supreme Court established a three-part

inquiry to evaluate claims that a prosecutor engaged in racial discrimination during jury

selection. First, a defendant must make a prima facie demonstration that the prosecutor

exercised peremptory challenges upon the basis of race. Second, the burden then

12
        The Commonwealth offered the following reasons for striking the African-
American venirepersons from the panel: the first juror was thought to be irresponsible
because she had been unemployed for ten years and had five children under the age of
fifteen; the second juror had been dismissed from a job for willful misconduct; the third
juror equivocated on the death penalty to the extent of shouting at the prosecutor; the
fourth juror was nineteen years old, and the prosecutor stated that he would never
select a juror under the age of twenty-one for a capital case; the fifth juror’s father was
serving a prison term for murder; and the sixth and seventh jurors equivocated on the
death penalty. N.T., 5/27/1992, at 118-22.



                                       [J-43-2015] - 36
shifts to the prosecutor to articulate a race-neutral explanation for striking the particular

juror. Finally, the trial court must determine whether the defendant has carried his

burden of proving purposeful discrimination. Batson, 476 U.S. at 96-98. When the

defendant does not object during the voire dire process, “it is exponentially more difficult

to perform a reasoned assessment concerning the presence or absence of purposeful

discrimination.” Uderra, 862 A.2d at 86. Where no objection is lodged, “it appears to be

an emerging view that a defendant is not entitled to the benefit of Batson’s burden-

shifting formula, but instead, bears the burden in the first instance and throughout of

establishing actual, purposeful discrimination.” Id.13

       Johnson’s sole argument in support of his Batson claim is that the prosecutor

rejected a higher percentage of African-American potential jurors than non-African-

American potential jurors. This claim is not sufficient to establish a prima facie Batson

violation, nor is it sufficient to establish actual, purposeful discrimination.         See

Commonwealth v. Roney, 79 A.3d 595, 620-21 (Pa. 2013) (holding that the prosecutor’s

use of peremptory challenges to strike thirteen out of nineteen African-American

venirepersons, but only four out of twenty-four non-African-American venirepersons,

was inadequate to establish prima facie case of discrimination); Commonwealth v.

Ligons, 971 A.2d 1125, 1144 (Pa. 2009) (holding that striking more African-Americans


13
       In Uderra, we stated:
       Batson’s burden-shifting formula makes sense when applied to an
       objection raised sufficiently promptly that the attorney exercising the
       challenges can reasonably be expected to remember the reasons for the
       challenges. On the other hand, it would be altogether unreasonable to
       shift the burden of explanation if the objection is so tardily made that the
       challenging attorney cannot be reasonably expected to remember.
Uderra, 862 A.2d at 86 (citing McCrory v. Henderson, 82 F.3d 1243, 1251 (2d Cir.
1996)).



                                      [J-43-2015] - 37
than Caucasians, in and of itself, does not equate to purposeful discrimination).

Moreover, the jury that actually was empaneled included seven African-Americans and

one Hispanic-American, despite the fact that the prosecutor had six peremptory

challenges that went unused. N.T., 5/27/1992, Vol. II, at 118. Johnson’s Batson claim

is unfounded, and his ineffective assistance of counsel claim lacks arguable merit. No

evidentiary hearing was warranted on this claim.


 F. Failure to Investigate, Discover, and Present Fact and Alibi Witnesses at Trial
       We return now to Johnson’s first stated issue:       whether trial counsel was

ineffective for failing to investigate and present at trial exculpatory and impeachment

evidence. Specifically, Johnson charges counsel with failing to present a multitude of

witnesses whose testimony, Johnson claims, if presented to the jury, would have

commanded an acquittal.      Johnson identifies the following fact witnesses that he

contends counsel should have discovered either by reviewing the police reports or

through independent investigation:

   •   Kelly J. Morris, who allegedly observed four or five people involved in the

       shooting, and saw the victim remove a lug wrench from the trunk of his car.

   •   William I. Maynor, who told police that he saw the victim taking a weapon from

       the trunk, and who claimed he did not see Johnson at the scene of the murder.

   •   Dana Taylor, who asserted that Johnson was not one of the four people that she

       saw at the scene on the night in question.

   •   Eric Savage, who allegedly saw the victim push Lamont Bruce, and claimed that

       Robert Holmes was not at the scene.

   •   Elisha Savage, who observed the victim go to his car and retrieve a weapon.




                                     [J-43-2015] - 38
     •   Tracey Green, who was in a relationship with a man named Franklin Snead, who

         used the white Chevy Blazer in suspicious circumstances and admitted to Green

         that he got into trouble with the police on the night of the murder.

         Johnson also identifies the following two alibi witnesses that he asserts counsel

failed to discover and present at trial:

     •   Latonya Handy, who stated that she was with Johnson for all but fifteen minutes

         on the day of the murder, asserted that Johnson walked in the opposite direction

         from where the murder occurred when he left for that period of time, and claimed

         that Johnson did not have a gun in his possession on that day. Handy also

         asserted that Johnson did not have a relationship with Lamont Bruce, and that he

         did not hang out on Marion Street.

     •   Paige White, who corroborated Handy’s statement, stating that she was with

         Johnson and Handy throughout the day and left with Johnson for a short period

         of time to shoot dice.     White also confirmed that Johnson did not have a

         relationship with Lamont Bruce.

Brief for Johnson at 16-17.14

         “To be entitled to relief on a claim of ineffectiveness for failure to call a witness,

[an] appellant must demonstrate [that]: the witness existed, was available, and willing to

cooperate; counsel knew or should have known of the witness; and the absence of the

witness’s testimony prejudiced [the] appellant.” Commonwealth v. Birdsong, 24 A.3d

319, 334 (Pa. 2011) (citing Commonwealth v. Fletcher, 750 A.2d 261, 275 (Pa. 2000)).

14
        Johnson also alleges in his brief that trial counsel was ineffective for failing to
cross-examine certain witnesses about their respective criminal histories. Brief for
Johnson at 17-18. However, Johnson does not develop these claims substantively as
to each prong of the ineffective assistance of counsel test, and focuses instead upon
the failure to call the above-listed witnesses at trial. Consequently, Johnson has not
demonstrated that he is entitled to relief on these claims.



                                       [J-43-2015] - 39
A PCRA petitioner cannot succeed on such a claim if the proposed witness’ testimony

“would not have materially aided him.       In such a case, the underlying-merit and

prejudice prongs of the [ineffective assistance of counsel] test logically overlap.”

Commonwealth v. Baumhammers, 92 A.3d 708, 725 (Pa. 2014). “To show prejudice,

the petitioner must demonstrate that there is a reasonable probability that, but for

counsel’s allegedly unprofessional conduct, the result of the proceedings would have

been different.   A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. (citing Commonwealth v. Gibson, 951 A.2d 1110, 1120

(Pa. 2008)).

      We begin our discussion with the fact witnesses listed above. Most, if not all, of

the information that these individuals would have presented to the jury if called as

witnesses was cumulative of the testimony already in the record. Hence, no prejudice

to Johnson arose by virtue of their absence. Kelly Morris, William Maynor, and Elisha

Savage all told the police that they observed the victim go to his vehicle and retrieve a

weapon. The record is rife with testimony, from Commonwealth and defense witnesses

alike, that the victim went to the trunk of his car at some point during the encounter and

retrieved some type of a weapon, although the witnesses did not agree on the type of

weapon that the victim procured. For instance, Commonwealth witnesses Carr and

Francis Bruce both testified that the victim went to his car and removed a wooden object

from the trunk. Sarah Morris and Jody Morris, both defense witnesses, testified that the

victim went to his car and obtained a weapon, though neither could identify that

weapon. Defense witness Sherri Stewart watched the victim go to his car and return

with what she believed was a gun. The record is replete with evidence proving that the

victim went to his car and retrieved an item, presumably to use as a weapon or in




                                    [J-43-2015] - 40
defense of himself. In this particular instance, failure to introduce more of the same

does not equate to prejudice.

         Similarly, William Maynor and Dana Taylor told the police that Johnson was not

present at the scene of the murder. All of the defense witnesses testified to the same,

including Sarah Morris, Jody Morris, Theresa Fields, Sherri Stewart, Wesley Bruce, and

Denise Frazier.     The information that Maynor and Taylor would have presented is

simply cumulative. Here again, no prejudice resulted from the witnesses’ absence at

trial.

         Kelly Morris and Dana Taylor told the police that they observed at least four or

five people participating in the murder.     This contrasted with the Commonwealth’s

witnesses, who testified that only three people approached the victim right before the

shooting.    Even if Morris’ and Taylor’s reports were accepted as true, we fail to

comprehend how this information would either have exonerated Johnson or undermined

confidence in the verdict. The fact that there may have been more people than the

Commonwealth’s witnesses observed in no way means that Johnson was not one of

those people. Moreover, the central issue at Johnson’s trial was identification. The

case essentially boiled down to the jury having to decide whether to believe the

witnesses who claimed to have seen Johnson shoot the victim or those who claimed

that he was not there at all. Testimony regarding the number of people that approached

the victim right before the murder would have been insignificant, if relevant at all, to the

jury’s deliberations.   Consequently, even if Johnson could satisfy all of the other

elements of the failure to call a witness test, he cannot demonstrate that the outcome of

the trial would have been different had these witnesses been presented to the jury.

         The same can be said about the proffered testimony of Eric Savage and Tracey

Green. Savage would have testified that the victim acted as the aggressor toward




                                     [J-43-2015] - 41
Lamont Bruce, and that co-defendant Robert Holmes was not at the scene at all.

Tracey Green would have testified that her boyfriend, Franklin Snead, used the Blazer

on the night in question and admitted to getting in trouble with the police for doing so.

None of this information would exonerate Johnson or otherwise benefit him in a manner

that would undermine the verdict. That the victim pushed Lamont Bruce is immaterial to

Johnson’s misidentification defense; Johnson did not present a self-defense or defense

of others defense. Were Robert Holmes absent from the scene, this also would have

little bearing upon the issue of whether Johnson was the person who pulled the trigger.

This testimony would not have undermined the credibility of all of the witnesses who

identified Johnson to the degree that the verdict would have been different. Finally, any

testimony regarding Snead and the Blazer would not have impacted the jury’s decision

to credit the Commonwealth’s witnesses instead of the defense witnesses. Simply put,

none of these proposed witnesses, had they testified in the manner that Johnson

suggests, would have altered the outcome of the trial or undermined the verdict in any

way.

       The same cannot be said conclusively about Johnson’s alibi witnesses.          As

noted, Johnson alleges that trial counsel was ineffective for failing to investigate and

produce Latonya Handy and Paige White as alibi witnesses.           Handy would have

testified that, on the day in question, Johnson was with her for all but fifteen minutes.

She also would have testified that Johnson did not have a gun on that date, and that,

when he returned after the fifteen minute interval, he acted normally, not out of breath,

nervous, or in any manner consistent with someone who had just killed another person.

Handy would have told the jury that Johnson does not hang out on Marion Street, and

that, when he left her presence, he walked in the opposite direction of Marion Street.

White would have corroborated Handy’s alibi testimony, offering that she was with




                                    [J-43-2015] - 42
Handy and Johnson for most of the day. White also would have testified that she was

with Johnson for the fifteen minutes that he left Handy’s presence, as she went with

Johnson up the street to throw dice.

      As noted earlier, Johnson presented a misidentification defense, seeking to

convince the jury that he was not at the scene of the crime. Although multiple witnesses

testified that Johnson was not at the scene of the murder, no witness accounted for

Johnson’s whereabouts during the relevant time periods. Handy and White could have

done so.

      Generally, “in order to constitute an alibi, evidence must preclude the possibility

of a defendant’s presence at the scene of the crime. . . . [I]ts relevance depends on

precluding the possibility that the defendant committed the offense; otherwise it is not

an alibi.” Commonwealth v. Jones, 602 A.2d 820, 822 (Pa. 1992). The PCRA court

concluded that neither Handy’s nor White’s testimony amounted to an alibi because

“neither precludes the possibility that [Johnson] shot the decedent.” PCRA Ct. Op. at 8.

For purposes of deciding whether there is a genuine issue of material fact warranting an

evidentiary hearing, proposed alibi testimony is not so narrowly construed. A gap in the

time that Handy was with Johnson does not, ipso facto, disqualify the alibi proffer. To

so hold, without at least receiving testimony, would mean that no proffered alibi could be

successful unless the proposed testimony would account for the defendant’s

movements during every second of the day in question.

      In this case, the fifteen-minute gap allows the possibility that Johnson committed

the offense, but does not entirely negate the proffered alibi from Handy.           White

accounted for the fifteen minutes that Johnson was not in Handy’s presence. The

PCRA court nonetheless concluded that a gap in time existed within which Johnson

could have committed the murder. White’s proffer created a genuine issue of material




                                       [J-43-2015] - 43
fact as to this point, justifying an evidentiary hearing to enable the PCRA court to

assess the credibility of both White and Handy.

      At the time that the PCRA court rejected the alibi claim, the court did not know

when the gap in time occurred as it related to the time that the murder was committed.

In other words, the gap in time could have occurred hours prior to the murder. The

court also based its decision upon the assumption (reached without knowing the

distance between Handy’s residence and the murder scene) that Johnson could have

left Handy’s residence, traveled an unknown distance, participated in the murder and

the subsequent vehicle chase, and then returned to Handy’s residence, all in under

fifteen minutes. This sequence of events may well be possible in that time frame, or it

may well be that Handy and White are lying. We do not know. Neither did the PCRA

court. These alibi witnesses raised genuine issues of material fact, which should have

prompted the PCRA court to hold an evidentiary hearing.           See D’Amato, supra;

Pa.R.Crim.P. 909(B)(2).

      It is clear from their declarations that Handy and White were available and willing

to testify for Johnson had they been called as trial witnesses by defense counsel. The

question then turns to whether Johnson can demonstrate that he was prejudiced by

these witnesses’ absences at trial. This is an issue that the PCRA court, in the first

instance, must confront after it holds an evidentiary hearing. We observe that the trial

evidence is not so overwhelming that a hearing would be futile on its face. Although

many of the witnesses that testified against Johnson identified him as the shooter, much

of that eyewitness testimony was riddled with credibility problems. For instance, Carr

could not select Johnson from photo arrays administered shortly after the murder, but

was able to identify him over one year later. She also testified that she did not see the

shooting itself. Francis Bruce, a crack cocaine addict who had consumed the narcotic




                                    [J-43-2015] - 44
on the day in question, observed the shooter for only a few seconds. She initially

identified someone other than Johnson as the shooter. Nancy Jennings initially told the

police that Lamont Bruce shot the victim, but later changed her story and identified

Johnson. Paul McDonald identified Johnson, but his observations of the shooter lasted

mere seconds.      Ardell McDaniel, who had been drinking alcohol on the night in

question, identified Johnson as the shooter at trial. However, he initially could not select

Johnson from a photo array. Instead, he narrowed the photos from eight to two photos,

and eventually selected Johnson from the photos because he looked “the most familiar

of the men involved in the shooting.” N.T., 6/1/1992, at 31. The fact that the trial court

issued a Kloiber instruction supports the notion that the Commonwealth’s identification

testimony was not ironclad.       Hence, the Commonwealth’s evidence was not so

overwhelming or unassailable as to deny Johnson the opportunity to present his alibi

witnesses at a hearing as he attempts to prove that counsel was ineffective for failing to

discover, investigate, and present those witnesses to the jury.

        The Commonwealth contends that Johnson’s claim necessarily fails because trial

counsel offered “unrebutted testimony” at the PCRA hearing that he had no recollection

of being informed by Johnson that Handy and White existed.                   Brief for the

Commonwealth at 22. The Commonwealth points out that counsel also testified that he

would have interviewed these witnesses had they been brought to his attention. It is

true that counsel’s testimony went unrebutted at the evidentiary hearing. Yet this was

not a result of Johnson’s inaction. Rather, as noted earlier, the PCRA court limited that

particular hearing to trial counsel’s testimony. Johnson was not permitted to call any

other witnesses. Despite this initial proscription, at the conclusion of the hearing, the

PCRA court offered Johnson the opportunity to present additional testimony at a future

time.




                                     [J-43-2015] - 45
       That occasion never came to pass. Instead, before any other hearings were

scheduled, defense counsel withdrew, the Commonwealth stipulated to a new penalty

phase hearing, and the PCRA court dismissed the balance of Johnson’s claims without

first holding another evidentiary hearing.

       The record is unclear as to what steps, if any, Johnson took to coordinate with

the Commonwealth to select a new date for an evidentiary hearing before the PCRA

court dismissed the remainder of his claims. What is clear is that, at all times, Johnson

maintained that he was entitled to relief and requested evidentiary hearings to satisfy

his evidentiary burden. In fact, Johnson requested a hearing as recently as 2014, when

he filed his amended PCRA petition in response to this Court’s remand for

reconstruction of the record. See Amended PCRA Petition, 5/15/2014, at 12 ¶42, 16

¶52. Because Johnson has maintained his request for a full evidentiary hearing from

the   inception   of   the   post-conviction    proceedings,    we    cannot    accept    the

Commonwealth’s argument that Johnson’s claim should be denied outright based

exclusively upon trial counsel’s testimony.       In sum, Johnson’s claim that trial

counsel failed to investigate, discover, and produce Handy and White as alibi witnesses

raises genuine issues of material fact that warrant an evidentiary hearing. We remand

this case only for a hearing on the purported alibi witnesses. We agree with the PCRA

court that Johnson has not demonstrated that he is entitled to a hearing with regard to

the fact witnesses.

       As a final matter, Johnson also argues that, even if he is not entitled to relief on

any individual claims, he nonetheless is entitled to relief based upon the cumulative

prejudicial effect of all of his allegations of error. This Court repeatedly has held that “no

number of failed claims may collectively warrant relief if they fail to do so individually.”

Commonwealth v. Washington, 927 A.2d 586, 617 (Pa. 2007). However, if counsel is




                                      [J-43-2015] - 46
found to be ineffective in more than one instance, the question of whether prejudice

resulted may be tallied cumulatively. Commonwealth v. Johnson, 966 A.2d 523, 532

(Pa. 2009) (“Furthermore, we also recognize that if multiple instances of deficient

performance are found, the assessment of prejudice properly may be premised upon

cumulation.”) (citation omitted). Here, however, we have not determined that counsel

was deficient at all, let alone in multiple ways. Indeed, most of our rulings above were

premised upon the first two prongs of the ineffective assistance of counsel test. It is

clear that Johnson is not entitled to a cumulative assessment of prejudice.

       For the foregoing reasons, we vacate the order below only insofar as it

addresses trial counsel’s failure to discover and present the proposed alibi witnesses,

and we remand to the PCRA court for proceedings consistent with this Opinion.

       Justices Baer and Dougherty join the opinion.

       Chief Justice Saylor files a concurring opinion, joining the opinion with respect to

Parts I, II, III and IV(A), (E) and (F), which is joined by Justices Todd and Donohue as

pertains to Part IV(D).

       Justice Todd files a concurring opinion in which Justice Donohue joins, joining

the opinion except with respect to Part IV(D).




                                     [J-43-2015] - 47
