J-S41045-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    KHAILYL A. CHAMBERS                        :
                                               :
                       Appellant               :      No. 3860 EDA 2016

               Appeal from the PCRA Order December 16, 2016
             In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-CR-0004747-2010


BEFORE:      GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E.

MEMORANDUM BY GANTMAN, P.J.:                       FILED SEPTEMBER 21, 2018

        Appellant, Khailyl A. Chambers, appeals from the order entered in the

Montgomery County Court of Common Pleas, which denied his first petition

brought pursuant to the Post-Conviction Relief Act (“PCRA”).1 We affirm.

        In its opinion, the PCRA court correctly set forth the relevant facts and

procedural history of this case. Therefore, we have no reason to restate them.

We add that Appellant filed his final, amended PCRA petition on April 25,

2016.

        Appellant raises the following issues for our review:

           THE UNITED STATES SUPREME COURT HAS HELD THAT A
           SENTENCE OF MANDATORY LIFE IMPRISONMENT WITHOUT
           PAROLE FOR JUVENILE OFFENDERS VIOLATES THE EIGHTH
           AMENDMENT OF THE UNITED STATES CONSTITUTION
           (MILLER V. ALABAMA, 567 U.S. 460 (2012)) AND THAT
____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S41045-18


         THIS IS TO BE APPLIED RETROACTIVELY (MONTGOMERY
         V. LOUISIANA, 136 S.CT. 718 (2016)).       DID THE
         HONORABLE COURT ERR…IN FAILING TO RE-SENTENCE
         APPELLANT ON THEORIES THAT (I) APPELLANT WAS ONLY
         13 DAYS PAST HIS 18TH BIRTHDAY ON THE DATE THAT THE
         INSTANT OFFENSES OCCURRED AND (II) APPELLANT MAY
         PROPERLY BE CONSIDERED A JUVENILE FOR THE
         PURPOSES OF THE INSTANT SENTENCE OF MANDATORY
         LIFE    IMPRISONMENT       BECAUSE,    UNDER    THE
         PENNSYLVANIA JUVENILE ACT, APPELLANT COULD HAVE
         BEEN SUPERVISED AS A JUVENILE UNTIL HE WAS 21 YEARS
         OF AGE (42 PA.C.S. § 6302, ET SEQ.)[?]

         WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO
         INTERVIEW CHARLES HERNANDEZ (WHO WAS ORIGINALLY
         CHARGED WITH CRIMINAL SOLICITATION TO COMMIT THE
         INSTANT HOMICIDES), AND/OR OTHERWISE INVESTIGATE
         WHETHER CHARLES HERNANDEZ COULD PROVIDE
         EXCULPATORY EVIDENCE AT TRIAL (PARTICULARLY IN
         LIGHT OF THE EVIDENCE INTRODUCED AT THE PCRA
         HEARING THAT MR. HERNANDEZ HAD WRITTEN TRIAL
         COUNSEL A LETTER ESSENTIALLY OFFERING TO TESTIFY
         ON APPELLANT’S BEHALF AT TRIAL)[?]

         WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO CALL
         CHARLES HERNANDEZ (WHO WAS ORIGINALLY CHARGED
         WITH CRIMINAL SOLICITATION TO COMMIT THE INSTANT
         HOMICIDES) TO TESTIFY AT TRIAL (PARTICULARLY IN
         LIGHT OF THE EVIDENCE INTRODUCED AT THE PCRA
         HEARING THAT MR. HERNANDEZ HAD WRITTEN TRIAL
         COUNSEL A LETTER ESSENTIALLY OFFERING TO TESTIFY
         ON APPELLANT’S BEHALF AT TRIAL)[?]

(Appellant’s Brief at 2).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the thorough opinion of the Honorable Thomas P. Rogers,

we conclude Appellant’s issues merit no relief.   The PCRA court opinion

comprehensively discusses and properly disposes of the questions presented.

(See PCRA Court Opinion, filed January 17, 2018, at 15-23) (finding: (1)

                                   -2-
J-S41045-18


Pennsylvania courts have not extended holding in Miller to individuals who

reached age of 18 before commission of offenses; charge of homicide

mandates removal of matter from jurisdiction of juvenile court, therefore

Appellant cannot argue he could be subject to supervision under Juvenile Act;

(2-3) Appellant has not demonstrated Mr. Hernandez was either available or

willing to testify; Appellant failed to show how Mr. Hernandez’s testimony

would have been helpful to Appellant’s defense; Mr. Hernandez readily

admitted he did not see who shot Victims and did not see Appellant at time of

murders; Mr. Hernandez’s testimony that he did not solicit Appellant to murder

Victims might have rebutted Commonwealth’s theory of motive but did not

otherwise   address    whether     Appellant   committed    murders,    was   not

exculpatory, and would not have materially aided Appellant’s defense; trial

counsel had reasonable basis for not calling Mr. Hernandez as witness because

trial counsel said he wanted to keep any evidence of motive out of case; had

Mr. Hernandez testified at Appellant’s trial, Commonwealth was prepared to

present witnesses tying Mr. Hernandez to one of Victims to provide motive for

murders; because trial counsel had reasonable basis for keeping evidence of

motive out of case, and was successful in doing so, Appellant cannot

reasonably claim to have been prejudiced by counsel’s decision not to call Mr.

Hernandez at trial; Appellant’s claims of ineffective assistance of counsel fail).

The record supports the PCRA court’s rationale. Accordingly, we affirm on the

basis of the PCRA court opinion.


                                       -3-
J-S41045-18


     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/21/18




                          -4-
                                                                                   Circulated 09/13/2018 03:18 PM




                         IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY,
      •Cl)                                   PENNSYLVANIA
      11',;'j�
                                           CRIMINAL DIVISION
      ·, �-
      11.�

      ,•,,)

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.... -11\, - ....
                    COMMONWEALTH OF PENNSYLVANIA
      I���
      !�···�
                                      v.

                                                                     TRIAL COURT
                    KHAILYL CHAMBERS                                                            �
                                                                     NO: 4747-2010              0
                                                                                                       -,

                                                                                                0      -<



                    ROGERS, J.                                       JANUARY 17, 2018



                                                   OPINION


                    I. INTRODUCTION

                          Khailyl Chambers r'Appellant'') has appealed to the Superior Court of

                    Pennsylvania (ccSuperior Court") from the undersigned's December 16, 2016

                    order denying relief following a protracted hearing, and dismissing his first

                    petition pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§

                    9541-9546. For the reasons that follow, the December 16, 2016 order should

                    be affirmed.


                    II. FACTS AND PROCEDURAL HISTORY

                          The relevant facts and procedural history underlying this appeal as taken

                    from this court's March 19, 2013 opinion on direct appeal are as follows.
                                  On the evening of Friday, June 26, 2009, friends and
                           relatives gathered at the home of Lynette Garnett on Wood Street
        ;r;i,              in Norristown for a birthday party for Lynette's friend, Yolandia
        ·,
        !'""'""
            !.
                           Carter. In addition to Ms. Garnett and Ms. Carter, guests at the
                           birthday party included the Decedents, Bruce Palmer and Jackie
        1r,,
                           Scott, Najiyah Simmons and Ruth Walker. Sometime between
        ·, ,,
        IC.,�
                            11 :30 and midnight, the party broke up and several of the party
.... -··· l��-t- - -
                       ·-·-guests"'d.-ecttl-ed·to-go-tn·the-Roo House Tavern 1Jn-wtlluw Street in   -------
        ,t; ,              Norristown. Najiyah Simmons rode to the Roo House in an
        1......
                           Oldsmobile. Lynette Garnett drove Bruce Palmer and Jackie Scott
                           to the tavern in a black Durango. Ms. Garnett parked across the
                           street from the Roo House. Ruth Walker drove a white Ford
                           Explorer over to the tavern and parked behind the black Durango.

                                   When the Roo House closed at 2:00 a.m., the party goers
                           filed out of the tavern and walked toward the white Ford Explorer
                           and the black Durango. Najiyah Simmons and Ruth Walker
                           walked out of the tavern and down the ramp with Bruce Palmer
                           and Jackie Scott. As Mr. Palmer and Ms. Scott crossed the street
                           and neared the black Durango, Appellant approached. First,
                           Appellant shot Jackie Scott twice in the head and then turned his
                           gun on Bruce Palmer, firing multiple times. As Mr. Palmer ducked
                           to avoid the shots, Appellant squatted to continue shooting at Mr.
                           Palmer from under the black Durango. When he had finished
                           firing multiple rounds, Appellant fled the scene running with a
                           taller, lanky young man down Willow Street and into an alleyway.

                                 Norristown Borough Police Department Patrol Officer
                           Michael Bishop responded to the call for shots fired at 1037 Willow
                           Street at approximately 2:05 a.m. on Saturday, June 27, 2009.
                           The Officer found Jackie Scott on the sidewalk on the west side of
                           the street lying in a pool of blood and Bruce Palmer lying in the
                           street under the Durango right in front of Ms. Scott. Medics
                           arrived at the scene and transported the victims to Hahnemann
                           Hospital in Philadelphia, where they both died from their gunshot
                           wounds.      C. Chase. Blanchard, M.D., an Assistant Medical
                           Examiner for the City of Philadelphia, performed the autopsies of
                           the two victims and ruled each of their deaths a homicide.

                                 The Norristown Police and Montgomery County Detective
                           Bureau conducted a thorough joint investigation starting
                           immediately after the shootings and continuing for the next several
                           months. One witness at the scene, Tionna Scruggs, approached
                           Officer Bishop and provided a description of the shooter as a black
                           male, dressed in all black, short, with a beard. Ms. Scruggs also

                                                             2
                  told Officer Bishop that there was a second male there, taller,
  0)              dressed in all black and she saw both males running down Willow
                  Street to Scott Alley. Other witnesses also described the two men
   lij'
   u-�            they saw run from the scene. They described the shooter as a
    ,\            short, husky or stocky, young black man wearing dark clothing, a
   M              black baseball-type cap and holding a black gun in his right hand.
   �J             Some of the witnesses. thought they saw facial hair but stated that
      I.
--1',---·------- -therctid-n-ot -get-a-goo-d took at the shooter's mce.-Theyaescrtb&I-------·-· - ·
   ra�            the second man who ran with the shooter as taller, light-skinned,
   �;             wearing a white t-shirt and no cap.

                        Lieutenant Richard Nilsen served as the lead investigator for
                 the Montgomery County Detective Bureau on the case. Detective
                 Albert Dinnell collected twelve (12) spent 9-millimeter shell casings
                 and numerous bullet fragments from the crime scene. On June
                 29, 2009, Lieutenant Nilsen interviewed Charles West, a potential
                 witness the police had identified off of surveillance video from the
                 Roa House. At that time, Mr. West gave a statement in which he
                 described the two individuals he saw running down the same side
                 of the street after the shooting. Mr. West described one of the
                 individuals as "short, dark skinned. He was young. He was about
                 19 or 20.11 Mr. West went on to state that he could not see the
                 young man's face because he was wearing a black fitted hat that
                 had the visor bent down. After watching portions of a surveillance
                 video, Mr. West picked out someone he thought was the taller,
                 light-skinned young man that he had described in his statement.
                 Police later identified that individual as Anthony Lochetto.

                         On March 2, 2010, Lieutenant Nilsen interviewed Mr. West
                  at Mr. West's home to ask some follow up questions. Lieutenant
                  Nilsen showed Mr. West two photo arrays from which Mr. West
                  picked out the photos of Appellant. and Anthony Lochetto and
                  identified them as the men he saw with the people that were shot
                  and then running away right after the shooting.        Mr. West
                  explained that he had seen the two men outside the tavern before
                  the shooting happened. As Mr. West described it, "[t]hey were
                  floating out there pretty much the whole night."

                         On July 16, 2009, police officers picked up Anthony Lochetto
                  off the street and took him to the police station to question him
                  about the murders. Mr. Lochetto admitted that he was on Willow
                  Street in the area of the Roo House early Saturday morning, June
                  27, 2009, and gave a description matching Appellant but did not
                  provide Appellant's name. Officers arrested Mr. Lochetto on May
                  12, 2010, for unsworn falsification regarding his July 16, 2009

                                                    3
                           statement. Mr. Lochetto subsequently provided Appellant's name
    0)
                           as the shooter and additional details surrounding the murders.
    11��
    ri-•                            Detectives obtained a warrant to arrest Appellant for the
    '\,                    premeditated murders of Bruce Palmer and Jackie Scott on May
    ::�                    19, 2010. On September 23, 2010, Appellant filed an Omnibus
     -,                    Pre-Trial Motion, which included a Motion to Suppress
··-···-11"(.!t--�---·-   --Ici"entification-.··-,\ppettant challenged the eyewilness -faenfiiicafion�----·-
    1ilii'
    II-••
                           by Charles West after Mr. West had viewed portions of a
    (I)                    surveillance video and then picked out Appellant from a
                           photographic array months later. The undersigned conducted a
                           suppression hearing on December 2,· 2010.                    The court
                           subsequently denied Appellant's Motion to Suppress Identification
                           by order docketed on March 18, 2011.1

                                 On September ·20, 2011, Appellant waived a jury trial,
                          electing to proceed before the undersigned without a jury.
                          Appellant's nonjury trial commenced on Monday, October 3, 2011,
                          and concluded on Friday, October 7, 2011. The Commonwealth
                          presented the testimony of several eyewitnesses, including the
                          friends and relatives who had attended the birthday party before
                          going to the Roo House, as well as others who were present at the
                          scene of the shooting, including Anthony Lochetto. In addition, the
                          Commonwealth presented the testimony of Kutesha Bey, Nigeria
                          King and Malik Mack.

                                 Mr. Lochetto ("Ant") testified that he and Appellant were in
                          the area of the Roo House Tavern Friday evening info Saturday
                          morning selling drugs with another friend, Charles Hernandez
                              Chum"). Chum went into the tavern a few times but Ant and
                          ('1


                          Appellant stayed outside. As people were leaving the Roo House,
                          Ant and another woman engaged in conversation on the sidewalk
                          across the street from the tavern. As the two conversed, Ant heard
                          gunshots. Ant looked over to see Appellant on the same sidewalk
                          shooting twice, pausing and then continuing to shoot.          Ant
                          watched as Appellant squatted down and kept shooting in the
                          direction of the black Durango. When Appellant finished firing the
                          gun, he called "Ant, come on" and the two ran off. (Id. at 44).
                          Eventually they split up and Anthony Lochetto went home.


                1
                  On March 18, 2011, the undersigned issued Findings of Fact and Conclusions of Law Pursuant
                to Rule 581(1) of the Pennsylvania Rules of Criminal Procedure along with its order denying
                Appellant's Motion to Suppress Identification.


                                                             4
                              Later in the day, Lochetto went with Appellant to a house in
    0)                 Norristown belonging to a mutual friend, Kutesha Bey ("Butter").
                       (Id. at 55-56). Appellant told Butter that he had shot the woman
    l�:iol.            and bragged about getting the man after the guy had ducked to get
    "t
    M
                       under a car. (Id. at 64). Appellant explained to Butter that Chum
    1r.,.1
                       had gotten into his head and that is why he shot the couple.
    '\IM
-
    �,. . .   -------------·---Ifutesha---S-ey---explained to the court thaCsne naa-wallream
                            on a conversation in her backyard between Appellant and Ant the
    0)                      afternoon of June 27, 2009. Ms. Bey testified that Anthony was
                            very upset and Appellant admitted that he had shot two people.
                            Appellant told Butter that it had been a "favor for a favor", and that
                            Chum had "put his head to him."

                               Malik Mack testified that he saw Appellant, Chum and
                        Butter a few days after the murders. On this occasion, Appellant
                        tried to sell a 9-millimeter semiautomatic handgun to Mr. Mack for
                        about $600.00. Appellant told Mr. Mack that the gun "had two
                        bodies on it."2 Appellant explained to Mr. Mack that Chum had
                        told Appellant who the target was and that the girl "was at the
                        wrong place at the wrong time."

                               Finally, the Commonwealth presented a stipulation
                        concerning testimony from Detective John Finor, who is an expert
                        in the field of firearms and tool marks. Detective Finor performed
                        an analysis of the twelve ( 12) spent 9-millimeter shell casings
                        recovered from the crime scene and determined that all twelve were
                        fired from the same semiautomatic handgun. The Detective also
                        performed an analysis of all of the recovered projectiles and
                        projectile fragments, and while seven (7) of them were not suitable
                        for comparison, he concluded that twelve (12) of them were all fired
                        from the same gun. Detective Finor also examined a Times Herald
                        photograph published on June 25, 2009, depicting Appellant in
                        the left foreground and what the Detective believed to be the butt
                        and magazine floorplate of a pistol protruding out of Appellant's
                        waistband.

                              Following a review of the evidence and testimony as well as
                        the applicable law, this court found Appellant guilty of the
                        aforementioned offenses on October 7, 2011. The undersigned

                 2
                    Nigeria King, another good friend of Appellant, testified that she had seen Appellant with a
                 semiautomatic handgun in June of 2009, and that she knew Appellant had tried to sell a handgun
                 to Mr. Mack after the murders.


                                                                5
                 deferred sentencing 'and ordered a presentence investigation
  0)             report. The court sentenced Appellant on December 12, 2011. In
     �,          total, Appellant received two life sentences plus a consecutive three
     .. �        and one-half (3 1 /2) to seven (7) years of incarceration. Appellant
  'i             filed post-sentence motions seeking a judgment of acquittal, or in
     N           the alternative, a new trial, on December 20, 2011.              The
     �.J
     ·,"'        undersigned denied Appellant's · post-sentence motions on
------M--- ---·--Oecember-27·;-20-:t-t:------·-· · ·             -------------------
  ��
  (I)                 Appellant timely filed a notice of appeal to the Superior
                Court of Pennsylvania ("Superior Court") on January 5, 2012. On
                the same day, this court directed Appellant to file a Concise
                Statement of the Errors Complained of on Appeal ("Statement")
                pursuant to Pa.R.A.P. 1925(b). Appellant filed his Statement on
                January 11, 2012.

          (Trial Court Opinion, No. 186 EDA 2012, filed March 19, 2013, at 2-9)

          (citations to the record omitted).         William R. McElroy, Esquire represented

          Appellant pretrial, at trial, at sentencing and on appeal.                The court also

          appointed Paul Bauer, Esquire as death penalty counsel.

                 The Superior Court issued a memorandum opinion affirming the

          judgment of sentence on October 18, 2013. Commonwealth v. Chambers, No.

          186 EDA 2012 (Pa.Super. Oct. 18, 2013) (unpublished memorandum).                         On

          April 2, 2014, the Pennsylvania Supreme Court denied Appellant's petition for

          allowance of appeal. Appellant timely filed his first pro se PCRA petition by

          placing it in the prison mail on March 10, 2015,3 which the Clerk of Courts

          docketed on March 24, 2015.           On April 3, 2015, the undersigned appointed

          Benjamin Cooper, Esquire ("Attorney Cooper") to represent Appellant and


          3
             Under the "prisoner mailbox rule", a pro se document is considered filed on the date it is
          placed in the hands of prison authorities for mailing. Commonwealth v. Crawford, l 7 A.3d
                                   n
          1279, 1281 (Pa.Super. 201 (citation omitted).


                                                        6
            granted counsel sixty (60) days to review the record.             On May 19, 2015,
  rCI)
            Appellant filed an amended PCRA petition attaching a purported certification

  ·,,.t     for witness Charles Hernandez ("Hernandez" or "Chum"). On June 1, 2015, the

   -,
  11••,.�
            court granted counsel's request for an additional ninety (90) days to review the
--ir,,r-----�----------------------- - .
  i;,
        1
            record and confer with Appellant.             On August 21, 2015, the undersigned
  �-h




            granted counsel's request for an additional sixty (60) days to review the record

            and amend the petition.

                    Appellant filed a pro se motion to waive counsel and proceed pro se on

            August 241, 2015.        The court scheduled a Grazier hearing for September 9,

            2015, by order docketed on August 28, 2015.                   On September 2, 2015,

            Appellant filed a motion to withdraw his motion to proceed pro se, which the

            Clerk of Courts docketed on September 10, 2015.               On November 20, 2015,

            Attorney Cooper filed a Supplement to the petition for collateral relief, which

            the Commonwealth answered and moved to dismiss on December 4, 2015.

                     On February 5, 2016, Attorney Cooper filed a motion to amend petition

            for collateral relief averring, inter alia, that Appellant was prejudiced when the

            undersigned heard a motion in limine and thereafter proceeded to preside over

            the trial and that the court _should recuse itself from any further proceedings.

            The undersigned heard argument on Appellant's motion on February 24, 2016,

            and denied the motion to recuse by order entered on February 29, 2016.




            4
                Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998).


                                                           7
                    Appellant filed another motion to amend petition for collateral relief on
   ())
           February 22, 2016, to add a claim under Montgomery v. Louisiana»              The
   ��
   , ...
   II-·•
           Commonwealth filed its answer and motion to dismiss the motion to amend on
   M
   l(,1J
           March 8, 2016.        On April ·7, 2016, this court entered two orders granting
    'i
----rq-
   lir.$   Appellant's motion for leave to amend and scheduling a PCRA evidentiary
   II,·•

   0)      hearing for Wednesday, May 4, 2016.

                 · At the May 4, 2016 hearing, Appellant and his trial attorneys, Attorney

           McElroy and Attorney Bauer, testified. Appellant testified that he told Attorney

           McElroy that Hernandez could dispel Anthony Lochetto's testimony at trial that

           Hernandez had in some way "hired" Appellant to kill the victims. (N.T. PCRA

           Hearing, 5/4/ 16, at 6-7). Appellant also testified that Attorney McElroy told

           Appellant that he was not going to call Hernandez, "it was not a good idea" and

           "it doesn't make sense to call him" but did not explain his reasoning. (Id. at 5,

           7, 8).     According to Appellant, these conversations about strategy occurred

           pretrial in the visiting room at the Montgomery County Correctional Facility.

           (Id. at 8).

                    Attorney McElroy testified that Appellant had given him a letter written

           by Hernandez early on, that he knew Hernandez had been charged with

           solicitation to commit murder in this case and that after Appellant's trial,

           Hernandez pled guilty to a possession offense but not to the solicitation charge.
                                              '

           (Id. at 44, 45, 47).     Attorney McElroy also testified that he learned through


           5
               _U.S._, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016).

                                                        8
          discovery the Commonwealth's theory of the case was that Hernandez had put
 0)
          Appellant up to committing the murder as a quid pro quo for a favor that was
 :;..•
 · -.�    going to be done for Appellant in Harrisburg.                  (Id. at 49-50).      Counsel
 11\)
 !��
 ''-1.    understood that Montgomery County Detectives had developed information
-�

 lfr.i'   that Hernandez had been beaten up by the victim at a halfway house in the
 0)
          recent past.       (Id.).   Attorney McElroy believed that he had asked the

          investigator to interview Hernandez but did not have a specific recollection of

          doing so. (Id. at 47).

                 Attorney McElroy explained that although he believed Appellant wanted

          Hernandez to be a witness, and that they would have had discussions about it,

          Attorney McElroy could not see any positive to calling Hernandez. (Id. at 56).

          He testified that Hernandez could not offer Appellant an alibi, and the

          Commonwealth had videotape of Appellant at the Roo House at the time of the

          murders, as well as an eyewitness to the shooting in Anthoriy Lochetto. (Id. at

          57). Additionally, their mutual friend Kutesha Bey told police that Appellant

          had made admissions after the fact. (Id.). Attorney McElroy saw no benefit to

          calling Hernandez as a witness when he wanted to keep any evidence of motive

          out of the case. (Id.).

                 At the continuation of the PCRA Hearing on Monday, June 13, 2016,

          Attorney McElroy provided additional insight into his trial strategy.s Attorney


          6
             Attorney McElroy has been practicing law for more than twenty (20) years, first as a
          prosecutor and then as a private attorney. (N.T. PCRA Hearing, 6/13/16, at 33). At the time of
          Appellant's trial in 2011, Attorney McElroy's practice consisted of approximately ninety-nine
          percent (99%) criminal defense work and he had hand!ed approximately seven (7) or eight (8)
                                                        9
             McElroy testified that the defense theory was misidentification and that

             Appellant did not commit the crime.                             (N.T. PCRA Hearing, 6/ 13/ 16, at 16).
  II'-•
  ·,�        Counsel explained that he had subpoenaed three (3) witnesses who testified at
  ij",J


      -,
  l�iJI
             trial that somebody else with a Muslim beard was the shooter.
----jj\'_,j'-------------                        --···--···. -··· ...
                                                                                                       (Id.) It was
  1
      c:i�   Attorney McElroy's goal to keep out the Commonwealth's evidence through

             witnesses who would testify that the victim had repeatedly beaten up

             Hernandez months earlier, 'thus providing a motive for Hernandez to solicit

             Appellant to commit the murder, and that he was successful in doing so. (Id.

             at 64-75).     Attorney McElroy also knew Hernandez had an open charge to

             solicitation to commit this murder, so he opined that Hernandez would not

             have anything relevant or beneficial to offer the defense at trial. (Id. at 64).

                    Attorney McElroy wa� asked about an undated, typewritten letter by

             Hernandez to him as well as an August 15, 2010, handwritten letter from

             Appellant to him marked and admitted as Exhibit P-3. (Id. at 13). Of note, in

             the Hernandez letter to Attorney McElroy, Hernandez tells Appellant's Counsel

             "I have no personal knowledge of the incident".                             (Id. at 75-76).   Further,

             Hernandez writes, "having no personal knowledge of the incident, I cannot see

             how I can in any way add to the defense of (Appellant's] case." (Id.; Exhibit P-3,

             Hernandez letter). In Appellant's August 15, 2010 letter to Attorney McElroy,

             Appellant wrote ''on behalf of a friend", Hernandez, who was brought to MCCF


             murder cases. (Id. at 33-34). After the court appointed Attorney McElroy to defend Appellant,
             he hired an investigator, met with Appellant at MCCF approximately twelve (12) times and spent
             well in excess of one hundred (100.) hours reviewing discovery. (Id. at 34, 36)


                                                                        10
         and questioned about Appellant's case. According to Appellant, "[Hernandez]

         was found to have no knowledge of the case.                       However his transfer papers

  -.,�   stated he was brought here 'as a witness to the defense. Me and you both no

         [sic] that is untrue".    (Id. at 76, Exhibit P-3, Appellant's letter to Attorney
-iMt-----                         ·-------·····-··· .. ·-
  1li'   McElroy).   In addition, Attorney McElroy confirmed that he had received and
  (I)
         read the grand jury testimony given by Hernandez on November 17, 2010. (Id.

         at 18; ExhibitPvS, Grand Jury testimony of Charles Hernandez, 11/ 17 / 10).

               Before that grand jury panel, Hernandez testified that he arrived at the

         Roo House on June 26, 2009, sometime around 11 p.m. and was in and out of

         the bar until closing. (N.T. Grand Jury, 11/ 17 / 10 at 40, 45, 54). Hernandez

         explained that he was "fully intoxicated that night".                  (Id. at 24).   He testified

         that he saw Appellant outside of the bar a few times that evening (Id. at 54),

         but did not see Appellant at closing time.                   (Id. at 60).   After closing time,

         Hernandez testified that he was outside sitting two or three doors down from

         the bar when he heard shots ring out.                   (Id. at 61).   He did not see who was

         involved in the shooting because of the people and vehicles blocking his view.

         (Id. at 61, 81). After the shots rang out, he ran and later blacked out. (Id. at

         62, 64).

               Attorney McElroy testified that this information only served to confirm

         his opinion that Hernandez offered nothing that was relevant or that would

         contribute to Appellant's defense.                 (N.T. PCRA Hearing, 6/ 13/ 16, at 18).

         Attorney McElroy also testified that he would never call a witness at trial that

         he had not spoken with previously. (Id. at 64).

                                                            11
                  The undersigned presided over the third session of Appellant's PCRA

           hearing on August 2, 201�, at which Hernandez, John I. McMahon, Jr.,

           Esquire ("Attorney McMahon") and Michael J. Dayoc testified. After waiving his

           right to remain silent," Hernandez confirmed that he did not see what
                   ------------------------···-··-- ··- ..    -· ·-···-····-··   ·-····---   ---·------------··-   .


1
    1r.�   happened when the two (2) people were killed outside of the Roo House in the
(I)
           early morning hours of June 27, 2009.                (N.T. PCRA Hearing, 8/2/ 16, at 12).

           Hernandez testified that he had seen and spoken with Appellant earlier in the

           night, but he did not see who fired the gun and he did not see where Appellant

           was when the shots were fired. (Id. at 13, 14). His purported contribution to

           Appellant's defense was that Hernandez would have testified that he did not

           solicit Appellant to kill one of the victims and that witnesses Anthony Lochetto

           and Kutesha Bey had changed their statements more than once and were not

           being· truthful.     (Id. at 16', 19-20; Exhibit P-9, Letter from Hernandez to

           Attorney McMahon filed November 3, 2011).8




           7
              Because the Commonwealth had charged Hernandez with perjury, violation of the controlled
           substance, drug, device and cosmetic act and solicitation to commit murder as a codefendant in
           this case, and the charges of perjury and solicitation were nol-prossed, the court appointed an
           attorney to represent Hernandez at the hearing. Joseph J. Hylan, Esquire met with Hernandez at
           MCCF to advise him not to testify and conducted a colloquy to ensure Hernandez understood
           that the charge of solicitation to commit murder has no statute of limitations. The court also
           confirmed this understanding. (N.T. PCRA Hearing, 8/2/16, at 7, 9, 11).
           8
              The Hernandez letter to Attorney McMahon concerned the case against Hernandez and the
           alleged perjury regarding his involvement only. (N.T. PCRA Hearing, 8/2/16; Exhibit P-9).


                                                         12
             Attorney McMahon confirmed that the court appointed him to represent
!())
       Hernandez in this matter on June 20, 2011, replacing another attorney,9 and

<,     that the charges remained open until well after Appellant's trial in October

       2011.. (Id. at 51, 54-55, 62). Attorney McMahon_was able to negotiate a plea                _

       deal with the Commonwealth that he opined would not have happened if

       Hernandez had testified for the defense in Appellant's trial. (Id. at 56-57). Had

       Hernandez sought to testify on behalf of Appellant when he had open charges

       to solicitation to commit murder in the same case, Attorney McMahon

       explained that he "would have strongly advised [Hernandez] that that would be

       absolute    insanity   and beyond       foolish"   and "would      have emphatically

       emphasized to him that that would be a terrible, terrible decision for many

       reasons".   (Id. at 58-59, 67). Attorney McMahon testified that he had many

       discussions with Hernandez and was "quite sure" that Hernandez never

       indicated to him that Hernandez wanted to testify in Appellant's defense. (Id.

       at 60-61, 67-68).      Finally, Mr. Dayoc testified that he was the investigator

       working for Attorney McElroy and Attorney Bauer on Appellant's case, that he

       had spoken with Attorney McMahon about talking to Hernandez as a potential

       witness for Appellant's defense, and that Attorney McMahon had denied his

       request to speak with Hernandez. (Id. at 70, 71-72).




       9
          Appellant was originally represented by the Montgomery County Public Defender's Office
       until the court appointed Attorney McMahon as conflict counsel on June 20, 2011.
       (Montgomery County Docket No. 3385-2011).


                                                  13
                 After a thorough review of the record and having presided over three (3)

           days of PCRA hearing testimony, the court denied Appellant's PCRA petition by
lij'
!!,-�·
.,I,       order entered on December 16, 2016.            The Montgomery County Public
IJ',,)

��
__::;,,_
           Defender's Office filed a notice of appeal        on Appellant's behalf on December 19,
                                                  ···--·-····-·--·-······· ·····-····---------------·---


;;�        2016. This court directed Appellant to file a Concise Statement of the errors
IC})
           complained of on Appeal pursuant to Pa.R.A.P. 1925(b) ("Statement") by order

           entered on December 23, 2016. On December 28, 2016, the Public Defender's

           Office filed a "Preliminary· Concise Statement and Motion for Leave for

           Extension of Sixty Days to Review Notes of Testimony and File Final Concise

           Statement".   On. January 3, 2017, the court entered an order granting an

           extension of thirty (30) days to file a supplemental concise statement.        On

           January 25, 2017, the Public Defender's Office requested an additional

           extension. The Superior Court entered an order on January 26, 2017, denying

           the Public Defender's motion to withdraw appearance without prejudice to file

           the motion in this court.

                 On January 27, 2017, the Public Defender's Office filed a concise

           statement, and on January 31, 2017, a motion to withdraw appearance of the

           Office of the Public Defender and appoint conflict counsel. This court granted

           the motion to withdraw on February 6, 2017, and appointed Henry S. Hilles,

           III, Esquire on February 7, 2017.      On February 28, 2017, Attorney Hilles

           requested an extension to file a concise statement, which this court granted by

           order entered on March 3, 201 7.      Appellant filed his concise statement on

           March 30, 2017.

                                                   14
        III.   ISSUES

               Appellant has raised the following issues in his concise statement:
!!-"'
'�.             1.   The United States Supreme Court has held that a sentence
M              of mandatory life imprisonment without parole for juvenile
��             offenders violates the Eighth Amendment of the United States
N ·            Constitution (Miller v. Alabama, 567 U.S. 460 '{2UI2JJ analliat lli1s ---
�,             is to be applied retroactively (Montgomery v. Louisiana, 136 S.Ct.
'"'"'          718 (2016)). The Honorable Court erred in failing to re-sentence
())            [Appellant] on theories that (i) [Appellant] was only 10 days past
               his 18th birthday on the date that the instant offenses occurred
               and (ii) [Appellant] may properly be considered a juvenile for the
               purposes of the instant sentence of mandatory life imprisonment
               because, under the Pennsylvania Juvenile Act, [Appellant] could
               have been supervised as a juvenile until he was 21 years of age {42
               Pa.C.S. § 6302 et seq.).

               2.      [Trial] Counsel was ineffective for failing to interview Charles
               Hernandez (who was originally charged with Criminal Solicitation
               to commit the instant homicides), and/or otherwise investigate
               whether Charles Hernandez could provide exculpatory evidence at
               trial (particularly in light of the evidence introduced at the PCRA
               hearing that Mr. Hernandez had written trial counsel a letter
               essentially offering to testify on [Appellant]'s behalf at trial).

               3.     [Trial] Counsel was ineffective for failing to call Charles
               Hernandez (who was originally charged with Criminal Solicitation
               to commit the instant homicides) to testify at trial (particularly in
               light of the evidence introduced at the PCRA hearing that Mr.
               Hernandez had written trial counsel [a letter] essentially offering to
               testify on [Appellant]'s behalf at trial).

        (Appellant's concise statement, filed March 30, 2017).



        IV.    DISCUSSION

               In Commonwealth v. Baumhammers, the Pennsylvania Supreme Court

        reiterated the applicable, well-settled law as follows:

               To be eligible for relief, a PCRI\ petitioner must establish by a
               preponderance of the evidence that his conviction or sentence

                                                  15
               resulted from one or more of the circumstances enumerated in
               Section 9543(a)(2) of the PCRA, and that the allegation of error has
               not been previously litigated or waived. See, e.g., Commonwealth. v.
��             Sneed, 616 Pa. 1, 16-17 & n. 13, 45 A.3d 1096, 1105 & n. 13
"�             (2012). For present. purposes, the circumstances that would
1
    M          warrant relief are a constitutional violation, or ineffective
1��
               assistance of counsel, which so undermined the reliability of the
�             Truth determining process that no reliable ac1Judicaiion of guilt or             --·- · -
�'             innocence could have taken place.

        625 Pa. 354, 364, 92 A.3d 708, 714 (2014).

               As it pertains to Appellant's claim of ineffective assistance of counsel, the

        Pennsylvania Supreme Court has repeatedly stated:

               a PCRA petitioner will be granted relief only when he proves, by a
               preponderance of the evidence, that his conviction or sentence
               resulted from the "[i]neffective assistance of counsel which, in the
               circumstances of the. particular case, so undermined the truth-
               determining process that no reliable adjudication of guilt or
               innocence could have taken place." 42 Pa.C.S. § 9-543(a)(2)(ii).
               "Counsel is presumed effective, and to rebut that presumption, the
               PCRA petitioner must demonstrate that counsel's performance was
               deficient and that such deficiency prejudiced him." Colavita, 606
               Pa. at 21, 993 · A.2d at 886 (citing Strickland, supra).           In
               Pennsylvania, we have refined the Strickland performance and
               prejudice test into a three-part inquiry. See Pierce, supra.[1°]
               Thus, to prove counsel ineffective, the petitioner must show that:
               ( 1) his underlying claim is of arguable merit; (2) counsel had no
               reasonable basis for his action or inaction; and (3) the petitioner
               suffered actual prejudice as a result. Commonwealth v. Ali, 608
               Pa. 71, 86, 10 A.3d 282, 291 (2010). "If a petitioner fails to prove
               any of these prongs, his claim fails." Commonwealth v. Simpson, -
               Pa. -, 66 A.3d 253, 260 (2013) (citation omitted). Generally,
               counsel's assistance is deemed constitutionally effective if he chose
                a particular course of conduct that had some reasonable basis
                designed to effectuate his client's interests. See Ali, supra. Where
                matters of strategy and tactics are concerned, "[a] finding that a
                chosen strategy lacked a reasonable basis is not warranted unless
                it can be concluded that an alternative not chosen offered a
                potential for success substantially greater than the course actually

        °
        1
            Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).


                                                      16
                 pursued." Colavita, 606 Pa. at 21, 993 A.2d at 887 (quotation and
(l)              quotation marks omitted).         To demonstrate prejudice, the
�:,              petitioner must show that "there is a reasonable probability that,
""'�             but for counsel's unprofessional errors, the result of the
'-,.             proceedings would have been different." Commonwealth v. King,
t,�              618 Pa. 405, 57 A.3d 607, 613 (2012) (quotation, quotation marks,
t� __ �
___:_,;._
                 and citation omitted). " '[A] reasonable probability is a probability
M                tnat is sufficient to unaermme confiaence In 1fie outcome orffie
11;
    �            proceeding.' " Ali, 608 Pa. at 86-87, 10 A.3d at 291 (quoting
:�;;             Commonwealth v. Collins, 598 Pa. 397, 957 A.2d 237, 244 (2008)
                 (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052)).

            Commonwealth v. Spatz, 624 Pa. 4, 33-34, 84 A.3d 294, 311-12 (2014). Accord

            Baumhammers, supra at 372, 92 A.3d at 719.

                 Appellate review of an order denying PCRA relief is limited to examining

            whether the record supports the PCRA court's findings of fact and whether the

            court's conclusions of law are free from legal error. Spatz, supra at 32, 84 A.3d

            at 311 ( citation omitted); Commonwealth v. Busanet, 618 Pa. 1, 17, 54 A. 3d 35,

            45 (2012) (citation omitted); Commonwealth v. Furqess, 149 A.3d 90, 93

            (Pa.Super. 2016) {citation omitted). The scope of review is limited to the PCRA

            court's findings and the evidence of record, viewed in the light most favorable

            to the prevailing party in the PCRA court proceedings. Spatz, supra; Busanet,

            supra.      These findings are viewed with great deference and will not be

            disturbed "merely because the record could support a contrary holding."

            Commonwealth v. Touw, 781 A.2d 1250, 1252 (Pa.Super. 2001) (citation

            omitted).     Where the PCRA.. court has heard the witnesses' testimony and

            observed their demeanor, it is in the best position to determine whether that

            testimony was credible. Baumhammers, supra at 369, 92 A.3d at 717 (citing

            Commonwealth v. Weiss, 565 Pa. 504, 518, 776 A.2d 958, 966 (2001)). The

                                                    17
                    PCRA court's determination is "to be accorded great deference," and is binding

                    on the Superior Court if supported by the record. Jd. (citations omitted).
      11-,�
       -,                   In Appellant's first issue on appeal, he contends that this court erred in
      M
      �1            declining to re-sentence him, pursuant to the holding in Miller v. Alabama, 11 for
--- ....:.l_   --·--·-------=--=---=--c: ==·::· -·---- .... - -·· .,-·-···· ·-- -·-· ·--- - - -----. - ·- -- ==�=����-----· -·
      M
      1
        &;,         two reasons: 1) Appellant was only ten (10) days over the age of eighteen (18)

                    on the day of the two (2)' homicides-- and 2) Appellant may properly be

                    considered a juvenile because he could have been supervised as a juvenile until

                    he turned twenty-one (21) years of age under the Pennsylvania Juvenile Act.

                    Appellant is mistaken.
                           P(e..\1vr\lv'\t\.r1l-tfs the Pennsylvania Supreme Court noted in Commonwealth

                    v. Batts, _ Pa. _, _, 163 A.3d 410, 418 (2017), a charge of homicide

                    mandates removal of a matter from the jurisdiction of the juvenile court and

                    requires the case to be filed in adult criminal court.               See 42 Pa.C.S. § 6302

                    (excepting murder from the· definition of a delinquent act). Accordingly, this

                    court rejects the second prong of Appellant's argument out of hand.

                             In Miller, given retroactive effect in Montgomery, the United States

                    Supreme Court held "mandatory life without parole for those under the age of

                    18 at the time of their crimes violates the Eighth Amendment's prohibition on

                    'cruel and unusual punishments.'" 567 U.S. at 465, 132 S.Ct. at 2460, 183


                    11
                         567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).
                    12
                       Appeliant stipulated at trial that his date of birth is June 14, 1991, making him eighteen (18)
                    years and thirteen (13) days old on the day of the murders, June 27, 2009. See Trial Court
                    Opinion (No. 186 EDA 2012), filed March 19, 2013, at 14 n.8.

                                                                    18
          L.Ed.2d at_. However, Pennsylvania courts have not extended the holding in

          Miller to individuals who have reached the age of eighteen (18).             Furgess, 149

          A.3d at 94 (reinforcing the holding of Commonwealth v. Cintora, 69 A.3d 759,
  !I\J

__ J�     7_64 (Pa.Super. 2013)). While the issue_on appeal_in Furgess and Cintora was                   _
  1r,,1
  ,r;;,   whether the constitutional right announced in Miller constituted an exception
  Ir·'"
  iQll
          to the time bar for a facially untimely PCRA petition, the Superior Court

          concluded in both cases that it did not because all of the petitioners were over

          eighteen (18) years of age. In Commonwealth v. Woods, _ A.3d _, 2017 WL

          2536525 (Pa.Super. June 12, 2017), the appellant was eighteen (18) years and

          thirty-six (36) days old when he committed the murder for which he received a

          life sentence. The Woods Court reasoned "while the Supreme Court's holding

          in Miller set forth a bright-line rule that mandatory sentences of life

          imprisonment without the possibility of parole are unconstitutional for juvenile

          offenders, it did not prevent a trial court from imposing a life sentence upon an

          individual such as Appellant who was over the age of eighteen at the time he

          committed the offense."          Woods, supra at *6.13         Accordingly, Appellant's

          reliance on Miller for relief is unavailing.

                 In his second and third issues on appeal, Appellant asserts that Attorney

          McElroy provided ineffective assistance of counsel by failing to interview



          13
             Accord Commonwealth v. Cox, 2017 WL 393425 (Pa.Super. Jan. 30, 2017) (unpublished
          judgment order) (holding appellant not entitled to relief under Montgomery/Miller because he
          was eighteen years old at the time of the offense and no longer a juvenile); Commonwealth v.
          Kightlinger, 2016 WL 7321773 (Pa.Super. Dec. 16, 2016) (unpublishedjudgment order) (same).

                                                       19
          Charles Hernandez and by failing to subsequently call Henandez as a witness
  0)
          to testify on Appellant's behalf at trial. These claims also merit no relief.

  '\(    When raising a claim of ineffectiveness for the failure to call a
  11,1�
  1
         potential witness, a . petitioner satisfies the performance and
    1:J  prejudice requirements of the Strickland test by establishing that:
�-------i-innewitness-exisfea;-(2niie--wifness-            was-availaole
                                                                 to testify         Tor
 �!$     the defense; (3) counsel knew of, or should have known of, the
 (], ,�  existence of the witness; (4) the witness was willing to testify for
 :0)     the defense; and (5) the absence of the testimony of the witness
         was so prejudicial as to have denied the defendant a fair trial.
          Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d 523, 536 (2009);
          Commonwealth v. Clark, 599 Pa. 204, 961 A.2d 80, 90 (2008). To
         demonstrate Strickland prejudice, a petitioner "must show how the
         uncalled witnesses' testimony would have been beneficial under
         the circumstances of the case." Commonwealth v. Gibson, 597 Pa.
         402, 951 A.2d 1110, 1134 (2008). Thus, counsel will not be found
         ineffective for failing to call a witness unless the petitioner can
         show that the witness's testimony would have been helpful to the
         defense. Commonwealth v. Auker, 545 Pa. 521, 681 A.2d 1305,
          1319 (1996). ''A failure to call a witness is not per se ineffective
         assistance of counsel for such decision usually involves matters of
         trial strategy." Id.

          Sneed, 616 Pa. at 22-23, 45 A.3d at 1108-09.

                Moreover,

                [ a] PCRA petitioner cannot succeed on a claim that counsel was
                ineffective for failing to call a witness if the witness's testimony
                would not have materially aided him.           In such a case, the
                underlying-merit and 'prejudice prongs of the Pierce test logically
                overlap. 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.

          Baumhammers, supra at 382-83, 92 A.3d at 725 (citing Gibson, supra).

                Instantly, Appellant fails more than one prong of the Strickland test.

          First, Appellant has not demonstrated that Hernandez was either available or


                                                   20
                 willing to testify for him at trial. Specifically, Michael J. Dayoc testified that he

                 inquired and was denied a�cess to Hernandez by Attorney McMahon. While

         ''t     neither Attorney McElroy nor Attorney McMahon could specifically recall
     M1
     1

--   t'!
     !M
          'L__
                 whether an effort was made to speak with Hernandez by Appellant's defense
                                          --·-· ··-·--------·-·-- ·----·--····-----···---····--·--····-··--··------------------ ··�   .   -.



     ili;,       team, Mr. Dayoc was unequivocal and credible in his testimony.                               Attorney

                 McMahon also testified that he was quite sure Hernandez, his client, never told

                 him that Hernandez wanted to testify for Appellant's defense and that, if

                 Hernandez had said he wanted to testify, Attorney McMahon would have

                 strongly advised against it given the open charge for solicitation of murder and

                 the ongoing negotiations on Hernandez's behalf.

                       Additionally, Appellant produced three letters written by Hernandez. In

                 the first letter sent in August of 2010, Hernandez wrote that he had no

                 personal knowledge of the incident and could not add to Appellant's defense.

                 The second letter Hernandez purportedly wrote in November 2010, before he

                 was charged, stated that he was never part of any conversation with Appellant

                 concerning the shooting.         Finally, Hernandez filed a third letter in November

                 2011, a month after Appellant's trial, regarding his own case and claiming that

                 both Lochetto and Bey had committed perjury.                           The undersigned found

                 Hernandez's testimony and evidence to be self serving and portions thereof

                 inherently incredible.

                       Second, Appellant has not established how Hernandez's testimony would

                 have been helpful and that the absence thereof was so prejudicial as to have

                 denied Appellant a fair trial. Hernandez readily admitted that he did not see

                                                                  21
                   who shot the two victims, and he did not see Appellant at the time of the

                   murders. Hernandez's self-serving testimony that he did not solicit Appellant

                   to murder the victims may have rebutted the Commonwealth's theory of motive
     1��
                   but did not address whether or not Appellant committed the crimes, was not
                                       - ----··-- - -----------· ··-------- -·- ---·· --------------------
--------�-----------------------.---------------·
                                                                                                    .   .  . -- �--
     IJ;.i�        exculpatory for Appellant, and would not have materially aided Appellant's

                   defense.        Indeed, Attorney McElroy's trial strategy to keep out evidence of

                   motive would have been severely compromised had He.rnt1.ndei testified.

                   Attorney McElroy had a reasonable basis and sound trial strategy for not

                   calling Hernandez because of the Commonwealth's theory of the case and the

                   evidence to support that theory.

                            Appellant has also failed to demonstrate that Attorney McElroy's strategy

                   lacked a reasonable basis because calling Hernandez as a defense witness

                   allegedly offered a potential for success substantially greater than the course

                   Counsel actually pursued. Appellant has not shown that there is a reasonable

                   probability that, had Attorney McElroy called Hernandez as a defense witness

                   at trial, the result of the proceedings would have been different.               To the

                   contrary, had Hernandez actually decided to testify at Appellant's trial despite

                   Attorney McMahon's stern warnings and advice, the Commonwealth was

                   prepared to present witnesses tying Hernandez to one of the victims and

                   thereby provide a motive for the murders.

                            The evidence against Appellant presented a.t trial including, but not

                   limited to, the testimony of Mr. Lochetto, Ms. Bey, and Mr. Mack, was

                   substantial.         Because Attorney McElroy had a reasonable basis for keeping

                                                              22
               evidence of motive out of the case, and was successful in doing so, Appellant

               cannot reasonably claim to have been prejudiced by Counsel's decision not to

 "',,.         call Hernandez at trial. Accordingly, Counsel cannot be deemed ineffective.
 M
 ir..,�
-"�
 II',)
          ------------------ --------------------------------.   --   ------- ---- ----   ----------------�-·-   ·-·-···



 1";9          V.     CONCLUSION

                      Based upon the foregoing analysis, this court respectfully requests that

               the December 16, 2016 order denying relief and dismissing Appellant's PCRA

               Petition be affirmed.

                                                    BY THE COURT:




                                                    T
                                                    Court Of Common P as
                                                    Montgomery County, Pennsylvania
                                                    38th Judicial District



               Copies sent on 1 / 17 / 18 to:
               By Interoffice Mail:
               Deputy District Attorney Robert M. Falin, Chief of Appeals Division,
                     Office of the Montgomery County District Attorney

               By First-Class Mail:
               Henry S. Hilles, III, Esquire, Counsel for Appellant

               Khailyl Chambers, KH-3040
               SCI Coal Township
               1 Kelley Drive
               Coal Township, PA 17866-1020




                                                                 23
