J-A06040-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

SALMAR METTS

                            Appellant                  No. 764 EDA 2014


                   Appeal from the PCRA Order March 3, 2014
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0003292-2008


BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                            FILED MARCH 26, 2015

        Appellant Salmar Metts appeals from the order entered in the

Delaware County Court of Common Pleas which dismissed his petition

seeking relief pursuant to the Post Conviction Relief Act (“PCRA”). 1        We

affirm.

        The PCRA court sets forth the relevant facts of this appeal as follows:

           This case arises from the shooting and death of
           Christopher Howell [“Victim”] on May 21, 2008.       At
           approximately 5:30 pm that evening[,] [Victim] was on
           Weymouth Street in Darby Borough, Delaware County,
           with three other young men. The men were drinking
           alcohol and smoking marijuana. [Appellant] and three of
           his friends were also on Weymouth Street. An argument
           between [Appellant] and [Victim] began because [Victim]

____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
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       allegedly did not want [Appellant], who was a resident of
       Chester, on Weymouth Street where [Victim’s] friend lived.

       A witness, Rashaad Carroll, testified at trial that he was
       with [Victim]. Carroll testified that he intervened in the
       argument and escorted [Victim] away.           Carroll also
       testified that no punches were thrown. Another witness
       who was a friend of [Appellant], Jabree Branch,
       corroborated this testimony at trial.     The two groups
       subsequently parted ways.         Later that evening at
       approximately 10:00 pm, both groups arrived back on
       Weymouth Street.

       Carroll testified that [Victim] was seated in Carroll’s vehicle
       near his home. [Appellant] and his friends arrived and
       stood by a fence near the car. [Victim] was looking at
       [Appellant] and words were exchanged between the two.
       [Victim] attempted to get out of the vehicle and Carroll
       tried to hold him back. [Victim] was partially out of the
       vehicle when [Appellant] pulled out a revolver and shot
       [Victim] from a distance of approximately three feet.
       [Victim] was hit and began running away from [Appellant].
       [Appellant] then shot at [Victim] several more times. After
       shooting [Victim], [Appellant] and his friends ran away.

       Carroll testified that the following day he drove to the
       Darby Borough Police Department to speak with a
       detective regarding the shooting.          Carroll identified
       [Appellant] as the shooter from a photo array. Carroll also
       provided police with a signed statement about the
       shooting. Carroll also testified that [Victim] never carried
       a gun and did not have a gun on him at the time that he
       was shot and killed by [Appellant]. That evening the police
       arrived at [Appellant’s] sister’s home and arrested
       [Appellant].

       The Delaware County Medical Examiner, Dr. Frederick
       Hellman, also testified at trial. The Examiner testified that
       [Victim] died as a result of multiple gunshot wounds. One
       bullet wound was to the base of his neck having entered
       from the front and the other four wounds were inflicted to
       [Victim’s] back as he was running. Dr. Hellman concluded
       that the gunshot wounds were inflicted from a distance of
       more than a few feet away based upon the absence of

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           gunpowder particles on [Victim].      Tests upon [Victim]
           reflected that there was no indication that he had recently
           handled or fired a firearm.

PCRA Court Opinion, filed October 9, 2014 at 1-2 (citations to the record and

unnecessary capitalization omitted).

        The trial court sets forth some of the relevant procedural history of

this appeal as follows:

           On May 23, 2008, [Appellant] was arrested and charged
           with criminal homicide and related offenses in connection
           with the events of May 21, 2008. From September 29,
           2009 through October 2, 2009[,] a trial was held before
           the Honorable Ann A. Osborne.            [Appellant] was
           represented by Mary Beth Welch, Esq. at trial.[2]

           On January 20, 2010, [Appellant] was sentenced to a term
           of 20 to 40 years[’] imprisonment for murder in the third
           degree, and to consecutive terms of 42 to 84 months for
           firearms without a license and 12 to 24 months for
           possession of an instrument of crime.[3]

           On February 17, 2010, counsel for [Appellant] filed a post-
           sentence motion for arrest of judgment, for judgment of
           acquittal, and for a new trial.[4]

           On December 21, 2010, the court permitted Mary Elizabeth
           Welch, Esq. to withdraw as counsel for [Appellant]. Jordan
____________________________________________


2
  The court conducted a previous trial from June 2, 2009 through June 5,
2009, in which Appellant was represented by different counsel, Thomas
Dreyer, Esq. The jury was unable to reach a unanimous verdict, and the
court declared a mistrial.
3
    18 Pa.C.S. §§ 2502, 6106, 907, respectively.
4
  In his post-sentence motion, Appellant requested an additional ten days
after receipt of the notes of testimony to raise additional post-sentence
motions. The court granted this request on December 23, 2010.



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          Zeitz was appointed by the court to represent [Appellant]
          in all matters directly related to the previously filed post
          sentence motions and for purposes of appeal.

          On February 1, 2011, new counsel for [Appellant], Jordan
          Zeitz, Esq., filed a petition for funds for an investigator to
          possibly uncover “after-discovered evidence.” On April 6,
          2011, the request was denied.

          On April 25, 2011[, Appellant] filed supplemental post-
          sentence motions and [a] request for an evidentiary
          hearing and oral argument. In this motion, [Appellant]
          complained of various instances of alleged trial court error,
          alleged that trial counsel provided ineffective assistance,
          requested a modification of sentence, and requested an
          evidentiary hearing. On July 27, 2011[,] [Appellant’s]
          post-sentence motions were denied without a hearing.[5]

          On September 21, 2011 [Appellant] filed a motion to
          supplement the record. On October 14, 2011 the court
          denied the motion.

          On April 24, 2012 the Commonwealth filed a motion to
          strike improper exhibits, documents and arguments in
          Appellant’s Brief and reproduced record pursuant to
          Pa.R.A.P. 1921. On April 30, 2012, [Appellant] filed an
          answer in opposition to the Commonwealth’s motion to
          strike.    On May 11, 2012, the court denied the
          Commonwealth’s motion to strike.

PCRA Court Opinion at 2-3 (unnecessary capitalization omitted).

       On August 8, 2012, this Court affirmed Appellant’s January 20, 2010

judgment of sentence. Appellant filed a counseled PCRA petition on January



____________________________________________


5
  On August 25, 2011, in consideration of Appellant’s notice of appeal, the
court ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of
errors complained of upon appeal, and Appellant timely complied.



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2, 2013. After an evidentiary hearing on August 1, 2013, the court denied

Appellant PCRA relief on March 4, 2014.

        On March 10, 2014, Appellant filed a notice of appeal. On March 13,

2014, the court ordered Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely

complied on March 20, 2014.


        Appellant raises the following five issues for our review:

  I.       WHETHER TRIAL COUNSEL RENDERED INEFFECTIVE
           ASSISTANCE OF COUNSEL BY FAILING TO CALL CERTAIN
           WITNESSES AND INTRODUCE OTHER EVIDENCE WHICH
           WOULD HAVE ESTABLISHED THAT THE DECEDENT WAS IN
           FACT ARMED WITH A HANDGUN PRIOR TO BEING SHOT
           AND WHICH WOULD HAVE SUPPORTED AN INSTRUCTION
           ON BOTH MANSLAUGHTER AND SELF-DEFENSE WHERE
           TRIAL COUNSEL ULTIMATELY ADMITTED DURING THE
           EVIDENTIARY HEARING THAT SAID WITNESSES AND
           EVIDENCE EXISTED AT THE TIME OF TRIAL DESPITE HER
           CLAIMS TO THE CONTRARY?

  II.      WHETHER TRIAL COUNSEL RENDERED INEFFECTIVE
           ASSISTANCE OF COUNSEL BY FAILING TO CALL
           APPELLANT AS A TRIAL WITNESS WHOSE TESTIMONY
           WOULD HAVE SUPPORTED AN INSTRUCTION ON SELF-
           DEFENSE?

  III.     WHETHER TRIAL COUNSEL RENDERED INEFFECTIVE
           ASSISTANCE OF COUNSEL BY FAILING TO PRESENT A
           COGENT THEORY OF DEFENSE AND BY FAILING TO
           REQUEST AN INSTRUCTION ON THE THEORY OF SELF-
           DEFENSE?

  IV.      WHETHER TRIAL COUNSEL RENDERED INEFFECTIVE
           ASSISTANCE OF COUNSEL BY ELICITING TESTIMONY
           THAT APPELLANT HAD ENGAGED IN PRIOR CRIMINAL
           ACTIVITY AND BY STATING IN HER CLOSING ARGUMENT
           THAT APPELLANT HAD ENGAGED IN SUCH ACTIVITY?

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J-A06040-15



   V.     WHETHER THE TRIAL COURT ERRED BY FAILING TO “WRIT
          IN” A WITNESS WHO POSSESSED “NEWLY DISCOVERED”
          EVIDENCE IN FURTHER SUPPORT OF APPELLANT’S
          POSITION THAT THE DECEDENT WAS IN-FACT ARMED
          WITH A HANDGUN PRIOR TO BEING SHOT?

Appellant’s Brief at 4.

        Our well-settled standard of review for orders denying PCRA relief is

“to determine whether the determination of the PCRA court is supported by

the evidence of record and is free of legal error. The PCRA court’s findings

will not be disturbed unless there is no support for the findings in the

certified record.”    Commonwealth v. Barndt, 74 A.3d 185, 191-192

(Pa.Super.2013) (internal quotations and citations omitted).

        To be eligible for PCRA relief, a petitioner must plead and prove, by a

preponderance of the evidence, that his conviction or sentence was the

result of one or more of the following:

                (i) A violation of the Constitution of this
             Commonwealth or the Constitution or laws of the United
             States 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.

                 (ii) Ineffective 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.

                 (iii) A plea of guilty unlawfully induced where the
             circumstances make it likely that the inducement
             caused the petitioner to plead guilty and the petitioner
             is innocent.


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J-A06040-15


                 (iv) The improper obstruction by government officials
              of the petitioner's right of appeal where a meritorious
              appealable issue existed and was properly preserved in
              the trial court.

                 (v) Deleted.

                  (vi) The unavailability at the time of trial of
              exculpatory evidence that has subsequently become
              available and would have changed the outcome of the
              trial if it had been introduced.

                 (vii) The imposition of a sentence greater than the
              lawful maximum.

                 (viii) A proceeding in a tribunal without jurisdiction.

42 Pa.C.S. § 9543(a)(2).

       In his first four issues on appeal, Appellant argues his counsel was

ineffective and concludes the ineffective assistance of counsel entitles him to

a new trial. We disagree.

       This Court follows the Pierce6 test adopted by our Supreme Court to

review claims of ineffective assistance of counsel:

          When a petitioner alleges trial counsel’s ineffectiveness in
          a PCRA petition, he must prove by a preponderance of the
          evidence that his conviction or sentence resulted from
          ineffective   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. We have
          interpreted this provision in the PCRA to mean that the
          petitioner must show: (1) that his claim of counsel’s
          ineffectiveness has merit; (2) that counsel had no
          reasonable strategic basis for his action or inaction; and
____________________________________________


6
    Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987).



                                           -7-
J-A06040-15


        (3) that the error of counsel prejudiced the petitioner-i.e.,
        that there is a reasonable probability that, but for the error
        of counsel, the outcome of the proceeding would have
        been different. We presume that counsel is effective, and
        it is the burden of Appellant to show otherwise.

Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004), appeal

denied, 889 A.2d 87 (Pa.2005), cert. denied, 547 U.S. 1129, 126 S.Ct 2029,

164 L.Ed.2d 782 (2006) (internal citations and quotations omitted).        The

petitioner bears the burden of proving all three prongs of this test.

Commonwealth v. Meadows, 787 A.2d 312, 319-320 (Pa.2001).                “If an

appellant fails to prove by a preponderance of the evidence any of the

Pierce prongs, the Court need not address the remaining prongs of the

test.” Commonwealth v. Fitzgerald, 979 A.2d 908, 911 (Pa.Super.2009),

appeal denied, 990 A.2d 727 (2010) (citation omitted).

     In his first and third issues, Appellant claims counsel was ineffective

for failing to present a self-defense or manslaughter defense.       Appellant

argues counsel should have called certain witnesses who would have

testified that Victim had a gun, made threatening comments about

Appellant, and had a history of violent behavior. He claims that testimony

from these witnesses would have supported a self-defense or manslaughter

defense. Further, Appellant contends counsel was aware of the existence of

the witnesses and other evidence of Victim’s violence and that counsel’s

failure to call the witnesses and present a self-defense or manslaughter

defense was ineffective. We disagree.



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J-A06040-15


        To obtain relief on a missing witness claim, the appellant is required to

establish that (1) the witness existed; (2) the witness was available; (3)

counsel was informed of the existence of the witness or counsel should

otherwise have known of him; (4) the witness was prepared to cooperate

and testify for appellant at trial; and (5) the absence of the testimony

prejudiced appellant so as to deny him a fair trial.          Commonwealth v.

Stanley, 632 A.2d 871, 872 (Pa.1993) (citing Commonwealth v. Petras,

534 A.2d 483, 485 (Pa.Super.1987)). It is the appellant’s responsibility to

show that counsel was actually aware of the witness’s existence or had a

duty to know of the witness. Id. “Moreover, Appellant must show how the

uncalled witnesses’ testimony would have been beneficial under the

circumstances of the case.”      Commonwealth v. Gibson, 951 A.2d 1110,

1134 (Pa.2008) (internal citations omitted).

        Here, because Appellant and counsel chose to employ a strategy of

poking holes in the prosecution’s case and not to pursue a defense of

voluntary manslaughter or self-defense, Appellant did not show how the

uncalled witnesses’ testimony would have been beneficial under the

circumstances of the case. See Gibson, supra..

        “Under Pennsylvania law, a homicide defendant is entitled to a charge

on involuntary or voluntary manslaughter only if the evidence adduced at

trial   would    reasonably    support    a    verdict   on   such   a   charge.”




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J-A06040-15


Commonwealth v. Soltis, 687 A.2d 1139, 1141 (Pa.Super.1996), appeal

denied, 695 A.2d 786 (Pa.1997).

      Voluntary manslaughter is defined by statute:

         § 2503. Voluntary manslaughter

         (a) General rule.--A person who kills an individual
         without    lawful    justification     commits      voluntary
         manslaughter if at the time of the killing he is acting under
         a sudden and intense passion resulting from serious
         provocation by:

            (1) the individual killed; or

            (2) another whom the actor endeavors to kill, but he
         negligently or accidentally causes the death of the
         individual killed.

18 Pa.C.S. § 2503.

      To establish a claim of self-defense, a defendant must prove three

elements:   “(a) [that the defendant] reasonably believed that he was in

imminent danger of death or serious bodily injury and that it was necessary

to use deadly force against the victim to prevent such harm; (b) that the

defendant was free from fault in provoking the difficulty which culminated in

the slaying; and (c) that the [defendant] did not violate any duty to retreat.”

Commonwealth         v. Mouzon, 53 A.3d 738, 740-41 (Pa.2012) (internal

footnotes omitted). Although the burden is on the Commonwealth to prove

beyond a reasonable doubt that the defendant was not acting in self-

defense, “before the defense is properly in issue, there must be some

evidence, from whatever source, to justify such a finding.” Id. at 741.


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J-A06040-15


     Here, there was not enough evidence to support a finding of voluntary

manslaughter or self-defense. See Soltis, supra; Mouzon, supra. Based

on evidence that Appellant shot Victim in the back four times and Appellant’s

unwillingness to testify or admit that he shot Victim, Appellant and counsel

chose to employ a strategy of poking holes in the prosecution’s case instead

of presenting a self-defense or voluntary manslaughter defense.        For this

reason, counsel had no reason to call witnesses who might have said that

Victim had a gun or was violent. The PCRA court reasoned:

        Trial counsel cannot be deemed ineffective for failing to
        call witnesses to support defenses which were not options
        available to trial counsel at the time of trial.

                                 *     *      *

        The evidence in this case did not support a claim of serious
        provocation by the victim causing a sudden and intense
        passion by [Appellant] resulting in [Victim’s] death. There
        were two incidents which involved arguments between
        appellant and [Victim] but neither could be characterized
        as involving a serious provocation by [Victim] causing
        [Appellant] to react with a sudden and intense passion.
        The evidence established that there had been an exchange
        of words without a physical confrontation. The record is
        devoid of evidence of sudden and intense serious
        provocation which would have supported a voluntary
        manslaughter instruction.

                                 *     *      *

        The evidence in this case did not support a claim of
        necessity due to imminent danger of death, great bodily
        harm, or the commission of a felony, resulting in [Victim’s]
        death. There was no testimony to suggest that [Appellant]
        was fearful of [Victim] or believed that [Victim] had a
        weapon. Additionally, the testimony at trial established
        that once [Victim] began to run away from [Appellant],

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J-A06040-15


         [Appellant] continued shooting and hit [Victim] four times
         in the back. The record is devoid of any evidence of
         necessity which would justify a finding of self-defense.
         This claim is therefore without merit.

PCRA Court Opinion at 5-7.

      We agree with the PCRA court’s determination that Appellant’s first

and third issues lack merit.

      In his second issue, Appellant complains that counsel was ineffective

for failing to call Appellant as a witness to support a self-defense theory. We

disagree.

      We observe:

         The decision of whether or not to testify on one’s own
         behalf is ultimately to be made by the defendant after full
         consultation with counsel. In order to sustain a claim that
         counsel was ineffective for failing to advise the appellant of
         his rights in this regard, the appellant must demonstrate
         either that counsel interfered with his right to testify, or
         that counsel gave specific advice so unreasonable as to
         vitiate a knowing and intelligent decision to testify on his
         own behalf.

Commonwealth v. Michaud, 70 A.3d 862, 869 (Pa.Super.2013) (citing

Commonwealth v. Nieves, 746 A.2d 1102 (Pa.2000).

         [U]nless appellant can show that counsel interfered with
         his freedom to decide to testify or unless appellant can
         point to specific advice of counsel so unreasonable as to
         vitiate a knowing and intelligent decision to testify,
         appellant cannot succeed on an ineffective assistance of
         counsel claim.

Com. v. Bango, 685 A.2d 564, 567 (Pa.Super.1996) aff'd, 742 A.2d 1070

(Pa.1999).



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J-A06040-15


      In the instant case, the PCRA court properly determined that

Appellant’s second claim lacks merit. The court gave Appellant a thorough

colloquy of his absolute right to testify or not to testify. Appellant admitted

at his PCRA hearing that he chose not to testify, despite his attorney’s

contrary advice. Further, as discussed above, the instruction of self-defense

was not appropriate, and Appellant’s testimony would not have altered the

conclusion.

      In his fourth issue, Appellant argues counsel was ineffective for

eliciting evidence of Appellant’s prior criminal activity, and for mentioning it

during her closing argument. Again, we disagree with Appellant.

      Appellant’s counsel had a strategic basis for mentioning possible

criminal activity in her closing argument, namely giving the jury some

possible reasons, other than murder, that could make a person run from the

police. Thus, his claim lacks merit. See Pierce, supra.

      The trial court reasoned:

         A review of the record does not indicate that trial counsel
         introduced evidence that [Appellant] had engaged in prior
         criminal activity. During cross-examination of Detective
         Jay, trial counsel elicited testimony as to whether there
         were any controlled substances in the house, and he
         responded that crack cocaine was found. In trial counsel’s
         closing argument, she stated that [Appellant] was running
         from the police on the night of the incident, but that this
         fact was not necessarily indicative of [Appellant’s] guilt.
         She suggested to the jury that there are many reasons
         why one would run from the police, and stated, “Maybe
         you have a probation violation...maybe you failed to
         appear for a bench warrant...maybe there’s drugs in the
         house.” This does not constitute a statement or inference

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J-A06040-15


         to the jury that [Appellant] had a prior criminal record.
         Trial counsel testified that she had strategically offered
         these suggestions to the jury as a way of countering the
         Commonwealth’s argument that [Appellant] “was running
         away from knowing that he was going to be arrested for
         murder.” Although trial counsel did let in evidence that
         [Appellant] had a probation or parole violation which would
         have generated a warrant, this was relevant for the
         aforementioned purposes of furnishing the context and
         completing the story of the events surrounding the
         incident. Furthermore, trial counsel testified that she had
         discussed this decision with [Appellant] prior to the start of
         trial and that he never took issue with the proposed
         strategy.

         In the Commonwealth’s opening, the prosecutor made a
         statement that [Appellant] was friends with the
         Commonwealth’s witnesses, was with them the night of
         the incident, and that these witnesses had criminal
         histories. Trial counsel states that the reason she did not
         object to this portion or any other of the Commonwealth’s
         opening was because she believed “That was his
         explanation of why his witnesses were less than forthright
         and changed their stories, which was part of my defense
         as well.” Trial counsel neither elicited testimony nor stated
         that [Appellant] had engaged in prior criminal activity. This
         claim is therefore without merit.

Trial Court Opinion at 8-9.

      In his final issue, Appellant attempts to obtain PCRA relief by claiming

he has newly discovered evidence, specifically a notarized letter from a

fellow inmate, John Webb, who explains Victim had a gun. Appellant argues

that testimony of Mr. Webb would support a self-defense theory for

Appellant.

      To be eligible for PCRA relief based on after acquired evidence, the

appellant must plead and prove by a preponderance of the evidence “[t]he


                                     - 14 -
J-A06040-15


unavailability at the time of trial of exculpatory evidence that has

subsequently become available and would have changed the outcome of the

trial if it had been introduced.” 42 Pa.C.S. § 9543 (a)(2)(vi). A petitioner

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

could not have been obtained at or prior to trial through reasonable

diligence; (2) the evidence is not cumulative; (3) it is not being used solely

to impeach credibility; and (4) it would likely compel a different verdict.”

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

Commonwealth v. Abu-Jamal, 720 A.2d 79, 94 (Pa.1998)).

      Appellant is attempting to introduce a letter written after the trial from

a fellow inmate that Appellant claims had a conversation with a witness. He

fails to plead and prove that this letter is exculpatory evidence that was not

available at the time of trial, has subsequently become available, and would

change the outcome of the trial.     See D’Amato, supra.        The trial court

reasoned:

         The letter is unsubstantiated hearsay from a convicted
         felon regarding a conversation he allegedly had with a
         Commonwealth witness after trial. Additionally, two eye
         witnesses at trial, Rashaad Carroll and Jabree Branch, both
         testified regarding the shooting and death of [Victim] at
         trial.   Neither Caroll nor Branch, who is a friend of
         [Appellant], testified that [Victim] was carrying a handgun
         prior to being shot. This claim is therefore without merit.

PCRA Court Opinion at 10.




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J-A06040-15


     We   see   no     reason   to   disturb   the   PCRA   court’s   findings   or

determinations because they are supported by the evidence and free of legal

error. See Barndt, supra. Accordingly, we affirm.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/26/2015




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