J-S09044-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHRISTOPHER KENNEDY                        :
                                               :
                       Appellant               :   No. 2083 EDA 2019

               Appeal from the PCRA Order Entered July 8, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0310461-2003


BEFORE:      SHOGAN, J., LAZARUS, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                                 FILED JUNE 24, 2020

        Appellant, Christopher Kennedy, appeals from the order of the Court of

Common Pleas of Philadelphia County (trial court) that dismissed the portion

of his first petition filed under the Post Conviction Relief Act (“PCRA”) 1 that

challenged his conviction for first-degree murder and other offenses. After

careful review, we affirm.

        On July 29, 2004, Appellant was convicted by a jury of first-degree

murder, robbery, conspiracy, possession of an instrument of crime, and

carrying a firearm on the public streets 2 for fatally shooting a store manager


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1   42 Pa.C.S. §§ 9541–9546.
2   18 Pa.C.S. §§ 2502(a), 3701(a)(1)(i), 903, 907(b), and 6108, respectively.
J-S09044-20


while robbing the store. Appellant was tried with three co-defendants, James

Richardson, Jamaar Richardson, and Lavar Brown, all of whom were convicted

on the same date of second-degree murder, robbery, conspiracy, and other

offenses.

      The evidence at trial showed that Appellant was arrested leaving the

scene of the murder and robbery with the murder weapon and cash from the

store’s safe in his possession. Two police officers, Officer McDonnell and his

partner, Officer Ewald, were flagged down by a store security guard and

arrived at the store while the robbery was in progress. N.T., 7/20/04, at 180-

82, 214-16. Officer McDonnell testified that he went to the front of the store

and heard a gunshot from inside the store and called out to his partner that

there was gunfire. Id. at 181-82. Officer Ewald testified that after he heard

Officer McDonnell call out that there was gunfire, he looked through the store

window and saw Appellant inside the store. Id. at 217-19, 227-28. Officer

Ewald testified that Appellant was walking toward the front of the store but

that after they made eye contact, Appellant ran toward the back of the store.

Id. at 217-22.

      Both officers ran to the back of the store and Officer Ewald radioed for

additional police backup. N.T., 7/20/04, at 183, 222. Officers McDonnell and

Ewald both testified that a few seconds after they reached the back of the

store, they saw Appellant come out of the back of the store with a black

revolver in one hand and a trash bag in the other. Id. at 184-87, 192, 222-


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24. The officers testified that they ordered Appellant to drop the weapon and

that Appellant began to run and dropped the gun. Id. at 185, 187, 191-92,

222-24, 260-61.     Officers McDonnell and Ewald pursued Appellant, who

dropped the trash bag in the street as he continued to flee, and caught him

and took him into custody. Id. at 185, 192-93, 197-99, 223, 225. Officer

McDonnell testified that he retrieved the plastic trash bag that Appellant had

dropped after Appellant was apprehended and found that it contained

approximately $2,200 in cash. Id. at 193-94. Both officers testified they kept

an eye on the back door of the store during the chase and that no one else

came out the back of the store. Id. at 198-99, 225-26.

      Officer Anderson responded to Officer Ewald’s call for assistance and

arrived at the store less than a minute after that call. N.T., 7/21/04, at 23-

26. Officer Anderson testified that he found the victim inside the store lying

in blood in the manager’s office near the safe, with a bullet hole in the side of

his head and a leg wound. Id. at 26-29, 32-33, 35-42. Officer Anderson

further testified that he looked around the store to determine whether anyone

else was in the store and saw no one in the store other than the victim. Id.

at 29-31. The only person other than the victim that police found in the store

was a customer who had hidden in the bathroom and called police. Id. at 76-

77, 81-87.

      The gun that Appellant was holding as he left the store was a Ruger .44

caliber revolver. N.T., 7/21/04, at 149-50; N.T., 7/22/04, at 26-27; N.T.,


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7/20/04, at 187-88, 227. Three fired cartridge cases were found in that gun.

N.T., 7/21/04, at 150-53, 162.          A ballistics expert testified that the three

cartridge cases were fired in that gun and that the bullet fragments found in

the store after the murder that contained markings that could be analyzed

were all fired from that gun. N.T., 7/22/04, at 26-27, 46-47, 53-54. A DNA

identification expert testified that dried bodily fluid found on the gun matched

the victim’s DNA profile. Id. at 63-67.

        The medical examiner who performed an autopsy on the victim opined

that the victim was killed by gunshot wounds to his head and his leg. N.T.,

7/26/04, at 210-12, 229, 232.            The medical examiner testified that the

victim’s head wound had gunpowder stippling and that this showed that the

shot to the head was fired from close range, approximately a foot away. Id.

at 213-18, 221-23. The victim’s leg wound, however, did not show signs of

having been fired at close range. Id. at 224-25.

        The Commonwealth introduced testimony from a number of other

witnesses, including the store security guard and a cashier, both of whom ran

from the store after they heard a gunshot and identified Appellant as being in

the store,3 the customer who hid in the bathroom, who heard the robber

talking to the victim,4 and two cooperating witnesses, Ronald Vann and Kianna



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3   N.T., 7/20/04, at 40, 60-63, 131-36.
4   N.T., 7/19/04, at 270-84.

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Lyons, who testified concerning the planning of the robbery.                  The

Commonwealth also introduced statements that two of Appellant’s co-

defendants gave to the police as evidence against those co-defendants.

      Appellant testified in his defense.      In both his testimony and the

statement that he gave to the police, which his counsel introduced in evidence,

Appellant admitted that he committed the robbery and that he shot the victim

in the leg. N.T., 7/27/04, at 165-68, 203-05, 207, 249-53, 289; Ex. D-12.

Appellant admitted that after shooting the victim in the leg, he lifted the victim

up, took him to the store’s safe, had the victim open the safe, and took the

money that was in the safe. N.T., 7/27/04, at 167-68, 171, 200-02, 206-10,

212-13, 250-53; Ex. D-12. Appellant also admitted that the gun retrieved by

police at the scene that had the victim’s bodily fluid on it was his gun and that

he had fired it only once before the robbery. N.T., 7/27/04, at 184-85, 196-

97.

      Appellant denied that he shot the victim in the head and contended that

he walked away to leave through the front of the store after taking the money

and heard a gunshot and ducked and headed to the back of the store. Id. at

168-70, 218-21. Appellant testified, however, that he did not see anyone else

in the store or any gun in the store other than the one that he was carrying.

Id. at 198-99, 202, 208-09, 215-17, 220, 230. Indeed, Appellant admitted

on cross-examination that if he found any people in the store, he wanted to

shoot them to get rid of witnesses. Id. at 223-24. Appellant also denied that


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his co-defendants were involved in the robbery and testified that he discussed

robbing the store with a person whose name he did not know and that this

unidentified person told him the layout of the store. Id. at 164-66, 170-72,

186, 191-92, 194-96, 250-53; Ex. D-12.

      The jury found Appellant guilty of first-degree murder, robbery,

conspiracy, possession of an instrument of crime, and carrying a firearm on

the public streets, and, following a penalty phase hearing, set the penalty at

death. On November 20, 2008, the Pennsylvania Supreme Court affirmed

Appellant’s judgment of sentence. Commonwealth v. Kennedy, 959 A.2d

916 (Pa. 2008). The United States Supreme Court denied certiorari on May

26, 2009. Kennedy v. Pennsylvania, 556 U.S. 1258 (2009).

      Appellant timely filed a PCRA petition on August 25, 2009. Between

2009 and 2017, Appellant filed amended PCRA petitions, and on August 11,

2017, the trial court appointed new PCRA counsel for Appellant.              On

September 18, 2018, Appellant’s new PCRA counsel filed the consolidated

amended PCRA petition at issue in this appeal. In this PCRA petition, Appellant

challenged both his convictions and the penalty phase of his trial.       In its

response, the Commonwealth opposed Appellant’s claims with respect to the

guilt-phase portion of his trial, but conceded that Appellant received

ineffective assistance of counsel in the penalty phase of his trial. On February

12, 2019, Appellant filed a motion for discovery with respect to claims in his

PCRA petition.


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          On March 11, 2019, following a hearing limited to Appellant’s penalty

phase claims, the trial court granted the PCRA petition with respect to the

penalty phase of Appellant’s trial. The Commonwealth did not seek a new

penalty hearing, and the trial court, on March 13, 2019, re-sentenced

Appellant to life imprisonment for his first-degree murder conviction and to

lesser concurrent terms of imprisonment for the other offenses.

           On June 5, 2019, the trial court denied Appellant’s motion for discovery

with respect to the guilt-phase portion of his PCRA petition. The trial court,

on June 12, 2019, issued a notice pursuant to Pa.R.Crim.P. 907 of its intent

to dismiss Appellant’s guilt-phase claims without a hearing on the ground that

they were without merit, and on July 8, 2019, dismissed the remaining, guilt-

phase portion of Appellant’s PCRA petition.             This timely appeal followed.

Because Appellant has been resentenced to life imprisonment, that sentence

has not been appealed, and Appellant is therefore not subject to any possibility

of    a    death   sentence,   this   Court    has   jurisdiction   over   this   appeal.

Commonwealth v. Miller, 212 A.3d 1114, 1122-23 (Pa. Super. 2019).

          Appellant presents 11 issues for review in his brief:

          I. Whether the PCRA court erroneously denied Kennedy’s
          Batson5-ineffectiveness claim when it ignored most of Kennedy’s
          discriminatory-motive evidence and applied a non-cumulative
          analysis? …

          II. When the Commonwealth admits it hid evidence [concerning
          witnesses Vann and Lyons], which was material to the conviction,
____________________________________________


5   Batson v. Kentucky, 476 U.S. 79 (1986).

                                           -7-
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         should a new trial be granted? If this evidence could have been
         discovered, were counsel ineffective?

         III. Should a capital defendant be tried jointly with three co-
         defendants when a good portion of the trial involves separate
         violent charges for which the capital defendant played no part?

         IV. When co-defendants’ redacted statements nonetheless
         identify defendant and when the prosecutor improperly connects
         the dots to identify defendant, should a new trial be granted?

         V. Can a trial court prohibit defendant from consulting with his
         attorney during recess on the last day of trial when end-of-trial
         strategy and decisions would be discussed?

         VI. Was the court’s         reasonable     doubt   jury   instruction
         unconstitutional?

         VII. Did counsel ineffectively fail to litigate the improper admission
         of [Vann’s and Lyons’] proffer statements?

         VIII. Did counsel unreasonably fail to investigate and present
         viable guilt-phase defenses based on readily-available facts?

         IX. Can the Commonwealth add a conspiracy charge without
         permission after preliminary hearing? Were counsel ineffective?

         X. When petitioner makes necessary, detailed PCRA-discovery
         requests, should discovery be granted? Can the court postpone
         ruling on that request to change the governing standard?

         XI. Does cumulative prejudice compel relief?

Appellant’s Brief at 2.

         We review the denial of a PCRA petition to determine whether the record

supports the PCRA court’s findings and whether its decision is free of legal

error.     Commonwealth v. Housman, 226 A.3d 1249, 1260 (Pa. 2020);

Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018); Miller, 212

A.3d at 1123. Appellant’s first issue and third through ninth issues are all

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predicated on claims of ineffective assistance of Appellant’s trial and/or

appellate counsel, as they involve claims of error that could have been raised

at trial and argued on direct appeal. We address these ineffective assistance

of counsel issues first and reorder them as follows: we address Appellant’s

first issue first, followed by his sixth, eighth, and ninth issues, followed by his

third through fifth and seventh issues. We then address Appellant’s second

issue, a claim under Brady v. Maryland, 373 U.S. 83 (1963), and his tenth

and eleventh issues, concerning PCRA discovery and cumulative prejudice.

          A. Appellant’s Ineffective Assistance of Counsel Claims

      To be entitled to relief under the PCRA on a claim of ineffective

assistance of counsel, the convicted defendant must prove: (1) that the

underlying legal claim is of arguable merit; (2) that counsel’s action or inaction

had no reasonable basis; and (3) that he suffered prejudice as a result of

counsel’s action or inaction. Housman, 226 A.3d at 1260; Wholaver, 177

A.3d at 144; Miller, 212 A.3d at 1126. The defendant must satisfy all three

prongs of this test to obtain relief under the PCRA. Housman, 226 A.3d at

1260-61; Wholaver, 177 A.3d at 144; Miller, 212 A.3d at 1126.

                          1. Appellant’s Batson Claim

      In his first issue, Appellant argues that his trial counsel was ineffective

for failure to object to the Commonwealth’s use of its peremptory challenges

in jury to exclude non-whites and women from his jury in violation of Batson

v. Kentucky, 476 U.S. 79 (1986). Where, as here, a claim under Batson is


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not raised at trial and is asserted for the first time in an ineffective assistance

of counsel claim in a PCRA petition, the defendant must not merely show that

the prosecutor struck jurors of a particular race or gender, but must put forth

evidence that the prosecutor engaged in actual, purposeful discrimination.

Commonwealth v. Rivera, 199 A.3d 365, 386 (Pa. 2018); Commonwealth

v. Hutchinson, 25 A.3d 277, 287 (Pa. 2011); Commonwealth v. Ligons,

971 A.2d 1125, 1142 (Pa. 2009);6 Commonwealth v. Uderra, 862 A.2d 74,

86-87 (Pa. 2004).7

       Appellant’s claim of discriminatory use of peremptory challenges is

based primarily on statistical analyses of the percentages of prospective jurors

of different races and genders that the prosecutors struck in this case,

comparison of prospective jurors that the prosecutors struck and accepted in

this case, and statistical evidence of disproportionate use of peremptory

challenges against African-Americans by one of his prosecutors in other cases

and by the Philadelphia district attorney’s office as a whole. Appellant’s jury

included at least three African-Americans and seven women, and all of these


____________________________________________


6 While a majority of the justices did not join the opinion of the Court in
Ligons, all of the justices joined the portion of that opinion concerning the
appellant’s PCRA Batson challenge, and the Court’s rulings and reasoning on
that issue are therefore binding precedent. Ligons, 971 A.2d at 1159 n.1,
1170.
7Appellant’s contention that he is not required to satisfy this burden is without
merit. The United States Supreme Court decisions relied on by Appellant that
upheld Batson challenges all involved challenges to the prosecution’s
peremptory strikes that were raised at trial.

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minority and female jurors were accepted by the prosecutors when the

Commonwealth had not exhausted its peremptory strikes. Appellant’s Brief

at 23-24; N.T., 7/14/04, at 326-27. The charges against Appellant also had

no racial issues or overtones; both the murder victim and all defendants were

African-American.

      In such circumstances, statistical analyses without any proffer of

evidence that the prosecutor was motivated by race or gender are as a matter

of law insufficient to satisfy the burden in an ineffective assistance of counsel

Batson claim of showing actual, purposeful discrimination. Rivera, 199 A.3d

at 386-87 (“showing that a prosecutor struck a greater percentage of

minorities   than   whites    is   inadequate   to   prove   actual,   purposeful,

discrimination by a preponderance of the evidence”); Hutchinson, 25 A.3d

at 287-88 (disproportionate use of peremptory challenges against African-

Americans and statistics showing that the prosecutor, who was one of the

prosecutors in Appellant’s case, had a history of disproportionately striking

African-Americans were insufficient to show actual, purposeful, discrimination

where jury consisted of 3 African-Americans, 8 whites and 1 person of

unknown race); Ligons, 971 A.2d at 1142-46 (disproportionate use of

peremptory    challenges     against   African-Americans     and   comparison   of

prospective jurors that were stricken and accepted were insufficient to show

actual, purposeful, discrimination where jury included African-Americans that

the prosecutor accepted before exhausting peremptory challenges, there was


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no evidence of discriminatory or race-conscious remarks by the prosecutor in

that case, and the defendant and victim were of the same race).8 Appellant’s

analyses of the percentages of prospective jurors of different races and

genders that the prosecutors struck in this case and other cases and his

comparison of prospective jurors struck and accepted in this case are

therefore insufficient to satisfy his burden of proof.

       Appellant submitted no evidence that any purposeful discrimination

occurred in the jury selection for his trial. The only evidence of discriminatory

intent submitted by Appellant consisted of trainings by other prosecutors in

the same office in 1987 and 1990, over 10 years earlier. This evidence of

advocacy of discriminatory use of peremptory challenges by other prosecutors

in the same office years before Appellant’s trial is insufficient to show actual,

purposeful, discrimination by the prosecutors in his case. Rivera, 199 A.3d

at 385-87 & n.14; Hutchinson, 25 A.3d at 288-89; Uderra, 862 A.2d at 82,

87. Indeed, our Supreme Court has specifically held that the identical training

evidence was insufficient to show discrimination by the same prosecutor who




____________________________________________


8 Neither Commonwealth v. Edwards, 177 A.3d 963 (Pa. Super. 2018), nor
Commonwealth v. Jackson, 562 A.2d 338 (Pa. Super. 1989) (en banc),
supports Appellant’s contention that such evidence is sufficient to satisfy his
burden here. Both of those cases involved review on direct appeal of Batson
claims that were the preserved at trial, not the showing that the defendant
must make on a PCRA ineffective assistance of counsel Batson claim.
Edwards, 177 A.3d 968-69; Jackson, 562 A.2d at 341.

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was one of the prosecutors at Appellant’s trial. Hutchinson, 25 A.3d at 288-

89.

      The lone item of evidence submitted by Appellant concerning the

decision-making of either of the prosecutors in his case consists of testimony

of one of those prosecutors concerning the reasons for his peremptory

challenges in an unrelated 1997 murder trial. Evidence from an unrelated

case tried years before is insufficient to show discrimination in the selection

of Appellant’s jury. Ligons, 971 A.2d at 1145 (judicial ruling that prosecutor

had violated Batson in another trial years earlier and notes from that and

another trial were insufficient to show discrimination in jury selection for

defendant’s trial). Moreover, nothing in that transcript shows discriminatory

intent or deliberate racial or gender-based exclusion of jurors on the part of

that prosecutor. To the contrary, that transcript shows that the prosecutor

was himself African-American and that he disagreed with the training tape on

which Appellant relies that advocated discriminatory use of peremptory

challenges, calling it “insulting” and “an abomination.” Docket Entry No. 34,

Appellant’s Reply in Support of PCRA Petition Ex. 5 at 94-97.

      Because the evidence proffered by Appellant was insufficient to show

that the prosecutors engaged in purposeful discrimination in their exercise of

peremptory challenges in the jury selection in his case, the trial court did not

err in denying Appellant’s Batson claim without a hearing.




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               2. Appellant’s Sixth, Eighth, and Ninth Issues

      These three claims all fail because Appellant cannot satisfy the first

requirement of a claim of ineffective assistance of counsel, that the claim have

arguable merit.

      In his sixth issue, Appellant argues that trial counsel was ineffective for

failing to object to the trial court’s instruction that “[a] reasonable doubt is

the kind of doubt that would cause a reasonably careful and sensible person

to pause or hesitate or refrain before acting on a matter of the highest

importance in his or her own affairs, or to his or her own interests.” N.T.,

7/28/04, at 182. Contrary to Appellant’s assertions, this instruction does not

limit reasonable doubt to doubts that would cause a person to refrain from

acting; rather, it is in the disjunctive and specifically instructs the jury that a

reasonable doubt also exists if it would cause a person to pause or hesitate

before acting. Uderra, 862 A.2d at 92. Such an instruction therefore does

not constitute reversible error. Id.; Commonwealth v. Trippett, 932 A.2d

188, 200 (Pa. Super. 2007).        Because the instruction did not constitute

reversible error, Appellant’s trial counsel cannot be found ineffective for failure

to object. Uderra, 862 A.2d at 92.

      In his eighth issue, Appellant argues that trial counsel was ineffective in

failing to investigate two defenses, diminished capacity and the contention

that there was a second shooter.       Diminished capacity, however, was not

available as a defense in this case. The law is clear that diminished capacity


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can be asserted as a defense only where the defendant admits that he killed

the victim.   Commonwealth v. Tharp, 101 A.3d 736, 756 (Pa. 2014);

Hutchinson, 25 A.3d at 312–14; Commonwealth v. Birdsong, 24 A.3d

319, 333 (Pa. 2011).

      A defense of diminished capacity, whether grounded in mental
      defect or voluntary intoxication, is an extremely limited defense
      available only to those defendants who admit criminal liability but
      contest the degree of culpability based upon an inability to
      formulate the specific intent to kill. “Absent an admission from the
      defendant that he had shot and killed the victim, trial counsel
      could not have presented a diminished capacity defense.” If a
      defendant does not admit that he killed the victim, but rather
      advances an innocence defense, then evidence on diminished
      capacity is inadmissible.

Hutchinson, 25 A.3d at 312 (citations, brackets, and footnote omitted)

(quoting Commonwealth v. Spotz, 896 A.2d 1191 (Pa. 2006)). Appellant

in his testimony at trial specifically denied killing the victim. N.T., 7/27/04,

at 168-70.    Because Appellant denied killing the victim, even though that

denial was implausible, his trial counsel could not assert a diminished capacity

defense and therefore cannot be found ineffective to failure to investigate or

present such a defense. Tharp, 101 A.3d at 756; Hutchinson, 25 A.3d at

312–14; Birdsong, 24 A.3d at 333.

      Appellant’s claim that his trial counsel was ineffective for failure to

investigate and present evidence of a second shooter likewise fails. Appellant

does not point in his brief to any evidence of a possible second shooter in the

store at the time of the murder that could have been uncovered and presented

if counsel had conducted an additional investigation. Rather, the support for

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this claim that Appellant cites in his brief consists largely of evidence that was

in fact presented at trial. Appellant’s Brief at 49-54, 83.9 To the extent that

Appellant claims that his trial counsel did not pursue this defense at trial, it is

contradicted by the trial transcript, which demonstrates that Appellant’s trial

counsel argued to the jury that the evidence supported the conclusion that

the victim was killed by another person who was in the store. N.T., 7/28/04,

at 78-84, 86-87.

       In his ninth issue, Appellant argues that trial counsel was ineffective for

failing to move to dismiss the conspiracy charge that the Commonwealth filed

against him. This claim is based on the fact that the charges that had been

filed against Appellant at the time of his preliminary hearing on March 12,

2003 included first-degree murder, robbery, possession of an instrument of

crime, and carrying a firearm on the public streets, but did not include

conspiracy, and that the conspiracy charge was added by an information filed

after the preliminary hearing.




____________________________________________


9 To the extent that Appellant attempts to incorporate his consolidated
amended PCRA petition by reference in this and his other arguments,
Appellant’s Brief at 9, 14-15, 22-24, 35, 37, 43 n.16, 44-46, 82-83, such
incorporation is improper and the incorporated material is not to be considered
by this Court. Housman, 226 A.3d at 1264; Commonwealth v. Briggs, 12
A.3d 291, 342-43 (Pa. 2011). We, accordingly, address only the arguments
made in Appellant’s briefs in this Court and the evidence supporting those
arguments that Appellant has referenced in his briefs in this Court and do not
consider matters set forth only in Appellant’s consolidated amended PCRA
petition or other trial court pleadings or briefs.

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      Where the defendant is fully aware of the additional charge well in

advance of trial and the charge has not been specifically rejected as lacking

in probable cause, the Commonwealth is permitted to file an amended

information that sets forth a new charge against the defendant arising out of

the same set of events subsequent to the defendant’s preliminary hearing.

Commonwealth v. Sinclair, 897 A.2d 1218, 1222-24 (Pa. Super. 2006)

(amendment to add different driving under the influence charge permitted on

day of trial where defendant did not show that timing of new charge prejudiced

him); Commonwealth v. Fuller, 579 A.2d 879, 883, 885 (Pa. Super. 1990)

(Commonwealth permitted to amend information to add different, aggravated

assault charge immediately prior to trial where timing of amendment did not

prejudice defendant’s ability to defend); Commonwealth v. Womack, 453

A.2d 642, 646 (Pa. Super. 1982) (Commonwealth permitted to amend

information to add conspiracy charge on day of trial where defendant was

aware of conspiracy charge long before trial).

      The purpose of Pa.R.Crim.P. 564’s limitations on the Commonwealth’s

power to amend an information “is to ensure that a defendant is fully apprised

of the charges, and to avoid prejudice by prohibiting the last minute addition

of   alleged   criminal   acts   of   which     the   defendant   is   uninformed.”

Commonwealth v. Roser, 914 A.2d 447, 453 (Pa. Super. 2006) (quoting

Sinclair).     If there is no showing of such prejudice, amendment of an




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information to add an additional charge is proper even on the day of trial.

Sinclair, 897 A.2d at 1224.

       Here, the information adding the conspiracy charge was filed on March

28, 2003, over a year and three months before Appellant’s trial. Docket Entry

No. 25, Fourth Supplemental Amended PCRA Petition Ex. 5.                Appellant

therefore had ample notice of the conspiracy charge and the allegations on

which it was based and could not have been prejudiced by the timing of the

Commonwealth’s information that added this charge.10 Given the absence of

prejudice from the timing of the addition of the conspiracy charge, a motion

to dismiss that charge would not have succeeded in removing that charge

from the case, and Appellant’s trial counsel cannot be found ineffective for

failing to file such a motion. Womack, 453 A.2d at 646.

           3. Appellant’s Third, Fourth, Fifth, and Seventh Issues

       Appellant’s remaining claims of ineffective assistance of counsel all fail,

regardless of whether the underlying claims of error have any merit, because

Appellant cannot prove prejudice. To prove prejudice, Appellant must show

that there is a reasonable probability that, but for counsel’s error, the result

of the proceeding would have been different. Commonwealth v. Jones, 210



____________________________________________


10 Indeed, although conspiracy was an additional charge, it did not change the
nature of the more serious first-degree murder charge or the robbery and
other charges against Appellant, as those charges were based on Appellant’s
own actions of committing the robbery and killing the victim, not on the acts
of his co-defendants.

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A.3d 1014, 1018-19 (Pa. 2019); Hutchinson, 25 A.3d at 285. A reasonable

probability of a different result sufficient to show prejudice is a probability

sufficient to undermine confidence in the outcome. Jones, 210 A.3d at 1019;

Commonwealth v. Postie, 200 A.3d 1015, 1023 (Pa. Super. 2018) (en

banc). This inquiry “requires consideration of the totality of the evidence” at

Appellant’s trial.   Postie, 200 A.3d at 1023 (quoting Commonwealth v.

Spotz, 870 A.2d 822 (Pa. 2005)).

      Appellant’s third, fourth, and seventh issues all involve alleged errors

with respect to evidence admitted at trial or that affected the evidence at trial.

In his third issue, Appellant argues that the joinder of his case with his three

co-defendants was error and that his appellate counsel was ineffective for

failing to raise this issue on appeal. Appellant contends that as a result of the

joinder, evidence was admitted of an attempted robbery of the same store the

day before in which he was not involved and that the statements of two of his

co-defendants to the police and testimony concerning another out-of-court

statement by one of those co-defendants were admitted in evidence. In his

fourth issue, Appellant argues that his trial and appellate counsel were

ineffective with respect to the admission of the statements of two of his co-

defendants to the police and the alleged insufficiency of the redaction of the

references to him in those statements. In his seventh issue, Appellant asserts

that his trial and appellate counsel were ineffective with respect to the




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admission of prior consistent statements of the cooperating witnesses Vann

and Lyons.

      None of the above items provided any evidence of Appellant’s guilt that

was significant in comparison to the other evidence that Appellant committed

the robbery and murder.      The earlier robbery in which Appellant was not

involved did not provide any evidence on the issue of whether Appellant killed

the store manager in this robbery. Moreover, it could not have made the jury

think worse of Appellant, as Appellant not only was not implicated in that other

robbery, but admitted committing a similar crime and a worse crime in his

testimony, a robbery and an unprovoked shooting of the victim.            Given

Appellant’s own admissions, there is no basis to conclude that evidence of this

crime in which Appellant was not involved had any effect on the jury’s verdict.

Housman, 226 A.3d at 1262-63.

      Appellants’ co-defendants’ statements were redacted to remove

Appellant’s name.   Even if the redactions in James Richardson’s statement

were insufficient and the jury understood them to refer to him, that statement

only implicated Appellant in the robbery and conspiracy to rob the store and

placed him at the store when the robbery and murder were committed. N.T.,

7/26/04, at 146-58. Jamaar Richardson, who worked at the store, said in his

statement that he told “a couple of the guys” about the money in the store’s

safe, how many people would be in the store, and how to close the front gate

and exit the back of the store, and that he knew they were planning to rob


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the store. Id. at 269-78. Jamaar Richardson also stated that he was told by

Lyons that “one of the guys” was caught by the police, and that when the

others came back, he knew they had robbed the store because they were all

dressed in black clothes. Id. at 272, 274.

      Appellant testified that he robbed the store, shot the victim in the leg,

was in the store when the second shot was fired, and was caught by the police,

and that he discussed robbing the store before he went in, albeit with someone

whom he did not identify rather than his co-defendants. N.T., 7/27/04 at 164-

69, 171-72, 205, 207, 250-57; Ex. D-12. James and Jamaar Richardson’s

statements thus added no evidence of guilt beyond what Appellant admitted

and cannot show a reasonable probability that the jury’s verdict as to

Appellant would have been different in their absence.            While Jamaar

Richardson did say that he knew who killed the victim, his redacted statement

referred to that person only as someone who “lives in my neighborhood in the

projects.” N.T., 7/26/04 at 270. His redacted statement thus did not identify

Appellant as the murderer or provide evidence that Appellant shot the victim

in the head.

      The testimony of James and Jamaar Richardson’s cousin concerning a

statement that James Richardson made to another person at her house

likewise did not provide any evidence of Appellant’s guilt beyond the facts that

he admitted and that were thoroughly established by other witnesses whose

testimony was not challenged in this PCRA petition. Although this witness


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initially stated that she overheard James Richardson say that the robbery was

“fucked up” and that “they didn’t even get a chance to get anything because

[Appellant] killed the guy,” N.T., 7/26/04 at 92-93, she testified later that

what she heard James Richardson say was that Appellant “shot” the person

and that “I never heard no one got killed.” Id. at 123, 129-30. In addition,

it was clear from this witness’s testimony that James Richardson’s statement

concerning what Appellant did was based solely on the fact that he heard a

gunshot and saw Appellant come running out of the store. Id. at 104, 123.

As it was undisputed that Appellant shot the victim and ran out of the store

after the second, fatal gunshot, there is no reasonable likelihood that this

testimony affected the jury’s verdict.

      The portions of Vann’s and Lyons’ prior consistent statements that were

read at trial also did not provide any evidence concerning the commission of

the murder. In his prior statement, Vann stated that Appellant was armed

with a .44 caliber gun, that Appellant’s “job was to go in the store, grab the

manager guy, take him to the safe and get the money,” and that Appellant

went to the store. N.T., 7/22/04, at 347-56. Vann also stated that when they

were outside the store, co-defendant James Richardson said that Appellant

had “grabbed the manager,” and that Lyons later reported that Appellant “shot

him and they caught [Appellant] coming out the back.” Id. at 355-56. Lyons

stated in her prior statement that it was discussed in planning the robbery

that Appellant “was supposed to give the manager a leg shot” and that at the


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time of the robbery, she went to the store with Appellant, Vann and co-

defendants James Richardson and Lavar Brown, and that Appellant had a gun.

N.T., 7/26/04, at 62-69. Lyons’ statement further stated that she went in the

store and phoned one of Appellant’s co-defendants reporting who was in the

store, that she saw Appellant go into the store as she was leaving the store,

and that as she was walking home, she saw the police arrive and arrest

Appellant as he ran out the back of the store. Id. at 64-65. Appellant in his

testimony admitted all of these facts in Vann’s and Lyons’ statements – that

he went into the store armed with a .44 caliber gun and shot the store

manager in the leg, and that he had his hands on the manager, took the

manager to the safe, and got money from the safe.        Nothing in Vann’s or

Lyons’ statements asserted that they or anyone else saw Appellant shoot the

victim a second time in the head.

      The fact that the prior statements and the co-defendants’ statements

bolstered Vann’s and Lyons’ credibility likewise does not show prejudice. As

in their statements, neither Vann nor Lyons testified at trial that Appellant

shot the victim in the head or that they were present in the store when the

murder occurred.     Rather, as in their prior statements, these witnesses

testified that they were not in the store at that time and testified concerning

the planning of the robbery, the start of the robbery, and Appellant’s arrest.

Their testimony with respect to Appellant’s actions only established at most

that Appellant was armed, went into the store to commit the robbery, robbed


                                    - 23 -
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the store, and was caught by the police. N.T., 7/19/04, at 112-30, 154, 172;

N.T., 7/22/04, at 118-30, 139-46, 148-58, 177-84, 189-90.

       In his trial testimony and prior statement to police, Vann did also state

that before the robbery Appellant said that “the manager guy give him

anything, he going to kill him” and “Look, Man, if the dude get out of pocket

and don't want to give it up, I am going to kill him.” N.T., 7/22/04, at 143,

356-57.11 Appellant contends that these statements were critical to show the

intent required to sustain Appellant’s first-degree murder conviction.

       That argument is without merit. The victim was shot in the head at

close range. That by itself is sufficient to prove first-degree murder. The firing

of a gun at a vital part of another’s person’s body in and of itself is sufficient

to prove specific intent to kill beyond a reasonable doubt. Commonwealth

v. Brown, 987 A.2d 699, 705 (Pa. 2009); Commonwealth v. Padgett, 348

A.2d 87, 88 (Pa. 1975). Moreover, Appellant’s own testimony showed that he

intended to kill anyone who interfered with his robbery, as he admitted that

he intended to shoot anyone that he found in the store to eliminate witness.

N.T., 7/27/04, at 223-24. Contrary to Appellant’s assertions, the fact that the

jury asked rehear the trial court’s instructions on second-degree and third-

degree murder and a portion of Appellant’s testimony, N.T., 7/29/04, at 3,



____________________________________________


11Lyons testified that she never heard any of the defendants talk about killing
anyone in the robbery or shooting anyone anywhere other than in the leg.
N.T., 7/19/04, at 161.

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J-S09044-20


does not show that it considered convicting Appellant of any lesser degree of

homicide.    Appellant’s co-defendants were charged with second-degree

murder and the portion of Appellant’s testimony that the jury requested was

his testimony “with regard to his relationship to the other defendants,” not his

testimony concerning his actions in the store. Id. at 3, 43.

      In addition, any impact from those statements by Vann on the issue of

whether Appellant was the person who committed the murder was dwarfed by

the evidence that he did fire the fatal shot. Appellant’s presence at the scene

when the murder was committed was undisputed and it was undisputed that

he was carrying a gun that had the victim’s bodily fluid on it, consistent with

the close-range shot to the victim’s head.       Indeed, the number of fired

cartridges in Appellant’s gun confirmed that it was used to fire both shots at

the victim, as Appellant testified that he had only fired one shot from that gun

before he shot the victim in the leg and there were three fired cartridges in

the gun. The police testimony established that Appellant was walking toward

the front of the store after the second shot was fired and that there was no

one in the store other than Appellant and a frightened customer who was

hiding in a bathroom. Appellant admitted that he did not see anyone else in

the store at the time that the victim was shot in the head or after that fatal

shot was fired.

      Given the overwhelming evidence that Appellant committed the murder

and the fact that none of the testimony and statements of which he complains


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provided evidence that he committed the murder, Appellant’s third, fourth and

seventh issues fail because he has not shown that these alleged errors alone

or in combination caused him prejudice.

      In his fifth issue, Appellant alleges that trial counsel was ineffective in

failing to adequately preserve an objection when the trial court prohibited his

counsel from consulting with him over a lunch recess that occurred between

his re-direct and re-cross-examination. We need not determine whether the

trial court erred in prohibiting this consultation, because Appellant has not

shown that this ruling had any effect on his trial. There is nothing in the record

to support a finding that any consultation was prevented by the trial court’s

ruling. Appellant’s trial counsel specifically informed the court that he had “no

intention of” discussing the case with his client during the break and wanted

to speak with him only after the conclusion of his testimony. N.T., 7/27/04,

at 262-64. Indeed, the record shows that Appellant at trial was refusing to

communicate with his counsel concerning trial strategy. N.T., 7/12/04, at 8-

9.   More importantly, trial counsel was in fact permitted to consult with

Appellant before the trial resumed. N.T., 7/27/04, at 264-65, 268, 280; Trial

Court Opinion at 29.

                          B. Appellant’s Brady Claim

      In his second issue, Appellant argues that he is entitled to a new trial

because the Commonwealth failed to disclose evidence that would have

impeached the testimony of Vann and Lyons.            Under the United States


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Supreme Court’s decision in Brady, a defendant’s right to due process is

violated when the prosecution withholds material evidence that is favorable to

him. Brady, 373 U.S. at 87; Commonwealth v. Weiss, 81 A.3d 767, 783

(Pa. 2013); Miller, 212 A.3d at 1124. To establish a Brady violation, the

defendant must prove all of the following three elements: (1) that the

evidence at issue is favorable to him, either because it is exculpatory or

because it impeaches; (2) that the evidence was suppressed by the

prosecution, either willfully or inadvertently; and (3) that he was prejudiced.

Weiss, 81 A.3d at 783; Commonwealth v. Spotz, 47 A.3d 63, 84 (Pa.

2012); Miller, 212 A.3d at 1124.

      The element of prejudice requires that the defendant show that there is

a reasonable probability that, if the evidence had been disclosed to the

defense, the result of the proceeding would have been different. Wholaver,

177 A.3d at 158; Weiss, 81 A.3d at 783.         A reasonable probability of a

different result is a probability sufficient to undermine confidence in the

outcome. Weiss, 81 A.3d at 783-84; Spotz, 47 A.3d at 84. Accordingly,

where the undisclosed evidence is solely impeachment evidence, the

defendant must demonstrate that the testimony of the witness who would

have been impeached could well have been determinative of the defendant’s

guilt or innocence   Weiss, 81 A.3d at 784.

      As was discussed above, neither Vann’s nor Lyons’ testimony was

determinative of Appellant’s guilt or innocence. Neither of these witnesses


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provided evidence on the disputed issue of whether Appellant fired the second

shot into the victim’s head. Moreover, the evidence from police and forensic

witnesses and Appellant’s own testimony overwhelmingly pointed to the

conclusion that Appellant fired that fatal shot, in addition to robbing the store

and shooting the victim in the leg. None of that evidence could have been

affected by impeachment of Vann or Lyons.

      In addition, the Commonwealth’s failure to produce the evidence did not

leave Vann’s or Lyons’ credibility unchallenged. It was clear at trial without

the suppressed evidence that Vann and Lyons had strong incentives to accuse

Appellant and his co-defendants to save themselves.

      Vann admitted that there was a pending charge against him for another

robbery and a drug charge to which he had pleaded guilty but had not been

sentenced. N.T., 7/22/04, at 158, 291-92. Although he testified on direct

and re-direct examination that he had received no deal in exchange for his

testimony, he admitted that he hoped that it would help him with his other

cases.   Id. at 168-69, 171, 337. Moreover, Vann testified on cross-

examination that he wanted favors from the police and that he wanted to get

out of jail, wanted leniency for his open cases, and wanted to avoid

prosecution for this murder and robbery. Id. at 232, 248-51, 290. Vann

specifically admitted that he wrote a letter to one of the detectives

investigating this murder and robbery stating the following:

      I wanted to know how was everything working out with this case.
      I went to Homicide on 2/28/03. I did not tell them nothing. You

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J-S09044-20


      said you was going to get me out of jail so I can be home with my
      family if I helped you out please can you help me. I have helped
      you 100 percent now can you help me 100 percent. I am at
      Graterford but can you please write me back and let me know
      what’s going on and did you make that deal for me and please tell
      your partner I said hi.

Id. at 225-30. Vann further admitted that he wrote to the detective again

referencing a “deal” and that he had lied to the police multiple times. Id. at

160-63, 220-24, 236-37, 247-48.

      Lyons admitted at trial that the prosecution promised her, in exchange

for her testimony, that she would not go to jail for the robbery and murder

and that she understood that she would not be charged if she satisfied the

prosecutors.   N.T., 7/19/04, at 150-51, 160.      Lyons also testified that a

detective had threatened to charge her with murder and robbery, that her

lawyer had told her that she could be charged with murder and robbery and

faced a possible sentence of death or life imprisonment, that she was not

charged with any crime arising out of this robbery murder, and that she was

trying to help herself with her testimony. Id. at 155-60, 179-81, 197.

      Because the evidence that Appellant murdered the victim came from

other witnesses, not from Vann or Lyons, and that evidence of Appellant’s

guilt was overwhelming without considering their testimony, there is no

reasonable probability that additional impeachment of Vann or Lyons would

have had any effect on the guilty verdicts against Appellant. Accordingly, the

trial court correctly denied relief on Appellant’s Brady claim.




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                             C. Denial of PCRA Discovery

       In his tenth issue, Appellant argues that the trial court erred in denying

his February 12, 2019 motion for PCRA discovery. Our review on this issue is

limited to determining whether the trial court abused its discretion in denying

the requested discovery. Commonwealth v. Edmiston, 65 A.3d 339, 353

(Pa. 2013); Commonwealth v. Lark, 746 A.2d 585, 591 (Pa. 2000);

Commonwealth v. Watley, 153 A.3d 1034, 1048 (Pa. Super. 2016).

       Because Appellant was resentenced to life imprisonment and is no

longer subject to the risk of a death sentence in this case, this matter is not a

death penalty case. Appellant’s discovery requests are therefore governed by

Pa.R.Crim.P. 902(E)(1).12 Rule 902(E)(1) provides that in a PCRA proceeding,

“no discovery shall be permitted at any stage of the proceedings, except upon

leave of court after a showing of exceptional circumstances.” Pa.R.Crim.P.

902(E)(1).

       The claims on which Appellant asserts that he was entitled to discovery

are his ineffective assistance of counsel Batson claim, his Brady claim


____________________________________________


12  Appellant’s contention that the trial court acted improperly in not ruling on
the discovery requests until after the penalty phase hearing is without merit.
Although this PCRA proceeding had been pending for over nine years,
Appellant filed the motion for discovery approximately three weeks before the
hearing on the penalty phase portion of the PCRA petition and set forth
numerous discovery requests in that motion, most of which related to the
guilt-phase portion of his PCRA petition. Given the lateness of Appellant’s
filing, it was completely proper for the trial court to defer ruling on guilt-phase
discovery issues that did not need to be resolved before the hearing on
Appellant’s penalty phase claims.

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concerning impeachment evidence with respect to witnesses Vann and Lyons,

and his ineffective assistance of counsel claims concerning diminished capacity

and the possibility of a second shooter.           The trial court did not abuse its

discretion in concluding that Appellant did not show exceptional circumstances

that would permit such discovery.

       Discovery concerning Appellant’s Brady claim and the issue of

diminished capacity could not have any effect on the PCRA proceeding because

these claims fail regardless of any additional evidence. As is discussed above,

additional impeachment evidence concerning Vann and Lyons cannot satisfy

the requirement of prejudice because those witnesses provided no testimony

that Appellant committed the murder and the defense of diminished capacity

was unavailable to Appellant because he denied killing the victim.

       With respect to Appellant’s Batson and second shooter claims,

Appellant showed nothing exceptional about his trial or the evidence

concerning the murder and robbery that demonstrated that PCRA discovery

on these issues was particularly warranted in his case. The composition of

Appellant’s jury was in fact diverse. Appellant points to nothing in the record

that suggests that documents exist that show discriminatory intent in the

selection of that jury or that any undiscovered evidence exists supporting his

second shooter argument.13 Mere speculation that there may be evidence in


____________________________________________


13 Indeed, Appellant sets forth nothing in his brief supporting his argument for
discovery concerning his second shooter defense. See Appellant’s Brief at 95.

                                          - 31 -
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the Commonwealth’s possession that might support the defendant’s PCRA

claim does not constitute a showing of exceptional circumstances as required

by Rule 902(E)(1). Lark, 746 A.2d at 591 (Rule 902(E)(1) does not permit

the defendant to conduct a “fishing expedition” for evidence to support his

PCRA claims); Commonwealth v. Dickerson, 900 A.2d 407, 412 (Pa. Super.

2006).

                           D. Cumulative Prejudice

      In his final issue, Appellant contends that even if none of his PCRA claims

is sufficient, the cumulative effect of those alleged errors requires that he be

granted a new trial. That argument is without merit.

      Cumulative prejudice may only be considered with respect to claims

have been rejected due to lack of prejudice. Hutchinson, 25 A.3d at 319.

“[N]o number of failed claims may collectively warrant relief if they fail to do

so individually.”   Commonwealth v. Sherwood, 982 A.2d 483, 507 (Pa.

2009) (quoting Commonwealth v. Washington, 927 A.2d 586 (Pa. 2007)).

Appellant’s Batson claim, his claims concerning the trial court’s reasonable

doubt instruction, trial counsel’s failure to pursue defenses, and the addition

of a conspiracy charge, and his discovery claim all fail on the merits, not on

the ground that Appellant was not prejudiced. None of these claims therefore

can support a claim of cumulative prejudice.

      The only claims as to which we have held that Appellant failed to show

prejudice are his Brady claim and his third, fourth, fifth and seventh claims


                                     - 32 -
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of error. Even if Appellant showed error on all of these issues, the combined

effect would not satisfy the requirement that Appellant show prejudice.

      With respect to Appellant’s fifth claim, concerning consultation with

counsel, Appellant failed to show that the trial court’s ruling had any effect at

all on his trial, as the record showed that the trial court in fact permitted

Appellant’s trial counsel to consult with him before the trial resumed. Because

the alleged error had no effect, it cannot add anything to the other claims that

Appellant asserts.

      With respect to the other four claims, as we have already discussed,

Vann’s and Lyon’s testimony, their prior statements, and the evidence

admitted against the other defendants did not provide any significant evidence

on the issue of whether Appellant killed the victim. What this evidence showed

with respect to Appellant was that he went into the store with a gun to rob it,

shot the victim in the leg, robbed the store, and was caught by the police as

he was leaving the store. Those facts were all admitted by Appellant in his

statement to the police and his testimony. In addition, as we have discussed,

the evidence that Appellant committed the murder, from the gun, Appellant’s

presence at the scene, the implausibility of Appellant’s testimony, and the

absence of evidence that there was any other person who could have fired the

fatal shot, was overwhelming. Thus, even if there were error with respect to

all of the above four issues, there is no reasonable likelihood that that such




                                     - 33 -
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errors in combination affected the outcome of the guilt-phase portion of

Appellant’s trial.

      For the foregoing reasons, we conclude that Appellant has not shown

any error or abuse of discretion by the trial court. Accordingly, we affirm the

trial court’s order denying Appellant’s PCRA petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/24/2020




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