J-S37010-18

* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JAMAL HATCHER 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3607 EDA 2016

Appeal from the PCRA Order October 28, 2016

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0006133-2010

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

MEMORANDUM BY OLSON, J.: FILED AUGUST 03, 2018

Appellant, Jamal Hatcher, appeals pro se from the order entered on 

October 28, 2016, dismissing his first petition filed pursuant to the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

We briefly summarize this case as follows. On July 10, 2011, a jury 

convicted Appellant of attempted murder, aggravated assault, conspiracy, 

possessing an instrument of crime, and three related firearms offenses. On 

September 9, 2011, the trial court sentenced Appellant to 30 to 60 years of 

imprisonment. We affirmed Appellant’s judgment of sentence on June 5, 

2013. See Commonwealth v. Hatcher, 2013 WL 11262133 (Pa. Super. 

2013) (unpublished memorandum).1 On March 17, 2014, Appellant filed a 

pro se PCRA petition and thereafter retained counsel, who filed an amended 

____________________________________________

1

 That decision provides a detailed recitation of the facts of this case.
J-S37010-18

- 2 -

PCRA petition. Appellant, however, was not satisfied with retained counsel 

and counsel later asked to withdraw. The PCRA court appointed PCRA counsel

who filed an amended PCRA petition on August 26, 2015. Thereafter, 

Appellant requested that he be permitted to proceed pro se and the PCRA 

court granted the request after conducting a hearing pursuant to 

Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) (“When the waiver of 

the right to counsel is sought during PCRA review, an on-the-record 

determination should be made that the waiver is knowing, intelligent, and 

voluntary.”). On July 13, 2016, Appellant filed a pro se amended PCRA 

petition. The PCRA court heard arguments and, on September 23, 2016, 

issued notice pursuant to Pa.R.Crim.P. 907 of its intent to dismiss Appellant’s 

various PCRA petitions and amendments. On October 28, 2016, the PCRA 

court denied Appellant relief. This timely appeal followed.2

On appeal, Appellant presents the following pro se issues for our review:

1. Did the PCRA court err in denying relief in light of affidavit 

evidence substantiating that trial counsel was ineffective for 

failing to litigate a motion to suppress and object to an in-court 

identification at trial, which was the result of a pretrial live 

line[-]up identification [that was] suggestive, unreliable, and 

conducive to misidentification?

2. Did the PCRA court err in denying relief in light of 

newly-discovered evidence substantiating that the 

[C]ommonwealth violated [A]ppellant’s due process rights by 

presenting false testimony and fabricated evidence at trial, 

____________________________________________

2

 Appellant filed a pro se notice of appeal on November 8, 2016. The PCRA 

court issued an opinion pursuant to Pa.R.A.P. 1925(a) on February 16, 2017. 
J-S37010-18

- 3 -

which so undermined the truth-determining process that no 

reliable adjudication was possible?

3. Whether [A]ppellant has been denied effective review because 

of the loss and/or failure to certify and transmit essential 

portions of transcripts, exhibits, and affidavits necessary for 

the determination of the issues raised on appeal?

4. Did the PCRA court abuse its discretion by denying 

[A]ppellant’s recusal motion without explanation, where Code 

of Judicial Conduct Canons and due process mandate recusal 

from a proceeding in which a jurist[’s] impartiality might be 

reasonably questioned?

Appellant’s Brief at 6 (footnote and suggested answers omitted).

Upon review of the various PCRA filings in this matter, we initially 

conclude that Appellant has waived his second issue because his claim that 

the Commonwealth presented false and/or fabricated evidence at trial could 

have been raised on direct appeal, but was not.3 See 42 Pa.C.S.A. § 9544(b) 

(“an issue is waived if the petitioner could have raised it but failed to do so 

before trial, at trial, during unitary review, on appeal or in a prior state 

post-conviction proceeding”); Commonwealth v. Price, 876 A.2d 988, 

992-993 (Pa. Super. 2005) (same), appeal denied, 897 A.2d 1184 (Pa. 2006), 

cert. denied, 549 U.S. 902 (2006). In addition, Appellant waived appellate 

issues three and four by failing to present them to the PCRA court in the first 

instance. See Commonwealth v. Jones, 912 A.2d 268, 278 (Pa. 2006)

(“[A]n issue is waived where it was not presented in the original or amended 

____________________________________________

3 Appellant’s effort to support his second claim with an affidavit prepared after 

the PCRA court denied relief does not alter our assessment since the PCRA 

requires a petitioner to plead and prove that an allegation of error has not 

been waived. See 42 Pa.C.S.A. § 9543(a)(3). 
J-S37010-18

- 4 -

PCRA petition[s] below.”); see also Pa.R.A.P. 302(a). As such, we will not 

address issues two, three, and four as set forth above.

In the lone issue we address, Appellant claims that trial counsel was 

ineffective for failing to file a motion to suppress the victim’s identification of 

Appellant and, subsequently, for not objecting to the victim’s in-court 

identification of him. Appellant’s Brief at 15-22. Appellant claims that the 

victim failed to identify Appellant or his co-defendant when police showed him 

a photo array of potential suspects at the hospital 24 hours after the shooting. 

Id. at 15. He suggests that the victim’s girlfriend, who knew Appellant and 

co-defendant, influenced the victim to choose Appellant as the perpetrator 

during a police line-up. Id. Appellant also maintains that police unduly 

suggested that Appellant was the shooter by showing the victim still 

photographs from a nearby bank and video surveillance from the Wine and 

Spirits liquor store. Id. at 16. Appellant claims that because the victim only 

personally observed his assailant for eight seconds while fleeing, the victim 

did not have an opportunity to independently witness the criminal act and, 

thus, the victim’s subsequent “identifications were based on [the victim’s] 

improper exposures to [Appellant], rather than [from the victim’s] memories 

of the crime.” Id. at 17-18. Appellant also relies upon an alleged affidavit 

from Maisie Suarez, one of the eyewitnesses, who now claims that neither 
J-S37010-18

- 5 -

Appellant nor his co-defendant was the shooter.4 Id. at 20. In sum, Appellant 

claims that the victim’s identification of Appellant was tainted and trial counsel 

was ineffective for failing to move to suppress the identification prior to trial 

or object to the identification at trial. 

Our standard of review of the denial of a PCRA petition is

limited to examining whether the record evidence supports the 

court's determination and whether the court's decision is free of 

legal error. This Court grants great deference to the findings of 

the PCRA court if the record contains any support for those 

findings. If the record supports a post-conviction court's 

credibility determination, it is binding on the appellate 

court. A PCRA court's legal conclusions, however, are 

reviewed de novo.

* * *

The law presumes counsel has rendered effective 

assistance. When asserting a claim 

of ineffective assistance of counsel, the petitioner is required to 

plead and prove: (1) the underlying claim has arguable merit; 

(2) counsel had no reasonable strategic basis for his action or 

inaction; and (3) but for the errors and omissions of counsel, there 

is a reasonable probability that the outcome of the proceedings 

would have been different.

Commonwealth v. Moriarty, 180 A.3d 1279, 1284–1285 (Pa. Super. 2018)

(internal citations and quotations omitted). “Failure to satisfy any prong of 

the test for ineffectiveness will result in rejection of the 

____________________________________________

4

 Because the affidavit is dated January 18, 2017, after the PCRA court ruled 

on the PCRA filings, we may not consider it. See Jones, supra; see also

Pa.R.A.P. 302(a).
J-S37010-18

- 6 -

appellant's ineffective assistance of counsel claim.” Commonwealth v. 

Holt, 175 A.3d 1014, 1018 (Pa. Super. 2017) (citation omitted).

Regarding in-court identification testimony:

Suggestiveness in the identification process is but one factor to be 

considered in determining the admissibility of such evidence and 

will not warrant exclusion absent other factors. As this Court has 

explained, the following factors are to be considered in 

determining the propriety of admitting identification evidence: 

the opportunity of the witness to view the perpetrator at the time 

of the crime, the witness' degree of attention, the accuracy of his 

prior description of the perpetrator, the level of certainty 

demonstrated at the confrontation, and the time between the 

crime and confrontation. The corrupting effect of the suggestive 

identification, if any, must be weighed against these factors.

Commonwealth v. Wade, 33 A.3d 108, 114 (Pa. Super. 2011) (internal 

citations and quotations omitted).

Here, the PCRA court determined:

[Appellant] cannot demonstrate a reasonable probability that the 

verdict would have been different had counsel filed a pretrial 

motion to suppress [the victim’s] identification. Indeed there 

were other witnesses who identified [Appellant] as the shooter, as 

well as surveillance footage showing the same. [... The victim] 

testified at trial that he was 100% certain that the man who stood 

over him, in broad daylight, and shot him was [Appellant,] Jamal 

Hatcher. Thus, an independent basis for the in-court 

identification was clearly established and a motion to suppress the 

identification would have been an exercise in futility. [...] Here, 

[Appellant] cannot show that there was a reasonable probability 

that the trial outcome would have been different had counsel filed 

a pretrial motion to suppress the victim’s identification of him.

PCRA Court Opinion, 2/16/2017, at 3. 

Upon review of the record and applicable law, we agree with the PCRA 

court’s assessment. In this case, the victim testified unequivocally that 
J-S37010-18

- 7 -

Appellant was the shooter and that he was able to see him standing over him 

firing a weapon during daylight hours. As such, the PCRA court determined 

that the victim had ample opportunity to observe his attacker at the time of 

the crime and demonstrated complete certainty at the confrontation of 

Appellant. We will not disturb the PCRA court’s findings. 

Moreover, there was additional overwhelming evidence of Appellant’s 

guilt admitted at trial such that there was no probability that the outcome of 

trial would have been different without the victim’s identification. In fact, 

Appellant conceded that “[t]he Commonwealth presented six eyewitnesses to 

the crime.” Appellant’s Pro Se Amended PCRA Petition, 7/13/2016, at 12

(emphasis added). Several of the eyewitnesses were able to identify the 

vehicle that Appellant and his brother, the co-defendant, used to flee the crime 

scene. Appellant’s brother and mother were the registered owners of the 

vehicle and the registration listed their address, which was where Appellant 

also resided. The Commonwealth also presented surveillance from a nearby 

bank and the liquor store where the victim’s girlfriend worked. With such 

evidence presented, Appellant fails to show he suffered prejudice. As such, 

his sole reviewable issue on appeal does not merit relief.

Order affirmed. 
J-S37010-18

- 8 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/3/18