J-A18021-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ISAIAH HEREFORD 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1162 WDA 2022

Appeal from the PCRA Order Entered September 8, 2022

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

No(s): CP-02-CR-0010538-2010

BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.

MEMORANDUM BY LAZARUS, J.: FILED: February 9, 2024

Isaiah Hereford appeals from the order, entered in the Court of Common 

Pleas of Allegheny County, denying his petition filed pursuant to the Post 

Conviction Relief Act (PCRA). 42 Pa.C.S.A. §§ 9541-46. After careful review, 

we reverse and remand for a new trial.

On June 14, 2010, Brittany Poindexter attended the birthday party of 

her brother, Jahard, at Jahard’s apartment in McKeesport’s Crawford Village.1 

As the evening wore on, only five people remained at the party, Brittany, 

Jahard, Angela Sanders, Tre Madden, and Marcus Madden. Shortly after 1:00 

a.m., June 15, 2010, someone knocked on the screen door of the apartment’s 

front door. It was generally presumed that the person was there to buy a 

cigarette or marijuana, since Jahard and Marcus sold cigarettes and marijuana 

____________________________________________

1 Crawford Village is a Section 8 public housing community located in 

McKeesport, Pittsburgh. Jahard lived in apartment 24B.
J-A18021-23

- 2 -

out of the apartment. When Marcus approached the door, two armed men 

burst into the apartment. The two gunmen demanded money from the five 

people inside. Jahard attempted to retrieve the money but the gunmen 

opened fire on all five occupants. Jahard, Tre, and Angela died as a result. 

Brittany was uninjured and survived. Marcus was shot in the head, but 

ultimately survived the shooting. Both Brittany and Marcus testified at the 

subsequent jury trial.2 

Brittany testified that she saw both gunmen but was unable to identify 

either. See N.T. Jury Trial (Day 1), 8/1/11, at 76. Brittany testified that the 

first gunman was holding a black handgun. Id. at 65. Brittany stated she 

knew the difference between a semi-automatic handgun and a revolver. Id. 

Birttany further stated that the handgun was a Smith and Wesson revolver, 

and she remembered that fact “[b]ecause the gun was in [her] face.” Id. at 

65-66; see also id. at 78 (Brittany testifying she was certain first gunman 

held revolver). Brittany testified that the second gunman was holding a black 

semi-automatic handgun. Id. at 67. Brittany stated that the second gunman 

yelled “Where’s the cash[?]” Id. at 67, 79-81. Brittany further testified that 

the second gunman was wearing “two black shirts tied around his face.” Id.

Marcus also testified that he knew the difference between a semiautomatic and a revolver. See N.T. Jury Trial (Day 3), 8/3/11, at 396. 

____________________________________________

2 Because it is relevant to Hereford’s claims, we provide a detailed summary 

of both Brittany’s and Marcus’s testimony at trial.
J-A18021-23

- 3 -

However, in contrast to Brittany’s testimony, Marcus testified that the first 

gunman had a semi-automatic handgun, and the second gunman held a 

revolver. Id. at 396-98. Marcus specified that the second gunman’s weapon 

had a longer barrel and a cylinder. Id. Additionally, Marcus testified that the 

second gunman never spoke. Id. at 392.

Marcus testified that Hereford was the first gunman, and that Hereford 

did not have his face covered. Id. at 375, 398-99. He stated that the first 

gunman, who he estimated was 5’10,” was taller than the second gunman. 

Id. at 389, 392, 398. Marcus was confident in his assessment, because 

Marcus, himself, is 5’10” and Marcus and the first gunman were standing “eyeto-eye” when Marcus first answered the door and saw the gunman. Id. 

However, at trial, Hereford’s co-defendant, DeAnthony Kirk, stood side-byside with Hereford and Marcus testified that Kirk was noticeably taller than 

Hereford.

3

 Id. at 398-99. Additionally, Marcus testified that, prior to the 

shootings, he had been imbibing alcohol and was under the influence of 

marijuana. Id. at 370-71, 404.

____________________________________________

3 At trial, counsel failed to introduce Hereford’s height into the record. 

However, we note that Hereford is either 5’5” or 5’6”. See Affidavit of 

Probable Cause, 6/17/10, at 1 (listing Hereford’s height as 5’5”); Warrant of 

Arrest, 6/17/10, at 2 (listing Hereford’s height as 5’5”); see also PCRA 

Petition, 6/30/20, at 21 (listing Hereford’s height as 5’6”). Moreover, we 

observe that the Pennsylvania Department of Corrections’ Inmate Locator Tool 

confirms that Hereford is 5’6.” See https://inmatelocator.cor.pa.gov, last 

updated 1/5/24 (last visited 1/5/24).
J-A18021-23

- 4 -

The day following the shooting, Kirk was arrested for his involvement in 

an unrelated burglary.4 On September 3, 2010, the Commonwealth charged 

Hereford with the instant offenses.

On August 1, 2011, Hereford and Kirk proceeded to a three-day jury 

trial, after which the jury convicted Hereford of three counts of second-degree 

murder,5two counts of aggravated assault,6 and one count each of robbery,7

burglary,8 and conspiracy.9 On December 15, 2014, the trial court sentenced 

Hereford to three consecutive terms of fifteen years to life in prison.10

Hereford filed a timely appeal and this Court affirmed his judgment of 

sentence. See Commonwealth v. Hereford, 151 A.3d 1133 (Pa. Super. 

____________________________________________

4 There is no question that Kirk was one of the two gunmen, as he was arrested 

while in possession of one of the guns, a semi-automatic, used in the instant 

homicides. Additionally, police later linked Kirk and this firearm to another 

unrelated shooting that occurred prior to the instant offenses. During a search 

of Kirk’s residence, police located Angela’s stolen cellphone in the bushes 

outside of Kirk’s apartment. Furthermore, Kirk admitted to the killings. See 

Commonwealth v. Kirk, 83 A.3d 1056 (Pa. Super. 2013) (Table).

5 18 Pa.C.S.A. § 2502(b).

6 Id. at § 2702(a)(1).

7 Id. at § 3701(a)(1).

8 Id. at § 3502(a)(1).

9 Id. at § 903(a)(1).

10 Initially, Hereford was sentenced to mandatory life imprisonment with no 

opportunity for parole. However, Hereford was seventeen at the time of the 

offenses and, therefore, following the United States Supreme Court’s decision 

in Miller v. Alabama, 567 U.S 460 (2012), the trial court resentenced him

as indicated above.
J-A18021-23

- 5 -

2016) (Table). Hereford’s only claim on direct appeal was that of afterdiscovered evidence in the form of a witness, Gina Simmons. See id. In our 

memorandum disposing of that appeal, we summarized Simmons’s proposed

testimony as follows:

Simmons, who is a neighbor of [Hereford]’s girlfriend and 

allegedly has no bias in this case, would testify that after she 

heard gunshots[,] she looked out of her window and saw two men 

running from the area of [the] crime and that [Hereford] was not 

one of the two men. [] Simmons would testify that she saw 

[Hereford] on his girlfriend’s porch approximately fifteen minutes 

after the incident.

Id.

Ultimately, this Court rejected Hereford’s claim because: (1) Hereford 

could have obtained testimony from Simmons previously with the exercise of 

reasonable diligence; (2) Simmons’ testimony was merely cumulative of other 

evidence presented at trial; (3) Simmons’ testimony was inadmissible as it 

merely impeached eyewitness Marcus’ testimony; and (4) Simmons’ 

testimony was unlikely to compel a different verdict if a new trial were

granted. Id. Hereford filed an application for allowance of appeal, which our 

Supreme Court denied. Id., appeal denied, 158 A.3d 74 (Pa. 2016) (Table).

On September 22, 2017, Hereford filed a timely, counseled, PCRA 

petition, his first. Hereford raised, inter alia, a claim that his trial counsel was 

ineffective for failing to call Simmons as a witness. The trial court conducted 

a hearing, at which Simmons testified. Subsequently, the PCRA court denied 

Hereford’s petition. Hereford timely appealed to this Court, and we affirmed. 

See Commonwealth v. Hereford, 215 A.3d 630 (Pa. Super. 2019) (Table). 
J-A18021-23

- 6 -

Hereford filed an application for allowance of appeal, which our Supreme Court 

denied. Id., appeal denied, 216 A.3d 1032 (Pa. 2019) (Table).

On June 30, 2020, Hereford filed the instant PCRA petition, his second.11 

In his petition, Hereford alleged that a newly-discovered witness, Quentin 

Ingram, came forward in February 2020 and would testify that Hereford was 

not involved in the shooting.

12

 In support of his arguments, Hereford attached

affidavits from his trial counsel and co-counsel (trial counsel) detailing their 

respective beliefs that they were ineffective in representing Hereford at trial. 

In particular, trial counsel state that their failure to introduce the height 

discrepancy between Marcus and Hereford, and speak with, or call, an expert 

regarding eye-witness identification resulted in the undermining of their 

defense strategy. See Affidavit of Anne Marie Mancuso, Esquire, Exhibit 7, at 

1-2; Supplemental Affidavit of Richard J. Narvin, Esquire, Exhibit 6, at 1-2.

____________________________________________

11 We note that Hereford’s jury trial and first PCRA petition took place before 

the Honorable Donna Jo McDaniel, who retired prior to Hereford filing his

second PCRA petition. Hereford’s case was reassigned to the Honorable Kevin 

J. Sasinoski (PCRA court), after Judge McDaniel’s retirement. 

12 Prior to the filing of this PCRA petition, Hereford, on October 23, 2019, filed 

a counseled petition for habeas corpus relief in the United States District Court 

for the Western District of Pennsylvania. See Docket No. 19-cv-1377 

(Magistrate Judge Maureen P. Kelly). In support of this filing, Hereford 

attached affidavits from his trial counsel, Richard J. Narvin, Esquire, and Anne 

Marie Mancuso, Esquire, acknowledging their respective ineffectiveness and 

their belief that Hereford is innocent and is subject to an unjust conviction. 

These affidavits were also filed in the instant docket before this Court, as noted 

infra. Due to the discovery of Ingram’s testimony occurring after the filing of 

his habeas corpus petition, the federal habeas corpus petition has been stayed 

pending our resolution of Hereford’s instant PCRA appeal.
J-A18021-23

- 7 -

Hereford requested a PCRA evidentiary hearing, and the Commonwealth filed 

an answer wherein it agreed that an evidentiary hearing was warranted.

On December 8, 2021, the PCRA court conducted an off-the-record 

status conference, at which the court informed the parties that it would not 

permit Hereford to present eyewitness identification expert testimony at the 

PCRA hearing. On December 17, 2021, Hereford filed a motion to reconsider, 

which the PCRA court denied. On February 17, 2022, the PCRA court 

conducted an evidentiary hearing, at which Ingram and private investigator 

Keri Bozich testified. After the hearing, both parties filed briefs. On March 

18, 2022, the PCRA court found that Hereford’s petition satisfied the newlydiscovered facts exception to the PCRA’s time bar, but denied Hereford’s 

petition on the merits.

Hereford filed a timely notice of appeal and a court-ordered Pa.R.A.P. 

1925(b) concise statement of errors complained of on appeal. He now raises 

the following claim for our review: “The credible evidence offered at the 

evidentiary hearing showed that [] Hereford is entitled to PCRA relief on his 

after-discovered evidence claim. The PCRA court nevertheless denied relief. 

Did the court err?” Brief for Appellant, at 3.

Before addressing Hereford’s issue on appeal, we must determine 

whether his PCRA petition was timely filed and, if not, whether he has satisfied 

an exception to the PCRA time bar. Any PCRA petition “shall be filed within a 

year of the date judgment becomes final.” 42 Pa.C.S.A. § 9545(b)(1). A 

judgment of sentence becomes final “at the conclusion of direct review, 
J-A18021-23

- 8 -

including discretionary review in the Supreme Court of the United States and 

the Supreme Court of Pennsylvania, or at the expiration of time for seeking 

review.” Id. at 9545(b)(3). The PCRA’s timeliness requirements are 

jurisdictional in nature, and a court may not address the merits of the issues 

raised if the PCRA petition was not timely filed. Commonwealth v. Albrecht, 

994 A.2d 1091, 1093 (Pa. 2010).

Instantly, Hereford’s judgment of sentence became final, for purposes 

of the PCRA, on December 26, 2016, when the time expired for him to file a 

writ of certiorari in the United States Supreme Court. See 42 Pa.C.S.A. § 

9545(b)(1)-(3); Sup.Ct.R. 13. Consequently, Hereford’s instant PCRA 

petition, filed on June 30, 2020, is patently untimely.

However, Pennsylvania courts may consider an untimely petition if the 

petitioner can explicitly plead and prove one of the three exceptions set forth 

at 42 Pa.C.S.A. §§ 9545(b)(1)(i)-(iii). Those three exceptions are as follows:

(i) the failure to raise the claim previously was the result of 

interference by government officials with the presentation of the 

claim in violation of the Constitution or laws of this Commonwealth 

or the Constitution or laws of the United States;

(ii) the facts upon which the claim is predicated were unknown to 

the petitioner and could not have been ascertained by the exercise 

of due diligence; or

(iii) the right asserted is a constitutional right that was recognized 

by the Supreme Court of the United States or the Supreme Court 

of Pennsylvania after the time period provided in this section and 

has been held by that court to apply retroactively.
J-A18021-23

- 9 -

Id. Any petition invoking one of these exceptions “shall be filed within one 

year of the date the claim could have been presented.” Id. at § 9545(b)(2).13 

“The PCRA petitioner bears the burden of proving the applicability of one of 

the exceptions.” Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017).

Here, Hereford invoked the newly-discovered facts exception.14

Hereford argues that Ingram’s testimony and existence were entirely unknown 

to him until February 2020, when Ingram sent his first letter to PCRA counsel. 

See Brief for Appellant, at 37. Hereford contends that he exercised due 

diligence, which is exhibited by his immediate filing for a stay of his federal 

____________________________________________

13 We observe that section 9545(b)(2) was amended on October 24, 2018, 

effective in 60 days (i.e., December 24, 2018), extending the time for filing 

from 60 days of the date the claim could have been first presented, to one 

year. The amendment applies to claims arising on December 24, 2017, or 

thereafter. See Act 2018, Oct. 24, P.L. 894, N. 146, § 3. Instantly, for the 

reasons discussed infra, the earliest Hereford could have presented this claim 

was on February 26, 2020. Consequently, he had one year from that date to 

file a PCRA petition raising his claim. Therefore, his PCRA petition filed on 

June 30, 2020, was filed within the one-year window. See 42 Pa.C.S.A. § 

9545(b)(1)(ii); id. at § 9545(b)(2).

14 Throughout his PCRA filings, Hereford mistakenly claims he is invoking the 

“after-discovered” evidence exception to the PCRA time bar. As mentioned 

supra, a claim of newly-discovered facts is one of the exceptions to the PCRA’s 

one year time bar, see 42 Pa.C.S.A. § 9545(b)(1)(ii), while an afterdiscovered evidence claim is a substantive claim for PCRA relief. See 42 

Pa.C.S.A. § 9543(a)(2)(vi); see also Commonwealth v. Burton, 158 A.3d 

618, 629 (Pa. 2017) (reiterating “the newly-discovered facts exception to the 

time limitations of the PCRA, as set forth in subsection 9545(b)(1)(ii), is 

distinct from the after-discovered evidence basis for relief delineated in 42 

Pa.C.S.[A.] § 9543(a)(2)”). Nevertheless, this error does not impede our 

review because Hereford properly addresses each requisite factor under the 

newly-discovered facts exception to the PCRA time bar, before addressing 

the merits of his claim. 
J-A18021-23

- 10 -

habeas corpus proceedings. Id. Further, Hereford contends that he could not 

have learned of Ingram’s testimony prior to February 2020 because Ingram 

was absconding from the law due to his trespasser status in Crawford Village, 

and Ingram never spoke with police or Hereford’s trial counsel about the case. 

Id. We agree.

The newly-discovered facts exception to the PCRA time bar “renders a 

petition timely when the petitioner establishes that the facts upon which the 

claim is predicated were unknown to the petitioner and could not have been 

ascertained by the exercise of due diligence.” Commonwealth v. Small, 238 

A.3d 1267, 1271 (Pa. 2020) (quotation omitted). A PCRA court must first 

determine “whether the facts upon which the claim is predicated were 

unknown to the petitioner.” Id. at 1282 (quotation marks omitted). If the 

PCRA court concludes that the facts were unknown, then the PCRA court must 

next examine whether “the facts could have been ascertained by the exercise 

of due diligence, including an assessment of the petitioner’s access to public 

records.” Id. Further, “[d]ue diligence demands that the petitioner take 

reasonable steps to protect his own interests. A petitioner must explain why 

he could not have obtained the new facts earlier with the exercise of due 

diligence. This rule is strictly enforced.” Commonwealth v. Monaco, 996 

A.2d 1076, 1080 (Pa. Super. 2010).
J-A18021-23

- 11 -

Instantly, Hereford was unaware of Ingram’s testimony, let alone his 

existence as a witness, until February 26, 2020.15 See PCRA Court Opinion, 

12/15/22, at 6 (PCRA court expressly finding Hereford’s claim timely based 

upon Ingram’s testimony). At the evidentiary hearing, Ingram testified that 

he did not reach out to Hereford or his counsel until February of 2020. See 

N.T. PCRA Hearing, 2/17/22, at 27-29. Further, Ingram testified that he had 

not told anyone what he saw on the night of June 14-15, 2010, until he 

contacted Hereford’s PCRA counsel. Id. at 27-29, 78-80. Ingram stated that 

he was a known trespasser and drug dealer in Crawford Village, so he did not 

want to alert police to his presence there that evening. Id. at 36-37, 41. 

Additionally, Ingram testified that it was his belief that Hereford had been 

charged as an accomplice, not as one of the two shooters. Id. at 43, 47-49, 

61, 63-64. Ingram became aware, in January of 2020, that Hereford was 

charged and convicted as one of the shooters and only then began attempting 

to reach out to Hereford’s PCRA counsel. Id. at 61, 63-65 (Ingram testifying 

he asked friends and family to find Hereford’s attorney); see id. at 71-73, 78

____________________________________________

15 Ingram is serving a 76-to-152-year homicide sentence. See N.T. PCRA 

Hearing, 2/17/22, at 43, 50-51, 73-74. As it relates to timeliness, at the PCRA 

hearing, Hereford introduced evidence of Ingram’s first letter to PCRA counsel. 

See id. at 27-29. The date Ingram had written on the letter was illegible and 

was determined to either be February 26, 2020, or March 26, 2020. See id.

In any event, Hereford had one year from the earliest date he could have 

raised this claim. Consequently, his June 30, 2020 PCRA petition raising this 

claim falls within one year of either date.
J-A18021-23

- 12 -

(Ingram testifying PCRA counsel sent Ingram a letter in late January 2020 

requesting any information Ingram may have).16

Consequently, it is clear from the record that Hereford was not, and 

could not have been, aware of Ingram’s eyewitness testimony. See Small, 

supra; see also PCRA Court Opinion, 12/15/22, at 6. Further, we observe 

that as soon as Hereford learned of Ingram’s eyewitness account, he 

requested a stay of his federal proceedings, see supra, and filed the instant 

PCRA petition upon a grant of that stay. Accordingly, we conclude that he 

took reasonable steps to protect his interests, in accordance with our due 

diligence standards, and therefore, has satisfied the newly-discovered facts 

exception to the PCRA time bar. See Monaco, supra.

Once jurisdiction has been properly invoked by establishing one of the 

three exceptions to the PCRA’s time bar, the relevant inquiry becomes whether 

the claim is cognizable under the PCRA. Section 9543, titled “Eligibility for 

relief,” governs this inquiry. Among other requirements not pertinent to this 

appeal, section 9543 delineates seven classes of allegations that are eligible 

for relief under the PCRA. See 42 Pa.C.S.A. § 9543(a)(2). Of relevance here 

is the “after-discovered evidence” provision, which states that a claim alleging 

____________________________________________

16 We note that PCRA counsel’s letter to Ingram is dated earlier than Ingram’s 

February 2020 letter. However, this does not impact our timeliness 

calculations because, at that time, neither PCRA counsel nor Hereford knew 

what information, if any, Ingram possessed. See id. at 61, 63-65, 71-73. 

Moreover, even if PCRA counsel’s January 2020 letter is the appropriate date 

to begin our calculations from, which we do not find, Hereford’s instant PCRA 

petition was still filed within one year from that date. 
J-A18021-23

- 13 -

“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” is cognizable under the PCRA. 42 Pa.C.S.A. §

9543(a)(2)(vi). To establish such a claim, a petitioner:

must demonstrate that the evidence: (1) could not have been 

obtained prior to the conclusion of the trial by the exercise of due 

diligence; (2) is not merely corroborative or cumulative; (3) will 

not be used solely to impeach the credibility of a witness; and (4) 

would likely result in a different verdict if a new trial were granted.

Commonwealth v. Medina, 92 A.3d 1210, 1218 (Pa. Super. 2014). 

Hereford argues that the Commonwealth’s identification evidence 

presented at his jury trial consisted solely of Marcus’s testimony, which was 

both internally inconsistent and contradicted by Brittany’s trial testimony. 

See Brief for Appellant, at 36, 39-41. Hereford contends that the new 

eyewitness, Ingram, presented testimony at the PCRA hearing that confirms 

Hereford was not one of the two gunmen in the early morning of June 15, 

2010. See id. at 36-37, 41-49. In support of his argument, Hereford asserts 

that Ingram’s eyewitness account is not merely corroborative or cumulative, 

and that its sole purpose is not for impeachment. See id. at 52-55. Hereford 

points out that Ingram’s testimony is corroborated in part by both Brittany’s 

and Marcus’s testimonies, yet Ingram’s testimony offers new evidence. See 

id. In particular, Ingram testified regarding what the shooters were doing 

immediately prior to the homicides and that neither shooter was Hereford. 

See id. For the same reason, Hereford argues that Ingram’s testimony is not 

solely used for the purpose of impeaching Marcus’s testimony. See id. 
J-A18021-23

- 14 -

Hereford claims that Ingram’s testimony is “of a different grade and character 

. . . because it consists of a new eyewitness account from a person who saw 

the shooters immediately before they entered [a]partment 24B and started 

shooting.” Id. at 53.

Hereford further asserts that the PCRA court erred in finding that Ingram 

was not credible. See id. at 41-49, 56-67. In support of this argument, 

Hereford contends that, in evaluating Ingram’s credibility, the PCRA court 

failed to review the jury trial transcript, to balance Ingram’s testimony against 

the evidence produced by the Commonwealth at trial, and to consider 

Ingram’s demeanor during his testimony at the PCRA hearing. See id. 

Additionally, Hereford posits that the PCRA court failed to consider that Ingram 

had no ulterior motive in giving his testimony, other than Ingram’s stated 

interest in telling the truth. See id. at 41-50. Hereford argues that the PCRA 

court’s finding that Ingram was not credible is further unsupported by the 

record where there was no evidence presented to impeach Ingram’s 

credibility, and Ingram’s testimony was corroborated with the evidence 

presented at Hereford’s jury trial. See id. at 45-51. We agree.

Our standard of review of an order denying PCRA relief is wellestablished:

Our review of a PCRA court’s decision is limited to examining 

whether the PCRA court’s findings of fact are supported by the 

record, and whether its conclusions of law are free from legal 

error. We view the findings of the PCRA court and the evidence 

of record in a light most favorable to the prevailing party. With 

respect to the PCRA court’s decision to deny a request for an 

evidentiary hearing, or to hold a limited evidentiary hearing, such 
J-A18021-23

- 15 -

a decision is within the discretion of the PCRA court and will not 

be overturned absent an abuse of discretion. The PCRA court’s 

credibility determinations, when supported by the record, are 

binding on this Court; however, we apply a de novo standard of 

review to the PCRA court’s legal conclusions.

Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015) (citations and 

quotation marks omitted).

At the PCRA hearing, Ingram testified that he was visiting his girlfriend 

in Crawford Village on the night of the murders. See N.T. PCRA Hearing, 

2/17/22, at 8-10. Ingram testified that his girlfriend lived at apartment 29D. 

Id. at 9-10; see also id. at 12-13, Defense Exhibits A-1, A-2 (photographs

depicting Ingram’s girlfriend’s apartment). Ingram stated that he is very 

familiar with Crawford Village and its layout because he grew up there and 

lived there his entire life. Id. at 10-11 (Ingram testifying his mother lived 

across street from Crawford Village, and Ingram has three siblings still living 

in McKeesport neighborhood). Ingram explained that Crawford Village is a 

series of rows of buildings designated by numbers, and each apartment in a 

row is designated by a letter “A” through “H.” Id. at 12-17 (Ingram identifying 

each row of homes and explaining Crawford Village’s general layout); id. at 

15-16, 21 (Ingram shown present day photographs depicting Crawford Village 

and testifying housing complex has identical layout as it did in 2010).

Ingram testified that late on the evening of June 14, 2010, into the early 

morning hours of June 15, 2010, Ingram was on the porch of his girlfriend’s 

apartment, “29D.” Id. at 16-17. From his vantage point, Ingram saw two 

men near apartment 29A, one of whom was adjusting a firearm on his hip. 
J-A18021-23

- 16 -

Id. at 17, 21-23. Ingram testified that the two men were taller than him, 

wearing dark clothing, had shirts tied around their faces, and were darker 

skinned than Ingram. Id. at 23. One of the men had two black shirts tied 

around his face, and the other man had only one shirt tied around his face. 

Id. Ingram testified that he is 5’5” and weighed 150 pounds, but at this 

distance he could easily tell both men weighed more than him and were taller 

than him. Id. at 23-24. Ingram clarified that the two men were closer to 

PCRA counsel’s height, which was noted for the record as 5’11.” Id. at 24. 

Ingram further testified that both men were taller than Hereford’s height of 

5’6.” Id.

Ingram left the porch, followed the men, and again saw the two men 

while Ingram was on the staircase between buildings “28” and “29.” Id. at 

16, 18-19, 36; id. at 16-18, Defense Exhibit A-4 (depicting staircase between 

buildings 28 and 29). From this vantage point, Ingram saw the two men

standing outside of 24B, Jahard’s apartment. Id. at 18-19. Ingram testified 

that one of the men appeared to be “messing with a cell phone” and the other 

man “looked in the window of 24B.” Id. at 19-20. Ingram stated he saw both 

men “bum rush” the door of apartment 24B. Id. at 19. Ingram said that 

almost immediately after the men entered 24B, he heard multiple gunshots

from two different firearms. Id. at 37-38. Ingram testified that he ran back 

into his girlfriend’s apartment as soon as he heard the gunshots. Id. at 38-

39. Ingram testified that he saw police arrive shortly thereafter but did not 

speak with them. Id. at 39-40. After police cleared the scene, Ingram left 
J-A18021-23

- 17 -

his girlfriend’s apartment and walked to his mother’s home, which was 

approximately five minutes away. Id. at 40-41.

Ingram testified that neither of the men he saw that night were 

Hereford. Id. at 8-9, 41-42. Ingram stated that he knew Hereford but was 

not close friends with him because Hereford was younger and “hung out with 

younger people.” Id. at 41-42; id. at 65-67 (Ingram clarifying on crossexamination that he knew Hereford from the community, and Hereford’s 

girlfriend lived in a house Ingram’s mother previously owned). Ingram 

testified that he could not identify either of the two men; however, he was 

certain neither man was Hereford due to the height and weight discrepancies, 

as well as both shooters having darker skin tones than Hereford. Id. at 42, 

47-49; id. at 79 (Ingram testifying on re-direct examination that it did not 

make sense for Hereford to be one of the shooters, because Ingram did not 

see Hereford there and the shooters had dark skin tones).

Preliminarily, we observe that the PCRA court, in its opinion, found 

Ingram to be not credible, and addressed Hereford’s claim as follows:

[Hereford] alleges the PCRA court erred by denying relief based 

on the after[-]discovered evidence. After the evidentiary hearing, 

the PCRA court found the defendant’s witness was not credible. 

The hearing amounted to a slide show of photographs where the 

witness identified numerous residences in a housing community 

where the murders occurred. He did not observe the shooting. 

He admitted that the alleged shooters[’] faces were covered. He 

opined that [Hereford] was not the same height as the person who 

forced his way into the victim’s residence the night of the murder. 

The witness did not give a statement to police on the night of the 

shooting, supposedly because he was a trespasser in the public 

housing community, and a reputed drug dealer. The witness[,]
J-A18021-23

- 18 -

who is currently serving a life sentence for murder, finally came 

forward more than 10 years after allegedly making his 

observations. When the defense presented the alleged after[-

]discovered evidence, Allegheny County Homicide Detective 

Patrick Kinavey attempted to interview the witness who refused[,]

claiming he didn’t know the detective. This is puzzling since 

Detective Kinavey is the same police officer who investigated and 

prosecuted the witness in his own homicide trial.

Under these circumstances the court did not find [Ingram] to be 

credible. Additionally, the court does not believe that the outcome 

of the trial would differ even with the proposed after[-]discovered 

evidence. This claim is without merit.

PCRA Court Opinion, 12/15/22, at 6-7.

Based upon our review of the record, we conclude that the PCRA’s 

finding that Ingram is not credible is unsupported by the record. In so 

concluding, we are cognizant that our standard of review is very deferential 

to the PCRA court’s credibility assessments. See Mason, supra. However, 

the PCRA court’s credibility assessments are not absolute, and are still subject 

to review on appeal. See id. Importantly, the PCRA court’s credibility 

determination must be supported by the record. See id. 

Indeed, PCRA courts are required to analyze after-discovered evidence 

claims under the four-prong test outlined in section 9543(a)(2)(vi). See

Medina, supra. Here, the PCRA court did not identify the after-discovered 

evidence test, much less discuss any of the prongs, except for a conclusory 

determination that “the court does not believe that the outcome of the trial 

would differ.” PCRA Court Opinion, 12/15/22, at 7. In reaching this 

conclusion, the PCRA court did not discuss any facts of the case, or relevant 

case law. See id. at 1-7. The PCRA court did not analyze the discrepancies 
J-A18021-23

- 19 -

between the testimony of Brittany and Marcus or address how Ingram’s 

testimony impacts any portion of the case.17 See id. 

Moreover, some of the facts that the PCRA court employed to conclude 

that Ingram was not credible are facts that are supported by the jury trial 

transcript. In particular, the PCRA court noted that Ingram “opined that 

[Hereford] was not the same height as the person who forced his way into the 

victim’s residence the night of the murder.” See PCRA Court Opinion, 

12/15/22, at 6. However, Ingram’s “opinion” is corroborated by the testimony 

of Marcus and Brittany. See N.T. Jury Trial (Day 3), 8/3/11, at 375, 398-99. 

As we noted supra, Marcus testified that he identified the first gunman as 

Hereford, and that Hereford was not wearing a mask. See id. He also testified 

that the second gunman was taller than the first gunman, allegedly Hereford, 

who was the same height as Marcus, 5’10”. See id. at 389. However, when 

Hereford stood back-to-back with Kirk at trial, Marcus testified that Hereford 

was significantly shorter than Kirk. See id. at 398-99. Accordingly, it is clear 

from this testimony that it is not Ingram’s “opinion” that Hereford was not the 

same height as the first gunman, but rather a fact corroborated by other 

witnesses. 

____________________________________________

17 We further observe that while the PCRA court’s opinion is seven pages in 

length, it only reaches this length because the PCRA court addressed six claims 

raised in Hereford’s Rule 1925(b) concise statement. See id. at 3 (listing 

Hereford’s Rule 1925(b) claims). However, the PCRA court “addresses” each 

of these claims in a paragraph or less. 
J-A18021-23

- 20 -

Additionally, the PCRA court discounts Ingram’s testimony because he 

did not witness the shooting. See PCRA Court Opinion, 12/15/22, at 6. 

Nevertheless, Ingram observed the men for the period just prior to their

entrance into the home. See N.T. PCRA Hearing, 2/17/22, at 16-24, 36-42. 

No other witness in this case testified about the perpetrators’ actions prior to 

their entry into the home. Moreover, as we outlined supra, Ingram’s 

testimony at the PCRA hearing is corroborated, in part, by the surviving 

eyewitnesses’ testimony. Ingram saw two gunmen, both darker skinned with 

shirts covering their faces, one of whom covered his face utilizing two black 

shirts, one of whom appeared to be operating a cell phone prior to entering 

the home, and then, almost immediately after they entered the home, Ingram 

heard multiple gunshots. See id. at 18-20, 23, 37-39. This testimony is 

consistent with Brittany’s trial testimony that two men burst into Jahard’s 

home, brandished firearms, and opened fire. See N.T. Jury Trial (Day 1), 

8/1/11, at 76, 79-81. Notably, Brittany testified that one of gunmen’s faces

was covered by two black shirts wrapped around his head. See id. 

The PCRA court also found Ingram not credible due to his failure to 

report to police on the night of the incident and for failing to speak with 

Detective Kinavey. See PCRA Court Opinion, 12/15/22, at 6. However, 

Ingram provided credible explanations for his unwillingness to speak with 

authorities. Ingram testified that he was a known drug dealer and a 

trespasser in Crawford Village and did not come forward because admitting 

his presence as a known drug dealer at his girlfriend’s house, in Section 8 
J-A18021-23

- 21 -

housing, would cause her to lose her home.

18

 See N.T. PCRA Hearing, 

2/17/22, at 36-37, 41; see also 42 U.S.C. § 1437f(d)(1)(B)(iii) (relating to 

Section 8 housing and providing that “during the term of the lease . . . any 

drug-related criminal activity on or near such premises, engaged in by a 

tenant of any unit . . . or any guest or other person under the tenant’s control, 

shall be cause for termination of tenancy”). 

Regarding his refusal to speak with Detective Kinavey, Ingram testified 

that Detective Kinavey arrived at SCI Forest unannounced and attempted to 

interview him. Id. at 55-56. Ingram testified that he was afraid the other 

inmates would be able to see into the interview room and think that he was 

giving information to the police. See id. Ingram agreed to be recorded by 

Detective Kinavey “to tell him that I wanted to testify to the truthfulness” of 

the certified statement provided to PCRA counsel but that Ingram did not want 

to talk due to the presence of other inmates. See id. at 57-59.19 Ingram 

testified that, after Detective Kinavey left SCI Forest, Ingram spoke with 

Hereford’s PCRA counsel and conveyed his desire to be interviewed by 

____________________________________________

18 Moreover, we note that neither trespass nor drug offenses qualify as crimen 

falsi.

19 Detective Kinavey did record Ingram’s brief statement at this time. 

However, when PCRA counsel attempted to introduce the recording, the 

Commonwealth objected to its omission and the PCRA court sustained the 

objection. See id. at 52-54. Consequently, it is not a part of the certified 

record before this Court. Moreover, we observe that Detective Kinavey was 

present as a potential rebuttal witness at the PCRA hearing, but the 

Commonwealth chose not to call him to testify. See id. at 4-5; see id. at 90 

(Commonwealth stating they were not calling witnesses).
J-A18021-23

- 22 -

Detective Kinavey. Id. at 59-60. However, the Commonwealth made no 

second attempt to interview Ingram. Based upon the foregoing, and the PCRA 

court’s cursory conclusions, we fail to see how the above testimony detracts 

from Ingram’s credibility. On the contrary, Ingram’s testimony at the PCRA 

hearing reveals that he had a legitimate concern that other inmates may 

misinterpret the unannounced police visit. Moreover, Ingram indicated his 

willingness to conduct a second interview, which the Commonwealth did not 

pursue. 

Based upon the foregoing, we conclude that the PCRA court’s credibility 

determination is unsupported by the record. Accordingly, we address whether 

Hereford has satisfied the four-prong after-discovered evidence test required 

to warrant a new trial.

Initially, as we concluded supra, Hereford could not have obtained 

Ingram’s testimony with the exercise of due diligence for the purposes of 

satisfying the newly-discovered facts exception to the PCRA’s time bar. For 

the same reasons, we conclude that Hereford has satisfied the first prong of 

the after-discovered evidence test. 

Similarly, we conclude that Hereford has satisfied the second and third 

prongs of the test. Based upon our review, described at length supra, 

Ingram’s testimony is corroborated in part by the testimony of Brittany and 

Marcus. Additionally, Ingram’s testimony calls into question some parts of 

Marcus’s testimony. However, Ingram’s testimony is not purely for the sake 

of impeachment, nor is it entirely cumulative. Rather, as we detailed above, 
J-A18021-23

- 23 -

Ingram is the only known witness to have seen the two gunmen prior to their 

entry into Jahard’s home. Additionally, Ingram had unimpeded vantage points 

of both gunmen, and he could ascertain their approximate height, weight, and 

skin tone. See N.T. PCRA Hearing, 2/17/22, at 16-24, 36-42. No other 

witness presented this evidence. Consequently, we conclude that Hereford 

has satisfied the second and third prongs. See Commonwealth v. Small, 

189 A.3d 961, 974 (Pa. 2018) (“If the new evidence is of a different and 

[‘]higher[’] grade and character, though upon the same point, or of the same 

grade or character on a different point, it is not [‘]merely[’] corroborative or 

cumulative, and may support the grant of a new trial based on afterdiscovered evidence.”).

Regarding the final prong, whether Ingram’s testimony is likely to result 

in a different verdict, “a court should consider the integrity of the alleged afterdiscovered evidence, the motive of those offering the evidence, and the 

overall strength of the evidence supporting the conviction.” 

Commonwealth v. Padillas, 997 A.2d 356, 365 (Pa. Super. 2010)

(emphasis added). “[C]ases that have addressed [after-discovered evidence] 

have focused not simply on the credibility of the person offering the 

exculpatory evidence, but on the credibility or trustworthiness of the evidence 

itself, as well as the motive, or other impeaching characteristics, of those 

offering it.” Id. (quotation and citation omitted).

As we concluded above, the PCRA court’s credibility determination was 

not supported by the record, and we emphasize that the PCRA court did not 
J-A18021-23

- 24 -

analyze the overall strength of the evidence supporting Hereford’s convictions. 

Further, as we summarized above, Ingram’s testimony is supported by the 

record, and offers new probative evidence regarding the identification of the 

gunmen. Additionally, we note that at the PCRA hearing, Ingram testified that 

he was serving a 76-to-152-year sentence for homicide. See N.T. PCRA 

Hearing, 2/17/22, at 43, 50-51, 73-74. Ingram further testified that he was

not testifying in the hopes of securing a more lenient sentence. See id. at 

43; id. at 49 (“[Coming forward] doesn’t benefit me but—it doesn’t. Some 

type of way it makes me feel better because I’m coming to tell the truth 

basically. You know, knowing I know what was happening. But that’s 

something that can weigh on your conscience, you know, something like this 

happened, for the victim’s family, for [Hereford]’s family it’s—you know, it 

kind of makes me feel better coming forward saying what happened[.]”). 

Ingram testified that no one paid him, intimidated him, incentivized him, or 

otherwise induced him to testify. See id. at 42-43. Ingram stated that he 

came forward because he knew Hereford was not involved in the June 15, 

2010 homicide. See id. at 43; id. at 49 (“That’s what made me come forward 

was because now it’s more clear like well, I seen the shooter so I know 

[Hereford] wasn’t the shooter.”). Ingram further testified that he had 

originally believed Hereford was investigated, but not convicted of shooting 

the victims. Id. at 44-49.

Based upon our review of the record, the Commonwealth’s theory that 

Hereford was one of the shooters largely relied upon Marcus’s identification of 
J-A18021-23

- 25 -

Hereford. However, as summarized at length throughout this memorandum, 

Marcus’s identification was internally inconsistent, was at odds with Brittany’s 

testimony, and would be at odds with Ingram’s testimony. Furthermore, there 

is no forensic evidence linking Hereford to the scene of the murders.

20

 

Therefore, it is likely that Ingram’s testimony that Hereford was not one of 

the shooters, would result in a different verdict. See Medina, supra; see 

also Padillas, supra. We conclude that Ingram’s testimony is of such 

probative value, and is not merely cumulative or corroborative, and that it 

would likely result in a different verdict. Accordingly, we reverse the PCRA 

court’s order denying Hereford’s PCRA petition and remand for a new trial.

Order reversed. Case remanded for new trial. Jurisdiction relinquished.

____________________________________________

20 We note that, at trial, the Commonwealth also presented evidence of cell 

phone calls. See N.T. Jury Trial (Day 3), 8/3/11, at 436-44. The evidence at 

trial reflects that 13 to 16 calls were made from a cell phone number 

registered to Kirk, to a cell phone number registered to Hereford, immediately 

prior to and after the murders. See id. These calls were introduced into 

evidence by Detective Lane Zabelsky, a lay witness. See id.; see also 

Commonwealth Exhibits 209, 211, 212 (cell phone records). There was no 

expert testimony regarding the phone calls, no testimony or evidence 

regarding the location of the cell phones at the times these calls were made, 

and no testimony or evidence of what words, if any, were spoken. See N.T. 

Jury Trial (Day 3), 8/3/11, at 436-44 (Detective Zabelsky testifying 

exclusively based upon cell phone records that only document phone call

dates, times, and durations). Consequently, we merely note that this was the 

only other evidence presented by the Commonwealth tending to demonstrate

Hereford’s involvement. Nevertheless, we conclude that it is irrelevant to 

whether Ingram’s testimony is credible, constitutes appropriate afterdiscovered eyewitness evidence, or whether it would be likely to compel a 

different result. 
J-A18021-23

- 26 -

 DATE: 2/9/2024