J-S12008-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

GARY DAVIS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 608 EDA 2021

Appeal from the PCRA Order Entered March 9, 2021

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

No(s): CP-51-CR-0002634-2013

BEFORE: BENDER, P.J.E., BOWES, J., and DUBOW, J.

MEMORANDUM BY BENDER, P.J.E.: FILED JULY 8, 2022

Appellant, Gary Davis, appeals from the order dismissing his petition 

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-

9546. After careful review, we affirm.

Appellant’s convictions stemmed from the events of December 8, 2012, 

at the Easy Corner Bar in Philadelphia, where Appellant was caught on video 

fatally shooting the victim, Irving Vaughn. As summarized by Appellant,

[i]t was not disputed that Appellant shot and killed the decedent 

at trial. Instead, Appellant asserted that he acted in self-defense, 

and portions of the incident were captured by the bar’s video 

surveillance. ... In sum, Philadelphia Police responded to a 

shooting at the Easy Corner Bar in Philadelphia on December 8, 

2012. When police arrived, they found the decedent suffering 

from gunshot wounds to the neck, torso, and finger. They also 

obtained a video from the bar’s manager which showed much of 

the incident.

The video showed Appellant entering the bathroom of the bar. 

The decedent, seemingly guided by Appellant’s female cousin, 

walked into the bathroom to have a conversation with Appellant. 
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The cousin did not believe that there was any tension or issue 

between Appellant and the decedent. The video did not show what 

happened in the bathroom, but eventually, the door to the 

bathroom flew open. It was then possible to see Appellant and 

the decedent struggling over a firearm. Appellant eventually shot 

the decedent, put a gun in his waistband, and left the bar. 

Appellant testified that he acted in self-defense and had shot the 

decedent with a gun that Appellant wrestled away from the 

decedent. He testified that he did not start the fight and that he 

thought the two men were just going to have a conversation. No 

witnesses testified to the contrary.

Appellant’s Brief at x-xi. A thorough review of the facts adduced at trial was

provided by the trial court during the litigation of Appellant’s direct appeal. 

See Trial Court Opinion, 3/4/16, at 2–21. 

Following a bifurcated jury/nonjury trial held in early 2015, Appellant 

was convicted of third-degree murder, reckless endangerment, possessing an 

instrument of crime, and two firearm violations.1 On August 18, 2015, the 

trial court sentenced Appellant to an aggregate term of 30-60 years’

incarceration. After Appellant’s post-sentence motion was denied by 

operation of law, he filed a timely notice of appeal. This Court affirmed 

Appellant’s judgment of sentence. Commonwealth v. Davis, 159 A.3d 48 

(Pa. Super. 2016) (unpublished memorandum). Appellant did not seek further 

review with our Supreme Court.

____________________________________________

1 A jury convicted Appellant of all these crimes, but for one of the firearm 

violations, on February 23, 2015. “On that same day, [Appellant] executed a 

valid waiver of his right to a jury trial and [the trial court] found him guilty”

of the remaining firearm offense. PCRA Court Opinion (“PCO”), 6/29/21, at 

1. 
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Appellant filed, pro se, the at-issue PCRA petition on July 25, 2017, and 

appointed counsel filed amended PCRA petitions on Appellant’s behalf on 

February 27, 2019, and November 26, 2019 (collectively “the petition”). On 

January 21, 2021, pursuant to Pa.R.Crim.P. 907, the PCRA court issued notice

of its intent to dismiss the petition without a hearing. On March 10, 2021, the 

court dismissed the petition. 

Appellant filed a timely notice of appeal on March 29, 2021. He then 

filed a Pa.R.A.P. 1925(b) statement on May 26, 2021, although the PCRA court 

did not order him to do so. The court issued its Rule 1925(a) opinion on June 

29, 2021. 

Appellant now presents the following questions for our review:

I. Whether the PCRA court erred in denying [the petition] 

without an evidentiary hearing where trial counsel and 

appellate counsel failed to properly challenge the 

prosecutor’s opening statement assertion that Appellant had 

the face of a murderer?

II. Whether the PCRA court erred in denying [the petition]

without an evidentiary hearing where trial and appellate 

counsel were ineffective in failing to challenge the trial 

court’s decision to admit the surprise testimony of the 

surrogate assistant medical examiner that the decedent was 

shot from behind instead of from the front where that 

testimony was beyond the scope of the expert report?

III. Whether the PCRA [c]ourt should have held an evidentiary 

hearing on the assertion that Appellant’s biographical report 

had been altered to suggest that he was taller than he really 

is, thereby improperly weakening his clam of self-defense?

Appellant’s Brief at vii.

This Court reviews
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an order dismissing a petition under the PCRA in the light most 

favorable to the prevailing party at the PCRA level. This review is 

limited to the findings of the PCRA court and the evidence of 

record. We will not disturb a PCRA court’s ruling if it is supported 

by evidence of record and is free of legal error. This Court may 

affirm a PCRA court’s decision on any grounds if the record 

supports it. Further, we grant great deference to the factual 

findings of the PCRA court and will not disturb those findings 

unless they have no support in the record. However, we afford no 

such deference to its legal conclusions. Where the petitioner 

raises questions of law, our standard of review is de novo and our 

scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (internal 

citations omitted). 

Here, the record does not include a PCRA hearing, because the PCRA 

court declined to hold one. In these circumstances, we note that

the right to an evidentiary hearing on a post-conviction petition is 

not absolute. It is within the PCRA court’s discretion to decline to 

hold a hearing if the petitioner’s claim is patently frivolous and has 

no support either in the record or other evidence. It is the 

responsibility of the reviewing court on appeal to examine each 

issue raised in the PCRA petition in light of the record certified 

before it in order to determine if the PCRA court erred in its 

determination that there were no genuine issues of material fact 

in controversy and in denying relief without conducting an 

evidentiary hearing.

Commonwealth v. Khalifah, 852 A.2d 1238, 1239–40 (Pa. Super. 2004) 

(citations omitted).

In his first two claims, Appellant asserts that his prior attorneys provided

ineffective assistance of counsel (“IAC”). In reviewing IAC claims, we

begin with the presumption that counsel rendered effective 

assistance. To obtain relief on a claim of ineffective assistance of 

counsel, a petitioner must rebut that presumption and 

demonstrate that counsel’s performance was deficient, and that 

such performance prejudiced him. Strickland v. Washington, 
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466 U.S. 668, 687–91 (1984). In our Commonwealth, we have 

rearticulated the Strickland Court’s performance and prejudice 

inquiry as a three-prong test. Specifically, a petitioner must 

show: (1) the underlying claim is of arguable merit; (2) no 

reasonable basis existed for counsel’s action or inaction; and (3) 

counsel’s error caused prejudice such that there is a reasonable 

probability that the result of the proceeding would have been 

different absent such error. Commonwealth v. Pierce, 527 

A.2d 973, 975 (Pa. 1987).

Commonwealth v. Dennis, 17 A.3d 297, 301 (Pa. 2011) (citations 

reformatted, some internal citations omitted).

I

Appellant first claims that his trial and/or direct-appeal attorney failed 

to properly challenge a statement made during the Commonwealth’s opening

regarding Appellant’s appearance. During that opening statement, the 

prosecutor told the jury:

I sometimes wonder in my job, and this is maybe like an 

occupational hazard, but I think about murder a lot. It’s what I 

do. I think about it a lot, probably not very healthy. I think about 

when a person commits murder, when a person takes life from 

another violently, I wonder to myself—

[At this point, the trial court overrules defense counsel’s brief 

objection to “what the Commonwealth wonders” as not being 

“appropriate” for an opening statement.]

I wonder what is the look on the person’s face, because I don’t 

know. I have an idea from movies, TV, but I don’t know. What 

is a look of a person who rips life from another? Is it disbelief? Is 

it panic? Is it fear? Is it horror?

Well, if for some reason any of you have ever thought or wondered 

about that moment, you have come to the right place because 

[Appellant] is on tape. Yeah, it’s on tape. 

You will see [Appellant]’s face, his face the moment he murdered 

Irving Vaughn, shooting him four times. Folks, it’s cold. There’s 

no panic. There’s no fear. It’s ice. [Appellant] stood over Irving 
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Vaughn’s lifeless body, tucking that gun under his sweater with 

ice in his veins, no emotion. And he walked off, sauntered off out 

of that bar. It’s on video.

N.T. Trial, 2/10/15, at 54-55. Appellant’s trial counsel did not make any 

further objection to these remarks. 

Appellant argues that the Commonwealth’s opening statement to the 

jury constituted misconduct because the “prosecutor described her personal 

feelings to the jury and expressed her personal belief that Appellant had the 

face of a murderer. This was a statement in which she expressed an improper 

personal opinion which was not supported by the evidence.” Appellant’s Brief 

at 8. Appellant maintains that his appellate counsel provided IAC by failing to 

raise this prosecutorial misconduct claim on direct appeal. Alternatively, to 

the extent that the issue was not adequately preserved at trial for purposes 

of review on direct appeal, Appellant claims that trial counsel provided IAC by 

failing to preserve it. Appellant further asserts that the merit of the underlying 

claim of prosecutorial misconduct is supported by our Supreme Court’s 

decision in Commonwealth v. Capalla, 185 A. 203 (Pa. 1936). 

As an initial matter, we conclude that appellate counsel did not provide 

IAC in the circumstances of this case. Trial counsel’s limited and debatably 

premature objection did not fully encapsulate the argument Appellant now 

raises regarding the nature of the prosecutor’s purported misconduct during 

the Commonwealth’s opening statement. Thus, the matter was effectively 

waived for review on direct appeal. As such, counsel cannot be deemed 

ineffective for failing to raise a claim on direct appeal that had been waived at 
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trial. See Commonwealth v. Spotz, 18 A.3d 244, 278 (Pa. 2011) (holding 

“[t]here is no merit to [a] claim that appellate counsel was ineffective for 

failing to raise, on direct appeal, a waived claim of trial court error related to 

[a] prosecutor’s comments”). This is axiomatic because it is “elementary that 

issues not preserved for appellate review ... will not be considered by an 

appellate court.” Commonwealth v. McKenna, 383 A.2d 174, 179 (Pa. 

1978).

Consequently, we turn to consider Appellant’s claim that trial counsel 

provided IAC by not challenging the entirety of the portion of the prosecutor’s 

opening statement that opined on Appellant’s appearance as it relates to his 

culpability. 

An IAC claim 

grounded in trial counsel’s failure to object to a prosecutor’s 

conduct may succeed when the petitioner demonstrates that the 

prosecutor’s actions violated a constitutionally or statutorily 

protected right, such as the Fifth Amendment privilege against 

compulsory self-incrimination or the Sixth Amendment right to a 

fair trial, or a constitutional interest such as due process. To 

constitute a due process violation, the prosecutorial misconduct 

must be of sufficient significance to result in the denial of the 

defendant’s right to a fair trial. The touchstone is fairness of the 

trial, not the culpability of the prosecutor. Finally, not every 

intemperate or improper remark mandates the granting of a new 

trial; reversible error occurs only when the unavoidable effect of 

the challenged comments would prejudice the jurors and form in 

their minds a fixed bias and hostility toward the defendant such 

that the jurors could not weigh the evidence and render a true 

verdict.

Commonwealth v. Koehler, 36 A.3d 121, 144 (Pa. 2012) (cleaned up).
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Thus, in order for Appellant to be entitled to relief, we first consider 

whether the prosecutor’s comments were forbidden due to their impact on a 

constitutionally or statutorily protected right. Second, if the comments were 

prohibited, we then consider whether they were so egregious that the

“unavoidable effect” was to create in the jurors’ minds “a fixed bias and 

hostility toward” Appellant that undermined the fairness of his trial. Id.

The PCRA court determined that the prosecutor’s comments were not 

improper:

These comments were appropriate since the prosecutor intended 

to present to the jury a video of [Appellant’s] shooting the victim. 

The jury would be able to view the video for themselves, observe 

[Appellant]’s demeanor, and draw their own conclusions. 

Moreover, the prosecutor did not improperly label [Appellant] “a 

murderer;” the Commonwealth’s position at trial was that 

[Appellant] murdered Irving Vaughn.

PCO at 6. The court further noted that “this comment was based upon 

evidence the prosecutor planned to introduce at trial....” Id. at 7. The 

Commonwealth also maintains that “nothing in the prosecutor’s opening 

statement rose to the level of prosecutorial misconduct” and that the 

“prosecutor was commenting on the evidence she intended to present at 

trial—a video that showed [Appellant] killing the victim.” Commonwealth’s 

Brief at 12. 

Appellant argues that the prosecutor’s comments “involved her own 

personal opinion of guilt, an inappropriate claim of expertise as to what a 

murderer’s face looks like, and an attempt to stigmatize Appellant and unfairly 

inflame the passions of the jury against him.” Appellant’s Brief at 5. Appellant 
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further claims our Supreme Court’s decision in Capalla is “directly on point[.]” 

Id. at 8.

In Capalla, our Supreme Court held that Capalla was entitled to a new 

trial when the prosecutor described him as a “cold-blooded killer” before the 

jury. However, in the intervening years, the law significantly evolved from 

our Supreme Court’s ruling in Capalla, culminating with the Hight Court’s

holding in Commonwealth v. Clancy, 192 A.3d 44 (Pa. 2018). In Clancy, 

addressing the same language at-issue in Capalla, our Supreme Court held 

that automatic reversal is not required where the statement of prosecutor 

under consideration is tethered to the facts of the case and the 

Commonwealth’s burden to prove each element of the charged offenses. The 

Clancy Court explained:

Consistent with our clear departure from Capalla’s rigid standard, 

and mindful of our concomitant allowance of oratorical flair, we 

hold that offense-centric statements generally are permissible. 

These are statements that speak to the elements of the particular 

charges levelled against the defendant and the evidence 

necessary to prove those elements at trial, such as those at issue 

in Hall[2] and Chamberlain.

[3]

 The prosecutor must be free to 

argue that the facts of record establish every element of the crime 

charged, and must be free to respond fairly to the arguments of 

the defense. Thus, we should not preclude or condemn a 

prosecutor’s characterizations of the defendant that are 

both based upon the record and that inherently inform 

elements of an offense at issue, especially where the remarks 

constitute a fair response to defense counsel’s argument. 

However, when statements deteriorate into impermissible 

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2 Commonwealth v. Hall, 701 A.2d 190 (Pa. 1997).

3 Commonwealth v. Chamberlain, 30 A.3d 381 (Pa. 2011). 
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characterizations and inflammatory name-calling that are 

divorced from the record or irrelevant to the elements of the crime 

at issue, they are substantially unwarranted and must be 

scrutinized for prejudicial effect.

Clancy, 192 A.3d at 65 (emphasis added).

Appellant contends that “this was not the arguably fair commentary at 

issue in Clancy but instead [the prosecutor’s] own personal opinion that 

Appellant had the face of a murderer. The prosecutor in Clancy did not talk 

about their own personal feelings and thoughts, making that case 

distinguishable.” Appellant’s Brief at 11.

First, we disagree with Appellant’s characterization of the record insofar 

as he suggests that the prosecutor made a broad generalization about 

Appellant’s appearance in relation to his guilt; the prosecutor did not suggest 

in a vacuum that Appellant’s face looked like that of a murder. While directly 

referencing the video of the killing that would be shown to the jury, the 

prosecutor invited the jury to consider the expressions on Appellant’s face. 

Appellant’s accusation that the prosecutor expressed “her personal belief that 

Appellant had the face of a murderer[,]” id. at 8, is inaccurate as it suggests 

that the prosecutor had commented impermissibly on Appellant’s permanent 

facial features as suggestive of his guilt, rather than the temporary facial 

expressions he exhibited in the immediate aftermath of the shooting. 

Furthermore, we conclude that Appellant’s temporary facial expression 

at that time is a relevant matter for the jury consideration. As the 

Commonwealth explains,
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because [Appellant] admitted to killing the victim but claimed he 

acted in justifiable self-defense, his state of mind was the key 

element at issue. To meet her burden of proof, the prosecutor 

was well within her rights to argue that [Appellant]’s facial 

expression in the video showed that he was not acting out of fear 

for his own safety when he shot the victim.

Commonwealth’s Brief at 13. 

We agree with the Commonwealth. The prosecutor’s statements during 

her opening argument were not impermissible in the circumstances of this 

case. The prosecutor’s comments on Appellant’s facial expressions were 

directly tethered to video evidence that would be presented to the jury in the 

Commonwealth’s case-in-chief, and also spoke to the core issue to be decided 

by the jury, which was whether Appellant had acted in self-defense, or with 

malice,

4

in the killing of Irving Vaughn. “The prosecutor is free to argue that 

the evidence leads to the conclusion of guilt, and is permitted to suggest all 

favorable and reasonable inferences that arise from the evidence.” 

Chamberlain, 30 A.3d at 408. Appellant’s demeanor in the immediate 

aftermath of the shooting, as evidenced by his facial expressions, could give 

rise to reasonable inferences regarding whether he acted in self-defense or 

with malice, although it was undisputed that he killed the victim. Thus, the 

prosecutor’s comments were permissible under Clancy. Accordingly, we 

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4 “Third[-]degree murder occurs when a person commits a killing which is 

neither intentional nor committed during the perpetration of a felony, but 

contains the requisite malice.” Commonwealth v. Kling, 731 A.2d 145, 147 

(Pa. Super. 1999). “Malice exists where there is a wickedness of disposition, 

hardness of heart, cruelty, recklessness of consequences, and a mind 

regardless of social duty, although a particular person may not be intended to 

be injured.” Id. at 147–48 (cleaned up). 
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conclude that Appellant’s first IAC claim lacks arguable merit and, therefore, 

he is not entitled to relief. See Commonwealth v. Fears, 86 A.3d 795, 804 

(Pa. 2014) (stating the failure “to prove any prong of this test will defeat an 

ineffectiveness claim[,] and that “counsel cannot be deemed ineffective for 

failing to raise a meritless claim”).

II

In his second claim, Appellant asserts that trial counsel was ineffective 

for failing to object to portions of the expert testimony by the Commonwealth’s 

trial expert that differed from the conclusions of the author of the autopsy 

report. As background:

Dr. Gary Collins performed the autopsy on victim Irving Vaughn 

and prepared the autopsy report. N.T. Trial, 2/10/15, at 124. Dr. 

Albert Chu reviewed Dr. Collins’ report, photographs of the body, 

toxicology reports, and the video of the shooting. Id. at 124-25,

131. Dr. Chu testified at trial as an expert in forensic pathology 

since Dr. Collins was unavailable.3 Dr. Chu testified that he did 

not agree with Dr. Collins’ findings that the bullet traveled from 

the front to the back of the neck, stating that after his review of 

the video, which Dr. Collins[] did not have access to, Dr. Chu 

believed it was more likely that the bullet traveled from back to 

front. Id. at 131. The Commonwealth then wanted to play the 

video and ask Dr. Chu questions about it. Defense counsel 

objected to Dr. Chu[’s] testifying about the video and requested a 

side bar conversation, at which time he argued that the 

Commonwealth was “attempting to add additional testimony to be 

[sic] beyond what is in the report relating to asking this witness 

about reviewing the video, and, assuming, to elicit some 

additional opinions that were not provided to the defense in 

discovery in relation to his review of the video.” Id. at 146-47. 

The Commonwealth argued that it wanted to show the video so 

Dr. Chu could explain why he did not adopt Dr. Collins’ report in 

full and why he disagreed as to the entry and exit direction of the 

bullet. This [c]ourt ruled that Dr. Chu could testify regarding why 

his opinion differed from Dr. Collins’ based on the video since this 
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testimony was already on the record and was not objected to 

when he first said it. However, Dr. Chu could not add to his 

testimony and opine as to when he believed Irving Vaughn 

became incapacitated and unable to move after being shot. Id.

at 152-153. 

3 At the time of trial, Dr. Collins no longer worked in 

Philadelphia. He had left his position to begin serving as the

Chief Medical Examiner for the State of Delaware. Id. at

124.

PCO at 7-8 (citations reformatted). 

Appellant contends that his trial counsel was ineffective for failing to 

initially object to the portion of Dr. Chu’s testimony where he disagreed with 

Dr. Collins’ autopsy report as to the trajectory of the bullet that caused the 

victim’s neck wound. Appellant maintains that he was effectively ambushed 

by critical expert testimony regarding the nature of a mortal wound to the 

victim, because Dr. Chu’s differences of opinion with Dr. Collins were not 

provided in discovery. He argues that his trial counsel could not have had a 

reasonable basis for failing to object in a timely fashion to those portions of 

Dr. Chu’s testimony.5 Appellant also argues that he was prejudiced by 

____________________________________________

5 Appellant also argues in the alternative that, if trial counsel’s objection was 

sufficient to preserve this claim, that his appellate counsel was ineffective for 

failing to raise that claim on direct appeal. Here, trial counsel’s objection was 

substantively on point, as he argued at trial that Dr. Chu was offering a new 

and distinct opinion regarding the nature and timing of the neck wound, 

effectively contradicting part of Dr. Collins’ report. See N.T. Trial, 2/10/15, 

at 150-51. However, the record also demonstrates that the trial court had 

denied the objection, in part, because Dr. Chu had already testified without 

objection regarding his new theory about the trajectory of the neck-wound 

bullet. Id. at 151-52. The court sustained Appellant’s objection insofar as it 

related to Dr. Chu’s difference of opinion with Dr. Collins’ report about the 

timing of the shots, as trial counsel’s objection was timely made in response 

(Footnote Continued Next Page)
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counsel’s failure to object because he was not prepared to address the new 

expert testimony.

Generally, 

evidentiary rulings are within the general province of the trial 

courts and will not be overturned by an appellate court absent an 

abuse of discretion, as, for example, when the law is overridden 

or misapplied. In terms of the applicable law, expert testimony is 

generally admissible if: the witness has a specialized knowledge 

beyond that possessed by the average layperson; such knowledge 

will help the trier of fact to understand the evidence or to 

determine a fact in issue; and the expert’s methodology is 

generally accepted in the relevant field. See Pa.R.E. 702.

Commonwealth v. Maconeghy, 171 A.3d 707, 712 (Pa. 2017) (citation 

omitted). 

In criminal cases, 

Pa.R.Crim.P. 573(D) provides that both parties have a continuing 

duty to disclose evidence that is requested prior to trial that is 

subject to disclosure ... including any expert information and 

reports.

...

Although there are no rules of procedure in criminal cases 

precisely governing expert reports, it cannot be asserted that 

either the Commonwealth or a defendant has carte blanche to 

allow an expert to testify beyond the information contained in his 

or her report. To hold otherwise would eviscerate the requirement 

that reports be disclosed.

____________________________________________

to that testimony. Because trial counsel’s objection to Dr. Chu’s new theory 

as to the bullet’s trajectory was untimely, that issue was waived for purposes 

of appellate counsel’s ability to raise it on direct appeal. Thus, we consider 

this claim solely with respect to trial counsel’s alleged ineffectiveness for 

failing to issue a timely objection to Dr. Chu’s new theory regarding the 

directionality of the bullet wound to the victim’s neck. As with Appellant’s first 

IAC issue, his counsel on direct appeal cannot be deemed ineffective for failing 

to raise a claim that was waived at trial. 
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Commonwealth v. Roles, 116 A.3d 122, 131–32 (Pa. Super. 2015).

However, even where the Commonwealth violates the rules of discovery 

by providing expert testimony at trial that exceeds the scope of the disclosed 

report, a petitioner must still show that he was prejudiced in order to prevail 

on an IAC claim that counsel was ineffective for failing to object to the 

discovery violation. See Commonwealth v. Henry, 706 A.2d 313, 328 (Pa. 

1997); see also Roles, 116 A.3d at 133 (“A discovery violation and testimony 

exceeding the scope of the expert’s report ... do not automatically command 

a new trial. [The appellant] still must establish that the introduction of the 

expert testimony caused him prejudice to the degree that it affected his trial 

strategy or likely affected the outcome of the proceedings.”). 

Here, the PCRA court determined that Appellant could not have been 

prejudiced by counsel’s failure to object, even if the other elements of the IAC 

test were met:

[Appellant] is unable to prove that he was prejudiced by the 

admission of Dr. Chu’s testimony regarding the trajectory of the 

bullet. In his amended petition, [Appellant] argues that he was 

“denied a fair trial when Dr. Chu gave his opinion about the 

direction the bullet took” because “it permitted the 

Commonwealth to argue and the jury to infer that [Appellant] shot 

the victim as the victim was fleeing from him in contravention of 

[Appellant’s] testimony and his defense of self-defense.” [Brief in 

Support of Appellant’s Amended PCRA Petition, 2/27/19, at] 14. 

However, [Appellant] fails to explain how Dr.] Chu’s opinion 

allegedly unraveled his entire theory of the case. During 

[Appellant]’s own testimony at trial, he stated that he and victim 

Irving Vaughn were engaged in “tussling” and “vicious fight[ing]”

in a small public restroom, with “[a] lot of clothes getting gripped 

up and bodies slammed back and forth.” []N.T. [Trial,] 2/13/15, 

[at] 58-65[]. [Appellant] testified that when he grabbed the gun 
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from the victim’s waistband and fired, he was not aiming at any 

“specific place on the body, just the body.” [Id. at] 66-67[]. 

Thus, whether the victim was facing toward or away from 

[Appellant] when he shot has no bearing on [Appellant]’s selfdefense argument since [Appellant] testified that he just shot in 

the direction of Vaughn’s body during the struggle. Since 

[Appellant] is unable to prove that Dr. Chu’s testimony prejudiced 

him, no relief is due.

PCO at 9-10. 

We agree with the PCRA court. Initially, we note our general agreement

with Appellant that evidence that a victim was shot from behind will often be 

influential, if not fully determinative, of a jury’s assessment of the credibility 

of a defendant’s self-defense claim. Additionally, we agree with Appellant that 

the failure to disclose to the defense evidence of such a fact in a timely fashion 

is objectionable, and that a defense attorney’s failure to object to such 

evidence might provide grounds for a new trial in some circumstances. 

However, in this case it was undisputed that Appellant and the victim 

were engaged in a tussle for the firearm when Appellant fired multiple shots

at the victim in quick succession. Thus, in the specific circumstances of 

Appellant’s self-defense claim, the fact that one of those shots may have 

entered from the back of the victim’s neck rather than the front was 

immaterial to Appellant’s self-defense claim. Thus, the credibly of Appellant’s 

self-defense claim turned not on the trajectory of any particular bullet (even 

in small part), but instead on the credibility of Appellant’s testimony about

how the altercation began off-camera immediately preceding the shooting, as 

well as other circumstantial evidence not related to the nature of the victim’s 
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bullet wounds. The Commonwealth argued that Appellant drew his firearm 

first, whereas Appellant testified that the victim drew first, and that he was 

attempting to disarm the victim when the shots were fired as seen on the 

video. With these competing narratives, the direction of the bullet through 

the victim’s neck was unlikely to be a determinative factor in the jury’s 

decision.

In his reply brief, Appellant emphasizes that the Commonwealth 

exploited the admission of Dr. Chu’s testimony by arguing to the jury that “the 

Commonwealth heavily relied on the replacement medical examiner’s novel 

opinion to argue that the decedent had been immediately shot in the back of 

the neck and collapsed.” Appellant’s Reply Brief at 5. He further asserts that 

the prosecutor “specifically argued that the jury should not find Appellant 

acted in self-defense because the decedent’s body provided a version of 

events which would show that he was only shot in the back.” Id. at 3.

Appellant’s assertions misrepresent the record. In the portion of the 

Commonwealth’s closing argument cited by Appellant in support of this claim, 

the prosecutor acknowledged that the first shot was a bullet that caused 

multiple wounds and ultimately lodged in the victim’s shoulder. N.T. Trial, 

2/17/15, at 69-70 (“That’s when [Appellant] fires, and that first shot goes 

right through Irving's finger, right into his shoulder”). That was not the shot 

that was the subject of Dr. Chu’s disagreement with Dr. Collins. At no point 

did the prosecutor assert that the victim was only shot in the back. The only 

change in the sequence of events suggested by Dr. Chu’s new testimony was 
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that three shots hit the victim from behind rather than two. In any event, the 

jury was able to view the video of the shooting and could judge for themselves 

how the sequence of shots affected the credibility of Appellant’s self-defense 

claim; it was not solely reliant on the expert report as the only source of 

objective evidence regarding the circumstances of the shooting. We also note 

that the jury returned a not-guilty verdict on the charge of first-degree 

murder, suggesting that it had rejected any inference that the shots to the 

victim’s back constituted specific intent to kill the victim, even after the victim 

was incapacitated by the shot to his neck. 

Finally, Appellant asserts that “[h]ad trial counsel known that the 

medical examiner would have an entirely different conclusion regarding the 

trajectory of the bullets, he could have potentially retained his own expert, 

prepared additional cross-examination, addressed the issue in opening 

statements, or even considered whether to engage in plea negotiations.” 

Appellant’s Reply Brief at 5. As discussed above, Dr. Chu’s testimony only 

changed with respect to the trajectory of one bullet. In any event, Appellant 

provides only speculation as to how he would have benefited from obtaining 

his own expert. He did not proffer a new expert opinion in the petition, nor 

did he proffer any expert testimony for an evidentiary hearing. Likewise, 

Appellant fails to explain how he would have cross-examined Dr. Chu 

differently, or changed his opening argument, to such an extent that it would 

give rise to a reasonable probability that the outcome of the trial would be 

different. Appellant also baldly asserts that Dr. Chu’s new testimony would 
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have affected plea negotiations, but he fails to elaborate on this point. We 

fail to see how a fact that we do not believe had a significant effect on 

Appellant’s verdict in the circumstances of this case could have nonetheless 

affected Appellant’s decision to pursue a different course of action regarding 

a plea. 

Accordingly, we ascertain no error in the PCRA court’s determination

that there was no reasonable probability that the jury’s verdict would have 

been different had the trial court sustained an objection by Appellant’s trial 

counsel regarding the portion of Dr. Chu’s testimony that differed from Dr. 

Collins’ autopsy report. As Appellant has failed to demonstrate that he was 

prejudiced by counsel’s failure to timely object, his second IAC claim lacks 

merit. See Fears, supra. 

III

In his final claim, Appellant asserts that the PCRA court erred by failing 

to conduct an evidentiary hearing to address his trial counsel’s ostensible 

ineffectiveness, due to counsel’s failure to investigate the altering of 

biographical information (specifically, his self-reported height) by police 

during their investigation. Appellant contends that his height was misreported 

intentionally, for the purposes of undermining his self-defense claim by 

minimizing the size difference between Appellant and the victim. Appellant 

contends that

when the police interviewed Appellant shortly after his arrest, he 

told the interviewing officer that he was 5’ 6” tall. Appellant would 

have testified at an evidentiary hearing that the officer put down 
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that information on the form. However, the form later showed 

that someone altered the six into an eight.[6] [Reproduced Record 

at 394]. Trial counsel failed to investigate the alteration or 

challenge it at trial despite the fact that Appellant advised counsel 

of the alteration[,] and despite the fact that the prosecutor argued 

that because Appellant was only two inches shorter than the 5’

10” tall victim, he did not have the right to use deadly force.

Appellant’s Brief at 25.

It is axiomatic that an attorney may be deemed ineffective for failing to 

adequately investigate in preparation for trial; in such cases, prejudice “can 

be demonstrated by alleging beneficial information or issues that counsel 

should have presented had he been prepared adequately, which would have 

changed the outcome of the trial.” Commonwealth v. Elliott, 80 A.3d 415, 

432 (Pa. 2013). 

Here, the PCRA court found that Appellant

is unable to show that he was prejudiced by any failure to 

investigate this alleged alteration. During his testimony, 

[Appellant] stated that the biographical information was incorrect, 

that he was only 5’ 6” tall, and therefore [that] Vaughn was 4”

taller than him. []N.T. [Trial,] 2/13/15, [at] 125-26[]. 

[Appellant] testified that “[e]verything else is correct but that” one 

detail about his height. Id. at 126. Thus, the jury was aware that 

the height differential was either [two inches] based upon the 

biographical report or [four inches] based upon [Appellant]’s 

testimony. The jury, who viewed the video of the shooting, could 

make their own determination regarding the size difference 

between the victim and [Appellant]. In the end, the jury did not 

believe [Appellant]’s claim of self-defense and found him guilty of 

murder. Since [Appellant] is unable to show prejudice due to trial 

counsel’s failure to investigate an alleged alteration to the 

____________________________________________

6 On the Biographical Information Report, we note that it appears as if a 

correction of some sort was made, such that either the “6” was written over 

with an “8,” or vice versa. However, it is not obvious which number was 

written first. 
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biographical report, trial counsel cannot be found ineffective for 

failing to do so.

PCO at 15. 

We agree with the PCRA court. Even assuming Appellant could prove at 

an evidentiary hearing that he is only 5’ 6’’, and assuming that his trial counsel

would have testified at a hearing that he had no reasonable basis for failing 

to investigate the discrepancy on the biographical information form (or 

assuming the PCRA court would conclude that counsel’s basis for not 

investigating the issue was unreasonable), Appellant still would have to 

demonstrate that his counsel would have uncovered evidence that the 

biographical information had been intentionally altered in order to undermine 

Appellant’s self-defense claim. Appellant fails to explain how he or his counsel 

could provide evidence that the form had been intentionally altered. Most 

importantly, Appellant fails to identify what other witnesses or evidence he 

could have presented at an evidentiary hearing to establish intentional

misconduct of that nature. Appellant did not proffer any other witnesses or 

evidence in the petition for that purpose. Appellant’s underlying claim of 

intentional misconduct is pure speculation; he has not proven, nor offered a 

means to prove, that the alleged misconduct occurred, and so Appellant has 

failed to show that he was prejudiced by counsel’s failure to investigate such 

a speculative claim. See Commonwealth v. Lawrence, 165 A.3d 34, 48 

(Pa. Super. 2017) (holding that where an “underlying ... allegation is 

unsupported by any evidence of record and is, instead, based on mere 

speculation, we deem it, and the ineffectiveness claims premised upon it, 
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meritless”). Accordingly, we conclude that the PCRA court did not err in 

denying Appellant’s third IAC claim without a hearing. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/8/2022