### J-S58018- 14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MARK M. FISHER,

Appellant No. 1992 WDA 2013

Appeal from the PCRA Order Entered November 25

, 2013

In the Court of Common Pleas of Washington County

Criminal Division at No(s): CP

- 63

- CR -0002149-2007

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J. *



### MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 26, 2014

Appellant, Mark M. Fisher, appeals from the trial cour t’s November 25,

2013 order denying his petition for relief filed pur suant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546 . Appellant raises

nine claims of ineffective assistance of counsel (IAC). A fter careful review,

we affirm.

Following a jury trial in September of 2008, Appel lant was convicted of

second-degree murder, two counts of robbery, burglary, aggravated assault,

unlawful restraint, false impersonation of a private e mployee, reckless

endangerment, and conspiracy.

Appellant’s convictions stem[med] from his participation i n a

criminal event that occurred on January 29, 2003. At

____________________________________________

* 

### Retired Senior Judge assigned to the Superior Court.

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ap proximately 1:00 p.m. on the day in question, Thomas Miller,

a retired customer service representative for Equitable Gas

Company, observed three males who appeared to be abou t

twenty years old and who were wearing outdated Equit able Gas

Company attire. They were walking up the driveway o f the

residence of Shannon and Freda Dale on 613 Venetia Ro ad,

Venetia, Washington County. Mr. Dale was eighty-nine years old,

and Mrs. Dale was ninety years old.

Mr. Dale was standing outside his home when he was

approached by a Caucasian male who was wearing the vest of a

utility worker and was between thirty to forty years old. Mr. Dale

allowed the man into his home after the man said that he was

employed by the gas company and needed to enter the h ouse to

perform work. When Mr. Dale entered his house, he saw three

other men assaulting his wife. Mr. Dale and his wife w ere bound

with duct tape. Mr. Dale then was struck repeatedly on the head

and face, kicked in the torso, and had his finger twist ed so that

he would respond to questioning about the location of his

money. The four men proceeded to ransack the Dale hom e.

At approximately 3:00 p.m., Julia Heppner, a caregiv er to

the Dales, arrived at the residence. The garage door w as open[],

and Mrs. Dale’s purse was open[] on t he kitchen table and [the]

contents had been removed from that item. As Ms. Heppne r

looked into the hallway adjacent to the kitchen, she saw Mrs.

Dale lying on the floor bound by duct tape. Ms. Hep pner began

to search for a telephone when she heard Mr. Dale cry f or help.

She found Mr. Dale badly beaten. The telephone had been pulled

from the wall, so Ms. Heppner drove to a nearby store and

telephoned police from that location.

Peters Township Police Sergeant Donald E. Heinlein and

Peters Township Police Officer Brian Barbour responded t o the

call. At that time, there was a substantial amount of sn ow on the

ground. When the police officers arrived, they discover ed that

Mrs. Dale was dead. The coroner testified that she die d from a

heart attack that was caused by the attack. Mr. Dale was

bleeding from his face, had cuts and bruises on his face, and had

bruising in his right rib area. Brian Shugar, the EMS supervisor

who arrived at the scene shortly after the police, state d that Mr.

Dale appeared severely beaten and that Mr. Dale told Mr. Shugar

that he had been hit in the head as well as kicked i n the chest.

Mr. Dale was transported to the hospital where it was discovered

that three teeth had been knocked from his upper dent ure plate,

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and he had sustained a significant injury to his right eye, a

fractured rib, a twisted and swollen finger, and multi ple pricklike injuries on his lower legs.

Sergeant Heinlein and Officer Barbour found that the Dale

house, which was always very tidy, had been ransacked. Al l of

the drawers were pulled from furniture located in the bedroom

and dining room. The contents of the dining room dra wers had

been riffled through and thrown into a large pile o n the floor.

Appellant’s thumbprint was discovered on an envelope in that

pile of pape r. The duct tape that had bound the decedent’s

ankles contained her DNA as well as DNA of a male. The male

DNA could not be excluded as belonging to Appellant i n that only

one in 14,000 individuals in the Caucasian population would be

expected to be included as a potential contributor to t he mixture

of DNA contained on the duct tape that bound Mrs. Dale . Six

days after the crime, the snow had melted, and police

discovered a cigarette butt just outside the Dale home. Police

ascertained that neither the Dales[,] nor did anyone who came

to their house[,] smoked. Therefore, police took the b urnt

cigarette and had it tested for DNA. DNA was recovered from the

butt, and it perfectly matched Appellant’s DNA. Appell ant was

nineteen years old on the day of the incident.

Mr. Dale died on February 7, 2008. Prior to his deat h, he

indicated that he could identify the perpetrator who approached

him on January 29, 2003. Police showed him a photogra phic

array on March 19, 2003, and he chose the picture of a man

named Michael Marks as that man. Mr. Marks was initially

charged in connection with this crime, but when no othe r

evidence was found to link him to the incident, those c harges

were withdrawn. At trial, Appellant presented an ali bi defense.

His mother and sister- in -law testified that he was in Texarkana,

Arkansas, on January 29, 2003.

Commonwealth v. Fisher , No. 49 WDA 2009, unpublished memorandum

at 1-4 (Pa. Super. filed June 7, 2010) (footnote om itted).

After Appellant was convicted of the above-stated off enses, he wa s

sentenced to an aggregate term of life imprisonment wi thout the possibility

of parole. Appellant filed a timely notice of appea l and, after this Court

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affirmed his judgment of sentence, our Supreme Court d enied his petition

for allowance of appeal on February 9, 2011. Commonwealth v. Fisher , 6

A.3d 547 (Pa. Super. 2010) (unpublished memorandum)

, appeal denied , 15

A.3d 489 (Pa. 2011).

Appellant filed a timely counseled PCRA petition on February 8, 2012,

raising nine IAC claims involving the representatio n of his trial counsel,

Glenn Alterio, Esq. On February 6, 2013, the PCRA court conducted an

evidentiary hearing, at which Attorney Alterio and A ppellant testified. On

November 26, 2013, the court issued an order denying A ppellant’s PCRA

petition. He filed a timely notice of appeal and, h erein, he raises the

following nine issues for our review:

A. Did the PCRA [c]ourt err in failing to find that [t]rial [c]ounsel

rendered [IAC] when he failed to request a jury instr uction

informing the jury on the manner in which they should consider

the presentation of DNA evidence?

B. Did the PCRA [c]ourt err in failing to find that [t]rial [c]ounsel

rendered [IAC] in failing to request a line-up invol ving

[Appellant] and, thereby, deprived [Appellant] of a fair trial?

C. Did the PCRA [c]ourt err in failing to find that [t]rial [c]ounsel

rendered [IAC] in failing to preserve the testimony o f Mr. Dale as

to the identification of the actual perpetrator where the failure

resulted in the exclusion of material evidence indicati ng that Mr.

Dale had specifically identified Michael Marks[], rather than

[Appellant], as a perpetrator?

D. Did the PCRA [c]ourt err in failing to find that [t]rial [c]ounsel

rendered [IAC] when he failed to request a continuance of trial

and obtain the services of an expert in the fields of DNA analysis

and fingerprint identification?

E. Did the PCRA [c]ourt err in failing to find that [t]rial [c]ounsel

rendered [IAC] in failing to object or file a motion in limine to

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preclude the hearsay testimony of Sergeant Kevin Kolson

concerning Shannon Dale’s account of the incident which did not

fit within any exception to the hearsay rule?

F. Did the PCRA [c]ourt err in failing to find that [t]rial [c]ounsel

rendered [IAC] in failing to object or in failing to file a motion in

limine to preclude the hearsay statements of Mr. Dale b rought in

through Sergeant Kevin Kolson, the admission of which w ere in

violation of the Confrontation Clause, Sixth Amendme nt[] of the

United States Constitution and Article 1, § 9 of the P ennsylvania

Constitution?

G. Did the PCRA [c]ourt err in failing to find that [t]rial [c]ounsel

rendered [IAC] by failing to argue that the out- of -court

statement of Shannon Dale, concerning his identification of

Michael Marks, was admissible pursuant to the Due Process

exception to the hearsay rule?

H. Did the PCRA [c]ourt err in failing to find that [Appellant] was

denied effective assistance of counsel when [t]rial [c]oun sel

failed to object to misleading questions by the Assistant District

Atto rney when he asked [Appellant’s] alibi witnesses about their

failure to immediately notify law enforcement officer s they were

with [Appellant] on the date of the crime?

I. Did the PCRA [c]ourt err in failing to find that [Appellant] was

denied effective assistance of counsel when [t]rial [c]oun sel

failed to object when the Assistant District Attorney cro ss[- ]

examined alibi witness, Karyl Fisher[,] about her convi ction for

hindering the apprehension of a criminal in that the offense was

not crimen falsi?

Ap pellant’s Brief at 3.

Before delving into Appellant’s issues, we note that “[ t]his Court’s

standard of review from the grant or denial of post-co nviction relief is limited

to examining whether the lower court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Morales , 701 A.2d 516, 520 (Pa. 1997) (citing Commonwealth v.

Travaglia , 661 A.2d 352, 356 n.4 (Pa. 1995)). Where, as here , a petitioner

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claims that he received ineffective assistance of counsel, our Supreme Court

has stated that:

[A] PCRA petitioner will be granted relief only whe n he proves,

by a preponderance of the evidence, that his convicti on or

sentence resulted from the “[i]neffective assistance of coun sel

which, in the circumstances of the particular case, so

undermined the truth-determining process that no relia ble

adjudication of guilt or innocence could have taken pla ce.”

Generally, counsel’s performance is presumed to be

constitutionally adequate, and counsel will only be de emed

ineffective upon a sufficient showing by the petition er. To obtain

relief, a petitioner must demonstrate that counsel’s pe rformance

was deficient and that the deficiency prejudiced the pet itioner. A

petitioner establishes prejudice when he demonstrat es “that

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

unprofessional errors, the result of the proceeding woul d have

been different.” ... [A] properly pled claim of ineffect iveness

posits that: (1) the underlying legal issue has arguabl e merit;

(2) counsel’s actions lacked an objective reasonable basis; and

(3) actual prejudice befell the petitioner from counse l’s act or

omission.

Commonwealth v. Johnson , 966 A.2d 523, 532-33 (Pa. 2009) (citations

omitted).

Appellant first contends that Attorney Alterio rende red ineffective

assistance by not requesting a special jury instruction re garding how the

jury should evaluate the DNA evidence presented by the Commonwealth.

Appellant’s Brief at 20. Specifically, Appellant claim s counsel should have

sought an instruction similar to the following:

You have heard testimony about frequency estimates calc ulated

for matches between known reference DNA samples and some of

the DNA evidence items in this case. You have heard t estimony

concerning fingerprint evidence on an item at the scene. The

random match probability statistics used by DNA experts and the

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expert testimony regarding the presence of fingerprint evidence

is not the equivalent of a statistic that tells you the likelihood of

whether a defendant actually committed a crime or was i nvolved

in the perpetration of a crime. Neither the presence of DNA or

fingerprint evidence conclusively establishes that the De fendant

was present at the Dale residence on the date of the cri minal

activity or that he was a perpetrator in the criminal activity. It is

evidence being submitted to you for the purpose of show ing that

DNA and fingerprint evidence were found at the Dale residence

and you, as the finder of fact, must consider and deter mine what

significance to attach to the testing results and their p resence at

the scene.

Id. at 23.

In rejecting this claim, the PCRA court initially conclu ded that

Appellant’s argument essentially involved a challenge t o the sufficiency of

the evidence to sustain his convictions, which was previousl y litigated on

direct appeal. See PCRA Court Opinion (PCO), 11/25/13, at 8. The court

further determined that Attorney Alterio had a reaso nable explanation for

not requesting a special jury instruction regarding DNA evidence. See id. at

8- 9. We agree with, and adopt, the PCRA court’s analys is in both of these

regards.

However, we are compelled to address one argument App ellant raises

on appeal. He states:

At the time of the PCRA proceedings, it was anticipated the

failure of [t]rial [c]ounsel might be excused by the [PCRA]

[c]ourt because there is no case law on point requiring such an

instruction and that such an instruction is not contained in the

standard criminal jury instructions in Pennsylvania. Tha t was

exactly how the PCRA [c]ourt ruled in finding that th e prongs of

the ineffective assistance of counsel standard had not b een met.

What the PCRA [c]ourt overlooked and what this Hono rable

Court should not overlook is that, though the standard jury

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instructions do not provide this specific instruction o r there is no

case on point, to summarily render a conclusion that such

instruction is unnecessary is misplaced. Simply because a

standard jury instruction has yet to be provided or an appellate

case may not point out that a particular instruction i s required,

does not dispel counsel’s duty to ask for a specific instructi on

that fits the case and, if rejected by the trial court, [to] attempt

to make new law.

Appellant’s Brief at 28.

Appellant’s argument does not convince us that Attorney Alterio acted

ineffectively. It is well- established that “[c]ounsel cannot be deemed

ineffective for failing to predict developments or cha nges in the law.”

Commonwealth v. Gribble , 863 A.2d 455, 464 (Pa. 2004) (citing

Commonwealth v. Ogrod , 839 A.2d 294 (Pa. 2003); Commonwealth v.

Carpenter , 725 A.2d 154 (Pa. 1999)). Similarly, we decline t o find Attorney

Alterio ineffective for not attempting to instigate a change in the law

regarding jury instructions on DNA evidence. While ce rtainly, counsel could

have requested the above-stated jury instruction, he was not obligated to do

so under the law in existence at the time of Appellant ’s trial, or even under

the law as it stands today. See Commonwealth v. Spotz , 896 A.2d 1191,

1238 (Pa. 2006) (declining to find counsel ineffective for failing to request a

jury instruction that was first required by a case decid ed three years after

petitioner’s trial; stating that to prove ineffective ness, petitioner “mus t

demonstrate that trial counsel was ineffective under t he law in existence at

the time of trial”). Thus, Appellant has failed to p rove that Attorney Alterio

rendered ineffective representation.

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In Appellant’s second issue, he maintains that Attorney A lt erio acted

ineffectively by failing to request that Appellant pa rticipate in a pre-trial

lineup. After reviewing the briefs of the parties, the record, and the

applicable law, we conclude that the PCRA court’s opinio n adequately

addresses this claim of ineffectiveness. Accordingly, we a dopt the PCRA

court’s analysis of this issue. See PCO at 9- 10.

In Appellant’s next issue, he maintains that Attorney A lterio was

ineffective for not seeking to use “the subpoena power o f the [c]ourt to

compel Mr. Dale to testify ... at [Appellant’s] November 9, 2007 prelimina ry

hearing.” Appellant’s Brief at 35. The PCRA court con cluded that counsel

had a reasonable basis for his conduct. Specifically, Atto rney Alterio feared

that if Mr. Dale took the stand during the prelimina ry hearing, he would

identify Appellant as one of the assailants. See N.T. PCRA Hearing, 2/6/13,

at 25- 26. Based on the PCRA court’s discussion, which we adopt, we agree

with the court that Attorney Alterio had a reasonable strategy for not

seeking to have Mr. Dale testify at the preliminary h earing. See PCO at 10-

11.

However, the PCRA court did not address an alternativ e argument

encompassed within Appellant’s third IAC issue. Appella nt contends that

Attorney Alterio could have moved for Mr. D ale’s testimony to be taken and

preserved prior to trial under Pa.R.Crim.P. 500 (per mitting a party to move

for the court to “order the taking and preserving of t he testimony of any

witness who may be unavailable for trial”). Appellant maintains that he

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could have waived his right to be present during the taking of such

testimony, thereby alleviating Attorney Alterio’s conce rn that Mr. Dale would

identify Appellant. As such, Appellant argues that At torney Alterio had no

reasonable strategy for not seeking to take and preserve Mr. Dale’s

testimony under Rule 500.

However, at the PCRA hearing, Appellant’s counsel only questioned

Attorney Alterio regarding the Rule 500 issue as follo ws:

[Appellant’s Counsel:] Were you aware that under Penn sylvania

Rule of Criminal Procedure 500, you could have moved the Court

to preserve Mr. Dale’s testimony?

[Attorney Alterio:] Yes.

[Appellant’s Counsel:] Okay.

The Court: Counsel, let me just get this clear. I don’ t normally

interject, but

—

[Appellant’s Counsel:] Sure.

The Court: As I understand your trial tactic was that you di dn’t

want to take a chance that if Mr. Dale got on the stan d and saw

your client sitting there that he would [identify] hi m?

[Attorney Alterio:] That’s correct.

The Court: Okay, I understand. Go on Counsel, thank you.

[Appellant’s Counsel:] Would you agree that submittin g Mr.

Dale’s statement of identification at the time of tria l would have

assisted the defense?

[Attorney Alterio:] Yes.

[Appellant’s Counsel:] Okay. And you’ve already answe red my

qu estion as [to] why you did not attempt to preserve his

testimony and that was because you didn’t want to take the

chance that he might identify [Appellant] as the perpe trator?

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[Attorney Alterio:] Yes, since he had already given hi s

statements to the police and [they] were part of the o fficial

record.

[Appellant’s Counsel:] Okay, but didn’t he tell the t rooper that

he couldn’t identify anybody else? Is that true?

[Attorney Alterio:] That probably is true. I think that is correct.

PCRA Hearing at 26-27. At that point, Appellant’s PCRA counsel moved on

to question Attorney Alterio about another unrelated issue. Id. at 27.

It is apparent from this testimony that Appellant di d not specifically

confront Attorney Alterio with the fact that Appellan t could have waived his

right to be present under Rule 500, thereby avoiding the risk of Mr. Dale’s

identifying Appellant as one of the perpetrators. Be cause Appellant did not

raise this specific assertion at the PCRA hearing, Att orney Alterio did not

state whether he considered - or why he declined - the option of invoking

Rule 500 and waiving Appellant’s right to be present. We remind Appellant

that this Court must presume that Attorney Alterio ha d a reasonable basis

for his conduct, and it is Appellant’s burden to prove otherwise. See

Commonwealth v. Williams , 980 A.2d 510, 520 (Pa. 2009) (stating that

“counsel is presumed effective,” and it is a petitioner’s burden to prove each

prong of the ineffectiveness test, including that “counsel ... did not have a

reason able basis for his or her actions or failure to act”). B ased on this

record, Appellant has failed to satisfy that burden of proof.

In Appellant’s fourth issue, he contends that Attorney A lterio rendered

ineffective assistance when he failed to request a contin uance of trial to

obtain the services of experts in the fields of DNA and fingerprint analysis.

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After reviewing Appellant’s arguments in this vein, w e conclude that the

PCRA court’s opinion accurately disposes of the majority of his contentions.

Se e PCO at 11-13.

However, we note that the court did not address Appell ant’s assertion

that Attorney Alterio should have questioned a DNA e xpert about “whether

there were any potential weaknesses in the DNA evidence which he could

point out to the jury.” Appellant’s Brief at 45. For instance, Appellant stat es

that:

A review of Sample Q6, being the sample taken from t he duct

tape on Freda Dale’s blue pants, which purportedly con tains a

mixture of DNA from Mrs. Dale and [Appellant], disclo ses no

signal or flag in the category for [fibrinogen alpha chain (FGA)].

The lack of any signal in the FGA category is strong ev idence

that [Appellant] did not contribute to the mixture.

Id.

Appellant did not present any evidence (such as the test imony of a

DNA expert) at the PCRA hearing to prove that this l ack of “signal or flag in

the category” for FGA would have been a valid

- let alone “strong” - basis

upon which Attorney Alterio could have cross-examined th e

Commonwealth’s DNA expert. Therefore, Appellant has failed to

demonstrate that he was prejudiced by Attorney Alteri o’s failure to consult

with a DNA expert about ways to challenge the Commonw ealth’s DNA expert

on cross-examination.

Appellant’s fifth and sixth claims of ineffectiveness are related.

Appellant essentially argues that Attorney Alterio err ed by not objecting to,

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or seeking to exclude, Sergeant Kolson’s hearsay testimo ny concerning Mr.

Dale’s account of what occurred insi de the Dale residence during the attack.

The PCRA court concluded, inter alia , that counsel had a reasonable basis for

wanting Sergeant Kolson’s testimony to be admitted. W e agree with the

PCRA court’s well -reasoned analysis in regard to both of these issues. See

PCO at 13-18.

We add, however, that Appellant has also failed to pr ove he was

prejudiced by the admission of Sergeant Kolson’s testimo ny recounting Mr.

Dale’s description of the attack. The only argument Ap pellant proffers on

this point is hi s claim that “the egregiousness of the story, compounded by

the description of the aftermath[,] was not only prej udicial, but [it was] also

inflammatory....” Appellant’s Brief at 51. We disagree . Aside from Sergeant

Kolson’s testimony, the jury heard evid ence regarding the state in which

both victims were found ( i.e. lying on the floor bound with duct tape, Mrs.

Dale deceased, and Mr. Dale badly beaten), as well as d escriptions of the

injuries suffered by the Dales. In light of this evide nce, we fail to see the

“egregious” or “inflammatory” nature of Mr. Dale’s statem ent to Sergeant

Kolson describing that he was bound with duct tape and b eaten severely by

the perpetrators as they demanded money and ransacked his home.

Accordingly, even if Attorney Alterio should have obje cted to the admission

of Sergeant Kolson’s testimony, we would conclude that A ppellant was not

prejudiced by this purported error.

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In Appellant’s seventh IAC claim, he maintains that At torney Alterio

was ineffective for failing to argue that the out- of -court statement of Mr.

Dale, in which he identified Michael Marks as one of th e perpetrators, was

admissible under the “due process exception” to the rule prohibiting

hearsay. The PCRA court’s opinion thoroughly and adeq uately addresses

this issue. See PCO at 18- 24.

Likewise, the PCRA court accurately discusses Appellant’s e ighth issue,

in which he avers that Attorney Alterio acted ineffecti vely by failing to object

to misleading questions asked by the Commonwealth to Ap pellant’s two alibi

witnesses, Vikki and Karyl Fisher, regarding why they d id not “immediately

notify law enforcement officers [that] they were with [Appellant] on the date

of the crime.” Appellant’s Brief at 63. We adopt the PCRA court’s opinion as

our own regarding this claim. See PCO at 24- 30.

Finally, in Appellant’s ninth issue, he argues that Att orney Alterio

should have objected when the Commonwealth cross-examin ed Karyl Fisher

regarding her prior conviction for hindering the appr ehension of a criminal

(“hindering apprehension”). We adopt the PCRA court’s a nalysis of this

issue. See PCO at 30- 32. However, we add a brief discussion of Appellant’s

argument that Attorney Alterio improperly considered Fisher’s offense as

crimen falsi where Fisher “categorically denied ever lying to the police” when

she testified at trial. Appellant’s Brief at 68. App ellant maintains that when

Fisher denied her crime involved a false statement to p olice, Attorney Alterio

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should have objected to the Commonwealth’s admission of Fisher’s hindering

apprehension conviction.

Even if Attorney Alterio should have objected to the Commonwealth’s

line of questioning, Appellant has not proven that h e was prejudiced by

counsel’s failure to do so. First, Appellant offered n o evidence at the PCRA

h earing (such as the record of Fisher’s hindering apprehen sion conviction) to

prove that had Attorney Alterio objected, the Common wealth could not have

responded with proof that Fisher did admit to lying to police when pleading

guilty to that offense. Thus, he has failed to prove that an objection by

Attorney Alterio would have been sustained.

Moreover, Appellant’s claim that the outcome of the pr oceeding would

have been different had Attorney Alterio challenged the admission of Fisher’s

hindering apprehension offense is insufficient to prove prejudice. Appellant

claims that he was “greatly prejudiced” when the Commonw ealth

“improperly smeared the character of his alibi witness and discredited her

alibi testimony through illegitimate means.” Appella nt’s B rief at 68.

However, as the Commonwealth points out,

[t]he jury could have discredited the testimony of Kary l Fisher

for a variety of reasons ( e.g. , her delayed reporting to law

enforcement, her familial relationship with [Appellan t] and

obvious motive to lie in order to protect him, the fa ct that

[Appellant’s] fingerprint was found on an envelope on a desk of

papers in the victims’ home, the fact that his DNA was fo und on

items both inside and outside of the home, etc.).

Commonwealth’s Brief at 45 -46. Th e Commonwealth’s argument is sound.

We cannot agree with Appellant that there is a reason able probability the

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jury would have believed Fisher’s alibi testimony but for the evidence of her

hindering apprehension offense. Thus, Appellant faile d to prove he was

prejudiced by counsel’s alleged error in this regard.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/26/2014