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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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 court’s November 25, 

2013 order denying his petition for relief filed pursuant to the Post 

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

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

we affirm. 

 Following a jury trial in September of 2008, Appellant was convicted of 

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

unlawful restraint, false impersonation of a private employee, reckless 

endangerment, and conspiracy. 

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

criminal event that occurred on January 29, 2003. At 

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court.
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approximately 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 about 

twenty years old and who were wearing outdated Equitable Gas 

Company attire. They were walking up the driveway of the 

residence of Shannon and Freda Dale on 613 Venetia Road, 

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 house to 

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

other men assaulting his wife. Mr. Dale and his wife were bound 

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

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

he would respond to questioning about the location of his 

money. The four men proceeded to ransack the Dale home. 

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

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

and Mrs. Dale’s purse was open[] on the kitchen table and [the] 

contents had been removed from that item. As Ms. Heppner 

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

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

to search for a telephone when she heard Mr. Dale cry for 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 to the 

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

ground. When the police officers arrived, they discovered that 

Mrs. Dale was dead. The coroner testified that she died 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, stated 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 in the chest. 

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

that three teeth had been knocked from his upper denture 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 multiple pricklike injuries on his lower legs. 

Sergeant Heinlein and Officer Barbour found that the Dale 

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

the drawers were pulled from furniture located in the bedroom 

and dining room. The contents of the dining room drawers had 

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

Appellant’s thumbprint was discovered on an envelope in that 

pile of paper. 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 in that only 

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

expected to be included as a potential contributor to the 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 burnt 

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

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

nineteen years old on the day of the incident. 

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

indicated that he could identify the perpetrator who approached 

him on January 29, 2003. Police showed him a photographic 

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 other 

evidence was found to link him to the incident, those charges 

were withdrawn. At trial, Appellant presented an alibi 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 omitted). 

 After Appellant was convicted of the above-stated offenses, he was 

sentenced to an aggregate term of life imprisonment without the possibility 

of parole. Appellant filed a timely notice of appeal and, after this Court 
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affirmed his judgment of sentence, our Supreme Court denied 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 representation of his trial counsel, 

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

evidentiary hearing, at which Attorney Alterio and Appellant testified. On 

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

petition. He filed a timely notice of appeal and, herein, 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 instruction 

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 involving 

[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 of Mr. Dale as 

to the identification of the actual perpetrator where the failure 

resulted in the exclusion of material evidence indicating 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 brought in 

through Sergeant Kevin Kolson, the admission of which were in 

violation of the Confrontation Clause, Sixth Amendment[] of the 

United States Constitution and Article 1, § 9 of the Pennsylvania 

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]ounsel 

failed to object to misleading questions by the Assistant District 

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

failure to immediately notify law enforcement officers 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]ounsel 

failed to object when the Assistant District Attorney cross[-] 

examined alibi witness, Karyl Fisher[,] about her conviction for 

hindering the apprehension of a criminal in that the offense was 

not crimen falsi? 

Appellant’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-conviction 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 when he proves, 

by a preponderance of the evidence, that his conviction or 

sentence resulted from the “[i]neffective assistance of counsel 

which, in the circumstances of the particular case, so 

undermined the truth-determining process that no reliable 

adjudication of guilt or innocence could have taken place.” 

Generally, counsel’s performance is presumed to be 

constitutionally adequate, and counsel will only be deemed 

ineffective upon a sufficient showing by the petitioner. To obtain 

relief, a petitioner must demonstrate that counsel’s performance 

was deficient and that the deficiency prejudiced the petitioner. A 

petitioner establishes prejudice when he demonstrates “that 

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

unprofessional errors, the result of the proceeding would have 

been different.” ... [A] properly pled claim of ineffectiveness 

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

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

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

omission. 

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

omitted). 

 Appellant first contends that Attorney Alterio rendered ineffective 

assistance by not requesting a special jury instruction regarding how the 

jury should evaluate the DNA evidence presented by the Commonwealth. 

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

sought an instruction similar to the following: 

You have heard testimony about frequency estimates calculated 

for matches between known reference DNA samples and some of 

the DNA evidence items in this case. You have heard testimony 

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 involved 

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

fingerprint evidence conclusively establishes that the Defendant 

was present at the Dale residence on the date of the criminal 

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

evidence being submitted to you for the purpose of showing that 

DNA and fingerprint evidence were found at the Dale residence 

and you, as the finder of fact, must consider and determine what 

significance to attach to the testing results and their presence at 

the scene. 

Id. at 23. 

 In rejecting this claim, the PCRA court initially concluded that 

Appellant’s argument essentially involved a challenge to the sufficiency of 

the evidence to sustain his convictions, which was previously litigated on 

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

further determined that Attorney Alterio had a reasonable 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 analysis in both of these 

regards. 

 However, we are compelled to address one argument Appellant 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. That was 

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

the ineffective assistance of counsel standard had not been met. 

 What the PCRA [c]ourt overlooked and what this Honorable 

Court should not overlook is that, though the standard jury 
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instructions do not provide this specific instruction or 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 is required, 

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

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 changes 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 to find Attorney 

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

regarding jury instructions on DNA evidence. While certainly, 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 decided three years after 

petitioner’s trial; stating that to prove ineffectiveness, petitioner “must 

demonstrate that trial counsel was ineffective under the law in existence at 

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

rendered ineffective representation. 
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In Appellant’s second issue, he maintains that Attorney Alterio acted 

ineffectively by failing to request that Appellant participate 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 opinion adequately 

addresses this claim of ineffectiveness. Accordingly, we adopt the PCRA 

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

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

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

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

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

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

that if Mr. Dale took the stand during the preliminary 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 hearing. See PCO at 10-

11. 

 However, the PCRA court did not address an alternative argument 

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

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

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

for the court to “order the taking and preserving of the 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 concern that Mr. Dale would 

identify Appellant. As such, Appellant argues that Attorney 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 follows: 

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

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 didn’t 

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

your client sitting there that he would [identify] him? 

[Attorney Alterio:] That’s correct.

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

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

Dale’s statement of identification at the time of trial would have 

assisted the defense? 

[Attorney Alterio:] Yes. 

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

question 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 perpetrator? 
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[Attorney Alterio:] Yes, since he had already given his 

statements to the police and [they] were part of the official 

record. 

[Appellant’s Counsel:] Okay, but didn’t he tell the trooper 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 did not specifically 

confront Attorney Alterio with the fact that Appellant 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. Because Appellant did not 

raise this specific assertion at the PCRA hearing, Attorney 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 had 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 

reasonable basis for his or her actions or failure to act”). Based on this 

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

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

ineffective assistance when he failed to request a continuance 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, we conclude that the 

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

See PCO at 11-13. 

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

that Attorney Alterio should have questioned a DNA expert 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 states 

that: 

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

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

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

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

The lack of any signal in the FGA category is strong evidence 

that [Appellant] did not contribute to the mixture. 

Id. 

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

DNA expert) at the PCRA hearing to prove that this lack 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 the 

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

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

with a DNA expert about ways to challenge the Commonwealth’s DNA expert 

on cross-examination. 

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

Appellant essentially argues that Attorney Alterio erred by not objecting to, 
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or seeking to exclude, Sergeant Kolson’s hearsay testimony concerning Mr. 

Dale’s account of what occurred inside 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. We 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 prove he was 

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

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

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

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

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

Kolson’s testimony, the jury heard evidence 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 descriptions of the 

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

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

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

the perpetrators as they demanded money and ransacked his home. 

Accordingly, even if Attorney Alterio should have objected to the admission 

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

prejudiced by this purported error. 
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In Appellant’s seventh IAC claim, he maintains that Attorney 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 the perpetrators, was 

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

hearsay. The PCRA court’s opinion thoroughly and adequately addresses 

this issue. See PCO at 18-24.

Likewise, the PCRA court accurately discusses Appellant’s eighth issue, 

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

to misleading questions asked by the Commonwealth to Appellant’s two alibi

witnesses, Vikki and Karyl Fisher, regarding why they did 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 Attorney Alterio 

should have objected when the Commonwealth cross-examined Karyl Fisher 

regarding her prior conviction for hindering the apprehension of a criminal 

(“hindering apprehension”). We adopt the PCRA court’s analysis 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. Appellant maintains that when 

Fisher denied her crime involved a false statement to police, 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 he was prejudiced by 

counsel’s failure to do so. First, Appellant offered no evidence at the PCRA 

hearing (such as the record of Fisher’s hindering apprehension conviction) to 

prove that had Attorney Alterio objected, the Commonwealth 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 proceeding 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 Commonwealth 

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

alibi testimony through illegitimate means.” Appellant’s Brief at 68. 

However, as the Commonwealth points out, 

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

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

enforcement, her familial relationship with [Appellant] and 

obvious motive to lie in order to protect him, the fact that 

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

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

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

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

We cannot agree with Appellant that there is a reasonable 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 failed 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