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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOSHUA HOLMES 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 497 EDA 2023

Appeal from the PCRA Order Entered February 22, 2023

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

No(s): CP-51-CR-0003018-2010

BEFORE: LAZARUS, P.J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, P.J.: FILED AUGUST 1, 2024

Joshua Holmes appeals from the order, entered in the Court of Common 

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

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

Holmes’ counsel, George S. Yacoubian, Jr., Esquire, filed a petition to withdraw 

and an Anders brief.

1

 After review, we grant counsel’s petition to withdraw 

and affirm the order of the PCRA court. 

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 A brief filed pursuant to Anders v. California, 386 U.S. 738 (1967), is

proper where counsel seeks to withdraw his or her representation in a direct

appeal. A Turner/Finley no-merit letter is the appropriate filing in an 

application to withdraw on collateral review. See Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213

(Pa. Super. 1998) (en banc). However, “[b]ecause an Anders brief provides

greater protection to a defendant, this Court may accept an Anders brief in

lieu of a Turner/Finley letter.” Commonwealth v. Widgins, 29 A.3d 816,

(Footnote Continued Next Page)
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The PCRA court set forth the relevant facts of this matter as follows:

[Holmes] was convicted of third-degree murder in the death of 

Donovan Raheem Weary, also known as “Double.” [Holmes’] 

brother, Joseph Holmes [(Joseph)], (collectively “Holmes 

brothers”) was convicted of first-degree murder of Weary. [] 

Weary was a street-level drug dealer [who] used Joseph [] as one 

of his suppliers. Joseph “fronted” Weary crack cocaine once or 

twice a week in January and February of 2008, which Weary sold 

in the area of 7000 Forrest Avenue and 7100 Ogontz Avenue. On 

February 14, 2008, Weary called Joseph [] at his home and they 

arranged to meet regarding money that Weary owed Joseph for 

drugs that Joseph had advanced to Weary. Joseph’s girlfriend, 

Niamah Fisher [] and [] Holmes were present when Joseph 

received the call. Joseph then told Holmes to go down to the 

basement to get a gun. After Holmes came back up, the three left 

the Holmes brothers’ home. Fisher walked north on Forrest 

Avenue toward Homer Street and the Holmes brothers walked 

south on Forrest Avenue toward Middleton Street. After joining 

up with Weary, Holmes and Joseph walked down an alley that runs 

parallel to Forrest Avenue, between Forrest and Ogontz Avenues 

____________________________________________

817 n.2 (Pa. Super. 2011) (citation omitted).

On March 22, 2024, after review of counsel’s first Anders brief, this Court 

entered an order directing counsel to comply with the substantive 

requirements of Turner/Finley, and provide an explanation as to why 

counsel believed Holmes’ issues were meritless. See Judgment Order, 

3/22/24. Although counsel’s second filing, received on March 26, 2024, is 

once again titled as an “Anders” brief, he has substantially complied with this 

Court’s order and the Turner/Finley requirements. Upon review, counsel

has satisfied the requirements of Turner/Finley. Attorney Yacoubian (1) set 

forth the issues Holmes wished to raise; (2) stated he has conducted a 

thorough review of the record and applicable law; (3) determined there are 

no non-frivolous claims Holmes can raise; and (4) explained why Holmes’

claims lack merit. Attorney Yacoubian has notified Holmes by letter of his 

intention to seek permission to withdraw from representation, and Holmes’

rights in lieu of representation. See Application to Withdraw, 7/17/23; Letter, 

11/19/23, filed 3/25/24; Letter, 7/16/23, filed 3/26/24. See Widgins, 

supra. See also Commonwealth v. Daniels, 947 A.2d 795, 798 (Pa. 

Super. 2008) (stating Anders brief which complies substantially with the 

requirements of Turner/Finley is sufficient to permit withdrawal of counsel); 

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (same).
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and between Middleton and Homer Streets. Fisher saw the three 

men walking towards Homer Street and then saw Joseph and 

Weary exchange something. She then saw Joseph push Weary up 

against a garage and shoot him twice in the head. Joseph saw 

Fisher on Homer Street and followed her home. Holmes arrived 

at Fisher’s home while Joseph was talking to Fisher and held her 

arms while Joseph told Fisher that she should be quiet or she 

would be next. 

The crime remained unsolved until November 2009, when Fisher, 

believing that she was about to be replaced in Joseph’s affections, 

called the police and told them about the murder and gave the 

police a signed statement with details of the murder. Fisher later 

reconciled with Joseph. At trial, she repudiated her statement, 

which was then admitted into evidence. Based on Fisher’s 

statement[,] the police located another witness, Raymond 

Johnson, who gave a statement indicating that[,] after hearing 

shots[,] he saw Holmes and Joseph running from the crime scene. 

Johnson also repudiated his statement at trial and it was also 

admitted into evidence. 

On April 29, 2009, the police executed a search warrant of [the] 

Holmes residence and found two firearms in the basement that 

were similar to the firearm used in the murder. Neither firearm 

was the murder weapon.

PCRA Court Opinion, 6/6/23, at 1-2 (citations omitted). 

At trial, the Commonwealth established that Holmes heard that Joseph 

was going to meet with the victim, went to the basement to get a gun at 

Joseph’s direction, accompanied Joseph to meet with the victim, was with 

Joseph when he shot the victim twice in the head, fled the crime scene, and 

met up with Joseph and helped to threaten Fisher, the only witness to the 

crime. Trial Court Opinion, 1/27/12, at 4. The medical examiner testified that 

the victim died of two gunshot wounds to his head. The gun was in contact 

with the victim's head for one shot, and the other shot was fired at close 

range. Id. at 3.
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On June 13, 2011, a jury convicted Holmes of third-degree murder.

2

 

The trial court sentenced Holmes to serve a term of 15 to 35 years’ 

imprisonment. On direct appeal, this Court affirmed. See Commonwealth 

v. Holmes, 2704 EDA 2011 (Pa. Super. filed Feb. 2, 2013) (unpublished 

memorandum decision). Holmes filed a petition for allowance of appeal, which 

the Pennsylvania Supreme Court denied on August 19, 2013. See 

Commonwealth v. Holmes, 74 A.3d 125 (Pa. 2013) (Table). On June 9, 

2014, Holmes filed a pro se PCRA petition. On July 6, 2019, Attorney 

Yacoubian filed an amended PCRA petition; he filed a second amended PCRA 

petition on June 29, 2021. Both petitions alleged after-discovered evidence. 

In his PCRA petition, “[Holmes] submitted an affidavit from Brandon Jackson, 

who indicated that he saw [Holmes] within minutes of the shooting in 

[Holmes’] home, and he neither saw [Holmes] with a firearm nor observed 

[Holmes] acting nervous or agitated.” PCRA Opinion, 6/6/23, at 3. 

On February 22, 2023, the PCRA court dismissed Holmes’ petition. This 

timely appeal and motion to withdraw followed. Counsel has identified the 

following issues for our review: (1) whether the PCRA court erred in denying

an evidentiary hearing on Holmes’ after-discovered evidence claim involving 

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2 Holmes’ co-defendant, his brother Joseph, was found guilty of murder of the 

first degree, and possession of an instrument of crime (PIC). Joseph also filed 

an appeal from his judgment of sentence, and this Court remanded for an 

evidentiary hearing after which the trial court denied a new trial. On appeal, 

this Court affirmed. Commonwealth v. Holmes, 2082 EDA 2013 (Pa. Super.

filed June 16, 2014) (unpublished memorandum decision). The Pennsylvania 

Supreme Court denied allowance of appeal. Commonwealth v. Holmes, 

316 EAL 2014, (Pa. filed Oct. 8 2014). 
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Brandon Jackson; and (2) whether the PCRA court erred in denying Holmes’ 

after-discovered evidence claims involving Raymond Johnson and Naimah 

Fisher, both of whom recanted their trial testimony. 

In reviewing an order denying PCRA relief, our well-settled standard of 

review is “whether the determination of the PCRA court is supported by the 

evidence of record and is free of legal error. The PCRA court’s findings will 

not be disturbed unless there is no support for the findings in the certified 

record.” Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013) 

(internal quotations and citations omitted).

Under the PCRA, a petitioner is eligible for relief if he can plead and 

prove by a preponderance of the evidence that his conviction resulted from 

“[t]he unavailability at the time of trial of exculpatory evidence that has 

subsequently become available and would have changed the outcome of the 

trial if it had been introduced.” 42 Pa.C.S.A. § 9543(a)(2)(vi). An afterdiscovered evidence claim requires a petitioner to establish that “(1) the 

evidence has been discovered after trial and it could not have been obtained 

at or prior to trial through reasonable diligence; (2) the evidence is not 

cumulative; (3) it is not being used solely to impeach credibility; and (4) it 

would likely compel a different verdict[ ]” if a new trial were granted. 

Commonwealth v. Cox, 146 A.3d 221, 228 (citation and quotation marks 

omitted). “The test is conjunctive; the defendant must show by a 

preponderance of the evidence that each of these factors has been met in 

order for a new trial to be warranted.” Commonwealth v. Padillas, 997 
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A.2d 356, 363 (Pa. Super. 2010) (citations omitted). We have stated, prior 

to granting a new trial based on after-discovered evidence, “a court must 

assess whether the alleged after-discovered evidence is of such a nature and 

character that it would likely compel a different verdict if a new trial is 

granted.” Id. at 365. In making this assessment, “a court should consider 

the integrity of the alleged after-discovered evidence, the motive of those 

offering the evidence, and the overall strength of the evidence supporting the 

conviction.” Id. (citations omitted).

Further, it is well settled that

[t]here is no absolute right to an evidentiary hearing on a PCRA 

petition, and if the PCRA court can determine from the record that 

no genuine issues of material fact exist, then a hearing is not 

necessary. To obtain reversal of a PCRA court’s decision to 

dismiss a petition without a hearing, an appellant must show that 

he raised a genuine issue of fact which, if resolved in his favor, 

would have entitled him to relief, or that the court otherwise 

abused its discretion in denying a hearing.

Commonwealth v. Maddrey, 205 A.3d 323, 328 (Pa. Super. 2019) (citations 

and quotation marks omitted). 

After our review, we conclude that no relief is due. Jackson’s signed 

statement, which indicated that he was with Holmes minutes after the 

shooting and that Holmes did not appear agitated and did not have a firearm, 

does not constitute after-discovered evidence. Jackson’s statement clearly 

was not discovered after trial. In his statement, Jackson asserts he spoke 

with Holmes shortly after the shooting. Because Holmes was present for and 

allegedly took part in this interaction, he cannot now claim that he was 
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unaware of Jackson’s possible testimony. See Cox, supra. Further, this 

evidence would be “merely corroborative or cumulative” of other alibi evidence 

Holmes introduced at trial. Holmes’ brother, his brother’s girlfriend, and his 

mother testified that they were with Holmes at the time of the shooting and 

that he did not have a firearm. See N.T. Jury Trial, 6/10/2011, at 25-26, 39-

42, 55-58. Jackson’s possible alibi testimony merely supports other similar 

alibi evidence presented at trial. See Cox, supra; Padillas, supra.

Next, Holmes alleges after-discovered evidence in the form of 

recantations of Fisher and Johnson and the pattern and practice of former 

Philadelphia Police Detective James Pitts in the course of obtaining statements 

from witnesses. Holmes refers to various newspaper articles and legal

documents with respect to Detective Pitts.

3

On November 11, 2009, Fisher gave a statement to Detective Robert 

Hesser that Holmes shot and killed the victim. Because Fisher was becoming 

agitated with Detective Hesser’s questioning, Detective Pitts and Detective 

Glenn Jenkins continued the interview. Fisher signed the written statement 

and gave police letters from Joseph that showed his efforts to control and 

intimidate her. At trial, the letters were read to the jury and Fisher 

acknowledged that Holmes sent those letters to her. See N.T. Jury Trial, 

6/8/11, at 8-12.

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3 See Commonwealth v. Thorpe, No. CP-51-CR-0011433-2008 (Phila. Cty. 

filed Nov. 3, 2017) (PCRA court granted relief after finding that Detective Pitts 

had engaged in coercive conduct when interviewing witnesses in that case and 

other cases).
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One month later, Fisher contacted counsel for Holmes and reported that 

she only gave her statement because she was angry with Joseph for cheating 

on her. Her recantation statement of December 23, 2009, however, made no 

reference to improper conduct by Detective Pitts. It was only at the 

preliminary hearing, in March of 2010, that Fisher claimed her statement was 

coerced by Detective Pitts.

As an initial matter, Fisher’s recantation statement is not afterdiscovered evidence as it was made prior to trial. Clearly, this evidence could 

have been obtained prior to the conclusion of trial by the exercise of 

reasonable diligence. See Padillas, supra. Further, even though Detective 

Pitts took the statement from Fisher, Fisher first reported the shooting to 

Detective Hesser. Moreover, at trial, the Commonwealth read into evidence 

the threatening letters from co-defendant Joseph to Fisher and played 

recorded phone calls from Joseph to Fisher where he attempted to discourage 

Fisher from testifying at trial. Another Holmes brother, Abraham Holmes, 

admitted at trial that Joseph told him to prevent Fisher from attending the 

preliminary hearing. See N.T. Jury Trial, 6/10/2011, at 19-22.

We also point out that Detective Pitts’ misconduct in other cases does 

not prove he coerced Fisher to falsely implicate Holmes in this case. To the 

contrary, as stated above, the evidence presented at trial established that codefendant Joseph intimidated Fisher into recanting her statement and 

illustrated his hold over Fisher. As required by the holding in Padillas, the 

PCRA court considered the integrity of the alleged after discovered evidence, 
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the motive of those offering said evidence, and the overall strength of the 

evidence supporting the underlying conviction. The PCRA court determined, 

and we agree, that it is more likely Fisher recanted her testimony out of fear 

of Joseph rather than because her statement was coerced by Detective Pitts.

4

With respect to Johnson’s recantation statement, we find this, too, does 

not qualify as after-discovered evidence. At trial, Johnson testified that he did 

not make the statements attributed to him. Holmes cannot claim that 

Johnson’s recantation statement, which was consistent with his testimony at 

trial, is after-discovered evidence. 

We conclude that the PCRA court’s decision is supported by the evidence 

of record and free from legal error. See Barndt, supra. Accordingly, Holmes’

claims merit no relief. We affirm the PCRA court’s order and grant counsel’s 

application to withdraw. 

Order affirmed. Application to withdraw as counsel granted.

Date: 8/01/2024

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4 We note that Holmes does not include in his petition any statement made by 

Fisher with respect to alleged coercion by Detective Pitts.
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