J-S37039-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TYREE PEEL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 27 EDA 2022

Appeal from the PCRA Order Entered December 16, 2021

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

No(s): CP-51-CR-0011697-2015

BEFORE: BOWES, J., LAZARUS, J., and OLSON, J.

MEMORANDUM BY OLSON, J.: FILED JANUARY 10, 2023

Appellant, Tyree Peel, appeals from the December 16, 2021 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. We affirm.

The PCRA court summarized the factual and procedural history as 

follows:

On the evening of August 15, 2015, Appellant encountered

Thomas Holman, decedent, [“the victim”] at [7:00 p.m.] at the 

intersection of 53rd and Upland Streets in the city and county of

Philadelphia, Pennsylvania. The two men conversed briefly, and 

Appellant drew a handgun. [The victim] turned and tried to run 

away. Appellant fired several rounds at the unarmed [victim],

striking him in the chest, ribs, and buttocks. [The victim] fell and 

began crawling away from Appellant. Appellant walked toward 

the victim, stood over him, and shot him in the head, killing him

instantly.

[] Appellant's jury trial [began] on May 15, 2017. The 

Commonwealth presented the testimony of [] two eyewitnesses 
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who knew the Appellant previously and saw Appellant shoot the 

victim[.1] The Commonwealth also presented testimony from the 

police and the medical examiner. [The eyewitness] testified that 

she was standing on the front steps of her home at the time of 

the shooting. She [contacted the victim] to buy some marijuana 

from him. [The eyewitness] called out to him when she [saw] him 

at the nearby intersection [on the day of the incident], but he held 

up his index finger in a [“]just-a-minute[”] gesture and [then] 

crossed the street. [The eyewitness] saw him talking to Appellant, 

whom she knew as "Freaky.” Moments later, she saw Appellant 

pull out a [hand]gun, shoot [the victim], and then fire the final 

shot to the head as he stood over the fallen victim. [Upon seeing 

this, the eyewitness] ran into her house[. W]hen she came back 

out, she saw [the victim’s girlfriend] cradling [the victim] in the 

street and crying for help. [The eyewitness] viewed the murder 

from no more than 30 feet away, in broad daylight.

[The victim’s girlfriend] testified that [the victim] was her 

boyfriend. They were going to a family cookout on the day of the 

murder, and [the victim] left the house ahead of her. [The victim’s 

girlfriend] followed shortly after. As she left the house, she saw 

Appellant conversing with [the victim] at the intersection [where 

the incident occurred, which was] about 45 feet [from where the 

victim’s girlfriend was located. The victim’s girlfriend] heard 

several gunshots a moment later. She dropped her bag and 

[tele]phone, looked up, and saw Appellant standing over [the 

victim]. Describing herself as "in shock," [the victim’s girlfriend]

went to [the victim] as Appellant left. [The victim] was 

nonresponsive and surrounded by "so much blood." A crowd 

gathered, and [the] police arrived a few minutes later. The 

frightened [victim’s girlfriend] noticed Appellant looking on from 

the crowd.

On May 19, 2017, the jury returned a verdict of guilty [on the 

criminal charges of:] first[-]degree murder, 18 Pa.C.S.[A.]

§ 2502; possessing an instrument of crime, 18 Pa.C.S.[A.] § 907; 

carrying a firearm without a license, 18 Pa.C.S.[A.] § 6106; and 

carrying a firearm on a public street [in Philadelphia, 

Pennsylvania], 18 Pa.C.S.[A.] § 6108. On May 19, 2017, the trial 

court sentenced Appellant to a mandatory term of life in prison 

____________________________________________

1 For ease of identification and distinction, we refer to the two eyewitnesses 

as “the eyewitness” and “the victim’s girlfriend.”
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without the possibility of parole [for Appellant’s first-degree 

murder conviction. The trial court also imposed] an aggregate 

sentence of ten [] to twenty [] years[’ imprisonment] to run 

consecutive[ly] to the term of life [in prison] for the remaining 

charges. Appellant filed post-sentence motions on May 26, 2017, 

which the trial court denied on September 25, 2017[,] by 

operation of law.

Appellant filed a timely appeal on October 23, 2017. Appellant 

raised a single claim on direct appeal: [whether] the trial court 

erred in denying his request for a Kloiber[2]instruction to be given

to the jury[? This Court] affirmed his judgment of sentence on 

[November 14, 2018,] and [our] Supreme Court denied 

Appellant's petition for allowance of appeal on April 23, 2019. 

[See Commonwealth v. Peel, 2018 WL 5961394 (Pa. Super.

filed Nov. 14, 2018) (unpublished memorandum), appeal denied, 

207 A.3d 287 (Pa. 2019).]

PCRA Court Opinion, 6/29/22, at 1-3 (extraneous capitalization omitted).

On July 9, 2020, Appellant filed pro se a PCRA petition, his first. Counsel 

was appointed for Appellant, and on January 22, 2021, counsel filed an 

amended PCRA petition that included, inter alia, a request for a PCRA

evidentiary hearing. On April 13, 2021, counsel filed a motion for leave to file 

a supplemental amended PCRA petition. That same day, counsel filed a 

supplemental amended PCRA petition.3 On August 3, 2021, the 

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2 Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954). “A Kloiber

instruction informs the jury that an eyewitness identification should be viewed 

with caution when either the witness did not have the opportunity to view the 

defendant clearly, equivocated on the identification of the defendant, or has 

had difficulties identifying the defendant on prior occasions.” 

Commonwealth v. Williams, 255 A.3d 565, 577 n.15 (Pa. Super. 2021)

(citation omitted).

3 The PCRA court docket does not include an order granting Appellant’s request 

to file a supplemental amended PCRA petition. Nonetheless, because a 
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Commonwealth filed a motion to dismiss Appellant’s supplemental amended 

PCRA petition. On November 22, 2021, the PCRA court provided Appellant 

notice, pursuant to Pa.R.Crim.P. 907, of its intent to dismiss his PCRA petition 

without an evidentiary hearing and provided Appellant 20 days to file a 

response. Appellant did not file a response. On December 16, 2021, the PCRA 

court dismissed Appellant’s PCRA petition. This appeal followed.

Appellant raises the following issues for our review:

1. Did the PCRA court err in dismissing Appellant's PCRA 

petition without [an evidentiary] hearing because trial 

counsel was ineffective for failing to file a motion to 

suppress the single photograph identifications of Appellant?

2. Did the PCRA court err in dismissing Appellant's PCRA 

petition without [an evidentiary] hearing because trial 

counsel was ineffective for not calling Sharon Butcher or 

other identifiers of [a person other than Appellant as the 

shooter] as witnesses and confronting them with police 

paperwork that indicated that they had identified [this 

second person] as the shooter?

Appellant’s Brief at 4 (extraneous capitalization omitted).

In addressing Appellant’s issues, we are mindful of our well-settled 

standard and scope of review of an order denying a PCRA petition. Proper 

appellate review of a PCRA court’s denial of a petition is limited to the 

examination of “whether the PCRA court’s determination is supported by the 

record and free of legal error.” Commonwealth v. Miller, 102 A.3d 988, 

____________________________________________

supplemental amended PCRA petition was filed and accepted by the PCRA 

court, it logically follows that the PCRA court granted Appellant’s motion for 

leave to file the same.
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992 (Pa. Super. 2014) (citation omitted). “The PCRA court’s findings will not 

be disturbed unless there is no support for the findings in the certified record.” 

Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citations 

omitted). “This Court grants great deference to the findings of the PCRA court, 

and we will not disturb those findings merely because the record could support 

a contrary holding.” Commonwealth v. Hickman, 799 A.2d 136, 140 

(Pa. Super. 2002) (citation omitted). In contrast, we review the PCRA court’s 

legal conclusions de novo. Commonwealth v. Henkel, 90 A.3d 16, 20 

(Pa. Super. 2014) (en banc), appeal denied, 101 A.3d 785 (Pa. 2014).

Appellant’s issues raise claims alleging that trial counsel provided 

ineffective assistance. Appellant’s Brief at 9-16. “It is well-established that 

counsel is presumed effective[.]” Commonwealth v. Koehler, 36 A.3d 121, 

132 (Pa. 2012), citing Strickland v. Washington, 466 U.S. 668, 687-691 

(1984). To plead and prove a claim of ineffective assistance of counsel, “a 

petitioner must establish: (1) that the underlying issue has arguable merit; 

(2) counsel's actions lacked an objective reasonable basis; and (3) actual 

prejudice resulted from counsel's act or failure to act.” Commonwealth v. 

Stewart, 84 A.3d 701, 706 (Pa. Super. 2013) (en banc), appeal denied, 93 

A.3d 463 (Pa. 2014). “A claim of ineffectiveness will be denied if the 

petitioner's evidence fails to meet any of these prongs.” Commonwealth v. 

Martin, 5 A.3d 177, 183 (Pa. 2010). “In determining whether counsel's action 

was reasonable, we do not question whether there were other more logical 

courses of action which counsel could have pursued; rather, we must examine 
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whether counsel's decisions had any reasonable basis.” Commonwealth v. 

Washington, 927 A.2d 586, 594 (Pa. 2007).

Our inquiry ceases and counsel's assistance is deemed 

constitutionally effective once we are able to conclude that the 

particular course chosen by counsel had some reasonable basis 

designed to effectuate his[, or her,] client's interests. The test is 

not whether other alternatives were more reasonable, employing 

a hindsight evaluation of the record. Although weigh the 

alternatives we must, the balance tips in favor of a finding of 

effective assistance as soon as it is determined that trial counsel's 

decision had any reasonable basis.

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987). A petitioner 

establishes prejudice when he demonstrates “that there is a reasonable 

probability that, but for counsel's [acts or omissions], the result of the 

proceeding would have been different.” Commonwealth v. Johnson, 966 

A.2d 523, 533 (Pa. 2009).

Appellant’s first issue alleges trial counsel was ineffective for failing to 

file a motion to suppress the single photograph identifications of Appellant as 

the shooter by the eyewitness and the victim’s girlfriend. Appellant’s Brief at 

9-12. Appellant asserts that, on February 15, 2017, he filed pro se a motion 

to suppress the single photograph identifications by the eyewitness and the 

victim’s girlfriend and that trial counsel was ineffective for failing to litigate 

said motion or to file a similar motion. Id. at 11. Appellant contends that he 

was admitted to a health care facility prior to the incident and, as such, the 

eyewitness and the victim’s girlfriend “could not have seen Appellant in the 

area [of the incident] every day prior the murder” as they testified to at trial. 
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Id. Appellant argues that, because the two witnesses could not have seen 

him in the area every day prior to the incident, they did not have sufficient 

familiarity with him to overcome the unduly suggestive nature of the single 

photograph identification process. Id. at 10-11. Appellant contends that trial 

counsel was aware of Appellant’s admission into a health care facility prior to

the incident and was ineffective for failing to file a motion to suppress the 

results of the single photograph identifications of Appellant as the shooter by 

the two witnesses. Id. at 12.

“The failure to file a suppression motion may be evidence of ineffective 

assistance of counsel[, but] if the grounds underpinning the suppression 

motion or objection are without merit, counsel will not be deemed to have 

been ineffective in failing to so move or object.” Commonwealth v. 

Ransome, 402 A.2d 1379, 1381-1382 (Pa. 1979); see also Commonwealth 

v. Watley, 153 A.3d 1034, 1044 (Pa. Super. 2016), appeal denied, 169 A.3d 

574 (Pa. 2017). A petitioner “must establish that there was no reasonable 

basis for not pursuing the suppression claim and that if the evidence had been 

suppressed, there is a reasonable probability the verdict would have been 

more favorable.” Watley, 153 A.3d at 1044.

[A] pretrial procedure in which a witness views a photograph of 

the accused in an effort to “elicit identification evidence is 

peculiarly riddled with innumerable dangers and variable factors 

which might seriously, even crucially, derogate from a fair trial.” 

United States v. Wade, 388 U.S. 218[] (1967); see also 

Simmons v. United States, 390 U.S. 377[] (1968); Gilbert v. 

California, 388 U.S. 263[] (1967). If such an identification 

procedure of the accused is “so unnecessarily suggestive and 

conducive to irreparable mistaken identification, the accused is 
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denied due process of law.” Stovall v. Denno, 388 U.S. 293, 

302[] (1967). It is clear, then, that photographic identification of 

a person is unduly suggestive if, under the totality of the 

circumstances, the identification procedure creates a substantial 

likelihood of misidentification. See Commonwealth v. DeJesus, 

[] 860 A.2d 102 (Pa. 2004).

Commonwealth v. Crork, 966 A.2d 585, 588 (Pa. Super. 2009) (original 

brackets omitted), appeal denied, 981 A.2d 217 (Pa. 2009). In evaluating the 

totality of the circumstances, courts should consider

(1) the manner in which the pretrial identification was conducted; 

(2) the witness' prior opportunity to observe the alleged criminal 

act; (3) the existence of any discrepancies between the 

defendant's actual description and any description given by the 

witness before the photographic identification; (4) any previous 

identification by the witness of some other person; (5) any 

previous identification of the defendant himself; (6) failure to 

identify the defendant on a prior occasion; and (7) the lapse of 

time between the alleged act and the out-of-court identification.

Commonwealth v. Fowler, 352 A.2d 17, 21 (Pa. 1976); see also 

Commonwealth v. Sutton, 436 A.2d 167, 169 (Pa. 1981) (stating, 

circumstances to be considered include “the opportunity of the witness to view 

the criminal at the time of the crime, the witness' degree of attention, the 

accuracy of the witness' prior description of the criminal, the level of certainty 

demonstrated at the confrontation, and time between the crime and the 

confrontation”).

In finding that Appellant’s underlying claim was without merit, the PCRA 

court stated,

[The eyewitness and the victim’s girlfriend] each had an 

independent basis for their identification of Appellant. [The 

eyewitness] testified that she was on her front step watching 
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because she was waiting to buy marijuana from the victim.

According to [the eyewitness,] it was broad daylight, and she was 

only about 25 or 30 feet away from Appellant and the victim. [The 

eyewitness] testified that she knew Appellant as "Freaky," [] that 

she knew Appellant well[,] and that she saw him in the 

neighborhood most every day. [The victim’s girlfriend] also 

testified that she was only about 45 feet away from Appellant and 

the victim and that she saw Appellant in the neighborhood.

Regarding how often [the victim’s girlfriend] saw Appellant in the

neighborhood, she testified "you could say almost every day" [for 

a couple of] months before the murder.

PCRA Court Opinion, 6/29/22, at 5-6. The PCRA court concluded that “[t]here 

is no merit to the argument that the identifications made by [the eyewitness 

and the victim’s girlfriend] should have been suppressed.” Id. at 6. Because 

the underlying claim was without merit, the PCRA court determined that 

Appellant’s ineffective assistance claim based on trial counsel’s failure to file 

a motion to suppress the single photograph identifications was without 

arguable merit. Id.

Appellant’s assertion that neither identification witness had sufficient 

familiarity with Appellant to overcome the suggestive nature of their single 

photograph identifications of him as the shooter is belied by the record. The 

eyewitness testified that she knew Appellant, who she referred to as “Freaky,” 

from seeing him around the neighborhood in which she resided. N.T., 

5/16/17, at 91-92. When asked how many times she had seen Appellant prior 

to the incident, the eyewitness stated that she saw him “mostly every day” in 
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the neighborhood.4 Id. On the day of the incident, the eyewitness observed 

the interaction between Appellant and the victim from no more than 20 feet 

away. Id. at 85-86. The eyewitness was focused on the victim, and his 

subsequent interaction with Appellant, because she had “called out” to the 

victim, upon seeing him in the street, and wanted to speak to him. Id. at 85. 

The victim indicated to the eyewitness that he would come see her 

momentarily, before he began to interact with Appellant. Id. The eyewitness 

observed Appellant from a side profile when he initially shot the victim several 

times before walking away from the victim. Id. at 87-91. When Appellant 

walked back to the victim to administer the fatal shot, the eyewitness 

observed a “full view” of Appellant’s face. Id. at 90-91, 103. The eyewitness, 

who was 14 years old at the time of the incident, did not speak to the police

investigating the crime scene on the day of the incident because she was 

“scared.” Id. at 92. Rather, the eyewitness contacted the police three days 

after the incident on August 18, 2015. Id. at 93; see also id. at 

Commonwealth Exhibit 26. During her police interview, the eyewitness, in 

recalling the incident, first identified the shooter verbally to the police as 

“Freaky” and later, upon being shown a single photograph of Appellant, 

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4

In her police investigation interview record, the eyewitness stated that she 

first moved to “the neighborhood” in November 2014, which is when she first 

became aware of Appellant. N.T., 5/16/17, at Commonwealth Exhibit 26.
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confirmed that Appellant was the person she referred to as "Freaky."5 Id. at 

Commonwealth Exhibit 26.

The victim’s girlfriend testified that she observed Appellant and the 

victim initially talking and laughing with each other from 45 feet. N.T., 

5/16/17, at 132-133. At the time, the victim’s girlfriend knew Appellant only 

by the nickname “Freaky”. Id. at 133; see also Commonwealth Exhibit 27. 

The victim’s girlfriend knew of Appellant for several months prior to the 

incident because of Appellant’s association with her boyfriend. N.T., 5/16/17,

133-134; see also id. Commonwealth Exhibit 27. The victim’s girlfriend, who 

initially was talking on her cellular telephone, became focused on the 

interaction between Appellant and the victim after hearing gunshots. N.T., 

5/16/17, 133-136. When the victim’s girlfriend turned her attention toward 

the gunshots, she observed Appellant from a side profile standing over the 

victim as he administered the fatal shot to the victim’s head. Id. at 136-138. 

Appellant then ran from the scene of the incident. Id. at 138. As the victim’s 

girlfriend remained with the victim and after police and emergency personal 

arrived and a crowd of on-lookers gathered, the victim’s girlfriend observed 

Appellant standing in the crowd. Id. at 140. The victim’s girlfriend did not 

indicate to the police that Appellant was present in the crowd because she was 

____________________________________________

5 The photograph shown to the eyewitness and on which the eyewitness wrote 

the name “Freaky” before signing and dating the photograph did not display 

Appellant’s legal name or other identifying information. N.T., 5/16/17, at 

Commonwealth Exhibit 26.
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scared. Id. at 140. Rather, the victim’s girlfriend spoke to the police three 

days after the incident on August 18, 2015. Id. at 141; see also id. at 

Commonwealth Exhibit 27. During her police interview, the victim’s girlfriend 

first identified the shooter as the person she knew only by the nickname 

“Freaky.” Id. at Commonwealth Exhibit 27. After being shown a single 

photograph of Appellant and being asked if she knew the person depicted 

therein, the victim’s girlfriend responded that the person in the photograph 

was the person she knew as “Freaky.”6 Id.

The totality of the circumstances surrounding the use of the single 

photograph of Appellant in both eyewitness identifications was not unduly 

suggestive and did not create a likelihood of misidentification. Both the 

eyewitness and the victim’s girlfriend closely observed the interaction between 

Appellant and the victim from short distances. Both eyewitnesses recognized 

the shooter as the person they knew as “Freaky,” based upon their 

observations of Appellant in the neighborhood or their observations of 

Appellant interacting with the victim during the several months prior to the 

incident. Moreover, both eyewitnesses identified “Freaky” as the shooter prior 

to being shown a photograph of Appellant. The photograph merely 

corroborated that the person both eyewitnesses knew only by the nickname 

____________________________________________

6 The photograph shown to the victim’s girlfriend and on which the victim’s 

girlfriend wrote the nickname “Freaky” before signing and dating the 

photograph did not display Appellant’s legal name or other identifying 

information. N.T., 5/16/17, at Commonwealth Exhibit 27.
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“Freaky” was, in fact, Appellant. Therefore, we concur with the PCRA court 

that Appellant’s underlying claim – the failure to file a motion to suppress the 

single photograph identifications – was without merit and that trial counsel 

cannot be ineffective for failing to raise a meritless claim. See 

Commonwealth v. Rivera, 199 A.3d 365, 374 (Pa. 2018) (stating, if the 

underlying claim is deemed meritless, trial counsel cannot be found to be 

ineffective for failing to raise a meritless claim).

Appellant’s second issue raises a claim that trial counsel was ineffective 

for failing to call, at trial, a potential witness, namely Sharon Butcher, who 

identified a person other than Appellant as the shooter.7 Appellant’s Brief at 

12-16. Appellant asserts the alternate shooter’s alibi for the time of the 

incident consisted of a retail store receipt and video surveillance depicting the 

alternate shooter in the retail establishment. Appellant claims, however, that

the surveillance footage did not contain a date or timestamp indicating that it 

was from the day of the incident. Id. at 14. Appellant contends that Butcher’s 

testimony would have contradicted the alternate shooter’s alibi because she 

____________________________________________

7 Appellant contends that Dexter Stinson also identified the same alternate

person as the shooter. Appellant’s Brief at 14. In his Supplemental Amended 

PCRA petition, Appellant asserts that “[Appellant] wanted [] Butcher called as 

a witness [] but she was not [called as a witness] despite being available and 

present at trial.” Supplemental Amended PCRA Petition, 4/13/21, at 8; see 

also Appellant’s Brief at 14. Appellant failed to aver that trial counsel was 

ineffective for failing to call Stinson as a potential witness at trial and, as such,

has waived this claim.
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would have testified that she observed the alternate shooter in the area at the 

time of the incident. Id.

To reiterate, the three prongs of an ineffectiveness claim are: (1) 

arguable merit, (2) lack of reasonable basis or strategy, and (3) prejudice. 

Stewart, 84 A.3d at 706. To establish the arguable merit prong of the 

three-prong ineffectiveness test based on a failure to call a potential witness 

to testify at trial, the petitioner must prove that:

(1) the witness existed; (2) the witness was available to testify 

for the defense; (3) counsel knew of, or should have known of, 

the existence of the witness; (4) the witness was willing to testify 

for the defense; and (5) the absence of the testimony of the 

witness was so prejudicial as to have denied the defendant a fair 

trial.

Commonwealth v. Matias, 63 A.3d 807, 810-811 (Pa. Super. 2013) 

(citations omitted), appeal denied, 74 A.3d 1030 (Pa. 2013). In this context, 

to establish prejudice, the petitioner "must show how the [potential witness'] 

testimony would have been beneficial under the circumstances of the case" 

and "helpful to the defense" such that the absence of the testimony denied 

the petitioner a fair trial. Id. at 811 (citation omitted); see also 

Commonwealth v. Chmiel, 889 A.2d 501, 546 (Pa. 2005) (holding, "[t]rial 

counsel's failure to call a [potential witness] does not constitute ineffective 

assistance without some showing that the [potential] witness' testimony 

would have been beneficial or helpful in establishing the asserted defense"), 

cert. denied, 549 U.S. 848 (2006).
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In addition to establishing arguable merit, a petitioner must also 

demonstrate that there was no reasonable basis for failing to call a potential 

witness and that the failure to call a potential witness prejudiced the petitioner 

such that there was a reasonable probability that the witness’ testimony would 

have resulted in a different outcome at trial. Stewart, 84 A.3d at 706; see 

also Commonwealth v. Robinson, 278 A.3d 336, 345-349 (Pa. Super. 

2022).

In denying Appellant’s ineffectiveness claim on this ground, the PCRA 

court found that Appellant was “unable to establish that [Butcher] was 

available and willing to testify [and] unable to show that [trial] counsel did 

not have a reasonable basis for his act or omission[.]” PCRA Court Opinion, 

6/29/22, at 8. The PCRA court explained,

Appellant failed to supplement his [ineffectiveness] claim with 

evidence that [trial] counsel did not have a reasonable basis for 

deciding not to use evidence of an [alternate] suspect. Appellant 

did not supplement his petition with evidence that [] Butcher was 

available and willing to testify. There is evidence to believe that 

[] Butcher [] would not have been willing to testify because [she]

declined to go to [the police] homicide [unit] to provide a [formal] 

statement. Moreover, there was evidence that [the alternate

shooter] was at a [retail establishment] at the time of the murder.

Even though[] Appellant claimed there was no surveillance video 

to corroborate [the alternate shooter’s] alibi, [the] 

Commonwealth noted that surveillance video showed [the 

alternate shooter] at a [retail establishment] and [the alternate

shooter] also had a receipt for the [retail establishment].

Id. at 8.

The record demonstrates that on the evening of the incident, a police 

officer was “flagged down” by two individuals, one of whom was Butcher. N.T., 
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5/17/17, at Commonwealth Exhibit 53. Butcher reported that she observed a 

male, who she knew as “Van” running in the area of the incident shortly after 

she heard gunshots. Id. Although Butcher provided a verbal statement to 

the police officer, she refused to go to the police homicide unit to provide a 

formal written statement. Id. Detective Tracy Bayard, who served as the

lead investigator for the incident, stated that based upon information gathered 

during the investigation, including, inter alia, the statement by Butcher, the 

alternate shooter became a “person-of-interest” in the investigation. Id. at 

58-59. The alternate shooter came forward two days after the incident and 

provided an alibi to the police that established he was at a retail establishment 

at the time of the incident. Id. at 60-61. The alternate shooter’s alibi

consisted of, inter alia, a sales receipt from the retail establishment issued on 

the date of the incident and timestamped for a time close to when the incident 

occurred. Id. at 61. Police officers corroborated the alternate shooter’s alibi

by viewing video surveillance from the retail establishment that showed the 

alternate shooter at the retail establishment near the time of the incident. 

Although the video surveillance footage did not contain a timestamp and a 

copy of the surveillance footage could not be obtained, Officer Bayard stated 

that she captured a photograph of the still-frame from the surveillance footage 

showing the alternate shooter at the retail establishment near the time of the 

incident. Id. at 63-64; see also id. at Commonwealth Exhibit 83. Based 

upon the sales receipt and the video surveillance, Officer Bayard eliminated 

the alternate shooter as a suspect. Id. at 64.
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Upon review, we concur with the PCRA court that Appellant’s claim of 

ineffective assistance for failing to call a potential witness lacks arguable 

merit. Appellant failed to demonstrate how the absence of Butcher’s 

testimony was so prejudicial as to have denied him a fair trial. Detective 

Bayard testified that she was aware, as part of her investigation, that Butcher 

identified an alternate shooter running in the area on the day of the incident 

shortly after she heard gunshots. Based upon Butcher’s verbal statement, the 

alternate shooter became a person-of-interest to the police but was later 

eliminated as a suspect once his alibi was corroborated. Butcher’s testimony 

would have provided only cumulative information – namely the notion of an 

alternate shooter – that was already presented by the Commonwealth.8 

Therefore, we discern no error of law or abuse of discretion in the PCRA court’s 

denial of Appellant’s ineffectiveness claim on this ground.9

Order affirmed.

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8 Moreover, Appellant failed to demonstrate that Butcher was available and 

willing to testify for the defense at trial. Although Butcher provided a verbal 

statement to the police on the date of the incident, she declined to provide a 

formal written statement.

9 We discern no error in the PCRA court’s denial of Appellant’s petition without 

an evidentiary hearing. Appellant’s supplemental amended PCRA petition did 

not contain a certification, as required by 42 Pa.C.S.A. § 9545(d)(1), that

included, inter alia, the witness’s name, address, date of birth, and a brief 

summary of her proposed testimony. 42 Pa.C.S.A. § (d)(1)(i and ii). As such, 

Appellant’s failure to comply with Section 9545(d)(1) would have rendered 

the potential witness’s testimony inadmissible at an evidentiary hearing. 42 

Pa.C.S.A. § 9545(d)(1)(iii).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/10/2023