J-S28043-23

2023 PA Super 176

COMMONWEALTH OF PENNSYLVANIA

v.

MARQUICE DUPREE EVANS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1093 WDA 2022

Appeal from the PCRA Order Entered September 6, 2022

In the Court of Common Pleas of Erie County Criminal Division at No(s): 

CP-25-CR-0000818-2010, 

CP-25-CR-0000819-2010, CP-25-CR-0002901-2015

BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED: September 22, 2023

Appellant Marquice Dupree Evans appeals from the September 6, 2022, 

order entered in the Court of Common Pleas of Erie County, which denied his 

first petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. 

§§ 9541-9546, following an evidentiary hearing. After a careful review, we 

affirm.

The relevant facts and procedural history have been set forth previously 

by this Court, in part, as follows:

On the evening of June 22, 2015, K.J. and his cousin, J.D., 

spent the night with their great-grandmother, Sherry Lyons. The 

next afternoon, the granddaughter of one of Ms. Lyons’ friends, 

Teonia Kimbro, visited Ms. Lyons’ home. Ms. Kimbro arrived on a 

bicycle.

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* Former Justice specially assigned to the Superior Court.
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Kimbro left Ms. Lyons’ home shortly after arriving, but she 

returned about ten minutes later asking for a cup of water. 

Kimbro left her bicycle in Ms. Lyons’ backyard. At some point, 

J.D. asked his great-grandmother if he and K.J. could go to Mighty 

Fine Doughnuts. Ms. Lyons consented, gave Kimbro her bank 

card, and asked Kimbro to accompany the boys.

The three left Ms. Lyons’ residence on foot and arrived at 

Mighty Fine Doughnuts where Kimbro purchased half a dozen 

doughnuts with Ms. Lyons’ bank card. After they finished eating, 

they packaged the extra doughnuts to-go and walked to the 

Country Fair on the corner of 26th and State Street, across from 

Veteran’s Stadium. J.D. and K.J. saw Kimbro attempting to use 

Ms. Lyons’ bank card at the ATM machine inside the store.

After leaving the Country Fair on the corner of 26th and State 

Street, the three walked to a car lot on 26th Street. While there, 

K.J. recalled that a short, dark-skinned male with dreadlocks 

approached Kimbro. The man was wearing a black t-shirt and 

black shorts, and he arrived on the same bike Kimbro left at Ms. 

Lyons’ home. K.J. believed the male was Kimbro’s friend, but 

stated the two argued, and the man left the car lot quickly. 

Instead of taking K.J. and J.D. back to their greatgrandmother’s house, Kimbro took K.J. and J.D. to a park on 

23111 Street, and then to the Dollar General across the street 

from Mighty Fine Doughnuts, despite their requests to return to 

Ms. Lyons’ home. While at Dollar General, the children asked 

Kimbro to buy them candy. Kimbro told the children she couldn’t 

because she “lost” Ms. Lyons’ bank card. After leaving the Dollar 

General, Kimbro took K.J. and J.D. to a McDonalds on 26th Street, 

stating her phone was dying and she needed to call someone. 

While at the McDonalds, Kimbro used a landline phone and K.J.’s 

cell phone to place a call.

Subsequently, Kimbro took the children to a friend’s home 

at the intersection of East 6th and State Streets. While there, K.J. 

noticed the same man who met Kimbro at the car lot arrived on 

the same bike, but he noticed he was wearing different clothing.

Shortly after 8:00 p.m., K.J.’s mother, Talaysha, saw the 

children outside a corner store near East 6th and State Streets 

when she was on her way to pick up some items at a nearby shop. 

She also saw [Appellant] outside the store. Instead of taking the 

children back to Ms. Lyons’ home, Talaysha took the children to 

her home. Once K.J. and J.D. reached Talaysha’s home, K.J. told 

his mother Kimbro lost his great-grandmother’s bank card. After 
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learning K.J. knew where to find Kimbro, Talaysha sent him to 

retrieve the card. However, K.J. was unable to recover it.

Talaysha testified that, before she found the children, she 

attempted to reach Ms. Lyons just before 8:00 p.m. However, Ms. 

Lyons did not answer the phone. Once Talaysha and the children 

arrived home, Talaysha called Ms. Lyons again. No one answered. 

Talaysha became worried and called her aunt, Darlene, who had 

a key to Ms. Lyons’ home. 

Talaysha, Darlene, and several of Ms. Lyons’ nieces arrived 

at Ms. Lyons’ home around 11:00 p.m. Talaysha testified the 

family saw blood around the entryway of the home and on the 

floor as soon as they entered the residence. When the family 

entered the living room, they saw more blood on the carpet near 

the couch and on the wall, but no signs of Ms. Lyons. The family 

searched the upper floors of the home for Ms. Lyons with no 

success. The family then directed their search to the basement.

Talaysha testified she saw more blood at the top of the 

basement stairs and a large hole in the wall at the foot of the 

stairs. A pool of blood was beneath the hole.

The family found Ms. Lyons in one of the back basement 

rooms. Ms. Lyons was lying on her back with her shirt pulled up 

around her middle, a television on her chest, and one leg in the 

air. Duct tape was wrapped around Ms. Lyons covering her eyes, 

nose, and mouth. The family found Ms. Lyons’ cordless phone had 

been running for six and a half hours, close to the last time a 

neighbor saw her sitting on her front porch.

Various members of the Erie Police Department were 

dispatched to the Lyons residence around 11:50 p.m. for a 

possible homicide. Detectives arrived at the scene at 

approximately 1:30 a.m. on June 24, 2015. Detective Kensil, one 

of the detectives on duty, took photographs of the Lyons residence 

capturing the blood pooling and blood splatter [sic] found 

throughout. Included in these photographs were pictures of a roll 

of duct tape found on the couch where blood was also present, 

and pieces of a broken, decorative wooden spoon. The detective 

also took a picture of the hole found at the bottom of the basement 

steps. He described the hole as being “about the size of a human 

head,” and stated he saw drag marks left in blood on the 

basement carpet leading to the room where Ms. Lyons was found.

The detective also observed Ms. Lyons before she was taken 

for autopsy. He corroborated the family’s testimony that her head 
J-S28043-23

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was wrapped in duct tape. In fact, the detective stated the tape 

covered Ms. Lyons’ head so completely it was impossible to 

identify her. He also testified she appeared to have been beaten, 

and dragged by her legs, which explained the manner in which her 

shirt was rolled up from her waist. The detective observed a large 

TV on the ground next to Ms. Lyons’ body.

Other evidence found at the home included a sweatshirt 

matching Ms. Lyons’ clothing, two broken pieces of a wooden 

spoon, a Fago soda pop bottle, and a pizza crust. Several surfaces 

were processed for fingerprinting and DNA evidence including the 

front door and threshold, pill bottles, blood on various floor 

surfaces, walls, pieces of the wooden spoon, and duct tape. The 

detective also acquired a pair of white Nike shoes from [Appellant] 

when he was arrested. No forensic evidence was retrieved from 

the duct tape. Any other item recovered with potential evidence 

was sent to the PSP crime lab for analysis and verification. 

After autopsy, the forensic pathologist concluded Ms. Lyons 

died from suffocating asphyxiation secondary to the application of 

multiple loops of duct tape around her face with a concurrent 

component of incapacitating blunt force trauma to the head. The 

doctor testified the blunt force trauma Ms. Lyons sustained could 

have been caused by the wooden spoon handle recovered from 

the crime scene. The fracture to her skull could have been 

consistent with an injury sustained after being thrown down a 

flight of stairs.

In addition to the injuries to Ms. Lyons’ brain and skull area, 

the doctor found several contusions on the inside of her calves 

and on her right upper arm, which he described as “fingertip 

contusions.” The doctor also found brush burn abrasions in the 

middle of Ms. Lyons’ lower back, which he described as “rug burn,” 

rib fractures, and a disruption of the bone between her right collar 

bone and the sternum of her breastbone. The doctor explained 

these fractures would be consistent with a large, heavy object, 

such as a TV, being placed on Ms. Lyons’ chest. It was also the 

doctor’s opinion that at the time the TV was placed on Ms. Lyons’ 

chest she was alive.

Of the pieces of evidence submitted to the forensic lab, Tim 

Gavell, a forensic scientist with the Pennsylvania State Police DNA 

Lab, matched DNA lifted from the spoon handle to Ms. Lyons and

[Appellant]. No other DNA was present on the spoon handle. 

Gavell also confirmed the blood splatter [sic] found on the living 

room wall matched Ms. Lyons' DNA. The DNA found on the Fago 
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pop bottle submitted to the lab provided only a partial profile, and 

matched someone in [Appellant’s] paternal lineage.

Detective Lorah testified K.J. identified [Appellant] as the 

man he saw with Kimbro from a picture line up shortly after the 

police investigation began. Juan Garcia, [Appellant’s] cousin, 

identified Kimbro as [Appellant’s] “baby mom.”

Video footage and bank records were recovered from 

various places of business and a Northwest Savings bank, which

placed Ms. Lyons’ bank card in [Appellant’s] hands after he was 

seen with Kimbro in the car parking lot, and after Ms. Lyons’

death. Bank statements confirmed a transaction at Mighty Fine 

Doughnuts, and also showed a denied attempt to withdraw 

$500.00 from an ATM at the Country Fair located at 26th and State 

Streets at 5:12 p.m. After this attempt, another was made in the 

amount of $200.00 at the same Country Fair at 5:32 p.m. Another

withdrawal attempt was made at the Country Fair located at 802

East Avenue for $150.00 around 7:52 p.m., with another denied

at that same location a half hour later. [Appellant] was also seen

making a purchase around 10:30 p.m. at the Shell gas station on

6th and Parade. The video footage recovered from these locations

showed Kimbro using the bank card at the 26th and State Street

Country Fair, and [Appellant] attempting to withdraw funds with 

that card at the other locations.

Text messages were also recovered from Kimbro’s cell

phone after she was taken into custody linking [Appellant] to Ms. 

Lyons’ death and the use of her bank card. In Kimbro’s phone, 

police found a conversation she had with a contact named “Quice”

that named him as the father of her child, a picture of a positive 

pregnancy test, and “selfies” of one person being sent to the 

other. Many of the messages referenced bank transactions 

associated with Ms. Lyons’ card that occurred on June 19th.

Other messages directly referenced Ms. Lyons’ murder

including those which read: “Either you going to kill this bitch 

before the 1st or you going to give it back;” “Okay. You got my 

word. She a goner;” and “go over there and handle that quietly.” 

Others asked one if the other knew whether Ms. Lyons’ door was 

unlocked. One message stated they had to kill [Ms. Lyons] before 

she went to the police about getting her money back. Call records 

also showed the number associated with “Quice” called Kimbro’s 

phone at the time [Appellant] used the victim’s ATM card at a

Northwest Savings Bank, and 22 other times on June 23, 2015. 
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Coincidentally, the phone number associated with the “Quice” 

contact disappeared once Kimbro was taken into custody.

Finally, Christopher Hazel, an inmate at SCI Westmoreland, 

testified about the last contact he had with [Appellant]. Hazel 

testified [Appellant], whom he casually knew as “Quice,” 

contacted him in the middle of June 2015, telling him he was going 

to visit him in Pittsburgh soon. Eventually, the two met at a 

Greyhound bus station in Pittsburgh. Hazel testified [Appellant] 

told him he was in trouble up in Erie County, that he [“]caught[”] 

a homicide, and the police found the body within five hours of 

when he did it. [Appellant] also told Hazel he bashed the victim’s 

face in and only got $400.00 off the victim’s debit card before the 

police froze the account.

According to Hazel, [Appellant’s] “baby mom” was in jail for 

the offense and agreed to “take the case” for him. Originally, 

[Appellant] told Hazel his girlfriend was going to try to distract the 

victim, and he was going to sneak up on her and choke her so 

they could steal her credit card, but the plan didn't work because 

the victim saw [Appellant’s] face. [Appellant] described the 

injuries he caused to the victim as being “horrendous and the 

gruesomest [sic] murder ever seen in Erie, Pennsylvania.”

[Appellant] also told Hazel it was his girlfriend’s plan to steal the 

money, and, if necessary, kill the victim.

Commonwealth v. Evans, No. 1925 EDA 2016, at 1-6 (Pa.Super. filed 

2/26/18) (unpublished memorandum) (bold omitted) (citation omitted).

Following a two-day trial, at docket number CP-25-CR-0002901-2015

(“2901-2015”), a jury convicted Appellant of various charges, including firstdegree murder.1

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1 On July 6, 2010, Appellant pled guilty at docket number CP-25-CR-0000818-

2010 (“818-2010”) to one count of flight to avoid apprehension, and at docket 

number CP-25-CR-0000819-2010 (“819-2010”), to one count of aggravated 

assault with a deadly weapon. The crimes related to these docket numbers 

occurred prior to the 2015 murder of Ms. Lyons, and Appellant was on 

(Footnote Continued Next Page)
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He was sentenced to an aggregate of life in prison, plus 38 years and five 

months to 77 years in prison. Appellant filed a post-sentence motion, which 

was granted, in part, and denied, in part. Specifically, the trial court modified 

Appellant’s sentence to an aggregate of life in prison, plus 25 years and six 

months to 51 years and one month in prison.2

Appellant filed a timely direct appeal wherein he averred the trial court 

erred in denying his pre-trial motion seeking to limit and/or suppress the 

statements made by his co-defendant, Kimbro, and the text messages. After 

a careful review, we found no merit to Appellant’s claims, and, thus, we 

affirmed. Appellant filed a petition for allowance of appeal, which our Supreme 

Court denied on September 5, 2018. Appellant did not file a petition for a writ 

of certiorari with the United States Supreme Court.

On January 2, 2019, Appellant filed a timely, pro se PCRA petition, and 

the PCRA court appointed counsel to assist Appellant. Counsel filed an 

amended PCRA petition on behalf of Appellant on October 21, 2019, asserting

various claims of trial counsel ineffectiveness. On October 30, 2019, the PCRA 

court provided Appellant with notice of its intent to dismiss the petition under 

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probation when he murdered Ms. Lyons. Consequently, on November 10, 

2016, after Appellant was convicted by the jury for the murder of Ms. Lyons, 

the trial court revoked Appellant’s probation at 818-2010 and 819-2010, and 

resentenced Appellant. 

2 This sentence was imposed consecutively to the probation revocation 

sentences imposed at 818-2010 and 819-2010. 
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Pa.R.Crim.P. 907 on the basis that Appellant’s “claims have been previously 

litigated and addressed in the [trial court] opinions[.]” Appellant filed an 

objection to the PCRA court’s Rule 907 notice. On November 19, 2019, the 

PCRA court dismissed Appellant’s PCRA petition, and Appellant appealed to 

this Court.

On appeal, this Court concluded that, as a matter of law, the PCRA court 

erred in determining Appellant’s claims of trial counsel’s ineffectiveness had 

been previously litigated. Accordingly, we vacated the PCRA court’s November 

19, 2019, order, and remanded for further proceedings. See Commonwealth 

v. Evans, 1865-67 WDA 2019 (Pa.Super. filed 3/8/21) (unpublished 

memorandum). 

Upon remand, the PCRA court held an evidentiary hearing on October 

25, 2021, regarding Appellant’s claims of ineffective assistance of counsel. 

Following the hearing, the PCRA court provided the parties with the 

opportunity to file briefs. On September 6, 2022, the PCRA court filed an 

order denying Appellant’s PCRA petition. This timely appeal followed,

3 and all 

Pa.R.A.P. 1925 requirements have been adequately met.

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3 We note that Appellant filed a single notice of appeal listing three separate 

trial court docket numbers, including 818-2010, 819-2010, and 2901-2015. 

In Commonwealth v. Walker, 646 Pa. 456, 185 A.3d 969 (2018), our 

Supreme Court held that an appellant is required to file separate notices of 

appeal when a single order resolves issues arising on more than one trial court 

docket. However, in the case sub judice, we conclude a breakdown occurred 

in the PCRA court, which permits us to overlook Appellant’s non-compliance 

(Footnote Continued Next Page)
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On appeal, Appellant sets forth the following issues in his “Statement of 

the Questions Presented” (verbatim):

(1) The trial court erred in failing to find that trial counsel was 

ineffective for failing to file a motion arguing that the lack of 

an affidavit of probable cause in this case resulted in an 

illegal arrest, and thus that the testimonial evidence 

obtained as a result of that arrest should have been 

suppressed.

(2) The trial court erred in failing to find that trial counsel was 

ineffective in failing to file a motion for DNA testing of the 

tape that was over the victim’s face.

Appellant’s Brief at 1-2 (bold omitted).

Initially, we note our standard of review for an order denying PCRA relief 

is limited to whether the record supports the PCRA court’s determination, and 

whether that decision is free of legal error. Commonwealth v. Sattazahn, 

597 Pa. 648, 952 A.2d 640, 652 (2008). “We must accord great deference to 

the findings of the PCRA court, and such findings will not be disturbed unless 

they have no support in the record.” Commonwealth v. Scassera, 965 A.2d 

247, 249 (Pa.Super. 2009) (citation omitted).

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with Walker. Specifically, the PCRA Court’s September 6, 2022, order 

provided “this represents the Final Order with respect to this matter, Petitioner 

is hereby notified that he has thirty (30) days from the date of this Order to 

file his Notice of Appeal.” The language in the PCRA court’s order refers to a 

singular notice of appeal, and it does not correctly inform Appellant that three 

separate notices of appeal should be filed. Accordingly, we conclude there 

was a breakdown in the court and proceed to examine the merits of Appellant’s 

appeal. See Commonwealth v. Larkin, 235 A.3d 350, 352-54 (Pa.Super. 

2020) (en banc).
J-S28043-23

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Moreover, as relevant here, 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.” 42 Pa.C.S.A. § 9543(a)(2)(ii). In reviewing Appellant’s ineffective 

assistance of counsel claims, we are mindful that, since there is a presumption 

counsel provided effective representation, the defendant bears the burden of 

proving ineffectiveness. Commonwealth v. Ali, 608 Pa. 71, 10 A.3d 282 

(2010). 

To prevail on an ineffective assistance claim, a defendant must establish 

“(1) [the] underlying claim is of arguable merit; (2) the particular course of 

conduct pursued by counsel did not have some reasonable basis designed to 

effectuate his [client’s] interests; and (3) but for counsel’s ineffectiveness, 

there is a reasonable probability that the outcome of the proceedings would 

have been different.” Id., supra, 10 A.3d at 291 (citations omitted). 

We need not analyze the prongs of an ineffectiveness claim 

in any particular order. Rather, we may discuss first any prong 

that an appellant cannot satisfy under the prevailing law and the 

applicable facts and circumstances of the case. [C]ounsel cannot 

be deemed ineffective for failing to raise a meritless claim.

Commonwealth v. Johnson, 635 Pa. 665, 139 A.3d 1257, 1272 (2016)

(citations omitted). See Commonwealth v. Daniels, 600 Pa. 1, 963 A.2d 

409, 419 (2009) (“A failure to satisfy any prong of the ineffectiveness test 
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requires rejection of the claim of ineffectiveness.”) (citation omitted)). “A 

claim has arguable merit where the factual averments, if accurate, could 

establish cause for relief.” Commonwealth v. Stewart, 84 A.3d 701, 707 

(Pa.Super. 2013) (en banc) (citation omitted).

Regarding the reasonable basis prong of the ineffective assistance of 

counsel test, our Supreme Court has relevantly stated the following:

When assessing whether counsel had a reasonable basis for his 

act or omission, the question is not whether there were other 

courses of action that counsel could have taken, but whether 

counsel’s decision had any basis reasonably designed to effectuate 

his client’s interest....[T]his cannot be a hindsight evaluation of 

counsel’s performance, but requires an examination of “whether 

counsel made an informed choice, which at the time the decision 

was made reasonably could have been considered to advance and 

protect [the] defendant’s interests.” Our evaluation of counsel’s 

performance is “highly deferential.” 

Commonwealth v. Williams, 636 Pa. 105, 141 A.3d 440, 463 (2016) 

(citations and quotations omitted).

Further,

To demonstrate prejudice, the petitioner must show that 

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

unprofessional errors, the result of the proceedings would have 

been different. [A] reasonable probability is a probability that is 

sufficient to undermine confidence in the outcome of the 

proceeding.

Commonwealth v. Spotz, 624 Pa. 4, 84 A.3d 294, 311-12 (2014) (citations, 

quotation marks, and quotations omitted). See Commonwealth v. Gribble, 

580 Pa. 647, 863 A.2d 455, 472 (2004) (“[A] defendant [raising a claim of 

ineffective assistance of counsel] is required to show actual prejudice; that is, 
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that counsel’s ineffectiveness was of such magnitude that it could have 

reasonably had an adverse effect on the outcome of the proceedings.”) 

(quotation omitted)).

With these relevant legal precepts in mind, we turn to the specific issues 

raised by Appellant. 

In his first issue, Appellant contends he “was arrested in July of 2015 

regarding the homicide charges before a criminal complaint had been filed 

against him and before a warrant was issued for his arrest.” Appellant’s Brief 

at 17. He contends that since the criminal complaint did not contain an 

affidavit of probable cause his arrest must be deemed illegal. He also suggests 

that his statements, which he made to the Erie County police while he was in 

custody, must be suppressed due to the alleged illegal arrest arising from the

defective complaint. Accordingly, Appellant argues trial counsel was 

ineffective in failing to file a pre-trial motion challenging the legality of 

Appellant’s arrest, as well as the statements flowing therefrom as fruit of the 

poisonous tree, due to the alleged defective complaint. 

Initially, we note Appellant has cited no relevant authority in support of 

his argument. In any event, in rejecting Appellant’s ineffective assistance of 

counsel claim, the PCRA court relevantly indicated the following:

[Appellant] argues that trial counsel was ineffective for 

failing to file a suppression motion based on the fact that the 

murder complaint did not have an affidavit of probable cause 

attached to it. 

This claim is not of arguable merit and counsel had a 

reasonable basis. At the [PCRA] evidentiary hearing, [trial 
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counsel] addressed why he did not file a pre-trial motion 

addressing the lack of an affidavit of probable cause.

***

Q. Did you actually consider it and reject it or did you 

just not consider it at all in terms of seeking to 

suppress certain evidence based on the lack—an 

[alleged] illegal arrest?

A. I mean, everything is considered. I can’t tell you 

exactly what I thought of at that time. I know in my 

discussions with [Appellant], we talked about those 

types of things, but if I was to look back on it, I did 

not see legal grounds.

N.T., 10/25/21, [PCRA hearing], at 8.

[Appellant] argues that the lack of an affidavit [of probable 

cause attached to the complaint] somehow made his [previous] 

statements inadmissible, and thus he seeks to suppress 

statements he made at the time of his arrest in July of 2015. 

Significantly, [at the time Appellant spoke to Erie County police 

regarding the homicide of Ms. Lyons], he had been arrested [and 

was already in custody] on an [unrelated] bench warrant issued 

in June of 2015 [in Butler County]. He thereafter was told about 

the possible homicide charges and was interviewed [by Erie 

County police]. He voluntarily waived his Miranda[4]rights, and 

he made [incriminating] statements that were used against him.

At the [PCRA] evidentiary hearing, [trial counsel] set forth 

his reasoning for not filing a “frivolous” motion to suppress 

[Appellant’s] statements to the Erie Police:

Q. Why do you think that would be frivolous under 

[Appellant’s] case?

A. Because he was [in custody already] and arrested 

by a police agency, not the Erie Police Department, on 

totally unrelated circumstances and voluntarily talked 

to them when they called to meet with him. I mean, 

the Erie police were called to go to the other county.

Q. Before he spoke with them, is it your recollection 

that he signed that Miranda waiver?

A. It’s clear from the document, yes.

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4 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).
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N.T., 10/25/21, [PCRA hearing], at 19.

The homicide complaint was not even presented to 

[Appellant] until August 19, 2015, [which is well after he made 

the incriminating statements]. Even if the complaint was 

insufficient, it would not warrant suppression of the statements, 

which [Appellant] voluntarily made more than one month earlier. 

[Trial counsel] obviously recognized that the lack of an 

affidavit [of probable cause attached to the complaint] was not a 

basis to suppress the statements. Moreover, [trial counsel] 

reviewed the complaint, and concluded that, based on his 33 

years’ experience, it contained sufficient probable cause, even 

without a separate attached affidavit. [N.T., 10/25/21, PCRA 

hearing, at 46-47.] He, therefore, reasonably concluded any 

action to suppress would be frivolous. Therefore, [there is no 

merit to Appellant’s claim,] and counsel had a reasonable basis 

for his action. 

PCRA Court Opinion, filed 8/12/22, at 4-5 (footnote added).

We find no abuse of discretion or error of law. As the PCRA court noted, 

Appellant was already in custody on unrelated charges when he spoke to the 

Erie County police about the homicide of Ms. Lyons. Appellant does not 

dispute he voluntarily waived his Miranda rights prior to being questioned 

about the homicide of Ms. Lyons. Rather, Appellant suggests the alleged 

defective complaint, which was filed after he spoke to the police, somehow 

negates the voluntary nature of his statements and/or requires the conclusion 

he was illegally arrested such that the charges filed against him in connection 

with Ms. Lyons’ homicide should have been dismissed.

To the extent Appellant treats the voluntariness of his statements and 

the validity of the complaint subsequently filed against him as one and the 

same issue, we dispense with this based on the trial court’s well-reasoned 
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analysis as set forth supra. Simply put, Appellant has neither demonstrated 

nor cited relevant authority for the proposition that the voluntariness of his 

prior police statements is negated by the alleged defects in the complaint. 

To the extent Appellant contends the complaint’s lack of an affidavit of 

probable cause requires the conclusion he was illegally arrested such that the 

charges filed against him in connection with Ms. Lyons’ homicide should have 

been dismissed,

5 we note our Supreme Court has held that “any issue 

concerning a defect [regarding] the affidavit of probable cause becomes moot 

upon the district justice’s finding at the preliminary hearing that a prima facie 

case has been established.” Commonwealth v. Chamberlain, 612 Pa. 107, 

____________________________________________

5 Moreover, we note that, in Commonwealth v. Davis, 454 A.2d 92 

(Pa.Super. 1982), this Court held that alleged defects in a complaint did not 

invalidate an appellant’s warrantless arrest, which was supported by probable 

cause. This Court recognized that “[a] warrantless arrest for a felony will be 

upheld where police have probable cause to believe (1) that a felony has been 

committed, and (2) that the person to be arrested is the felon.” Davis, 454 

A.2d at 95 (citation omitted). We further noted that “probable cause is said 

to exist where facts and circumstances within the knowledge of the arresting 

officer are reasonably trustworthy and sufficient in themselves to warrant a 

man of reasonable caution to believe that the person to be arrested has 

committed the offense.” Id. (citation omitted). 

In the case sub judice, as indicated supra, Appellant was in custody on 

unrelated charges when he made incriminating statements and the instant 

complaint for the homicide case was filed against him. In any event, the police 

had ample probable cause linking Appellant to Ms. Lyons’ homicide. For 

instance, the police interviewed J.D. and K.J. the day after the homicide, and 

K.J. chose Appellant’s photo from an array. N.T., 9/27/16, Trial, at 119-21. 

The police also secured the text messages between Kimbro and Appellant, as 

well as secured video surveillance of Appellant and Kimbro using Ms. Lyons’ 

ATM card on the day of and after the murder. Id. at 128-61. Thus, there is 

no arguable merit to Appellant’s underlying claim. See Johnson, supra.
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30 A.3d 381, 422-23 (2011). Such occurred in the case sub judice.

Accordingly, we find Appellant is not entitled to relief on his ineffective 

assistance of counsel claim. See Johnson, supra.

In his next issue, Appellant claims trial counsel was ineffective in failing 

to hire an expert to examine the duct tape for DNA evidence. He contends he 

asked trial counsel to hire an expert to conduct such testing; however, trial 

counsel failed to do so. 

Relevantly, this Court has held:

In order to demonstrate counsel’s ineffectiveness for failure to call 

a witness, a petitioner must prove that the witness [ ] existed, the 

witness [was] ready and willing to testify, and the absence of the 

witness’ testimony prejudiced petitioner and denied him a fair 

trial. In particular, when challenging trial counsel’s failure to 

produce expert testimony, “the defendant must articulate what 

evidence was available and identify the witness who was willing to 

offer such evidence.” Commonwealth v. Bryant, 579 Pa. 119, 

855 A.2d 726, 745 (2004) (internal citation omitted). 

Commonwealth v. Luster, 71 A.3d 1029, 1047 (Pa.Super. 2013) (en banc)

(quotation marks, quotation, and citations omitted).

In the case sub judice, during the PCRA hearing, trial counsel testified 

the Commonwealth’s expert attempted to retrieve DNA evidence from the duct 

tape, but no DNA evidence was recovered. N.T., 10/25/21, PCRA hearing, at 

44-45. Appellant has failed to identify any forensics expert who would have 

provided testimony to counter the Commonwealth’s expert’s findings. Thus, 

there is no arguable merit to the underlying claim. See Stewart, supra.
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Further, we agree with the PCRA court that Appellant has failed to 

demonstrate he was prejudiced by counsel’s omission. In this vein, the PCRA 

court indicated:

The [PCRA] court also notes that even if there was a DNA 

test, there is not a reasonable probability the outcome [of the 

trial] would have been different. Indeed, [depending on the DNA 

findings], it may have benefitted the Commonwealth. As it 

[stood], [Appellant] [was able to argue at trial] that the 

Commonwealth did not present any evidence that his DNA was on 

the [duct] tape. However, [further forensic] testing could have 

resulted in [Appellant’s] DNA on the tape or no one’s DNA on the 

tape. Moreover, [during the PCRA hearing, trial counsel] testified 

that he did not believe that this was a significant issue.

Q. Okay. Would you agree with me if his DNA was or 

was not on that [duct tape] mask [found on the 

victim’s face], that would have been a crucial piece of 

evidence?

A. No, not a crucial part because there was other 

evidence; the text messages, there was DNA on the 

decorative spoon, a pizza crust that was at the scene, 

and a couple of other things. 

N.T., 10/25/21, PCRA hearing, at 44-45.

PCRA Court Opinion, filed 8/12/22, at 7-8.

Here, given the extensive evidence that Appellant was the perpetrator

of the homicide, we agree with the PCRA court that Appellant has failed to

demonstrate that, but for counsel’s omission in having an expert test the duct

tape for DNA evidence, the outcome of Appellant’s trial would have been

different. See Gribble, supra. Thus, Appellant is not entitled to relief on his

claim of ineffective assistance of counsel.

For all of the foregoing reasons, we affirm.
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Affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/22/2023