Com. v. Smarr, C.

J-A18015-26 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CHRISTOPHER JOSEPH SMARR : : Appellant : No. 1253 WDA 2025 Appeal from the PCRA Order Entered September 11, 2025 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0003415-2015 BEFORE: PANELLA, P.J.E., KING, J., and LANE, J. MEMORANDUM BY PANELLA, P.J.E.: FILED: October 22, 2026 Christopher Joseph Smarr appeals from the order dismissing his petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. On appeal, Smarr raises numerous claims of ineffective assistance of trial counsel. Further, for the first time in this appeal, Smarr, through new PCRA appellate counsel, raises claims of his PCRA counsel’s ineffectiveness, pursuant to Commonwealth v. Bradley, 669 Pa. 107, 261 A.3d 381 (2021).1 After careful review, we affirm. This case has an extensive history predating the instant PCRA proceedings. We do not find a complete and detailed recitation of the factual ____________________________________________ 1 Bradley held that “a PCRA petitioner may, after a PCRA court denies relief, and after obtaining new counsel or acting pro se, raise claims of PCRA counsel’s ineffectiveness at the first opportunity to do so, even if on appeal.” Bradley, 261 A.3d at 401. J-A18015-26 and procedural history surrounding Smarr’s convictions is necessary here, as both this Court, as well as the PCRA court have already set forth the history of this matter in comprehensive and thorough detail. See Commonwealth v. Smarr, 1179 WDA 2018 (Pa. Super. Filed July 3, 2019) (unpublished memorandum); see also Opinion and Order, 9/9/25, at 1-29. Briefly, the Commonwealth brought charges against Smarr based on allegations that just before midnight on March 14, 2015, he shot and killed the victim, Brandon Gray. The shooting occurred during a robbery, as part of a “turf war” between rival drug dealers. Smarr proceeded to a jury trial, and 29 witnesses testified over the course of the five-day trial. The jury found Smarr guilty of first-degree murder, robbery, theft by unlawful taking, receiving stolen property, and firearms not to be carried without a license. The court sentenced Smarr to an aggregate term of 45 years to life imprisonment. The trial court denied Smarr’s post-sentence motions. This Court affirmed Smarr’s judgment of sentence on direct appeal and the Pennsylvania Supreme Court subsequently denied allowance of appeal. On June 11, 2020, Smarr filed a timely pro se PCRA petition. PCRA counsel was appointed and filed multiple amended PCRA petitions. The controlling amended PCRA petition was filed on May 28, 2024, in which Smarr raised the following claims of ineffective assistance of trial counsel: 1. Trial counsel was ineffective in relation to purported eyewitness Janay Brown: (A) trial counsel failed to effectively show favorable treatment that [] Brown received for her testimony that -2- J-A18015-26 undermined her credibility; (B) trial counsel failed to impeach [] Brown with Dr. Wecht’s testimony. 2. Trial counsel was ineffective for failure to obtain an eyewitness identification expert. 3. Trial counsel unreasonably failed to move for a judgment of acquittal. 4. Trial counsel was ineffective for failure to object to the Commonwealth’s introduction of prejudicial hearsay evidence in violation of United States v. Bruton[ 391 U.S. 123 (1968)]. 5. Trial counsel was ineffective in failing to request proper jury instructions in relation to so-called accomplice of [Smarr]. 6. [Smarr] is entitled to a new trial based on prosecutorial misconduct. 7. Trial counsel was ineffective in relation to the missing video evidence. 8. Trial counsel was ineffective for failure to file a motion for reconsideration of sentence. 9. Trial counsel was ineffective for failure to file for decertification. See PCRA Petition, 5/28/24, at 2-3. Substantial testimony and evidence was introduced at multiple PCRA evidentiary hearings on February 28, 2022, May 23, 2022, November 10, 2022, April 26, 2024, and October 16, 2024. The PCRA court thoroughly summarized this testimony and evidence. See Opinion and Order, 9/9/25, at 3-18. On September 9, 2025, the PCRA Court entered an opinion and order dismissing the PCRA petition. PCRA counsel was subsequently granted leave to withdraw. New counsel was appointed for appeal purposes. This timely appeal followed. -3- J-A18015-26 Smarr raises the following issues on appeal: 1. Whether trial counsel was ineffective in failing to impeach the Commonwealth’s key witness in the following respects: a. By not bringing out the sentence she faced in federal court, her pretrial release and her incentive to cooperate with the government; b. By not determining if her benefit of pretrial release was disclosed as Brady material and with it disputing that she only expected a benefit from cooperation; c. By not pointing out that her first statement to the police was a lie in one form or another which further undermined her credibility; d. By not pointing out that her version of the shooting was made even more implausible by the fact that [Smarr] is right handed; e. By not calling an expert in eyewitness identification to educate the jury of the difficulty of making an identification under the circumstances here? 2. Whether PCRA counsel was ineffective for not raising the points identified in Question 1 (a-d) above as ineffective assistance of counsel by trial counsel? 3. Whether trial counsel was ineffective in the following specific respects: a. In failing to object to hearsay statements by Mark Schofield which were self-interested denials of culpability? b. In failing to object to hearsay statements of Mark Schofield which falsely attributed threats to [Smarr]? c. In acquiescing to an unsupported accomplice charge and in failing to object to the accomplice charge on appeal? d. In failing to allege prosecutorial misconduct regarding the Commonwealth’s request for an accomplice charge and its argument for accomplice liability to the jury? -4- J-A18015-26 e. In failing to seek an instruction on third party culpability? f. In failing to forensically examine of Ex. 12, the phone allegedly stolen from the victim which Schofield tried to destroy after the shooting, in referencing the phone in an ineffective way in his closing argument? g. In failing to offer statements made by Schofield which would have further incriminated him in the murder? h. In failing to impeach Patterson with a statement which indicated he could not associate [Smarr] with the men who robbed him that night? i. In failing to object to testimony by police about how they located [Smarr]’s photo for a lineup when such testimony unfairly prejudiced [Smarr]? j. In failing to obtain the entire video from which a screenshot of [Smarr] was extracted to determine if the screenshot was the best evidence and if the remainder of the video was exculpatory? 4. Whether PCRA counsel was ineffective for not raising the points identified in Question 3 (a, b, d, e, f, g, h, i, and j) above as ineffective assistance of counsel by trial counsel? See Appellant’s Brief, at 3-5 (unnecessary capitalization and citations to trial court opinion omitted). “Our standard of review regarding an order denying a petition under the PCRA is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error.” Commonwealth v. Cruz, 355 A.3d 1, 4-5 (Pa. Super. 2026) (citation omitted). We view the findings of the PCRA court and the evidence of record in a light most favorable to the prevailing party.... The PCRA court’s credibility determinations, when supported by the record, -5- J-A18015-26 are binding on this Court; however, we apply a de novo standard of review to the PCRA court’s legal conclusions. Commonwealth v. Baynard, 355 A.3d 21, 25 (Pa. Super. 2026) (brackets and citation omitted). We presume counsel is effective, and an appellant bears the burden to prove otherwise. See Commonwealth v. Bennett, 57 A.3d 1185, 1195 (Pa. 2012). “The test for ineffective assistance of counsel is the same under both the Federal and Pennsylvania Constitutions.” Commonwealth v. Gibson, 318 A.3d 927, 934 (Pa. Super. 2024) (citations omitted). To establish a claim of ineffective assistance of counsel, a [petitioner] must show, by a preponderance of the evidence, ineffective 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. The burden is on the [petitioner] to prove all three of the following prongs: (1) the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. Commonwealth v. Nealy, 333 A.3d 393, 399 (Pa. Super. 2025) (brackets and citation omitted). A failure to satisfy any prong of the test for ineffectiveness will require rejection of the claim. See Commonwealth v. Solano, 129 A.3d 1156, 1163 (Pa. 2015). “[B]oilerplate allegations and bald assertions of no reasonable basis and/or ensuing prejudice cannot satisfy a petitioner’s burden to prove that counsel was ineffective.” Commonwealth v. Sandusky, 203 A.3d 1033, 1044 (Pa. Super. 2019) (citation omitted). Further, -6- J-A18015-26 [w]here the defendant asserts a layered ineffectiveness claim he must properly argue each prong of the three-prong ineffectiveness test for each separate attorney. Layered claims of ineffectiveness are not wholly distinct from the underlying claims, because proof of the underlying claim is an essential element of the derivative ineffectiveness claim. In determining a layered claim of ineffectiveness, the critical inquiry is whether the first attorney that the defendant asserts was ineffective did, in fact, render ineffective assistance of counsel. If that attorney was effective, then subsequent counsel cannot be deemed ineffective for failing to raise the underlying issue. Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa. Super. 2012) (citations omitted and formatting altered). In any event, it is well settled that “counsel cannot be deemed ineffective for failing to raise a meritless claim.” Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015) (citation omitted). Preliminarily, regarding Smarr’s claims that PCRA counsel was ineffective, we acknowledge that Simms timely raised his PCRA counsel’s ineffectiveness claims on appeal. See Bradley, 261 A.3d at 405. In some instances, the record before the appellate court will be sufficient to allow for disposition of any newly-raised ineffectiveness claims. However, in other cases, the appellate court may need to remand to the PCRA court for further development of the record and for the PCRA court to consider such claims as an initial matter. Consistent with our prior case law, to advance a request for remand, a petition would be required to provide more than mere boilerplate assertions of PCRA counsel’s ineffectiveness; however, where there are material facts at issue concerning claims challenging counsel’s stewardship and relief is not plainly unavailable as a matter of law, the remand should be afforded. -7- J-A18015-26 Id. at 402 (citations, brackets, and quotation marks omitted). In other words, “appellate courts will have the ability to grant or deny relief on straightforward claims, as well as the power to remand to the PCRA court for the development of the record.” Id. at 403. On appeal, Smarr focuses almost exclusively on the underlying claims that trial counsel was ineffective, including claims he raised in his PCRA petition, and new claims he raises for the first time on appeal. He offers almost no analysis of PCRA counsel’s ineffectiveness, other than conclusory statements that PCRA counsel was ineffective for failing to bring certain claims of trial counsel’s ineffectiveness. See, e.g., Appellant’s Brief, at 26 (stating in a final, conclusory, sentence for this section that “PCRA [c]ounsel failed to raise these issues. A remand is necessary.”). Smarr does not explain what information would be gained by remand; whether or not he ever discussed these claims with PCRA counsel; or when he learned of these claims himself. We reiterate that substantial testimony and evidence was taken over 5 separate hearings that spanned the better part of a year on the already extensive list of claims of ineffective assistance of trial counsel. It is not clear why these claims he now alleges PCRA counsel failed to raise were never -8- J-A18015-26 mentioned during that entire time frame, or if Smarr somehow learned of these claims after the fact.2 Accordingly, we conclude Smarr is not entitled to relief on these claims nor a remand to further develop the record. Smarr merely raises bald allegations of PCRA counsel’s ineffectiveness, which requires a rejection of his claims. See Chmiel, 30 A.3d at 1128; Spotz, 896 A.2d at 1250. Accordingly, based upon this record, we conclude Smarr is not entitled to relief on his PCRA counsel ineffectiveness claims. See Bradley, 261 A.3d at 402 (noting that boilerplate allegations of ineffectiveness do not entitle a petitioner to relief); see also Martz, 232 A.3d at 811. We now turn to the underlying claims of ineffective assistance of trial counsel. We note that Smarr concedes that many of his claims raised on appeal were not raised in his PCRA petition. We further note that other claims, while referencing similar subjects or witnesses, are wholly distinct from the issues preserved in the amended PCRA petition that is currently before us. To the degree any claims raised on appeal were not included in Smarr’s amended PCRA petition in the first instance, they are waived. See Pa.R.A.P. 302(a); see also Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa. ____________________________________________ 2 Without any more information other than the bald allegations against PCRA counsel, we would essentially be permitting Smarr to circumvent the system to raise even more claims of ineffective assistance of counsel that should have been raised in his petition in the first place. -9- J-A18015-26 2004) (stating “a claim not raised in a PCRA petition cannot be raised for the first time on appeal”). Our Supreme Court has explained: Regardless of the reasons for Appellant’s belated raising of this issue, it is indisputably waived. We have stressed that a claim not raised in a PCRA petition cannot be raised for the first time on appeal. We have reasoned that permitting a PCRA petition to append new claims to the appeal already on review would wrongly subvert the time limitation and serial petition restrictions of the PCRA. Santiago, 855 A.2d at 691 (citation, brackets, and internal quotation marks omitted). Upon review, it appears that the only issues raised on appeal that were preserved in the amended PCRA petition are issues 1(a), 1(e), and 3(e), regarding trial counsel’s failure to bring out Brown’s federal sentence and pretrial release, failure to call an expert in eyewitness identification, and failure to seek an instruction on third party culpability, respectively. After a thorough review of the record, briefs of the parties, applicable law, and comprehensive PCRA court opinions, we conclude there is no merit to Smarr’s preserved claims. The PCRA court has now authored two opinions in which it methodically addressed each claim Smarr raised.3 Accordingly, we ____________________________________________ 3 We note the PCRA court ordered Smarr to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Smarr did file a statement, but it was anything but concise. In fact, the statement is an over fourteen-page narrative, raising numerous allegations of layered ineffective assistance of counsel. While the statement concluded with over 10 broad issue sections, each section included several subsections with distinct points of (Footnote Continued Next Page) - 10 - J-A18015-26 affirm Smarr’s preserved claims on the basis of the cogent analysis in the opinions of the Honorable Meagan Bilik-DeFazio dated September 9, 2025 and December 18, 2025. Further, while we independently find Smarr is due no relief on his PCRA counsel ineffectiveness claims, we find the trial court properly analyzed Smarr’s claims as to PCRA counsel, and alternatively also adopt the court’s reasoning in dismissing those claims. We have attached both opinions for the convenience of the parties, and direct the parties to the following pertinent parts of the court’s analysis: • Claims as to Brown’s Expert Testimony: See Opinion and Order, 9/9/25, at 30-34; PCRA Court Opinion, 12/18/25, at 5-10. • Failure to call an expert in eyewitness identification: See Opinion and Order, 9/9/25, at 34-43; PCRA Court Opinion, 12/18/25, at 10-12. ____________________________________________ error. Now on appeal, Smarr attempts to argue that his PCRA counsel should have raised even more issues on his behalf, and in doing so raises over 15 layered sub-issues in his appellate brief. We feel compelled to note that the Pennsylvania Supreme Court has long stated that the raising of a multiplicity of issues on appeal raises the presumption that none have merit. See Commonwealth v. Small, 980 A.2d 549, 564–65 (Pa. 2009). [T]he quality of representation is not measured by the number of issues raised. It is not necessary to raise patently unavailing matters in order to ward off fears of a later finding of ineffectiveness; a good attorney will not disguise and thus weaken good points by camouflaging them in a flurry of makeweight issues which clearly have no merit. Commonwealth v. Williams, 863 A.2d 505, 510 n. 5 (Pa. 2004); see Commonwealth v. Robinson, 864 A.2d 460, 479 n. 28 (Pa. 2004) (“While we certainly understand the duty of the attorney to be a zealous advocate, we pose that conduct such as what we presently encounter does not advance the interests of the parties and, if anything, is a disservice to the client.”). - 11 - J-A18015-26 • Failure to seek an instruction on third party culpability: See Opinion and Order, 9/9/25, at 47-49; PCRA Court Opinion, 12/18/25, at 19. • Analysis as to PCRA Counsel: See PCRA Court Opinion, 12/18/25, at 6- 28. Order affirmed. DATE: 10/22/2026 - 12 -  Circulated 10/02/2026 09:18 AM IN THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTY, PENNSYLVANIA - CRIMINAL DIVISION COMMONWEALTH OF PENNSYLVANIA ) ) ) vs. ) No. 3415 C 2015 ) CHRISTOPHER JOSEPH SMARR ) STATEMENT OF THE COURT ISSUED PURSUANT TO PA.R.A.P, 1925(a) AND NOW, to wit, this 2 day of December, 2025, the Court issues the following Opinion pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure: This Court incorporates by reference the factual and procedural history from the attached Opinion and Order of Court dated September 9, 2025. Defendant timely filed a Notice of Appeal with the Pennsylvania Superior Court on September 29, 2025. He raised several issues in a Concise Statement of Matters Complained of on Appeal that was filed on November 26, 2025, involving the following: I. Issues Regarding Impeachment of Janay Brown II. The Failure to Call a Witness on Eyewitness Identification Page 1 of 28  III. Issues Regarding the Testimony of Crystal Craig IV. The Misuse of Exhibit 12 V. The Failure to Object to the Hearsay Statements of Schofield VI. The Failure to Request an Instruction on Third Party Culpability VII. The Failure of Trial Counsel to Seek the Decertification of the Petitioner and his Treatment as a Juvenile VIII. Errors with Respect to the Charge on Accomplice Liability IX. The Errors Regarding the Testimonies of Cpi. Mazurik and Detective Marcocci X. The Errors in the Examination of Jeffrey Patterson and the Failure to Make Proper Argument for the Exclusion of his Testimony XI. The Failure to Object to the Screenshot, Exhibit 17 XII. Errors of Trial Counsel in Failing to Preserve Matters for Appeal (Concise Statement of Errors Complained of on Appeal, 11/26/25). I. ISSUE PRESENTED ON APPEAL Petitioner raises several claims for the first time alleging ineffective assistance of PCRA counsel. "[A] PCRA petitioner may, after a PCRA court denies relief, and after obtaining new counsel or acting pro se, raise claims of PCRA counsel's ineffectiveness at the first opportunity to do so, even if on appeal." Commonwealth v. Bradley, 261 A.3d 381, 404-05 (Pa. 2021). Here, Petitioner is represented by new counsel on appeal and is raising PCRA Page 2 of 28 counsel's ineffectiveness at the first opportunity to do so. Therefore, his claims should be addressed. Petitioner must "satisfy the three prongs of the ineffectiveness test with respect to both PCRA counsel and the prior counsel whose ineffectiveness he claims that PCRA counsel should have raised." Commonwealth v. Martin, 301 A. 3d 881, at *5 (Pa. Super. 2023) (non-precedential decision). Generally, trial counsel is presumed to be effective, and the petitioner bears the burden of proving counsel's alleged ineffectiveness. Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018). In order to be eligible for post-conviction relief pursuant to the PCRA, a petitioner must plead and prove by a preponderance of the evidence that the conviction or sentence resulted from "ineffective 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)(H) . Specifically, 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 Page 3 of 28 act or failure to act." Commonwealth v. Stultz, 114 A. 3d 865, 880 (Pa. Super. 2015). Additionally: [t]o demonstrate prejudice, appellant must show there is a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different. When it is clear the party asserting an ineffectiveness claim has failed to meet the prejudice prong of the ineffectiveness test, the claim may be dismissed on that basis alone, without a determination of whether the first two prongs have been met. Failure to meet any prong of the test will defeat an ineffectiveness claim. Counsel is not ineffective for failing to raise meritless claims. Commonwealth v. Michaund, 70 A.3d 862, 867 (Pa. Super. 2013). The Pennsylvania Supreme Court has also stated the following regarding matters of trial strategy: Generally, where matters of strategy and tactics are concerned, counsel's assistance is deemed constitutionally effective if he chose a particular course that had some reasonable basis designed to effectuate his client's interests. Nor can a claim of ineffective assistance generally succeed through comparing, by hindsight, the trial strategy employed with alternatives not pursued. A finding that a chosen strategy lacked a reasonable basis is not warranted unless it can be concluded that an alternative not chosen offered a potential for success substantially greater than the course actually pursued. Commonwealth v. Miller, 819 A.2d 504, 517 (Pa. 2002) (citing Commonwealth v. Howard, 719 A. 2d 233, 237 (Pa. 1998)) (internal citations and quotations omitted). Page 4 of 28  A. Issues Regarding the Impeachment of Janay Brown (i). Claims A and B First, Petitioner argues that trial counsel failed to properly impeach Brown by eliciting the potential sentence she faced in Federal Court which she was incentivized to reduce by her cooperating in this case. He claims that trial counsel was ineffective for not developing further impeachment of Brown. Also, Petitioner avers that the Commonwealth had a duty to clarify that Brown received pre-trial release and her testimony would be made known to her federal sentencing court in violation of Brady. In Petitioner's underlying PCRA Petition, he claimed that Trial Counsel failed to effectively show favorable treatment that Brown received since she was not incarcerated on her federal charges during trial. The reasons for this Court's decision in denying Petitioner's claim appear in the Opinion and Order of Court dated September 9, 2025, that was filed at the above-number and attached hereto for reference. (Opinion and Order of Court, 9/9/25, at 30-34). To the extent that Petitioner is raising new issues and theories for relief for the first time on appeal, those issues and Page 5 of 28 theories should be waived. See Commonwealth v. Cline, 177 A.3d 922, 927 (Pa. Super. 2017) ("A new and different theory of relief may not be successfully advanced for the first time on appeal."); Pa. R.A.P. 302(a) ("Issues not raised in the trial court are waived and cannot be raised for the first time on appeal."). Additionally, Petitioner includes a "catch all" claim that PCRA Counsel was ineffective for failing to make the aforementioned assertions of ineffectiveness of trial counsel. Petitioner's claims, however, are based on conjecture. Brown was not promised leniency in her federal case in exchange for her testimony in the instant case. She was, however, provided consideration due to her cooperation in a federal case that was unrelated to the homicide charges against Petitioner, which was further evidenced by PCRA Hearing Exhibit 6. See PCRA Hearing Exhibit 6, 12-14. Email correspondence that was provided by the Commonwealth regarding Brown's federal case also indicates "[s]ince a sentencing Judge has to take into consideration all of the circumstances that surround a defendant in determining an appropriate sentence, and this would include any additional safety concerns that surround her Page 6 of 28 testimony in a Murder trial, it is fair to assume that this will be brought to the attention of the Judge." See Commonwealth's Exhibit 3. There is no evidence that the Commonwealth withheld any information from Petitioner in violation of Brady. Furthermore, Petitioner cannot demonstrate that he was prejudiced by Trial Counsel's failure to elicit the potential sentence that Brown faced in her federal case during trial. Brown was insistent that she did not expect to receive any benefit for her cooperation in the instant case. (Jury Trial Proceedings, December 5-9, 2016, at 127-28, 190-93). In fact, she was indicted in her federal case after she had already identified Petitioner and testified at a preliminary hearing in this case. Id. at 127. Ultimately, for all of the aforementioned reasons, Petitioner failed to establish that his underlying issues have arguable merit, counsel's actions lacked an objective reasonable basis, and actual prejudice resulted from counsel's failure to act. PCRA counsel therefore was not ineffective for these same reasons. Page 7 of 28  (ii). Claim C Next, Petitioner claims that his incontrovertible physical facts argument could have been made stronger if the jury knew that he was right-handed because it would have been "almost impossible" for a right-handed shooter to have made the wound the victim suffered unless the victim was fully turned away from the shooter at the moment of discharge. He is raising this theory for the first time on appeal. Petitioner claimed in his underlying PCRA Petition that Attorney DeMatt failed to impeach Brown with Dr. Wecht's testimony which differs significantly from his instant argument. Therefore, his claim should be waived on appeal- Petitioner further argues that PCRA Counsel was ineffective for failing to make this assertion of ineffectiveness of trial counsel. He failed, however, to establish that the underlying issue has arguable merit, counsel's actions lacked an objective reasonable basis, and actual prejudice resulted from counsel's failure to act. There is no evidence to support his bald assertion that it would have been "almost impossible" for a right-handed shooter to have made the wound the victim suffered unless the victim was fully Page 8 of 28 turned away from the shooter at the moment of discharge. Attorney DeMatt believed that he sufficiently cross-examined Brown and Dr. Wecht in order to make his arguments to the jury regarding the shooting and how it occurred. (PCRA Hearing Transcript, February 28, 2022, at 85-86). Upon review of the testimony and arguments made by Attorney DeMatt to the jury, it is clear that Attorney DeMatt's chosen strategy had some reasonable basis designed to effectuate his client's interests. Petitioner is engaging in a hindsight analysis of Attorney DeMatt's chosen trial strategy because it was ultimately unsuccessful. He cannot show that there is a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different. For these same reasons, Petitioner failed to demonstrate that PCRA Counsel was ineffective and his claim should be denied. (iii). Claim D Petitioner also argues that trial counsel did not elicit that what Brown initially stated to the police was that she did not accompany the victim into the motel on the second occasion, only going in later to allegedly observe the shooting in the hall. Petitioner did not raise Page 9 of 28 this claim in his underlying PCRA Petition and it should be waived on appeal. Petitioner argues that PCRA counsel was ineffective in failing to raise this claim. As stated by Petitioner, however, Attorney DeMatt already cross-examined Brown about this fact during trial. (Jury Trial Proceedings, December 5-9, 2016, at 170-72). Petitioner cannot demonstrate that he was prejudiced due to Attorney DeMatt's failure to bring out the specific details of Brown's account. These facts were already essentially highlighted to the jury by Attorney DeMatt. Petitioner cannot show that there is a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different. Therefore, he failed to establish that PCRA counsel was Ineffective in failing to raise this claim. B. Failure to Call a Witness on Eyewitness Identification Next, Petitioner argues that trial counsel was ineffective in failing to call an expert witness whose testimony would have been admissible to impeach the positive identification by Brown of him as the shooter. The reasons for this Court's decision in denying Page 10 of 28 Petitioner's Eyewitness Identification claim appear in the Opinion and Order of Court dated September 9, 2025, that was filed at the above-number and attached hereto for reference. (Opinion and Order of Court, 9/9/25, at 34-43). Additionally, Petitioner claims for the first time that trial counsel was ineffective in limiting his defense to the issue of whether Brown was a liar. Since Petitioner did not raise this theory in his underlying PCRA Petition, his claim should be waived. Petitioner argues that PCRA counsel was ineffective in failing to raise an issue regarding trial counsel limiting his defense to Brown being a liar. Petitioner, however, cannot establish that Attorney DeMatt's actions lacked an objective reasonable basis or that he was prejudiced. Attorney DeMatt chose a particular course that clearly had some reasonable basis designed to effectuate Petitioner's interests. See Miller, 819 A.2d at 517. Petitioner failed to demonstrate that the mistaken identification defense that was not chosen by Attorney DeMatt offered a potential for success substantially greater than the course actually pursued. He is clearly engaging in a hindsight analysis of Attorney DeMatt's trial strategy Page 11 of 28 which is improper. For these same reasons, his claim that PCRA counsel was ineffective should be denied. C. Issues Regarding the Testimony of Crystal Craig Petitioner argues that Attorney DeMatt should have objected to the statement "but I didn't do it" that was made by Schofield as hearsay. He also argues that Attorney DeMatt should have objected to the statement because it was never disclosed by the Commonwealth. Petitioner, however, did not raise these theories for relief in his underlying PCRA Petition. Therefore, his claims should be waived. Petitioner claims that PCRA counsel was ineffective in failing to raise the aforementioned issues. He, however, failed to establish that he is entitled to relief. As previously explained by this Court, Attorney DeMatt did not object to Schofield's statement because he believed that it was more helpful than harmful because it reflected that Schofield was involved in something. (PCRA Hearing Transcript, February 28, 2022, at 99). He felt that it gave him an argument during trial that Schofield was the principal. Id. at 100. In fact, Attorney DeMatt did arguably use Schofield's statement to Page 12 of 28 his advantage during closing arguments. (Jury Trial Proceedings, December 5-9, 2016, at 903) ("Now, let's just assume for a second that he did say that. Do you really expect someone who just shot and killed a man to say, hey, I just shot and killed a man? No. He's saying I'm in trouble. Oh, you know, I didn't do it. I didn't do it. That makes more sense. That's more human nature to do something like that."). Therefore, since Attorney DeMatt's chose a particular course that had some reasonable basis designed to effectuate his client's interests, Petitioner's claims fail. He failed to demonstrate that the alternative not chosen by Attorney DeMatt offered a potential for success substantially greater than the course actually pursued. Furthermore, it appears that Petitioner only takes issue with half of Schofield's statement. It would be improper to only exclude the portion of Schofield's statement that Petitioner is now arguing is unfavorable to his case. Attorney DeMatt also took issue with the fact that he was not made aware of this statement prior to trial because it was not contained within any police reports. (Jury Trial Proceedings, December 5-9, 2016, at 863-67). The parties thereafter stipulated that Trooper Swope's report makes no Page 13 of 28 indication that Craig told him that Schofield said, "I'm in deep shit but I didn't do it." Id. at 868. Ultimately, Petitioner failed to establish that counsel's actions lacked an objective reasonable basis and actual prejudice resulted from counsel's failure to act. For these same reasons, Petitioner's claim regarding PCRA counsel's failure to raise this issue should be denied. D. Misuse of Exhibit 12 Next, Petitioner argues that he received ineffective assistance of counsel due to Attorney DeMatt's failure to argue for the admission of Schofield's statements regarding the cellphone in Commonwealth's Exhibit 12 as a statement against interest and/or excited utterance. He claims that trial counsel should not have argued that the cellphone belonged to Brown and it would have been a better strategy to argue that it was the victim's cellphone. He also states that trial counsel should have sought a forensic examination of the cellphone to determine its actual ownership. Petitioner did not raise any of these issues in his underlying PCRA Petition and they should be waived. Page 14 of 28  Petitioner also argues that PCRA counsel was ineffective in failing to raise these claims and seek an examination of Commonwealth's Exhibit 12. During trial. Brown identified Commonwealth's Exhibit 12 as Decedent's "work" cellphone that he possessed the night of the shooting. (Jury Trial Proceedings, December 5-9, 2016, at 143, 181-82). She stated that it was missing from Decedent when she returned back to the scene after contacting 911. Id. at 143-44. The cellphone was in two pieces at the time of trial which differed from when Decedent had it. Id. at 144. The cellphone was ultimately provided to Trooper Swope by Craig who testified that Schofield and his girlfriend discarded it in the trash. Id. at 814, 856. Craig also testified that Schofield and his girlfriend wiped fingerprints off of the phone and Schofield broke it. Id. at 858. Moreover, Vrable testified that after the shooting, she received a call from Schofield from a nu