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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT PALMER :
:
Appellant : No. 2062 EDA 2021
Appeal from the PCRA Order Entered October 7, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0010047-2015
BEFORE: BENDER, P.J.E., STABILE, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED AUGUST 23, 2022
Robert Palmer (Palmer) appeals from the October 7, 2021 order of the
Court of Common Pleas of Philadelphia County (PCRA court) dismissing his
petition pursuant to the Post-Conviction Relief Act (PCRA).1 We affirm.
I.
A.
We glean the following facts from the certified record. In July 2015,
Danielle Kelsey (Kelsey) was shot once in the back while driving down 17 th
Street in Philadelphia at approximately 11:00 p.m. Neither she nor the two
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541 et seq.
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passengers in her vehicle saw the shooter and she did not know Palmer.
Kelsey suffered serious injuries and was hospitalized for several weeks.
Officers reported immediately to the scene and recovered fired cartridge
casings and a baggie containing vials of crack cocaine near the corner of 17th
Street and Susquehanna Avenue. They did not locate any eyewitnesses.
Subsequent testing revealed Palmer’s DNA on the baggie containing the
narcotics.
The next morning, Detective James Wearing (Detective Wearing)
located two surveillance cameras capturing two angles outside of a deli on the
corner of 17th Street and Susquehanna Avenue. One of the cameras captured
an individual wearing a dark-colored jacket walking in front of the deli at
approximately 11:00 p.m. The individual lifted his arm in a “shooting-type
position” while facing in the direction of Kelsey’s vehicle and then left the
scene. Notes of Testimony, 8/17/16, at 84.
Detective Wearing continued to examine the video footage from earlier
in the day and identified a thin black male with a short afro-style haircut who
appeared to be the same person as the shooter. He first appeared at 8:12
p.m. and was wearing dark shorts with white stitching down the sides, a light-
colored shirt with a distinctive eyeball on the front, dark sneakers and white
socks pulled up his shins. The same individual walked back and forth near the
deli and appeared again on the cameras at 8:16 p.m., 8:19 p.m., 8:22 p.m.,
8:23 p.m., 9:50 p.m. and 10:00 p.m.. At 10:26 p.m., he appeared on the
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camera again, this time wearing a dark-colored jacket over his t-shirt.
Detective Wearing testified that even though the jacket covered the t-shirt in
the shooting portion of the video, the individual “kind of like [swung] his arms
in an exaggerated motion. He has like [a] strut about him.” Id. at 89-90.
Coincidentally, when detectives exited the deli after watching the
surveillance video, Palmer was standing across the street wearing the
distinctive eyeball t-shirt. Detective Wearing also observed that he matched
the individual on the video in his face, hair and build and had the same “strut.”
Id. The detectives immediately placed him under arrest.
Detective Michael Rocks (Detective Rocks) then interrogated Palmer
about the shooting. After viewing the surveillance video, Palmer admitted
that he was depicted with the eyeball t-shirt earlier in the night but denied
that he was the individual who made the shooting motion at 11:00 p.m. When
informed about the narcotics recovered from the corner, Palmer admitted that
he had dropped them there earlier in the evening. He then asked Detective
Rocks “what his bail would be if he shot this girl by accident.” Id. at 137.
A search of Palmer’s residence yielded a pair of black high-top Nike
sneakers like those seen in the videos. However, officers did not find the
hooded sweatshirt or cutoff track pants that the individual in the video had
worn. They also did not recover a firearm or ammunition.
Following a jury trial, Palmer was convicted of two counts of aggravated
assault, carrying a firearm without a license, carrying a firearm on the public
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streets of Philadelphia, and two counts of recklessly endangering another
person.2 One count of aggravated assault identified Kelsey as the victim and
the other count identified a “John Doe” victim, as the Commonwealth argued
that Palmer had intended to shoot an unidentified victim but had hit Kelsey by
accident.
B.
Palmer proceeded to sentencing on October 28, 2016. Based on his
Prior Record Score (PRS) of one, the standard range of the sentencing
guidelines for aggravated assault causing serious bodily injury to Kelsey was
60 to 78 months’ incarceration. The standard range for the aggravated assault
of the John Doe victim was 48 to 60 months’ incarceration.
The Commonwealth began by describing Palmer’s juvenile court record.
He had received a 90-day commitment for a single offense involving
possession of a firearm but remained under supervision for three years
because he was unable to ever complete the requirements for release. Palmer
had failed to follow curfew and meet with his probation officer, had attempted
to use someone else’s urine for a drug test, missed school and had issues with
his home detention worker and Vision Quest staff. He resisted psychiatric
treatment, denied that he had problems and informed staff and his probation
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218 Pa.C.S. §§ 2702(a), 6106(a)(1), 6108 & 2705. Judgment of acquittal
was granted on two counts of attempted murder. 18 Pa.C.S. § 901(a).
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officer that he would return to his previous lifestyle when released. The
Commonwealth argued that Palmer had not taken his charges seriously
throughout the pendency of the instant case, laughing in open court when the
maximum sentences were recited. It argued that despite his low PRS, he had
not demonstrated an ability to change. It highlighted the seriousness of the
offense and requested a sentence of ten to 20 years of incarceration.
Palmer argued that there was a single victim in the case and that a
sentence of five to ten years, which was in the standard range of the
guidelines, would be appropriate. He argued that his juvenile record merely
reflected that he had been “a teenager with a bad attitude.” Notes of
Testimony, 10/28/16, at 15. He had struggled with mental health issues but
wanted to be a good father to his children and improve himself. He also
pointed out that he had support from his mother, who was present at
sentencing and throughout the trial.
The trial court then reviewed a presentence investigation report (PSI)
and the details of Palmer’s juvenile record, including his difficulties with
supervision, non-compliance and threatening and violent behavior while in
placement. He earned a high school diploma and worked as a janitor following
his discharge from placement. At the time of sentencing, he was 25 years old
and had one prior conviction. He was raised by both parents and had a good
home life. He had a two-year-old child and a ten-month-old child. He had
earned a vocational certificate but did not have formal employment. He was
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diagnosed with bipolar disorder, depression and anxiety and had received
outpatient treatment for two years. The trial court also noted that it had
personally observed Palmer’s defiant and oppositional attitude in court
throughout the proceedings and believed that he did not take the charges or
his behavior seriously. Finally, it concluded that Palmer had not shown
remorse for his actions, and that by firing ten shots down a city street, he had
avoided a homicide charge by pure luck.
Accordingly, the trial court sentenced Palmer as follows:
• Aggravated assault (Kelsey) – 5 to 10 years’ incarceration
• Aggravated assault (Doe) – 4 to 8 years’ incarceration,
consecutive
• Carrying a firearm without a license – 1 to 2 years’
incarceration, concurrent
• Carrying a firearm on the public streets of Philadelphia – no
further penalty
• Two count counts of recklessly endangering another person
– 1 to 2 years’ incarceration each, concurrent
The aggregate sentence was nine to 18 years of incarceration. Palmer filed a
timely post-sentence motion seeking modification of his sentence, which the
trial court denied.
Palmer timely appealed and this Court affirmed the judgment of
sentence. Commonwealth v. Palmer, 192 A.3d 85 (Pa. Super. 2018),
allocator denied, 204 A.3d 924 (Pa. March 20, 2019). He challenged the
sufficiency of the evidence to support his conviction for aggravated assault of
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the John Doe victim. Relevant to this appeal, he argued that the trial court
abused its discretion in allowing Detective Wearing to narrate the surveillance
video obtained from the corner market and testify that Palmer, who admitted
to appearing in earlier portions of the video, was also the person depicted
firing the gun. Id. at 99. We concluded that Detective Wearing’s testimony
was properly admitted as “non-expert opinion[]” testimony and was “based
upon his perceptions of [the videos], placed his subsequent actions in context,
and was helpful in allowing the jury to reach a clear understanding of all his
testimony.” Id. at 101. Moreover, we noted that the identity of the shooter
presented a factual issue and was properly left to the jury to resolve. Id.
Accordingly, we affirmed the judgment of sentence.
C.
Palmer filed the instant timely PCRA petition and the PCRA court
appointed counsel. He alleged that trial counsel was ineffective for failing to
challenge the weight of the evidence to support his convictions in a post-
sentence motion and failing to present a video expert to rebut Detective
Wearing’s testimony. He further argued that appellate counsel was ineffective
for failing to challenge the discretionary aspects of his sentence on appeal.
The PCRA court held an evidentiary hearing on the claims related to the
defense expert and the discretionary aspects of the sentence. At the hearing,
Palmer testified that he had requested a direct appeal following sentencing.
He said that because the Commonwealth’s case was based on the surveillance
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video, he believed that he should have had an expert testify to refute
Detective Wearing’s testimony. He discussed the possibility of an expert with
trial counsel and she said she did not believe it was necessary. He and his
family researched defense experts prior to trial and believed that there were
experts available who could have testified on his behalf but he did not identify
anyone specifically.
Palmer said a defense expert would have been helpful in refuting
Detective Wearing’s testimony he did not believe the shooter could be
identified from the grainy, black and white footage of the shooting. He
admitted to being depicted in the color footage earlier in the day but said only
the black and white footage captured the shooting. Because the police only
recovered a pair of sneakers from his home and his fingerprints from the
baggie of narcotics, he believed Detective Wearing’s testimony identifying him
on the video was crucial to the Commonwealth’s case. On cross-examination,
Palmer testified that he met with trial counsel at least once prior to trial but
could not recall when he spoke with her about hiring an expert.
Next, appellate counsel testified that he chose to raise the two above-
described issues on appeal after reviewing the entire record for possible
issues. He said that it was possible that he could have challenged the sentence
as excessive. It was his practice to only raise the issues that were most likely
to garner relief, and he believed the sufficiency issue and the challenge to
Detective Wearing’s testimony were the strongest issues in Palmer’s case. He
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believed he would not be successful in challenging the sentence because each
of the aggravated assault sentences fell at the bottom of the standard range
of the sentencing guidelines. He testified that including the sentencing
challenge in the brief would distract from the stronger issues, and if he had
thought the sentencing claim would be successful, he would have raised it.
Finally, trial counsel testified that she chose to raise a defense of
misidentification based on the gaps in the surveillance video. She contended
that the person depicted in the shooting video was not Palmer, who was
depicted earlier but had disappeared from the frame prior to the shooting.
She recalled that the Commonwealth also presented evidence of Palmer’s
statement to Detective Rocks, his DNA on the package of narcotics found at
the scene, and evidence that Palmer was wearing the eyeball t-shirt at the
time of his arrest. She agreed that the DNA report from the narcotics was
inconclusive as to the DNA of two other individuals.
Trial counsel testified that she believed the video was strong evidence
in favor of the Commonwealth. She said the footage was black and white
when it was dark outside but was in color during the daytime. The
Commonwealth made a compilation using footage from the two cameras that
included some arrows and markings. She recalled that Palmer’s face was
visible in the daylight portions of the videos. Trial counsel felt that an expert
was not necessary to refute Detective Wearing’s testimony:
What Detective W[e]aring largely testified to was consistencies
and the people in terms of their clothing and their appearance.
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He testified as a lay witness. I did not believe that a defense
expert who would provide some specialized knowledge to assist
the jury in determining similarities and differences in physical
appearance and clothing. I felt that that was a factual
determination for the jury to make on their own.
Notes of Testimony, 10/7/21, at 38. She said that she had previously
consulted with expert witnesses regarding misidentification but had never
called one during a trial. In Palmer’s case, she “didn’t think an expert would
bring some specialized knowledge that would aid the jury in determining the
similarities and differences of the man on the video. They are purely factual
questions.” Id. at 39. On cross-examination, she testified that she had never
identified any technical or authentication issues concerning the footage and
that she had adequate time to review the videos before trial.
The PCRA court concluded that appellate counsel had made a reasonable
strategic decision to not raise a sentencing issue on appeal and could not be
found ineffective for exercising her professional judgment. Regarding the
expert witness, it first observed that Palmer had not produced a certification
from such a witness to establish that such an expert existed, was available to
testify, and would have provided testimony that benefitted the defense. Thus,
it concluded that the petition did not properly plead and prove the claim and
failed on that basis alone. Additionally, the PCRA court held that trial counsel
had made all appropriate objections to the video during trial, and that the
identification of Palmer as the shooter was properly left to the jury as the fact-
finder. Moreover, trial counsel’s strategic decision to challenge the gaps in
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the video and argue misidentification was a reasonable one. Accordingly, the
PCRA court dismissed the petition. Palmer timely appealed and he and the
PCRA court have complied with Pa. R.A.P. 1925.3
II.
Palmer raises three challenges to the effectiveness of prior counsel:
whether trial counsel was ineffective for failing to present an independent
video expert, whether appellate counsel was ineffective for failing to challenge
the discretionary aspects of his sentence, and whether trial counsel was
ineffective for failing to challenge the weight of the evidence in the post-
sentence motion. “To prove counsel ineffective, the petitioner must show
that: (1) his underlying claim is of arguable merit; (2) counsel had no
reasonable basis for his action or inaction; and (3) the petitioner suffered
actual prejudice as a result.” Commonwealth v. Sarvey, 199 A.3d 436, 452
(Pa. Super. 2018).
Generally, counsel’s assistance is deemed constitutionally
effective if he chose a particular course of conduct that had some
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3 “The standard of review of an order dismissing a PCRA petition is whether
that determination is supported by the evidence of record and is free of legal
error.” Commonwealth v. Weimer, 167 A.3d 78, 81 (Pa. Super. 2017).
“The PCRA court’s findings will not be disturbed unless there is no support for
the findings in the certified record.” Id. (citation omitted). “[A] PCRA court
has discretion to dismiss a PCRA petition without a hearing if the court is
satisfied that there are no genuine issues concerning any material fact; that
the defendant is not entitled to post-conviction collateral relief; and that no
legitimate purpose would be served by further proceedings.”
Commonwealth v. Brown, 161 A.3d 960, 964 (Pa. Super. 2017) (citations
omitted).
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reasonable basis designed to effectuate his client’s interests.
Where matters of strategy and tactics are concerned, 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. Spotz, 84 A.3d 294, 311-12 (Pa. 2014) (citations
omitted).
“[F]ailure to prove any of these prongs is sufficient to warrant dismissal
of the claim without discussion of the other two.” Commonwealth v.
Robinson, 877 A.2d 433, 439 (Pa. 2005) (citation omitted). We presume
that counsel has rendered effective assistance. See Commonwealth v.
Treiber, 121 A.3d 435, 445 (Pa. 2015). Finally, counsel cannot be ineffective
for failing to pursue a meritless claim. Commonwealth v. Rykard, 55 A.3d
1177, 1190 (Pa. Super. 2012).
A.
To succeed on a claim that counsel was ineffective for failing to call a
witness at trial, a PCRA petitioner must establish:
(1) the witness existed; (2) the witness was available to testify
for the defense; (3) counsel knew, 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. Wantz, 84 A.3d 324, 331 (Pa. Super. 2014) (citation
omitted). “A failure to call a witness is not per se ineffective assistance of
counsel for such decision usually involves matters of trial strategy.”
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Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012) (quotations &
citation omitted).
The PCRA court did not err in concluding that Palmer failed to carry his
burden of pleading and proving he was entitled to relief on this claim. In his
petition, Palmer identified an expert who specializes in video enhancement,
authentication and analysis, and attached a print-out from the expert’s
website describing his services and areas of expertise. Memorandum of Law
in Support of Amended Petition for Relief Pursuant to [PCRA], 8/18/20, at 15
& Appendix A. He further argued, “[o]bviously there are other expert
witnesses that trial counsel could have retained.” Id. at 15. He did not attach
a certification from any expert witness detailing testimony that they would
have offered in Palmer’s defense and he did not call any experts to testify at
the evidentiary hearing.
The PCRA court properly concluded that this pleading did not conform
to the requirements for relief under the PCRA, which require a petitioner to
attach a witness certification for each intended witness when he requests an
evidentiary hearing on a petition. 42 Pa.C.S. § 9545(d)(1) (requiring
certification by witness, petitioner or counsel detailing the substance of the
proposed witness’s testimony). Additionally, Palmer did not establish the
elements of an ineffectiveness claim related to failure to call a witness at trial.
See Wantz, supra. While he identified one possible witness who specializes
in forensic examination of videos, he did not plead that this witness was
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available and willing to testify at his 2016 trial. He did not explain what
testimony the expert could have offered to rebut Detective Wearing’s lay
opinion that Palmer was the shooter depicted in the surveillance video. As a
result, he has not established that the absence of this hypothetical expert
“was so prejudicial as to have denied [him] a fair trial.” Id.
Moreover, trial counsel testified at the evidentiary hearing that she did
not retain a video expert because she believed identification was a factual
issue properly within the province of the jury and that she did not need an
expert to rebut Detective Wearing’s lay testimony. We agreed with this
reasoning when disposing of Palmer’s challenge to Detective Wearing’s
testimony in his direct appeal. See Palmer, supra, at 101. Thus, trial
counsel articulated a reasonable basis for her chosen strategy. Without
evidence of more specific expert testimony that would have supported his
defense of misidentification, Palmer has not convinced us that his preferred
strategy would have had a “substantially greater” potential for success.
Spotz, supra; Sneed, supra. No relief is due.
B.
Next, Palmer argues that appellate counsel was ineffective for failing to
challenge his sentence as excessive and unreasonable. However, appellate
counsel articulated a reasonable basis for declining to pursue this issue on
appeal. He explained that after reviewing all materials in Palmer’s file, he
concluded that the two issues he raised on appeal were the strongest. He did
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not want to distract from those issues by raising a sentencing claim that he
believed, based on his experience, would not garner relief. It is well-
established that “[t]he process of winnowing out weaker arguments on appeal
and focusing on those more likely to prevail, far from being evidence of
incompetence, is the hallmark of effective appellate advocacy.”
Commonwealth v. Staton, 120 A.3d 277, 294 (Pa. 2015) (citation omitted).
Here, while Palmer did not ultimately prevail on direct appeal, one of the
judges on the direct appeal panel agreed with appellate counsel’s argument
and would have vacated one of the aggravated assault convictions for lack of
sufficient evidence. See Palmer, supra, at *105-06 (Ransom, J., concurring
and dissenting). Appellate counsel’s choice to focus his advocacy on the issues
more likely to garner relief was reasonable.
Moreover, Palmer’s claim that his sentence was excessive lacks arguable
merit. Palmer was sentenced at the bottom of the standard range of the
sentencing guidelines for the two counts of aggravated assault and all other
sentences were imposed concurrently. The trial court reviewed a PSI and
placed a lengthy explanation of its reasoning for the sentence imposed on the
record, thoroughly addressing Palmer’s history, his rehabilitative needs, the
seriousness of the offense and the protection of the community. Notes of
Testimony, 10/28/16, at 17-22; see also 42 Pa.C.S. § 9721(b). Under these
circumstances, “Pennsylvania law views the sentence as appropriate under
the Sentencing Code.” Commonwealth v. Hill, 210 A.3d 1104, 1117 (Pa.
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Super. 2019) (internal quotations & citation omitted). Because Palmer would
not have been entitled to relief on this issue, appellate counsel cannot be
found ineffective for failing to raise it. Rykard, supra.
C.
Finally, Palmer argues that trial counsel was ineffective for failing to
challenge the weight of the evidence to support his convictions in a post-
sentence motion.4 “An allegation that the verdict is against the weight of the
evidence is addressed to the discretion of the trial court.” Commonwealth
v. Sullivan, 820 A.2d 795, 805-06 (Pa. Super. 2003) (citation omitted). “Trial
judges, in reviewing a claim that the verdict is against the weight of the
evidence, do not sit as the thirteenth juror. Rather, the role of the trial judge
is to determine that notwithstanding all the facts, certain facts are so clearly
of greater weight that to ignore them or to give them equal weight with all the
facts is to deny justice.” Commonwealth v. Widmer, 744 A.2d 745, 752
(Pa. 2000) (quotations omitted). A new trial is appropriate only when the
verdict “is so contrary to the evidence as to shock one’s sense of justice.”
Commonwealth v. Olsen, 82 A.3d 1041, 1049 (Pa. Super. 2013) (citation
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4 When evaluating a challenge to the weight of the evidence to support a
conviction, this Court does not reweigh the evidence presented at trial, but
rather evaluates the trial court’s denial of the motion for a new trial for an
abuse of discretion. Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa.
2013). A trial court’s determination that the verdict was not against the
weight of the evidence is “[o]ne of the least assailable reasons for granting a
new trial.” Id. (citation omitted).
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omitted). “[T]he evidence must be so tenuous, vague and uncertain that the
verdict shocks the conscience of the court.” Commonwealth v. Akhmedov,
216 A.3d 307, 326 (Pa. Super. 2019) (en banc) (citation omitted).
In rejecting this claim, the PCRA court reviewed the evidence adduced
at trial and concluded that the jury’s verdict did not shock the conscience.5
PCRA Court Opinion, 11/18/21, at 6-7. The jury viewed the footage taken
from the deli, which showed an individual in a distinctive eyeball t-shirt, dark
shorts with white stitching, white socks pulled up to his shins and dark
sneakers walking back and forth in front of the deli during the day. The
individual was a tall, thin black male with a short afro. While the shooter wore
a dark jacket instead of the eyeball t-shirt, he had the same shorts, socks,
sneakers, build and hairstyle as well as the distinct “strut” that matched the
individual seen on the video earlier in the day. Notes of Testimony, 8/17/16,
at 89-90. The individual in the dark jacket made a “shooting-type” motion
with his arm at the exact time that Kelsey was shot further down the block.
Id. at 84. Fired cartridge casings were recovered from the area.
After viewing the surveillance video, Detectives Wearing and Rocks left
the deli and immediately saw Palmer across the street wearing the eyeball t-
shirt. Palmer matched the individual’s other physical characteristics and had
the same distinctive gait. After his arrest, Palmer confirmed that he was the
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5 The PCRA court denied relief on this claim without an evidentiary hearing.
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individual seen on the footage in the eyeball t-shirt, though he denied
responsibility for the shooting. He asked Detective Rocks “what his bail would
be if he shot this girl by accident.” Id. at 137. Finally, shoes matching the
video were recovered from his home and his DNA was discovered on a bag of
narcotics dropped at the scene of the shooting.
The PCRA court did not abuse its discretion in finding that this evidence
was consistent with the guilty verdict and did not shock its conscience. The
jury viewed the recovered footage throughout the trial and was entitled to
conclude that Palmer was the individual depicted at the time of the shooting.
Olsen, supra. Trial counsel could not be ineffective for failing to pursue a
meritless motion and no relief is due.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/2022
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