This is a direct appeal from the order of the Court of Common Pleas of Philadelphia County denying Appellant's petition for collateral relief filed pursuant to the Post Conviction Relief Act (PCRA) 42 Pa.C.S §9541 et seq. For the reasons that follow, we affirm the orders of the court below; all three of which deny Appellant post-conviction relief.

In the underlying trial, a jury found Appellant guilty of first degree murder in the December 9, 1981 shooting death of Philadelphia police officer Daniel Faulkner. Appellant was also found guilty of possession of an instrument of crime. At the conclusion of the penalty phase hearing, the jury found one aggravating circumstance, the killing of a police officer acting in the line of duty,¹ and one mitigating circumstance, no significant history of criminal

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convictions.²  Finding that the aggravating circumstance outweighed the mitigating circumstance, the jury returned a verdict of death. Post-trial motions were ultimately denied whereupon a consecutive sentence of two and one-half to five years was imposed on the weapons offense. On direct appeal, this court affirmed the judgments of sentence. Commonwealth v. Abu-Jamal, 555 A.2d 846 (Pa. 1989).

Appellant filed a petition for certiorari in May 1990 in the Supreme Court of the United States, which was denied. Appellant's original and second requests for rehearing were also denied by the Court.

On June 1, 1995, a writ of execution was signed by the Governor, setting execution for August 17, 1995. A petition for stay of execution, a petition for discovery, a petition for post-conviction relief and a petition for recusal of the Honorable Albert F. Sabo, the judge assigned to hear the PCRA petition, were then filed by Appellant.³   The PCRA court ultimately denied Appellant's request for recusal and an emergency appeal therefrom was denied by this court.

By order entered July 14, 1995, the PCRA court dismissed Appellant's motion for discovery, but granted his request for an evidentiary hearing. Then, on August 7, 1995, the PCRA court granted the request for stay of execution.

The evidentiary hearing on this matter began on July 26, 1995 and ended on August 15, 1995. On September 15, 1995, the PCRA court filed an extensive opinion detailing its findings of fact and conclusions of law and an accompanying order denying post-conviction relief. A direct appeal to this court followed.

During the pendency of that appeal, Appellant filed a petition with this court seeking a remand for the express purpose of taking additional testimony from one Veronica Jones

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whom the defense alleged was a "newly available witness."⁴  According to Appellant's petition, Ms. Jones would provide important "new" evidence that days before she took the stand as a defense eyewitness at the 1982 trial of Appellant, Philadelphia police contacted her while she was incarcerated on felony armed robbery charges and threatened and coerced her to change her testimony. It was further alleged that Ms. Jones would testify that she, indeed, succumbed to this police intimidation and accordingly altered her testimony at trial by repudiating her true eyewitness account that she saw two men flee the scene immediately after the shooting. This court ultimately entered an order remanding the matter to the PCRA court to conduct an evidentiary hearing regarding this claim. After holding a hearing thereon, the PCRA court disagreed with Appellant's contention; specifically, the court concluded that the testimony of Ms. Jones did not constitute "after-discovered evidence." Alternatively, the court ruled that even assuming such testimony were to be incorporated into the record, her testimony was of such an incredible nature that it would provide no relief to Appellant.

Subsequently, Appellant filed two additional applications for remand with this court. In those applications Appellant sought a variety of relief, including, first, a remand for the express purpose of eliciting the testimony of one Pamela Jenkins who would allegedly provide further support for Appellant's claim of police intimidation and/or coercion of witnesses and whose testimony would allegedly demonstrate that the prosecution had withheld pertinent information from the defense in violation of Brady v. Maryland, 373 U.S. 83 (1963). Appellant also asserted a request for additional discovery, including specifically, discovery of both the prosecution and police files in their entirety, and a request that the matter be reassigned to a different judge on remand. Finally, Appellant sought a remand to supplement his Batson⁵

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claim based upon a videotape released after his trial which allegedly demonstrates the Philadelphia District Attorney Office's policy of systematically striking African-American venirepersons in violation of Batson.⁶

By order dated May 30, 1997, this court granted Appellant's request for a second remand for the limited purpose of taking additional testimony with respect to Pamela Jenkins, but denied his request for a new post-conviction judge as well as his requests to supplement his Batson claim with the videotape and to take discovery regarding that claim. After hearing, the PCRA court issued an opinion and order concluding that this additional testimony did not warrant post-conviction relief. This appeal followed.⁷

The circumstances surrounding the killing were stated by this court in our opinion on direct appeal as follows:

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Abu-Jamal, 555 A.2d at 848.

To be eligible for collateral relief, Appellant must satisfy the dictates of the PCRA, which, at the time of the filing of Appellant's PCRA petition, provided in relevant part as follows.⁸    Sections 9543(a)(2), (3) and (4) required that Appellant plead and prove by a preponderance of the evidence:

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Thus, the first inquiry is whether the allegation of error has been previously litigated. Relevant to Appellant's petition, section 9544(2) provides that an issue is deemed "previously litigated" where "the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue." See Commonwealth v. Szuchon, 693 A.2d 959 (Pa. 1997); Commonwealth v. Crawley, 663 A.2d 676, 678 (Pa. 1995).

If an issue has not been finally litigated, inquiry is then made as to whether the issue has been waived. An issue is deemed waived if the petitioner failed to raise it and "it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted or in a prior proceeding actually conducted or in a prior proceeding actually initiated under this subchapter." 42 Pa.C.S. §9544(b). Waiver is excused under 42 Pa.C.S §9543(a)(3)(ii) and (iii) only if the alleged error has resulted in the conviction or affirmance of sentence of an innocent individual or where the petitioner can demonstrate that his trial or appellate counsel was ineffective. Commonwealth v. Beasley, 678 A.2d 773, 777-778 (Pa. 1996). A claim of ineffectiveness must be raised at the earliest possible stage in which the allegedly ineffective counsel no longer represents the petitioner. Commonwealth v. Griffin, 644 A.2d 1167, 1170 (Pa. 1994). However, a claim of ineffectiveness

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will not be deemed waived provided the petitioner has layered the claim by alleging the ineffectiveness of all prior counsel for failing to pursue the claim. Commonwealth v. Chmiel, 639 A.2d 9, 12 (Pa. 1994).⁹  

The standards for determining claims of ineffective assistance of counsel are well settled. A petitioner is required to demonstrate: (1) that the underlying claim is of arguable merit; (2) that counsel's action or inaction was not grounded on any reasonable basis designed to effectuate his client's interest; and (3) that but for that act or omission, the outcome of the proceedings would have be different. Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987). There is a presumption in our law that counsel is effective. Commonwealth v. Miller, 431 A.2d 233 (Pa. 1981). It is Appellant's burden to prove all three prongs of this ineffectiveness standard. Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995). Further, if, upon review, it is clear that Appellant has failed to meet the prejudice prong, the claim may be dismissed on that basis alone without determination of whether the first and second prongs of the ineffectiveness standard have been met. Id. at 357 (citing Strickland v. Washington, 466 U.S. 668 (1984)). Also, a petitioner cannot obtain PCRA review of previously litigated claims by alleging ineffective assistance of counsel and presenting new theories of relief to support the previously litigated claims. Beasley, 678 A.2d at 778.

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The first issue raised by Appellant is that Judge Sabo, who presided over the PCRA proceedings, evidenced bias and partiality and that Appellant was thereby denied a full and fair PCRA hearing. ¹⁰  

Appellant's initial argument respecting this issue is that the judge's bias and hostility was amply displayed during the PCRA proceedings and was of such notoriety as to dictate his recusal. In support of this claim, Appellant submits that the court failed to give the defense a reasonable amount of time to prepare for the hearing insofar as the court gave only two days advance notice of the hearing date; that the PCRA court denied over twenty-five (25) subpoenas; that the court either precluded testimony completely or repeatedly cut short testimony offered by Appellant; that the court repeatedly threatened counsels for the defense with contempt, ultimately incarcerating one and fining another; that the court, in its findings of fact, made blatantly inaccurate statements; that Judge Sabo's allegiance to the Fraternal Order of Police (FOP) via his past membership in the FOP "inspired" his biased findings; that the court adopted almost verbatim, the prosecution's findings of fact; and, finally, that the court repeatedly denied the defense the discovery it requested. In his brief to this court following the hearing on the second remand, Appellant submits that further evidence of the court's bias

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was amply demonstrated at this remand hearing. In that brief, he essentially argues, as he does with respect to the conduct of the initial hearings, that the court evidenced its settled bias against the defense by denying the defense the opportunity to present proffered witnesses and denying virtually all of the defense's discovery requests.

The standards for recusal are well established. It is the burden of the party requesting recusal to produce evidence establishing bias, prejudice or unfairness which raises a substantial doubt as to the jurist's ability to preside impartially. Rizzo v. Haines, 555 A.2d 58, 72 (Pa. 1989); Commonwealth v. Miller, 664 A.2d 1310 (Pa. 1995). As a general rule, a motion for recusal is initially directed to and decided by the jurist whose impartiality is being challenged. Commonwealth v. Travaglia, 661 A.2d at 370, citing Goodheart v. Casey, 565 A.2d 757 (Pa. 1989). In considering a recusal request, the jurist must first make a conscientious determination of his or her ability to assess the case in an impartial manner, free of personal bias or interest in the outcome. The jurist must then consider whether his or her continued involvement in the case creates an appearance of impropriety and/or would tend to undermine public confidence in the judiciary. This is a personal and unreviewable decision that only the jurist can make. Goodheart v. Casey, 565 A.2d 757, 764 (Pa. 1989). Where a jurist rules that he or she can hear and dispose of a case fairly and without prejudice, that decision will not be overruled on appeal but for an abuse of discretion. Id. at 763. In reviewing a denial of a disqualification motion, we recognize that our judges are honorable, fair and competent. Reilly v. SEPTA, 489 A.2d 1291, 1300 (Pa. 1985).

In arguing that the judge's hostility and bias towards Appellant was notorious, Appellant relies upon several newspaper and magazine articles which criticized Judge Sabo's behavior during the PCRA proceedings. The opinions of a handful of journalists do not, however, persuade us that Judge Sabo's decision not to recuse himself was in error. Moreover, our careful review of the proceedings reveals that none of the challenged behavior on the part of Judge Sabo evidences an inability to preside impartially.

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While there are certainly instances in the record where the judge displays displeasure and/or impatience, those instances were, in large part, a direct result of obstreperous conduct on the part of Appellant's counsel. The record reveals instances where defense counsel refused to accept a particular ruling offered by the court, relentlessly urging the court to reconsider. Although we certainly do not condone unjustified or indiscriminate rhetoric on the part of a presiding judge, we are nevertheless mindful of the fact that judges, too, are subject to human emotion. It simply cannot be denied that this particular case was one that was not only highly publicized but also highly emotionally charged. As a result, the judge's duty to maintain the judicial decorum of the proceedings was, at times, met with great resistance. Upon review of the entire record, we cannot conclude that any of Judge Sabo's intemperate remarks were unjustified or indiscriminate nor did they evidence a settled bias against Appellant.

Appellant submits that Judge Sabo's impartiality was demonstrated, in large part, by his rulings, which according to Appellant were almost invariably in favor of the prosecution. Adverse rulings alone do not, however, establish the requisite bias warranting recusal, especially where the rulings are legally proper. Commonwealth v. Miller, 664 A.2d 1310 (Pa. 1995); Travaglia, 661 A.2d at 367. While, indeed, there were numerous rulings made against the defense, our review of the entire record reveals numerous rulings made against the prosecution as well. Moreover, many of the adverse rulings complained of were necessitated by the defense's repeated attempts to secure evidence which was only "believed" to exist or by its attempts to present witnesses who were clearly only peripherally, if at all, relevant to the scope of the PCRA proceedings or involved the court's denial of proffered testimony based upon the defense's failure to establish a proper foundation for the admission thereof. In any event, we cannot conclude that any of the rulings were legally improper. Respecting Appellant's claim that the court unfairly rushed the proceedings to the detriment of Appellant, we note the PCRA court's obvious, and we believe, justified, concern that it was the

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defense strategy, in part, to delay the proceedings. As noted by the PCRA court, Appellant's petition was clearly not the result of hurried investigation and/or haphazard preparation. Appended to the petition itself were numerous affidavits and statements of witnesses who were allegedly available at the time of the filing of the petition to proffer testimony in support of Appellant's claims.¹¹

Appellant asserts further that Judge Sabo possessed deep-rooted bias that warranted his recusal here. Specifically, he asserts that the judge maintained an adversarial relationship with Appellant during the actual trial in 1982, and that the judge's prior membership in the FOP presupposes his allegiance to the prosecution in this matter. Our review of the record evidences, first, that during trial in 1982, Judge Sabo displayed no such adversarial position towards Appellant. Rather, we find evidence therein that quite the contrary was true; that it was Appellant who, from the very beginning of the trial proceedings, openly criticized Judge Sabo and repeatedly asserted that he would not abide by the court's rulings. The trial record reveals numerous outbursts and displays of intemperate behavior on the part of Appellant. Judge Sabo, for the most part, displayed much patience with Appellant's diatribes. At those points when it became necessary for the judge to restore decorum in the proceedings, he properly did so. Simply stated, Appellant's own disruptive behavior cannot be used to demonstrate that the judge bore hostility towards him.

As for Appellant's claim that the judge possessed an allegiance to the FOP so as to cloud his judgment in this matter, again, we find no support for such a claim in the record. A jurist's former affiliation, alone, is not grounds for disqualification. Cf, Commonwealth v.

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Comer, 1998 WL 457712 (Pa., Aug. 7, 1998); Commonwealth v. Darush, 459 A.2d 727 (Pa. 1983).¹²

Generally, it is deemed preferable for the same judge who presided at trial to preside over the post-conviction proceedings since familiarity with the case will likely assist the proper administration of justice. It is only where it is shown that the interests of justice warrant recusal that a matter will be assigned to a different judge. Commonwealth v. Rashed, 436 A.2d 134 (Pa. 1981). For all the reasons discussed, this standard has not been met in the instant matter. In conclusion, we simply cannot discern from the record that Judge Sabo abused his discretion in denying recusal.

A second argument reiterated by Appellant throughout the PCRA proceedings is that the PCRA court erred in denying his discovery requests. He claims both that the PCRA provides for such discovery, and that the evidence presented by the defense demonstrated police and/or prosecution misconduct that warranted discovery of the entire Commonwealth file in this matter. In short, Appellant essentially requested wholesale discovery of whatever information he "believed" to exist and/or of entire files so that he could discern whether his assertions were true. Such a request exceeds even that to which a defendant is entitled in pretrial discovery. See generally, Pa.R.Crim.P. 305.

Appellant submits that Pa.R.Crim.P. 1508 provides for discovery in PCRA proceedings.¹³   In making this argument, Appellant employs specific terms of the rule and

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argues that "[r]ule 1508's broad grant of authority to a court to enter 'such orders as may be necessary to afford a party the opportunity 'for investigation' before a hearing plainly contemplates discovery orders." (Brief of Appellant at p. 28). We find this particular argument to be lacking in merit. Rule 1508 nowhere addresses the right of discovery. In providing for "investigation," the rule clearly contemplates only that each party be given a reasonable opportunity to further investigate and/or prepare where such opportunity did not previously exist. The ability of a party to conduct investigation into the claims being raised in a PCRA petition simply does not translate into a right of discovery; especially the type of discovery being sought by Appellant in the instant matter.¹⁴   As noted above, Appellant's petition is certainly not the product of a hurried investigation or haphazard preparation. Rather, as Appellant's own assertions bear out, he conducted extensive investigation into the preparation of this PCRA petition. Moreover, Appellant received extensive discovery during the course of his trial in 1981-1982. And, while Appellant asserts that material information, mostly regarding police coercion of witnesses and/or promises in exchange for favorable testimony, was withheld by the prosecution at the time of trial, as will be discussed more fully infra, many, if not all, of Appellant's specific assertions have been found to be incredible.

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In further support of his claim that the court erred in repeatedly denying his discovery requests, Appellant posits that 42 Pa.C.S. §9543(a)(2)(v), which permits PCRA relief on any basis "which would require the granting of Federal habeas corpus relief to a State prisoner," provides a further basis for allowing discovery. Appellant submits that McCleskey v. Zant, 499 U.S. 467, 498 (1991) holds that colorable claims raised in a habeas corpus petition include claims which require discovery. Appellant's interpretation of McCleskey is not correct. What that case held, in relevant part, is simply that a habeas corpus petitioner is required to present all of his or her claims that could be gleaned upon reasonable investigation. In other words, the case emphasized that it was the burden of the petitioner, just as it is in the instant PCRA proceedings, to present and prove his claims. In sum, Appellant's claim that he is entitled to discovery warrants no relief.¹⁵

Appellant next claims relief based upon the PCRA testimony of Officer Gary Wakshul. Officer Wakshul was one of the police officers who escorted Appellant to the hospital the morning of the shooting and guarded him while he awaited treatment. At trial, two witnesses, Patricia Durham, a hospital security guard, and Gary Bell, another police officer, testified that Appellant made a statement, at the hospital, to the effect that "I shot him . . . I hope the m.... f.... dies." Appellant claims that if Officer Wakshul had testified at trial, he would have exposed this "confession" as false. In order to adequately address this issue it is first necessary to set forth in some detail the facts bearing on this issue.

Officer Wakshul gave three statements regarding this matter. His first statement, taken at 5:50 a.m. on the morning of the shooting, contained the statement: "He [Appellant] made no comments." His second statement, given on December 16, made no mention of

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an admission on the part of Appellant, but as noted infra., the subject matter of that statement was narrowly tailored. In the third statement, taken during an Internal Affairs Bureau investigation initiated by Appellant's complaints of mistreatment, Officer Wakshul reported having heard Appellant's admission that "I shot him . . . I hope the m... f... dies." On the last day of trial testimony, the defense attempted to call Officer Wakshul, but was informed that he had gone on vacation and hence was unavailable to testify. Following a sidebar discussion regarding this proposed witness, the court denied a defense request to delay the proceedings so they could search for Officer Wakshul. It is apparent from review of this sidebar discussion that the basis for the court's denial was the defense's belated request to have this officer testify. The record demonstrates that the defense was aware of the existence of Officer Wakshul as well as the substance of his statements well before this last day and, thus, its belated request was seen as merely a delay tactic.

At the PCRA hearing, Officer Wakshul testified that he did not stand guard over Appellant at all times; that there were several other officers also at the hospital, none of whom he could recall. (N.T. 8/1/95 p. 22). Officer Wakshul explained the omission of the information regarding Appellant's confession in the first statement by saying that he was emotionally overwrought after hearing Appellant state that he had shot the officer and then seeing the body of Officer Faulkner on a gurney and that he remembers little of what transpired after he heard Appellant's exclamation. (N.T. 8/1/95 p. 71). Specifically, Wakshul testified that when Appellant uttered this confession, Wakshul was so stunned that he stumbled into an alcove and began to cry. He then went outside in an effort to regain his composure. He testified that upon his eventual return, he remembers little else but having seen Officer Faulkner's feet on a gurney. Admitting that his recollection after leaving the hospital was somewhat weak, Wakshul testified that he remembered being in the Homicide Unit and, after leaving there, crashing his vehicle into a cement pole. (N.T. 8/1/95 pp. 25-26). He testified that he and Officer Faulkner were friends and that the fact

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that a police officer was killed was trying. (N.T. 8/1/95 p. 5). He explains the second statement by saying that he was simply answering very specific questions relating to specific items and was not asked whether he had heard the admission.¹⁶   (N.T. 8/1/95 p. 64).

Appellant contends that the confession was concocted and that, by negative inference, Officer Wakshul's testimony would have revealed the falsity of the confession evidence. He claims, therefore, that Wakshul was a "crucial Brady witness."¹⁷   According to Appellant, had the confession truly been uttered, it is simply incredible that Officer Wakshul would have failed to report hearing that admission when he gave those first two statements. Appellant claims he was unable to muster an attack on this confession for the following reasons: first, because the prosecution engineered his absence; second, because the trial court erred in denying the defense a continuance so as to secure the presence of Wakshul; and third, because trial counsel was ineffective for failing to call Mr. Wakshul.

Appellant's claim lacks merit for several reasons. First, as noted above, Wakshul testified that his failure to report the confession in his initial statement was due to his emotional state at that time. The PCRA court found this explanation credible. Where, as

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here, there is record support for a PCRA court's credibility determinations, we, as a reviewing court, are bound by those determinations. Beasley, 678 A.2d at 778. In addition, hospital security guard Patricia Durham reported the exact same admission to her superiors the day after Appellant made it. (N.T. 6/24/82 pp. 45-52). Wakshul testified that at the time he gave the third statement, in response to the Internal Affairs Bureau investigation, he was not aware that Ms. Durham had given a similar statement. (N.T. 8/1/95 pp. 47-48). Wakshul testified that he did not know Durham. (N.T. 8/1/95 p. 48, 117). In addition, Durham testified at trial that she told no one but her superiors about her statement given the day after the shooting. (N.T. 6/24/82 pp. 48-52).

Furthermore, in this third interview, Wakshul stated, also for the first time, that after the statement of confession was uttered by Appellant, someone responded "if he dies, you die." During his PCRA testimony, Wakshul acknowledged that he was aware that if it was an officer that uttered this statement, he or she would be subject to an investigation for making such a remark.¹⁸   ( N.T. 8/1/95 p.113). Given all this, we agree with the PCRA court's conclusion that there was no credible evidence to suggest that Wakshul fabricated the confession. Accordingly, Appellant's claim that Wakshul was a key Brady witness is without merit.

Also, the law is clear that no claim of ineffectiveness will lie where it can be shown that the defendant, and not counsel, was in control of trial strategy. Commonwealth v. Pierce, 645 A.2d 189, 196 (Pa. 1994). We note that the PCRA court explicitly found incredible trial counsel's statements at the PCRA hearing, to wit, that it was counsel's fault alone that he did not make a timely attempt to call Officer Wakshul at trial. The court

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further found that it was Appellant's decision, and not that of trial counsel, to call Officer Wakshul at the last minute.¹⁹   The court's findings here are supported by the record. Accordingly, those findings are binding on this court. Beasley, supra. Thus, Appellant's claim regarding trial counsel's performance with respect to Officer Wakshul warrants no relief. In any event, had Wakshul testified, that testimony would not have benefited Appellant; rather, it would have prejudiced him since it would have been consistent with Durham and Bell's trial testimony.

Finally, there is no evidence that the prosecution orchestrated Officer Wakshul's unavailability. Officer Wakshul testified that all officers were asked to "try" to be available during their vacations. (N.T. 8/1/95 pp. 80-83). He further testified that he did remain at his home for the beginning part of his vacation, which lasted from June 25, 1982 through July 8, 1982, but that when he was not notified that he was to appear, he left the city during the latter part of this vacation. He testified as well that no one asked him to absent himself from the Philadelphia area so as not to be available for trial. (N.T. 8/1/95 pp. 94, 100-101, 118-122). The court found this testimony credible. As the record supports this determination, this court is bound by that finding. Beasley, supra.

Given all the foregoing, Appellant's claim lacks merit since Appellant failed to prove that Wakshul was available to testify at trial; failed to prove that, even if available, Wakshul's testimony would have revealed that the confession was fabricated; and failed

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to establish trial counsel's ineffectiveness since the testimony, if presented at trial, would have been prejudicial to Appellant .

Appellant next makes several interrelated claims. The crux of Appellant's challenges regarding the two remand hearings as well as that of several specifically enumerated issues in his original brief to this court is that the prosecution deliberately withheld crucial information in violation of Brady v. Maryland, 373 U.S. 83 (1963) with respect to several key witnesses. Those challenges involve claims of intimidation or coercion against witnesses to alter their testimony and/or promises of economic or penal benefits in exchange for favorable testimony. Respecting virtually all of these witnesses, it is Appellant's contention that these tactics were employed to thwart the defense theory that the real shooter fled the scene before backs police arrived and that this evidence constitutes "newly discovered evidence" because the prosecution withheld this evidence from the defense.

In Brady, the United States Supreme Court held that the prosecution's suppression of evidence favorable to an accused, when requested, is a violation of due process where that evidence is material either to guilt or punishment, irrespective of the good or bad faith of the prosecution. Id. at 87. In analyzing similar claims, this court has previously held that where a general request for exculpatory evidence is made, the evidence is material only "if the omitted evidence creates a reasonable doubt that did not otherwise exist." Commonwealth v. Green, 640 A.2d 1242 (Pa. 1994), citing Commonwealth v. Moose, 602 A.2d 1265 (Pa. 1992).

As noted above, at the time of the filing of Appellant's PCRA petition, section 9543(a)(2)(vi) provided for post-conviction relief where a petitioner could prove a claim of newly discovered exculpatory evidence. In order to succeed on such a claim, the petitioner must establish that: (1) the evidence has been discovered after the trial and it could not have been obtained at or prior to trial through reasonable diligence; (2) such evidence is not cumulative; (3) it is not being used solely to impeach credibility; and (4) such evidence

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would likely compel a different verdict. Commonwealth v. Shuck, 164 A.2d 13 (Pa. 1960); Commonwealth v. Williams, 640 A.2d 1251, 1263 (Pa. 1994).

Initially, Appellant focuses on the testimony of Robert Chobert, one of the three eyewitnesses to the shooting. He claims that during the months prior to trial, Chobert repeatedly changed his testimony in ways favorable to the defense. Appellant submits that through the ineffective assistance of counsel, prosecutorial misconduct and improper trial rulings, he was precluded from establishing Chobert's incentive to favor the prosecution.

Chobert, a cab driver, testified at trial that, on the morning of the shooting, he was stopped at the corner of 13th and Locust Street after having let a fare off when he heard a shot. As he looked up from his paperwork, he saw an officer fall to the ground. Appellant was standing over the fallen officer, firing shots at him. (N.T. 6/19/82 pp. 209-210). After that, he witnessed Appellant walk back from the officer a distance of approximately ten feet and then fall by the curb. (N.T. 6/19/82 p. 211). He identified Appellant at the scene of the shooting and gave a statement that morning concerning his observations. In that statement, Chobert claimed that he saw Appellant run approximately thirty steps after shooting the officer, but then fall; he also saw another man run, but get only a half block away before the officers arrived and stopped him. He gave a similar statement on December 12, 1981). Appellant submits that additional trial testimony establishes that Chobert told an investigator at the scene that the "shooter ran away." (Brief of Appellant at p. 39). Appellant refers specifically to the testimony of Inspector Giordano who testified at trial as to his observations upon arrival at the scene just moments after the shooting. Giordano testified that he encountered Chobert who told him "that the man that shot the policeman ran away, and he was a MOVE member." When Giordano asked Chobert what he meant by a "MOVE member," Chobert responded, "he had the hair, the funny hair." At that point, someone mentioned that the man being described was in the back of the police

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wagon, whereupon Chobert proceeded to the wagon and identified Appellant as the shooter. (N.T. 6/1/82 pp. 70-71).

Chobert was called as a defense witness during the PCRA proceedings. It is Appellant's contention that Chobert's initial statements to the police support the defense theory that the true shooter fled the scene and that testimony at the PCRA proceedings established that Chobert's trial testimony to the contrary had been manipulated by a previously undisclosed promise of the prosecution to assist Chobert in securing his driver's license which, at that time, was under suspension. Also, it is contended that Chobert was biased in favor of the prosecution due to his probationary status at the time of trial.²⁰

Appellant's current contention, that Chobert initially claimed the shooter "ran away," is a misrepresentation of the testimony. As noted above, his initial statements include only the fact that the shooter ran some distance before falling. The testimony elicited from Giordano is not inconsistent with these statements; instead it is simply not as complete as Chobert's formal statements.

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Also, contrary to Appellant's assertions, the record reveals that no promise was offered by the Commonwealth to Mr. Chobert regarding his license. Mr. Chobert testified at the PCRA hearing that his driver's license was suspended in December 1981 and that at some point during trial, he had asked the prosecutor if he could assist him in ascertaining how to get his license back. He testified further that although the prosecutor assured him that he would look into the matter for Mr. Chobert, that the prosecutor never contacted him again regarding this matter. Indeed, he admitted at the PCRA proceedings that, as of then, his license had still not been restored. (N.T. 8/15/95 pp. 3-20). Appellant offered no additional evidence which would contradict Chobert 's assertions that no such deal existed. Moreover, the PCRA court specifically found Chobert's PCRA testimony to be credible. Accordingly, since the record amply supports that finding, we are bound thereby. Beasley, supra. Finally, Mr. Chobert's pretrial statements, which were consistent with his trial testimony and which were introduced by the Commonwealth, were made prior to this supposed "deal."

Appellant contends that the Commonwealth also failed to disclose favors given to prosecution witness Cynthia White. Cynthia White testified at trial that on December 9, 1981, shortly before 4:00 a.m., she witnessed Appellant shoot Officer Faulkner. Her testimony revealed that she was standing on the corner of 13th and Locust when she observed a police car stopping a Volkswagen vehicle. After both the officer and the driver of the Volkswagen had alighted from their vehicles, she saw them speak and then observed the occupant of the Volkswagen strike the officer in the cheek and observed the officer turn that individual as if to handcuff him. At that point, she saw Appellant run from an adjacent parking lot and, as he reached the curb, shoot the officer in the back. According to her testimony, as the officer was staggering, he seemed to be reaching for something. After the officer had fallen to the ground, she saw Appellant stand over the officer and shoot several more times. (N.T. 6/21/82 pp. 4.92-4.94, 4.105).

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While Appellant admits that Ms. White was cross-examined at trial respecting her extensive criminal record, which consisted mainly of prostitution charges, in an effort to attack her credibility, he claims that the trial court improperly barred the most critical evidence of her alleged bias. Specifically, Appellant claims that the court barred another prostitute, Veronica Jones, from testifying that police told her that Ms. White received favors for her testimony and that Ms. Jones could receive similar favors if she implicated Appellant in this murder.

Jones, too, was present in the area of the shooting and had given the police a statement on December 15, 1981 wherein she, in pertinent part, noted that she was standing on a corner in the vicinity of Locust and 12th streets when she heard several shots. She then looked down Locust Street and saw an officer falling to the ground. She stated that she then saw "two black guys walk across Locust Street and then they started sort of jogging." At trial, she testified consistent with this statement except for that portion of the statement wherein she indicated she saw two men jog away. At trial, she specifically denied that she saw two men jogging; claiming instead that she only saw two men standing near the fallen officer and that she then left the scene. (N.T. 6/29/82 pp. 109-114). Moreover, she admitted at trial, that on December 15, 1981, at the time she gave the statement, she was a "half a nickel bag high." (N.T. 6/29/82 p. 122).

Significant to Appellant's current claim, it was revealed during Jones' trial testimony that she, along with some other persons, was taken to the police station sometime in early January, 1982 on unrelated matters. She testified that while at the station, a conversation ensued regarding the instant case during which the police "were getting on [her] telling [her] she was in the area and [had] seen Mumia, ...do it...intentionally. They were trying to get me to say something that the other girl said." (N.T. 6/29/82 p. 129). She denied being actually interviewed at that time, testifying instead that the police were "more so conversating [sic] among each other" and that she assumed that they expected her to say

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"something in their behalf," but that she could not do so because she "just saw what [she] saw." (N.T. 6/29/82 pp. 131-132). When trial counsel sought to further question Jones regarding this event, the prosecution objected. At sidebar, defense counsel claimed he was unaware of this incident prior to Jones' testimony and that he would like to question Jones further as to any possible statements she may have made while at the police station in January, 1982. Defense counsel was then given the opportunity to confer with Jones after which he informed the court that if permitted, Jones would testify that the police told her and the others who were with her that if they would give statements similar to that given by Cynthia White regarding the night of the shooting, they could work the streets without interference. An objection to this line of questioning was ultimately sustained and this latter statement was never heard by the jury. (N.T. 6/29/82 pp. 142-145).²¹   Appellant contends that the Commonwealth's failure to disclose this interview of January, 1982, the favor offered to Jones and the favor offered to Cynthia White, violates the doctrine of Brady that evidence tending to impeach the credibility of witnesses must be disclosed.²²   For the following reasons, this claim warrants no relief.

First, there was no evidence presented of any such "deals" or "favors." Moreover, at the original PCRA hearing, where Appellant first made this claim, the defense did not

Page 25.

offer the testimony of either White or Jones, nor did it offer the testimony of the officers present during this alleged "interview." Our discussion of this matter is, however, not yet complete. The purpose of the supplemental hearing on the first remand in this matter was to provide Appellant the opportunity to prove, as alleged, that the defense had just recently located Jones, and that they had evidence to establish that the police badgered and harassed Jones both in January 1982 and immediately before she took the stand at trial in June, 1982.²³   Her testimony at this supplemental hearing was that, as a result of the badgering, she lied at trial and said that she did not see anyone running at the scene, when in fact, as she said in her statement of December 15, 1981, she did see someone running.²⁴  

Following this hearing, the PCRA court explicitly found Jones' testimony to be incredible and, accordingly, concluded as well that such testimony was not likely to have altered the verdict and thus, did not establish the fourth factor necessary to meet the test for "after-discovered evidence."^{25     26}The court further concluded that, even assuming her testimony was believed, that testimony would still not be likely to alter the verdict.

Page 26.

In support of its ruling, the court, after reciting the above-referenced trial testimony and sidebar discussion, noted the following:

(Op. of Sabo, J. dated Nov. 1, 1996, pp. 7-12).

Traditionally, issues of credibility are within the sole domain of the trier of fact since it is the trier of fact who had the opportunity to personally observe the demeanor of the

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witnesses. Commonwealth v. Farquharson, 354 A.2d 545, 550 (Pa. 1976); Commonwealth v. McCracken, 659 A.2d 541, 546 (Pa. 1995). Additionally, the law regards recanting testimony such as that presented here as exceedingly unreliable. Indeed, this court has commented that "there is no less reliable form of proof, especially when it involves an admission of perjury." Commonwealth v. Anderson, 353 A.2d 384, 386 (Pa. 1976). Just as with any other credibility determination, where the record supports the PCRA court's credibility determinations, those determinations are binding on this court. Beasley, supra.

Our review of the record reveals ample support for the court's findings as set forth above. Moreover, even assuming the truth of Jones's PCRA testimony, we cannot conclude that Appellant has proven a Brady violation. Her testimony reveals that she was almost a block away, and that after hearing the shots, she did not even look in the direction of the shooting for a few minutes because she was afraid. In addition, contrary to the assertions of the defense, her December 15, 1981 statement does not even mention someone "fleeing from the scene." Rather, she stated only that she saw two persons jogging, presumably away from the fallen officer. Accordingly, testimony to that effect would do little to support the defense theory that the true shooter fled the scene. Also, the jury heard her claim during her original trial testimony, that police tried to get her to implicate Appellant when she was taken to the station in January 1982. Finally, she never portends to have witnessed the actual shooting. Accordingly, there is nothing exculpatory about her statement. Thus, this claim warrants no relief. See, Green, supra.

Continuing with his claim that the prosecution violated the dictates of Brady, Appellant next contends that the prosecution withheld evidence of its attempted intimidation of key defense witness, Dessie Hightower, whose trial testimony supports Appellant's theory that the true shooter fled the scene before backup police arrived. Hightower testified at trial that as he and his friend were walking towards their car, they heard gunshots being fired and shortly thereafter, saw someone wearing a red and

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black sweater running in a direction opposite the site of the shooting. (N.T. 6/28/82 pp. 28.122-126). This testimony was consistent with two prior statements he had given to police. The defense called him to testify at the PCRA hearing for the purpose of establishing that he had taken a polygraph examination at the behest of the police. It is Appellant's contention that Hightower was subjected to this polygraph for the purpose of intimidating him. In support thereof, Appellant submits that PCRA testimony establishes that Hightower was the only witness subjected to a polygraph; that the results of that polygraph show that he was telling the truth; and that during the polygraph, he was not even asked about whether he saw someone run from the scene. Appellant contends that the prosecution withheld all of these facts from the defense.

At the PCRA hearing, Hightower testified that he was told by the person administering the polygraph that he had passed the test and that he did not remember the person ever telling him during the test that the results indicated he was lying. (N.T. 8/3/95 pp. 27, 71). However, Lieutenant Craig Sterling, the detective who administered the polygraph to Hightower, testified that the test revealed, and that he so told Hightower, that he had not been telling the whole truth about the shooting. (N.T. 8/4/95 p. 124). It appears that the test revealed that Hightower was not being truthful when he was asked whether he saw a gun in Appellant's hand on December 15, 1981 and he answered "no." (N.T. 8/3/95 p. 66).

During his PCRA testimony, it was also revealed that in a statement given to defense investigator, Robert Greer, on May 3, 1982, Hightower said:

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(N.T. 8/3/95 p. 46). When presented with this statement, Hightower quickly offered that the statement was somewhat out of sequence with the events he actually witnessed. He testified that he actually saw this "someone" running before the other officers arrived. (N.T. 8/3/95 p. 46).

The PCRA court found Hightower's PCRA testimony to be not credible. In support thereof, the court noted that it found Lieutenant Sterling's testimony credible and Hightower's not credible respecting the issue of whether Hightower was told he passed the polygraph; that Hightower's demeanor suggested he was not credible; and that Hightower's PCRA account of the "fleeing person" was inconsistent with the one he gave to Greer on May 3, 1982. Apparently, the court did not credit Hightower's attempted clarification of this May 3, 1982 statement.²⁷   As a reviewing court, and given the record support for the court's findings, we cannot second guess the PCRA court's determination respecting Hightower's lack of credibility. See, Beasley, supra. Accordingly, Appellant has failed to establish his claim here that there was material and exculpatory evidence withheld by the prosecution regarding Hightower.

Appellant's argument continues with a claim that the police destroyed at least two exculpatory statements taken from another eyewitness, William Singletary, and threatened to cause him physical harm and to destroy his business if he did not cooperate and say what the police wanted him to say. Appellant asserts that the defense did not know about Singletary's true account of the shooting.

Singletary testified at the PCRA hearing that he was a witness to the shooting. According to his testimony, he went to the police station shortly after 4:00 a.m. on December 9, 1981 whereupon he was interviewed by someone named Detective

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Green. (N.T. 8/11/95 p. 209). Singletary testified that while being interviewed, he was asked to write a statement respecting his observations of the shooting incident. He testified that he attempted to complete two or perhaps three such statements, but that after each statement was complete, the detective read it and then ripped it in pieces and threw it in the trash. Detective Green then told Singletary to write what Detective Green wanted him to write or else he would be beaten and his business would be destroyed. Accordingly, Singletary then wrote what the detective dictated and after that statement was typed, Singletary signed it. (N.T. 8/11/95 pp. 210-212). The substance of that statement was that as he was stopped at a red light at 13th and Locust Streets, he heard what he initially thought to be firecrackers, but soon realized it was not firecrackers because they were going too fast. He looked down Locust Street and saw a police car parked at the curb. He then parked his own vehicle and exited it. He proceeded to the southwest corner of 13th and Locust from where he observed two figures some twenty-five to thirty feet away. One was standing facing the wall; the other with his back to the wall, bent over at the waist. As he began to walk towards these two figures, someone yelled to him that a policeman had been shot. He then saw a policeman sitting on the ground with his back against the wall with his blood covered right hand to his face. The other person, an African-American man with dreadlocks and wearing green pants, was sitting on the curb, holding his leg that was stretched in front of him. After the fallen officer was placed in a police car and transported elsewhere, Singletary encountered Officer Vernon Jones with whom he was familiar. Officer Jones directed that Singletary proceed to the police station and report what he had observed. (N.T. 8/11/95 pp. 245-249).

Singletary testified that a few days after he gave his statements, he contacted State Representative Alphonso Deal and informed him of the coerciveness he encountered, but that, to his knowledge, Representative Deal never initiated an

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investigation into his complaint. (N.T. 8/11/95 pp. 214, 251). He also testified that a few days later, four officers came to the gas station which he managed, claiming they were on burglary detail. Singletary, his employees, and his customers were told to lie on the ground while the officers displayed their weapons. Singletary claims that one of the officers said "this will give you something to remember." (N.T. 8/11/95 pp. 218-219). He testified that in February, 1982 he was forced to close his business because of repeated instances of vandalism. (N.T. 8/11/95 pp. 219-223).

At the PCRA hearing, Singletary testified that what he actually witnessed, and what he wrote in the discarded statements, was that he saw an officer frisking the driver of the Volkswagen. He claims a passenger, a tall man with dreadlocks, alighted from the Volkswagen, screaming and yelling, and then pulled a gun and shot the officer. The passenger placed the gun in the Volkswagen and fled. The driver ran after the passenger. Singletary then observed Appellant approach the fallen officer, asking him if there was anything he could do to help the officer. As Appellant was bending forward, the officer's gun discharged and struck Appellant. (N.T. 8/11/95 pp. 234-237). Singletary also testified that when the police arrived, they repeatedly beat and kicked Appellant and, at one point, rammed his head into a police car with enough force to fracture his skull. (N.T. 8/11/95 pp. 237-238).  ²⁸

According to his testimony, Singletary gave a statement to one of Appellant's current attorneys on August 31, 1990. In that statement, Singletary stated that after Appellant offered to help the officer, the officer mumbled something that sounded like

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"get Maureen" and/or "get the children." (N.T. 8/11/95 pp. 269-271). In another part of that deposition, however, he also said that after Appellant asked if he could help the officer, the officer said nothing and "just laid back, grabbed his gun and fired." (N.T. 8/11/95 p. 276). When confronted by the prosecution with this inconsistency in his December 1990 statement, Singletary claimed to have been confused by the questions being posed at the time of his statement. (N.T. 8/11/95 p. 278).

To counter Singletary's PCRA testimony, the prosecution presented the testimony of Police Detective Quinn, who claimed that he, and not a Detective Green, took Singletary's statement at the time of the murder. He recalled having been asked to leave his post at the North Central Detective Division and go to the Homicide Unit to assist. (N.T. 8/14/95 p. 49). He testified that he typed Singletary's statement verbatim and that at no point was Singletary asked to write anything. (N.T. 8/14/95 pp. 51-52). Quinn testified that he did not recall who directed him to take Singletary's statement, but that during the taking of that statement, no one but he and Singletary were present. (N.T. 8/14/95 pp. 50, 67). He testified that to his knowledge, no other detectives interviewed Singletary. However, he admitted that he not know how long Singletary was at the station that day. (N.T. 8/14/95 pp. 52, 67-68).

Officer Vernon Jones testified that he saw Singletary, with whom he was familiar, at the scene and that Singletary asked him what had happened. (N.T. 8/14/95 pp. 18-19). According to Jones, when he told Singletary that a police officer was shot, Singletary responded that he heard shots, but believed them to be firecrackers and that after that several police cars arrived. (N.T. 8/14/95 p. 21). When Jones asked Singletary whether he had seen the shooting, Singletary replied "no." Id. Jones had recorded this precise account in a statement given to homicide detectives on December 17, 1981. He candidly admitted at the PCRA that he had no present

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recollection of these events, but was certain his recorded statement was true. (N.T. 8/14/95 pp. 20, 29).

The PCRA court found Singletary's testimony not credible. We find ample support in the record for this conclusion and, thus, will not overrule that finding. Beasley, supra. Accordingly, Appellant's claim which is based on Singletary's testimony lacks merit.

Appellant next contends that the prosecution withheld favorable testimony of several witnesses. The first specific claim focuses on Deborah Kordansky, who allegedly also saw someone fleeing, and who was unavailable at trial allegedly due to the prosecution's deliberate withholding of her address and phone number. Kordansky, who, at the time of the murder, lived in an apartment located at 13th and Walnut Streets from where she could overlook the scene of the shooting, gave a statement to police on December 9, 1981. Her testimony at the PCRA hearing, which was consistent with that statement, was that between 3:45 and 4:00 a.m. on that date, she heard several shots that she thought were firecrackers, and then heard sirens. (N.T. 8/3/95 pp. 232, 235). When she heard the sirens she looked out her window, saw some eight to ten police vehicles and saw someone running down the street. (N.T. 8/3/95 p. 240). She was questioned extensively respecting the sequence of events to which she was testifying, and remained steadfast that at the point that she saw a person running, the police had already arrived on the scene. Contrary to Appellant's contentions, trial counsel did contact Kordansky by phone during the time of trial. Kordansky told counsel during that conversation that she doubted she could be of assistance to the defense. (N.T. 8/3/95 pp. 210-212).

The PCRA court concluded that Kordansky's testimony could not have aided the defense and that, therefore, trial counsel was not ineffective in failing to secure her testimony at trial. We agree. Her testimony is simply not corroborative of the defense

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theory that the true shooter fled the scene since her testimony places someone running well after the police and emergency vehicles had arrived on the scene. Accordingly, even assuming the truth of Appellant's claim that he was unable to locate Kordansky at the time of trial due to the prosecution's actions, that claim would not provide PCRA relief since Kordansky's testimony was not material. See, Green, supra.

Appellant next claims that the true statements of an alleged suspect, Arnold Howard, were not disclosed to the defense. Howard was questioned by police on December 9, 1981 because an application for a duplicate operator's license bearing his name was found in Officer Faulkner's pocket. Howard maintained that he knew nothing about the murder; was not present in the vicinity of the shooting; and that he had lost the driver's license application in William Cook's Volkswagen on November 30, 1981 when Cook had provided him a ride. He was not called to testify at trial.

At the PCRA hearing, Howard was called by the defense in an effort to establish that he had actually been taken into custody within several hours of the murder and told that police suspected he was at the scene of the shooting and was the person witnesses said fled. Howard testified that he had known Appellant virtually all of his life and that they grew-up in the same neighborhood. Respecting the shooting incident, he testified that he was in custody for some 72 hours during which time he was made to appear in a line-up; photographs were taken of him; and "some kind of powder was put on his hands." (N.T. 8/7/95 pp. 5-8). He testified that also in the line-up was a neighborhood friend of his, Kenneth "Poppy" Freeman, to whom he had loaned his driver's license. He testified that Freeman was a partner of Appellant's brother, William Cook, in a vending stand operation where Howard himself sometimes worked. Howard also claimed he saw a person known to him as "Sweet Sam," an alleged pimp in the Center City area of Philadelphia, also being held by police. Howard testified that he witnessed "Sweet Sam" being escorted away by two men in suits and that he never saw "Sweet Sam" again.

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When asked, Howard identified "Sweet Sam" as Cynthia White's pimp. Howard also testified that Freeman was selected from the line-up by an African American woman seated behind the glass. Freeman, according to Howard's testimony, died in either 1993 or 1994 after allegedly being handcuffed and "shot-up" with drugs. (N.T. 8/7/95 pp. 9-22).

On cross-examination, it was revealed that Howard had prior convictions for burglary, theft by receiving stolen property, and forgery, and that he was then on probation. (N.T. 8/9/95 pp. 27-30). When confronted with a statement purported to be one he gave the police on December 9, 1981, Howard admitted that he had given a statement; admitted that the statement being offered at the hearing bore his signature on 4 of the 5 pages; and admitted the truth of some of the substance of the statement, but specifically refuted a majority of the statement. (N.T. 8/9/95 pp. 64-75, 83-98). Howard was also shown a page purportedly taken from the logbook located in the front entrance of the Police Administration Building. The page was dated December 9, 1981, and included on one line, the witness' name and indicated a "time-in" of 12:30 and a "time-out" of 2:30.²⁹   Howard testified that he had no recollection of this piece of paper. (N.T. 8/9/95 pp. 95-98).

In rebuttal to Howard's testimony, the prosecution called Captain Edward D'Amato, who testified that he took Howard's statement on December 9, 1981. He stated that Howard appeared at the interview voluntarily and that he was not handcuffed. According to D'Amato, the interview was conducted at the Police Administration Building and lasted from 12:30 p.m. until 2:30 p.m. He stated that he typed the statement verbatim and that Howard was given a completed copy to review and sign. (N.T. 8/11/95 pp. 117-130).

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The prosecution also presented the testimony of Officer Joseph Brown, who was the custodian of the sign-in-book at the Police Administration Building. He verified the log dated December 9, 1981 and testified that persons who are handcuffed are not brought into the building through the entrance where this log book is located and are not required to sign the log book. (N.T. 8/11/95 pp. 65-70).

The PCRA court found Howard's testimony to be incredible. In support thereof, the court relied upon the testimony of Howard, and Officers D'Amato and Jones; the fact that Howard had prior crimen falsi convictions; as well as Howard's demeanor. The court specifically found the testimony of the officers to be credible. Our review of the record reveals ample support for the PCRA court's credibility determinations and we are bound thereby. Beasley, supra. Given those findings, we conclude that Appellant has failed to prove he is entitled to relief on this claim.

Next, Appellant focuses on the testimony of one William Harmon whom the defense contends they just discovered during the midst of the PCRA proceedings. At that time, Harmon was incarcerated at the State Correctional Institution (SCI) at Mercer on drug charges. He testified that he contacted his attorney and asked him to contact Appellant's lawyers to inform them that Harmon had been a witness to the shooting on December 9, 1981. (N.T. 8/10/95 p. 48).³⁰   On August 3, 1995, Harmon was visited in prison by counsel for Appellant to whom he provided an affidavit. He was then transported to Philadelphia on August 9, 1995 and after being interviewed by counsel for the Appellant on the morning of August 10, 1995, he was directed by the court to testify.³¹  

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In that affidavit, and in his PCRA testimony, Harmon claimed to have been in a restaurant on 13th Street at approximately 3:30 a.m. on December 9, 1981. While in the restaurant he saw Appellant, with whom he was familiar, on the sidewalk outside and quickly left to talk to Appellant. While outside, the two men heard loud arguing whereupon Appellant began to walk through a parking lot towards the noise and Harmon followed. At that point, Harmon heard a shot and when he looked in the direction where he heard the shot, he saw an officer fall. According to Harmon, the officer was laying with his back against a wall with his gun visible. While Harmon stopped walking when he heard this shot, Appellant continued in the direction of the fallen officer. Harmon then heard a second shot and saw Appellant fall. Harmon claimed to have seen someone running down Locust Street in the direction of 12th Street after the first shot was heard. Then, shortly after hearing the second shot and seeing Appellant fall, Harmon saw a car pull up, someone alight from that car and shoot the officer again, and then get back into the car and drive off. (N.T. 8/10/95 pp. 55-68). Harmon explained that, because he was a pimp and did not want to get involved with the police, he then fled the scene. (N.T. 8/10/95 pp. 70-71). Significantly, when questioned on cross-examination, Harmon stated that Officer Faulkner was facing the man who first shot him. (N.T. 8/10/95 pp. 92-93). Physical evidence, however, proved to the contrary; that Officer Faulkner was shot from behind. (N.T. 6/25/82 p. 8.167; 6/26/82 p. 15).

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The PCRA court found Harmon's testimony to be "absolutely incredible." In support thereof, the court cited not only his entire testimony, but also his demeanor, and defense counsel's obvious attempt to delay his testimony. We find support in the record for this conclusion; especially in light of the fact that Harmon's account of the shooting is at odds with virtually all of the other eyewitness testimony and since it was the PCRA court which personally observed his demeanor. As such, that finding of credibility is binding on this court. Beasley, supra. Additionally, we point out that Appellant offered no proof whatsoever of Harmon's unavailability at the time of trial nor of any efforts made to locate Harmon. Certainly, Appellant would have been aware of Harmon since Harmon testified that he and Appellant were allegedly together at the time of the shooting. Accordingly, Appellant's claim warrants no relief. Schuck, supra.

At the PCRA hearing, Appellant also presented the testimony of Sharon Smith whom he alleged was a newly discovered witness. Smith testified that on December 9, 1981, she, together with her husband and two eldest children, were staying in what was then called the Midstown Hotel. She claimed that early in the morning on that date, she heard loud arguing and then two, or perhaps three, gunshots. When she then looked out her window, she saw several police officers beating a black man with their sticks and kicking him. She claimed to hear the officers shouting: "kill the black m....f...er" and "beat the shit out of the black m...f...er." (N.T. 8/9/95 pp. 112-115). She testified that the man she saw was being beaten so bad that she thought he might die. (N.T. 8/9/95 p. 125). On cross-examination, Smith explained that she never came forward with this information despite her knowledge of the trial of Appellant, because she feared the police and because her husband advised her not to get involved. (N.T. 8/9/95 pp. 121, 133). She claims that she only now came forward with this information because she did not believe Appellant should be executed. (N.T. 8/10/95 p. 121).

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The PCRA court found Smith's testimony regarding this alleged beating to be incredible. In support thereof, the court cited to the testimony of Appellant's treating physician at Jefferson Hospital who, as noted above, testified that Appellant's injuries were not consistent with having been beaten as described by Smith (N.T. 6/28/82 pp. 28.58; 28.100); the fact that Appellant had not complained to the treating physician that he had been beaten (N.T. 6/28/82 pp. 28.92-101); and the fact that Appellant never offered evidence substantiating any claimed beating. (N.T. 6/28/82 pp. 28.92-103). Since there is support in the record for the court's finding respecting the testimony of Smith, this court is bound by that finding. Beasley, supra. The PCRA court also found her testimony that she was unavailable at trial to be not credible. Essentially, the PCRA court found significant the fact that Smith never explained why her alleged reasons for not coming forward with this information sooner ceased to have an affect on her willingness to testify in 1995. As noted previously, in reviewing credibility determinations we, as an appellate court, give deference to the trier of fact's assessment of a witness' trustworthiness since it is the trier of fact who had the opportunity to personally observe the demeanor of the witness. Farquharson, supra. After giving such deference to the PCRA court's findings regarding Smith, and having found sufficient support in the record for those findings, we conclude that Appellant's claim that Smith's testimony constitutes newly discovered favorable evidence is without merit.

Appellant next asserts that the PCRA court improperly precluded the proffered testimony of his brother, William Cook, who would allegedly testify that a passenger in the Volkswagen shot Officer Faulkner. This claim is entirely devoid of merit.

William Cook was present during Appellant's trial, but was not called to testify. It is Appellant's contention that he offered to prove at the PCRA hearing that his brother was "unavailable" at trial because of a concern that criminal charges might be filed against him. Following closing arguments at the PCRA hearing, counsel for Appellant

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indicated that he wished to call William Cook, but that Cook's counsel, Daniel-Paul Alva, wished to first make certain representations to the court respecting his client. Following some further discussion, it was determined that Mr. Alva would have Cook in the courtroom the following day. However, when the court reconvened the following day for that express purpose, Appellant's counsel represented that he was not successful in securing William Cook's presence, and, instead offered Cook's attorney, Mr. Alva, to explain Cook's absence. Respecting whether or not William Cook was "unavailable" at the time of trial due to an assertion of the Fifth Amendment, Mr. Alva commented only that he was informed that "it had been decided that he [William Cook] would not testify." (N.T. 9/12/95 p.8). As such, Appellant has failed to establish that William Cook was unavailable at the time of trial. Further, contrary to Appellant's assertions, the court did not refuse to continue the matter until Cook could be located. Rather, the court commented that, given the representations of Appellant's PCRA counsel that they had tried repeatedly to subpoena him but were unsuccessful, the court would, at that point, conclude the proceedings, but that in the event the defense was able to produce William Cook, the proceedings would be reopened.

Thus, contrary to Appellant's contentions, he was not denied the opportunity to either establish the unavailability of William Cook or to secure his presence at the PCRA proceedings. The record clearly demonstrates that Appellant's claim lacks even arguable merit.

Appellant offered yet another claim of alleged previously undisclosed evidence of police coercion in connection with the second remand; this one respecting one Pamela Jenkins, a prostitute in the Philadelphia area. In the application, Appellant states:

Application pp. 1-2.

Our review of the record respecting this second remand hearing reveals no evidence which would support the granting of PCRA relief. First, contrary to Appellant's contentions, the evidence presented was not exculpatory. Although Pamela Jenkins testified that Cynthia White told her that she was afraid of the police; that the police were attempting to get her to say something about the murder of Officer Faulkner; and that she had been threatened with her life by the police, at no time did Pamela Jenkins testify that Cynthia White's testimony at trial was perjured or that Cynthia White even alleged that her testimony was false. Also, a significant portion of Jenkins' testimony involved alleged communications with Cynthia White occurring at a time after White had been confirmed dead.³²   Furthermore, while Jenkins testified that she was badgered and coerced by police to implicate Appellant in the shooting, she, in fact, never offered any testimony implicating Appellant and, thus, we find it unlikely that her testimony, if it had been available at trial, would have altered the verdict.³³   As such, Appellant's claim that Jenkins'

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testimony constitutes "after-discovered evidence" is meritless. Schuck, supra. Most significantly, the trial court explicitly found Pamela Jenkins to be incredible. Our review of the record reveals support for the court's conclusion; accordingly that ruling remains inviolate. Beasley, supra. This second remand hearing, therefore, produced no additional evidence which would support the granting of post-conviction relief.³⁴  

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Appellant next contends that he was unable to present an adequate defense due to the court's denial of adequate funds; the Commonwealth's suppression of key evidence; and the ineffective assistance of trial counsel. While Appellant presents somewhat distinct theories of relief in his current appeal, in essence, he is arguing the precise issue addressed by this court on his direct appeal: whether the trial court failed to afford adequate investigative resources thereby depriving Appellant of a meaningful ability to present a defense in violation of his due process rights. Abu-Jamal, 555 A.2d at 852. Accordingly, Appellant is not entitled to PCRA relief on this claim. See, Beasley, supra.; Commonwealth v. Christy, 656 A.2d 877, 881 (Pa. 1995)(a petitioner cannot obtain PCRA review of previously litigated claims by alleging ineffectiveness and presenting new theories of relief to support that previously litigated claim.).

Appellant next complains that the prosecution withheld Federal Bureau of Investigation (F.B.I.) files evidencing that Appellant had been under constant surveillance for years because of his political affiliations and had committed no criminal conduct. Appellant complains that the court improperly denied his proffer of over 600 pages of alleged FBI files which he claims would have supported his contention. The court denied the admission of these documents on the basis that the defense had failed to lay a proper foundation for their admission.

The admission of evidence is a matter vested in the sound discretion of the trial court, whose decision thereon can only be reversed by this court upon a showing of an abuse of discretion. Commonwealth v Williams, 660 A.2d 1316, 1321 (Pa. 1995). The court's ruling on this issue did not constitute an abuse of discretion, but rather constituted a proper evidentiary ruling. Absent any authentication that these files were, indeed, FBI files, there is simply no basis for their admission.

Appellant claims, as well, that he sought to subpoena one Inspector Alphonse Giordano to establish that he knew Appellant through police surveillance. While a subpoena

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for Giordano was, indeed, quashed at the PCRA hearing, there was no offer of proof made at the hearing to support Appellant's current claim.

In short, Appellant's contention that this evidence would have established police bias against him as well as the fact that he had no prior criminal history, is of no moment. First, we note that the fact of his lack of a prior criminal history was known to the jury given its finding of this precise mitigating circumstance. Moreover, even assuming that such files did exist, Appellant fails to explain how such files could be exculpatory. Appellant's claim is, thus, without merit.

Appellant next asserts trial counsel's ineffectiveness as a basis for obtaining collateral relief. He argues generally that trial counsel failed to adequately prepare his defense and that the animosity which developed between counsel and Appellant necessarily rendered counsel ineffective. The PCRA court, however, found that the animosity that existed between counsel and Appellant resulted solely from Appellant's persistent refusal to cooperate with his counsel and his personal decision to direct the trial strategy. As noted infra, that finding is supported in the record and we are, thus, bound by that finding. See, Beasley, supra. Given that finding, Appellant's current claim lacks merit since his decision to pursue his own trial strategy renders any claim of ineffective assistance of counsel a nullity. Commonwealth v. Szuchon, 484 A.2d 1365, 1377 (Pa. 1984).

Appellant goes on to recite specific instances of trial counsel's alleged ineffectiveness. However, Appellant's argument as to the specific instances is largely redundant as he has elsewhere in this appeal raised the underlying merits respecting each of those instances and therein also included a claim of counsel's ineffectiveness. Accordingly, as this court has found no merit to any of those underlying claims, we need not, at this point, again individually analyze the claims since there can be no finding of ineffectiveness where the underlying claim lacks merit. Commonwealth v. Tilley, 595 A.2d 575, 587 (Pa. 1991).

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Appellant submits next that the trial court prematurely and unjustifiably stripped him of his right to self-representation when back-up counsel was ordered to take control of the voir dire and the subsequent trial. Appellant's claim is devoid of merit.

Appellant, who had been granted indigent status, steadfastly insisted from the initiation of this matter that he be permitted to proceed with "counsel" of his choice. However, he insisted on proceeding with an individual known as John Africa who was not a licensed attorney and had apparently never received any formal legal schooling. The court properly refused this request and, when Appellant requested to then proceed pro se, the court initially permitted such status and as a precaution appointed back-up counsel to assist Appellant. When it became apparent that Appellant was unable to properly conduct voir dire, the court first asked Appellant whether his back-up counsel could take over the questioning or whether he preferred the court to conduct voir dire.³⁵   Appellant steadfastly refused to permit his back-up counsel to take part in any of the proceedings and argued vehemently that the court should not perform the voir dire questioning. We find that the court properly took over the questioning and then properly ordered that back-up counsel take control.

All defendants, even those who may display the potential to be disruptive, have the right to self-representation. Commonwealth v. Africa, 353 A.2d 855, 864 (Pa. 1976). In such instances, however, it is advisable that stand-by counsel be appointed. Id. at 864. As explained in Africa, in such circumstances:

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Id. at 864. The record evidences that the trial court fully complied with the dictates of Africa.

Appellant also asserts tha