NOT TO BE PUBLISHED

OPINION

THOMPSON, Judge.

Javon Hearn appeals from an order of the Jefferson Circuit Court denying his motion of post conviction relief pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. After conducting an evidentiary hearing, the circuit court found Hearn received effective assistance of counsel. We affirm.

The facts leading to Hearn's convictions are set forth in Hearn v. Commonwealth, 2005-SC-000708-MR, 2008 WL 3890035 (Ky. 2008). We recite the facts as necessary.

Around noon on August 27, 2002, Hearn met the victim, David Kiphart Jr., at a convenience store in Jefferson County. Approximately one hour later, a worker at Green Meadows Cemetery found Kiphart's body. Kiphart had been shot once in his lower back and three times in the back of his head. Id. at 1. Soon after his murder, Kiphart's car was found in an apartment complex parking lot missing its rims, stereo, speakers, and personal items. Id.

On August 30, police stopped Gary Hearn, Hearn's half-brother, in his car and found Kiphart's car stereo and personal items. Following Gary's arrest, he gave statements to police implicating Hearn in the murder. Id. at 2.

He stated that on the day of the murder, he saw Hearn driving Kiphart's car in the area where Kiphart's body was found. Gary further stated Hearn informed him that while stealing Kiphart's car, he accidently shot Kiphart in the back and, to avoid an attempted murder charge, shot Kiphart three times in the head. Id. at 1.

According to Gary, he and Hearn took Kiphart's car to an area apartment complex and stripped Kiphart's car. Hearn then gave Gary the stereo, CDs and cell phone. An apartment complex resident identified Hearn as one of the men she saw stripping Kiphart's car between 2:50 and 3:00 p.m. on the date of the murder. Id.

After learning that he was a suspect in the murder, Hearn turned himself in to the Louisville Police Department. Hearn initially denied knowing Kiphart but later admitted he spoke to Kiphart regarding Kiphart's car. He denied any involvement in Kiphart's murder and stated he slept at his mother's home until 3:00 p.m. on the day of the murder and then played video games with his younger brother until he left with his girlfriend's mother to drive him to his girlfriend's home. He stated he fell asleep at his girlfriend's home at 8:30 p.m. However, his girlfriend denied seeing him on August 27 and, at trial, no witnesses were called to substantiate Hearn's version of events. Id. at 2.

Gary and Hearn's trials were severed. Gary was convicted of murder, robbery in the first degree and tampering with the evidence. In exchange for a possibility of a concurrent sentence on the robbery conviction, Gary agreed to give a full statement and testify at Hearn's trial.

Hearn was convicted of murder, robbery in the first degree, and tampering with physical evidence and sentenced to life imprisonment without the possibility of parole for twenty-five years. He filed a direct appeal to the Kentucky Supreme Court which affirmed. Id.

Hearn filed a pro se motion for RCr 11.42 relief raising numerous grounds and requesting he be allowed to proceed in forma pauperis, appointment of counsel, and an evidentiary hearing. The circuit court summarily denied Hearn's motion finding that the issues presented were identical to those presented and decided in his direct appeal.

Hearn appealed. We affirmed the circuit court except as to Hearn's ineffective assistance claim based on the alleged failure to investigate, interview, or subpoena certain potential alibi witnesses. Concluding that Hearn's claim was not refuted on the record, we remanded the case for an evidentiary hearing. Hearn v. Commonwealth, 2009-CA-001832-MR, 2011 WL 2162543 (Ky.App. 2011).

At the evidentiary hearing, the two attorneys who represented Hearn at trial recalled talking with Hearn's mother and brother in preparation of an alibi defense. They testified that Hearn's mother was unable to account for Hearn's whereabouts at the time of the murder and, therefore, she could not serve as an alibi witness. Likewise, Hearn's brother could not account for Hearn's whereabouts at the relevant times. Because of their familiar relationship with Hearn and the risk of harmful evidence being elicited on cross-examination, Hearn's mother and brother were not called as witnesses.

Hearn's mother and brother testified at the evidentiary hearing. His mother testified that she returned home from work at 10:00 a.m. on the date of the murder and Hearn was home. She became angry with him because he did not cut the grass and threatened to require him to move. However, Hearn never left the residence and was still at home at 3:45 p.m. when she again left the residence. She testified that she anticipated being called as a trial witness and she and her son sat outside the courtroom throughout the trial.

Hearn's brother testified that on the day of the murder, he returned home from school at approximately 3:00 p.m. and he and Hearn played video games for several hours. He also recalled Hearn informed him of the argument with his mother on the day of the murder.

The appropriate standard of review for an ineffective assistance claim is set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As stated in Bowling v. Commonwealth, 80 S.W.3d 405, 411-12 (Ky. 2002), the Strickland standard is two-pronged:

(internal citation omitted). RCr 11.42(5) states in part that if there is a "material issue of fact that cannot be determined on the face of the record the court shall grant a prompt hearing[.]" "The trial judge may not simply disbelieve factual allegations in the absence of evidence in the record refuting them." Fraser v. Commonwealth, 59 S.W.3d 448, 452-53 (Ky. 2001).

We previously held Hearn was entitled to an evidentiary hearing on the sole claim that the failure to investigate and call alibi witnesses constituted ineffective assistance of counsel. In this appeal following an evidentiary hearing, we must defer to the determinations made by the trial judge on factual matters and findings regarding witness credibility. McQueen v. Commonwealth, 721 S.W.2d 694, 698 (Ky. 1986).

Hearn argues the trial court misstated the facts when it stated in its written order that "counsel was not informed of the existence of the alibi witnesses[.]" Although perhaps the trial court's written order could have been more accurate, it made the finding that the testimony of Hearn's trial attorneys was more credible than that given by Hearn's mother and brother.

Counsel testified that while they were aware Hearn's defense was an alibi, Hearn's mother and brother did not give them any information indicating either would be beneficial witnesses. As a matter of trial strategy, they determined not to call them as witnesses. Instead, they focused on discrediting Gary's testimony.

Although counsel is required to make a reasonable investigation, "[d]ecisions relating to witness selection are normally left to counsel's judgment and this judgment will not be second-guessed by hindsight." Foley v. Commonwealth, 17 S.W.3d 878, 885 (Ky. 2000) (overruled on other grounds by Stopher v. Conliffe, 170 S.W.3d 307, 310 (Ky. 2005) (quoting Fretwell v. Norris, 133 F.3d 621, 627 (8th Cir.1998)). When witness selection is the result of trial strategy, it is "given "a strong presumption of correctness[.]" Hodge v. Commonwealth, 68 S.W.3d 338, 344 (Ky. 2001) (quoting Porter v. Singletary, 14 F.3d 554, 557 (11th Cir. 1994)).

In its discretion, the trial court found Hearn's trial attorneys' recollection of the events to be more credible that Hearn's mother's and brother's recollection and afforded the presumption of effective assistance of counsel to decisions regarding witness selection. Because there is substantial evidence in the record to support its decision to deny the RCr 11.42 relief, we affirm.

The order of the Jefferson Circuit Court is affirmed.

ALL CONCUR.