Com. v. Shabazz-Davis, R. , 161 A.3d 1000 ( 2017 )

J-A08040-17
2017 PA Super 138COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT SHABAZZ-DAVIS :
:
Appellant : No. 2525 EDA 2015
Appeal from the Judgment of Sentence March 13, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007330-2013
BEFORE: PANELLA, LAZARUS, JJ., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED MAY 08, 2017
Appellant Robert Shabazz-Davis appeals the judgment of sentence
entered in the Court of Common Pleas of Philadelphia County on March 13,
2015, at which time he was sentenced to life imprisonment without the
possibility of parole along with a consecutive term of three and one half
(3½) years to seven years in prison following his convictions of first-degree
murder and firearms not to be carried without a license.1 Appellant was a
juvenile at the time of the murder, bringing his case within the purview of
Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012),
and Commonwealth v. Batts, 620 Pa. 115, 66 A.3d 286 (2013)(”Batts
II”) (invalidating mandatory sentences of life without the possibility of
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 2502(a), 6106(a)(1), respectively.
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parole for juvenile offenders and indicating that appellate remedy for the
unconstitutional imposition of a mandatory life-without-parole sentence upon
a juvenile is a remand for resentencing at which the trial court must consider
the sentencing factors set forth in Miller).2 Following a careful review, we
affirm.
The trial court aptly set forth the facts herein as follows:
On May 28, 2012, at approximately 2:13 p.m., police
officers from the 22nd District responded to a radio call of a
shooting at 1732 Ridge Avenue. (N.T. 10/24/14 p. 89). Upon
arrival officers found decedent Antwan Pack lying in a pool of
blood on the floor inside the Sunshine Laundromat. (N.T.,
10/24/14 pp. 89-90). Police Officer Joseph Kocher observed
that decedent was in critical condition with multiple gunshot
wounds to the back. (N.T., 10/24/14 p. 90). Eyewitness Jeffrey
Noble helped police officers place Mr. Pack into a police wagon.
(N.T., 10/24/14 p. 61). Mr. Noble and Officer Kocher rode in the
back of the wagon with decedent as he was transported to
Hahnemann Hospital. (N.T., 10/24/14 p. 91). Mr. Noble
testified that en route to the hospital, Mr. Pack stated someone
named “‘Rob’ from Highland” had shot him. (N.T., 10/24/14 pp.
68-69. Officer Kocher also testified that on the way to the
hospital, Mr. Pack identified the male that shot him as “Rob.”
(N.T., 10/24/14 p. 92). Mr. Pack was admitted to Hahnemann
Hospital and was taken to surgery, at around 3:00 p.m., in an
attempt to save his life, but he was pronounced dead at 7:39
p.m. (N.T., 10/27/14 p. 100). The autopsy report showed
decedent had been shot twice in the back and suffered
devastating injuries including fractures to his vertebrae, which
rendered him paralyzed, and lacerations of his liver, left lung,
and right lung, which prevented him from breathing and
ultimately caused his death. (N.T., 10/27/14 pp. 99-107). Six
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2
At the time of the murder, Appellant was sixteen years old and turned
seventeen twenty-three (23) days later.
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fired cartridge casings and one projectile were recovered from
the scene of the crime. (N.T., 10/24/14 p. 53).
Eyewitnesses Antwyne Askew and Marcus Pough testified
at trial about the events that took place the day decedent was
shot and killed. On June 16, 2012, Mr. Askew gave an interview
to homicide detectives wherein he stated that while standing on
the corner of Vineyard Street and Ridge Avenue, on May 28,
2012, he observed a male on a bicycle brandish a weapon.
(N.Y., 10/27/14 pp. 36-38). Seconds later, he heard gunshots.
(N.T., 10/27/14 pp. 36-37). Looking in the direction of the
gunshots he observed the male on the bicycle known to him as
“Rob” shooting at decedent. (N.T., 10/27/14 pp. 37-40). Mr.
Askew identified “Rob” as [Appellant] Robert Shabazz-Davis from
a photographic array. (N.T., 10/27/14 p. 43). Further, in his
interview, Mr. Askew stated that [Appellant] and decedent had
previously argued with each other. (N.T., 10/27/14 pp. 44-45).1
Mr. Pough was interviewed on June 27, 2012, and he stated that
on the day of the shooting, he was walking down Ridge Avenue
towards the laundromat with his niece when he observed a male
firing a gun into the laundromat. (N.T., 10/24/14 p. 129). Mr.
Pough stated further that he saw the male place the gun in his
waistband and ride off on a bicycle towards him. (Id.) Mr. Pough
walked past the laundromat and observed decedent on the floor
inside the laundromat suffering from gunshot wounds and
screaming for help. (Id.) Later, Mr. Pough was shown a
photographic array and identified [Appellant] as the male he saw
firing a gun into the laundromat. (N.T., 10/24/14 pp. 139-140).2
By June 30, 2012 a number of unsuccessful attempts had
been made to locate [Appellant] on an arrest warrant charging
him with the murder of decedent and various weapons offenses.
(N.T., 10/27/14 p. 116). Extensive efforts to apprehend
[Appellant] continued without immediate success. (N.T.,
10/27/14 pp. 117-124). On January 28, 2013, [Appellant’s]
attorney notified authorities that [Appellant] wanted to
surrender. (N.T., 10/27/14 p. 124). On that same day,
[Appellant] was finally arrested. (Id.)
On July 13, 2012, Daquan Johnson was arrested after
fleeing police. (N.T., 10/27/14 pp. 86-91). He was found to be
in possession of the firearm used to kill Antwan Pack. Id. Officer
Michael Livewell testified that, according to social media
websites, Mr. Johnson identified himself as a member of
Highland and was one of [Appellant’s] associates. (N.T.,
10/27/14 pp. 13-15).
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1
At trial, Mr. Askew denied that he in fact made such statements
and identified the shooter. (N.T., 10/27/14 p. 37-43). However,
Detective Jacobs, who took Mr. Askew’s statement, testified to
his statements and identification. (N.T., 10/27/14 p. 70-76).
The jury was given the opportunity to view the signatures above
and below the photographs on the array and determine Mr.
Askew’s credibility regarding his denial.
2
Mr. Pough denied making those statements and identifying the
shooter from the photo array at trial. (N.T., 10/24/14 pp. 141-
142). However, Detective Schmidt, who took Mr. Askew’s
statement, testified to his statements and identification. (N.T.,
10/24/14 p. 170-183).
Trial Court Opinion, filed 6/28/16, at 1-3.
On March 22, 2015, Appellant filed his “Motion for Post Sentence Relief
And/Or Modification or Reconsideration of Sentence,” and the same was
denied by operation of law pursuant to Pa.R.CrimP. 720(B)(3) on August 6,
2015. Appellant filed a notice of appeal pro se on August 18, 2015, and
upon consideration of defense counsel’s motion to withdraw and a hearing,
the trial court entered an Order on October 2, 2015, granting counsel’s
motion to withdraw. Thereafter, on November 6, 2015, counsel was
reappointed to represent Appellant on direct appeal. On June 12, 2016,
Appellant filed his Statement of Matters Complained of on Appeal pursuant
to Pa.R.A.P. 1925(b) wherein he raised ten (10) issues. The trial court filed
its Rule 1925(a) Opinion on June 28, 2016.
In his brief. Appellant presents the following Statement of the
Questions Involved:
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1. In Miller v. Alabama, the U.S. Supreme Court outlawed
mandatory life without parole for juveniles (“LWOP”), and
instructed that the discretionary imposition of this sentence
should be “uncommon” and reserved for the “rare juvenile
offender whose crime reflects irreparable corruption.”
A. Did the Trial Court err when it imposed the sentence of life
without the possibility of parole on Appellant despite the
safeguards set forth by our Supreme Court in Miller v. Alabama
and in contradiction of the safeguards provided by the United
States Constitution and the Pennsylvania Constitution?
B. There is currently no procedural mechanism to ensure that
juvenile LWOP will be “uncommon” in Pennsylvania. Should this
Court exercise its authority under the Pennsylvania Constitution
to promulgate procedural safeguards including (a) a presumption
against juvenile LWOP, (b) a requirement for competent expert
testimony, and (c) a “beyond a reasonable doubt” standard of
proof?
C. In Miller, the U.S. Supreme Court stated that the basis for
its individualized sentencing requirement was Graham’s
comparison of juvenile LWOP to the death penalty. [ ] Appellant
received objectively less procedural due process than an adult
facing capital punishment. Should the Court address the
constitutionality of [ ] Appellant’s sentencing proceeding?
D. Did the trial court err in not dismissing the case against
Appellant due to the Commonwealth’s blatant violations under
Brady v. Maryland?
2. Did the Trial Court err in not dismissing the case against
Appellant due to the Commonwealth’s blatant violations under
Brady v. Maryland?[3]
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3
See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215(1963) (holding suppression by prosecution of evidence favorable to accused
upon request violates due process where evidence is material either to guilt
or punishment, regardless of good or bad faith by prosecution).
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Brief of Appellant at 4.
At the outset, we observe that Appellant’s introductory comment and
issues B and C are, verbatim, the same questions which our Pennsylvania
Supreme Court agreed to consider in granting partial allowance of appeal in
Commonwealth v. Batts (“Batts III”), 125 A.3d 33 (Pa.Super. 2015),
appeal granted in part, 135 A.3d 176 (Pa. 2016). In addition, Appellant’s
issue A herein is reflected in the issues the Supreme Court will consider in
Batts III.4 Notwithstanding, we decline to postpone a decision in this case
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4
Our Supreme Court’s Per Curiam Order entered on April 19, 2016, reads as
follows:
AND NOW, this 19th day of April, 2016, the Petition for
Allowance of Appeal is GRANTED, LIMITED TO the following
issues raised by Petitioner:
1. In Miller v. Alabama, the U.S. Supreme Court outlawed
mandatory life without parole for juveniles (LWOP), and
instructed that the discretionary imposition of this sentence
should be “uncommon” and reserved for the “rare juvenile
offender whose crime reflects irreparable corruption.”
i. There is currently no procedural mechanism to
ensure that juvenile LWOP will be “uncommon” in
Pennsylvania. Should this Court exercise its authority
under the Pennsylvania Constitution to promulgate
procedural safeguards including (a) a presumption against
juvenile LWOP; (b) a requirement for competent expert
testimony; and (c) a “beyond a reasonable doubt”
standard of proof?
ii. The lower court reviewed the Petitioner's sentence
under the customary abuse of discretion standard. Should
the Court reverse the lower court's application of this
highly deferential standard in light of Miller?
2. In Miller, the U.S. Supreme Court stated that the basis
for its individualized sentencing requirement was Graham's
(Footnote Continued Next Page)
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pending the Supreme Court’s resolution of the appeal in Batts, III. Until
our Supreme Court holds otherwise, we will employ the applicable legal
principles extant currently, and in doing so first find Appellant has waived his
second and third issues for his failure to raise them before the trial court and
preserve them in his Pa.R.A.P. 1925(b) statement.
“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a).
This requirement bars an appellant from raising “a new and
different theory of relief” for the first time on appeal.
Commonwealth v. York, 319 Pa.Super. 13, 465 A.2d 1028,
1032 (1983).
In addition, our Supreme Court has made it clear that
“[a]ny issues not raised in a [Rule] 1925(b) [S]tatement will be
deemed waived.” Commonwealth v. Castillo, 585 Pa. 395,
888 A.2d 775, 780 (2005) (citation and quotation omitted). See
also Pa.R.A.P. 1925(b)(4)(ii) (“The [1925(b) ] Statement shall
concisely identify each ruling or error that the appellant intends
to challenge with sufficient detail to identify all pertinent issues
for the judge”).
_______________________
(Footnote Continued)
comparison of juvenile LWOP to the death penalty. The Petitioner
received objectively less procedural due process than an adult
facing capital punishment. Should the Court address the
constitutionality of the Petitioner's resentencing proceeding?
The Petition for Allowance of Appeal is DENIED with respect to
Petitioner's third stated issue.
Commonwealth v. Batts, 135 A.3d 176 (Pa. 2016).
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Commonwealth v. Wanner, 2017 WL 1152609, at * 2 (Pa.Super. filed
Mar. 28, 2017).
Appellant’s issues B and C raised in his appellate brief request this
court to engage in a broad constitutional analysis and develop procedural
safeguards for determining “uncommonality,” while the issues he raised in
his Rule 1925(b) Statement essentially pertained to the legality of his
sentence in light of Miller v. Alabama, supra. Therefore, Appellant has
waived these claims.5
As appellant’s issue A is evident from his statement of matters
complained of on appeal, we will consider the merits of the same. Therein
Appellant challenges the legality of his sentence of life imprisonment without
the possibility of parole in light of the federal and state constitutions and the
United States Supreme Court’s decision in Miller, supra.
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5
We note Appellant’s brief is in violation of Pa.R.A.P. 2119(a), which
provides that “[t]he argument shall be divided into as many parts as there
are questions to be argued,” in that it is not divided into sections that
correspond to the questions presented. While the Statement of the
Questions Presented consists of two issues, the first of which contains three
subparts, the Argument portion of the brief begins with Section A entitled
“Miller and Montgomery Establish A Presumption Against Imposing Life
Without Parole Sentences On Juveniles,” under which are subsections
numbered 1 through 8. Issue B pertaining to Appellant’s Brady claim
follows.
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A challenge to the legality of a sentence ... may be entertained as long
as the reviewing court has jurisdiction.” Commonwealth v. Wolfe, 106
A.3d 800, 802 (Pa.Super. 2014), affirmed, 140 A.3d 651 (Pa. 2016) (citation
omitted). “If no statutory authorization exists for a particular sentence, that
sentence is illegal and subject to correction.” Commonwealth v. Rivera,
95 A.3d 913, 915 (Pa.Super. 2014) (citation omitted). “An illegal sentence
must be vacated.” Id. “The determination as to whether the trial court
imposed an illegal sentence is a question of law; our standard of review in
cases dealing with questions of law is plenary.” Commonwealth v.
Stradley, 50 A.3d 769, 772 (Pa.Super. 2012) (citation omitted).
In Miller, the United States Supreme Court held “mandatory life
without parole for those under the age of 18 at the time of their crimes
violates the Eighth Amendment's prohibition on ‘cruel and unusual
punishments.’” Miller, 567 U.S. at ____, 132 S.Ct. at 2460. Although the
Court made clear that it was not foreclosing a trial court's ability to impose a
life sentence upon a juvenile convicted of murder, it required the trial court
to first “take into account how children are different, and how those
differences counsel against irrevocably sentencing them to a lifetime in
prison.” Id. at ____, 132 S.Ct. at 2469. The Supreme Court recognized that
a sentencing court might encounter the rare juvenile offender who exhibits
such irretrievable depravity that rehabilitation is impossible and life without
parole is justified. But in light of what it described as “children's diminished
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culpability and heightened capacity for change,” Miller made clear that
“appropriate occasions for sentencing juveniles to this harshest possible
penalty will be uncommon.” Id. Therefore, it was the mandatory sentencing
scheme that the Supreme Court deemed unconstitutional when applied to
juveniles, holding that “a judge or jury must have the opportunity to
consider mitigating circumstances before imposing the harshest possible
penalty for juveniles.” Id. at ____, 132 S.Ct. at 2475.
In Batts II, supra, our Supreme Court remanded to the trial court
with instructions to consider the following age-related factors in resentencing
the appellant:
[A]t a minimum [the trial court] should consider a juvenile's age
at the time of the offense, his diminished culpability and capacity
for change, the circumstances of the crime, the extent of his
participation in the crime, his family, home and neighborhood
environment, his emotional maturity and development, the
extent that familial and/or peer pressure may have affected him,
his past exposure to violence, his drug and alcohol history, his
ability to deal with the police, his capacity to assist his attorney,
his mental health history, and his potential for rehabilitation.
[Commonwealth v.] Knox, 50 A.3d [732,] 745 [ (Pa.Super.
2012) ] (citing Miller, 132 S.Ct. at 2455) [(remanding for
resentencing a juvenile who had previously received a
mandatory life without parole sentence in violation of Miller, and
instructing trial court to resentence juvenile to either life with
parole or life without parole), appeal denied, 620 Pa. 721, 69
A.3d 601 (2013)]. We agree with the Commonwealth that the
imposition of a minimum sentence taking such factors into
account is the most appropriate remedy for the federal
constitutional violation that occurred when a life-without-parole
sentence was mandatorily applied to Appellant. Batts II, supra
at 297 (first brackets in original).
Batts III, supra, 125 A.3d at 38-39.
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Our review of the transcript of the sentencing hearing belies
Appellant’s contention that the sentencing court “made no finding that
Appellant was irreparably corrupt, permanently incorrigible, or irretrievably
depraved, as Miller and Montgomery require.” Brief for Appellant at 15.
To the contrary, the sentencing court indicated its awareness that because
Appellant had been sixteen years of age at the time of the homicide, “he was
entitled to the relief provided to defendants so situated by our United States
Supreme Court as articulated in Miller versus Alabama and subsequently
adopted by the Pennsylvania Supreme Court with those safeguards
contained in Commonwealth versus Batts.” N.T. Sentencing, 3/13/15, at 4.
The sentencing court further explained to Appellant why it had ordered
presentence and mental health evaluations to prepare for sentencing as
follows:
[O]ver the time that you were awaiting trial, you heard from one
or more attorneys that our Supreme Court decided in Batts that,
in essence, children are different from adults for purposes of
sentence and it requires the Court to conduct what's commonly
referred to as individualized consideration of mitigating
circumstances, particularly the defendant's youth, before a
sentence of life in prison without the possibility of parole can be
imposed. That is because children lack those qualities that inure
to an adult and it is their underdeveloped sense of responsibility
that makes them susceptible to influences and they generally
have a less fixed character than adults.
So for that reason, I ordered the various reports and set
the matter down for sentencing today.
Id. at 7-8.
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Prior to rendering its sentence, the sentencing court heard from the
victim’s grandmother, aunt, and mother, respectively. Id. at 17-24. The
sentencing court also was introduced to various friends and family members
of Appellant all of whom it noted obviously “have great love for him.” Id. at
40. The court indicated that it had reviewed the presentence investigation
report and taken into consideration all the required factors including
Appellant’s need for rehabilitation and society’s need for protection and
further stated the following:
I’ve taken into consideration all the factors I’m required to,
including [Appellant’s] need for rehabilitation and society’s need
for protection. I’ve reviewed the presentence investigation, I’ve
reviewed the mental health examination, and I have gone over
the memorandum prepared by the Assistant District Attorney.
With respect to [Appellant’s] chronological age, we have
referred to him as being sixteen, but he was more a seventeen
year old than a sixteen year old, obviously still a year and a
month short of reaching his majority. But that is to be
considered.
Regarding his level of maturity, he’s now fathered two
children. His home environment was not the best but certainly
not the worst. He was co-parented at least until his father died
by both his mother and his father.
I’ll say this with some trepidation. I hope it doesn’t come
back to haunt me. But clearly, men who look like me are not in
their children’s lives to the degree that they should be and that
causes problems, in my humble opinion.
There was nothing in the record that suggested that
[Appellant] was subject to domestic violence, physical violence
or sexual violence. He was the architect of this crime. He bears
total responsibility for this crime. It was a vicious killing in the
light of day, without any concern for the fact that somebody
might see me and tell the authorities who did this.
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Unlike the previous case I referenced, [6] it wasn’t one on
one, two men face to face. The victim was shot in the back for
the sin of living in the wrong neighborhood by a young man with
no underlying mental health problems, who has a history of
violence and demonstrating he was not amenable to
rehabilitation. [7]
I have heard from the family of the deceased. I’ve seen
members of [Appellant’s] family array themselves here and
stand up, and it’s obvious they have great love for him.
Our Supreme Court has said that life in prison for a crime
committed by a juvenile should be rare. It is most unfortunate
that this is one of those rare cases.
Id. at, 3/13/15, at 38-41.
In light of the foregoing, we find the trial court applied the appropriate
review prior to rendering its sentence and did not abuse its discretion in
considering the relevant sentencing factors set forth in Batts, II. “Absent a
specific directive from our Supreme Court or the General Assembly to do so,
we decline to expand the narrow holding in Miller.” Batts III, supra, 125
A.3d at 43.
Lastly, Appellant asserts the trial court erred in denying his motion to
dismiss based upon the Commonwealth’s violation of Brady v. Maryland,
supra, and consequently, requests this Court to dismiss all charges. “To
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6
The trial court earlier referenced a case wherein a young man had fired six
shots at another in a residential community believing he had been cut off.
The other individual fired back, although no one was killed. N.T. Sentencing,
3/13/15, at 38.
7
Appellant had an extensive history with the juvenile justice system which
commenced in June of 2010 when he had been adjudicated delinquent of
felony robbery. Two months after he was discharged from juvenile
supervision on March 22, 2012, Appellant committed the instant murder.
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succeed on a Brady challenge, the defendant must show: (1) the
Commonwealth suppressed the evidence; (2) the evidence was favorable to
the accused, either because it was exculpatory or impeaching; and (3) the
defendant suffered prejudice. Commonwealth v. Daniels, 628 Pa. 193,
223, 104 A.3d 267, 284 (2014).
Herein Appellant maintains the Commonwealth failed for more than
two years to provide him with a statement of Marcus Pough wherein Mr.
Pough implicated himself in a separate homicide as well as all evidence
relating to the arrest of Daquan Johnson on July 3, 2012, who possessed the
murder weapon used to kill the victim in his waistband. Brief for Appellant
at 29-30.
In his Motion to Dismiss filed on June 26, 2014, Appellant averred that
Mr. Johnson was arrested on July 13, 2012, after fleeing police at which time
the firearm used in the instant homicide was recovered from his person,
although this information was not disclosed to the defense until June 11,
2014. See Motion to Dismiss at ¶ 4. In addition, Appellant indicated that on
June 27, 2012, Mr. Pough provided police with a statement wherein he
implicated himself in a separate homicide and that this statement preceded
Mr. Pough’s statement that he had seen Appellant kill Mr. Pack. Id. at 11.
This information, too, was not provided to the defense until June 11, 2014.
Id. at 12. Appellant reasoned that as the Commonwealth withheld
evidence that was clearly favorable to the defense for nearly two years, he
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had been prejudiced and, therefore, “[n]o other remedy short of dismissal
[would] protect [his] right to due process and a fair trial nor serve the goals
of justice.” Id. at ¶ 14-17.
Prior to his filing of his Motion to Dismiss, Appellant’s motion for a
continuance of trial had been granted on June 23, 2017. The Commonwealth
detailed in its Response thereto, that before Appellant’s preliminary hearing
held on June 5, 2013, the Commonwealth disclosed to the defense that Mr.
Pough had been charged as an accomplice in an unrelated homicide, and
during the hearing defense counsel questioned him regarding those open
charges as well as the statement he provided to homicide detectives in the
instant homicide. See Commonwealth Response to Defense Motion to
Dismiss at ¶ 3. Hearings on Mr. Pough’s own murder case were open to the
public and transcripts thereof were prepared; notwithstanding, “in an effort
to ensure that counsel was adequately prepared for trial, [the ADA] provided
a copy of Mr. Pough’s statement in his own homicide case.” Id.
In addition, on July 3, 2013, the Commonwealth made available to
Appellant a discovery letter wherein “Ballistics Report” was listed. That
entry referenced a six-page report from ballistics in the Philadelphia Police
Department’s Firearm Identification Unit, at the end of which it was indicated
all shots fired at the scene of Mr. Pack’s murder were from the same firearm.
A “Cross Check Request” also was indicated. Id. at ¶ 4. The Commonwealth
went on to reason as follows:
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5. Page six of six of the Ballistics Report which was prepared in
September 2012, describes in detail the results of the cross
check. To a reasonable degree of scientific certainty, all of the
evidence from the homicide scene was fired in “PISTOL P1 of FIU
#123778-DC#1209-028326.” Armed with the district control
number, defense was able to access the public portal of the First
Judicial District Website and find the following information:
defendant’s name, defendant’s attorney, arrest date, arresting
officer, court dates and charges. With reasonable diligence,
defense counsel was able to subpoena the arresting officer,
request discovery, order notes of testimony, interview the
defendant, attend the court dates, and contact counsel for the
defendant. Commonwealth v. Morris, 822 A.2d 684 (Pa. 2003).
All of this information was accessible to the defense. On June
11, 2014, ADA O’Malley, in an effort to ensure that counsel was
adequately prepared for trial, provided a copy of the arrest
paperwork that was provided on June 11, 2014 to the
Commonwealth by the assigned detective regarding P-1.
Id. at ¶ 5.
Upon our review of the certified record, we find the trial court did not
err in failing to afford relief on Appellant’s Brady claim upon finding the
evidence was immaterial to Appellant’s guilt or innocence and that Appellant
had failed to establish the Commonwealth’s conduct unavoidably prejudiced
the jury as to render it incapable of weighing the evidence fairly and arriving
at a just verdict. Trial Court Opinion, filed 6/28/16, at 13 quoting
Commonwealth v. Brown, 605 Pa. 103, 119, 987 A.2d 699, 709 (2009).
Thus, Appellant cannot demonstrate a Brady violation. See Feese, supra.8
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8
Moreover, as the trial court points out, even had the evidence been
provided to Appellant at an earlier date, it would not have altered the
overwhelming evidence of his guilt, which included two eyewitness
(Footnote Continued Next Page)
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Judgment of Sentence Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/8/2017
_______________________
(Footnote Continued)
identifications; therefore he could not have established prejudice. Trial
Court Opinion, filed 6/28/16, at 13.
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