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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KENNETH O’CONNOR
Appellant No. 3511 EDA 2013
Appeal from the PCRA Order November 20, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010115-2007
BEFORE: ALLEN, J., LAZARUS, J., and MUNDY, J.
MEMORANDUM BY MUNDY, J.: FILED DECEMBER 24, 2014
Appellant, Kenneth O’Connor, appeals from the November 20, 2013
order denying his first petition for relief filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we
affirm.1
A previous panel of this Court set forth the relevant factual and
procedural background of this case as follows.
On March 3, 2007, [Appellant] and co-
defendant [Patrick] (Horgan) were involved in an
altercation with Jonathan Johnson (victim) in the
victim’s home. After the victim was knocked
unconscious, [Appellant] and Horgan took turns
stomping on the victim’s head; the victim was
hospitalized and died of blunt force trauma to the
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1
The Commonwealth elected not to file a brief in this matter.
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head five days later. The relevant events began
twenty-four hours earlier.
On March 2, 2007, [Appellant] and Horgan
spent the day consuming drugs and large amounts of
alcohol at an apartment complex located at 8225
Roosevelt Boulevard in Philadelphia with some of the
residents, “Eileen,” Angela Mancini, and “Anna.” At
some point during the evening, Horgan lost his
wallet. While he was leaving the apartment on the
second floor, he realized he did not have it. Horgan
believed “Anna,” a second-floor resident, had stolen
it; he became enraged and furiously banged on her
door, telling her to return it. Then, [Appellant] found
Horgan’s wallet at the bottom of the staircase of the
public hallway and returned it to him. [Appellant
and Horgan] and Angela Mancini left the apartment
building, and walked south down Roosevelt
Boulevard. Shortly thereafter, in the early morning
of March 3, 2007, [Appellant and Horgan] were
stopped by Philadelphia Police Officer James Strohm,
who was responding to a call about a disturbance at
8223 or 8225 Roosevelt Boulevard.
When Officer Strohm questioned Horgan as to
why he was at the apartment building, Horgan
replied that he was there “to kick the s[**]t out of
the n[**]er for breaking his girlfriend’s leg.”
[Appellant] also said that he was there to “beat the
s[**]t out of him too.” As he spoke to them, Officer
Strohm smelled alcohol on the two men’s breath.
Officer Strohm discovered that [Appellant and
Horgan] had outstanding warrants for their arrest,
and took them into custody. When they arrived at
the Eighth Police District to be processed for their
summary warrants, Horgan was still agitated about
his wallet. When Officer James Gillespie asked
Horgan to remove all items from his person, he
threw his wallet on the table and stated that there
was nothing inside it because “the f[**]king sp[*]c
b[**]ch took my money and I’m going to go back
and get them – going to go back and kill them.”
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[Appellant and Horgan] were released from
police custody between 7:30 and 8:00 a.m. on March
3, 2007. They then proceeded to walk back to 8225
Roosevelt Boulevard to find Horgan’s wallet, because
he once again claimed it was missing. Although he
wanted to go home, [Appellant] decided to stay with
Horgan.
[Appellant] and Horgan returned briefly to the
first-floor apartment occupied by “Eileen” and Ms.
Mancini, then left, bought a case of beer, and drank
six cans each at the park. They next bought some
pizza and went to [Appellant’s] friend’s house to
drink some more beer. Between 2:00 and 3:00 p.m.
[Appellant and Horgan] left the house, picked up
vodka, and mixed ice tea, which they bought at the
Acme [Market] with the vodka. They drank this on a
picnic table with Peter Fedorin, whom they ran into
at the Acme. [Appellant and Horgan] separated from
Mr. Fedorin and eventually decided to go to the
victim’s house to “get off the street.”
At approximately 5:00 on the evening of March
3, 2007, they arrived at the victim’s apartment,
located at 8223 Roosevelt Boulevard, right next door
to the apartment where the previous evening’s
events had occurred. [Appellant and Horgan] rang
the victim’s bell and he walked down the stairs to
open the security door. But, before allowing them
upstairs to his apartment, the victim asked
[Appellant], “Pat is going to be cool, right[?]”
[Appellant] responded, “Yeah, everything is going to
be all right.” The victim then opened the outer
security door and the three men walked upstairs to
[the victim’s] studio apartment.
Once upstairs, they sat around the victim’s
wooden kitchen table. They drank vodka mixed with
iced tea, drank beer, and smoked a bag of crack
[Appellant] had bought the previous night. Peter
Fedorin arrived approximately thirty minutes later
with another bottle of vodka, which the four men
shared. Meanwhile Ms. Joniec, the victim’s girlfriend,
was asleep in the next room of the studio apartment.
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Horgan mentioned that he was frustrated over
losing his wallet and stated, “I can’t believe I lost my
f[***]ing money.” The victim told him to shut up.
Angry at the victim’s reaction, Horgan accused him
of stealing his wallet and a loud argument ensued.
The argument calmed down at first, but then
escalated. Because the argument was “getting
heated,” Mr. Fedorin piped in and asked [Appellant]
to stop the altercation.
[Appellant] separated Horgan and the victim
by shoving each of them. The victim then assumed
a karate stance and told [Appellant and Horgan] to
leave his apartment. [Appellant] told the victim to
“knock this s[**]t off.” The victim then hit
[Appellant] with a jab on the side of the ear.
[Appellant] wrapped his arms around the victim in a
“headlock hug,” and started wrestling with him.
They continued wrestling and fell onto the wooden
kitchen table, causing it to collapse.
During their fall, [Appellant] landed on the
victim. [Appellant] allowed the victim to stand up.
A fist fight then broke out between the victim and
[Appellant and Horgan]. The victim defended
himself, fought back with his fists, and fell down a
few times. He later grabbed one of the legs from the
broken table (the table leg), raised it over his
shoulder in a batting stance, and again told
[Appellant and Horgan] to leave his apartment. He
also shouted at Ms. Joniec, who was now awake, to
get his gun from the closet.
Meanwhile, the victim struck [Appellant] in the
head with the table leg, causing [Appellant] to fall
near Mr. Fedorin – who remained seated on a stool
throughout the ensuing fight. Horgan picked up a
chair and struck the victim on his side once, causing
the victim to loosen his grip on the table leg.
[Appellant] grabbed the table leg and started beating
the victim’s head with it, and the victim collapsed.
The victim was unconscious and was bleeding from
his head. While the victim was unconscious on the
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ground, [Appellant] and Horgan took turns stomping
on his head.
Ms. Joniec began screaming and telling
[Appellant and Horgan] to stop because the victim
was unconscious. Horgan pulled [Appellant] towards
the front door. However, [Appellant] yanked his arm
away from Horgan’s grip and stomped down on the
victim’s head one last time before finally leaving the
apartment.
Once [Appellant and Horgan] left, Ms. Joniec
ran to the fire station next door to get help. On her
way out of the apartment, Ms. Joniec saw Horgan
trying to get back into the apartment – kicking the
outer door and ringing all of the doorbells. Horgan
was screaming that the victim “hadn’t had enough
yet.” Horgan warned Ms. Joniec “not to say anything
or he’d kill [her].” When Ms. Joniec returned from
the fire station with a medic, [Appellant and Horgan]
were gone.
The victim was taken to the hospital on March
3, 2007 and was pronounced dead on March 8,
2007. Dr. Bennett Preston, an expert in forensic
pathology, testified to a reasonable degree of
medical certainty that the cause of death was
“multiple blunt force injuries to the head.” In
particular, two skull fractures caused cerebral
hemorrhaging, which affected the victim’s breathing
and eventually led to his death. Dr. Preston also
testified that the victim had various lacerations and
abrasions on the head and back that were consistent
with having been stomped on and having been
struck with a table leg.
[Appellant and Horgan] also suffered severe
head injuries requiring hospitalization. Horgan was
found across Roosevelt Boulevard at Hoffnagle Street
and taken to Frankford Torresdale Hospital, where he
had his head stapled. From there, Horgan was
arrested and taken to the Fifteenth Police District
holding cell, where he fainted and was taken to
Frankford Hospital[’s] Frankford Division for five
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days. [Appellant] managed to make it to his
mother’s house on the night of March 3, 2007, and
she later took him to see Dr. Linn Carleton on March
5, 2007. After surrendering himself to the
authorities, [Appellant] was taken to Hahnemann
Hospital and later spent five weeks in the Detention
Center’s Infirmary.
Commonwealth v. O’Connor, 4 A.3d 194 (Pa. Super. 2010) (unpublished
memorandum at 1-7) (some brackets in original; footnotes and internal
citations omitted), appeal denied, 9 A.3d 628 (Pa. 2010), quoting Trial Court
Opinion, 6/26/09, at 1-7.
On September 4, 2007, the Commonwealth filed an information,
charging Appellant with one count each of murder in the third degree,
criminal conspiracy, and possession of an instrument of a crime.2 Appellant
proceeded to a bench trial, at the conclusion of which, the trial court found
Appellant guilty of third-degree murder, but not guilty of the remaining two
charges. On October 30, 2008, the trial court imposed a sentence of eight
to 20 years’ imprisonment, to be followed by 20 years’ probation. On
November 7, 2008, Appellant filed a timely post-sentence motion, which the
trial court denied on March 9, 2009. Appellant filed a timely notice of appeal
to this Court. This Court affirmed the judgment of sentence on May 17,
2010. Id. at 1. Our Supreme Court denied Appellant’s petition for
allowance of appeal on October 26, 2010. Commonwealth v. O’Connor, 9
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2
18 Pa.C.S.A. §§ 2502(c), 903(a)(1), and 907(a), respectively.
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A.3d 628 (Pa. 2010). Appellant did not seek a writ of certiorari from the
United States Supreme Court.
On October 11, 2011, Appellant filed a timely pro se PCRA petition.
The PCRA court appointed counsel who filed amended petitions on May 24,
2012 and June 25, 2012. The Commonwealth filed a motion to dismiss on
October 3, 2012. The PCRA court conducted an evidentiary hearing on
November 20, 2013, at the conclusion of which, the PCRA court denied
Appellant’s PCRA petition in open court. On December 10, 2013, Appellant
filed a timely notice of appeal.3
On appeal, Appellant raises the following five issues for our review.
1. Did the PCRA court err as a matter of law in
finding that the Commonwealth’s central
witness was not threatened when it was
undisputed that police seized and detained her
overnight against her will, without any judicial
authority to do so, and only agreed to release
her once she testified?
2. Did the PCRA court err as a matter of law in
finding that undisclosed evidence of official
threats against and promises to its central
witness to secure her testimony was not
material where the [PCRA] court applied a
more restrictive standard than the governing
rule under Brady v. Maryland[, 373 U.S. 83
(1963)] simply because [Appellant] raised this
due process claim at the PCRA stage rather
than on direct appeal?
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3
Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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3. Did the PCRA court err as a matter of law in
failing to address how competent defense
counsel could have used this evidence of
threats and promises and, instead, relied
exclusively on the witness’s subjective opinion
that the threats and promises did not affect
her testimony?
4. Does the record support the findings of the
PCRA court where it failed to consider the
undisclosed evidence that the police promised
the witness that she would be released from
custody only after she cooperated against
Appellant and also disregarded the undisclosed
evidence that police threatened her with
perjury if she refused to testify?
5. Did the PCRA court err as a matter of law in
failing to consider the objective weakness of
the Commonwealth’s case against Appellant
and the strength of his defense in its overall
materiality analysis?
Appellant’s Brief at 3.
We begin by noting our well-settled standard of review. “In reviewing
the denial of PCRA relief, we examine whether the PCRA court’s
determination is supported by the record and free of legal error.”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation
marks and citation omitted). “The scope of review is limited to the findings
of the PCRA court and the evidence of record, viewed in the light most
favorable to the prevailing party at the trial level.” Commonwealth v.
Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). “It is well-settled
that a PCRA court’s credibility determinations are binding upon an appellate
court so long as they are supported by the record.” Commonwealth v.
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Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this
Court reviews the PCRA court’s legal conclusions de novo. Commonwealth
v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).
Although Appellant phrases his issue on appeal in five separate parts
in his statement of questions presented, he combines them all into one issue
in the argument section of his brief. We therefore elect to address all of his
issues together. Essentially, Appellant avers that the PCRA court erred when
it concluded that the Commonwealth did not commit a Brady violation when
it failed to disclose to the defense that its chief witness, Joniec, was allegedly
threatened and held against her will by law enforcement to compel her
testimony. Appellant’s Brief at 13. Specifically, Appellant complains that the
PCRA court erred when it concluded that this undisclosed evidence was not
material for Brady purposes. Id. at 14.
“Under Brady, the State violates a defendant’s right to due process if
it withholds evidence that is favorable to the defense and material to the
defendant’s guilt or punishment.” Smith v. Cain, 132 S. Ct. 627, 630
(2012) (citation omitted). “Thus, to establish a Brady violation, an
appellant must prove three elements: (1) the evidence at issue is favorable
to the accused, either because it is exculpatory or because it impeaches; (2)
the evidence was suppressed by the prosecution, either willfully or
inadvertently; and (3) prejudice ensued.” Commonwealth v. Weiss, 81
A.3d 767, 783 (Pa. 2013) (citation omitted).
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Pursuant to Brady and its progeny, the
prosecutor has a duty to learn of all evidence that is
favorable to the accused which is known by others
acting on the government’s behalf in the case,
including the police. Kyles v. Whitley, 514 U.S.
419, 437 (1995). Pursuant to Kyles, “the
prosecutor’s Brady obligation clearly extends to
exculpatory evidence in the files of police agencies of
the same government bringing the prosecution.”
Commonwealth v. Burke, 781 A.2d 1136, 1142
([Pa.] 2001). Moreover, there is no Brady violation
when the defense has equal access to the allegedly
withheld evidence. See Commonwealth v. Spotz,
896 A.2d 1191, 1248 ([Pa.] 2006) (“It is well
established that no Brady violation occurs where the
parties had equal access to the information or if the
defendant knew or could have uncovered such
evidence with reasonable diligence[]” (internal
citation omitted)).
Id. (parallel citations omitted).
In this case, Joniec testified at the PCRA hearing that she told law
enforcement on three occasions that she did not wish to testify in court. The
first instance was right before Appellant’s preliminary hearing, but the
detectives told her that “[she had] to go” to testify. N.T., 11/20/13, at 9.
The second time was approximately one to two weeks before Appellant’s
trial. Joniec asked one of the detectives what would happen if she refused
to testify at Appellant’s trial, and the detective responded that she would be
charged with perjury. Id. at 14. The third instance was on the second day
of Appellant’s trial, where Joniec testified that a corrections officer informed
her that if she did not get up to go testify, she would be placed in solitary
confinement. Id. at 16, 29.
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Joniec testified that the primary reason she did not wish to testify was
because “[she has] social anxiety and it’s really hard for [her] to get up in
front of people.” Id. at 20. When Joniec does get up in front of a crowd she
tends to “get panic attacks and [] get[s] sick.” Id. at 20, 24. Joniec
testified that the detectives “treated [her] well.” Id. at 23. Joniec also
agreed that they were nice to her. Id. Most importantly, Joniec testified
that none of the conduct she described amounted to her feeling any
pressure to lie at Appellant’s trial. Id. at 29. To the contrary, Joniec
confirmed at the PCRA hearing that her trial testimony, including her in-
court identification of Appellant was “truthful.” Id. at 32.
As noted above, the Supreme Court has held that evidence is material
under Brady when “the likelihood of a different result is great enough to
‘undermine[ ] confidence in the outcome of the trial.’” Smith, supra,
quoting Kyles, supra at 434. We agree with the PCRA court that the
undisclosed evidence was relevant to Appellant’s trial, as it bore on Joniec’s
credibility. Nevertheless, the fact that said statements are relevant does not
render them material under Brady. As the PCRA court observed, Joniec
testified at the PCRA hearing that her testimony at trial was truthful, and the
reason she did not want to come to court was solely because of her social
anxiety about getting in front of crowds. N.T., 11/20/13, at 20, 24, 32. At
best, “the officers influenced Joniec to appear in court, but [] the content of
her testimony was unaffected.” PCRA Court Opinion, 5/13/14, at 10.
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In addition, at trial, even assuming arguendo that the jury would flatly
reject Joniec’s testimony, the Commonwealth presented other direct and
circumstantial evidence identifying Appellant as a perpetrator of the crime.
The Commonwealth presented the testimony of Peter Fedorin, who identified
Appellant as one of the perpetrators of the crime. N.T., 9/9/08, at 29-32.
The Commonwealth also presented the testimony of Philadelphia Police
Officer James Strohm. Officer Strohm testified that Appellant was outside
the victim’s residence shortly before the murder and stated that he was
there to “beat the s[**]t out of [the victim].” N.T., 9/8/08, at 34. Based on
these considerations, we conclude that law enforcement’s conduct regarding
Joniec’s trial testimony does not “undermine [our] confidence” in Appellant’s
conviction.4 Smith, supra. Therefore, Appellant is not entitled to relief
under Brady.
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4
Because we conclude that the undisclosed evidence does not meet the
materiality test for Brady, we need not address Appellant’s issue where he
argues the PCRA court erroneously imposed a higher standard under the text
of the PCRA, independent of what the Federal Constitution requires.
Compare Commonwealth v. Ly, 980 A.2d 61, 76 (Pa. 2009) (stating,
“[a]s to Brady claims advanced under the PCRA, a defendant must
demonstrate that the alleged Brady violation ‘so undermined the truth-
determining process that no reliable adjudication of guilt or innocence could
have taken place[]’”), and 42 Pa.C.S.A. § 9543(a)(2)(i) (same), with
Commonwealth ex. rel. Dadario v. Goldberg, 773 A.2d 126 (Pa. 2001)
(stating, “the language from Section 9543(a)(2)(ii) requiring proof that
counsel’s ineffectiveness ‘so undermined the truth-determining process that
no reliable adjudication of guilt or innocence could have taken place’
[embodies] the prejudice element of the Sixth Amendment standard for
ineffectiveness claims articulated in Strickland [v. Washington, 466 U.S.
(Footnote Continued Next Page)
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Based on the foregoing, we conclude the PCRA court properly denied
Appellant’s PCRA petition. See Fears, supra. Accordingly, the PCRA
court’s November 20, 2013 order is affirmed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/24/2014
_______________________
(Footnote Continued)
668 (1984)]”), and 42 Pa.C.S.A. § 9543(a)(2)(ii) (containing same
“undermining” clause as Section 9543(a)(2)(i)).
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