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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
WILLIAM SHONTAY JOHNSON, :
:
Appellant :
: No. 1335 WDA 2015
Appeal from the Judgment of Sentence August 3, 2015
in the Court of Common Pleas of Indiana County Criminal Division
at No(s): CP-32-CR-0001271-2014
BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED FEBRUARY 19, 2016
Appellant, William Shontay Johnson, appeals from the judgment of
sentence entered in the Indiana County Court of Common Pleas following his
conviction by a jury of knowingly or intentionally possessing a controlled
substance,1 manufacture, delivery, or possession with intent to manufacture
or deliver a controlled substance,(“PWID”)2 and conspiracy to deliver a
controlled substance.3 His attorney, Robert F. Manzi, Esq. (“Counsel”), has
*
Former Justice specially assigned to the Superior Court.
1
35 P.S. § 780-113(a)(16).
2
35 P.S. § 780-113(a)(30).
3
18 Pa.C.S. § 903(c).
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filed an Anders4 petition for leave to withdraw. Counsel’s brief presents
four issues: the sufficiency of the evidence, the weight of the evidence, a
due process violation as there were no African American jurors, and the
Commonwealth’s failure to disclose an alleged plea offer to his co-defendant
entered into three days after her testimony. We affirm the judgment of
sentence and grant Counsel’s petition to withdraw.
We glean the facts from the jury trial. On June 17, 2014, Trooper
Becky Fabich contacted Bryan Maines, a confidential informant (“CI”) who
had worked with her on “different cases from before.” N.T., 5/18/15, at 14,
31. Mr. Maines testified that he contacted Appellant and arranged to
purchase drugs from him. Id. Appellant was to meet Maines in the alley by
his house. Id. at 17. Maines testified “if I walk my dog around the alley it
would look less conspicuous than me just waking back and forth.” Id. at 19.
When Maines was in the alley, Appellant and “a female driver pulled up
beside” him. Id. The exchange of money for drugs took place in the car.
Id. at 20. Maines went to the front porch of his house and another officer
arrived and Maines gave him the drugs. Id. at 21. Maines was strip
searched before and after the exchange with Appellant. Id. at 16, 25.
Maines got the money for the transaction from the officers. Id. at 26. He
4
See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
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gave the troopers ten bags of heroin. Id. at 27. Maines testified that he
“wasn’t offered any deal” for his testimony at trial. Id. at 33.
Natawsha Durand testified that she was in the car with Appellant on
the date of the incident. Id. at 42. The vehicle was a Chrysler 200. Id. at
43. Appellant offered her $300 if she would drive the car “and if we got
pulled over for me to tuck the drugs in and he would make sure I was okay
while I was in jail.” Id. at 46. Appellant only held the drugs “when he was
selling to people.” Id. at 47. She drove when they went to meet the person
in the alley. Id. at 48. Ms. Durand testified that Appellant “had rolled his
window down and pulled the dope out of his pocket and gave I guess the CI
a bun and as he gave him a bun, he gave the money, handed me the drugs,
told me to hide it, then we left.” Id. A bun is “10 stamp bags of heroin.”
Id. at 49. Appellant placed the money in his pocket. Id.
A few blocks away from where the exchange took place, they were
pulled over at a red light. Id. Ms. Durand was asked if “any sort of deal
had been offered for [her] in order to testify in this case” and she responded
“[n]o, sir.” Id. at 50. She testified that she was incarcerated at the time of
her testimony in this case. Id. at 55. The District Attorney asked to have
her bail reduced so that she could be released from jail after testifying in the
instant case. Id.
Trooper Karen Lynn Orsini testified that she was employed by the
Pennsylvania State Police in the “vice unit conducting drug, narcotic,
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prostitution details.” Id. at 80. On June 17th, she was “assisting Trooper
Fabich with a buy . . . .” Id. She went with Trooper Christopher Leon “to
watch the informant purchase drugs from a suspect.” Id. at 82. They went
in separate vehicles. Id. at 83. She saw the CI walk onto his front porch.
Id. She “observed the informant sort of standing around the area of the
residence with his dog and then [she] saw a vehicle pull up and [meet] with
the informant.” Id. at 84. The vehicle was “like a tannish Chrysler.” Id.
Two people were in the vehicle. Id. She “saw the informant approach the
passenger’s side window.” Id. She “saw the informant reach in the vehicle
. . . .” Id. at 85. “The vehicle proceeded to drive away and the informant
proceeded to walk down the alley out of my sight.” Id. “Myself and Trooper
Leon . . . followed the vehicle.” Id. A marked car came between her and
the vehicle and stopped the vehicle involved in the incident. Id. She did
not participate in the stop. Id. at 86. Trooper Orsini was “involved in
searching Miss Durand after she was arrested[.]” Id. at 87. Drugs “were
found in her anus[.]” Id. Appellant was also at the station at that time. Id.
at 89.
Trooper Leon testified that he was “currently a retired Pennsylvania
State Police Officer” who had worked in the vice unit. Id. at 90. On June
17th, he was working in Indiana County with Trooper Rebecca Fabich,
Corporal Ronald Zorna, and Trooper Orsini. Id. at 91. They met at the
Indiana Borough Station. Id. “Trooper Fabich had made contact with an
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informant,” Maines, who “had arranged to meet with a subject in order to
purchase heroin.” Id. Trooper Leon went to the informant’s house, brought
him back to the police station and strip searched him. Id. Nothing was
found on the informant. Id. at 92. The purpose of the strip search was
“[t]o ensure that he does not bring any drugs or money into a deal.” Id. at
92-93. Trooper Leon testified that he “took position in the parking lot where
[he] could see up the alley to Mr. Maines’ front door.” Id. at 93. He “had a
clear view of the whole alleyway and his apartment.” Id. at 94.
Trooper Leon testified Maines went with Corporal Zorna to the Rite
Aide parking lot, the original location for the transaction. Id. at 93. The
location changed and Corporal Zorna brought Maines to Maines’ residence.
Id. at 93-94. Corporal Zorna then left. Id. at 95. Trooper Leon observed a
“beige Sebring or Chrysler [come] down the alley, . . . stopped at the
intersection and Mr. Maines approached the passenger side of that vehicle.”
Id. The vehicle drove off and Trooper Leon contacted Trooper Fabich who
was following the vehicle. Id. at 96. Trooper Fabich identified the
passenger of the vehicle as Appellant. Id. Trooper Leon contacted Trooper
Jonathan Andrew Lindsay “to try to get the car stopped.” Id. “ . . . Trooper
Fabrich was in contact with the Indiana Borough Police. They came up
behind me, took position in front of me, at that point stopped the vehicle . .
. . Trooper Lindsay . . . also got in on the traffic stop. I stayed behind.
After everyone was secured, I walked up to the vehicle and that was it.” Id.
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at 96-97. Following the stop, “[b]oth the driver and passenger were pulled
out of the vehicle searched and then removed from the scene and brought
back to Indiana Borough Police Station.” Id. at 97.
Corporal Zorna, supervisor of the Vice Unit in Troop A, testified that on
June 17th he was assisting Trooper Fabich with a purchase of heroin that
took place in Indiana. N.T., 5/19/15, at 4. His “role was going to be to
drive the informant to the location where the drug buy was going to take
place and to do surveillance and watch him.” Id. at 4. He drove the
informant to his apartment and the informant got his dog without going into
the apartment. Id. at 5-6. Corporal Zorna gave the informant $120 in cash
for the drug buy. Id. at 6. He drove the informant to the alley and then
went to the Rite Aide parking lot. Id. at 7. The Corporal could see where
the informant was standing with his dog. Id. After several minutes, a
“beige colored Chrysler came up the alley . . . and stopped in front of his
apartment where he was standing and he walked up to the passenger’s side
of the car and he was leaning in the window.” Id. at 8. After the beige car
left, the Corporal “pulled up next to him. He said he made the deal and he
had the heroin. I reached out. He handed me a pack. It was a bundle of
heroin . . . .” Id. The informant let his dog back into the home. Id. at 9.
The Corporal drove the informant to the Indiana Barracks and he did a strip
search. Id. at 9. He gave the drugs to Trooper Fabich. Id.
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Trooper Lindsay testified that on June 17th he “was notified in
communication with Trooper Fabich that [he] was to make a traffic stop on a
Chrysler sedan. And then [he] identified the vehicle and made a traffic stop
on that said vehicle.” Id. at 12. The passenger of the vehicle was placed
into custody. Id. at 13. He identified the passenger as Appellant. Id.
Trooper Fabich testified that she was assigned to the Troop A Vice
Unit. Id. at 22. She contacted Mr. Maines on June 17th “and asked him if
he could set up anyone that evening . . . he got back to me and stated he
could set up [Appellant.]” Id. at 23. “Trooper Orsini and Trooper Leon went
out and sent up surveillance on the area. [She] along with Corporal Zorna
followed him into the area and then I set up surveillance on the other end of
the alley.” Id. at 25-26. She testified that Appellant
along with a black female had past me, at which time I
was on the phone with Trooper Leon and advised him what
was going on. The car was coming down the alley. I
identified [Appellant] as it past. I went around and
positioned myself . . . to look up the alley, at which time
when I came around, they had parked and Mr. Maines was
walking towards the passenger side.
Id. at 27. The car that she saw was a beige Chrysler 200. Id. at 28. An
Enterprise Rental Agreement “was seized out of the vehicle after we did a
search warrant on it.” Id. Appellant was “[t]he renter on the agreement . .
. .”5 Id. Trooper Fabich identified Appellant as the passenger in the vehicle.
5
The rental agreement was admitted into evidence without objection. Id. at
29.
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Id. at 29. She stated that she saw the informant go “up to the passenger
side, reach[ ] his hand in, an exchange took place, pulled his hand out and
walked away.” Id. at 30. She “called Trooper Lindsay and advised him
which way, the direction of the vehicle and Trooper Leon would be getting in
touch with with him.” Id. at 31. Trooper Fabich then met Corporal Zorna
with the CI and followed them “back to the state police barracks, at which
time Corporal Zorna handed [her] the bundle of heroin . . . .” Id. She
testified that Trooper Lindsay had given her “5 $20 bills that were located on
[Appellant’s] lap, those 5 $20 bills match the serial numbers that we had
given to the confidential informant to make the purchase of the heroin.” Id.
at 34.
Following his conviction, on August 3, 2015, Appellant was sentenced
to three to ten years’ imprisonment for delivery of a controlled substance,
three to ten years’ imprisonment for conspiracy, and six to twelve months’
imprisonment for possession of a controlled substance. All sentences were
to run concurrently. On August 5, 2015, the court amended the sentencing
order to provide that the offense of possession merged with the offense of
delivery. Therefore, no further penalty was imposed for possession of a
controlled substance. Appellant did not file post trial or post sentence
motions.
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This timely appeal followed. Appellant filed a court-ordered Pa.R.A.P.
1925(b) statement of errors complained of on appeal6 and the trial court
filed a responsive opinion. Counsel filed an Anders petition and brief with
this Court.
Initially, we examine whether Counsel complied with the requirements
of Anders, supra, and McClendon, supra, as clarified by the Pennsylvania
Supreme Court in Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
6
We note that in this appeal, Counsel opted to file a Rule 1925(b) statement
and not a Pa.R.A.P. 1925(c)(4) statement of intent to file an Anders brief.
The note to this subsection states, “Even lawyers seeking to withdraw
pursuant to the procedures set forth in Anders . . . and Commonwealth v.
McClendon, . . . 434 A.2d 1185 ([Pa.] 1981) are obligated to comply with
all rules, including the filing of a Statement.” Pa.R.A.P. 1925(c)(4), note.
Instantly, Appellant raised the following issues in his Rule 1925(b)
statement:
1. The evidence presented at trial was not sufficient to
support the verdict against [Appellant].
2. The verdict by the jury is against the weight of the
evidence presented.
3. Due Process violation as there were no African American
jurors on the jury, therefore [Appellant] could not be
judged by a jury of his peers.
4. Discovery and Due Process violation in that the
Prosecution failed to disclose a plea offer that the co-
defendant entered into only three days after her
testimony.
Appellant’s Concise Statement of Matters Complained of on Appeal, 9/11/15.
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This Court must first pass upon counsel’s petition to
withdraw before reviewing the merits of the underlying
issues presented by [the appellant].
Prior to withdrawing as counsel on a direct appeal under
Anders, counsel must file a brief that meets the
requirements established by our Supreme Court in
Santiago. The brief must:
(1) provide a summary of the procedural history and
facts, with citations to the record;
(2) refer to anything in the record that counsel believes
arguably supports the appeal;
(3) set forth counsel’s conclusion that the appeal is
frivolous; and
(4) state counsel’s reasons for concluding that the
appeal is frivolous. Counsel should articulate the
relevant facts of record, controlling case law, and/or
statutes on point that have led to the conclusion that
the appeal is frivolous.
Santiago, 978 A.2d at 361. Counsel also must provide a
copy of the Anders brief to his client. Attending the brief
must be a letter that advises the client of his right to: “(1)
retain new counsel to pursue the appeal; (2) proceed pro
se on appeal; or (3) raise any points that the appellant
deems worth of the court[’]s attention in addition to the
points raised by counsel in the Anders brief.”
Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014)
(some citations omitted). If counsel complies with these requirements, “we
will make a full examination of the proceedings in the lower court and render
an independent judgment [as to] whether the appeal is in fact ‘frivolous.’”
Id. at 882 n.7 (citation omitted).
In the instant appeal, Counsel’s Anders petition avers the following.
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“[A]fter carefully and conscientiously examining the entire record, Counsel
has determined that the appeal of this case is wholly frivolous.” Counsel’s
Pet. to Withdraw as Counsel, 11/30/15, at ¶ 2. He notified Appellant of his
request to withdraw, provided a copy of the brief and petition to withdraw,
and advised him of his right to proceed pro se or with new counsel. Counsel
attached a copy of his letter to Appellant. Furthermore, Counsel’s brief sets
forth the facts and procedural history of this case, pertinent law, and a
discussion on why Appellant’s issues are meritless. He again concludes this
appeal is frivolous. In light of the foregoing, we hold Counsel has complied
with the requirements of Santiago. See Orellana, 86 A.3d at 879-80. We
note Appellant has not filed a pro se or counseled brief. We thus examine
the record to determine whether the issues on appeal are wholly frivolous.
See id. at 882 n.7.
As a prefatory matter, we consider whether the sufficiency of the
evidence issue is waived. In his Rule 1925(b) statement, Appellant avers
the evidence presented at trial was not sufficient to support the verdict. In
Commonwealth v. Williams, 959 A.2d 1252 (Pa. Super. 2008), the
appellant’s
1925(b) statement language d[id] not specify how the
evidence failed to establish which element or elements of
the three offenses for which [he] was convicted. To name
certain witnesses who failed to establish the
Commonwealth’s case says nothing about how the
evidence was insufficient. Which elements of which
offense were unproven? What part of the case did the
Commonwealth not prove?
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In any given case, there may be one or more witnesses
whose testimony fails to prove the charges. Indeed,
perhaps all the witnesses fail to do so. Very well. But how
did they fail? What part of the offenses did the
Commonwealth not establish? What element is it that this
Court is to analyze on appeal?
If [an a]ppellant wants to preserve a claim that
the evidence was insufficient, then the 1925(b)
statement needs to specify the element or elements
upon which the evidence was insufficient. This
Court can then analyze the element or elements on
appeal.
Id. at 1257 (emphasis supplied and citation omitted).
Where the Rule 1925(b) statement “does not specify the allegedly
unproven elements,” the issue is waived. Id. Instantly, Appellant’s Rule
1925(b) statement does not specify the allegedly unproven elements upon
which the evidence was insufficient. Therefore, we could find the issue is
waived. See id. However, in Commonwealth v. Laboy, 936 A.2d 1058
(Pa. 2007), the Pennsylvania Supreme Court found that in a relatively
straightforward drug case, this Court did not have to find waiver based upon
the Rule 1925(b) statement. Id. at 1060. In the case at bar, we decline to
find the issue waived. See id.
“A claim challenging the sufficiency of the evidence is a question of
law.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).
[T]he critical inquiry on review of the sufficiency of the
evidence to support a criminal conviction . . . does not
require a court to ask itself whether it believes that the
evidence at the trial established guilt beyond a reasonable
doubt. Instead, it must determine simply whether the
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evidence believed by the fact-finder was sufficient to
support the verdict. . . .
* * *
When reviewing the sufficiency of the evidence, an
appellate court must determine whether the evidence, and
all reasonable inferences deducible from that, viewed in
the light most favorable to the Commonwealth as verdict
winner, are sufficient to establish all of the elements of the
offense beyond a reasonable doubt.
Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-36, 1237 (Pa. 2007)
(citations and quotation marks omitted). “In applying the above test, we
may not weigh the evidence and substitute our judgment for the fact-finder.
. . . The Commonwealth may sustain its burden of proving every element of
the crime beyond a reasonable doubt by means of wholly circumstantial
evidence.” Commonwealth v. Buford, 101 A.3d 1182, 1186 (Pa. Super.
2014) (citation omitted), appeal denied, 114 A.3d 415 (Pa. 2015).
The Crimes Code defines the offense of knowingly or intentionally
possessing a controlled substance as follows:
Knowingly or intentionally possessing a controlled or
counterfeit substance by a person not registered under this
act, or a practitioner not registered or licensed by the
appropriate State board, unless the substance was
obtained directly from, or pursuant to, a valid prescription
order or order of a practitioner, or except as otherwise
authorized by this act.
35 P.S. § 780-113(a)(16).
Manufacture, delivery, or possession with intent to manufacture or
deliver, a controlled substance is defined as follows:
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Except as authorized by this act, the manufacture,
delivery, or possession with intent to manufacture or
deliver, a controlled substance by a person not registered
under this act, or a practitioner not registered or licensed
by the appropriate State board, or knowingly creating,
delivering or possessing with intent to deliver, a
counterfeit controlled substance.
35 P.S. § 780-113(a)(30).
Conspiracy is defined as follows:
(a) Definition of conspiracy.─A person is guilty of
conspiracy with another person or persons to commit a
crime if with the intent of promoting or facilitating its
commission he:
(1) agrees with such other person or persons that they
or one or more of them will engage in conduct which
constitutes such crime or an attempt or solicitation to
commit such crime.
18 Pa.C.S. § 903(a)(1).
The crime of possession of a controlled substance “is a lesser-included
offense of both possession with the intent to deliver a controlled substance,
and delivery of a controlled substance.” Commonwealth v. DeLong, 879
A.2d 234, 237 n.2 (Pa. Super. 2005) (citations omitted). PWID is
established when the Commonwealth “proves beyond a reasonable doubt
that the defendant possessed a controlled substance with the intent to
deliver it.” Commonwealth v. Little, 879 A.2d 293, 297 (Pa. super.
2005).
The term delivery, as used in [section 780-133(a)(30)], is
defined by the Act as “the actual, constructive, or
attempted transfer from one person to another of a
controlled substance, other drug, device or cosmetic
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whether or not there is an agency relationship.” 35 P.S. §
780-102. Thus, for a defendant to be liable as a principal
for the delivery of a controlled substance there must be
evidence that he knowingly made an actual, constructive,
or attempted transfer of a controlled substance to another
person without the legal authority to do so.
Commonwealth v. Murphy, 844 A.2d 1228, 1233-34 (Pa. 2004).
Finally, “[t]o sustain a conviction for criminal conspiracy, the
Commonwealth must establish that the defendant (1) entered into an
agreement to commit or aid in an unlawful act with another person or
persons, (2) with a shared criminal intent and (3) an overt act was done in
furtherance of the conspiracy.” Commonwealth v. Hennigan, 753 A.2d
245, 253 (Pa. Super. 2000). In Commonwealth v. Johnson, 719 A.2d
778 (Pa. Super. 1998) (en banc), this Court opined:
An explicit or formal agreement to commit crimes can
seldom, if ever, be proved and it need not be, for proof of
a criminal partnership is almost invariably extracted from
the circumstances that attend its activities. Thus, a
conspiracy may be inferred where it is demonstrated that
the relation, conduct, or circumstances of the parties, and
the overt acts of the co-conspirators sufficiently prove the
formation of a criminal confederation.
Id. at 785 (citations and quotation marks omitted).
In the case at bar, the evidence of record supports Appellant’s
convictions. Trooper Fabich contacted the CI to arrange to purchase drugs
and the CI testified he contacted Appellant. Corporal Zona gave the CI $120
to buy the heroin. Ms. Durand testified she was in the car with Appellant on
June 17th. She saw him take the heroin out of his pocket and give it to the
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CI. Trooper Orsini went with Trooper Leon to watch the informant purchase
the drugs. She testified drugs were found in Ms. Durand’s anus. Trooper
Leon saw the CI approach the passenger side of the vehicle in the alley.
After the beige Chrysler left the alley, the CI gave Corporal Zorna a bundle
of heroin. Trooper Lindsey made the traffic stop of the vehicle involved in
the incident and he placed Appellant into custody.
Viewing the evidence in the light most favorable to the Commonwealth
as verdict winner, we find it is sufficient to establish all of the elements of
the offenses beyond a reasonable doubt. See Ratsamy, 934 A.2d at 1237;
Murphy, 844 A.2d at 1233-34; Buford, 101 A.3d at 1186; Little, 879 A.2d
at 297; Hennigan, 753 A.2d at 253; Johnson, 719 A.2d at 784-85. We
agree with counsel’s determination that Appellant’s sufficiency challenge is
frivolous.
Next, we consider whether the weight of the evidence claim is waived.
In Commonwealth v. Sherwood, 982 A.2d 483 (Pa. 2009), the Supreme
Court opined:
[The a]ppellant did not make a motion raising a weight of
the evidence claim before the trial court as the
Pennsylvania Rules of Criminal Procedure require. See
Pa.R.Crim.P. 607(A).
* * *
[An a]ppellant’s failure to challenge the weight of the
evidence before the trial court deprived that court of an
opportunity to exercise discretion on the question of
whether to grant a new trial. Because “appellate review of
a weight claim is a review of the exercise of discretion, not
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of the underlying question of whether the verdict is against
the weight of the evidence,” Commonwealth v. Widmer,
[ ] 744 A.2d 745, 753 ([Pa.] 2000), this Court has nothing
to review on appeal. We thus hold that [the a]ppellant
waived his weight of the evidence claim because it was not
raised before the trial court as required by Pa.R.Crim.P.
607.
Id. at 494 (2009) (footnotes and some citations omitted). We reiterate that
“we may not weigh the evidence and substitute our judgment for the fact-
finder.” See Buford, 101 A.3d at 1186. In the case sub judice, Appellant
did not challenge the weight of the evidence before the trial court.
Therefore, the issue is waived. See id.
Third, the Anders brief raises the issue of whether there was a due
process violation as there were no African American jurors on the jury.
Appellant avers that there were no African American jurors within the jury
array, and therefore, Appellant is not claiming that specific African American
jurors were excluded. Anders Brief at 17.
We consider whether this issue is waived. Pa.R.Crim.P. 625(B)(1)7
provides:
(B) Challenge to the Array.
(1) Unless opportunity did not exist prior thereto, a
challenge to the array shall be made not later than 5 days
before the first day of the week the case is listed for trial
of criminal cases for which the jurors have been
summoned and not thereafter, and shall be in writing,
7
We note that Pa.R.Crim.P. 630 was renumbered Rule 625 on July 7, 2015,
effective October 1, 2015. Pa.R.Crim.P. 625, note.
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specifying the facts constituting the ground for the
challenge.
Pa. R. Crim. P. 625. In the instant case, there were no written motions to
the trial court challenging the jury array.8 “By failing to timely challenge the
jury array, appellant has waived any objection he may have had.”
Commonwealth v. Jackson, 486 A.2d 431, 436 (Pa. Super. 1984).9 This
issue is therefore waived. See id.
Lastly, the Anders brief raises the issue of whether there was a
discovery and due process violation in that the prosecution failed to disclose
a plea offer that Ms. Durand entered into only three days after her
testimony. Our review of a claim of a violation of Brady v. Maryland, 373
U.S. 83 (1963), is governed by the following principles:
To establish a violation of Brady, a defendant is
required to demonstrate: (1) evidence was suppressed by
the Commonwealth, either willfully or inadvertently; (2)
the evidence was favorable to the defendant; and (3) the
evidence was material, in that its omission resulted in
prejudice to the defendant. Commonwealth v. Lambert,
[ ] 884 A.2d 848, 854 ([Pa.] 2005); see also Kyles v.
Whitley, 514 U.S. 419, 433–34, [ ] (1995) (evidence is
material under Brady, and the failure to disclose it
justifies setting aside a conviction, only where there exists
8
The trial court found that “any challenge to the jury array would be
waived” because “there were no written motions made to the trial court
challenging the jury array.” Trial Ct. Op., 10/8/15, at 9.
9
We note that the Jackson Court refers to Pa.R.Crim.P. 1104(b). Rule
1104(b) is substantively the same as Rule 625(b). See id. at 436.
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a reasonable probability that had the evidence been
disclosed the result at trial would have been different.).
Conversely, “[t]he mere possibility that an item of
undisclosed information might have helped the defense, or
might have affected the outcome of the trial does not
establish materiality in the constitutional sense.” In
determining whether a “reasonable probability” of a
different outcome has been established, the “question is
not whether the defendant would more likely than not
have received a different verdict with the evidence, but
whether in its absence he received a fair trial, understood
as a trial resulting in a verdict worthy of confidence.”
Thus, a “reasonable probability” of a different result is
established when the government’s suppression of
evidence “undermines confidence in the outcome of the
trial.” Importantly, “in order to be entitled to a new trial
for failure to disclose evidence affecting a witness’
credibility, the defendant must demonstrate that the
reliability of the witness may well be determinative of his
guilt or innocence.” In engaging in this analysis, a
reviewing court is not to review the undisclosed evidence
in isolation, but, rather, the omission is to be evaluated in
the context of the entire record.
Commonwealth v. Dennis, 17 A.3d 297, 308-09 (Pa. 2011) (some
citations omitted). “Mere conjecture as to an agreement between the
prosecution and witness is insufficient to establish a Brady violation,
however.” Commonwealth. v. Bomar, 104 A.3d 1179, 1190 (Pa. 2014).
In the case at bar, the trial court opined:
Here, there is no evidence on the record that the co-
defendant in this case was offered a deal to testify against
[Appellant] or that there was a promise or understanding
between the Commonwealth and the witness before the
witness testified. The co-defendant in question, Natawsha
Durand, testified on direct examination that no sort of deal
had been offered to her for her testimony. On cross
examination, Ms. Durand testified that no promises had
been made to her for her testimony, nor had she received
any benefits for her testimony in this case.
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There was testimony elicited through cross examination
that, after Ms. Durand testified at the preliminary hearing
in this case, the Commonwealth made a motion to have
her bail reduced, thereby allowing her to be released from
prison. However, Ms. Durand further stated that there was
no offer to have her bail reduced if she testified at the
preliminary hearing and that she did not know the
Commonwealth had made that bail reduction motion until
she was released from jail later that day.
Thus, the only testimony presented on this issue
consists of the witness denying any deal, promise, or
understanding with the Commonwealth and that her bail
was reduced after she testified at the preliminary hearing
without her knowing the reduction would occur. Therefore,
since there was testimony denying any promise or
understanding, [Appellant] has only presented mere
conjecture that there was a promise or understanding in
place between the Commonwealth and Ms. Durand; given
these circumstances, no Brady violation occurred.
Trial Ct. Op., 10/18/15, at 10-11 (citations omitted). We agree with the trial
court’s analysis, and thus agree with Counsel’s determination that there is
no merit to this claim. See Bomar, 104 A.3d at 1190; Dennis, 17 A.3d at
308-09.
Our independent review of the record reveals no other issues of
arguable merit. See Santiago, 978 A.2d at 355 n.5; Orellana, 86 A.3d at
882 n.7. Accordingly, we grant counsel’s petition for leave to withdraw and
affirm the judgment of sentence.
Judgment of sentence affirmed. Counsel’s petition for leave to
withdraw granted.
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J.S17038/16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/19/2016
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