Com. v. McGuigan, D.

J-S67018-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONALD J. MCGUIGAN :
:
Appellant : No. 222 EDA 2018

Appeal from the PCRA Order December 18, 2017
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0000436-2005,
CP-15-CR-0001904-2005, CP-15-CR-0001905-2005,
CP-15-CR-0001906-2005, CP-15-CR-0001907-2005,
CP-15-CR-0002093-2008, CP-15-CR-0002094-2008,
CP-15-CR-0002099-2008, CP-15-CR-0002187-2008,
CP-15-CR-0004199-2006, CP-15-CR-0004283-2005,
CP-15-CR-0004284-2005

BEFORE: OTT, J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.: FILED MARCH 18, 2019

Appellant Donald J. McGuigan appeals pro se from the order denying his

first Post Conviction Relief Act1 (PCRA) petition after an evidentiary hearing

limited to some of his issues. On appeal, Appellant raises multiple claims,

including that he was not granted a full and fair PCRA evidentiary hearing,

that trial counsel was ineffective in litigating a purported Pa.R.Crim.P. 600

violation, and that the Commonwealth violated Brady v. Maryland, 373 U.S.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
J-S67018-18

83 (1963). Appellant also alleges errors in his stipulated bench trial and claims

that his Sixth Amendment right to conflict-free counsel was violated. We

affirm.

We state the facts and procedural history as set forth by a prior panel

of this Court:

In November of 2004, Appellant was arrested and held on state
drug charges in California as he was unable to post bail. Several
weeks later, charges were also filed against him in Pennsylvania,
and a Chester County arrest warrant issued. After he had been
held for California for 30 days, the state charges there were
withdrawn, and federal charges were instituted on which he was
held without bail for the next 2½ years.

In March of 2005, Appellant was charged at 4 more case numbers
with drug sales to one Gladys Haase (county cases), and warrants
issued which the Chester County Enforcement Bureau formally
requested California authorities to lodge as detainers against
Appellant in California. Throughout the time Appellant was in
custody in California, both the Chester County extradition
coordinator and a deputy district attorney regularly telephoned
California authorities to determine whether California state
charges had been resolved, making Appellant available for
extradition and local prosecution. Both were repeatedly told that
proceedings against him were in train [sic]. In the meantime,
more Pennsylvania charges were brought, (state police cases),
and in October of 2006, all pending charges were bound over for
court. In March, April, May, July, August, September, and
November of 2006 continuance orders were entered and the run
time charged to Appellant given his incarceration in another state;
although he was sent notice, neither he nor his local attorney
responded in any way.

The attorney, John Duffy, Esq., [of the firm Duffy, Green, and
Redmond,] had been retained by Appellant to “represent[ ] [his]
interests[,]” even before Pennsylvania charges had been brought
against him. However, although Mr. Duffy was engaged in
negotiations with the Chester County district attorney, he made
no entry of appearance until Appellant was finally returned to
Pennsylvania. In February of 2007, the federal charges against

-2-
J-S67018-18

Appellant were dropped, but he remained incarcerated on the
Chester County detainers. In March of 2007, Appellant waived
extradition; in April yet another continuance order charged to
Appellant elicited no response.

Upon his arrival in Pennsylvania in May of 2007, Appellant
successfully requested remand for preliminary hearings and
moved for a continuance; hearings were scheduled for September
28, 2007. However, in October, the county cases were voluntarily
withdrawn before the magisterial district judge,[2] as Haase, the
essential witness in the county cases, had absconded and her
whereabouts were unknown. Attorney Duffy was notified of the
Commonwealth’s action. Because these cases had already been
bound over for court, their docket numbers continued to appear
on the trial list, thus the Commonwealth’s request that they be
stricken by a nolle prosequi order was granted.

In October of 2007[,] Appellant requested a continuance on
grounds that Attorney Duffy was attached for trial; in November,
Attorney Duffy was discharged by Appellant and permitted to
withdraw. Replacement counsel, Justin McShane, Esq., entered
his appearance in December, and was granted an additional
continuance. The following January[,] Haase reappeared, and the
county cases involving her were refiled in April. Meanwhile,
Appellant had sought continuances in January and March of 2008,
and in April was granted both a continuance and release on
nominal bail. When the county cases were refiled, Appellant,
returned to custody, sought quashal of the court’s nolle prosequi
order, and moved for discharge under Pa.R.Crim.P. P. 600. After
hearings on these motions and a stipulated bench trial, Appellant
was convicted on May 28, 2008 . . . .

Commonwealth v. McGuigan, 1921 EDA 2008, at 1-4 (Pa. Super. filed July

7, 2009) (unpublished mem.). At the bench trial, the parties had stipulated

____________________________________________

2On October 18, 2007, the Commonwealth voluntarily withdrew the charges.
N.T., 10/18/17, at 2.

-3-
J-S67018-18

to facts that could establish Appellant’s guilt to twenty-four3 counts of

possession with intent to deliver (PWID) cocaine and methamphetamine.4 As

a result, the trial court convicted Appellant and sentenced him to a negotiated

sentence of twenty to forty years’ imprisonment. Id. at 1.

On direct appeal, Appellant claimed that the Commonwealth violated

Pa.R.Crim.P. 600. Id. at 4. Specifically, Appellant argued only that the

Commonwealth failed to exercise due diligence to extradite him from federal

custody in California. Id. at 6. This Court held otherwise, concluding that the

record established detainer requests, “monthly contact by county extradition

specialists, and periodic contact between the district attorney and the federal

prosecutor . . . .” Id. at 7. The Court also rejected Appellant’s argument that

Pennsylvania should have extradited him from federal custody. Id. at 7-8.

The Court reasoned that the scope of the extradition statute excluded the

federal government. Id. (discussing 42 Pa.C.S. §§ 9122, 9126).

Also on direct appeal, Appellant argued that the law firm of Duffy, Green,

and Redmond, which represented him during some preliminary proceedings,

had a conflict of interest. The McGuigan Court detailed and resolved

Appellant’s issue as follows:

____________________________________________

3The McGuigan Court inadvertently misstated the total number of convictions
as twenty-five.
4The parties agreed to a stipulated fact trial and a negotiated sentence instead
of a guilty plea so Appellant could preserve and raise a Pa.R.Crim.P. 600 claim
on direct appeal.

-4-
J-S67018-18

Attorney Duffy’s firm represented four persons named as co-
defendants or confidential informants in the cases on which
Appellant was charged; “[d]uring that firm’s representation of
[these] cooperating charged co-defendants or confidential
informants, guilty pleas or negotiated tentative plea[] deals were
negotiated or consummated between the Commonwealth and
[these persons] that required their testimony against
[Appellant].”. Three of the four named persons were serving
prison terms as a result of their pleas. Thus, Appellant claims,
“the verdicts should be set aside; a new legitimate and meaningful
hearing into these matters is warranted where [Appellant] is
present.”. We decline to do so, as Appellant has failed to assert
prejudice of any sort occasioned by Attorney Duffy’s
representation, and indeed Appellant was represented at trial by
replacement counsel. Further, as the trial court points out, once
a defendant has been convicted at trial, any defects in the
preliminary hearing are rendered immaterial.

Id. at 11-12 (citations and footnote omitted). This Court ultimately affirmed

Appellant’s judgment of sentence. Id. at 1. Appellant filed a petition for

allowance of appeal, which the Pennsylvania Supreme Court denied on

October 13, 2010.

On July 25, 2011, the PCRA court docketed Appellant’s first PCRA

petition, which he filed pro se. The PCRA court ordered Appellant to notify the

court if he was requesting PCRA counsel. Order, 8/1/11. On August 30, 2011,

Appellant filed an affidavit reflecting his intention to proceed pro se. On

December 14, 2011, the court scheduled a Grazier5 hearing, which occurred

on January 19, 2012. After that hearing, the court appointed PCRA counsel.

Order, 1/27/12.

____________________________________________

5 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

-5-
J-S67018-18

On September 11, 2015, the PCRA court docketed Appellant’s pro se

motion for a Grazier hearing and a 176-page amended PCRA petition.

Appellant’s pro se amended petition listed eighty-five witnesses he wished to

subpoena and have testify at the evidentiary hearing. Appellant’s Am. Pet.,

9/11/15, at 164-73. Appellant’s petition classified the witnesses into several

groups and briefly summarized the proposed testimony of each group. Id.

On September 24, 2015, the PCRA court ordered appointed PCRA

counsel to review Appellant’s September 11, 2015 filings. Appointed counsel

filed a responsive letter on October 7, 2015, stating, among other things, that

Appellant’s pro se petition raised sixty allegations of ineffective counsel and

trial court error.

On November 6, 2015, the PCRA court scheduled a hearing on

Appellant’s Grazier motion, which was held on February 8, 2016. On June

10, 2016, the PCRA court granted Appellant’s request to proceed pro se.

Order, 6/10/16.

On September 26, 2017, the PCRA court ordered an evidentiary hearing,

limited to the following issues:

1) The “Brady” issue referenced at Paragraphs 144-150 of
[Appellant’s] amended PCRA petition. At the hearing[, Appellant]
is directed to specifically identify any Brady material not
disclosed.

2) The discovery issues referenced at Paragraph 216 of
[Appellant’s] amended PCRA petition. At the hearing[, Appellant]
is directed to identify and establish any prejudice he suffered as a
result of these issues.

-6-
J-S67018-18

3) The non-disclosure of [Appellant’s] wife’s cooperation
agreement, referenced at Paragraph 237 of [Appellant’s]
amended PCRA petition. At the hearing[, Appellant] is directed to
identify and establish any prejudice he suffered as a result of this
issue.

4) The attorney ineffectiveness claims outlined generally at pages
145-151 of [Appellant’s] petition regarding pre-trial issues only;
specifically those claims concerning pretrial arraignment,
preliminary hearings, and counsel’s representation of
[Appellant’s] co-defendants. At the hearing[, Appellant] is
directed to identify and establish any prejudice he suffered as a
result of these issues.

Order, 9/26/17. The PCRA court did not advise Appellant of its intention to

dismiss the other claims under Pa.R.Crim.P. 907.

On October 20, 2017, the PCRA court docketed Appellant’s motion to

compel nine witnesses to appear at the PCRA hearing. None of the nine

witnesses Appellant identified was his former counsel. On November 14,

2017, the PCRA court denied the motion, reasoning that it “appears to the

[c]ourt that the testimony of the persons listed in [Appellant’s] motion would

not be relevant to the limited issues to be heard. [Appellant] has not

established the relevancy of any of these witnesses to the issues being heard.”

Order, 11/14/17, at 1 n.1.6

Appellant nonetheless subpoenaed at least two witnesses who appeared

at the December 6, 2017 evidentiary hearing: the trial prosecutor and one of

____________________________________________

6Although the order was docketed on November 13, 2017, it was served the
next day.

-7-
J-S67018-18

his former counsel, Joseph Green, Esq., of the firm Duffy, Green, and

Redmond. N.T. PCRA Hr’g, 12/6/17, at 3. Because no witnesses other than

Appellant testified, it appears that the PCRA court excused them during the

hearing. The PCRA court denied Appellant’s amended PCRA petition on

December 18, 2017. Order, 12/18/17.7 The PCRA judge assigned to this case

retired, and a new judge was assigned.

Appellant timely appealed. On January 17, 2018, the PCRA court

ordered Appellant to file a Pa.R.A.P. 1925(b) statement within twenty-one

days. Appellant timely complied on February 5, 2018.

The newly-assigned PCRA judge filed a Pa.R.A.P. 1925(a) opinion that

stated, in pertinent part, as follows:

As this court did not preside over any part of this case prior to the
instant appeal, I have little to contribute by way of explanation for
the actions and decisions of [the retired judge]; however, based
upon my review of the record, I agree with the decision of [the
retired judge] and see no error of law or abuse of discretion
regarding the dismissal of [Appellant’s] amended PCRA petition
for lack of evidence. I have nothing further with which to
supplement this opinion.

Order, 3/9/18.8

____________________________________________

7 Because the order denied Appellant’s PCRA petition, we presume the order
resolved all claims raised in that petition, including the claims that were the
subject of the evidentiary hearing. See Order, 12/18/17.
8Also on March 9, 2018, without leave of court, Appellant filed an amended
Rule 1925(b) statement, which the PCRA court never addressed. We do not
quote the eleven issues in the amended statement, but they generally reframe
most of the issues in Appellant’s original Rule 1925(b) statement as challenges

-8-
J-S67018-18

Appellant raises the following issues:

[1]. Whether the court committed reversible error by dismissing
the amended PCRA petition without a full and fair evidentiary
hearing or granting relief for the following issues where the
petition[’]s averments, if taken as true, warrants PCRA evidentiary
hearings and relief and by failing to submit findings of fact and
conclusions of law in support of said denial[.]

[2]. Whether the court committed reversible error by subjecting
the appellant to proceedings in a court without jurisdiction over
the person or subject matter combined with a flagrant and willfull
[sic] denial of the Appellant’s rights to due process of law over a
3 year period and by finding defense counsel was not ineffective
for failing to raise, litigate or properly litigate said issues[.]

[3]. Whether the court committed reversible error by finding that
the Commonwealth’s flagrant and willful violations of Rule 573 and
Brady combined with their 3 overt frauds perpetrated upon the
court did not prejudice the Appellant by subverting the truth
determining process and by finding that defense counsel was not
ineffective for failing to raise, litigate or properly litigate said
issues[.]

[4]. Whether the court committed reversible error by dismissing
the amended PCRA petition without a hearing or relief and in
finding that the Commonwealth’s stipulated testimony at trial was
sufficient to find each and every element of the crimes for which
the Appellant was convicted and by finding that defense counsel
was not ineffective for failing to raise, litigate or properly litigate
said issues[.]

[5]. Whether the court committed reversible error as regards
sentencing the Appellant to an illegal sentence under 18 Pa.C.S.
§ 7508 and in finding that the Commonwealth’s evidence at trial
was sufficient as to the weight of the drugs required to trigger the
mandatory minimums under 7508 and by finding that defense

____________________________________________

to the effectiveness of defense counsel. Because Appellant’s amended PCRA
petition raised ineffectiveness claims, some of which the PCRA court held an
evidentiary hearing on, we decline to find Rule 1925(b) waiver.

-9-
J-S67018-18

counsel was not ineffective for failing to raise, litigate or properly
litigate said issues[.]

[6]. Whether the court committed reversible error whereby the
court violated and breached the terms and conditions of the signed
contract for a stipulated waiver trial by erroneously asserting that
the Appellant had agreed to and been found guilty at a stipulated
fact trial thereby lessoning [sic] at trial the Commonwealth’s
requisite burden of proof to convict and as a matter of law
requiring the court to find the Appellant guilty and by finding that
defense counsel was not ineffective for failing to raise, litigate or
properly litigate said issues[.]

[7]. Whether the court committed reversible error by allowing the
Appellant to waive a jury trial and proceed to a stipulated waiver
bench trial where the stipulations and proceedings on May 28,
2008 were involuntary, unknowing and unintelligent and by
finding that defense counsel was not ineffective for failing to raise,
litigate or properly litigate said issues[.]

[8]. Whether the court committed reversible error as regards the
manifest and of record 6th Amendment violations of the
Appellant’s right to conflict free counsel and by finding that
defense counsel was not ineffective for failing to raise, litigate or
properly litigate said issues[.]

Appellant’s Brief at 4-6 (full capitalization omitted).

1. Full and Fair Evidentiary Hearing

In support of his first issue, Appellant argues that the PCRA court erred

by preventing him from presenting the testimony of any witness. Id. at 20.

Appellant appears to argue that his amended PCRA petition raised numerous

issues that required witnesses—witnesses that the PCRA court prevented him

from calling at the evidentiary hearing. Id.

The standard of review of an order resolving a PCRA petition is well-

settled.

- 10 -
J-S67018-18

We review an order dismissing a petition under the PCRA in the
light most favorable to the prevailing party at the PCRA level. This
review is limited to the findings of the PCRA court and the evidence
of record. We will not disturb a PCRA court’s ruling if it is
supported by evidence of record and is free of legal error. This
Court may affirm a PCRA court’s decision on any grounds if the
record supports it. Further, we grant great deference to the
factual findings of the PCRA court and will not disturb those
findings unless they have no support in the record. However, we
afford no such deference to its legal conclusions. Where the
petitioner raises questions of law, our standard of review is de
novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

When briefing the various issues that have been preserved, it is
an appellant’s duty to present arguments that are sufficiently
developed for our review. The brief must support the claims with
pertinent discussion, with references to the record and with
citations to legal authorities. Citations to authorities must
articulate the principles for which they are cited. Pa.R.A.P.
2119(b).

This Court will not act as counsel and will not develop arguments
on behalf of an appellant.

Commonwealth v. Kane, 10 A.3d 327, 331 (Pa. Super. 2010) (citations

omitted).

Although this Court is willing to liberally construe materials filed
by a pro se litigant, pro se status confers no special benefit upon
the appellant. To the contrary, any person choosing to represent
himself in a legal proceeding must, to a reasonable extent,
assume that his lack of expertise and legal training will be his
undoing.

Commonwealth v. Adams, 882 A.2d 496, 498 (Pa. Super. 2005) (citation

omitted).

- 11 -
J-S67018-18

Returning to his first issue, other than the two witnesses identified

above, Appellant did not name the other witnesses in his appellate brief. He

did not discuss any witness’s proposed testimony and how the absence of such

testimony prejudiced him. Appellant’s brief did not discuss the proposed

testimony of the two witnesses that actually appeared at his evidentiary

hearing, the prosecutor and Attorney Green, notwithstanding the court’s

November 14, 2017 order barring witness testimony. Indeed, Appellant’s brief

did not detail any of the proposed testimony of any of the eighty-five witnesses

identified in his PCRA petition. Although we construe his pro se brief liberally,

we will not review the extensive record and speculate as to each witness’s

testimony. See Kane, 10 A.3d at 331; Adams, 882 A.2d at 498. In sum,

Appellant has not established the PCRA court error. See Ford, 44 A.3d at

1194.

2. Rule 600 Violation By Failing to Timely Charge Appellant

In support of his second issue, Appellant argues that the Commonwealth

violated Rule 600. Appellant’s Brief at 26-37.9 Although he framed the issue

as “defense counsel was . . . ineffective for failing to raise, litigate or properly

litigate said issue[],” id. at 4, Appellant did not address counsel’s purported

ineffectiveness other than baldly alleging that counsel was ineffective “pre-

____________________________________________

9Appellant’s third issue raises a different Rule 600 claim, which we discuss
below.

- 12 -
J-S67018-18

trial, post-trial” and on direct appeal by not raising a Rule 600 challenge. Id.

at 37.

By way of guidance:

[c]ounsel is presumed effective, and in order to overcome that
presumption a PCRA petitioner must plead and prove that: (1) the
legal claim underlying the ineffectiveness claim has arguable
merit; (2) counsel’s action or inaction lacked any reasonable basis
designed to effectuate petitioner’s interest; and (3) counsel’s
action or inaction resulted in prejudice to petitioner.

The petitioner must plead and prove all three prongs, and the
failure to establish any one prong warrants denial of an
[ineffective assistance of counsel] claim.

Commonwealth v. Becker, 192 A.3d 106, 112 (Pa. Super. 2018) (citations

omitted). Boilerplate or undeveloped claims of counsel’s ineffectiveness,

however, cannot establish counsel’s ineffectiveness. Commonwealth v.

Jones, 876 A.2d 380, 386 (Pa. 2005).

Here, Appellant has not argued whether counsel’s purported actions or

inactions lacked any reasonable basis and has not identified the alleged

prejudice that inured to him. See generally Becker, 192 A.3d at 112.

Appellant’s boilerplate allegation of counsel’s ineffectiveness, see Appellant’s

Brief at 37, is insufficient. See Jones, 876 A.2d at 386. Moreover, Appellant

raised this particular Rule 600 violation on direct appeal, and that Court held

there was no error. See McGuigan, 1921 EDA 2018, at 7-9. Thus, to the

extent Appellant has reiterated his allegations of a Rule 600 violation here,

they have been previously litigated or otherwise waived. See 42 Pa.C.S. §

- 13 -
J-S67018-18

9543(a)(3) (petitioner, to be eligible for PCRA relief, must establish that

allegation of error “has not been previously litigated or waived”).

3. Rule 573 Compliance, Brady Violations, and Rule 600

A. Rule 573 Compliance

Appellant, in support of his third issue, raises three related arguments.

First, Appellant claims the Commonwealth failed to comply with the discovery

requirements of Pa.R.Crim.P. 573 and Brady. Appellant’s Brief at 39.

Specifically, with respect to Rule 573, Appellant contends that the

Commonwealth did not complete its discovery obligations until April 15, 2008,

over a month before the May 28, 2008 stipulated fact trial. Id. at 40.

Appellant argues that the late completion prejudiced him. Id. at 40-41.

Appellant broadly opines that counsel was ineffective. Id. at 38.

Pennsylvania Rule of Criminal Procedure 573 provides for informal and

mandatory discovery. See generally Pa.R.Crim.P. 573. Rule 573(E) sets

forth a remedy for any violation:

(E) Remedy. If at any time during the course of the proceedings
it is brought to the attention of the court that a party has failed to
comply with this rule, the court may order such party to permit
discovery or inspection, may grant a continuance, or may prohibit
such party from introducing evidence not disclosed, other than
testimony of the defendant, or it may enter such other order as it
deems just under the circumstances.

Pa.R.Crim.P. 573(E). As we explained in Commonwealth v. Causey, 833

A.2d 165 (Pa. Super. 2003):

A defendant seeking relief from a discovery violation must
demonstrate prejudice. A violation of discovery does not

- 14 -
J-S67018-18

automatically entitle appellant to a new trial. Rather, an appellant
must demonstrate how a more timely disclosure would have
affected his trial strategy or how he was otherwise prejudiced by
the alleged late disclosure.

Id. at 171 (citations and quotation marks omitted). Thus, in the PCRA

context, a petitioner must establish how counsel was ineffective. See Becker,

192 A.3d at 112.

Here, as Appellant notes above, the Commonwealth complied with Rule

573, over a month before Appellant’s trial. Other than a broad claim of

ineffectiveness, Appellant has not articulated how he was prejudiced by

counsel’s failure to file an appropriate motion after the Commonwealth turned

over the last of the discovery. Appellant’s boilerplate claim of counsel’s

ineffectiveness does not establish prejudice. See Jones, 876 A.2d at 386;

Becker, 192 A.3d at 112. To the extent Appellant’s argument could be

construed independent of the ineffectiveness allegation, Appellant waived the

issue by failing to raise it on appeal. See 42 Pa.C.S. § 9544.

B. Brady Violations

Appellant’s second argument in support of his third issue alleges

numerous Brady violations, which we group as follows. Initially, Appellant

contends that the Commonwealth failed to disclose all of the interviews and

statements of three confidential informants. Appellant’s Brief at 42. Next, he

maintains that the Commonwealth failed to disclose cooperation deals with

those three confidential informants. Id. Appellant claims that the

Commonwealth withheld statements and documentation about meetings with

- 15 -
J-S67018-18

two co-defendants. Id. at 42-43. He argues that the Commonwealth failed

to disclose the authorizations for the wiretaps and the resulting tapes. Id. at

43. Further, Appellant argues the Commonwealth withheld letters purportedly

written by him and sent to two other co-defendants, which purportedly

contained exculpatory evidence. Id. at 44. Appellant also argues that the

Commonwealth lied in two affidavits of probable cause by misrepresenting

that the information within those affidavits were from one co-defendant, when

it was from another co-defendant. Id. Appellant claims prejudice per se and

summarily asserts that trial counsel was ineffective by failing to move to

suppress the “withheld” evidence. Id. at 52.10

Recently, the Pennsylvania Supreme Court reiterated the interplay

between allegations of Brady violations and claims of counsel’s

ineffectiveness:

Due process is offended when the prosecution withholds evidence
favorable to the accused where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith
of the prosecution. There are three components of a true Brady
violation: The evidence at issue must be favorable to the accused,
either because it is exculpatory, or because it is impeaching; that
evidence must have been suppressed by the State, either willfully
or inadvertently; and prejudice must have ensued.

Pursuant to Brady and its progeny, the prosecutor has a duty to
learn of any favorable evidence known to the others acting on the
government’s behalf in the case, including the police. However,
there is no constitutional requirement that the prosecution make

____________________________________________

10To the extent Appellant interjects a Rule 600 argument, we have previously
rejected it for reasons set forth above. See Appellant’s Brief at 51.

- 16 -
J-S67018-18

a complete and detailed accounting to the defense of all police
investigatory work on a case. The 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.

Instead, favorable evidence is material, and constitutional error
results from its suppression by the government, if there is a
reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. In evaluating whether a
reasonable probability of a different outcome has been
demonstrated, 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.
A defendant thus need not demonstrate that after discounting the
inculpatory evidence in light of the undisclosed evidence, there
would not have been enough left to convict. Rather, a defendant
need only show that the favorable evidence could reasonably be
taken to put the whole case in such a different light as to
undermine confidence in the verdict.

Commonwealth v. Natividad, ___ A.3d ___, ___, 2019 WL 286564, *11

(Pa. filed Jan. 23, 2019) (quotation marks and citations omitted).

Initially, we have reviewed every document cited by Appellant. See

Appellant’s Brief at 42-66.11 None of them substantiates Appellant’s

assertions that the Commonwealth suppressed material evidence. Each cited

document was either previously produced by the Commonwealth, publicly

available, e.g., a docket, or never existed, e.g., the purported wiretap tapes

____________________________________________

11 We did not review the extensive record for the documents lacking record
citation, e.g., purported exculpatory letters written by Appellant to two of his
co-defendants. See Appellant’s Brief at 44.

- 17 -
J-S67018-18

that the Commonwealth averred never existed because the interception

equipment had failed. See N.T. Trial, 5/28/08, at 8-9. We add that Appellant

mischaracterized all of the cited documents. Compare, e.g., Appellant’s Brief

at 42 (citing to record document purportedly establishing Commonwealth deal

with confidential informant), with Ex. A-7 to Appellant’s Am. Pet., 9/11/15

(aforementioned record document, which is Commonwealth’s letter to

Appellant’s counsel disclosing identities of confidential informants but which

did not establish any Commonwealth deal).

Instantly, none of the cited documents exculpated Appellant. See

Natividad, 2019 WL 286564 at *11. Moreover, to the extent any of the

documents could be construed as or otherwise used for impeachment,

Appellant merely alleged prejudice per se. See Appellant’s Brief at 52.

Appellant did not detail any prejudice from any particular piece of allegedly

withheld evidence, which as noted above, was previously disclosed by the

Commonwealth, publicly available, or never existed. Appellant has not

explained, given the facts he stipulated to at trial, how any of the purportedly

withheld documents undermined confidence in the verdict. See Natividad,

2019 WL 286564 at *11. The trial court had repeatedly warned Appellant that

based on the stipulated facts, there would be little chance of being found not

guilty. See, e.g., N.T. Trial, 5/28/08, at 13-14 (quoted below).

- 18 -
J-S67018-18

C. Rule 600 Violation12

Third, Appellant raises a Rule 600 claim different from the Rule 600

claim in his second issue. Specifically, Appellant argues that the

Commonwealth violated Rule 600 based on the false and purportedly

undisclosed or untimely disclosed documents and testimony. Appellant’s Brief

at 67.

We briefly reiterate that in October 2007, the Commonwealth withdrew

the charges in four cases because Haase, the key witness, was unable to be

located. In January 2008, Haase was arrested in Chester County, and the

Commonwealth reinstated the previously-withdrawn charges in April 2008.

The Commonwealth filed a motion to increase Appellant’s bail. At the

April 28, 2008 hearing on the Commonwealth’s motion, the assistant district

attorney represented to the trial court that Haase had been extradited from

Nevada. N.T. Motion to Increase Bail, 4/28/08, at 12-13. We note that the

actual hearing on Appellant’s Rule 600 motion occurred on May 14, 2008,

during which there was no relevant discussion of Haase, Nevada, or when and

where Haase was apprehended.13

____________________________________________

12As discussed herein, this particular Rule 600 issue is different than the Rule
600 issue raised in Appellant’s second issue.
13 The only reference to Haase was when Appellant’s counsel asked the trial
court to take judicial notice that the offense tracking numbers of the cases at
issue did not match the offense tracking numbers listed on a particular

- 19 -
J-S67018-18

At Appellant’s stipulated fact trial, there were a few live witnesses.14 In

pertinent part, the assistant district attorney, who was present at the April 28,

2008 hearing on the Commonwealth’s motion to increase bail, testified as a

fact witness. Specifically, the assistant district attorney testified that although

he was under the impression that Haase was extradited from Nevada when he

made that representation to the court, he “may have been mistaken.” N.T.

Trial, 5/28/08, at 62. A police detective also testified that he interviewed

Haase after her arrest, and Haase said she went to Las Vegas “and the

surrounding areas of Las Vegas.” Id. at 48.

With respect to the Commonwealth’s efforts in locating Haase, the

detective testified as follows:

[Appellant’s counsel:] So were there any methods or means that
you utilized such as a search on NCIC[,] the National Crime
Information Computer[,] for the whereabouts of Ms. Haase?

[Detective:] You can’t do that.

[Appellant’s counsel:] Did you put any sort of entry into the NCIC
that she was a wanted person?

[A:] Probation had her out for a probation violation. That’s how
she ended up back in Chester County Prison.

[Appellant’s counsel:] Did you lodge a fugitive warrant or
material, apply for a material witness bail for Ms. Haase?
____________________________________________

Commonwealth exhibit, which pertained “to the Gladys Hasse” cases. N.T.
Rule 600 H’rg, 5/14/08, at 121.
14 As noted above, Appellant wished to stipulate to the facts in order to
preserve his Rule 600 claim for appeal. As a result, the Commonwealth called
two witnesses and Appellant also testified.

- 20 -
J-S67018-18

[A:] No, because she was already out at the prison.

[Appellant’s counsel:] I’m sorry. During the time frame from 2005
when you discovered that she had absconded from the jurisdiction
until September 28th 2007, the date of the preliminary hearing,
did you attempt to file any sort of fugitive notice or some sort of
fugitive proceedings?

[A:] No, we made an effort. She was already wanted by probation
for failure to appear. [The assistant district attorney] and I talked
prior to that. He was aware and he was going to be approve [sic]
jurisdiction anywhere in the United States. Depending on the
crime, there’s different zones, but [the assistant district attorney]
agreed to have her brought back from wherever she was.

[Q:] So she was basically a very wanted person, resources are
unlimited, we need her back; is that correct?

[A:] If she was picked up by law enforcement anywhere within the
United States, [the assistant district attorney] authorized me to
have returned to Chester County regardless of location.

N.T. Trial, 5/28/08, at 48-49. As noted above, the court ultimately convicted

Appellant.

Subsequently, in late 2010 and early 2011, Appellant obtained

documents that purported to establish that (1) the Las Vegas police

department had no record of Haase, (2) Haase was allegedly arrested in

Lancaster County, Pennsylvania in early January 2008 (after the

Commonwealth had withdrawn its charges in October 2007), and (3) Haase

was released to Chester County police. See Am. Pet., 9/11/15, at App. G.;

accord Appellant’s Brief at App. N-P. Subsequently, the Commonwealth

reinstated the charges in April 2008.

- 21 -
J-S67018-18

On appeal, Appellant highlights this purported discrepancy between the

Commonwealth’s representations on April 28 and May 28, 2008—that Haase

was arrested in and extradited from Nevada—with the documents that

allegedly establish that Haase was arrested in Lancaster County and that Las

Vegas police had no knowledge of her arrest. Appellant’s Brief at 75. He

argues that his then-counsel was ineffective by failing to investigate Haase’s

arrest and extradition from Nevada, which would have impacted the

calculation of time attributable to the Commonwealth for purposes of Rule

600. Id. Appellant maintains that had counsel engaged in such an

investigation, his Rule 600 motion would have been granted. Id. at 76.

Here, although Appellant has summarily alleged ineffectiveness, he did

not argue that counsel lacked a reasonable basis for his inaction, i.e., not

moving for a continuance and investigating the purported discrepancy. See

Becker, 192 A.3d at 112. Further, Appellant has not argued that but for

counsel’s inaction, there was a reasonable probability that the outcome of the

Rule 600 hearing would have been different. See Natividad, 2019 WL

286564 at *11. Nothing within the documents Appellant presented to the

PCRA court forecloses that Haase was extradited from outside of Las Vegas,

Nevada, to Pennsylvania, when she was subsequently released—before her

purported arrest for public drunkenness in Lancaster County.

But even accepting the discrepancy as true, Appellant has not explained

why the fact of Haase having been apprehended in Pennsylvania would have

- 22 -
J-S67018-18

resulted in the trial court granting the Rule 600 motion. See id. Regardless

of whether Haase was in Pennsylvania or Nevada, Haase was unavailable and

could not be located despite the Commonwealth’s efforts. See N.T. Trial,

5/28/08, at 48-49 (describing efforts by police to locate and apprehend

Haase). As a result, the Commonwealth withdrew the charges that required

Haase’s testimony in October 2007. It was not until after Haase was

apprehended in January 2008, and the police interviewed her, that the

Commonwealth refiled charges against Appellant in April 2008. See

McGuigan, 1921 EDA 2018, at 4.

4. and 5. Sufficiency of Evidence and Weight of Drugs

Having resolved Appellant’s three arguments in support of his third

issue, we turn to Appellant’s fourth and fifth issues. Appellant argues the

evidence was insufficient for all of his convictions. By way of background, the

joint stipulation of testimonial evidence presented at Appellant’s trial

recounted numerous transactions in which Appellant either (1) sold a specified

weight of “cocaine and methamphetamine” to a confidential informant; (2)

negotiated with a confidential informant for the purchase of drugs, with a co-

defendant acting as an intermediary; or (3) gave drugs to co-defendants with

instructions to sell the drugs to others. See, e.g., Stip. of Testimonial Evid.

For Purpose of Combined Non-Jury Trials, 5/28/8, at 1-6.

On appeal, Appellant argues that the stipulated facts did not “name,

identify or describe the testimony of any” person who could identify the

- 23 -
J-S67018-18

substances at issue as cocaine and methamphetamine. Appellant’s Brief at

79-82. Appellant asserts that the stipulation did not describe the controlled

substances he was accused of delivering. Id. at 80. Appellant similarly argues

that there was no testimony at trial establishing the weight of the drugs at

issue. Id. at 84. Appellant argues that counsel was ineffective by failing to

challenge the sufficiency of evidence. Id. at 83. Appellant raises a related

argument that the “testimonial evidence at trial” was insufficient to establish

the weight of the drugs to trigger the mandatory minimum sentences under

18 Pa.C.S. § 7508. Id. at 84.

In pertinent part, Pennsylvania criminalizes “the manufacture, delivery,

or possession with intent to manufacture or deliver, a controlled substance.”

35 P.S. § 780-113(a)(30). Simply, “the Commonwealth must prove beyond

a reasonable doubt that the defendant possessed a controlled substance with

the intent to deliver it.” Commonwealth v. Kirkland, 831 A.2d 607, 611

(Pa. Super. 2003) (citations omitted).

Here, the stipulation made it unnecessary for the Commonwealth to

“name, identify or describe the testimony of any” person who could identify

the drugs as cocaine and methamphetamine. Appellant stipulated to facts

establishing that he repeatedly sold or arranged for the sale of “cocaine and

methamphetamine.” See, e.g., Stip. of Testimonial Evid. For Purpose of

Combined Non-Jury Trials, 5/28/8, at 1-6. Because Appellant did not establish

his sufficiency challenge had arguable merit, his ineffective assistance of

- 24 -
J-S67018-18

counsel claim fails. See Becker, 192 A.3d at 112; Kirkland, 831 A.2d at

611.

To the extent Appellant argues his sentence was illegal based on his

stipulation to the weight of the drugs, we begin by noting that Appellant’s

judgment of sentence became final in 2011, well before Alleyne v. United

States, 570 U.S. 99 (2013), was decided.15 “Alleyne held that any fact that,

by law, increases the penalty for a crime must be treated as an element of

the offense, submitted to a jury, rather than a judge, and found beyond a

reasonable doubt.” Commonwealth v. Washington, 142 A.3d 810, 812

(Pa. 2016). The Washington Court held that Alleyne “does not apply

retroactively to cases pending on collateral review . . . .” Id. at 820. We

acknowledge that in Commonwealth v. DiMatteo, 177 A.3d 182, 191 (Pa.

2018), the Pennsylvania Supreme Court recognized that Section 7508 is

unconstitutional. The DiMatteo Court invalidated an illegal Section 7508

sentence when “relief [was] sought in a timely PCRA petition and the judgment

of sentence was not final when Alleyne was announced.” DiMatteo, 177

A.3d at 191. Here, Appellant’s sentence, unlike the defendant’s sentence in

DiMatteo, became final well before Alleyne was announced, and therefore

____________________________________________

15We note that Appellant does not cite any caselaw in support of his Section
7508 argument. See Pa.R.A.P. 2119.

- 25 -
J-S67018-18

Appellant has no meritorious claim under Washington. See Washington,

142 A.3d at 812; cf. DiMatteo, 177 A.3d at 191.

6. and 7. Ineffective Assistance of Counsel Regarding Stipulated
Trial

For his sixth issue, Appellant argues that the trial court violated the

terms of his stipulation by decreasing the Commonwealth’s burden of proof.

Appellant’s Brief at 86. Appellant’s seventh issue is that trial counsel was

ineffective by failing to litigate the sixth issue and by advising him to accept

the stipulation. Id. at 95-96.

By way of background, before the parties entered their stipulation of

facts, the court gave a colloquy of Appellant regarding his waiver of his right

to a jury trial. In pertinent part, the following exchange occurred after the

court defined possession with intent to deliver:

THE COURT: . . . there was let’s see, one, two, possibly three
possessions with intent to deliver, and they appear to involve
cocaine, do you agree that you were either in possession of, or do
you agree that the Commonwealth’s evidence against you would
be that you were in possession of that cocaine with the intent to
deliver?

[Appellant]: No, your Honor.

THE COURT: So what you’re saying is that the Commonwealth has
to put on the record at some later time what their evidence
specifically is?

[Appellant]: Yes, your Honor. My position is this, your Honor, and
I’m not using semantics. There are some things that are justified
in here and there are things that, when I say clearly, meaning in
my own mind because I know what I have and have not done, . .
. and I was looking for an opportunity to put the facts in front of
you and have you make a decision.

- 26 -
J-S67018-18

N.T. Trial, 5/27/08, at 33. The court then continued to colloquy Appellant

extensively and found Appellant knowingly, intelligently, and voluntarily

waived his right to a jury trial. See id. at 16-38.16

Later in the hearing, the court again questioned Appellant about the

consequences of agreeing to a stipulated facts trial:

THE COURT: But you understand, [Appellant], at least the way
things stand right now, if everything goes along the lines of the
way in which at least the Commonwealth believes that they are
going to go, the facts that they are going to put before me to
which you will stipulate, will probably be sufficient enough for the
court to make a finding of guilt on those cases?

[Appellant]: Well, I don’t want to agree to that, but I will agree
that I understand that if you find that that’s the case, that, in fact,
you will impose the sentence.

Id. at 61.17

The next day, the trial court extensively discussed the nature of the

stipulated fact trial with Appellant as follows:

THE COURT: . . . the advantage to [Appellant] by going through
this process rather than a guilty plea is to preserve the right to
appeal [the court’s] ruling on the Rule 600 issue. Is that correct?

[Appellant’s counsel]: That is correct, your Honor.

THE COURT: And do you understand that to be correct,
[Appellant]?
____________________________________________

16 We note that the court and parties referenced a written waiver-of-jury form,
which Appellant signed, N.T., 5/27/08, at 38-39, but the form was not
transmitted as part of the record.
17 As noted above, the parties had negotiated a twenty to forty year sentence
of imprisonment should the court find Appellant guilty.

- 27 -
J-S67018-18

[Appellant]: Yeah, I’m keeping my appellate rights.

THE COURT: And the reason I want to make that clear is this. As
I have read through the proposed stipulation of facts, on each of
the eight cases, it would appear to me that by stipulating to those
facts, it’s tantamount to a guilty plea. In other words, those facts
seem to, without any doubt, make out a case beyond a reasonable
doubt. Now, I used doubt twice, but that’s what it appears to me,
at least on the face of it, unless there’s something more that were
to come out. So for practical purposes, I think everybody realizes
that once we get the stipulated facts into the record, then there’s
virtually an assured verdict of guilty that’s going to come out of
the stipulated fact trial, and the only benefit then remaining to
[Appellant] by proceeding this way is to preserve any possible
victory he may have, but under Rule 600, not under anything else.
Is that accurate?

[Appellant’s counsel]: The accuracy would be that there’s a
difference between, of course, a verdict like the court said and
plea. We understand that this will be the court’s verdict, and,
therefore, his direct appellate rights would attach as opposed to
three narrow areas of appeal for a guilty plea. That’s our
understanding.

N.T. Trial, 5/28/08, at 13-14 (some initial capitalization omitted).

The trial court then inquired as to whether Appellant was voluntarily

relinquishing his right to confront witnesses. Id. at 16.

The court: You agreed to waive your right to confront the
witnesses, [Appellant]?

[Appellant]: I do.

THE COURT: And you’ve discussed this with your attorney?

[Appellant]: Yes, your Honor.

The court: And this is voluntary on your part?

[Appellant]: It is. I do want to say that my understanding of the
plea, I’m not pleading guilty—

- 28 -
J-S67018-18

THE COURT: I didn’t suggest that you were. You’re not pleading
guilty. What you’re doing is going through a stipulated fact trial.

[Appellant]: Okay. I’m holding out hope that you will find me not
guilty on all counts, just for the record.

* * *

THE COURT: . . . But what I’m telling you, and I want you to have
clear in your mind, as I have read through these stipulated facts,
I don’t see anything in the facts that you have stipulated to that
could result in a not guilty verdict?

[Appellant]: That’s bad news for me, but let me say this. It was
my understanding, and it seems to me that it’s the proper
understanding, that we were stipulating to agree to the
prosecutions content that those witnesses at trial would state
what is in the record in front of you?

THE COURT: Correct.

[Appellant]: I have no issue with agreeing with that because I
heard them say it already in court. So I agree with the prosecution
that that, in fact, is what they would say. I’m hoping that your
Honor would look into it a little deeper, maybe see some things
there, but that’s completely in your control. So I’m not here to
argue anything. I just want you to know that that’s my
understanding, that it’s your decision as to whether it’s guilty or
innocent and that I’m stipulating to the fact that these people
would have stated that. I’m not agreeing with what these people
have stated, but I’m agreeing to the fact that if called they would,
in fact, state what is on that paper, all right.

Id. at 17-18.

On appeal, Appellant essentially argues that although he stipulated to

the facts, he nonetheless disputes the stipulated facts and is innocent.

Appellant’s Brief at 91. In support, Appellant has extensively quoted from

- 29 -
J-S67018-18

various proceedings, some of which we have quoted above.18 He similarly

argues that his stipulation was illegal because it decreased the

Commonwealth’s burden of proof. Id. at 95. Trial counsel, Appellant asserts,

was ineffective by deceiving him about the import of a stipulated facts trial.

Id. at 96. He concludes that but for counsel’s ineffective advice, he would

have chosen a jury trial. Id.

The following principles govern our review: “[i]t is axiomatic that

parties may bind themselves by stipulations so long as they do not affect

the jurisdiction of the court, and provided that the stipulations are not in

contravention of peremptory statutory requirements.” Commonwealth

v. Mathis, 463 A.2d 1167, 1171 (Pa. Super. 1983) (citation omitted). “A

colloquy ensuring a knowing and voluntary decision is required any time a

defendant stipulates to evidence that virtually assures his conviction

because such a stipulation is functionally the same as a guilty plea.”

Commonwealth v. Eichinger, 108 A.3d 821, 832 (Pa. 2014) (citation

omitted); Commonwealth v. Davis, 322 A.2d 103, 105 (Pa. 1973)

(noting that defendant, although not pleading guilty, stipulated to

testimony making guilty verdict foregone conclusion at bench trial).

____________________________________________

18 Although we do not reproduce the extensive quotes in his appellate brief,
Appellant has combined selected quotes from each hearing together, arguably
in a misleading fashion. Appellant also omitted language from his quotes.

- 30 -
J-S67018-18

In the context of an ineffectiveness claim regarding a guilty plea:

[a]llegations of ineffectiveness in connection with the entry of a
guilty plea will serve as a basis for relief only if the ineffectiveness
caused the defendant to enter an involuntary or unknowing plea.
Where the defendant enters his plea on the advice of counsel, the
voluntariness of the plea depends on whether counsel’s advice
was within the range of competence demanded of attorneys in
criminal cases.

Commonwealth v. Wah, 42 A.3d 335, 338-39 (Pa. Super. 2012) (citation

and quotation marks omitted). It follows that the voluntariness of the decision

to stipulate to certain facts depends on the competence of counsel’s advice.

Cf. id.

After careful review of the relevant proceedings, including the entirety

of the lengthy colloquy regarding Appellant’s stipulation of facts—we

excerpted portions of it above—we perceive no error. The trial court

questioned Appellant quite extensively about the effect of a trial based on

stipulated facts. See, e.g., N.T. Trial, 5/27/08, at 61; N.T. Trial, 5/28/08, at

13-14, 16-18. Appellant understood the impact of stipulating to facts but

hoped that the court would find him not guilty. See N.T. Trial, 5/28/08, at

17-18. He also understood that the purpose of the stipulation was to preserve

his direct appeal rights on the Rule 600 issue. See id. at 13-14. Further, the

stipulation addressed facts only and not any legal burden of proof; therefore,

it could not alter the Commonwealth’s burden. See Stip. of Testimonial Evid.

For Purpose of Combined Non-Jury Trials, 5/28/8, at 1-6. Because Appellant’s

- 31 -
J-S67018-18

underlying issue lacks merit, we cannot find Appellant’s counsel was

ineffective. Cf. Wah, 42 A.3d at 338-39.

8. Conflict-Free Counsel

Last, Appellant contends the law firm of Duffy, Green, and Redmond

was representing him and his cooperating co-defendants, as well as a

Commonwealth witness. Appellant’s Brief at 98. He maintains the

Commonwealth and trial court did not advise him about this conflict and

therefore violated his Sixth Amendment right to conflict-free counsel. Id.

Appellant did not otherwise identify or discuss any purported conflict.

It is well-settled, “[t]o establish that an actual conflict of interest

burdens counsel, an appellant must show that counsel actively represented

conflicting interests, and the actual conflict adversely affected counsel’s

performance.” Commonwealth v. Padilla, 80 A.3d 1238, 1248 (Pa. 2013)

(citation, internal brackets, and quotations marks omitted).

Initially, the record reveals that the firm of Duffy, Green, and Redmond

represented Appellant until November 21, 2007, when it was granted

permission to withdraw. Appellant’s bald assertion of a conflict, without an

argument of how it affected his then-counsel’s performance, is insufficient.

See id. We note that Appellant had previously litigated this issue, as he raised

it on direct appeal, and that Court affirmed, noting that Appellant failed to

articulate any prejudice. McGuigan, 1921 EDA 2018, at 12. Further, on

December 12, 2007, Justin McShane, Esq., entered his appearance for

- 32 -
J-S67018-18

Appellant and represented him throughout trial, which occurred on May 28,

2008, five months later. McShane, as trial counsel, therefore, never had an

actual conflict. See id. Having found no error, we affirm the order below.

See Becker, 192 A.3d at 112.

Order affirmed.

Judge Ott joins the memorandum.

Judge Strassburger files a concurring statement.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/18/19

- 33 -