Com. v. Diaz, D.

J-S44006-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DOMINIC SOUTO DIAZ :
:
Appellant : No. 841 WDA 2018

Appeal from the PCRA Order May 16, 2018
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0003451-2014

BEFORE: SHOGAN, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 20, 2019

Appellant, Dominic Souto Diaz, appeals pro se from the order denying

his petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-9546. We affirm.

The PCRA court set forth the following thorough recitation of the factual

and procedural history of this case:

On August 23, 2014, Appellant shot and killed bouncer,
Hercules Rieger, outside The Bearded Lady, a bar at East 11th and
Wayne Streets in Erie, Pennsylvania. A neighborhood resident,
Javon Martin, testified that he knew both Appellant and Rieger and
heard them arguing near the entrance of the bar. N.T., 5/12/15,
(Day 2), at 53, 58, 65. Martin also testified that he saw Rieger
punch Appellant. N.T., 5/12/15, at 59. Appellant left the scene
but returned shortly thereafter. Id. at 60-63. Martin said he saw
Appellant pull a gun from his waistband and shoot Reiger. Id.

Another neighborhood resident, Jamie Barlorin, testified
that he saw and heard two men arguing. He later identified the
men from a photographic array as Appellant and another Bearded
Lady bouncer, Marzell Stovall. Id. at 116. Barlorin testified he
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saw Stovall strike Appellant in the head with a tire iron. Barlorin
heard a gunshot approximately twenty minutes later and he called
911 at approximately 2:46 a.m. Id. at 117, 120, 124.

Joino McAdory was also working as a bouncer at The
Bearded Lady. He confirmed the physical altercation between
Rieger and Appellant in which Reiger [sic] punched Appellant and
knocked him down. N.T., 5/13/15, (Day 3), at 38-39. McAdory
testified that ten to fifteen minutes later, he heard a gunshot and
saw Rieger fall to the ground. He did not see who fired the shot.
Id. at 40.

Raymond MacDonald, a senior manager of the law
enforcement management group for T-Mobile, verified that
Appellant made calls on his cell phone just before he was arrested.
MacDonald testified that those calls placed Appellant in the vicinity
of the murder. N.T. (Day 3), at 3-4, 35-36. Appellant tried to
destroy his cell phone while sitting in the back of the police cruiser
immediately after he was arrested. N.T. (Day 3), at 99.

Appellant offered an expert who offered a contrary opinion
regarding the interpretation of the cell phone records. Louis
Cinquanto testified that the phone records placed Appellant
anywhere from .84 to 2.75 miles from the scene at the time of the
shooting. N.T. (Day 3) at 84.

Appellant’s trial counsel, Attorney Bruce Sandmeyer,
attempted to discredit the eyewitness testimony of Javon Martin,
the neighbor who claimed he saw Appellant shoot the victim. After
he observed the incident at The Bearded Lady, Martin was jailed
on a parole violation. Martin’s jail mates testified at trial that
Martin told them Appellant was not at the scene of the crime and
that Martin was just testifying against Appellant in order to get
lenient treatment in his own case. N.T. (Day 3), at 52; N.T. (Day
2), at 77.

At trial, the prosecution was forthright about the fact that
they helped Martin in his revocation hearing after he provided his
statement to the police identifying Diaz as the murderer.
However, the prosecution maintained that Martin was not
promised anything before he gave his statement to the police.
Martin was asked about his lenient treatment by [Assistant District
Attorney Erin] Connelly, on direct and by defense counsel on cross
examination. N.T. (Day 2) at 71, N.T. (Day 2) at 77. During

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discovery, the prosecution provided the defense with a letter from
Martin to Connelly asking for lenient treatment after he made his
statement to police. On cross examination, Defense counsel used
that letter to discredit Martin as a snitch. N.T. (Day 2) at 78-79.
There is no evidence of any other favors or lenient treatment
promised to Martin at any time. In fact, after Attorney Connelly
vouched for Martin at his Revocation Hearing, Martin was released
on parole, but promptly absconded to Tennessee. He was later
found and returned to prison to finish serving his term. Connelly
made it clear that no further favors would be granted to him, even
if he testified at the Diaz trial. Connelly emphasized this fact in
her closing argument.

On May 14, 2015, a jury returned a guilty verdict against
Appellant on all counts: first-degree murder, aggravated assault,
recklessly endanger[ing] another person, possessing an
instrument of crime, and firearms not be carried without a license.
Appellant filed post-trial motions, which were denied by the
Honorable Ernest DiSantis on July 17, 2015. Appellant filed a
timely appeal to the Pennsylvania Superior Court, which was
denied on June 24, 2016. [Commonwealth v. Diaz, 153 A.3d
1118, 1257 WDA 2015 (Pa. Super. filed June 24, 2016)
(unpublished memorandum)].

Between June 8 and June 12, 2017, Appellant filed the
instant timely pro se PCRA claim, raising 17 issues.1 Counsel was
appointed and filed a Supplemental Motion in support of
Appellant’s PCRA claims on September 19, 2017. The counseled
Supplemental Petition “incorporate[s]” all of Appellant’s claims
raised in his pro se petition2 and more specifically addresses two
of the previously raised issues: (1) ADA Connelly committed
prosecutorial misconduct by not revealing that the DA’s office
offered Martin significant favorable treatment in exchange for his
testimony against Appellant; and (2) Appellant’s counsel was
ineffective for failing to call two exculpatory witnesses: Attila Diaz
and Valentino Moore who were with Martin the night of the
murder. (Supplement to Motion for Post Conviction Collateral
Relief, 9/19/17).

1 Pursuant to the prisoner mailbox rule, Appellant’s
pro se PCRA filing is the date he placed it in the hands
of prison authorities for mailing (i.e. postmark date).
See, Commonwealth v. Fransen, 986 A.2d 154,
156 n.5 (Pa. Super. 2009); Commonwealth v.

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Castro, 766 A.2d 1283 (Pa. Super. 2001);
Commonwealth v. Little, 716 A.2d 1287 (Pa. Super.
1998). Here, Appellant’s Certificate of Service is
dated June 8, 2017 and his Petition is docketed June
12, 2017, but we lack evidence of when Appellant
placed his petition in the hands of the postal
authorities. However, pursuant to either date, the
Petition is timely.

2 Commonwealth v. Cherry, 155 A.3d 1080, 1083
(Pa. Super. 2017) (PCRA counsel’s duty is to amend a
pro se petition and present it in legal terms or certify
that the claims lack merit).

On September 25, 2017[,] Appellant mailed to the [c]ourt,
but failed to file with the Clerk or copy his counsel, a “Request to
Proceed pro se, for the Post Conviction Relief and for Attorney
Hathaway to withdraw and to amend the PCRA.” Appellant
claimed that Attorney Hathaway “failed to argue issues with
merit.” At the same time, Appellant also mailed the [c]ourt a 27
page “Amendment to the Supplement for Post Conviction Relief,”
which was forwarded to [Appellant’s] counsel, Attorney William
Hathaway. On December 21, 2017, a pro se colloquy was
conducted and it was determined that Appellant wanted Attorney
Hathaway to continue to represent him. Attorney Hathaway
declined to submit an amended supplemental petition based on
Appellant’s pro se Amendments.

On February 15, 2018, Appellant wrote the [c]ourt a letter
indicating, once again, that he wanted to proceed pro se. On
March 27, 2018, Attorney Hathaway filed a Petition for Leave to
Withdraw as Counsel, which was denied. The [c]ourt also denied
Appellant’s request to proceed pro se, as having already been
determined at the December 21, 2017 Grazier hearing.3

3 Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa.
1998) (citations omitted) (“When a waiver of the right
to counsel is sought at the post-conviction and
appellate stages, an on-the-record determination
should be made that the waiver is a knowing,
intelligent, and voluntary one.”)

Prior to the evidentiary hearing, Attorney Hathaway filed a
Motion to Recuse, based on the fact that this [c]ourt’s former law

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clerk, Brandon Bingle, Esq., who assisted Attorney Connelly in
prosecuting [Appellant]. The Motion to Recuse was denied on
April 30, 2018. Attorney Hathaway also filed a Motion for
Discovery of information relating to the favorable treatment of
Martin, which was granted on the same date.

On May 11, 2018, this [c]ourt conducted an evidentiary
hearing to address the merits of Appellant’s PCRA claims. At the
hearing, Appellant testified on his own behalf. Appellant’s alleged
alibi witnesses, Valentino Moore and Attila Diaz, also testified.
Witnesses for the Commonwealth included former Assistant
District Attorney, Brandon Bingle, Esq., Assistant District
Attorney, Erin Connelly, Esq., trial counsel, Bruce Sandmeyer,
Esq., and the Public Defender’s private investigator, Laurie Rogan,
M.S. At the evidentiary hearing, PCRA counsel pursued the
following issues: (1) whether trial counsel should have called two
alibi witnesses; (2) whether the prosecution committed a Brady
violation; and an additional claim which did appear in Appellant’s
pro se Petition, (3) trial counsel was ineffective for “failing to
object to DA’s closing statement regarding the location of
[Appellant’s] cell phone near the crime scene at the time of the
murder.” (pro se PCRA Petition, ¶6(C)(3)).

On May 16, 2018, this [c]ourt issued a Final Order
dismissing Appellant’s PCRA Petition in light of the evidence
received during the evidentiary hearing, and upon an independent
review of the record. On June 1, 2018, Appellant filed a pro se
Notice of Appeal, although still represented by counsel. On June
5, 2018, this [c]ourt recognized Appellant’s pro se Appeal as an
exception to the bar against hybrid representation.4 We issued a
1925(b) Order requiring a Concise Statement within twenty-one
days. On June 18, 2018 Appellant filed a Concise Statement of
Matters Complained of on Appeal, raising 29 issues for appellate
consideration. Appellant made it known that he wanted to
proceed pro se on appeal. A Grazier hearing was scheduled.
PCRA counsel filed a written Motion to Withdraw as Counsel. A
Grazier hearing was held on June 29, 2018, in which it was
determined that Appellant knowingly, intelligently, and voluntarily
chose to proceed pro se on appeal. The [c]ourt granted Attorney
Hathaway’s Petition for Leave to Withdraw as Counsel.

4 See Commonwealth v. Williams, 151 A.3d 621
(Pa. Super. 2016).

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Appellant then filed a flurry of pro se Motions requesting,
inter alia, discovery, transportation to a different holding facility,
requests for extension of time, a motion to quash his first Concise
Statement, and a request to file an Amended Concise Statement.
Most of these motions were denied. On August 8, 2018, the
Pennsylvania Superior Court remanded this case in order to allow
Appellant to file an Amended Concise Statement within 14 days.
Appellant timely complied. On August 22, 2018, Appellant filed
an Amended Statement of Matters Complained of on Appeal
raising 15 issues, some but not all of which overlap with the 29
issues raised in Appellant’s original Concise Statement. Several
issues in the Concise Statements are newly raised and cannot be
discerned in any of Appellant’s prior filings.

PCRA Court Opinion, 9/10/18, at 1-6.

Appellant presents the following issues for our review, which we

reproduce verbatim:

I. Trial counsel was ineffective for not objecting to the
Commonwealth improper remarks misrepresenting and putting on
false evidence in opening and closing arguments in violation of
Appellants 6th and 14th Amendment.

II. The trial court erred when it dismissed Appellant PCRA petition
alleging the Commonwealth failed to turn over discovery
information pursuant to Brady v. Maryland[1] in violation of
Appellant fourteenth Amendment right to due process

Appellant’s Brief at 5.

When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)

____________________________________________

1 Brady v. Maryland, 373 U.S. 83 (1963).

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(en banc)). This Court is limited to determining whether the evidence of

record supports the conclusions of the PCRA court and whether the ruling is

free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012). We grant great deference to the PCRA court’s findings that are

supported in the record and will not disturb them unless they have no support

in the certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.

Super. 2014).

In the argument portion of his brief, Appellant challenges the effective

assistance of his prior counsel. Our Supreme Court has long stated that, in

order to succeed on a claim of ineffective assistance of counsel, an appellant

must demonstrate: (1) the underlying claim is of arguable merit; (2) counsel’s

performance lacked a reasonable basis; and (3) the ineffectiveness of counsel

caused the appellant prejudice. Commonwealth v. Pierce, 786 A.2d 203,

213 (Pa. 2001).

We observe that claims of ineffective assistance of counsel are not self-

proving. Commonwealth v. Wharton, 811 A.2d 978, 986 (Pa. 2002). In

addition, we note that where an appellant is not entitled to relief with regard

to the underlying claim upon which his ineffectiveness claim is premised, he

is not entitled to relief with regard to his ineffectiveness claim.

Commonwealth v. Ousley, 21 A.3d 1238, 1246 (Pa. Super. 2011). Thus,

trial counsel cannot be deemed ineffective for failing to pursue a meritless

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claim. Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en

banc).

Moreover, with regard to the second prong, we have reiterated that trial

counsel’s approach must be “so unreasonable that no competent lawyer would

have chosen it.” Commonwealth v. Ervin, 766 A.2d 859, 862-863 (Pa.

Super. 2000) (quoting Commonwealth v. Miller, 431 A.2d 233 (Pa. 1981)).

Our Supreme Court has discussed “reasonableness” as follows:

Our inquiry ceases and counsel’s assistance is deemed
constitutionally effective once we are able to conclude that the
particular course chosen by counsel had some reasonable basis
designed to effectuate his client’s interests. The test is not
whether other alternatives were more reasonable, employing a
hindsight evaluation of the record. Although weigh the
alternatives we must, the balance tips in favor of a finding of
effective assistance as soon as it is determined that trial counsel’s
decision had any reasonable basis.

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (quoting

Commonwealth ex rel. Washington v. Maroney, 235 A.2d 349 (Pa.

1967)) (emphasis in original).

In addition, we are mindful that prejudice requires proof that there is a

reasonable probability that, but for counsel’s error, the outcome of the

proceeding would have been different. Pierce, 786 A.2d at 213. “A failure

to satisfy any prong of the ineffectiveness test requires rejection of the claim

of ineffectiveness.” Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa.

2009) (citing Commonwealth v. Sneed, 899 A.2d 1067 (Pa. 2006)). Thus,

when it is clear that a petitioner has failed to meet the prejudice prong of an

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ineffective-assistance-of-counsel claim, the claim may be disposed of on that

basis alone, without a determination of whether the first two prongs have been

met. Commonwealth v. Baker, 880 A.2d 654, 656 (Pa. Super. 2005).

Further, it is presumed that the petitioner’s counsel was effective, unless

the petitioner proves otherwise. Commonwealth v. Williams, 732 A.2d

1167, 1177 (Pa. 1999). Moreover, we are bound by the PCRA court’s

credibility determinations where there is support for them in the record.

Commonwealth v. Battle, 883 A.2d 641, 648 (Pa. Super. 2005) (citing

Commonwealth v. Abu-Jamal, 720 A.2d 79 (Pa. 1998)).

Appellant first argues that the PCRA court erred in failing to determine

that his trial counsel was ineffective. Appellant’s Brief at 15-28. Specifically,

Appellant asserts that trial counsel erred in failing to object to the

Commonwealth’s improper argument during closing arguments. Id. at 17-

27. Appellant contends that the prosecutor misrepresented to the jury

evidence offered by expert witnesses regarding Appellant’s physical location,

at the time of the murder, through the use of cell phone technology.

A prosecutor is allowed wide latitude in advocating for the

Commonwealth, including the right to argue all fair deductions from the

evidence, to respond to defense arguments, and to engage in a certain degree

of oratorical flair. Commonwealth v. Judy, 978 A.2d 1015, 1020 (Pa. 2009).

In addition, we are mindful of the following:

A claim of ineffective assistance grounded in trial counsel’s
failure to object to a prosecutor’s conduct may succeed when the

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petitioner demonstrates that the prosecutor’s actions violated a
constitutionally or statutorily protected right, such as the Fifth
Amendment privilege against compulsory self-incrimination or the
Sixth Amendment right to a fair trial, or a constitutional interest
such as due process. To constitute a due process violation, the
prosecutorial misconduct must be of sufficient significance to
result in the denial of the defendant’s right to a fair trial. The
touchstone is fairness of the trial, not the culpability of the
prosecutor.

We further reiterate that a prosecutor has reasonable
latitude during his closing argument to advocate his case, respond
to arguments of opposing counsel, and fairly present the
Commonwealth’s version of the evidence to the jury. The court
must evaluate a prosecutor’s challenged statement in the context
in which it was made. Finally, [n]ot every intemperate or
improper remark mandates the granting of a new trial;
[r]eversible error occurs only when the unavoidable effect of the
challenged comments would prejudice the jurors and form in their
minds a fixed bias and hostility toward the defendant such that
the jurors could not weigh the evidence and render a true verdict.

Commonwealth v. Hanible, 30 A.3d 426, 464-465 (Pa. 2011) (quotation

marks and citations omitted).

In addressing this claim of ineffective assistance, the PCRA court offered

the following analysis:

[Appellant] claims … that [trial counsel] was ineffective for
failing to object to [the prosecutor’s] alleged misrepresentation of
the cell phone testimony during her closing argument. This claim
… lacks merit since the Commonwealth’s expert and [Appellant’s]
experts presented conflicting testimony about where [Appellant]
was located when various cell phone calls were made at times
close to the murder. The Commonwealth’s expert claimed that
the phone calls showed that [Appellant] was near the scene of the
murder. [Appellant’s] expert claimed that the calls showed
[Appellant] was on the other side of town at the time of the
murder. [The prosecutor] chose to re-iterate her expert’s version
of the cell phone expert testimony during her closing argument.
(Ev. Hrg. Tr. p. 75-76). No objection was warranted. [Trial
counsel] was then able to re-iterate the defense expert’s

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conclusions to the contrary during his closing argument. The fact
that the jury believed the Commonwealth’s expert over the
defenses expert does not constitute ineffective assistance of
counsel.

PCRA Court Opinion, 9/10/18, at 17-18. We agree that Appellant failed to

demonstrate that the prosecutor’s comments during closing argument violated

a constitutionally or statutorily protected right.

The record reflects that the Commonwealth gave a twenty-three-page

closing argument. N.T., 5/13/15, at 130-153. The following excerpt is the

allegedly offensive comment made during the closing statement:

So we back up to here. Here, ironically enough, is going to
put us between that 2:35 and that 2:43 number before
[Appellant] starts coming back this way. So we know that around
the time the shot was fired, he’s there. His phone is there. His
phone is picking up that tower.

Id. at 140.

We do not agree with Appellant’s conclusion that this statement by the

prosecutor was an invalid reflection of the evidence presented at trial. Rather,

our determination is supported by the following testimony offered by trial

counsel during the PCRA court’s evidentiary hearing:

Q. So it’s fair to say … that your defense was primarily predicated
on the expert witness; is that correct?

A. Absolutely. [The defense expert], just his testimony taking a
very technical subject, he was able to break it down and discuss
it in [l]ayman’s terms. And what was so critical about his
testimony was that he described each cell tower, how the cell
tower works, you know, the grid coordinates that are on each cell
tower, what that means in regards to whether the tower pinged
from east, west, north, or south. And you know, I also had
concerns about, you know, the information that [Appellant] had

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given us because there were cell phone calls that were at least
attributed to his phone that night and I was very concerned about
what he was saying, those cell phone times, and the [the defense
expert], how he had triangulated the phone calls. I was much
more confident in [the defense expert].

Q. And again, this is not a precise science, it’s not like a GPS where
you can precisely place where the cell phone transmission was
made from; is that correct?

A. That is correct, sir.

Q. It’s basically where it pings off the nearest available tower; is
that correct?

A. Yes, sir. There [are] some variables to that based on
atmosphere, conditions, of course, the direction that the phone is
pointed in, there are variables to that. But that is correct, sir.

Q. Were you fairly confident that your expert’s testimony either
exculpated [Appellant] or served to provide reasonable doubt in
his guilt of the crime?

A. I did, sir.

Q. And it was to your benefit and advantage that you wanted the
jury to be able to comprehend and fairly evaluate the expert
testimony, both your expert and the Commonwealth’s expert, is
that correct?

A. Absolutely. The Commonwealth did call somebody from one of
the cell phone companies and I thought [the defense expert] was
far superior to his testimony.

Q. Do you have a recollection of [the prosecutor] making
reference in her closing argument to the expert testimony,
including your defense expert placing [Appellant] in the vicinity of
The Bearded Lady at 2:42 a.m. in the morning?

A. Oh, if it’s in the transcript I’m sure we both addressed the cell
phone evidence extensively.

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Q. Do you believe that statement was a good faith reference and
supported in the evidentiary record that it did place [Appellant] on
the east side at that time period?

A. Absolutely. The cell phone expert presented by the
Commonwealth that would have definitely been supported by his
testimony.

N.T., 5/11/18, at 70-72.

Upon review, it is our determination that the prosecutor’s comment was

an effort to present the Commonwealth’s version of what the evidence

established. Moreover, to the extent that we could conclude that the

prosecutor’s recap of the evidence was not an accurate reflection of the

testimony presented at trial, it is our determination that the remark would not

mandate a new trial. The passing comment by the prosecutor about where

Appellant’s cell phone was picking up on a particular tower did not have the

unavoidable effect of prejudicing the jurors and forming in their minds a fixed

bias and hostility toward Appellant such that they could not weigh the

evidence and render a true verdict. Hence, there is no merit to Appellant’s

underlying argument that trial counsel was ineffective for failing to object

during the closing argument. Accordingly, this claim of ineffective assistance

lacks merit.

Appellant last argues that the PCRA court erred in concluding that his

claim of ineffective assistance of counsel, with regard to an alleged Brady

violation, lacked merit. Appellant’s Brief at 29-49, and Appellant’s Addendum

to Brief at 1A-5A. Appellant contends that the Commonwealth violated the

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provisions of Brady by failing to disclose an offer to the lone eyewitness for

favorable treatment in his unrelated personal criminal matter in exchange for

testimony at Appellant’s trial.

This Court has summarized the law pertaining to Brady as follows:

In Brady, the United States Supreme Court held that
“the suppression by the prosecution of evidence
favorable to an accused upon request violates due
process where the evidence is material either to guilt
or to punishment, irrespective of the good faith or bad
faith of the prosecution.” Brady supra at 87, 83 S.Ct.
1194.

This Court has held that “to prove a Brady violation,
the defendant must show that: (1) the prosecutor has
suppressed evidence; (2) the evidence, whether
exculpatory or impeaching, is helpful to the
defendant; and (3) the suppression prejudiced the
defendant.” Commonwealth v. Pagan, 597 Pa. 69,
950 A.2d 270, 291 (2008) (citing Commonwealth v.
Carson, 590 Pa. 501, 913 A.2d 220, 245 (2006)).

Commonwealth v. Busanet, 54 A.3d 35, 48 (Pa. 2012).
“Brady’s mandate is not limited to pure exculpatory evidence;
impeachment evidence also falls within Brady’s parameters and
therefore must be disclosed by prosecutors. U.S. v. Bagley, 473
U.S. 667, 677, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).”
Commonwealth v. Haskins, 2012 PA Super 223, 60 A.3d 538,
546, 2012 WL 4841446, *6 (Pa. Super. 2012). “The burden rests
with Appellant to ‘prove, by reference to the record, that
evidence was withheld or suppressed by the prosecution.’
Commonwealth v. Porter, 556 Pa. 301, 728 A.2d 890, 898
(1999) (citations omitted) (emphasis added).” Commonwealth
v. Sneed, 45 A.3d 1096, 1116 (Pa. 2012). “A witness’s
assumption that he will benefit from cooperating in the
prosecution of the defendant, without more, is insufficient to
establish that an agreement existed, and does not trigger Brady
disclosure requirements.” Busanet, supra at 49 (citation
omitted).

Commonwealth v. Nero, 58 A.3d 802, 809-810 (Pa. Super. 2012).

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Moreover, we observe that pretrial discovery in criminal cases is

governed by Pa.R.Crim.P. 573. The rule lists certain items and information

that are subject to mandatory disclosure by the Commonwealth when they

are (1) requested by the defendant, (2) material to the case, and (3) within

the possession or control of the prosecutor. Pa.R.Crim.P. 573(B). Mandatory

discovery includes any evidence favorable to the accused that is material to

either guilt or punishment. Pa.R.Crim.P. 573(B)(1)(a). As this Court has

stated “[t]he law is clear that a criminal defendant is entitled to know about

any information that may affect the reliability of the witnesses against him.”

Commonwealth v. Copeland, 723 A.2d 1049, 1051 (Pa. Super. 1998)

(citing Commonwealth v. Moose, 602 A.2d 1265 (Pa. 1992)).

“A defendant seeking relief from a discovery violation must demonstrate

prejudice. ... [He] must demonstrate how a more timely disclosure would

have affected his trial strategy or how he was otherwise prejudiced by the

alleged late disclosure.” Commonwealth v. Causey, 833 A.2d 165, 171 (Pa.

Super. 2003).

The PCRA court offered the following detailed discussion addressing

Appellant’s claim of ineffective assistance pertaining to the alleged Brady

violation, which we adopt as our own:

Here, Appellant’s claims ... all relate to trial counsel’s failure
(or PCRA counsel’s failure to allege trial counsel’s failure) to
adequately challenge a purported Brady violation and/or
prosecutorial misconduct concerning Javon Martin’s receipt of
favorable treatment in exchange for his trial testimony against
[Appellant]. Martin was a key witness for the prosecution. At

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trial, he identified Appellant as the shooter, but prior to trial he
did not come forward with this information to police until he had
been arrested on a bench warrant for his own parole/probation
violation. The record reveals that Javon Martin did, in fact, receive
favorable treatment in his parole revocation case in large part due
to ADA Erin Connelly’s intervention on his behalf.

However, the fact of Martin’s deal with the prosecution was
disclosed in discovery to the defense (PCRA Evidentiary Hearing
Tr., p. 48-49) and openly admitted during Martin’s direct and cross
examinations. (See Trial Transcript, pp. 71-73, 77-78). In fact,
on cross examination, Appellant’s attorney used a letter from
Martin to Connelly asking for assistance in his own criminal
matter. That letter had been disclosed by Connelly prior to trial.
(PCRA Ev. Hr. Tr. p., 49; Trial Tr. Day 2, pp. 78-79). The
prosecution noted that they did not offer Martin assistance until
AFTER he spoke with police. Only after Martin made statement to
police, did Attorney Connelly go to bat for Martin at his subsequent
revocation hearing, a fact which Attorney Connelly freely admitted
while questioning Javon Martin at [Appellant’s] murder trial:

Q. [ATTORNEY CONNELLY]: And at some point you
actually meet me at the police station that evening,
correct?

A. [JAVON MARTIN]: Yeah, after everything, after I
made my statement.

Q. After you’ve given your statement?

A. Yeah:

Q. And do I make you any promises about anything I
can do to help you out?

A. No.

Q. After that, you go back into court for your
revocation, correct?

A. Yes.

Q. All right. And I asked the judge to let you out of
jail, right?

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A. Yes.

Q. Did you know I was going to do that?

A. No.

(Trial Tr., Day 2, p. 71). The only observable issue in this
exchange is not whether the prosecution revealed the fact they
assisted Martin at his revocation hearing, which was made
abundantly clear to the jury, but rather whether Martin had
foreknowledge of that assistance. In the above exchange, Martin
denies knowing that Connelly would show up at his revocation
hearing. However, at Javon Martin’s revocation hearing Attorney
Connelly tells the revocation judge that after Martin made his
statement to the police she told him that she “would come to bat
for him” at his revocation hearing. ADA Connelly addressed the
revocation [c]ourt as follows:

MS. CONNELLY: Thank you, your Honor. You have
the benefit of the revocation summary here, as well
as the remarks by the Adult Probation officers.

I’m actually familiar with Mr. Martin. He’s
helping me out with something big, and he has been
very cooperative. He, in fact, upon being asked to
help agreed to immediately before anything - before
anyone offered him anything, and after the fact I told
him that I would come to bat for him in court here
today.

I respect that probation had difficulty with him
and that they couldn’t - and that he didn’t report
immediately. I guess I would be taking a risk here
going to bat for Mr. Martin, and he understands that,
but I would ask that he be paroled for the remaining
ten months of his sentence, that he continue to work,
and that he be made to continue his cooperating with
the Commonwealth as part of his probationary
sentence.

Mr. Martin, along with whatever is required by
his probation officers, will also be coming to see me
once a month to touch base.

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THE COURT: All right. Okay. Very well. And I read
the letters that you did send me too.

So at case number 65 of 2013, what I’ll do is re-
impose the sentence that was already given...

(Javon Revocation Hearing Transcript, 9/19/14, p. 7). Martin’s
original sentence was re–imposed and he was released on parole
the next day. (Supplemental Petition, p. 5). He promptly
absconded to Tennessee. He was found and returned to the Erie
County Prison, where he remained to serve his sentence. N.T.
(Day 3), p. 132-133. While serving the remainder of the
revocation sentence, Martin testified at Appellant’s murder trial in
May of 2015.

In her closing argument, Attorney Connelly told the jury that
Javon Martin [did not] know she was going to show up at his
probation hearing and tell the judge that he should be released:

MS. CONNELLY: ... We brought [Martin] over after
we got his name and sat him down, were you there?
Yea, I was there. What happened?

And what does he do? He gave a video-taped
statement to the police saying this is what happened,
this is what I saw. And you know what, because he
did that, I did to go the Court. He didn’t know I was
going to. I showed up at his probation hearing and I
said, let him out, he’s doing the right thing, let him
out. He didn’t know I was going today that. (sic) He
didn’t know how long he was sitting there. He didn’t
even know I was coming to his hearing. And we let
him out.

N.T. (Day 3) at 132 (emphasis supplied). The question of when
Martin knew Connelly would help him at his revocation hearing
was addressed at the PCRA evidentiary hearing:

Q. [ATTORNEY HATHAWAY]: Now, in the interim
between when he was brought in on the detainer and
his actual revocation proceeding, did you ever
represent to Mr. Martin that you would appear on his
behalf at the revocation?

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A. [ATTORNEY CONNELLY]: No, I don’t believe I
had any conversations with Mr. Martin during that
time frame. I don’t recall, I guess I could say fairly I
don’t recall. I know he wasn’t promised anything prior
to giving his statement. At what point I told him, if I
told him, which I don’t believe I did that I would show
up at his revocation, I don’t believe I did. I believe I
just went there and did that because he was doing the
right thing.

(PCRA. Ev. Hr. Tr., pp. 45-46).

A claim brought under Brady v. Maryland, 373 U.S. 83
(1963), challenges the Commonwealth’s failure to produce
material evidence. Specifically, a Brady claim requires a petitioner
to show “(1) the prosecutor has suppressed evidence, (2) the
evidence, whether exculpatory or impeaching, is helpful to the
defendant, and (3) the suppression prejudiced the defendant.”
Commonwealth v. Carson, 913 A.2d 220, 244 (Pa. 2006). The
record reveals no suppression of material evidence by the
prosecution in this case. Furthermore, the evidence suppressed
by the prosecutor must be material, such that there is a
reasonable probability that, had the evidence been disclosed to
the defense, the outcome of the proceeding would have been
different. Commonwealth v. Burke, 781 A.2d 1136, 1141 (2001).

Here, even had the jury known that ADA Connelly told
Martin, after he provided his videotaped deposition to the police,
but before his revocation hearing, that she would go to bat for him
at his revocation hearing, it would not have made a substantial
difference in the outcome of the trial. Therefore, we find that
whether Attorney Connelly told Martin she would go to bat for him
before or at his revocation hearing is a non-material issue. The
important facts are that: (1) prior to trial Connelly fully disclosed
her promise to help Martin at his revocation hearing; (2) at trial,
Martin’s deal with the prosecution was made known to the jury;
and (3) Connelly did not promise Martin any help until after Martin
made his statement to the police in which he identified [Appellant]
as the shooter. Appellant’s ... group of claims is therefore without
merit.

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PCRA Court Opinion, 9/10/18, at 9-12 (footnote omitted) (emphasis in

original).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/20/2019

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