J-A12011-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DARNELL BALLARD, :
:
Appellant : No. 3519 EDA 2012
Appeal from the Judgment of Sentence Entered July 3, 2012,
In the Court of Common Pleas of Bucks County,
Criminal Division, at No. CP-09-CR-00001344-2012.
BEFORE: SHOGAN, STABILE and PLATT*, JJ.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 11, 2014
Appellant, Darnell Ballard, appeals from the judgment of sentence
entered in the Court of Common Pleas of Bucks County on July 3, 2012,
following a jury trial. We affirm.
The trial court summarized the factual history of this case as follows:
In December of 2010, the Thirty-Second Statewide
Investigating Grand Jury began hearing evidence concerning a
large scale heroin distribution ring operating in six counties
within the Commonwealth Philadelphia, Chester, Delaware,
Montgomery, Perry and Bucks. The Grand Jury issued three
Presentments: Presentment No. 2, issued March 23, 2011,
Presentment No. 8, issued June 21, 2011 and Presentment No.
18, issued October 13, 2011. Those Presentments collectively
recommended the Attorney General arrest and prosecute 31
individuals, including [Appellant], identified as belonging to the
f the
Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. §
780-113(a), the Corrupt Organizations statute and other
offenses under the Crimes Code as a result of the widespread
__________________
*Retired Senior Judge assigned to the Superior Court.
J-A12011-14
Pennsylvania. Appellant, his uncle Victor Ballard, and his
members of the organization located in Philadelphia which they,
along with another family member, Brian Ballard, then sold in
Bucks County.
Three electronically intercepted telephone calls established
distribution organization. The calls occurred between [Appellant]
and Fausto Gabriel Valdez-Cordero, identified as the number two
member in the
heroin from Fausto Gabriel Valdez-Cordero.
cellular telephone5 to call Fausto Gabriel Valdez-Cordero to
coordinate a pre-arranged meeting between Victor Ballard and
the purchase of forty bundles6 of heroin by Victor Ballard[, as
follows:]
5
That same cell phone was used numerous
time
-Cordero.
6
Agent Timothy Riley testified that one
heroin.
FAUSTO GABRIEL VALDEZ-CORDERO: What time he
be there?
[APPELLANT]: Pop,7 he said
7
Ballard, Anthony Gary, and other drug dealers
when referring to or speaking with Fausto
Valdez-Cordero.
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FAUSTO GABRIEL VALDEZ-
minutes beca
him to meet you first, OK, so let me know.
[APPELLANT]: He said ten minutes, he already
FAUSTO GABRIEL VALDEZ-CORDERO: Huh?
[AP
FAUSTO GABRIEL VALDEZ-CORDERO: Ok.
Thirty minutes later, [Appellant] again called Fausto Gabriel
Valdez-Cordero. The following exchange occurred at that time:
FAUSTO GABRIEL VALDEZ-CORDERO: Yo man, what
up?
[APPELLANT]: He there, Poppy.
FAUSTO GABRIEL VALDEZ-CORDERO: You there?
[APPELLANT]: Yeah, he there now.
FAUSTO GABRIEL VALDEZ-CORDERO: Ok, let me
call him, call my guy . . . .
t this phone.
FAUSTO GABRIEL VALDEZ-CORDERO: Oh, alright.
[APPELLANT]: He got the other phone he called you
on.
FAUSTO GABRIEL VALDEZ-CORDERO: Alright.
The next day, February 5, 2011, Fausto Gabriel Valdez-
. [Appellant] answered:
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[APPELLANT]: Hello.
FAUSTO GABRIEL VALDEZ-CORDERO: Yo Pop.
FAUSTO GABRIEL VALDEZ-CORDERO: What?
get back from the store yet, you gotta call his other
phone.
FAUSTO GABRIEL VALDEZ-CORDERO: You gotta
call . . . .
[APPELLANT]: Ohhh, hold on . . .
FAUSTO GABRIEL VALDEZ-CORDERO: Ohhh, he
callin me right now.
[APPELLANT]: Alright.
In order to prove that the voice on the intercepted calls
was that of [Appellant], the Commonwealth introduced the voice
telephone calls while incarcerated at Bucks County Correctional
Facility were also introduced. Finally, Agent Timothy Riley
testified that he recognized the voice on the three intercepted
telephone calls to be that of [Appellant].
Trial Court Opinion, 3/28/13, at 1 4 (internal citations and one footnote
omitted).
On June 7, 2012, the jury found Appellant guilty of conspiracy to
deliver heroin and three counts of criminal use of a communication facility.
The court sentenced him on July 3, 2012, to a term of incarceration of five
to fifteen years. Appellant filed timely post-sentence motions; following
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hearings on September 19, 2012, and October 5, 2012,1 the trial court
denied the motions on December 7, 2012. Appellant filed a notice of appeal
on December 21, 2012. Both Appellant and the trial court complied with
Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
A. Did the Commonwealth violate its due process obligations
under Brady v. Maryland and its progeny and Pa.R.Crim.P. 573
by failing to disclose that state investigators were not following
basic investigative protocols by failing to document a majority of
investigative interviews and contacts with co-defendants
including Fausto Gabriel Valdez-Cordero, Fausto Ezequiel Valdez-
-
trial notice of intent of raising a defense attacking the reliability,
B. Did the Commonwealth violate its due process obligations
under Brady v. Maryland and its progeny and Pa.R.Crim.P. 573
by failing to disclose the existence of the March 6, 2012,
undocumented exculpatory investigative interview of co-
defendant Fausto Gabriel Valdez-Cordero conducted by state
where co-defendant Fausto Gabriel Valdez-Cordero failed to
identify the Appellant after exposure to incriminating intercepted
phone calls of the Appellant and after failing to otherwise
incriminate the Appellant?
Appellant asserts that the Commonwealth violated Brady v.
Maryland, 373 U.S. 83 (1963), and its progeny and Pa.R.Crim.P. 573 by
1
We note that the transcript from the October 5, 2012 hearing is
erroneously labeled Friday, October 6, 2012. All citations to the transcript
will be noted herein as 10/[5]/12.
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Commonwealth failed to document a majority of investigative interviews and
contacts with Fausto Ezequiel Valdez-Cordero, Fausto Gabriel Valdez-
intent to raise a defense attacking the reliability, thoroughness, and good
faith of the investigation. Appellant maintains that he would have presented
an alternate defense if the Brady evidence had been disclosed to him prior
to trial by attacking the competence, credibility, good faith, and bias of the
main witness against Appellant. Appellant avers that he
would have assailed the original physical identification of Appellant, as well,
if the Brady
A Brady to produce
material evidence. Under Brady:
information material to the guilt or punishment of an accused,
Commonwealth v. Spotz, 18 A.3d 244, 275 76 (Pa. 2011)
(citation omitted). To establish a Brady violation, appellant
must demonstrate: the evidence at issue was favorable to him,
because it was either exculpatory or could have been used for
impeachment; the prosecution either willfully or inadvertently
suppressed the evidence; and prejudice ensued. Id. at 276
..
reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been
Id. (citations omitted).
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Commonwealth v. Walker
le to an accused upon request violates due
process where the evidence is material either to guilt or punishment,
Commonwealth v.
Small, 741 A.2d 666, 676 (Pa. 1999).
The burden of proof is on the defendant to demonstrate
that the Commonwealth withheld or suppressed evidence. The
required to deliver his entire file to defense counsel, but only to
disclose evidence favorable to the accused that, if suppressed,
United States v.
Bagley, 473 U.S. 667, 675, 105 S.Ct. 3375, 87 L.Ed.2d 481
(1985) (footnote omitted). Similarly, this Court has limited the
not provide a
general right of discovery to defendants. Moreover, we have
held that the prosecution is not obligated to reveal evidence
relating to fruitless leads followed by investigators.
mu . . .,
materiality extends to evidence affecting the credibility of
witnesses, rather than merely to purely exculpatory evidence.
Moreover, we have held that the protection of Brady extends to
the d
and to formulate trial strategy. See Commonwealth v. Green,
536 Pa. 599, 640 A.2d 1242, 1245 (1994) (holding that courts
disclose might have had on not only the presentation of the
Commonwealth v. Cam Ly, 980 A.2d 61, 75 76 (Pa. 2009) (some internal
citations omitted).
In making his argument, Appellant also relies upon Pa.R.Crim.P.
573(B)(1)(a), which provides, in relevant part, as follows:
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Rule 573. Pretrial Discovery and Inspection
* * *
(B) Disclosure by the Commonwealth.
(1) Mandatory. In all court cases, on request by the
defendant, and subject to any protective order which
the Commonwealth might obtain under this rule, the
attorney all of the following requested items or
information, provided they are material to the
instant case. The Commonwealth shall, when
inspect and copy or photograph such items.
(a) Any evidence favorable to the
accused that is material either to guilt or
to punishment, and is within the
possession or control of the attorney for
the Commonwealth;
Clearly, the key requirement of Pa.R.Crim.P. 573, whether under Rule
573(B)(1) mandatory or (b)(2) discretionary disclosure, is that the items
requested be material. See Commonwealth v. Johnson, 815 A.2d 563,
573 (Pa. 2002) (stating evidence wit
material only if there is a reasonable probability that, had the evidence been
disclosed to the defense, the results of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine
Commonwealth v. Jones, 637 A.2d 1001,
1004 (Pa. Super. 1997). As our Supreme Court has stated:
[T]he question is not whether the defendant would more likely
than not have received a different verdict with the evidence, but
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whether in its absence he received a fair trial, understood as a
trial resulting in a verdict worthy of confidence. A reasonable
suppression of evidence undermines confidence in the outcome
of the trial. The United States Supreme Court has made clear
that materiality standard is not a sufficiency of the
evidence test. A Brady violation is established by showing 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. Importantly, 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.
Commonwealth v. Hutchinson, 25 A.3d 277, 310 (Pa. 2011) (internal
citations and quotation marks omitted).
The Commonwealth explains that the present case was a year-long
investigation involving numerous witness contacts as well as thirty co-
defendants. The investigation generated twelve DVDs and CDs containing
thousands of pages of documents including: interviews of approximately
nineteen co-defendants; laboratory results; Bristol Township Police reports;
Pennsylvania State Police reports; search warrants and affidavits;
surveillance reports; handwritten surveillance notes; wiretap orders,
applications, attachments, and final orders; cellular telephone tower
locations; criminal histories of Appellant and his co-defendants; Pen/Ping2
2
the cell signal between the phone and the closest cell tower and finding the
last known address where the cell phone transmitted a signal requesting
servi Commonwealth v. Rushing, 71 A.3d 939, 946 (Pa. Super.
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orders, applications and affidavits; prison recordings; voice exemplars;
videos; tens of thousands of hours of audio intercepts; monitor logs;
transcripts; grand jury presentments and transcripts; impeachment evidence
regarding defense witnesses called at trial; and, a list of potential
Commonwealth witnesses. N.T., 10/[5]/12, at 102 106, 127 135.
As the Commonwealth points out, Appellant could have discovered the
Commonwealth Brief at 23. As we stated in Commonwealth v. Rhodes,
Brady violation when the
appellant knew or, with reasonable diligence, could have uncovered the
evidence in question, or when the evidence was available to the defense
from non-governmental sources. Id. at 914 (quoting Commonwealth v.
Chamberlain, 30 A.3d 381, 409 (Pa. 2011) (quotations, quotation marks,
and citations omitted)).
For example, defense counsel stipulated that he received: (1) a BNI
supplement for an interview conducted with Erika Rosa on February 15,
2011; (2) a report of an interview with Fausto Gabriel Valdez-Cordero
conducted on July 21, 2011; (3) a report of an interview with Fausto
Ezequiel Valdez-Cordero conducted on January 25, 2012; and (4) a report of
an interview with Jose Sanchez dated August 10, 2011. N. T., 10/[5]/12, at
2013), petition for allowance of appeal granted in part on other grounds, 84
A.3d 699 (Pa. 2014).
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10 11. In post-sentence motions, Appellant asserted that subsequent
interviews of these four individuals were conducted, that he was not
provided with that information during discovery, and therefore, the
Commonwealth violated its obligation under Brady. The trial court,
the agents had with the aforementioned codefendants resulted in the
Opinion, 3/28/13, at 10. Moreover, our review of the record reveals that the
investigative agents, including Agent Riley, were subpoenaed for trial as
early as March 2012. N.T., 10/[5]/12, at 119; N.T., 3/12/12, at 43. Agent
Riley testified that he would have spoken to defense counsel prior to trial
/12, at 119 120.
Defense counsel, however, did not attempt to speak to Agent Riley or any
other agent. Id. at 120.
The trial court addressed the issue as follows:
As to Erika Rosa, Agent Riley testified that he conducted
approximately three interviews with Rosa after her arrest. She
was not asked to listen to the intercepted telephone
interviewed about [Appellant]. Rosa never provided the
investigators with any evidence which would have exculpated
[Appellant].
As to Fausto Ezequiel Valdez-Cordero, the evidence
established that agents only met with him for a few minutes in
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March of 2012. Fausto Ezequiel Valdez-Cordero refused to
answer questions posed by law enforcement. No report was
written.
As to Jose Sanchez, although the evidence clearly
established that he was a member of the Corrupt Organization,
the evidence also established that he did not have any dealings
with the Bristol Township members of the organization which
included [Appellant]. Nonetheless, his initial interview with
agents was provided to the defense in discovery. In 2012,
agents met with Jose Sanchez for a second time. During that
interview, Sanchez reaffirmed the information he had already
provided during his initial interview which had been reduced to
writing and provided to defense counsel in discovery.
As to Fausto Gabriel Valdez-Cordero, as already stated,
he did not provide information which was relevant to
[Appellant] argues that the Commonwealth violated its
investigative interviews/contacts with Co-Defendants, despite
pre-trial notice of intent of raising a defense
attacking the reliability, thoroughness and good faith of the state
memorialize in a written report each time one of its agents spoke
to or had contact with each of the 30 co-defendants and/or
potential witnesses throughout the course of this on-going
investigation. However, none of those undocumented follow-up
contacts with co-defendants involved [Appellant]. Many of the
follow-up interviews of the various co-defendants not only did
not involve [Appellant] but many times did not involve the
-defendants were being
interviewed regarding other investigations. Since there is no
evidence that the government suppressed, intentionally or
unintentionally, any evidence favorable to the accused, there can
be no discovery violation.
Trial Court Opinion, 3/28/13, at 11 12 (internal citations omitted). Our
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Although the investigation was very well documented, the
investigators were not required to take detailed notes of all investigative
activity, nor record every word said by each co-defendant wholly unrelated
to Appellant during the investigation. See, e.g., Small, 741 A.2d at 676
complete and detailed accounting to the defense of all police investigatory
see also Commonwealth v. Appel, 689
A.2d 891, 907 Brady to
Assuming, arguendo, that Appellant could establish investigators were
required to generate police reports for every detail of the investigation, and
that Appellant could not have discovered the lack of reports with reasonable
diligence, we also conclude he has not demonstrated that the information
was material or exculpatory. Agent Riley testified at the September 19,
2012 post-sentence hearing that he had met with Erika Rosa on a few
occasions for which he had not generated a report. N.T., 9/19/12 at 17 20,
28 29. Appellant acknowledged that the Commonwealth had provided a
report of a February 15, 2011 interview with Ms. Rosa. N.T., 10/[5]/12, at
documented in Supplemental Reports 9 and 14 which were provided to the
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defense. Commonwealth Post-Sentence Hearing Exhibit C-1. None of Ms.
Appellant. N.T., 9/19/12, at 29 33. Agent Riley testified that he questioned
Ms. Rosa about unrelated investigations in Philadelphia as well as other
individuals who had not been charged. Id
County area, not Philadelphia. Indeed, Agent Riley specifically stated that
none of the discussions with Ms. Rosa involved Appellant. Id. at 69 70. He
further testified that Ms. Rosa did not provide any information, exculpatory
or inculpatory, about Appellant. Id. at 70. Further, Erika Rosa was not
called as a witness against Appellant at trial. Moreover, Agent Freddie
Chavez testified at the October 5, 2012 hearing, which was a continuation of
the September 19, 2012 post-sentence hearing, that Erika Rosa never made
any reference to Appellant. N.T., 10/[5]/12, at 75.
Agent Riley testified that he had met with Fausto Ezequiel Valdez-
Cordero on March 6, 2012, but Valdez-Cordero was not cooperative and
down. N.T., 9/19/12 at 37 40. Appellant acknowledged receipt of a report
regarding a January 25, 2012 interview with Valdez-Cordero. N.T.,
10/[5]/12, at 10; Supplemental Report 53; Defense Post-Sentence Hearing
Exhibit U. Valdez-Cordero provided no exculpatory or inculpatory
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information regarding Appellant, and the Commonwealth did not call him as
a witness against Appellant at trial.
The Commonwealth also provided defense counsel with a letter
pertaining to Fausto Ezequiel Valdez-Cordero dated January 26, 2012, which
stated:
[I]nterviews were conducted with Jose Sanchez and Fausto
Ezequiel Valdez-Cordero. Jose Sanchez could not identify your
Ezequiel Valdez-
voice was not played for Valdez-Cordero.
N.T., 10/[5]/12, at 86-87, 131; Commonwealth Post-Sentence Hearing
Exhibit 7; Defense Post-Sentence Motion Exhibit Q. Agent Chavez testified
that he had contact with Fausto Ezequiel Valdez-Cordero regarding the
regarding oth
57.
Agent Riley testified that he met with Jose Sanchez on more than one
occasion and testified that the first interview was documented in a police
report but the remainder were not. N.T., 9/19/12, at 42. Appellant
acknowledged that he received a report of an August 10, 2011 interview
with Sanchez. N.T., 10/[5]/12, at 11. The January 26, 2012 letter
referenced above also included information pertaining to Sanchez. Id. at
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45, which was provided in discovery. Commonwealth Post-Sentence Hearing
Exhibit 4. Agent Riley testified that a May 25, 2012 interview concerned
potential testimony against co-defendant Franklin Vargas. N.T.,
testimony were consistent with his first documented interview, he
subsequently testified inconsistently on the witness stand. Id. at 45 46.
Mr. Sanchez, however, provided no exculpatory or inculpatory information
against Appellant. Id. at 46. Agent Riley testified that the investigation
revealed that Mr. Sanchez did not have any connection to the Bristol
Township suspects, including Appellant. Id. at 82 83. Mr. Sanchez was not
called as a witness against Appellant at trial.
Agent Riley also testified that he spoke with a number of other
N.T., 9/19/12, at 72. Agent Riley specifically testified that none of the
undocumented interviews had anything to do with Appellant. Id. at 72 73.
He further stated that those individuals did not even know Appellant. Id. at
74 75.
Appellant has failed to meet his burden of showing that the
undocumented interviews had impeachment value. As noted above, Fausto
Ezequiel Valdez-Cordero, Fausto Gabriel Valdez-Cordero, Erika Rosa, and
Jose Sanchez did not know Appellant and had no information about him. As
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the Co
Gabriel Valdez-Cordero, the only two co-defendants to be played the three
entirely predictable given they did not know
31.
Finally, Appellant has not established prejudice. He argues that he
was prejudiced because he would have presented an alternate strategy at
inve
statement in light of the fact that Appellant knew prior to trial that
information pertaining to him, including the alibi investigation and the
discovery of his voice on recordings, was not documented. In particular, at
Commonwealth conceded that it had investigated the alibi and was
withdrawing the charge related to the January 31, 2011 drug delivery. N.T.,
1/17/12, at 25. The Commonwealth specifically advised Appellant and the
trial court that there were no written reports pertaining to the investigation
into the alibi. Id. at 27 28, 35. Defense counsel acknowledged this
representation by the Commonwealth. Id. at 33. Despite this knowledge,
Appellant failed to use the information to undermine the credibility of the
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investigation itself or the credibility of the investigators, as he now claims he
would have done.
In his second issue, Appellant alleges that the Commonwealth failed to
disclose the March 6, 2012 undocumented interview of co-defendant Fausto
Gabriel Valdez-Cordero by state investigators, Agents Riley and Chavez,
where Valdez-Cordero failed to identify Appellant in the presence of the
Attorney. He contends he would have challenged the
suppressing the undocumented March 6, 2012 investigative interview with
co-defendant Fausto Gabriel Valdez- Id. at 42 43. Appellant
This contention, as well, lacks merit. The Commonwealth maintains
that Appellant knew, or should have known that Fausto Gabriel Valdez-
Cordero could not identify him. During the September 19, 2012 post-
sentence hearing, Agent Riley testified that he met with Fausto Gabriel
Valdez-Cordero on two occasions. N.T., 9/19/12, at 33. Appellant
acknowledged that he received a report of a July 21, 2011 interview of
Valdez-Cordero. N.T., 10/[5]/12, at 10; Supplemental Report 47; Defense
Post-Sentence Hearing Exhibit X; Commonwealth Post-Sentence Hearing
Exhibit 4. The Commonwealth also provided a pretrial list of potential
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Commonwealth witnesses, and Valdez-Cordero was named. Commonwealth
Post-Sentence Hearing Exhibit 4. The Commonwealth asserts that Appellant
was expressly advised that Valdez-Cordero could not identify him. At the
October 5, 2012 continuation post-sentence hearing, the Commonwealth
noted, without contradiction, that defense counsel was advised prior to trial
that the Commonwealth would not be calling Fausto Gabriel Valdez-Cordero
he cannot identify your
client /[5]/12, at 144 145 (emphasis added). Thus, Appellant
knew prior to trial that Fausto Gabriel Valdez-Cordero had been interviewed
and was on the list as a potential Commonwealth witness, but he could not
identify Appellant. As our Supreme Court stated:
It is impossible, impractical and unnecessary for the police to
record every word said to or by a person during an investigation,
as much of it may be irrelevant or may simply corroborate other
recorded information. Further, since [the] appellant was
provi
investigate on his own by interviewing witnesses before the trial
about any unrecorded conversations and by cross-examining the
witnesses at trial about conversations they had with the police
prior to their official statements.
Small, 741 A.2d at 677.
We agree with the trial court that there is no dispute that prior to trial,
Commonwealth agents played the three relevant telephone recordings of
Fausto Gabriel Valdez-Cordero, and Valdez-Cordero could not identify
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ring. Trial Court Opinion, 3/28/13, at 9 (citing N.T., 9/19/12, at 75 76,
100, 103; N.T., 10/[5]/12, at 71 72). Valdez-
the voice on the recordings as that of Appellant did not constitute
-Cordero spoke to
[Appellant] on the telephone, he never met Appellant and did not know his
ting N.T., 9/19/12, at 102
speaker in the intercepted recordings and would not have been in a position
3/28/13, at 10. We agree.
Based on our review of the complete record, the arguments of the
parties, and the applicable law, we conclude that Appellant has failed to
establish a violation of Brady and failed to show how the evidence, alleged
to have been undisclosed, would have caused a different outcome. Small;
Hutchinson.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/11/2014
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Com. v. Ballard, D.
Combined Opinion