J-S27008-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
HAKIM ABDUL WAKEEL :
:
Appellant : No. 1772 EDA 2016
Appeal from the PCRA Order May 3, 2016
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0003579-2008
BEFORE: GANTMAN, P.J., OTT, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 09, 2017
Appellant, Hakim Abdul Wakeel, appeals from the order entered in the
Northampton County Court of Common Pleas, which denied his first petition
filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
The PCRA court opinions fully and correctly set forth the relevant facts
and procedural history of this case. Therefore, we have no need to restate
them.
Appellant raises one issue for our review:
DID THE PCRA COURT ERR BY CONCLUDING THAT THE
CLAIM UNDERLYING [APPELLANT]’S ASSERTION OF PRIOR
____________________________________________
1
42 Pa.C.S.A. § 9541-9546.
_____________________________
*Retired Senior Judge assigned to the Superior Court.
J-S27008-17
COUNSELS’ INEFFECTIVENESS, I.E., THE BRADY[2] CLAIM,
WAS WITHOUT ARGUABLE MERIT?
(Appellant’s Brief at 4).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s
determination and whether its decision is free of legal error.
Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied,
612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the
findings of the PCRA court if the record contains any support for those
findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal
denied, 593 Pa. 754, 932 A.2d 74 (2007). We give no such deference,
however, to the court’s legal conclusions. Commonwealth v. Ford, 44
A.3d 1190 (Pa.Super. 2012). Traditionally, credibility issues are resolved by
the trier of fact who had the opportunity to observe the witnesses’
demeanor. Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79
(1998), cert. denied, 528 U.S. 810, 120 S.Ct. 41, 145 L.Ed.2d 38 (1999).
Where the record supports the PCRA court’s credibility resolutions, they are
binding on this Court. Id.
The law presumes counsel has rendered effective assistance.
Commonwealth v. Gonzalez, 858 A.2d 1219, 1222 (Pa.Super. 2004),
appeal denied, 582 Pa. 695, 871 A.2d 189 (2005). To prevail on a claim of
____________________________________________
2
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
-2-
J-S27008-17
ineffective assistance of counsel, a petitioner must show, by a
preponderance of the evidence, ineffective assistance of counsel, which, in
the circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or innocence could
have taken place. Commonwealth v. Turetsky, 925 A.2d 876, 880
(Pa.Super. 2007), appeal denied, 596 Pa. 707, 940 A.2d 365 (2007). The
petitioner must show: (1) the underlying claim has arguable merit; (2)
counsel lacked a reasonable strategic basis for his action or inaction; and (3)
but for counsel’s errors and omissions, there is a reasonable probability the
outcome of the proceedings would have been different. Id. “The petitioner
bears the burden of proving all three prongs of the test.” Id. “Where it is
clear that a petitioner has failed to meet any of the three, distinct prongs of
the…test, the claim may be disposed of on that basis alone, without a
determination of whether the other two prongs have been met.”
Commonwealth v. Steele, 599 Pa. 341, 360, 961 A.2d 786, 797 (2008).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinions of the Honorable Paula A.
Roscioli, we conclude Appellant’s issue merits no relief. The PCRA court’s
opinions comprehensively discuss and properly dispose of the question
presented. (See PCRA Court Opinion, filed July 28, 2016, at 1-3; PCRA
Court Opinion, filed May 3, 2016, at 4-18) (finding: Julio Lopez testified at
Appellant’s trial that he participated in burglary with Appellant and identified
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J-S27008-17
Appellant as one of perpetrators; Lopez denied Commonwealth had
promised him consideration in Lopez’s then-pending criminal case in
exchange for his testimony; at Appellant’s initial PCRA hearing, Lopez also
denied Commonwealth had made him promises before he testified at
Appellant’s trial; Lopez disavowed written statement of private investigator,
Sharon Williams, in which Lopez said counsel had told him Commonwealth
had agreed to seek lesser sentence against him if he testified against
Appellant; Lopez’s counsel also testified at Appellant’s initial PCRA hearing,
and stated Commonwealth did not offer plea negotiation before Lopez
testified against Appellant; at most recent PCRA hearing, Lopez recanted his
prior testimony; Lopez said Commonwealth had told him he could plead to
charges to receive specific sentence if he testified; Lopez then adopted Ms.
Williams’ written statement; Lopez’s testimony at most recent PCRA hearing
was incredible; record belies Appellant’s assertion that Lopez reached
agreement with Commonwealth before he testified at Appellant’s trial;
additionally, Ms. Williams’ statement is unreliable because she embellished
her previous role in Pennsylvania State Police and lacked understanding of
facts of case when she interviewed Lopez; even if PCRA court did credit
Lopez’s recantation testimony, Appellant was not entitled to PCRA relief;
Lopez’s testimony at Appellant’s trial was not crucial to Appellant’s
convictions, given significant other evidence to support Appellant’s
convictions; Lopez did not recant his testimony regarding events leading up
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to incident and his identification of Appellant as one of perpetrators; also,
Appellant challenged at trial Lopez’s credibility when he elicited testimony
from Lopez to demonstrate Lopez also faced charges arising from same
incident; accordingly, Appellant’s Brady violation claim lacks arguable merit
and there is no reasonable probability that outcome of Appellant’s trial would
have differed if jury knew that Commonwealth had made promise to Lopez
in exchange for his testimony against Appellant; PCRA court’s statement in
its November 12, 2013 opinion concerning potential materiality of Lopez’s
recantation testimony as impeachment evidence does not represent law of
case; PCRA court did not state Lopez’s identification of Appellant at trial was
material to Appellant’s conviction, but that existence of
promise/understanding between Commonwealth and Lopez would be
material evidence subject to disclosure under Brady; court had previously
determined that Lopez’s identification testimony concerning Appellant was
not crucial to outcome of trial because there was ample other evidence
against Appellant). The record supports the PCRA court’s rationale.
Accordingly, we affirm on the basis of the PCRA court’s opinions.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/9/2017
-5-
Circulated 05/30/2017 03:00 PM
IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY
COMMONWEALTH OF PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA
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HAKIM A. WAKEEL,
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STATEMENT PURSUANT JO PENNSYLVANIA RULE
OF APPELLATE PROCEDURE 1925(a)
AND NOW, this 28th day of July 2016, we hereby issue the following
Statement pursuant to Pennsylvania Rule of Appellate Procedure 1925(a):
On June 8, 2016, this Court received a timely Notice of Appeal from our May
3, 2016 Order of Court denying Defendant's amended PCRA petition, said Notice
having been filed on May 27, 2016. On June 9, 2016, we issued an Order pursuant
to Pennsylvania Rule of Appellate Procedure 1925(b), directing Defendant to file of
record and serve upon the undersigned a concise statement of the errors
complained of on appeal no later than twenty-one (21) days from the date of said
Order. Counsel for Defendant delivered a timely statement of such perceived errors
on June 28, 2016.
In his statement, Defendant raises two errors of which he complains. First,
Defendant contends that this Court erred in concluding that the testimony offered
at his most recent PCRA hearing by Julio Lopez was not credible. Our reasons for
concluding that Lopez was not credible are thoroughly set forth in our May 3, 2016
Opinion, and accordingly no further statement on this point is required.
Second, Defendant contends that we erred in concluding that Lopez's trial
testimony was not material for the purpose of establishing a Brady violation,
because(a) a determination of the materiality of said testimony was the law of the
case, and (b) Lopez's testimony was "crucial to the Commonwealth's case,"
because the other evidence linking Defendant to the crimes at issue was
"underwhelming." With respect to Defendant's argument regarding the law of the
case, we can only surmise that Defendant refers to the following statement in our
November 12, 2013 Opinion addressing his prior PCRA petition: "[A]ny promise or
understanding between the Commonwealth and Lopez with respect to Lopez's
testimony against this Defendant would be material impeachmentevidence subject
to disclosure under Brady and its progeny, given that Lopez was a key fact witness
for the Commonwealth[.]" Contrary to Defendant's argument on the present
occasion,.this statement does not represent the law of the case with respect to the
materiality of Lopez'strial testimony. Defendant conflatesour statements regarding
impeachment evidence and trial testimony identifying Defendant. We did not state
in our 2013 Opinion that Lopez'sidentification of Defendantat trial was material to
his conviction, but rather that the existence of a promiseor understanding between
the Commonwealth and Lopez would be material evidence subject to Brady
disclosure requirements. Importantly, we have found, both in 2013 and in 2016,
that such impeachment evidence does not and did not exist. Furthermore, as we
discussed at length in our May 3, 2016 Opinion, Lopez's identification testimony
with respect to Defendant at trial was not crucial to the outcome of the trial, as
Page 2 of 3
there was ample other evidence connecting Defendant to the crimes at issue, even
in the absence of any identification testimony by Lopez.
In all other respects, Defendant's assertions of error are fully addressed in
our May 3, 2016 Opinion, and no further statement on our part is required at the
present time.
BY THE COURT:
/ 41,J.. .A. l.Mc/ol,
PAULA A. ROSCIOLI, J.
Page 3 of 3
Circulated 05/30/2017 03:00 PM
IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY
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OPINION OF THE COURT ; N
This matter is presently before the Court for disposition of Defendant
Hakim Abdul Wakeel's amended petition for post-conviction collateral relief, filed
pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq.
Defendant Hakim A. Wakeel (Defendant) was convicted on May 18, 2009 of four
counts of robbery, two counts of aggravated assault, one count of burglary, four
counts of recklessly endangering another person, four counts of unlawful
restraint, five counts of terroristic threats, two counts of simple assault, and
related conspiracy charges, all stemming from an armed robbery at the home of
James Garcia (Garcia) in Bethlehem, Pennsylvania in which he participated on
July 26, 2007. Daniel Rivera, a friend of Garcia, was killed during the course of
the robbery, but Defendant was acquitted of all homicide charges. Three other
individuals were also charged in connection with the robbery - Angel
Echevarria, Julio Lopez and Susan Stohl. Another male, whose identity has not
been determined by law enforcement, was also involved in the robbery.
Defendant was originally sentenced on June 12, 2009, and, following an
appeal of that sentence to the Superior Court, was resentenced on February 23,
2011. Thereafter, he filed another direct appeal, and the Superior Court
affirmed his second sentence on rv\o.rc..l1 JJ?012. On April 10, 2013, Defendant
timely filed his original PCRA petition, which this Court ultimately denied on
November 12, 2013. Prior to this Court's denial of his petition, Wakeel
requested to proceed prose, and to file an amended brief. His request to file an
amended brief was denied by this Court, as his appointed counsel had already
filed a brief prior to being withdrawn at Defendant's request. On appeal, the
Superior Court remanded the matter with instructions to conduct a hearing in
accordance with Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), to ensure
that Defendant's request to proceed pro se was knowing and intelligent, and to
permit Defendant to file an amended petition raising a claim of his PCRA
counsel's ineffectiveness.
On May 27, 2015, Defendant advised this Court by way of
correspondence that he did not wish to attend a Grazier hearing because he had
retained private counsel. On July 6, 2015, present counsel for Defendant
entered his appearance, rendering a Grazier hearing unnecessary. Accordingly,
on July 13, 2015, this Court issued an Order formally granting Defendant leave
to file an amended PCRA petition, within 60 days thereafter. Defendant's
amended petition was filed September 11, 2015, and served upon the
undersigned on September 29, 2015. On October 30, 2015, an issue-framing
Page 2 of 18
conference was held, at which time counsel for Defendant requested to file a
discovery motion, seeking discovery of correspondence sent to either this Court
or the Northampton County Office of the District Attorney by Julio Lopez (Lopez)
concerning Lopez's contention that, following his plea to third degree murder in
connection with the death of Daniel Rivera, he did not receive the sentence he
had been promised in exchange for his cooperation as the Commonwealth's
witness in this case and in the prosecution of Angel Echevarria. The discovery
motion was filed November 9, 2015, and denied on November 18, 2015, on the
grounds that no such correspondence exists. A hearing on Defendant's amended
PCRA petition was scheduled for January 11, 2016, and later continued to
February 11, 2016 due to the unavailability of Defendant's counsel on the
January date. The hearing in fact took place on February 11, 2016, and a
briefing schedule was set.1 Both Defendant and the Commonwealth have now
filed briefs in support of their respective positions, and the matter is now ready
for disposition by this Court.
In his amended PCRA petition, Defendant contends that both Attorney
David Mischak, who represented him at trial and on direct appeal, and Attorney
Brian Monahan, who represented him in connection with his original PCRA
1 At the close of the hearing, Defendant's counsel neglected to move his two exhibits into
evidence, but later requested, via a Motion to Re-Open Record, that the PCRA hearing
record be re-opened for the limited purpose of formally admitting those two exhibits. The
Commonwealth has not opposed said motion and, accordingly, we have entered an Order
admitting those exhibits, as we would have if counsel had moved their admission at the
hearing. We have not, however, admitted Defendant's proposed PCRA Exhibit 3, alleged to
be a copy of correspondence sent by Julio Lopez to this Court in January 2011, as such
exhibit contains hearsay that was not Introduced at the time of the hearing and about which
Lopez has not been cross-examined.
Page 3 of 18
petition, "were ineffective for failing to properly preserve, present, and argue a
meritorious Brady claim." (Def. Am. Pet., 1129). Brady v. Maryland, 373 U.S. 83
(1963). More specifically, Defendant contends that, following Lopez's guilty plea
in November 2010 and sentencing in January 2011, Attorney Mischak should
have reviewed the transcripts thereof and liled a motion pursuant to Pa.R.C.P.
720(c), relating to after-discovered evidence, on the basis of statements made
in those proceedings that Defendant contends form a basis for his Brady claim.
Furthermore, he alleges that Attorney Monahan was ineffective for (a) failing to
allege that Attorney Mischak was ineffective, and (b) failing to ensure the
attendance of witness Sharon Williams at his first PCRA hearing in order to
impeach the testimony given by Lopez on that occasion, in support of
Defendant's Brady claim.
The heart of the matter is Defendant's contention that the Commonwealth
violated the requirements of Brady by failing to disclose to Defendant that there
was an understanding between Lopez and the Commonwealth such that Lopez
would receive favorable treatment in exchange for his testimony against
Defendant, and that Defendant is entitled to a new trial as a result of this
violation. Defendant bears the burden to prove this constitutional violation by a
preponderance of the evidence. 42 Pa.C.S. § 9543(a). Having considered the
entire record, we find that Defendant's Brady violation claim lacks arguable
merit, and that there is not a reasonable probability that, but for the omissions
of Attorneys Mischak and Monahan, the result of Defendant's trial would have
Page 4 of 18
been different, and accordingly Defendant's amended PCRA petition must be
denied. Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).
As Defendant accurately argues, Brady requires the disclosure to
Defendant of all exculpatory material, including evidence of an impeachment
nature. Commonwealth v. Lesko, 15 A.3d 345 (Pa. 2011). In addition to any
outright promise by the Commonwealth for leniency in consideration for a
witness's favorable testimony, "[a]ny implication, promise, or understanding
that the government would extend leniency in exchange for a witness's
testimony is relevant to the witness's credibility" and therefore subject to
disclosure by the Commonwealth. Commonwealth v. Strong, 761 A.2d 1167,
1171 (Pa. 2000). This is because a "jury's estimate of the truthfulness and
reliability of a given witness may well be determinative of guilt or innocence,
and it is upon such subtle factors as the possible interest of the witness in
testifying that a defendant's life or liberty may depend." Napue v, Illinois, 360
U.S. 264, 269 (1959). A violation of a defendant's constitutional rights under
Brady is proven when a defendant proves each of the following: "(1) the
prosecution concealed evidence; (2) which was either exculpatory evidence or
impeachment evidence favorable to him; and (3) he was prejudiced by the
concealment." Commonwealth v. Simpson, 66 A.3d 253, 264 (Pa. 2013). While
evidence of the type Defendant is suggesting would be impeachment evidence
favorable to him, he has failed to prove either that the Commonwealth
Page 5 of 18
concealed such evidence, or that, even if said evidence· did exist, he was
prejudiced by its concealment.
The alleged impeachment evidence at issue herein consists of testimony
and circumstantial evidence that Defendant contends proves that Lopez was
offered a "deal" in exchange for his cooperation with the Commonwealth by
testifying against Defendant. At trial, Lopez denied that he had been promised
any consideration for his testimony against Defendant. (N.T. 5/14/09, pp.28-32,
63). He continued to deny the existence of any promises at Defendant's first
PCRA hearing, testifying that while he was hoping for a sentence of 10-20
years, the Commonwealth had not promised him anything or negotiated a plea
prior to his trial testimony. (N.T. 9/24/13, pp.41-49). This testimony by Lopez
was supported by the testimony of his attorney, Erv Mclain, Esq., who testified
at the PCRA hearing, "I can tell you unequivocally when I approached the DA's
office prior they said no such luck," and "Quite literally there was no plea
negotiation." (N.T. 9/24/13, pp.34, 35).
At the most recent PCRA hearing, Lopez recanted his prior testimony on
this point, contending that the Commonwealth had told him, "if you help us, we
will help you,'' and told him that he would be allowed to plea to charges which
would give him a 10-20 year sentence. (N.T. 2/11/16, pp.60-69.) He claims
that Attorney Mclain told him and his family that he would make sure that
Lopez did not get more than 10-12 years as his minimum sentence. (N.T.
2/11/16, p.67). Lopez claims now that he lied on each of the prior occasions on
Page 6 of 18
which he testified that there was no deal or understanding with the
Commonwealth prior to his trial testimony, and though he does not recall his
specific conversations with ADA Richard Pepper, he was promised a lesser
sentence than what he received. (N.T. 2/11/16, pp.72, 78). In his most recent
testimony, Lopez also adopted the written statement of private investigator
Sharon Williams, signed by him on April 18, 2013, wherein he contended that
his counsel, Mr. Mclain, "told me that the Commonwealth was not going to give
me a lot of time." (PCRA Ex.2). He further contended therein that he directed
correspondence to Mr. Mclain and this Court following his sentencing, wherein
he lamented the fact that he did not receive the consideration he had been
promised for his trial testimony. We note, as we have previously, that no such
correspondence was received by this Court. Lopez had previously disavowed the
writing of Sharon William at Defendant's first PCRA hearing on September 24,
2013, claiming that Ms. Williams had fabricated portions of the written
statement. We must note that, while Lopez is recanting his prior testimony
regarding this impeachment matter; he has never recanted his core testimony
with respect to the series of events leading to the July 26, 2007 robbery and his
identification of Defendant as one of the perpetrators.
We must note that recantation testimony, as we have here, is "extremely
unreliable." Commonwealth v. Floyd, 484 A.2d 365, 369 (Pa. 1984). "There is
no less reliable form of proof, especially when it involves an admission of
perjury." Commonwealth v. Coleman, 264 A.2d 649 (Pa. 1970). We must
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"assess the credibility and significance of the recantation in light of the evidence
as a whole." Commonwealth v. D'Amato, 856 A.2d 806 (Pa. 2004). There are
several indicia of unreliability with respect to Lopez's recantation testimony in
this case. First, his present testimony is inconsistent with his vehement
testimony to the contrary on numerous prior occasions. He testified at
Defendant's trial on cross examination that he had no deal with the
Commonwealth, and that there was no understanding that he would get "a big
break" after testifying against Defendant. (N.T. 5/12/09, pp.28-29, 32). He
testified consistently at the trial of co-defendant Angel Echevarria, in which he
also testified on behalf of the Commonwealth. (Commonwealth v. Echevarria,
CP-48-CR-2008-1248, N.T. 9/14/10, pp.67-70). Furthermore, his present
testimony is inconsistent with his testimony at the prior PCRA hearing in 2013,
at which time he continued to deny that any promises had been made to him,
or any understanding reached with respect to the disposition of his case. (N.T.
9/24/13, pp.42-45). Having had an opportunity to hear Lopez's testimony on all
of these prior occasions, as well as his present testimony, and to observe his
demeanor on each of those occasions, we have concluded that Lopez is not
being truthful in his present testimony. While we can only speculate as to
Lopez's motivation to fabricate his present testimony, there are clearly potential
motives, including his anger that he did not receive the sentence that he
subjectively expected as consideration for his cooperation, or the fact that he
was violently assaulted and stabbed in prison by fellow inmates who regarded
Page 8 of 18
him as a "snitch" as a result of his prior testimony. He stated at the most recent
hearing:
I didn't give up free information, got beat up, stabbed, almost
killed, for free information. It wasn't free at the end of the day, I
mean[, w]hen you snitch on somebody, there's consequences
behind that. At the end of the day, I didn't get my face slashed,
you know, and stabbed and all that kind of stuff, for free
information. At the end of the day, it wasn't free. I mean, I didn't
expect something but they didn't give me nothing and they even
spoke with my lawyer and my lawyer even told my family.
(N.T. 2/11/16, p.66).
In addition to the conflict between Lopez's present testimony and his past
testimony, we must resolve the conflict between his present testimony and the
past testimony of his plea counsel, Attorney Erv Mclain, as well as the
statements of the prosecuting attorney, ADA Richard Pepper. As we summarized
in our prior Opinion of November 12, 2013:
Attorney Mclain testified that there was no plea agreement for
Lopez whatsoever prior to his testimony against the Defendant.
(N.T. 9/24/13, p.32). In fact, he testified, the prosecutor laughed
at him when he broached the subject; the Commonwealth already
had a great deal of evidence against Lopez, in the form of his own
admissions, which he had giveri to the investigating detective prior
to retaining Attorney Mclain. (N.T. 9/24/13, pp.33-34, 38). Mclain
said that he told Lopez that he was at the mercy of the
Commonwealth, and that while Mclain hoped the Commonwealth
would offer Lopez a negotiated plea as a result of his cooperation,
there was no such promise made. (N.T. 9/24/13, pp.36-37).
Furthermore, Attorney Mclain indicated to the Court at the time of Lopez's
guilty plea that no agreement had been reached in connection with his
cooperation prior to his testimony against Defendant and Echevarria.
(Commonwealth v. Lopez, CP-48-CR-2008-792, N.T. 11/19/10, p.3). Attorney
Page 9 of 18
Pepper indicated for the Commonwealth that this was correct. Id. Were we to
believe Lopez's present version of events, would be required to wholly disregard
the testimony of these two officers of the Court and find that they had both
perjured themselves.
While Lopez's testimony on the present occasion is supported by the
testimony of Sharon Williams, her testimony that Lopez's statements were
consistent with his present testimony is of no value if we find his present
testimony not to be credible, as we have done. Furthermore, we found Ms.
Williams herself to be less than reliable, given her embellishment of her role as
an employee of the Pennsylvania State Police, and her apparent lack of respect
for the authority of the Court, as she testified that she had received a subpoena
to testify at Defendant's first PCRA hearing and failed to appear because she
had not been paid. (N.T. 2/11/16, pp.41, 46, 48-50). We further find Ms.
Williams' testimony to be unreliable given that she clearly lacked an
understanding of the facts of the case when interviewing Lopez, as she was
evidently of the impression that Lopez had pied to first degree murder and
expected to withdraw that plea in exchange for testimony against Defendant.
(PCRA Ex. 2). The record in Lopez's case clearly shows that such a plea never
took place.
Defendant argues that additional evidence of record supports his
contention that Lopez's previous claims that he had no "deal" with the
Commonwealth were false. In his brief, he points to the following: (a) Attorney
Page 10 of 18
Mischak testified on February 11, 2016 that, prior to trial, Defendant was
offered consideration for testifying against others involved in the robbery; (b)
Lopez was incarcerated for approximately three years before pleading guilty;
and (c) statements were made by the Court and counsel at Lopez's plea to the
effect that Lopez had cooperated in the prosecution of Defendant and
Echevarria and was being offered some consideration for that fact. (N.T.
2/11/16, pp.26-28; Commonwealth v. Lopez, CP-48-CR-2008-792, N.T.
11/19/10, pp.2-4). We disagree that these factors require the.conclusion that
the Commonwealth withheld impeachment evidence regarding Lopez.
While it is true that Lopez was offered consideration for his assistance in
the prosecution of Defendant and Echevarria, the record belies Defendant's
contention that an agreement was made prior to his testimony. To the contrary,
all that this evidence shows is that the Commonwealth had significant evidence
against Lopez and it used that fact to its advantage by waiting to prosecute him
until after his testimony, and that it later chose to give him consideration for
this helpful testimony, in lieu of proceeding to a third trial. Unlike Defendant,
Lopez gave numerous incriminating statements to police prior to retaining Mr.
Mclain, thereby making it wholly unnecessary for the Commonwealth to
negotiate a plea with Lopez to gain his cooperation. The fact that the
Commonwealth ultimately elected to permit Lopez to plea to a lesser offense
and receive a sentence that will see him released from prison well into his
retirement years is not evidence that there were negotiations prior to his
Page 11 of 18
testimony. As Attorney Mclain testified, Lopez found himself at the mercy of the
Commonwealth, given their evidence against him, and he evidently elected to
cooperate in hopes of ingratiating himself with ADA Pepper.
At best, the record illustrates that Lopez's attorney instructed him to
cooperate with the Commonwealth, that Lopez had an unreasonable expectation
of what that cooperation would garner him, and that he is dissatisfied that those
expectations did not come to fruition. In the absence of any credible testimony
that there was any understanding between Lopez and the Commonwealth, we
are left with nothing more than Defendant's supposition that a promise was
made to Lopez in exchange for his testimony, which supposition alone cannot
form the basis for a valid Brady claim. Commonwealth v. Champney, 832 A.2d
403 (Pa. 2003).
Even if we were to credit Lopez's present testimony, we would not find
that it forms a proper basis upon which to grant Defendant PCRA relief. Not only
must impeachment evidence have been concealed in order to entitle a
defendant to a new trial, that undisclosed evidence must have been
constitutionally material. "[I]mpeachment evidence is material, and thus subject
to obligatory disclosure, if there is a reasonable probability that had it been
disclosed the outcome of the proceedings would have been different." Strong,
supra, at 1174. "A 'reasonable probability' is a probability sufficient to
undermine confidence in the outcome" of the trial." United States v. Bagley, 473
U.S. 667, 683 (1985). We must make this assessment in consideration of the
Page 12 of 18
totality of the circumstances of the evidence offered at Defendant's trial. Id.
"The mere possibility that an item of undisclosed information might have helped
the defense, or might have affected the outcome does not establish materiality
In the constitutional sense." Commonwealth v. McGill, 832 A.2d 1014, 1019 (Pa.
2003). The relevant inquiry is "whether in [the] absence [of the impeachment
evidence] he received a fair trial, understood as a trial resulting in a verdict
worthy of confidence." Kyles v. Whitley, 514 U.S. 419, 434 (1995). We note
that Defendant has failed to address this issue in his brief, concluding his
arguments after contending that the record reflects that there was an
understanding between Lopez and the Commonwealth of which Brady required
disclosure.
Considering all of the evidence offered at Defendant's trial, we cannot
come to the conclusion that there is a reasonable probability that the outcome
of the trial would have been different if the alleged impeachment evidence had
been presented to the jury. While Lopez was an important witness in identifying
Defendant as one of the perpetrators of the July 26, 2007 robbery, his
testimony was not crucial to Defendant's conviction, as there was a significant
amount of other evidence to support it. See Commonwealth v. Buehl, 658 A.2d
771 (Pa. 1995) (prosecution's failure to reveal potential bias of witnesses who
had pending criminal charges did not entitle defendant to a new trial where
there was sufficient other evidence to support the conviction, outside of those
witnesses' testimony). Cf. Giglio v. U.S., 405 U.S. 150, 154 (1972) (defendant
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entitled to new trial where evidence of an agreement not to prosecute had been
withheld regarding the state's witness without whom "there could have been no
indictment and no evidence to carry the case to the jury"); Commonwealth v.
Galloway, 640 A.2d 454, 459 (Pa. Super. 1994) (reliability of witness was
determinate of verdict, as she "was the only witness to state that she saw [the
defendant] possess and shoot a gun" and thus the defendant was entitled to a
new trial where impeachment evidence regarding that witness had been
withheld). Moreover, his credibility was tested when the jury learned that he
was facing charges identical to those that Defendant faced. Lopez was examined
on that occasion as follows on direct examination:
Q: Mr. Lopez, you're currently in prison[,] correct?
A: Yes.
Q: You're charged with this homicide[,] are you not?
A: Yes, I am.
Q: Along with a number of other offenses, robbery and
aggravated assault and so on[,] correct?
A: Yes, I am, sir.
Q: Your lawyer is in the courtroom. Is he not?
A: Yes.
Q: Have you made any deals with anybody about what you're
going to get in your case in exchange for your testimony?
A: No. I'm charged the same.
Q: My office offered you absolutely nothing?
A: No, sir.
Q: Mr. McLain, your lawyer, distinguished lawyer, been around
quite some time, he's gotten nothing for you[,] has he?
A: No.
Q: No deals, nothing?
A: Nothing.
Q: You're still facing life imprisonment on this charge?
A: Yes.
(N.T. 5/14/09, pp.28-29). Lopez was then cross-examined as follows:
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Q: You realize under oath that by admitting to that plan, you're
admitting to the charge of second degree murder?
A: Yes.
Q: And you're aware that second degree murder carries a life
sentence?
A: Yes.
Q: And you're telling the ladies and gentlemen under oath that
despite the fact that you're admitting to a crime that carries a
mandatory life sentence, you have no deal with the
Commonwealth?
A: I don't.
Q: No understanding that they're going to cut you a big break
after you're testifying in this case?
A: I don't.
Q: That's something you never brought up with your seasoned
attorney whatsoever?
A: No. He told me to tell the truth. That's it.
Q: And he told you by testifying here in this case that you're not
going to get that life sentence. You're going to get something
substantially less?
A: He never told me.
Q: You told your cell mate not too long ago that you're
expecting to get as low as 10 years on this case, didn't you?
A: No, never.
(N.T. 5/14/09, pp.31-32). Thus, the jury was well aware that Lopez was facing
substantial charges in connection with the armed robbery, and were able to use
that information in evaluating whether he had any bias or interest that would
flavor his testimony, as they did when evaluating the testimony of all of the
witnesses presented.
In identifying Defendant at trial, Lopez testified that he had arranged for
a man he knew as Chucho, from Philadelphia, to assemble some other
individuals to execute the robbery from Garcia's home. He testified that he had
never spoken to Defendant before, but that he met him on the night in question
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prior to the robbery, and had a good opportunity to view the face of the
Defendant, who was riding in the front passenger seat of a van, while he
discussed the evening's plans with Chucho, Defendant, and the third individual
whose identity remains unknown. (N.T. 5/14/09, pp.15-19.) After this
discussion took place, the four men assumed their respective positions around
the Garcia property and waited for a lengthy period before the robbery took
place, during which time Lopez was not with Defendant. (N.T. 5/14/09, pp.19-
21). Lopez observed Defendant initiating the robbery from afar while he hid in
the tree line, as well as fleeing from the Garcia home afterwards, arid had no
contact with him after the robbery. (N.T. 5/14/09, pp.14, 21-24). While this
testimony was important in identifying Defendant at trial, it was not essential to
the Commonwealth's case, as there was ample other evidence linking him to
the crimes charged.
In addition to the identification testimony by Lopez, the Commonwealth
offered the testimony of Garcia, one of the victims in the case. Garcia identified
Defendant at trial as one of the perpetrators, testifying that he had had no
difficulty in viewing the faces of the two black men with guns who approached
him on the pool deck and later escorted him into his home and committed the
crimes detailed above. (N.T. 5/12/09, pp.29-34). He further testified that he
had identified Defendant in a photo lineup during a police interview following
the robbery. (N.T. 5/12/09, p.47)
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Perhaps the most important evidence linking Defendant to the crimes in
this case was not the testimonial evidence from Lopez and Garcia, but evidence
relating to the use of Defendant's cellular phone. In questioning Detective Mark
Diluzio, the lead investigator in the case, the Commonwealth presented
evidence of the records of a cell phone that was assigned to and paid for by
Defendant. (N.T. 5/14/09, p.132). The evidence presented, through testimony
and maps, showed that said phone connected with cell towers in a route from
Philadelphia, where Defendant resided, to Bethlehem, where the robbery took
place, in the hours prior to the robbery; that the phone connected with cell
towers in Bethlehem prior to and around the time of the robbery; and that it
connected with cell towers travelling back to Philadelphia from Bethlehem just
after the robbery took place. (N.T. 5/14/09, pp.133-147). The phone was never
reported stolen. (N.T. 5/14/09, pp.134-135). Moreover, the records indicated
that said phone exchanged numerous calls with Lopez's phone in the days
leading up to the robbery. (N.T. 5/14/09, pp.137-140).
As an additional matter of circumstantial evidence, one of the female
victims of the robbery told police that one of the black male perpetrators had
been wearing stained Timberland boots and, during the course of their
investigation of this matter, police recovered a pair of stained Timberland boots
from Defendant's home, which tested positive for human blood. (N.T. 5/14/09,
pp.85-89). The amount of blood on the boot was insufficient for DNA analysis,
but was determined to be human. (N.T. 5/14/09, p.88). In addition, police
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recovered some old currency from a safe at Defendant's home. (N.T. 5/14/09,
p.170). While Garcia was not able to identify any of those items as being his,
the items were consistent with items that Garcia had reported as stolen
following the robbery. (N.T. 5/14/09, p.171).
Taking all of this evidence together, we cannot conclude that even the
complete absence of Lopez's identification testimony would make a different
verdict in this case reasonably probable. Where such a reasonable probability
does not exist, a defendant is not entitled to relief on Brady grounds. See. e.g .•
Bagley, supra. Accordingly, we find that Defendant's amended PCRA petition
must be denied.
WHEREFORE, we enter the following:
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