J-S54041-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BRAHEEN ALPHONSO ACRES                     :
                                               :
                       Appellant               :   No. 476 WDA 2018

           Appeal from the Judgment of Sentence February 23, 2018
      In the Court of Common Pleas of Indiana County Criminal Division at
                        No(s): CP-32-CR-0000989-2016


BEFORE: PANELLA, J., LAZARUS, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.:                              FILED OCTOBER 2, 2018

        Braheen Alphonso Acres (Appellant) appeals from the judgment of

sentence imposed after a jury convicted him of aggravated indecent assault,

burglary,1 and related offenses. He challenges the trial court’s denial of relief

on his Batson and Brady2 claims. We affirm.

        The charges against Appellant originate from a succession of events that

occurred in the early morning hours of September 4, 2016, on or around

Wayne Avenue in Indiana, Pennsylvania. Brady Moran testified that he was

asleep in his bedroom on Wayne Avenue when he was woken by Appellant,

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1   18 Pa.C.S.A. §§ 3125(a)(1), 3502(a)(1).

2Brady v. Maryland, 373 U.S. 83 (1963) (due process is offended when the
prosecution withholds evidence favorable to the accused); Batson v.
Kentucky, 476 U.S. 79 (1986) (prosecutorial challenge to potential juror
based solely on race violates Equal Protection Clause).
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who he did not recognize, opening his bedroom door. N.T. Trial, 5/23/17, at

107. Appellant told Moran that he was there with Moran’s roommates and

would lock up when he left, and Moran went back to sleep. In the morning,

Moran and his roommate, William Haley, discovered that items were missing

from their residence.

      Shannon Phillips, who was a guest sleeping in the living room of Moran’s

residence, corroborated that between 3:00 and 4:00 a.m., she saw Appellant

in Moran’s bedroom doorway and heard him say “he heard there was a party

at the house,” but Moran told Appellant there was no party and ordered him

to leave. Id. at 126-127.

      Later that morning, for reasons that are not explained in the record,

police called Haley, Moran’s roommate, about items missing from the

residence, and Haley and Moran went to the police station and claimed them.

Id. at 111, 115.

      Also on the morning of September 4, 2016, Adrianna Lynch was sleeping

on the couch at her residence on Wayne Avenue. Id. at 22. She woke around

6:15 a.m. and Appellant, who she did not know, was performing oral sex on

her. Id. at 26-27. Lynch ordered him to leave and “push[ed] him through .

. . the kitchen” and out the door. Id. at 28. Lynch called the police and gave

a statement to Indiana Borough Police Officer Randy Allmendinger. Id. at 28-

30. The officer subsequently informed Lynch that the police had someone in

custody, and Lynch identified Appellant as her assailant. Id. at 30-31.


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        Additionally, Alexandra Stanley testified that on the morning of

September 4, 2016, she was woken by a stranger in her bedroom on Wayne

Avenue. Id. at 96. Appellant, who she did not know, was at the foot of her

bed and going through her wallet. Id. at 98. Stanley was scared and told

him to leave. Id. Appellant left, but returned after a couple of minutes and

made sexual comments to her. Id. at 99. By that time, officers from the

Indiana University (IUP) Police Department and Indiana Borough Police

Department arrived and apprehended Appellant.3 Id.

        IUP Police Lieutenant Melvin Cornell and Indiana Borough Police

Lieutenant Justin Schawl testified to responding to a call about a possible

burglary at Stanley’s apartment. Id. at 141, 161. When they arrived, they

observed Appellant inside, and after a struggle, apprehended him. Id. at 143-

147, 163. Items recovered from Appellant’s person and a backpack found in

Stanley’s bedroom matched items missing items from Moran and Haley’s

residence.

        Appellant was charged with, inter alia, three counts each of burglary and

trespass,4 two counts each of harassment and theft by unlawful taking, 5 and

one count of aggravated indecent assault.         The case proceeded to jury


____________________________________________


3   Again, the record does not explain who contacted the police.

4   18 Pa.C.S.A. § 3503(a)(1)(i).

5   18 Pa.C.S.A. § 2709(a)(1), 3921(a).


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selection on May 22, 2017.

       Pertinent to Appellant’s issues on appeal, we note that following voir

dire examination, the jury pool included two black potential jurors, with the

remaining potential jurors being white. The black female juror was selected

for the jury, but the Commonwealth exercised a peremptory challenge to the

male black juror (Juror #4).6 Appellant, who is black, objected on the ground

the peremptory challenge was discriminatory and illegal under Batson.

       The trial court conducted a hearing on Appellant’s Batson challenge.

Beth Nestor, a paralegal in the District Attorney’s Office, testified that “she

reviews the lists of jurors provided by the Jury Commissioners and marks

whether they would be a good or bad selection for the Commonwealth.” Trial

Court Opinion, 5/15/18, at 5. The trial court noted that the Jury Commission’s

lists do not indicate a potential juror’s race, but merely state the name and

address. N.T. Motion, 5/22/17, at 7. Nestor testified that she marked Juror

#4 “as a ‘No’” because she thought, based on the juror’s first, middle, and

last names, that he was a high school classmate she knew to have a criminal

history. Id. at 8, 10. Nestor denied that race was a factor in her “No” notation

for Juror #4, or that she ever discussed Juror #4’s race with the prosecutor.

Id. at 8-9. However, Nestor acknowledged that she did not check Juror #4’s



____________________________________________


6The Commonwealth exercised two other peremptory challenges, both to
white males. Appellant’s Brief at 5.


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criminal history until after Appellant raised the Batson claim. Id. at 12. At

that time, Nestor learned that she was mistaken as to Juror #4’s identity —

he was not her classmate, but she “guess[ed]” may have been her classmate’s

father. Id. at 10, 12. The trial court was satisfied that the Commonwealth

provided a race-neutral explanation for its peremptory challenge — the juror’s

perceived criminal past — and overruled Appellant’s objection. Id. at 15.

      With regard to Appellant’s Brady claim, during cross-examination at

trial, Officer Allmendinger referred to a “supplemental report” that he

prepared when investigating the sexual assault of Lynch. N.T. Trial, 5/23/17,

at 58. Appellant, however, was not provided with the supplemental report in

discovery. After an opportunity to review the report, Appellant argued that it

contained previously unknown information: the names of Lynch’s roommates,

who he could have interviewed; a description by Lynch of the perpetrator that

differed from another description she provided; and the fact that the police

had collected Lynch’s clothing and “attempted to gain fingerprints.” Id. at 63.

Appellant averred that this information could have led to exculpatory

evidence, and that his strategy to cross-examine Officer Allmendinger about

the presumed failure to take fingerprints and gather Lynch’s clothing for

evidence, was undermined. Id. at 64, 66. Appellant thus moved for a mistrial

pursuant to Brady.

      The trial court responded that although the Commonwealth’s failure to

provide the supplemental report was “clearly negligent,” it was not intentional,


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and the information in the report was consistent with the testimony of both

Officer Allmendinger and Lynch.      Id. at 65, 71.     The trial court denied

Appellant’s request for a mistrial, but ruled that Appellant could cross-examine

Lynch with the supplemental report; the Commonwealth could not introduce

evidence about any attempt to obtain fingerprints; and the defense could have

additional time to locate Lynch’s roommates. Id. at 69. The following day,

Appellant reported that he was unable to contact one roommate and that the

other roommate did not provide any “usable” information.           Id. at 158.

Appellant also declined to cross-examine Lynch with the report. Id.

      Appellant did not testify or present any witnesses. The jury convicted

him of all 11 charges.    On February 23, 2018, the trial court sentenced

Appellant to an aggregate term of 9 to 30 years’ imprisonment. Appellant did

not file a post-sentence motion, but took this timely appeal. Although the trial

court did not order Appellant to comply with Pa.R.A.P. 1925(b), it filed an

opinion pursuant to Pa.R.A.P. 1925(a).

      Appellant presents the following issues for our review:

      1. Whether or not the trial court erred in failing to sustain
      [Appellant’s] Objection to the Commonwealth’s Peremptory
      Challenge during Jury selection?

      2. Whether or not the trial court erred in failing to grant
      [Appellant’s] Motion for Mistrial due to evidence not being
      provided to [Appellant] that was available to the Commonwealth?

Appellant’s Brief at 4.

      First, Appellant avers that the trial court erred in not sustaining his


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objection to the Commonwealth’s peremptory challenge to Juror #4.               He

maintains that in violation of Batson, the Commonwealth improperly used a

peremptory    challenge    to   exclude   the   black   juror.   While    Appellant

acknowledges that the Commonwealth’s paralegal Nestor “relied on her

mistaken belief that” Juror #4 was her high school classmate, he emphasizes

that Nestor was mistaken, and thus “[t]he only fact that the prosecution was

right about [when it exercised the peremptory challenge] was that [Juror #4]

was a black male.” Id. at 12.

      This Court has stated:

      “A Batson claim presents mixed questions of law and fact.”
      Therefore, our standard of review is whether the trial court’s legal
      conclusions are correct and whether its factual findings are clearly
      erroneous.

           “In Batson, the [Supreme Court of the United States] held
      that a prosecutor’s challenge to potential jurors solely on the basis
      of race violates the Equal Protection Clause of the United States
      Constitution.” When a defendant makes a Batson challenge
      during jury selection:

                  First, the defendant must make a prima facie
             showing that the circumstances give rise to an
             inference that the prosecutor struck one or more
             prospective jurors on account of race; second, if the
             prima facie showing is made, the burden shifts to the
             prosecutor to articulate a race-neutral explanation for
             striking the juror(s) at issue; and third, the trial court
             must then make the ultimate determination of
             whether the defense has carried its burden of proving
             purposeful discrimination.

Commonwealth v. Edwards, 177 A.3d 963, 970-971 (Pa. Super. 2018)

(citations omitted).


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     To establish a prima facie case of purposeful discrimination[,] the
     defendant must show that he is a member of a cognizable racial
     group, that the prosecutor exercised a peremptory challenge . . .
     to remove from the venire members of the defendant’s race; and
     that other relevant circumstances combine to raise an inference
     that the prosecutor removed the juror(s) for racial reasons.

                                 *     *    *

     The second prong of the Batson test, involving the prosecution’s
     obligation to come forward with a race-neutral explanation of the
     challenges once a prima facie case is proven, does not demand an
     explanation that is persuasive, or even plausible. Rather, the
     issue at that stage is the facial validity of the prosecutor’s
     explanation. Unless a discriminatory intent is inherent in the
     prosecutor’s explanation, the reason offered will be deemed race
     neutral.

Id. at 972-973 (citations omitted).

     In Edwards, this Court held that the defendant established a prima

facie case of purposeful discrimination where the defendant was black, the

Commonwealth struck seven prospective jurors, and “the peremptory strike

sheet” listed the prospective jurors’ race and gender. Id. at 973.

     Here, unlike Edwards, the potential jurors’ list provided to the

Commonwealth did not indicate the jurors’ race, and the Commonwealth

explained its reason for striking Juror #4 — his purported criminal history.

Furthermore, the Commonwealth did not exercise a peremptory strike against

any other black potential jurors. Thus, Appellant has not established a prima

facie case of purposeful discrimination under the first Batson prong. See

Edwards, 177 A.3d at 972.

     Likewise, with respect to the second prong, Appellant disregards the


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trial court’s acceptance of the Commonwealth’s “race neutral” explanation for

striking Juror #4.   Trial Court Opinion, 5/15/18, at 5.      The court credited

Nestor’s testimony that she marked Juror #4 “as a ‘No’ only due to his status

as a prior [criminal] defendant, not due to his race,” and accepted the

Commonwealth’s desire to not choose a juror with a criminal history as a race-

neutral explanation. Id. Appellant does not provide — and we are not aware

of — any legal authority to support a claim that the Commonwealth’s mistaken

belief as to a black potential juror’s criminal history is a basis for relief under

Batson.    Accordingly, the trial court properly concluded that regardless of

what the Commonwealth subsequently learned about Juror #4, the

Commonwealth’s reason for excluding him — his perceived criminal history —

was a proper race-neutral explanation under Batson. See Edwards, 177

A.3d at 973 (“The second prong of the Batson test . . . does not demand an

explanation that is persuasive, or even plausible. Rather, the issue at that

stage is the facial validity of the prosecutor’s explanation.”).

      Appellant’s second claim is that the trial court erred in denying his

motion for a mistrial due to a Brady violation. He contends that he was denied

due process of law because Officer Allmendinger’s supplemental report was

not provided to him during discovery.        Appellant alleges, without further

explanation, that the information in the report was “material to the case,” that

his anticipated cross-examination of Officer Allmendinger was based on facts

that were then proven untrue by the report, and that he “was denied the


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opportunity to pursue alternative defenses.” Appellant’s Brief at 16.

      “Brady provides 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[.]’”         Commonwealth v.

Ferguson, 866 A.2d 403, 406 (Pa. Super. 2004) (citation omitted).

Pennsylvania Rule of Criminal Procedure 573(B) requires the Commonwealth

to disclose “[a]ny 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[.]” Pa.R.Crim.P. 573(B)(1)(a). Rule 573(E) states:

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

Pa.R.Crim.P. 573(E). However:

      If there is no reasonable doubt about guilt whether or not the
      additional evidence is considered, there is no justification for a
      new trial. 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. Rather, material evidence must be
      favorable to the accused so that, if disclosed and used effectively,
      it may make the difference between conviction and acquittal.

Ferguson, 866 A.2d at 407 (quotation marks and citations omitted).           “A

reviewing court is not to review the evidence in isolation, but, rather, the

omission is to be evaluated in the context            of the entire record.”

Commonwealth v. Haskins, 60 A.3d 538, 547 (Pa. Super. 2012).

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      Here, the trial court discussed the Rule 573(E) remedies that it ordered

to ameliorate the Commonwealth’s failure to provide Officer Allmendinger’s

supplemental report:

      [T]he defense had an opportunity to contact the individuals named
      in the report and cross-examine [Lynch] the following day. [A]fter
      returning to trial, the defense stated that one roommate had no
      usable information, they were unable to contact the other, and
      they were satisfied without cross-examining [Lynch] with the
      report. [N.T. Trial, 5/23/17, at 158.] The fingerprinting evidence
      was excluded, and no forensic evidence was collected from
      [Lynch’s] clothing. Pursuant to Pa.R.Crim.P. 573(E), such actions
      as taken by the Court are appropriate in the event of a discovery
      violation.

Trial Court Opinion, 5/15/18, at 3.

      Appellant’s Brady claim disregards the Rule 573(E) remedies ordered

by the trial court, and he does not advance any argument that the remedies

were inadequate.    Furthermore, Appellant does not acknowledge that he

declined to re-cross-examine Lynch and that one of the roommates did not

provide any useful information. Finally — and significantly — Appellant does

not address with any specificity how the withholding of the report affected the

outcome of his trial or the question of his guilt, especially in light of the

overwhelming trial evidence against him — the testimony of Moran and Phillips

that Appellant entered their residences, Lynch’s identification of Appellant as

her assailant, Stanley’s identification of Appellant as the intruder in her

bedroom, and Lieutenants Cornell and Schawl’s apprehension of Appellant in

Stanley’s bedroom and recovery of the items that were missing from Moran

and Haley’s residence. For these reasons, Appellant is not entitled to relief.

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See Haskins, 60 A.3d at 547; Ferguson, 866 A.2d at 407.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/2/2018




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