J-S41029-14

NON-PRECEDENTIAL DECISION             SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellee              :
                                         :
           v.                            :
                                         :
GEORGE VINCENT KUBIS,                    :
                                         :
                   Appellant             :   No. 3347 EDA 2013

                Appeal from the PCRA Order November 4, 2013,
                     Court of Common Pleas, Bucks County,
                Criminal Division at No. CP-09-CR-0008943-2007

BEFORE: BOWES, DONOHUE and MUNDY, JJ.

MEMORANDUM BY DONOHUE, J.:                        FILED AUGUST 12, 2014



order entered by the Bucks County Court of Common Pleas denying his

motion filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§

9541-

counsel for Kubis filed a document in this

and Hearing to Assert Grounds for a New Trial on the Basis of Recent




     On

Court summarized the facts of the case as follows:

           At approximately 8:10 a.m. on August 23, 2007,

           black bandana, sunglasses, and black clothing.
           [Kubis] demanded that Stencler give him all his
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          money and then hit him in the head with his palm.
          After Stencler emptied the cash register, [Kubis]
          threatened to stab Stencler if he did not give [Kubis]
          the rest of the money in the store. Stencler then led




          8. After Stencler handed over the money, [Kubis]
          instructed Stencler to stay down and threatened to
          beat him.

          [Kubis] then turned to leave the salon, ripping a
          ringing phone off the wall as he exited. Stencler did
          not have a clear view of the vehicle [Kubis] fled in,
          but believed it was dark in color. After [Kubis] left,
          Stencler called 911 from another phone in the salon.

          Detective John Schlotter of the Warminster Township
          Police Department spoke with Glen Ockenhouse, an
          employee of the bank located in the same shopping
                                   on. Ockenhouse arrived at
          work during the robbery and witnessed a dark
          colored Jeep Cherokee parked next to the hair salon.
          He stated that the driver, a man in a black bandana
          and sunglasses, exited the Jeep and entered the
          salon. Ockenhouse was also able to provide
          Detective Schlotter with video footage from the bank
          surveillance camera which showed a dark vehicle
          resembling a Jeep driving through the bank parking
          lot.

          Detective Schlotter then received a tip from the
          Horsham Township Police Department indicating that
          [Kubis] had recently been released from prison after
          serving time for two armed robberies involving a
          knife, and had been spotted in a Jeep that matched
          the description given by Ockenhouse and seen on
          the bank video.

          Detective Schlotter proce
          where he found a Jeep Cherokee similar to the one
          viewed on the bank surveillance video. Inside, police



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            saw a black bandana, two folding knives, and a box
            cutter. After questioning [Kubis], officers seized the
            Jeep. During the seizure, [Kubis] attempted to
            remove the car from the premises, but was not
            permitted to do so. A later search of the Jeep
            pursuant to a warrant revealed sunglasses and a pair
            of gloves in its passenger compartment.

            Detective Schlotter then used computer software to
            compile a photo lineup. The detective selected seven
            photos of balding men with light complexions,

            appearance. From the assembled array, Stencler
            selected photos of [Kubis] and one other man.

            Based on the foregoing, the Commonwealth arrested
            [Kubis] and charged him with robbery and related
            offenses. [Kubis] filed a motion to suppress the
            evidence found in his Jeep, claiming that the police
            violated the Fourth Amendment when they seized it.
            The trial court denied the motion and following a jury
            trial, [Kubis] was convicted of robbery under 18
            Pa.C.S. §§ 3701(a)(ii), 3701(a)(iii), respectively.[FN]
            _________________
            [FN]
                 [Kubis] was also charged with two lesser graded
            counts of robbery, theft, terroristic threats, and
            simple assault. The two robbery convictions merged
            at sentencing, and no further penalty was imposed
            for any of the remaining three charges.

Commonwealth v. Kubis, 978 A.2d 391, 392-93 (Pa. Super. 2009).

      Kubis filed a direct appeal to this Court and on July 21, 2009, we

affirmed his judgment of sentence. Kubis did not file a petition for allowance

of appeal to the Pennsylvania Supreme Court.

      On August 17, 2009, Kubis filed a timely pro se PCRA petition. The

PCRA court appointed counsel and scheduled a hearing on the petition. At

the hearing scheduled on May 5, 2011, the PCRA court continued the matter


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for counsel to further consult with Kubis and file an amended PCRA petition.

Counsel filed the amended PCRA petition on April 23, 2013. The PCRA court

held a hearing on May 20, 2013, at which Kubis, his trial counsel, the trial

prosecutor,    and       two   members   of   the   Warminster   Township    Police

Department       Detectives Schlotter and Bonargo        testified.   Following the

hearing and the submission of briefs by the parties, the PCRA court denied



     Kubis filed a timely notice of appeal followed by a court-ordered

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b). Kubis raises one issue for our review:


              decision to conceal from the defense before trial a
              portrait of the person who committed the robbery
              made pursuant to a description of a witness deprived
              [Kubis] of his right to a fair trial under the Fifth,
              Sixth and Fourteenth Amendments to the United
              States Constitution and Article I, Sections 1 and 9 of
              the    Pennsylvania   Constitution,     as   well   as
              Pa.R.Crim.Pro. 573.
                     1




1
   This issue is taken from the argument section of Kubis
it was not included in his statement of questions involved. The speedy trial
issue specified in his statement of questions involved the only issue raised
therein    does not appear in the argument made on appeal and bears no
relation to the record of the proceedings below. However, because Kubis
included the specific question to be addressed in the argument section of his
appellate brief and in his concise statement of errors complained of on
appeal, we will address the issue on its merits. See Commonwealth v.
Long, 786 A.2d 237, 239 n.3 (Pa. Super. 2001)          572 Pa. 690, 819 A.2d
544 (2003); but see


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      Prior to addressing the merits of the issue raised, we first address

                            On June 26, 2014, while the appeal was pending

before this Court, Kubis filed a Motion for Remand, seeking for the case to

be remanded so that he can file a PCRA petition based upon the

                                  ecision in Commonwealth v. Walker, __

A.3d __, 2014 WL 2208139 (Pa. May 28, 2014). In Walker, our Supreme



                                                                         id. at




hinged largely on identification evidence of him as the person who robbed

                                    /26/14, at ¶ 5. The Commonwealth filed

an answer opposing remand, stating that Walker is inapplicable to the case

at bar.   Answer to Motion for Remand and Hearing Filed June 26, 2014,

7/8/14, at ¶¶ 6-8. For the reasons that follow, we agree.

      First,                                                           Section

9545(b)(1) requires a petitioner to file a PCRA petition within one year of the

date the judgment became final. 42 Pa.C.S.A. § 9545(b)(1).

becomes final at the conclusion of direct review, including discretionary

review in the Supreme Court of the United States and the Supreme Court of



unless it is stated in the statement of questions involved or is fairly
suggeste


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Pa.C.S.A. § 9545(b)(3).

                                                                n August 20, 2009

30 days after this Court affirmed his judgment of sentence on direct appeal.

See   Pa.R.A.P.   1113(a)    (A   petition    for   allowance    of   appeal   to   the

Pennsylvania Supreme Court must be filed within 30 days of the entry of the

Superior Court order to be reviewed.).         Thus, a PCRA petition filed on or

after June 26, 2014 is facially untimely, rendering the PCRA court without

jurisdiction to decide it on its merits.



the timeliness requirements fails. His request is based upon 42 Pa.C.S.A. §

9545(b)(1)(iii) and (2), which state:

            (b) Time for filing petition.

            (1) Any petition under this subchapter, including a
            second or subsequent petition, shall be filed within
            one year of the date the judgment becomes final,
            unless the petition alleges and the petitioner proves
            that:
                                  *   *    *

            (iii) the right asserted is a constitutional right that
            was recognized by the Supreme Court of the United
            States or the Supreme Court of Pennsylvania after
            the time period provided in this section and has been
            held by that court to apply retroactively.

            (2) Any petition invoking an exception provided in
            paragraph (1) shall be filed within 60 days of the
            date the claim could have been presented.




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42 Pa.C.S.A. § 9545(b)(1)(iii), (2). Although Kubis timely filed his request

within 60 days of the Walker decision, the holding in Walker is not a

recognition of a new constitutional right.    To the contrary, in a footnote

accompanying the holding of the case, the Walker Court expressly declined



expert testimony.    Walker, 2014 WL 2208139 at *22 n.12.            Thus, this

exception does not apply.

      Finally, our review of the record comports wit

account that Kubis never requested to have an expert testify regarding the

fallibility of eyewitness identifications. As such, there is no basis for remand

in this case.

      Turning to the question raised on appeal, t                             of

review regarding an order denying a petition under the PCRA is whether the

determination of the PCRA court is supported by the evidence of record and

is free of legal error. Commonwealth v. Davis, 86 A.3d 883, 887 (Pa.

                                   indings will not be disturbed unless there is

no support for the findings in the certified record. Id.



prior to trial, to provide Kubis or his council with a computer-generated

image of the perpetrator of the robbery created by the police during an



created the picture using the computer software while interviewing the



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victim, but never showed the image generated to the victim, as the only

details on the picture provided by the victim were the bandana and

sunglasses worn by the perpetrator, neither of which were reflected

accurately because of a flaw with the Faces program. N.T., 5/20/13, at 60,

75, 85. According to Kubis, the failure to provide the image to trial counsel

prior to trial constituted a Brady2 violation and a violation of the mandatory

discovery provision contained in Rule of Criminal Procedure 573, as the

image created looked nothing like him and could have been used in support

                                                      -13.   The PCRA court

found that there was no violation of Brady or Rule 573, as (1) Detective

Schlotter testified at the suppression hearing in this case regarding the

existence   of   the   computer-generated   image,   and   (2)   Kubis   cannot

demonstrate that the computer-generated image would have changed the

outcome of the case. PCRA Court Opinion, 2/14/14, at 8.

       We begin with the Brady claim. In Brady v. Maryland, the United

States

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 prosecutio      Brady, 373 U.S. at 87. This

holding has been adopted by our Supreme Court, which set forth the

standards for establishing a Brady


2
    Brady v. Maryland, 373 U.S. 83 (1963).


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show that: (1) the evidence was suppressed by the state, either willfully or

inadvertently; (2) the evidence at issue is favorable to the defendant; and



Commonwealth v. McGill, 574 Pa. 574, 583, 832 A.2d 1014, 1019 (2003)

(citations omitted).

      The record reflects that the following exchange took place between



            Q. At no time did you ever make any effort with
            anyone in your department to go to Mr. Stencler and
            work on a composite sketch based on his description
            or have Mr. Stencler look through mug books or
            whatever you could come up with based on his
            description, at no time did you do anything like that;
            is that right?

            A. I had Detective Bonargo create a Faces mug
            shot, I guess you would call it.

            Q. He did that without you questioning

            A. He did that and he used the description in writing
            from the victim. But no, there was no need to do
            that based on the information that I had received.

            Q. So what yo
            use some sort of whatever you just described
            computer composite but you never used that,
            nobody ever used it, right?


            accurately depict the descriptive components that
            were given to us by the victim and the witnesses. In
            other words, the program was limited in what it was
            able to do, and the photo that we were able to
            generate was not realistic based on the descriptions
            that we had received.



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N.T., 3/10/08, at 55-56. Counsel for Kubis did not ask Detective Schlotter

any further questions regarding the computer-generated image or follow up

with the Commonwealth to request a copy of the image.

      At the PCRA hearing, trial counsel testified that he asked the question

of whether police had a composite sketch drawn, expecting the answer to be



police had in fact attempted to do a composite sketch, trial counsel operated



provided in discovery, and thus made no further inquiries about the image.

Id.

      There is no Brady violation when the appellant knew or, with



Commonwealth v. Chamberlain, 30 A.3d 381, 409-10 (Pa. 2011)

(citations omitted). As Kubis was aware that the police attempted to create

a computer-generated image of the robbery suspect based upon a

description given by the victim in this case and failed to exercise reasonable

diligence to obtain the image from the Commonwealth, we find no fault with

                                    Brady violation occurred.

      Turning to the Rule 573 claim, the portions of the Rule Kubis asserts

the Commonwealth violated by failing to turn over the computer-generated

drawing state:




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            (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
            Commonwealth shall disclose to the defendant's
            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;

                                 *       *      *

            (d) the circumstances and results of any
            identification of the defendant by voice, photograph,
            or in-person identification;

            (e) any results or reports of scientific tests, expert
            opinions, and written or recorded reports of
            polygraph examinations or other physical or mental
            examinations of the defendant that are within the
            possession or control of the attorney for the
            Commonwealth[.]

Pa.R.Crim.P. 573(B)(1)(a), (d), (e).

      At the outset, we find that subsection (e) is inapplicable to the

evidence before us because there is nothing in the record to support (nor

does Kubis argue) that the computer-generated image at issue was the

result of a scientific test, expert opinion, polygraph examination, or other

examination of Kubis. The record further reflects that it was neither material




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Detective Bonargo testified that he created the image while talking to the

victim in this case, but the victim did not see the image or adopt it as being

an accurate depiction of the perpetrator.    N.T., 5/20/13, at 75.   The only

information provided by the victim was that the perpetrator was wearing a

black bandana and sunglasses; Detective Bonargo filled in the remaining



  otherwise, it would only have been a picture of a bandana and sunglasses.

Id. at 75, 85. In short, the computer-generated image was not a picture of

the perpetrator as described by the victim, was never seen by the victim,

and was never adopted by the victim as resembling the perpetrator.



identification of Kubis.

      The decision of the PCRA court is supported by the evidence and is

free of legal error. Davis, 86 A.3d at 887. We therefore affirm its decision.

      Motion for Remand denied. Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/12/2014




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