J-S51023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                 v.                            :
                                               :
                                               :
    JALIK PEAY                                 :
                                               :
                       Appellant               :    No. 1242 EDA 2017

                  Appeal from the PCRA Order March 22, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0014638-2011

BEFORE: DUBOW, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY NICHOLS, J.:                           FILED SEPTEMBER 25, 2018

        Appellant Jalik Peay appeals from the order denying his first Post

Conviction Relief Act (“PCRA”)1 petition.          He contends the Commonwealth

withheld evidence regarding Aaron Young, a known witness, and, relatedly,

that his trial counsel was ineffective for failing to investigate Young.      We

affirm.

        We state the background as follows:

        Aaron Young allegedly had a dispute with inmate Sean Sullivan
        over a [prison cell] block worker job in Curran-Fromhold
        Correctional Facility.    [On June 21, 2011,] Sullivan passed
        “bangers” [(i.e., prison knives)] to [Appellant], Rashawn Edwards,
        and Haleem Poole and devised a plan of attack; the plan included
        distracting the prison guards so that the perpetrators could invade
        cell 15 which housed victims Young and Richard Gyton. Earl Bostic
        was nearby watching television in a dayroom when he was
        attacked by [Appellant], Rashawn Edwards, and Haleem Poole.
____________________________________________


1   42 Pa.C.S. §§ 9541-9456.
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      Bostic died of multiple stab wounds to the neck, chest, back, and
      right arm, one of which partially severed his aorta. Gyton and
      Young were seriously injured when they were stabbed in the hand,
      head, arm, and stomach by [Appellant], Rashawn Edwards, and
      Haleem Poole. The perpetrators used shanks and bangers to carry
      out the bloody attacks.

      Police officers interviewed Gyton at Hahnemann Hospital at the
      time he was being treated for his stab wounds. The officers
      memorialized Gyton’s statements in a document, which was later
      read into the record at both the preliminary hearing and at [the
      jury] trial.   In the document, Gyton identified [Appellant],
      Rashawn Edwards, and Haleem Poole] as the individuals who
      stabbed the inmate-victims. At trial, however, Gyton testified he
      did not know who stabbed him, he recanted statements he
      allegedly made during a prison assessment that indicated he
      needed to be separated in jail from the [Appellant], Rashawn
      Edwards, and Haleem Poole because he feared they would harm
      him again, and he testified about a letter he sent to [Appellant],
      Rashawn Edwards, and Haleem Poole explaining that his “story”
      about them committing the crimes had been fabricated.

PCRA Ct. Op. at 2-3 (brackets in original and citation omitted). Young did not

testify.

      The jury convicted Appellant of third-degree murder, conspiracy,

possession of an instrument of crime, and using or possessing a prohibited

offensive weapon. The court imposed an aggregate sentence of forty to eighty

years’ imprisonment. Appellant appealed, this Court affirmed on January 21,

2015, and the Pennsylvania Supreme Court denied Appellant’s petition for

allowance of appeal on July 23, 2015. Commonwealth v. Peay, 2372 EDA

2013 (Pa. Super. Jan. 21, 2015) (unpublished mem.), appeal denied, 118 A.2d

1108 (Pa. July 23, 2015) (table).




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       On October 30, 2015, Appellant filed his first pro se PCRA petition. The

court appointed counsel, who filed an amended PCRA petition on October 12,

2016. The amended petition claimed that trial counsel was ineffective by not

investigating Aaron Young, the victim and a potential witness. Am. PCRA Pet.,

10/12/16, at ¶ 10. Young, according to the petition, was not called as a trial

witness, and he would have testified that Appellant “was not the aggressor,

but was there to help protect him from the actual assailants.” Id. (citation

omitted).     Appellant also claimed the Commonwealth failed to disclose

exculpatory evidence, specifically that the prosecutor failed to inform him that

Young would have testified favorably for Appellant. Id. at ¶ 12. The petition

attached a typewritten interview of Young by PCRA counsel that was allegedly

signed by Young. Id. at Ex. A. In that statement, Young denied that Appellant

attacked him.      Id.   It also stated that Young met with a prosecutor, who

allegedly informed him that if Young signed a statement falsely implicating

Appellant, the prosecutor would help Young out with his unrelated case. Id.

The exhibit also included Young’s unsworn declaration essentially reiterating

the same claim. Id. Young died in December of 2016.2


____________________________________________


2 On February 10, 2017, Appellant’s counsel filed a motion to amend the
petition to include the affidavit of Selwyn Young. Mot. to Amend PCRA Pet.,
2/10/17, at ¶ 2. The motion claimed that Young was the victim of an unrelated
murder, and Selwyn would testify at the evidentiary hearing. Id. Attached
to the motion was Selwyn’s affidavit, which essentially averred that Young
informed Selwyn that Appellant was innocent. Id. at Ex. A. The record does
not reflect that the PCRA court granted PCRA counsel’s motion to amend.


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      The PCRA court held hearings on March 20 and 22, 2017.             Andrew

Notaristefano, Esq., the assistant district attorney that prosecuted the case,

testified. According to Notaristefano, Young spoke with the police on June 23,

2011, shortly after the attack, but he did not want to sign a formal written

statement out of a concern that other prisoners would find out. N.T. PCRA

Hr’g, 3/20/17, at 28-29. According to a summary of that interview, Young

stated that Appellant, Sullivan, and Poole entered the cell with weapons and

began stabbing him. Id. at 48. Young also indicated he did not see who

stabbed the decedent. Id. That summary was disclosed to Appellant. Id.

      Notaristefano, along with two detectives, again met Young a week prior

to trial.   N.T. PCRA Hr’g, 3/20/17, at 16-18; N.T. Trial, 4/29/13, at 11.

Notaristefano elaborated on the meeting as follows:

      We brought in Mr. [Aaron] Young.                 He was extremely
      uncooperative and very belligerent. He kept saying he was going
      to refuse to testify, he was going to refuse to testify, refuse to
      testify [sic]. He would not say why he was going to refuse to
      testify. Prior to this trial, I tried two codefendants [i.e., Rashawn
      Edwards and Haleem Poole] as a waiver trial in front of Judge
      Minehart in, I believe, February. At that time Mr. Young had an
      open warrant for his own case. And I had warrant officers looking
      for him because I wanted to speak to him to see if I would have
      him testify in that trial first because that trial was first in time.
      We couldn’t find him. He was gone.

      He was found prior to [Appellant’s] trial which was April. The first
      thing that he said was, he expressed his displeasure about the
      Warrant Unit looking for him; that he skipped the county because
      he didn’t want to be found because he didn’t want to testify. Then
      when the trial was over, he came back to Philadelphia. He was
      mad that the Warrant Unit officers were not looking for him for his
      own case. He’s not worried about this, his own case. It was just
      this. He said, I’m not testifying in this case, I’m not testifying in

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        this case [sic]. I asked him why. He refused to say why. And he
        was very uncooperative.

        We got into a little bit about the case, not much. He did admit to
        being a block worker and he said that because the whole thing
        was with [Sullivan], he said that he would beat up [Sullivan] or
        something like that because he was a boxer. And that [Sullivan]
        could never take him with a shank or something like that.
        [Sullivan] was the only name that came up that I remember. We
        never even got to your client [i.e., Appellant].

        It was not a very long meeting in the DA’s office because he was
        entirely uncooperative. And I had nothing to Brady[3] him with,
        because he didn’t sign a statement so why would I ever call him
        or go any further. That was that.

N.T. PCRA Hr’g, 3/20/17, at 37-39. Notaristefano reiterated that Young did

not mention Appellant during this meeting. Id. at 44.4

        During the Commonwealth’s cross-examination, Notaristefano testified

that he turned over the Department of Corrections’ (DOC) investigation. Id.

at 49.     The investigation, in relevant part, disclosed that the DOC had

interviewed fifty to sixty people about the incident, and Young denied

“knowing anything.”        Id. at 50.     The Commonwealth concluded its cross-

examination with Notaristefano agreeing he disclosed two contradictory


____________________________________________


3   Brady v. Maryland, 373 U.S. 83 (1963).
4 PCRA counsel also questioned Notaristefano about the testimony of Maureen
Gay, a prison nurse. Id. at 30. Specifically, Appellant’s trial counsel had
asked Gay about what Young said to her on the day of the incident. Id. at
31-32. The Commonwealth successfully objected on the basis of hearsay,
“the proper channel would have been to call Mr. Young not Ms. Gay to get in
hearsay of Mr. [Aaron] Young and that’s why I objected.” Id. at 32. At the
time of trial, Young was still alive.


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documents: the DOC interview in which Young denied “knowing anything” and

the June 23, 2011 summary of his unsworn statement to the police inculpating

Appellant. Id. at 50-51.

      During re-direct examination, Notaristefano reiterated that at the

meeting shortly before trial, Young was uncooperative and did not ask him

about Appellant. Id. at 51. Notaristefano acknowledged he did not notify

defense counsel about that last meeting and Young’s lack of cooperation. Id.

at 52. We add that Notaristefano testified that as a matter of course, he would

have provided the criminal history of Young and any other witness to

Appellant. Id. at 23.

      Appellant’s trial counsel also testified at the hearing.   Trial counsel

stated he had no recollection of Young, including whether he asked Young

about his statements and whether he discussed Young’s potential testimony

with the prosecutor.    N.T. PCRA Hr’g, 3/22/17, at 8-11.        Young’s DOC

statement was in the file. Id. at 8. Appellant did not present Selwyn as a

witness.

      Although not part of the record sent to this Court, the docket reflects

that the PCRA court dismissed Appellant’s petition on March 22, 2017.

Appellant timely appealed and timely filed a court-ordered Pa.R.A.P. 1925(b)

statement.

      Appellant raises the following issues:

      1. Whether the PCRA court erred as a matter of law and abused
      its discretion when it denied Appellant’s sought-after PCRA relief

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       asking for a new trial because of trial counsel’s failure to
       investigate Aaron Young as a witness.

       2. Whether the PCRA court erred as a matter of law and abused
       its discretion when it denied Appellant’s sought-after PCRA relief
       asking for a new trial because the prosecution failed to produce
       exculpatory evidence pursuant to Brady, namely, information from
       Aaron Young provided to the prosecution shortly before trial and
       the fact that Aaron Young had a new, pending criminal matter
       against him.

Appellant’s Brief at 4.

       We summarize Appellant’s arguments for both of his issues, as they are

interrelated.5 In Appellant’s view, the Commonwealth engaged in pervasive

suppression at all levels. Id. at 10. Specifically, according to Appellant, the

police and the prosecutor heard Young’s statement and elected to conceal it.

Id. at 10-11. Relatedly, Appellant argues that trial counsel was ineffective by

failing to investigate Young. Id. at 12-13. In Appellant’s view, it was per se

unreasonable for his trial counsel to not investigate Young.         Id. at 13.

Appellant opines that Young was available as a witness, Young’s prior written

statements were provided to trial counsel prior to trial, and Young’s criminal

history was a matter of public record. Id.

       Our standard of review is well-settled:

       We review an order dismissing a petition under the PCRA in the
       light most favorable to the prevailing party at the PCRA level. This

____________________________________________


5 We note that although Appellant raised two issues, he only presented one
argument, which violates Pa.R.A.P. 2119(a). See Pa.R.A.P. 2119(a) (“The
argument shall be divided into as many parts as there are questions to be
argued”).


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       review is limited to the findings of the PCRA court and the evidence
       of record. We will not disturb a PCRA court’s ruling if it is
       supported by evidence of record and is free of legal error. This
       Court may affirm a PCRA court’s decision on any grounds if the
       record supports it. Further, we grant great deference to the
       factual findings of the PCRA court and will not disturb those
       findings unless they have no support in the record. However, we
       afford no such deference to its legal conclusions. Where the
       petitioner raises questions of law, our standard of review is de
       novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

       It is well-settled that

       [t]o establish a Brady violation, [the defendant] must
       demonstrate: (1) the prosecution concealed evidence; (2) the
       evidence was either exculpatory[6] or impeachment evidence
       favorable to him; and (3) he was prejudiced. To establish
       prejudice, [the defendant] must demonstrate a reasonable
       probability that, had the evidence been disclosed to the defense,
       the result of the proceeding would have been different.
       Impeachment evidence, which goes to the credibility of a primary
       witness against the accused, is critical evidence and it is material
       to the case whether that evidence is merely a promise or an
       understanding between the prosecution and the witness. . . .
       Finally, we note there is no Brady violation when [the defendant]
       knew or, with reasonable diligence, could have uncovered the
       evidence in question.



____________________________________________


6  “Exculpatory evidence is that which extrinsically tends to establish
defendant’s innocence of the crimes charged.” Commonwealth v. Lambert,
765 A.2d 306, 325 n.15 (Pa. Super. 2000) (citation omitted); accord
Commonwealth v. Redmond, 577 A.2d 547, 552 (Pa. Super. 1990)
(“Exculpatory evidence includes material that goes to the heart of the
defendant’s guilt or innocence as well as that which might well alter the jury’s
judgment of the credibility of a crucial prosecution witness.” (internal
quotation marks and citation omitted)).


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Commonwealth v. Treiber, 121 A.3d 435, 460-61 (Pa. 2015) (internal

quotation marks, brackets, and citations omitted).

      In Commonwealth v. Wholaver, 177 A.3d 136 (Pa. 2018), the

Pennsylvania Supreme Court elaborated on the prejudice prong:

      [F]avorable evidence is material, and constitutional error results
      from its suppression by the government, if there is a reasonable
      probability that, had the evidence been disclosed to the defense,
      the result of the proceeding would have been different. A
      reasonable probability is a probability sufficient to undermine
      confidence in the outcome. In determining if a reasonable
      probability of a different outcome has been demonstrated, the
      question is not whether the defendant would more likely than not
      have received a different verdict with the evidence, but whether
      in its absence he received a fair trial, understood as a trial
      resulting in a verdict worthy of confidence. 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.

Id. at 158-59 (quotation marks, brackets, and citations omitted).

      We also note that it is “well established that where the Commonwealth

has in its possession pretrial statements of its witnesses which have been

reduced to writing and relate to the witness’ testimony at trial, it must, if

requested,    furnish   copies   of   these   statements   to   the   defense.”

Commonwealth v. Brinkley, 480 A.2d 980, 984 (Pa. 1984) (citation

omitted). Such “statements made by a witness prior to trial are subject to

disclosure only when they are signed, adopted or otherwise shown to be

substantially verbatim statements of that witness.” Id. (citations omitted).

      To warrant relief based on an ineffectiveness claim, a petitioner must

show that such ineffectiveness “in the circumstances of the particular case, so

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undermined the truth-determining process that no reliable adjudication of

guilt or innocence could have taken place.” Commonwealth v. Jones, 912

A.2d 268, 278 (Pa. 2006); accord 42 Pa.C.S. § 9543(a)(2)(ii). Counsel is

presumed to have rendered effective assistance. Commonwealth v. Weiss,

81 A.3d 767, 783 (Pa. 2013). To overcome the presumption, the defendant

has to satisfy the performance and prejudice test set forth in Strickland v.

Washington, 466 U.S. 668 (1984). The Pennsylvania Supreme Court has

applied the Strickland test by examining three elements, specifically whether

(1) the underlying claim has arguable merit; (2) no reasonable basis existed

for counsel’s action or failure to act; and (3) the petitioner has shown that he

suffered prejudice as a result of counsel’s lapse, i.e., that there is a reasonable

probability that the result of the proceeding would have been different.

Commonwealth v. Bennett, 57 A.3d 1185, 1195-96 (Pa. 2012). If a claim

fails under any necessary element of the Strickland test, the court may

proceed to that element first. Bennett, 57 A.3d at 1195-96. Counsel will not

be deemed ineffective for failing to raise a meritless claim. Jones, 912 A.2d

at 278.

      When raising a failure to call a potential witness claim, the PCRA
      petitioner satisfies the performance and prejudice requirements of
      the Strickland test by establishing that:

          (1) the witness existed; (2) the witness was available to
          testify for the defense; (3) counsel knew of, or should have
          known of, the existence of the witness; (4) the witness was
          willing to testify for the defense; and (5) the absence of the
          testimony of the witness was so prejudicial as to have
          denied the defendant a fair trial.

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     To demonstrate Strickland prejudice, the PCRA petitioner must
     show how the uncalled witnesses’ testimony would have been
     beneficial under the circumstances of the case. Commonwealth
     v. Gibson, 597 Pa. 402, 951 A.2d 1110, 1134 (2008); see also
     Commonwealth v. Chmiel, 585 Pa. 547, 889 A.2d 501, 546
     (2005) (“Trial counsel’s failure to call a particular witness does not
     constitute ineffective assistance without some showing that the
     absent witness’ testimony would have been beneficial or helpful in
     establishing the asserted defense.”).

Commonwealth v. Johnson, 966 A.2d 523, 536 (Pa. 2009) (internal

quotation marks and one citation omitted).

     In the case at hand, there was no statement by Young as a result of the

meeting with Notaristefano a week before trial.        Because there was no

statement, the Commonwealth could not turn it over.         See Brinkley, 480

A.2d at 984.   But even if the Commonwealth should have disclosed that

particular meeting with Young, there was no evidence of exculpatory or

impeachment material.    See N.T. PCRA Hr’g, 3/20/17, at 37-39.          Indeed,

Young never even mentioned Appellant. See id. at 44.

     Regardless, even if Young’s uncooperative stance and “statements” at

that meeting could possibly be construed as favorable or impeachment

evidence, Appellant has not established their materiality.          Specifically,

Appellant has not demonstrated that without such evidence, he did not receive

a fair trial. See Wholaver, 177 A.3d at 158-59; Bennett, 57 A.3d at 1195-

96. It is not entirely evident how knowledge of Young’s lack of cooperation




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would have helped Appellant at trial, let alone undermined the verdict. See

Wholaver, 177 A.3d at 158-59.7

        Although Appellant similarly claims that trial counsel was ineffective by

not investigating Young, Appellant has not, and cannot, demonstrate that the

absence of Young’s testimony denied him a fair trial. See Johnson, 966 A.2d

at 536. Young was unwavering in his decision not to testify at Appellant’s trial

and at the trial of Appellant’s co-defendants several months beforehand. See

N.T. PCRA Hr’g, 3/20/17, at 37-39. Further, Young left Philadelphia to avoid

being compelled to testify and only returned because he thought Appellant’s

trial was over. See id. Therefore, Appellant has failed to establish that Young

was willing to testify, which is a required element of a potential witness claim.

See Johnson, 966 A.2d at 536. Because Appellant similarly failed to establish

the merits of his Brady violation, see Treiber, 121 A.3d at 460-61, we

conclude the PCRA court’s order is free of legal error and affirm the order

below. See Ford, 44 A.3d at 1194.

        Order affirmed.




____________________________________________


7   As noted above, Gyton incriminated Appellant, although he recanted at trial.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/25/18




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