J. S55019/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                                            :
                    v.                      :
                                            :
WILLIAM HARVEY                              :
                                            :
                          Appellant         :     No. 121 EDA 2014

              Appeal from the Judgment of Sentence April 24, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0014937-2010
                                          CP-51-CR-0014981-2010

BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.:                           FILED OCTOBER 18, 2016

        Appellant, William Harvey, appeals from the Judgment of Sentence

imposed on April 24, 2013, in the Court of Common Pleas of Philadelphia

County.     After careful review, we conclude that the evidence which the

Commonwealth inadvertently failed to preserve and which was equally

available to the defense cannot form the basis of a claim pursuant to Brady

v. Maryland, 373 U.S. 83 (1963). Therefore, we affirm.

       The trial court summarized the facts underlying Appellant’s convictions

as follows:

        Mr. Darnell Thomas[] testified that he is the president of the
        Street Kings Motorcycle Club and that he had arranged to meet


*
    Former Justice specially assigned to the Superior Court.
J. S55019/16


     with a woman named "Sky," later identified as Shakeema Scott,
     at her residence on September 20, 2010, for the purpose of
     finalizing the incorporation of her motorcycle club into his club as
     a social member. He testified that he rode to the meeting on his
     own motorcycle and was met there by three other members of
     his club who had come separately, arriving at between 5:00 and
     6:00 p.m.

     When he arrived, "Sky" was sitting on her front steps talking
     with a member of his club. As he approached "Sky," [Appellant],
     whom he did not know, approached the group, identified himself
     as the father of Sky's child and asked her, "You called these (---)
     on me?" In response, Mr. Thomas introduced himself, shook
     [Appellant’s] hand and told him they were there "for club
     business." [Appellant] then asked, "Y'all got a problem?" He
     then walked away from the group with another man. A member
     of Mr. Thomas' club, Mr. Donnell Wright, repeatedly said, "Let's
     go."    Keeping his eyes on [Appellant], Mr. Thomas began
     backing towards his motorcycle preparing to leave. Sensing
     danger, he felt safer getting into Mr. Wright's van. As he was
     reaching up to get into the van, Mr. Thomas was shot in the left
     wrist and then his hip whereupon Mr. Wright lifted him into the
     van.

     Prior to being shot, Mr. Thomas observed [Appellant] approach a
     nearby car and the other man reach into it and hand [Appellant]
     a gun. Without a word, [Appellant] pointed the gun at Mr.
     Thomas and began shooting. [Appellant] was the only person
     shooting.

                                     ...

     Mr. Wright [] testified that as Mr. Thomas was getting into the
     van, [Appellant] started shooting at them.         He "heard Mr.
     Thomas like whimper, and I asked him, was he hit? And at the
     time I guess he was in shock. He said he don't know; because
     he got hit in his wrist. Then the second shot hit his hip, and then
     he collapsed. So when he collapsed I saw he was hit, and I had
     the van door open so I just jumped out the van while we're still
     being fired on, and I pulled him in the van, shut the door, and
     then I ran back to the driver's side and pulled off." When he
     pulled away from the scene, Mr. Wright saw Mr. Robinson, the
     third member of their club at the meeting, running up the street.
     As [Mr. Wright] approached Mr. Robinson to get him in the van,
     [Appellant’s] car drove into oncoming traffic, pulled alongside


                                    -2-
J. S55019/16


      the van "trying to gun down Jeffrey Robinson." Attempting to
      shield Mr. Robinson, Mr. Wright was shot in both legs by
      [Appellant] through the van's driver's door. After he saw Mr.
      Robinson dive into a small alleyway for cover, Mr. Wright drove
      to the nearest hospital, several blocks away.

Trial Court Opinion, filed 6/30/14, at 4-6 (citations omitted).

      The trial court summarized the procedural history as follows:

      On October 29, 2010, [Appellant] was arrested and charged
      under two bills of information arising out of the same incident.
      At CP-51-CR-0014937-2010, [Appellant] was charged with
      Aggravated Assault on complainant Darnell Thomas, and at CP-
      51-CR-0014981-2010, he was charged with two counts of
      Aggravated Assault on complainants Donnell Wright and Jeffrey
      Robinson, and one count each of Conspiracy, Possession of a
      Firearm Prohibited, Carrying Firearms Without a License and
      Possession of an Instrument of a Crime.[]

      On February 15, 2013, at the conclusion of his jury trial,
      [Appellant] was found guilty on all charges except for one count
      of aggravated assault. On CP-51-CR-001981-2010, the jury
      found [Appellant] not guilty of assaulting complainant Jeffrey
      Robinson. On April 14, 2013, [Appellant] was sentenced to
      consecutive periods of confinement in a state correctional facility
      of 7 to 15 years on the charge of aggravated assault at CP-51-
      CR-001937-2010, 7 to 15 years on the charge of aggravated
      assault, 5 to 10 years on the charge of conspiracy, and 3 to 10
      years on the charge of possession of a firearm by a prohibited
      person at CP-51-CR-001981-2010, for a total period of
      confinement of 22 to 50 years. On the remaining charges of
      carrying firearms without a license and possession of an
      instrument of a crime the [trial c]ourt made a determination of
      guilt without further penalty.

      On May 6, 2013, [Appellant] timely filed a Motion for Post-
      Sentence Relief seeking a judgment of acquittal or, in the
      alternative, a new trial pursuant to the Pennsylvania Rules of
      Criminal Procedure, Pa.R.Crim.P. 720(A)(1) and Pa.R.Crim.P.
      720(B)(1)(a)(ii) and (iv). [Appellant’s] Motion was denied by
      Operation of Law pursuant to Pa.R.Crim.P. 720(B)(3)(a) on
      September 3, 2013.

Id. at 1-2.


                                     -3-
J. S55019/16


      On September 3, 2013, Appellant timely filed the instant appeal. Both

Appellant and the trial court complied with Pa.R.A.P. 1925.

      Appellant raises the following issue for our review:

      Did the Commonwealth violate Appellant William Harvey's rights
      to Due Process of Law under Brady vs. Maryland[, 373 U.S. 83
      (1963)] and Pa.R.Crim.P. Rule 573 when it suppressed the
      photograph that was used to identify the suspect?

Appellant’s Brief at 3.1

      As our Supreme Court has noted, “[t]he law governing alleged Brady

violations is well-settled.” Commonwealth v. Lambert, 884 A.2d 848, 853

(Pa. 2005).    It is a violation of a defendant’s right to due process for the

Commonwealth to “withhold[] evidence that is favorable to the defense and

material to the defendant’s guilt or punishment.” Smith v. Cain, 132 S. Ct.

627, 630 (2012) (citation omitted).

      To prevail on a claim that the Commonwealth has committed a Brady

violation, “an appellant must prove three elements: (1) the evidence at issue

is favorable to the accused, either because it is exculpatory or because it

impeaches; (2) the evidence was suppressed by the prosecution, either


1
  Appellant makes only a single passing reference to Pa.R.Crim.P. 573 in the
argument portion of his Brief, without any discussion thereof. Appellant’s
Brief at 25. Therefore, Appellant waived any claims arising under Rule 573,
because he failed to discuss or develop such claims. See Pa.R.A.P. 2119(a);
Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) (“[I]t is
an appellant’s duty to present arguments that are sufficiently developed for
our review. The brief must support the claims with pertinent discussion,
with references to the record and with citations to legal authorities.”
(internal citation omitted)).



                                      -4-
J. S55019/16


willfully or inadvertently; and (3) prejudice ensued.”     Commonwealth v.

Weiss, 81 A.3d 767, 783 (Pa. 2013) (citations omitted).

      Pursuant to Brady and its progeny, the prosecutor has a duty to
      learn of all evidence that is favorable to the accused which is
      known by others acting on the government’s behalf in the case,
      including the police. Kyles v. Whitley, 514 U.S. 419, 437
      (1995). Pursuant to Kyles, the prosecutor’s Brady obligation
      clearly extends to exculpatory evidence in the files of police
      agencies of the same government bringing the prosecution.
      Commonwealth v. Burke, 781 A.2d 1136, 1142 ([Pa.] 2001).
      Moreover, there is no Brady violation when the defense has
      equal access to the allegedly withheld evidence. See
      Commonwealth v. Spotz, 896 A.2d 1191, 1248 ([Pa.] 2006)
      (“It is well established that no Brady violation occurs where the
      parties had equal access to the information or if the defendant
      knew or could have uncovered such evidence with reasonable
      diligence[]” (internal citation omitted)).

Id. (internal quotation and parallel citations omitted).

      In the instant case, Appellant alleged that the Commonwealth’s failure

to produce a Facebook photo implicated Brady, supra. The photo at issue

was discovered by Messrs. Thomas and Wright on Sky’s Facebook page

shortly after the shooting. N.T., 2/12/13, at 90. At the time, police had still

not determined Appellant’s name, and Messrs. Thomas and Wright believed

that one of the men in the photo was Appellant. Id. at 92. They showed

the photo to Detective Joseph Murray in an attempt to help in identifying

Appellant. Id. The photo was poor quality, however, and did not assist the

police in determining Appellant’s name.      N.T., 2/14/13, at 71.    Instead,

police learned Appellant’s name from Sky’s brother, and Detective Murray

later used an unrelated photo of Appellant to assemble a photo array for



                                     -5-
J. S55019/16


Messrs. Thomas and Wright.       Id. at 5-7, 41, 45-46, 88.      Both victims

positively identified Appellant as the shooter from that photo array. Id. at

46-47, 50-51.

      Despite the fact that the photo was from Appellant’s girlfriend’s

Facebook page, Appellant asked the Commonwealth to produce the

photograph prior to trial.2   The Commonwealth was unable to locate the

photo.   The prosecution made their entire case file available to Appellant,

but the Facebook photo at issue was not in the Commonwealth’s possession.

N.T., 11/14/11, at 6-7. Detective Murray attempted to locate the photo, but

he determined that the photo had not been retained by police.            N.T.,

2/14/13, at 42-43.     Appellant asked the court to bar all identification

testimony based on the missing photograph. N.T., 11/14/11, at 4-6. The

court declined to do so, but later instructed the jury that they could, if they

wished, infer that the Facebook photo would have been favorable to

Appellant. N.T., 2/15/13, at 97-101.

      Under the facts of this case, Appellant’s reliance on Brady is

misplaced.     Brady and its progeny impose an affirmative duty on the

2
  Given that the photo was available on Appellant’s girlfriend’s Facebook
page, Appellant could not prevail on a Brady claim even if he established
that the Commonwealth also had possession of the photo. As our Supreme
Court has held, “no Brady violation occurs where the parties had equal
access to the information or if the defendant knew or could have
uncovered such evidence with reasonable diligence.” Commonwealth
v. Morris, 822 A.2d 684, 696 (Pa. 2003), citing Commonwealth v. Paddy,
800 A.2d 294, 305 (Pa. 2002) (emphasis added).




                                     -6-
J. S55019/16


prosecution to produce so-called “Brady material.”               Lambert, supra at

853-54. Here, there was nothing to produce. As such, this matter is not

properly characterized as a Brady issue.3

     We, therefore, conclude that the trial court did not err in finding

Appellant   was   not   entitled   to   relief   pursuant   to    his   Brady   claim.

Accordingly, we affirm.

     Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/18/2016




3
  A claim that the Commonwealth failed to preserve evidence is subject to a
separate and distinct analysis. See Arizona v. Youngblood, 488 U.S. 51,
56 (1988) (noting that, where evidence was not preserved, any due process
violation “must be because of some constitutional duty over and above that
imposed by cases such as Brady[.]”); Commonwealth v. Coon, 26 A.3d
1159 (Pa. Super. 2011) (analyzing a due process claim based on
unpreserved evidence without reference to Brady and its progeny, and
requiring that the appellant show bad faith on the part of the Commonwealth
to prevail on such a claim).



                                        -7-
