J-S60038-17

                               2017 PA Super 310


COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
             v.                          :
                                         :
                                         :
ROBERT W. DUCK, JR.                      :
                                         :
                   Appellant             :   No. 410 WDA 2017

          Appeal from the Judgment of Sentence February 7, 2017
             In the Court of Common Pleas of McKean County
           Criminal Division at No(s): CP-42-CR-0000340-2016


BEFORE:    OLSON, DUBOW, JJ., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                    FILED SEPTEMBER 29, 2017

      This is an appeal from the judgment of sentence entered in the Court

of Common Pleas of McKean County following Appellant’s conviction by a

jury on the charge of simple assault (M-2), 18 Pa.C.S.A. § 2701(a)(1). After

a careful review, we affirm.

      The relevant facts and procedural history are as follow: Appellant, who

is thirty-eight years old, was arrested in connection with the assault of his

eighteen-year-old nephew, Isaac Duck (“the victim”).           On December 5,

2016, Appellant, who was represented by counsel, proceeded to a jury trial.

At the trial, the victim testified that, on July 8, 2016, Appellant was at the

victim’s house, and they began to argue. N.T., jury, 12/5/16, at 9. During

the argument, the victim retreated to his bedroom and sat on his bed;

however, Appellant came into the room and continued arguing with the


____________________________________
*   Former Justice specially assigned to the Superior Court.
J-S60038-17


victim. Id. at 10-12. At some point, Appellant left the bedroom and went

downstairs, and the victim also went downstairs to get a drink, at which

point the argument continued.      Id. at 12.   Suddenly, without the victim

hitting or swinging at Appellant, Appellant pushed the victim “really hard,”

resulting in the victim “smashing” the back of his head on a door frame and

falling to the ground. Id. at 13-14.

      The victim testified that, as a result of his head hitting the door frame,

his head was bleeding “a lot,” he was disoriented, and he felt dizzy. Id. at

14, 24. He also sustained a laceration to his arm as a result of being pushed

by Appellant. Id. at 18. He described the pain as a “five, six” on a scale of

one to ten with ten being the highest. Id.

      The victim indicated that, at this point, his little brother, Zachary Duck

(“Zachary”), tackled Appellant and wrestled with him on the floor.          Id.

Meanwhile, someone called 911 and the victim, who testified that he was

scared, went outside while awaiting the police. Id. at 16-17.

      On cross-examination, the victim noted that he is “skinny,” weighing

only 130 pounds.    Id. at 23.   On re-direct examination, the victim noted

that, after Appellant shoved him and he fell to the ground, Appellant stood

over him and did not try to help him. Id. at 24.

      Zachary testified that, on July 8, 2016, he was playing games on the

computer in the dining room when he heard Appellant and the victim

arguing. Id. at 28. He testified that, during the argument, the victim said


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“F-U” to Appellant, and Appellant “picked [the victim] up and slammed him

to the floor.” Id. Zachary described the incident as a “choke slam.” Id. at

29. As Appellant stood over the victim, Zachary, who was concerned that

Appellant “was going to do more to [the victim],” tackled him and wrestled

with him, resulting in Zachary’s eyeglasses breaking. Id.

      Zachary indicated that, as he was wrestling with Appellant, his

grandfather, who is Appellant’s father, intervened, saying, “What the heck’s

going on?”    Id. at 29, 39.   Zachary indicated his grandfather “didn’t now

anything else [had] happened.”      Id. at 29.    After Zachary’s grandfather

mentioned someone needed to leave or he would call the cops, Appellant

said, “Don’t call the cops.” Id. at 30. Zachary testified Appellant also said,

“If a cop comes in here, I’m going to kill them[.]” Id. at 31.

      Zachary testified that he believes Appellant then went into the kitchen

and returned with a knife; however, he admitted that he could not see well

because his eyeglasses were broken. Id. In any event, he called 911, and

he went outside because he was scared.       Id. at 31-33.   Zachary testified

that he suffered scrapes and bruises from Appellant’s fingers, and he was

“pretty upset” about the victim getting “hurt like that.” Id. at 32.

      On cross-examination, Zachary clarified that, during the argument,

Appellant “just got up, went around [Zachary],...picked [the victim] up,

[and] slammed him to the floor.”        Id. at 35.    Zachary explained that

Appellant actually lifted the victim off the ground by placing one hand


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around the victim’s neck and the other hand on the victim’s back. Id. He

described the incident as “more than just a shove.” Id. at 36. Rather, he

observed Appellant “physically hoist[ ] [the victim] in the air and slam[ ]

him.”    Id.   Zachary admitted that, after he and the victim went outside,

Appellant did not come outside until the police arrived. Id. at 39-40.

        Robynn Duck (“Ms. Duck”) testified that she is the victim’s mother,

Appellant is her brother, and she was upstairs on July 8, 2016, when she

“heard [a] crash.”     Id. at 43.    Ms. Duck testified she ran downstairs and

observed Zachary, who was crying, on the telephone.          Id. at 44.    She

noticed the next day that the victim had a gash on the back of his head and

a scratch on his arm. Id. at 45, 48. She testified the injuries were visible

for a week or two after the incident. Id. at 46.

        Police Officer Benjamin Lobdell testified that, on July 8, 2016, he was

dispatched to the residence at issue for “a domestic in progress with

weapons involved.”      Id. at 49.     He arrived at the residence within one

minute of receiving the call and found family members outside of the

residence.     Id. at 50.   The family was distraught, informed him of the

assault, and told him that Appellant was still inside of the house. Id. The

family informed the officer that Appellant had a knife and was threatening to

hurt any law enforcement official who entered the home. Id.

        At this point, Appellant exited the house without a weapon and was

arrested. Id. at 51.    Upon entering the residence, Officer Lobdell did not


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J-S60038-17


observe any weapons in plain view. Id. at 59. Officer Lobdell testified that

he transported Appellant to the police station, and Appellant reported that

he had been assaulted by the victim and Zachary. Id. at 60. Officer Lobdell

described Appellant as compliant from beginning to end. Id. at 61. Officer

Lobdell testified that Appellant weighs approximately 180 pounds and is six

feet two inches tall. Id. at 63.

       At the conclusion of the trial, the jury convicted Appellant of a single

count of simple assault (M-2) as to the victim. Sentencing was scheduled

for January 6, 2017; however, at this time, Appellant, through his counsel,

made an oral motion for extraordinary relief under Pa.R.Crim.P. 704(B)(1) 1

seeking judgment of acquittal on the basis of insufficient evidence. The trial

court took the motion under advisement and rescheduled sentencing for

February 7, 2017.

       On February 7, 2017, prior to sentencing, the trial court denied

Appellant’s previously made oral motion for extraordinary relief for judgment

of acquittal; however, Appellant presented the trial court with a new oral

motion for extraordinary relief under Pa.R.Crim.P. 704(B)(1).      Specifically,

____________________________________________


1 We note that Pa.R.Crim.P. 704(B)(1) provides that “[u]nder extraordinary
circumstances, when the interests of justice require, the trial judge may,
before sentencing, hear an oral motion in arrest of judgment, for a judgment
of acquittal, or for a new trial.”




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Appellant moved for a new trial. Appellant averred that he had just received

victim and witness statements to be used for sentencing purposes. One of

the statements was authored by his father, Robert Duck, Sr. 2 N.T.,

sentencing, 2/7/17, at 7.3            The following relevant exchange occurred

between Appellant’s counsel, the Commonwealth, and the trial court with

regard to the oral motion for a new trial:

       [APPELLANT’S COUNSEL]: I think there might be a discovery
       violation that I wasn’t aware of. The—the father, Robert Duck,
       [Sr.,] indicates through his letter that prior to the trial, he was
       taken upstairs with the witnesses to go over testimony with the
       DA. He gave an account in his letter, which I want to submit to
       the Court. He believed the boys were just wrestling, and they
       said they didn’t need his testimony. That was never given to
       [the] Defense even verbally as discovery and that’s potentially
       exculpatory evidence of what the witness....
                                  ***
       [ADA]: Your Honor, with regard to the conversation I had with
       Mr. Duck (the father/grandfather) before the Trial, I believe—it’s
____________________________________________


2Robert Duck, Sr., is Appellant’s father. He is also Zachary and the victim’s
grandfather.

3 In the statement provided to Appellant for sentencing purposes, Robert
Duck, Sr., indicated the following:
      My name is Robert Duck, Sr. I believe that the time my son
      Robert spent in jail is punishment enough for what took place.
      On the day of his trial the witnesses were taken upstairs to go
      over their testimony when I told them that I though[t] that the
      boys were just wrestling[.] [T]hey told me that they didn’t need
      my testimony and I was not even permitted into the
      courtroom[.] I believe that the defense attorney should have
      been aware of my testimony. Thank you for your time. Robert
      W. Duck, Sr.
Appellant’s Brief at 25-26. See Motion for Reconsideration for Motion for
New Trial, filed 2/21/17.



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J-S60038-17


     my recollection that he either didn’t see the events or wasn’t
     close enough, and that’s why I wasn’t calling him.           This
     obviously involved a lot of family, so I was trying to keep the
     amount of people who had to testify to a minimum. I don’t
     recall any mention of any sort of exculpatory or contradictory
     evidence that Mr. Duck informed me of prior to trial. And that—
     and that certainly would not be my reason for not putting him up
     there because I thought there was going to be some exculpatory
     evidence.
     THE COURT: And this is [Appellant’s] father.
     [ADA]: I—yes, I believe so, Your—
     THE COURT: So, I would think that testimony wouldn’t have
     had any real effect anyway.
     [APPELLANT’S COUNSEL]: Your Honor, it may not have; but if
     it’s exculpatory, if it’s somebody who was in the home when this
     hap—and I don’t know—I don’t know what the statement was. I
     just found out about this myself. If it’s somebody that was in
     the home that could speak to potential intent, you had three
     witnesses. [Appellant’s] sister in this case was upstairs, just
     heard it. The alleged victim said he was pushed into a doorway
     after a verbal argument, and [Zachary] who was the—the
     younger brother was the only decent witness in this whole case
     said that it was a choke slam, that the injury was sustained a
     completely different way.
           Now, if we have another witness and the Commonwealth
     was aware of the statement that went to intent, that they were
     just horsing around versus he was trying to injure him, they
     have to at least tell me on the ongoing discovery rules so that I
     could potentially call him as a witness. They can’t decide what is
     important to their case and not tell [the] Defense of potentially
     exculpatory evidence.
     [ADA]: And, Your Honor, I’ll—I’ll submit that I have no
     recollection of that statement ever being made to me in terms of
     the boys wrestling.

Id. at 7-10.

     The trial court denied Appellant’s oral motion for extraordinary relief

for a new trial under Pa.R.Crim.P. 704(B)(1) and sentenced him to three



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J-S60038-17


months to twelve months in prison.               Appellant filed written motions for

reconsideration of the denial of his two oral motions for extraordinary relief,

and the trial court denied the motions for reconsideration.             This timely,

counseled appeal followed on March 8, 2017, and all Pa.R.A.P. 1925

requirements have been met.

       In his first issue, Appellant contends the evidence was insufficient to

support his conviction on one count of simple assault, and thus, the trial

court erred in denying his oral motion for extraordinary relief for a judgment

of acquittal under Pa.R.Crim.P. 704(B)(1).           Specifically, Appellant contends

the evidence was insufficient to establish that the victim, in fact, suffered

bodily injury. In this vein, it is Appellant’s position that the victim did not

suffer an impairment of physical condition or substantial pain.           Rather, he

argues the victim suffered a temporary hurt from a trivial contact which is a

customary part of modern day living and which frequently occurs between

family members. See Appellant’s Brief at 20-21. We disagree.4

____________________________________________


4  It is well-settled that “[t]he Commonwealth need not establish that the
victim actually suffered bodily injury; rather, it is sufficient to support a
conviction if the Commonwealth establishes an attempt to inflict bodily
injury.” Commonwealth v. Richardson, 636 A.2d 1195, 1196 (Pa.Super.
1994) (citation omitted). In the event this Court concludes the victim did
not, in fact, suffer bodily injury, Appellant has presented an alternative
argument to this Court; namely, that the evidence was insufficient to
establish that he attempted to cause bodily injury to the victim. However, in
light of our discussion infra, we find it unnecessary to address the alternative
basis, which supports a conviction for simple assault under Section
2701(a)(1).



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      Our review of a ruling denying a motion for judgment of acquittal is

guided by the following principles:

             A motion for judgment of acquittal challenges the
      sufficiency of the evidence to sustain a conviction on a particular
      charge, and is granted only in cases in which the Commonwealth
      has failed to carry its burden regarding that charge. As we have
      stated:
            The standard we apply in reviewing the sufficiency of
            the evidence is whether viewing all the evidence
            admitted at trial in the light most favorable to the
            verdict winner, there is sufficient evidence to enable
            the fact-finder to find every element of the crime
            beyond a reasonable doubt. In applying the above
            test, we may not weigh the evidence and substitute
            our judgment for [that of] the fact-finder. In
            addition, we note that the facts and circumstances
            established by the Commonwealth need not preclude
            every possibility of innocence. Any doubts regarding
            a defendant’s guilt may be resolved by the fact-
            finder unless the evidence is so weak and
            inconclusive that as a matter of law no probability of
            fact    may    be     drawn    from    the    combined
            circumstances. The Commonwealth may sustain its
            burden of proving every element of the crime beyond
            a    reasonable    doubt    by    means     of   wholly
            circumstantial evidence. Moreover, in applying the
            above test, the entire record must be evaluated and
            all evidence actually received must be considered.
            Finally, the trier of fact while passing upon the
            credibility of witnesses and the weight of the
            evidence produced, is free to believe all, part or none
            of the evidence.

Commonwealth v. Graham, 81 A.3d 137, 142 (Pa.Super. 2013) (quotation

marks and quotation omitted).




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       Here, Appellant was convicted of simple assault under 18 Pa.C.S.A. §

2701(a)(1),5 which provides the following:

       § 2701. Simple assault
       (a) Offense defined.-- Except as provided under section 2702
       (relating to aggravated assault), a person is guilty of assault if
       he:
              (1) attempts to cause or intentionally, knowingly or
       recklessly causes bodily injury to another[.]

18 Pa.C.S.A. § 2701(a)(1) (bold in original).

       18 Pa.C.S.A. § 2301 defines “bodily injury” as “[i]mpairment of

physical condition or substantial pain.”           Substantial pain may be inferred

from     the    circumstances        surrounding      the   physical   force   used.

Commonwealth v. Smith, 848 A.2d 973 (Pa.Super. 2004).

       Here, in rejecting Appellant’s claim that the evidence was insufficient

to establish that the victim, in fact, suffered “bodily injury,” the trial court

relevantly stated the following:

              The victim testified that he and [Appellant] got into a
       verbal altercation which escalated to an assault when [Appellant]
       pushed the victim into the frame of a doorway. [The victim
       testified,] “I was pushed into the doorway, like, really hard.”
       [N.T., jury, 12/5/16, at 14.] The victim’s brother, [Zachary,]
       related that [Appellant] picked up the victim and “slammed him
       to the floor” after which [Zachary] tackled [Appellant]. [Id. at
       24-25.] The victim’s head hit the door frame causing a cut with
       significant bleeding and which resulted in a scab visible for [a
       week or two after the incident.] [The victim testified that he felt
       disoriented and dizzy after hitting his head. Id. at 14.] After
____________________________________________


5Appellant was convicted of simple assault as a misdemeanor in the second
degree. Appellant has not challenged the grading of the offense.




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J-S60038-17


      the attack, the victim remembers [Appellant] then standing over
      him until he was tackled by [his] brother. The victim testified:
                 Q: What sort of injuries did you have after
            this—the physical altercation with [Appellant]?
                  A: An injury to the back of my head...Oh,
            yeah. An injury to the back of my head and an
            injury on my left arm.
                  Q: Okay. And you said an injury to your left
            arm. What kind of injury was it? Was it, like
            scratches or bruising or—
                  A: Yeah, it was just a laceration.
                  Q: Okay. And did those hurt at all?
                  A: Little bit, yeah.
                  Q: Okay. I know you’re 18 and, you know
            trying to be tough, but on a scale of one to ten, what
            was the pain level like?
                  A: Five, Six.
                                   ***
            Applying [the appropriate] standard, the Commonwealth
      provided sufficient evidence for the jury to find that [the victim
      suffered actual bodily injury.]

Trial Court Opinion, filed 4/7/17, at 2-3.

      We agree with the trial court’s reasoning in this regard. Specifically,

we agree that the victim’s head laceration, which bled “a lot,” resulted in the

victim feeling “dizzy” and “disoriented,” produced a scab that was visible for

a week or two, and caused pain described by the victim as a “five, six” on a

scale of one to ten with ten being the highest, sufficiently meets the

definition of “bodily injury” for purposes of the simple assault statute. See

Commonwealth v. Marti, 779 A.2d 1177 (Pa.Super. 2001) (holding officer

who was struck in the jaw with a closed fist resulting in “slight swelling and

pain” suffered actual bodily injury); In the Interest of M.H., 758 A.2d

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J-S60038-17


1249 (Pa.Super. 2000) (holding student suffered bodily injury for purposes

of simple assault where high school teacher’s aide grabbed the student’s arm

and pushed her against a wall causing bruises on her arm that lasted several

days); Commonwealth v. Adams, 482 A.2d 583 (Pa.Super. 1984) (finding

actual bodily injury where the victim was struck in the head with an object

hard enough to almost knock her unconscious).

     We note that we specifically reject Appellant’s argument that the

victim suffered a temporary hurt from a trivial contact which is a customary

part of modern day living and which frequently occurs between family

members. In support of his argument, Appellant cites to Commonwealth

v. Kirkwood, 520 A.2d 451 (Pa.Super. 1987), and Interest of J.L., 475

A.2d 156 (Pa.Super. 1984).       In Marti, supra, this Court examined these

two cases and held as follows:

            In Kirkwood, the defendant was charged with simple
     assault for aggressively fast dancing with a woman. The victim
     testified that she had pleaded with Kirkwood to stop because he
     was hurting her, but that he had continued to swing her until her
     husband intervened. She said the incident lasted approximately
     forty seconds and left her with bruises and cut marks on her
     arms. As a result, she testified she suffered pain in her arms
     and her right knee for a short period of time thereafter. We
     concluded these facts did not constitute sufficient bodily injury to
     sustain a conviction of a simple assault, in that “temporary aches
     and pains brought about by strenuous, even violent, dancing are
     an inadequate basis for imposing criminal liability upon a dance
     partner for assault.” Kirkwood, 520 A.2d at 454. We also
     opined “the assault section of the Crimes Code was intended to
     protect and preserve one’s physical well-being and was not
     intended to prevent temporary hurts resulting from trivial
     contacts which are a customary part of modern day living.” Id.


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J-S60038-17


           In Interest of J.L., supra, we reversed the adjudication
     of delinquency of a sixteen-year-old [girl] for simple assault
     where she elbowed her nephew to push him away [while they
     were seated on the living room couch.] [The toddler did not cry
     or exhibit any pain.] We noted “it is difficult to attach criminality
     to the pushing, shoving, slapping, elbowing, hair-pulling,
     perhaps even punching and kicking, that frequently occur
     between siblings or other members of the same family.” Id. at
     157.

Marti, 779 A.2d at 1181.

     We find Appellant’s reliance on Kirkwood and Interest of J.L. to be

misplaced as these cases are clearly distinguishable from the facts of the

instant matter.   Viewing the evidence in the light most favorable to the

Commonwealth, as verdict winner, the victim in the instant case did not

suffer a “temporary hurt” resulting from a “trivial contact” as occurred in

Kirkwood.     Rather, the victim suffered a visible injury to his head as a

result of being pushed “really hard” or “slammed to the floor” during a

verbal argument. It cannot be viewed in any sense as “trivial” social contact

as was the, albeit aggressive, dancing in Kirkwood.

     Furthermore, with regard to Appellant’s reliance upon Interest of

J.L., we note that, in that case, unlike in the instant matter, there was no

indication the juvenile caused actual bodily injury to her nephew.      Rather,

the issue was whether she attempted to cause such bodily injury when she

elbowed him.      In any event, considering the spectrum of assaultive

behavior, convictions for simple assault of a family member have been

upheld where the behavior is clearly criminal, as occurred in the case sub


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J-S60038-17


judice. See Commonwealth v. Ogin, 540 A.2d 549 (Pa.Super. 1988) (en

banc) (upholding simple assault convictions of the child victim’s parents;

existence of substantial pain to victim sufficient to sustain convictions could

be inferred from facts that child victim was grabbed by arm and flung

against building by one parent and then screamed for several minutes, that

she was struck in the face by one parent with extreme force causing her to

fall against wall). Thus, we find no merit to Appellant’s first claim.

      In his final claim, Appellant alleges the trial court erred in denying his

oral motion for extraordinary relief for a new trial under Pa.R.Crim.P.

704(B)(1). Specifically, Appellant asserts the Commonwealth violated

Pa.R.Crim.P. 573(B)(1)(a) and Commonwealth v. Brady, 373 U.S. 83, 83

S.Ct. 1194 (1963), by failing to disclose that Appellant’s father/the victim’s

grandfather, Robert Duck, Sr., made a statement to the prosecutor on the

morning of the trial indicating that he believed “the boys were just

wrestling.”

      In Brady, the United States Supreme Court held 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,

irrespective of the good faith or bad faith of the prosecution.” Brady, 373

U.S. at 87, 83 S.Ct. at 1196-97. In response to the dictates of Brady, our

Supreme Court promulgated Pa.R.Crim.P. 573 with respect to discovery in

criminal cases. The Rule lists certain items and information that are subject


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to mandatory disclosure by the Commonwealth when they are (1) requested

by the defendant, (2) material to the case, and (3) within the possession or

control of the prosecutor.      Pa.R.Crim.P. 573(B).     Mandatory discovery

includes any evidence favorable to the accused that is material to either guilt

or punishment. Pa.R.Crim.P. 573(B)(1)(a).

      With regard to Brady’s and Rule 573(B)1)(a)’s requirement that the

evidence be “material,” this Court has held that “in the context of pre-trial

disclosure, evidence is material only if there is a reasonable probability that,

had the evidence been disclosed to the defense, the result of the proceeding

would have been different.” Commonwealth v. Ferguson, 866 A.2d 403,

407 (Pa.Super. 2004) (quotation marks and quotation omitted).           In this

context, a “reasonable probability” is defined as “a probability sufficient to

undermine confidence in the outcome.” Id. (quotation marks and quotation

omitted).

      In the case sub judice, assuming, arguendo, Appellant’s father, Robert

Duck, Sr., made a pre-trial statement to the prosecutor indicating he

believed “the boys were just wrestling,” the prosecutor failed to disclose the

statement to Appellant, and Appellant made a proper discovery request, we

conclude that Appellant has not demonstrated that he is entitled to relief

under Brady or Pa.R.Crim.P. 573(B)(1)(a).

      Robert Duck, Sr.’s statement does not identify “the boys” to which he

was referring. It is noteworthy that the only evidence offered on this matter


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was from Zachary, who indicated his grandfather, Robert Duck, Sr., entered

the room after Appellant assaulted the victim but while Zachary and

Appellant were on the ground wrestling.     Thus, inasmuch as there is no

indication from Robert Duck, Sr.’s statement that he witnessed Appellant’s

physical assault of the victim, Appellant has failed to demonstrate that the

statement contained “material” evidence. See Ferguson, supra.

     In any event, assuming, arguendo, Appellant established Robert Duck,

Sr.’s statement contained “material” evidence, it is well-settled 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.” Commonwealth v. Morris, 573 Pa. 157, 178,

822 A.2d 684, 696 (2003) (citation omitted).        Here, by all accounts,

Appellant knew, or reasonably ought to have known, that Robert Duck, Sr.,

was in the house and walked into the room at some point during the physical

encounters.   Accordingly, Appellant had equal access to or could have

uncovered Robert Duck, Sr.’s alleged observation with reasonable diligence.

     For all of the aforementioned reasons, we affirm.

     Affirmed.




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J-S60038-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/29/2017




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