J-S44006-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 DOMINIC SOUTO DIAZ                        :
                                           :
                    Appellant              :    No. 841 WDA 2018

                 Appeal from the PCRA Order May 16, 2018
  In the Court of Common Pleas of Erie County Criminal Division at No(s):
                          CP-25-CR-0003451-2014


BEFORE: SHOGAN, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.:                         FILED DECEMBER 20, 2019

      Appellant, Dominic Souto Diaz, appeals pro se from the order denying

his petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-9546. We affirm.

      The PCRA court set forth the following thorough recitation of the factual

and procedural history of this case:

            On August 23, 2014, Appellant shot and killed bouncer,
      Hercules Rieger, outside The Bearded Lady, a bar at East 11th and
      Wayne Streets in Erie, Pennsylvania. A neighborhood resident,
      Javon Martin, testified that he knew both Appellant and Rieger and
      heard them arguing near the entrance of the bar. N.T., 5/12/15,
      (Day 2), at 53, 58, 65. Martin also testified that he saw Rieger
      punch Appellant. N.T., 5/12/15, at 59. Appellant left the scene
      but returned shortly thereafter. Id. at 60-63. Martin said he saw
      Appellant pull a gun from his waistband and shoot Reiger. Id.

            Another neighborhood resident, Jamie Barlorin, testified
      that he saw and heard two men arguing. He later identified the
      men from a photographic array as Appellant and another Bearded
      Lady bouncer, Marzell Stovall. Id. at 116. Barlorin testified he
J-S44006-19


     saw Stovall strike Appellant in the head with a tire iron. Barlorin
     heard a gunshot approximately twenty minutes later and he called
     911 at approximately 2:46 a.m. Id. at 117, 120, 124.

            Joino McAdory was also working as a bouncer at The
     Bearded Lady. He confirmed the physical altercation between
     Rieger and Appellant in which Reiger [sic] punched Appellant and
     knocked him down. N.T., 5/13/15, (Day 3), at 38-39. McAdory
     testified that ten to fifteen minutes later, he heard a gunshot and
     saw Rieger fall to the ground. He did not see who fired the shot.
     Id. at 40.

           Raymond MacDonald, a senior manager of the law
     enforcement management group for T-Mobile, verified that
     Appellant made calls on his cell phone just before he was arrested.
     MacDonald testified that those calls placed Appellant in the vicinity
     of the murder. N.T. (Day 3), at 3-4, 35-36. Appellant tried to
     destroy his cell phone while sitting in the back of the police cruiser
     immediately after he was arrested. N.T. (Day 3), at 99.

           Appellant offered an expert who offered a contrary opinion
     regarding the interpretation of the cell phone records. Louis
     Cinquanto testified that the phone records placed Appellant
     anywhere from .84 to 2.75 miles from the scene at the time of the
     shooting. N.T. (Day 3) at 84.

            Appellant’s trial counsel, Attorney Bruce Sandmeyer,
     attempted to discredit the eyewitness testimony of Javon Martin,
     the neighbor who claimed he saw Appellant shoot the victim. After
     he observed the incident at The Bearded Lady, Martin was jailed
     on a parole violation. Martin’s jail mates testified at trial that
     Martin told them Appellant was not at the scene of the crime and
     that Martin was just testifying against Appellant in order to get
     lenient treatment in his own case. N.T. (Day 3), at 52; N.T. (Day
     2), at 77.

           At trial, the prosecution was forthright about the fact that
     they helped Martin in his revocation hearing after he provided his
     statement to the police identifying Diaz as the murderer.
     However, the prosecution maintained that Martin was not
     promised anything before he gave his statement to the police.
     Martin was asked about his lenient treatment by [Assistant District
     Attorney Erin] Connelly, on direct and by defense counsel on cross
     examination. N.T. (Day 2) at 71, N.T. (Day 2) at 77. During

                                     -2-
J-S44006-19


     discovery, the prosecution provided the defense with a letter from
     Martin to Connelly asking for lenient treatment after he made his
     statement to police. On cross examination, Defense counsel used
     that letter to discredit Martin as a snitch. N.T. (Day 2) at 78-79.
     There is no evidence of any other favors or lenient treatment
     promised to Martin at any time. In fact, after Attorney Connelly
     vouched for Martin at his Revocation Hearing, Martin was released
     on parole, but promptly absconded to Tennessee. He was later
     found and returned to prison to finish serving his term. Connelly
     made it clear that no further favors would be granted to him, even
     if he testified at the Diaz trial. Connelly emphasized this fact in
     her closing argument.

           On May 14, 2015, a jury returned a guilty verdict against
     Appellant on all counts: first-degree murder, aggravated assault,
     recklessly endanger[ing] another person, possessing an
     instrument of crime, and firearms not be carried without a license.
     Appellant filed post-trial motions, which were denied by the
     Honorable Ernest DiSantis on July 17, 2015. Appellant filed a
     timely appeal to the Pennsylvania Superior Court, which was
     denied on June 24, 2016. [Commonwealth v. Diaz, 153 A.3d
     1118, 1257 WDA 2015 (Pa. Super. filed June 24, 2016)
     (unpublished memorandum)].

            Between June 8 and June 12, 2017, Appellant filed the
     instant timely pro se PCRA claim, raising 17 issues.1 Counsel was
     appointed and filed a Supplemental Motion in support of
     Appellant’s PCRA claims on September 19, 2017. The counseled
     Supplemental Petition “incorporate[s]” all of Appellant’s claims
     raised in his pro se petition2 and more specifically addresses two
     of the previously raised issues: (1) ADA Connelly committed
     prosecutorial misconduct by not revealing that the DA’s office
     offered Martin significant favorable treatment in exchange for his
     testimony against Appellant; and (2) Appellant’s counsel was
     ineffective for failing to call two exculpatory witnesses: Attila Diaz
     and Valentino Moore who were with Martin the night of the
     murder. (Supplement to Motion for Post Conviction Collateral
     Relief, 9/19/17).

           1 Pursuant to the prisoner mailbox rule, Appellant’s
           pro se PCRA filing is the date he placed it in the hands
           of prison authorities for mailing (i.e. postmark date).
           See, Commonwealth v. Fransen, 986 A.2d 154,
           156 n.5 (Pa. Super. 2009); Commonwealth v.

                                     -3-
J-S44006-19


           Castro, 766 A.2d 1283 (Pa. Super. 2001);
           Commonwealth v. Little, 716 A.2d 1287 (Pa. Super.
           1998). Here, Appellant’s Certificate of Service is
           dated June 8, 2017 and his Petition is docketed June
           12, 2017, but we lack evidence of when Appellant
           placed his petition in the hands of the postal
           authorities. However, pursuant to either date, the
           Petition is timely.

           2 Commonwealth v. Cherry, 155 A.3d 1080, 1083
           (Pa. Super. 2017) (PCRA counsel’s duty is to amend a
           pro se petition and present it in legal terms or certify
           that the claims lack merit).

           On September 25, 2017[,] Appellant mailed to the [c]ourt,
     but failed to file with the Clerk or copy his counsel, a “Request to
     Proceed pro se, for the Post Conviction Relief and for Attorney
     Hathaway to withdraw and to amend the PCRA.” Appellant
     claimed that Attorney Hathaway “failed to argue issues with
     merit.” At the same time, Appellant also mailed the [c]ourt a 27
     page “Amendment to the Supplement for Post Conviction Relief,”
     which was forwarded to [Appellant’s] counsel, Attorney William
     Hathaway. On December 21, 2017, a pro se colloquy was
     conducted and it was determined that Appellant wanted Attorney
     Hathaway to continue to represent him. Attorney Hathaway
     declined to submit an amended supplemental petition based on
     Appellant’s pro se Amendments.

           On February 15, 2018, Appellant wrote the [c]ourt a letter
     indicating, once again, that he wanted to proceed pro se. On
     March 27, 2018, Attorney Hathaway filed a Petition for Leave to
     Withdraw as Counsel, which was denied. The [c]ourt also denied
     Appellant’s request to proceed pro se, as having already been
     determined at the December 21, 2017 Grazier hearing.3

           3 Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa.
           1998) (citations omitted) (“When a waiver of the right
           to counsel is sought at the post-conviction and
           appellate stages, an on-the-record determination
           should be made that the waiver is a knowing,
           intelligent, and voluntary one.”)

          Prior to the evidentiary hearing, Attorney Hathaway filed a
     Motion to Recuse, based on the fact that this [c]ourt’s former law

                                    -4-
J-S44006-19


     clerk, Brandon Bingle, Esq., who assisted Attorney Connelly in
     prosecuting [Appellant]. The Motion to Recuse was denied on
     April 30, 2018. Attorney Hathaway also filed a Motion for
     Discovery of information relating to the favorable treatment of
     Martin, which was granted on the same date.

            On May 11, 2018, this [c]ourt conducted an evidentiary
     hearing to address the merits of Appellant’s PCRA claims. At the
     hearing, Appellant testified on his own behalf. Appellant’s alleged
     alibi witnesses, Valentino Moore and Attila Diaz, also testified.
     Witnesses for the Commonwealth included former Assistant
     District Attorney, Brandon Bingle, Esq., Assistant District
     Attorney, Erin Connelly, Esq., trial counsel, Bruce Sandmeyer,
     Esq., and the Public Defender’s private investigator, Laurie Rogan,
     M.S. At the evidentiary hearing, PCRA counsel pursued the
     following issues: (1) whether trial counsel should have called two
     alibi witnesses; (2) whether the prosecution committed a Brady
     violation; and an additional claim which did appear in Appellant’s
     pro se Petition, (3) trial counsel was ineffective for “failing to
     object to DA’s closing statement regarding the location of
     [Appellant’s] cell phone near the crime scene at the time of the
     murder.” (pro se PCRA Petition, ¶6(C)(3)).

           On May 16, 2018, this [c]ourt issued a Final Order
     dismissing Appellant’s PCRA Petition in light of the evidence
     received during the evidentiary hearing, and upon an independent
     review of the record. On June 1, 2018, Appellant filed a pro se
     Notice of Appeal, although still represented by counsel. On June
     5, 2018, this [c]ourt recognized Appellant’s pro se Appeal as an
     exception to the bar against hybrid representation.4 We issued a
     1925(b) Order requiring a Concise Statement within twenty-one
     days. On June 18, 2018 Appellant filed a Concise Statement of
     Matters Complained of on Appeal, raising 29 issues for appellate
     consideration. Appellant made it known that he wanted to
     proceed pro se on appeal. A Grazier hearing was scheduled.
     PCRA counsel filed a written Motion to Withdraw as Counsel. A
     Grazier hearing was held on June 29, 2018, in which it was
     determined that Appellant knowingly, intelligently, and voluntarily
     chose to proceed pro se on appeal. The [c]ourt granted Attorney
     Hathaway’s Petition for Leave to Withdraw as Counsel.

           4 See Commonwealth v. Williams, 151 A.3d 621
           (Pa. Super. 2016).


                                    -5-
J-S44006-19


              Appellant then filed a flurry of pro se Motions requesting,
        inter alia, discovery, transportation to a different holding facility,
        requests for extension of time, a motion to quash his first Concise
        Statement, and a request to file an Amended Concise Statement.
        Most of these motions were denied. On August 8, 2018, the
        Pennsylvania Superior Court remanded this case in order to allow
        Appellant to file an Amended Concise Statement within 14 days.
        Appellant timely complied. On August 22, 2018, Appellant filed
        an Amended Statement of Matters Complained of on Appeal
        raising 15 issues, some but not all of which overlap with the 29
        issues raised in Appellant’s original Concise Statement. Several
        issues in the Concise Statements are newly raised and cannot be
        discerned in any of Appellant’s prior filings.

PCRA Court Opinion, 9/10/18, at 1-6.

        Appellant presents the following issues for our review, which we

reproduce verbatim:

        I. Trial counsel was ineffective for not objecting to the
        Commonwealth improper remarks misrepresenting and putting on
        false evidence in opening and closing arguments in violation of
        Appellants 6th and 14th Amendment.

        II. The trial court erred when it dismissed Appellant PCRA petition
        alleging the Commonwealth failed to turn over discovery
        information pursuant to Brady v. Maryland[1] in violation of
        Appellant fourteenth Amendment right to due process

Appellant’s Brief at 5.

        When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”     Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)



____________________________________________


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

                                           -6-
J-S44006-19


(en banc)).    This Court is limited to determining whether the evidence of

record supports the conclusions of the PCRA court and whether the ruling is

free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012). We grant great deference to the PCRA court’s findings that are

supported in the record and will not disturb them unless they have no support

in the certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.

Super. 2014).

       In the argument portion of his brief, Appellant challenges the effective

assistance of his prior counsel. Our Supreme Court has long stated that, in

order to succeed on a claim of ineffective assistance of counsel, an appellant

must demonstrate: (1) the underlying claim is of arguable merit; (2) counsel’s

performance lacked a reasonable basis; and (3) the ineffectiveness of counsel

caused the appellant prejudice. Commonwealth v. Pierce, 786 A.2d 203,

213 (Pa. 2001).

       We observe that claims of ineffective assistance of counsel are not self-

proving. Commonwealth v. Wharton, 811 A.2d 978, 986 (Pa. 2002). In

addition, we note that where an appellant is not entitled to relief with regard

to the underlying claim upon which his ineffectiveness claim is premised, he

is   not   entitled   to   relief   with   regard   to   his   ineffectiveness   claim.

Commonwealth v. Ousley, 21 A.3d 1238, 1246 (Pa. Super. 2011). Thus,

trial counsel cannot be deemed ineffective for failing to pursue a meritless




                                           -7-
J-S44006-19


claim. Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en

banc).

      Moreover, with regard to the second prong, we have reiterated that trial

counsel’s approach must be “so unreasonable that no competent lawyer would

have chosen it.”   Commonwealth v. Ervin, 766 A.2d 859, 862-863 (Pa.

Super. 2000) (quoting Commonwealth v. Miller, 431 A.2d 233 (Pa. 1981)).

      Our Supreme Court has discussed “reasonableness” as follows:

             Our inquiry ceases and counsel’s assistance is deemed
      constitutionally effective once we are able to conclude that the
      particular course chosen by counsel had some reasonable basis
      designed to effectuate his client’s interests. The test is not
      whether other alternatives were more reasonable, employing a
      hindsight evaluation of the record.           Although weigh the
      alternatives we must, the balance tips in favor of a finding of
      effective assistance as soon as it is determined that trial counsel’s
      decision had any reasonable basis.

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (quoting

Commonwealth ex rel. Washington v. Maroney, 235 A.2d 349 (Pa.

1967)) (emphasis in original).

      In addition, we are mindful that prejudice requires proof that there is a

reasonable probability that, but for counsel’s error, the outcome of the

proceeding would have been different. Pierce, 786 A.2d at 213. “A failure

to satisfy any prong of the ineffectiveness test requires rejection of the claim

of ineffectiveness.”   Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa.

2009) (citing Commonwealth v. Sneed, 899 A.2d 1067 (Pa. 2006)). Thus,

when it is clear that a petitioner has failed to meet the prejudice prong of an



                                      -8-
J-S44006-19


ineffective-assistance-of-counsel claim, the claim may be disposed of on that

basis alone, without a determination of whether the first two prongs have been

met. Commonwealth v. Baker, 880 A.2d 654, 656 (Pa. Super. 2005).

      Further, it is presumed that the petitioner’s counsel was effective, unless

the petitioner proves otherwise.      Commonwealth v. Williams, 732 A.2d

1167, 1177 (Pa. 1999).       Moreover, we are bound by the PCRA court’s

credibility determinations where there is support for them in the record.

Commonwealth v. Battle, 883 A.2d 641, 648 (Pa. Super. 2005) (citing

Commonwealth v. Abu-Jamal, 720 A.2d 79 (Pa. 1998)).

      Appellant first argues that the PCRA court erred in failing to determine

that his trial counsel was ineffective. Appellant’s Brief at 15-28. Specifically,

Appellant asserts that trial counsel erred in failing to object to the

Commonwealth’s improper argument during closing arguments. Id. at 17-

27.   Appellant contends that the prosecutor misrepresented to the jury

evidence offered by expert witnesses regarding Appellant’s physical location,

at the time of the murder, through the use of cell phone technology.

      A   prosecutor   is   allowed   wide   latitude   in   advocating   for   the

Commonwealth, including the right to argue all fair deductions from the

evidence, to respond to defense arguments, and to engage in a certain degree

of oratorical flair. Commonwealth v. Judy, 978 A.2d 1015, 1020 (Pa. 2009).

In addition, we are mindful of the following:

             A claim of ineffective assistance grounded in trial counsel’s
      failure to object to a prosecutor’s conduct may succeed when the

                                       -9-
J-S44006-19


      petitioner demonstrates that the prosecutor’s actions violated a
      constitutionally or statutorily protected right, such as the Fifth
      Amendment privilege against compulsory self-incrimination or the
      Sixth Amendment right to a fair trial, or a constitutional interest
      such as due process. To constitute a due process violation, the
      prosecutorial misconduct must be of sufficient significance to
      result in the denial of the defendant’s right to a fair trial. The
      touchstone is fairness of the trial, not the culpability of the
      prosecutor.

             We further reiterate that a prosecutor has reasonable
      latitude during his closing argument to advocate his case, respond
      to arguments of opposing counsel, and fairly present the
      Commonwealth’s version of the evidence to the jury. The court
      must evaluate a prosecutor’s challenged statement in the context
      in which it was made. Finally, [n]ot every intemperate or
      improper remark mandates the granting of a new trial;
      [r]eversible error occurs only when the unavoidable effect of the
      challenged comments would prejudice the jurors and form in their
      minds a fixed bias and hostility toward the defendant such that
      the jurors could not weigh the evidence and render a true verdict.

Commonwealth v. Hanible, 30 A.3d 426, 464-465 (Pa. 2011) (quotation

marks and citations omitted).

      In addressing this claim of ineffective assistance, the PCRA court offered

the following analysis:

             [Appellant] claims … that [trial counsel] was ineffective for
      failing to object to [the prosecutor’s] alleged misrepresentation of
      the cell phone testimony during her closing argument. This claim
      … lacks merit since the Commonwealth’s expert and [Appellant’s]
      experts presented conflicting testimony about where [Appellant]
      was located when various cell phone calls were made at times
      close to the murder. The Commonwealth’s expert claimed that
      the phone calls showed that [Appellant] was near the scene of the
      murder. [Appellant’s] expert claimed that the calls showed
      [Appellant] was on the other side of town at the time of the
      murder. [The prosecutor] chose to re-iterate her expert’s version
      of the cell phone expert testimony during her closing argument.
      (Ev. Hrg. Tr. p. 75-76). No objection was warranted. [Trial
      counsel] was then able to re-iterate the defense expert’s

                                     - 10 -
J-S44006-19


      conclusions to the contrary during his closing argument. The fact
      that the jury believed the Commonwealth’s expert over the
      defenses expert does not constitute ineffective assistance of
      counsel.

PCRA Court Opinion, 9/10/18, at 17-18. We agree that Appellant failed to

demonstrate that the prosecutor’s comments during closing argument violated

a constitutionally or statutorily protected right.

      The record reflects that the Commonwealth gave a twenty-three-page

closing argument. N.T., 5/13/15, at 130-153. The following excerpt is the

allegedly offensive comment made during the closing statement:

            So we back up to here. Here, ironically enough, is going to
      put us between that 2:35 and that 2:43 number before
      [Appellant] starts coming back this way. So we know that around
      the time the shot was fired, he’s there. His phone is there. His
      phone is picking up that tower.

Id. at 140.

      We do not agree with Appellant’s conclusion that this statement by the

prosecutor was an invalid reflection of the evidence presented at trial. Rather,

our determination is supported by the following testimony offered by trial

counsel during the PCRA court’s evidentiary hearing:

      Q. So it’s fair to say … that your defense was primarily predicated
      on the expert witness; is that correct?

      A. Absolutely. [The defense expert], just his testimony taking a
      very technical subject, he was able to break it down and discuss
      it in [l]ayman’s terms. And what was so critical about his
      testimony was that he described each cell tower, how the cell
      tower works, you know, the grid coordinates that are on each cell
      tower, what that means in regards to whether the tower pinged
      from east, west, north, or south. And you know, I also had
      concerns about, you know, the information that [Appellant] had

                                      - 11 -
J-S44006-19


     given us because there were cell phone calls that were at least
     attributed to his phone that night and I was very concerned about
     what he was saying, those cell phone times, and the [the defense
     expert], how he had triangulated the phone calls. I was much
     more confident in [the defense expert].

     Q. And again, this is not a precise science, it’s not like a GPS where
     you can precisely place where the cell phone transmission was
     made from; is that correct?

     A. That is correct, sir.

     Q. It’s basically where it pings off the nearest available tower; is
     that correct?

     A. Yes, sir.    There [are] some variables to that based on
     atmosphere, conditions, of course, the direction that the phone is
     pointed in, there are variables to that. But that is correct, sir.

     Q. Were you fairly confident that your expert’s testimony either
     exculpated [Appellant] or served to provide reasonable doubt in
     his guilt of the crime?

     A. I did, sir.

     Q. And it was to your benefit and advantage that you wanted the
     jury to be able to comprehend and fairly evaluate the expert
     testimony, both your expert and the Commonwealth’s expert, is
     that correct?

     A. Absolutely. The Commonwealth did call somebody from one of
     the cell phone companies and I thought [the defense expert] was
     far superior to his testimony.

     Q. Do you have a recollection of [the prosecutor] making
     reference in her closing argument to the expert testimony,
     including your defense expert placing [Appellant] in the vicinity of
     The Bearded Lady at 2:42 a.m. in the morning?

     A. Oh, if it’s in the transcript I’m sure we both addressed the cell
     phone evidence extensively.




                                    - 12 -
J-S44006-19


      Q. Do you believe that statement was a good faith reference and
      supported in the evidentiary record that it did place [Appellant] on
      the east side at that time period?

      A. Absolutely. The cell phone expert presented by the
      Commonwealth that would have definitely been supported by his
      testimony.

N.T., 5/11/18, at 70-72.

      Upon review, it is our determination that the prosecutor’s comment was

an effort to present the Commonwealth’s version of what the evidence

established.   Moreover, to the extent that we could conclude that the

prosecutor’s recap of the evidence was not an accurate reflection of the

testimony presented at trial, it is our determination that the remark would not

mandate a new trial. The passing comment by the prosecutor about where

Appellant’s cell phone was picking up on a particular tower did not have the

unavoidable effect of prejudicing the jurors and forming in their minds a fixed

bias and hostility toward Appellant such that they could not weigh the

evidence and render a true verdict. Hence, there is no merit to Appellant’s

underlying argument that trial counsel was ineffective for failing to object

during the closing argument. Accordingly, this claim of ineffective assistance

lacks merit.

      Appellant last argues that the PCRA court erred in concluding that his

claim of ineffective assistance of counsel, with regard to an alleged Brady

violation, lacked merit. Appellant’s Brief at 29-49, and Appellant’s Addendum

to Brief at 1A-5A. Appellant contends that the Commonwealth violated the


                                     - 13 -
J-S44006-19


provisions of Brady by failing to disclose an offer to the lone eyewitness for

favorable treatment in his unrelated personal criminal matter in exchange for

testimony at Appellant’s trial.

      This Court has summarized the law pertaining to Brady as follows:

            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 supra at 87, 83 S.Ct.
            1194.

            This Court has held that “to prove a Brady violation,
            the defendant must show that: (1) the prosecutor has
            suppressed evidence; (2) the evidence, whether
            exculpatory or impeaching, is helpful to the
            defendant; and (3) the suppression prejudiced the
            defendant.” Commonwealth v. Pagan, 597 Pa. 69,
            950 A.2d 270, 291 (2008) (citing Commonwealth v.
            Carson, 590 Pa. 501, 913 A.2d 220, 245 (2006)).

      Commonwealth v. Busanet, 54 A.3d 35, 48 (Pa. 2012).
      “Brady’s mandate is not limited to pure exculpatory evidence;
      impeachment evidence also falls within Brady’s parameters and
      therefore must be disclosed by prosecutors. U.S. v. Bagley, 473
      U.S. 667, 677, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).”
      Commonwealth v. Haskins, 2012 PA Super 223, 60 A.3d 538,
      546, 2012 WL 4841446, *6 (Pa. Super. 2012). “The burden rests
      with Appellant to ‘prove, by reference to the record, that
      evidence was withheld or suppressed by the prosecution.’
      Commonwealth v. Porter, 556 Pa. 301, 728 A.2d 890, 898
      (1999) (citations omitted) (emphasis added).” Commonwealth
      v. Sneed, 45 A.3d 1096, 1116 (Pa. 2012).            “A witness’s
      assumption that he will benefit from cooperating in the
      prosecution of the defendant, without more, is insufficient to
      establish that an agreement existed, and does not trigger Brady
      disclosure requirements.”    Busanet, supra at 49 (citation
      omitted).

Commonwealth v. Nero, 58 A.3d 802, 809-810 (Pa. Super. 2012).

                                    - 14 -
J-S44006-19


      Moreover, we observe that pretrial discovery in criminal cases is

governed by Pa.R.Crim.P. 573. The rule lists certain items and information

that are subject 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).      As this Court has

stated “[t]he law is clear that a criminal defendant is entitled to know about

any information that may affect the reliability of the witnesses against him.”

Commonwealth v. Copeland, 723 A.2d 1049, 1051 (Pa. Super. 1998)

(citing Commonwealth v. Moose, 602 A.2d 1265 (Pa. 1992)).

      “A defendant seeking relief from a discovery violation must demonstrate

prejudice. ... [He] must demonstrate how a more timely disclosure would

have affected his trial strategy or how he was otherwise prejudiced by the

alleged late disclosure.” Commonwealth v. Causey, 833 A.2d 165, 171 (Pa.

Super. 2003).

      The PCRA court offered the following detailed discussion addressing

Appellant’s claim of ineffective assistance pertaining to the alleged Brady

violation, which we adopt as our own:

            Here, Appellant’s claims ... all relate to trial counsel’s failure
      (or PCRA counsel’s failure to allege trial counsel’s failure) to
      adequately challenge a purported Brady violation and/or
      prosecutorial misconduct concerning Javon Martin’s receipt of
      favorable treatment in exchange for his trial testimony against
      [Appellant]. Martin was a key witness for the prosecution. At

                                      - 15 -
J-S44006-19


     trial, he identified Appellant as the shooter, but prior to trial he
     did not come forward with this information to police until he had
     been arrested on a bench warrant for his own parole/probation
     violation. The record reveals that Javon Martin did, in fact, receive
     favorable treatment in his parole revocation case in large part due
     to ADA Erin Connelly’s intervention on his behalf.

            However, the fact of Martin’s deal with the prosecution was
     disclosed in discovery to the defense (PCRA Evidentiary Hearing
     Tr., p. 48-49) and openly admitted during Martin’s direct and cross
     examinations. (See Trial Transcript, pp. 71-73, 77-78). In fact,
     on cross examination, Appellant’s attorney used a letter from
     Martin to Connelly asking for assistance in his own criminal
     matter. That letter had been disclosed by Connelly prior to trial.
     (PCRA Ev. Hr. Tr. p., 49; Trial Tr. Day 2, pp. 78-79). The
     prosecution noted that they did not offer Martin assistance until
     AFTER he spoke with police. Only after Martin made statement to
     police, did Attorney Connelly go to bat for Martin at his subsequent
     revocation hearing, a fact which Attorney Connelly freely admitted
     while questioning Javon Martin at [Appellant’s] murder trial:

           Q. [ATTORNEY CONNELLY]: And at some point you
           actually meet me at the police station that evening,
           correct?

           A. [JAVON MARTIN]: Yeah, after everything, after I
           made my statement.

           Q. After you’ve given your statement?

           A. Yeah:

           Q. And do I make you any promises about anything I
           can do to help you out?

           A. No.

           Q. After that, you go back into court for your
           revocation, correct?

           A. Yes.

           Q. All right. And I asked the judge to let you out of
           jail, right?

                                    - 16 -
J-S44006-19



          A. Yes.

          Q. Did you know I was going to do that?

          A. No.

     (Trial Tr., Day 2, p. 71). The only observable issue in this
     exchange is not whether the prosecution revealed the fact they
     assisted Martin at his revocation hearing, which was made
     abundantly clear to the jury, but rather whether Martin had
     foreknowledge of that assistance. In the above exchange, Martin
     denies knowing that Connelly would show up at his revocation
     hearing. However, at Javon Martin’s revocation hearing Attorney
     Connelly tells the revocation judge that after Martin made his
     statement to the police she told him that she “would come to bat
     for him” at his revocation hearing. ADA Connelly addressed the
     revocation [c]ourt as follows:

          MS. CONNELLY: Thank you, your Honor. You have
          the benefit of the revocation summary here, as well
          as the remarks by the Adult Probation officers.

                I’m actually familiar with Mr. Martin. He’s
          helping me out with something big, and he has been
          very cooperative. He, in fact, upon being asked to
          help agreed to immediately before anything - before
          anyone offered him anything, and after the fact I told
          him that I would come to bat for him in court here
          today.

                I respect that probation had difficulty with him
          and that they couldn’t - and that he didn’t report
          immediately. I guess I would be taking a risk here
          going to bat for Mr. Martin, and he understands that,
          but I would ask that he be paroled for the remaining
          ten months of his sentence, that he continue to work,
          and that he be made to continue his cooperating with
          the Commonwealth as part of his probationary
          sentence.

                Mr. Martin, along with whatever is required by
          his probation officers, will also be coming to see me
          once a month to touch base.

                                  - 17 -
J-S44006-19



           THE COURT: All right. Okay. Very well. And I read
           the letters that you did send me too.

                So at case number 65 of 2013, what I’ll do is re-
           impose the sentence that was already given...

     (Javon Revocation Hearing Transcript, 9/19/14, p. 7). Martin’s
     original sentence was re–imposed and he was released on parole
     the next day. (Supplemental Petition, p. 5). He promptly
     absconded to Tennessee. He was found and returned to the Erie
     County Prison, where he remained to serve his sentence. N.T.
     (Day 3), p. 132-133.      While serving the remainder of the
     revocation sentence, Martin testified at Appellant’s murder trial in
     May of 2015.

          In her closing argument, Attorney Connelly told the jury that
     Javon Martin [did not] know she was going to show up at his
     probation hearing and tell the judge that he should be released:

           MS. CONNELLY: ... We brought [Martin] over after
           we got his name and sat him down, were you there?
           Yea, I was there. What happened?

                  And what does he do? He gave a video-taped
           statement to the police saying this is what happened,
           this is what I saw. And you know what, because he
           did that, I did to go the Court. He didn’t know I was
           going to. I showed up at his probation hearing and I
           said, let him out, he’s doing the right thing, let him
           out. He didn’t know I was going today that. (sic) He
           didn’t know how long he was sitting there. He didn’t
           even know I was coming to his hearing. And we let
           him out.

     N.T. (Day 3) at 132 (emphasis supplied). The question of when
     Martin knew Connelly would help him at his revocation hearing
     was addressed at the PCRA evidentiary hearing:

                 Q. [ATTORNEY HATHAWAY]: Now, in the interim
           between when he was brought in on the detainer and
           his actual revocation proceeding, did you ever
           represent to Mr. Martin that you would appear on his
           behalf at the revocation?

                                    - 18 -
J-S44006-19



                  A. [ATTORNEY CONNELLY]: No, I don’t believe I
           had any conversations with Mr. Martin during that
           time frame. I don’t recall, I guess I could say fairly I
           don’t recall. I know he wasn’t promised anything prior
           to giving his statement. At what point I told him, if I
           told him, which I don’t believe I did that I would show
           up at his revocation, I don’t believe I did. I believe I
           just went there and did that because he was doing the
           right thing.

     (PCRA. Ev. Hr. Tr., pp. 45-46).

            A claim brought under Brady v. Maryland, 373 U.S. 83
     (1963), challenges the Commonwealth’s failure to produce
     material evidence. Specifically, a Brady claim requires a petitioner
     to show “(1) the prosecutor has suppressed evidence, (2) the
     evidence, whether exculpatory or impeaching, is helpful to the
     defendant, and (3) the suppression prejudiced the defendant.”
     Commonwealth v. Carson, 913 A.2d 220, 244 (Pa. 2006). The
     record reveals no suppression of material evidence by the
     prosecution in this case. Furthermore, the evidence suppressed
     by the prosecutor must be material, such that there is a
     reasonable probability that, had the evidence been disclosed to
     the defense, the outcome of the proceeding would have been
     different. Commonwealth v. Burke, 781 A.2d 1136, 1141 (2001).

            Here, even had the jury known that ADA Connelly told
     Martin, after he provided his videotaped deposition to the police,
     but before his revocation hearing, that she would go to bat for him
     at his revocation hearing, it would not have made a substantial
     difference in the outcome of the trial. Therefore, we find that
     whether Attorney Connelly told Martin she would go to bat for him
     before or at his revocation hearing is a non-material issue. The
     important facts are that: (1) prior to trial Connelly fully disclosed
     her promise to help Martin at his revocation hearing; (2) at trial,
     Martin’s deal with the prosecution was made known to the jury;
     and (3) Connelly did not promise Martin any help until after Martin
     made his statement to the police in which he identified [Appellant]
     as the shooter. Appellant’s ... group of claims is therefore without
     merit.




                                    - 19 -
J-S44006-19


PCRA Court Opinion, 9/10/18, at 9-12 (footnote omitted) (emphasis in

original).

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/20/2019




                               - 20 -
