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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
AARON LABREW DAVIS, JR.                     :
                                            :
                          Appellant         :
                                            :     No. 1426 WDA 2015

                  Appeal from the PCRA Order January 23, 2015
        in the Court of Common Pleas of Fayette County Criminal Division
                        at No(s): CP-26-CR-0000250-2011

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED APRIL 6, 2016

        Appellant, Aaron LaBrew Davis, Jr., appeals from the order entered in

the Fayette County Court of Common Pleas denying, after an evidentiary

hearing, his first timely Post Conviction Relief Act1 (“PCRA”) petition.

Appellant contends, among other issues, the Commonwealth violated Brady

v. Maryland, 373 U.S. 83 (1963), by not informing him—prior to his trial—

that the victim had no medical records of Appellant’s assault. We affirm.

        We adopt the PCRA court’s recitation of the facts and procedural

history.    See PCRA Ct. Op., 1/23/15, at 1-2.        At trial, the jury heard

evidence that Appellant admitted to assaulting the victim. N.T. Trial, 5/3-

5/5/11, at 92, 96-97.         We reiterate that Appellant was convicted of

*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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aggravated assault (attempt by physical menace to put a correctional

institution employee in fear of imminent serious bodily injury); 2 aggravated

assault (attempt to cause or causes bodily injury to a correctional institution

employee);3 simple assault (attempt by physical menace to put another in

fear of imminent serious bodily injury);4 and simple assault (attempts to

cause or causes bodily injury to another).5      We also note that on direct

appeal, Appellant asserted his sentence was excessive, which this Court

rejected. Commonwealth v. Davis, 897 WDA 2011 at 3 (Pa. Super. June

12, 2012) (unpublished memorandum).

        At the PCRA evidentiary hearing, Appellant testified that he was aware

that the Department of Corrections investigated the victim for improper

communication with an inmate six months after Appellant’s conviction and

over a year after his assault on the victim:

           [District attorney]. And you would agree that these
           allegations or the charges that were brought against [the
           victim] occurred years after this incident and your
           conviction, is that correct? When she was actually charged
           with her crimes?

           [Appellant]. Yes.



2
    18 Pa.C.S. § 2702(a)(6).
3
    18 Pa.C.S. § 2702(a)(3).
4
    18 Pa.C.S. § 2701(a)(3).
5
    18 Pa.C.S. § 2701(a)(1).




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         Q. It didn’t occur in 2010, 2011, not until 2012, is that
         right?

         A. Yes.

         Q. Long after your contact with [victim]?

         A. Fourteen months later.

N.T. PCRA Hr’g, 7/24/13, at 20.

      On January 23, 2015, the PCRA court denied Appellant’s PCRA petition.

Appellant did not immediately file a direct appeal. Appellant, pro se, filed a

second PCRA petition that was docketed on March 2, 2015. The PCRA court

dismissed Appellant’s second petition after issuing a Pa.R.Crim.P. 907 notice.

      On September 10, 2015, Appellant filed a counseled motion to appeal

nunc pro tunc from the January 23, 2015 order denying his first PCRA

petition. The PCRA court granted the motion on September 15, 2015, and

Appellant filed a timely notice of appeal on September 16, 2015. Appellant

timely filed a court-ordered Pa.R.A.P. 1925(b) statement.

      Appellant raises the following issues:

         Whether the Commonwealth engaged in prosecutorial
         misconduct resulting in Brady violations for: failing to
         notify Appellant that the alleged victim . . . did not seek
         medical treatment; and by failing to disclose the
         investigation concerning the alleged victim?

         Whether trial counsel . . . was ineffective for: failing to
         specifically request the alleged victim’s . . . medical
         records regarding the alleged incident; failing to conduct
         an independent investigation into the alleged victim’s
         background; and failing to communicate with Appellant?




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           Whether Appellant’s sentence of twenty-seven (27) to one
           hundred twenty (120) months incarceration is excessive
           for the charge of aggravated assault attempt to cause
           bodily injury?

Appellant’s Brief at 5.

        We summarize Appellant’s arguments for his first two issues.        He

contends that the Commonwealth had an obligation to disclose, prior to trial,

the nonexistence of any medical records regarding the victim’s assault. Id.

at 13. He opines that the absence of any medical records is favorable to his

case as it tends to undermine the victim’s assertion that she was assaulted.

Id. Appellant asserts that the absence of the victim’s medical records was

disclosed only after trial. Id. He also posits that the Commonwealth had an

obligation to disclose that the victim was allegedly under investigation by the

Department of Corrections into whether the victim and an inmate were

involved in passing a note.6 We conclude Appellant is not entitled to relief.

        “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v. Abu-

Jamal, 941 A.2d 1263, 1267 (Pa. 2008) (citation omitted).

           [C]ounsel is presumed to have provided effective
           representation unless the PCRA petitioner pleads and
           proves that: (1) the underlying claim is of arguable merit;
           (2) counsel had no reasonable basis for his or her conduct;
           and (3) Appellant was prejudiced by counsel’s action or

6
    The Commonwealth did not file a brief.




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         omission. To demonstrate prejudice, an appellant must
         prove that a reasonable probability of acquittal existed but
         for the action or omission of trial counsel. A claim of
         ineffective assistance of counsel will fail if the petitioner
         does not meet any of the three prongs. Further, a PCRA
         petitioner must exhibit a concerted effort to develop his
         ineffectiveness claim and may not rely on boilerplate
         allegations of ineffectiveness.

Commonwealth        v.   Perry,   959   A.2d       932,   936   (Pa.   Super.   2008)

(punctuation and citations omitted).

      With respect to whether Brady applies to a particular factual scenario,

the standard of review is de novo, as it is a question of law.

         Under Brady, the prosecution’s failure to divulge
         exculpatory evidence is a violation of a defendant’s
         Fourteenth Amendment due process rights. [T]o establish
         a Brady violation, a defendant is required to demonstrate
         that exculpatory or impeaching evidence, favorable to
         the defense, was suppressed by the prosecution, to the
         prejudice of the defendant.

            The burden of proof is on the defendant to demonstrate
         that the Commonwealth withheld or suppressed evidence.
         . . . Similarly, this Court has limited the prosecution’s
         disclosure duty such that it does not provide a general
         right of discovery to defendants. . . .

                                  *      *     *

             As to Brady claims advanced under the PCRA, a
         defendant must demonstrate that the alleged Brady
         violation so undermined the truth-determining process that
         no reliable adjudication of guilt or innocence could have
         taken place. The Commonwealth notes that the United
         States Supreme Court has held that [t]he 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.



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Commonwealth v. Cam Ly, 980 A.2d 61, 75-76 (Pa. 2009) (emphases

added and internal quotation marks and citations omitted).           Omitted

evidence must be evaluated in the context of the entire record, as “[i]f there

is no reasonable doubt about guilt whether or not the additional evidence is

considered, there is no justification for a new trial.”   Commonwealth v.

Copenhefer, 719 A.2d 242, 259 (Pa. 1998) (citation omitted).              The

government cannot violate Brady by failing to turn over nonexistent

evidence.   Strube v. United States, 206 F. Supp. 2d 677, 688 (E.D. Pa.

2002).7

      Instantly, medical records never existed.     At the PCRA evidentiary

hearing, Appellant acknowledged there were no medical records. PCRA Hr’g

at 12.    Thus, the Commonwealth did not have an affirmative duty to turn

over nonexistent records prior to trial.   See Strube, 206 F. Supp. 2d. at

688. With respect to Appellant’s contention that the Commonwealth should

have disclosed that the Department of Corrections was investigating the

victim, Appellant conceded that the investigation and charging of the victim

occurred over a year after his conviction.      See N.T. PCRA Hr’g at 20.

Regardless, neither the nonexistence of the victim’s medical records nor the

investigation of the victim undermine confidence in the verdict given the

7
  While we recognize “that federal court decisions do not control the
determinations of the Superior Court,” NASDAQ OMX PHLX, Inc. v.
PennMont Secs., 52 A.3d 296, 303 (Pa. Super. 2012), such decisions
remain persuasive authority.




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entire record, which includes Appellant’s confession.   See N.T. Trial at 92,

96-97; Copenhefer, 719 A.2d at 259.

       For his last issue, Appellant claims his sentence is excessive. He does

not allege his sentence exceeds the statutory limits or that his trial counsel

was ineffective with respect to his sentence.         It is well-settled that

Appellant’s claim—not couched as ineffective assistance of counsel—is not

cognizable under the PCRA. See generally Commonwealth v. Taylor, 65

A.3d 462, 467 (Pa. Super. 2013); Commonwealth v. Watson, 835 A.2d

786, 801 (Pa. Super. 2003).        In any event, this Court had previously

rejected Appellant’s excessive-sentence claim on direct appeal. See Davis,

897 WDA 2011 at 3.        Because Appellant’s issues lack arguable merit, we

cannot hold that his trial counsel was ineffective. See Perry, 959 A.2d at

936.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/6/2016




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