J. S62037/19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                  v.                   :
                                       :
MONROE WEEKLEY, III,                   :          No. 812 WDA 2019
                                       :
                       Appellant       :


            Appeal from the PCRA Order Entered April 29, 2019,
              in the Court of Common Pleas of Beaver County
             Criminal Division at No. CP-04-CR-0002162-2011


BEFORE: PANELLA, P.J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED AUGUST 25, 2020

     Monroe Weekley, III, appeals from the April 29, 2019 order entered by

the Court of Common Pleas of Beaver County denying his petition for relief

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546. After careful review, we affirm.

     The PCRA court provided the following summary of the factual and

procedural history:

           The evidence at trial showed that the victim died as a
           result of being shot in the back of the head with a
           large caliber weapon. The deceased victim was found
           by investigators slumped over a couch with his pants
           pulled down around his knees. [Appellant] went to
           the home of James Stewart and knocked on the door.
           Brad Karas, who was inside, let [appellant] in, told
           him that Stewart was asleep, and that he could wait
           until Stewart woke up. When Stewart eventually
           came downstairs and woke Karas back up, [appellant]
           spoke to Stewart, admitting that he had shot and
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          killed [the victim] after a struggle, and that [the
          victim] had been doing something “foul” when he
          entered the room. Stewart testified that [appellant]
          told him that “he caught [the victim] sitting on a chair
          in     the     house      receiving    fellatio    from
          [Alvin] Jay Flowers.”        Stewart    testified   that
          [appellant] told him that [the victim] and [appellant]
          had previously “pulled a lick,” meaning they had
          committed a robbery together, that [the victim] had
          taken the $1,200 proceeds from the robbery, and that
          [the victim] had failed to provide [appellant] his $600
          share of the proceeds. Karas testified that [appellant]
          told him he had killed [the victim] over drugs.

          While [appellant] and Stewart were talking, Karas was
          instructed to clean [appellant’s] .44 Magnum
          Redhawk revolver, which he did. Stewart then took
          the revolver, left the home with [appellant], and
          walked to the residence of James Connor, who lived
          nearby. Stewart sold the firearm to Connor, and gave
          the proceeds of the sale to [appellant].

          Stewart later began to cooperate with investigators.
          A series of phone calls and text messages were made
          between Stewart’s cell phone and [appellant’s]. The
          incriminating communications from [appellant]
          indicated, among other things, that [appellant]
          thought that Karas could not be trusted to keep from
          talking to the police, that [appellant] did not think
          Karas would be believed by anyone because he was a
          drug addict, and that “two womens [sic] word is better
          than one he [sic] just a [friend].” [Appellant] stated
          to Stewart over the phone, “No gun no case.”

          During the investigation, the firearm, which had been
          left by Connor at his son’s residence, was recovered.
          A bullet and copper jacket were also recovered from
          the crime scene in a location consistent with the
          trajectory of the head wound suffered by the victim.
          Forensic testing confirmed that the bullet found at the
          scene was fired by the Redhawk revolver.

          The jury returned a verdict on August 20, 2012,
          finding [appellant] guilty of the third degree murder


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            of [the victim]. The jury also found [appellant] guilty
            of receiving stolen property and carrying a concealed
            firearm without a license. On October 3, 2012,
            [appellant] was sentenced to serve an aggregate
            period of incarceration of 24½ years to 52 years. The
            conviction and sentence were affirmed by the Superior
            Court. Commonwealth v. Weekley, [125 A.3d 447
            (Pa.Super. 2015) (unpublished memorandum). The
            Superior Court affirmed appellant’s judgment of
            sentence on the trial court’s opinion.] [Appellant] filed
            a petition for allowance of appeal to the Pennsylvania
            Supreme Court, which denied allocatur on
            December 31, 2015.[1]

            On October 5, 2016, [appellant] filed a motion for post
            conviction collateral relief. [Appellant] was appointed
            counsel, who, after several extensions, filed an
            amended [PCRA] petition on June 19, 2017. The
            [PCRA] court held an evidentiary hearing on the
            petition on June 8, 2018, and continued the hearing
            to August 1, 2018 in order to allow the parties an
            opportunity to locate and test evidence that was
            collected during the initial investigation of this case.
            [Appellant] was present for each day of the
            evidentiary hearing, and was represented by counsel.
            Counsel for the Commonwealth and the charging
            officer were also present. On August 1, 2018, the
            [PCRA] court entered an order scheduling briefs and
            oral argument, which was held on December 13,
            2018.

PCRA court opinion, 4/29/19 at 1-4 (citations, footnotes, and extraneous

capitalization omitted; emphasis added).

       The PCRA court dismissed appellant’s petition on April 29, 2019.

Appellant filed a timely notice of appeal on May 24, 2019. The PCRA court did

not order appellant to file a concise statement of errors complained of on




1   Commonwealth v. Weekley, 130 A.3d 1290 (Pa. 2015).


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appeal pursuant to Pa.R.A.P. 1925(b). On June 5, 2019, the PCRA court filed

an opinion pursuant to Pa.R.A.P. 1925(a).

      Appellant raises the following issues for our review:

            1.     Whether prior trial counsel was ineffective when
                   prior trial counsel failed to highlight the lack of
                   forensic testing of the vehicle swabs[?]

            2.     Whether the Commonwealth inadvertently
                   withheld potentially exculpatory evidence and
                   whether prior trial counsel was ineffective when
                   prior trial counsel failed to highlight the lack of
                   forensic testing of the clothing worn by the
                   initial suspect in the case[?]

            3.     Whether prior trial counsel was ineffective for
                   failing to fully and adequately cross-examine
                   witnesses with impeachment evidence[?]

            4.     Whether there was actual prejudice to
                   [appellant] when prior trial counsel failed to
                   adequately present exculpatory information to
                   the jury and adequately cross-examine key
                   witnesses[?]

Appellant’s brief at 8.

      PCRA petitions are subject to the following standard of review:

            “[A]s a general proposition, we review a denial of
            PCRA relief to determine whether the findings of the
            PCRA court are supported by the record and free of
            legal error.” Commonwealth v. Dennis, [] 17 A.3d
            297, 301 ([Pa.] 2011) (citation omitted). A PCRA
            court’s credibility findings are to be accorded great
            deference, and where supported by the record, such
            determinations are binding on a reviewing court. Id.,
            at 305 (citations omitted). To obtain PCRA relief,
            appellant must plead and prove by a preponderance
            of the evidence: (1) his conviction or sentence
            resulted from one of more of the errors enumerated
            in 42 Pa.C.S.[A.] § 9543(a)(2); (2) his claims have


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            not been previously litigated or waived, id.,
            § 9543(a)(3); and (3) “the failure to litigate the issue
            prior to or during trial . . . or on direct appeal could
            not have been the result of any rational, strategic or
            tactical decision by counsel[,]” id., § 9543(a)(4). An
            issue is previously litigated if “the highest appellate
            court in which [appellant] could have had review as a
            matter of right has ruled on the merits of the issue[.]”
            Id., § 9544(a)(2). “[A]n issue is waived if [appellant]
            could have raised it but failed to do so before trial, at
            trial, . . . on appeal or in a prior state postconviction
            proceeding.” Id., § 9544(b).

Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015).

      Here, all four of appellant’s issues are based on claims of ineffective

assistance of counsel.      Under the PCRA, an individual is eligible for

post-conviction relief if the conviction was the result of “ineffective assistance

of counsel which, in the circumstances of the particular case, so undermined

the truth-determining process that no reliable adjudication of guilt or

innocence could have taken place.”       42 Pa.C.S.A. § 9543(a)(2)(ii).    When

considering whether counsel was ineffective, we are governed by the following

standard:

                  [C]ounsel is presumed effective, and to
                  rebut that presumption, the PCRA
                  petitioner    must    demonstrate    that
                  counsel’s performance was deficient and
                  that such deficiency prejudiced him.
                  Strickland v. Washington, 466 U.S.
                  668 [] (1984). This Court has described
                  the Strickland standard as tripartite by
                  dividing the performance element into two
                  distinct components. Commonwealth v.
                  Pierce, [] 527 A.2d 973, 975 ([Pa.]
                  1987).     Accordingly, to prove counsel
                  ineffective,    the     petitioner  must


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                  demonstrate that: (1) the underlying
                  legal     issue    has   arguable    merit;
                  (2) counsel’s actions lacked an objective
                  reasonable basis; and (3) the petitioner
                  was prejudiced by counsel’s act or
                  omission. Id. A claim of ineffectiveness
                  will be denied if the petitioner’s evidence
                  fails to satisfy any one of these prongs.

            Commonwealth v. Busanet, [] 54 A.3d 34, 45
            ([Pa.] 2012) (citations formatted). Furthermore, “[i]n
            accord with these well-established criteria for review,
            [an appellant] must set forth and individually discuss
            substantively each prong of the [Pierce] test.”
            Commonwealth v. Fitzgerald, 979 A.2d 908, 910
            (Pa.Super. 2009).

Commonwealth v. Perzel, 116 A.3d 670, 671-672 (Pa.Super. 2015), order

vacated on other grounds, 166 A.3d 1213 (Pa. 2017).

      First, appellant contends that trial counsel rendered ineffective

assistance by failing to highlight to the jury the lack of forensic testing on the

swabs recovered from Tamika Brown’s vehicle. (Appellant’s brief at 15.) As

noted by the PCRA court:

            During the course of the investigation, Alvin Jay
            Flowers was an initial suspect in the homicide of [the
            victim]. Flowers was present at the scene the night
            [the victim] was killed. During the course of the
            investigation, there were reports that Flowers was in
            the company of Tamika Brown, that they had driven
            in Brown’s car, and that around the time period that
            the homicide occurred, Flowers and Brown went to the
            home of Sheldon Sims. Flowers and Brown showered,
            and Flowers left some of his wet clothes, which Sims
            disposed of. Those clothes were recovered from the
            trash by investigators. Brown’s car was later seized
            by investigators and swabs taken of areas of possible
            blood inside the car.



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PCRA court opinion, 4/29/19 at 5-6 (citations to the record omitted). The

PCRA court further noted that the swabs taken from inside Brown’s car were

not forensically tested by the Commonwealth. (Id. at 6.)

      On appeal, appellant specifically argues that the Commonwealth’s

decision not to have the swabs forensically tested “should have been

presented to the jury and it would have raised doubt regarding the case

against [appellant].” (Appellant’s brief at 17.) Appellant further argues that

trial counsel should have initially raised this issue on cross-examination with

the Commonwealth’s DNA expert, Ashlee Mangan.2 (Id. at 17-18.)

      Appellant’s argument is belied by the record.         Indeed, during his

cross-examination of Detective Timothy Staub3 at trial, the record reflects that

appellant’s trial counsel asked about the swabs lifted from Brown’s vehicle.

(Notes of testimony, 8/13/12 at 161.)         Additionally, during his closing

argument, appellant’s trial counsel highlighted the limited amount of evidence

sent to the crime lab for forensic analysis. (Notes of testimony, 8/17/12 at

48.) Accordingly, appellant’s claim lacks arguable merit.

      Further, appellant has failed to establish that trial counsel’s course of

action lacked an objective reasonable basis. As noted by the PCRA court, our




2 Ms. Mangan is a forensic scientist at the Greensburg Regional Crime
Laboratory. (Notes of testimony, 6/8/18 at 73.)

3Detective Staub is employed by the Detectives Bureau of the Beaver County
District Attorney’s Office. (Notes of testimony, 8/13/12 at 132.)


                                     -7-
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supreme court in Commonwealth v. Williams, 899 A.2d 1060 (Pa. 2006),

has warned of the potential strategic dangers of DNA evidence:

           A chosen strategy will not be found to have lacked a
           reasonable basis unless it is proven “that an
           alternative not chosen offered a potential for success
           substantially greater than the course actually
           pursued.” Commonwealth v. Howard, [], 719 A.2d
           233, 237 ([Pa.] 1998).

           ....

           It is easy to say that failing to pursue exculpatory
           evidence is ineffectiveness, but this presumes the
           evidence will indeed be exculpatory. If counsel were
           sure the accused’s DNA would not be revealed in any
           relevant samples from the victim or scene, certainly
           testing would give exculpatory results and should be
           sought. However, the client’s mere claim of innocence
           or alibi does not always settle the question;
           effectiveness of counsel is not dependent on accepting
           the candor of the client. Testing that shows the DNA
           matches suddenly makes a conviction-one that might
           have been avoided or less than certain-a sure thing.

           That is, subjecting a client to DNA testing is very likely
           to settle whether there will be a conviction or not. It
           can demolish the prosecution’s case, but it can cast it
           in concrete as well. It can eliminate the potential of a
           “not guilty” verdict based on an alibi, or on reasonable
           doubt, and the less compelling the Commonwealth’s
           case, the less compelling is the desire for pre-trial
           DNA testing.      Not seeking testing that has the
           potential to convict a client may be a very reasonable
           strategy; strategy is not measured through hindsight
           against alternatives not pursued, so long as trial
           counsel had a reasonable basis for the decision made.
           See id.

Id. at 1064.

     As further noted by the PCRA court,



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              [Appellant] has failed to show proof of any
              exculpatory value with regard to the swabs. There is
              no claim and no evidence, that trial counsel, or current
              counsel, were at any time prohibited from submitting
              . . . the swabs for forensic testing of their own.
              Rather, the PCRA proceedings in this case have shown
              the Commonwealth to be accommodating by locating
              evidence from years ago, and making it available to
              [appellant]. Despite this, neither trial counsel, nor
              current counsel, has ever made a request for those
              items to be subjected to additional testing.

PCRA court opinion, 4/29/19 at 21-22 (footnote omitted).

      Based on our review of the record, we find that the PCRA court’s factual

conclusions are well based in the record and that its legal conclusions are free

of error. Therefore, appellant is not entitled to relief on his first issue.

      In     his   second   issue,   appellant   avers   that   the   Commonwealth

inadvertently withheld exculpatory evidence in violation of Brady v.

Maryland, 373 U.S. 83 (1963). (Appellant’s brief at 19.) Appellant further

contends that trial counsel was ineffective for failing to highlight the lack of

forensic testing on the clothing worn by Flowers. (Id.)

      Our supreme court has set forth the following test for claims of a Brady

violation:

              Due process is offended when the prosecution
              withholds evidence favorable to the accused 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, []. “There
              are three components of a true Brady violation: The
              evidence at issue must be favorable to the accused,
              either because it is exculpatory, or because it is
              impeaching; that evidence must have been
              suppressed by the State, either willfully or


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          inadvertently; and prejudice must have ensued.”
          Strickler v. Greene, 527 U.S. 263, 281-82, []
          (1999).

          Pursuant to Brady and its progeny, the prosecutor
          “has a duty to learn of any favorable evidence known
          to the others acting on the government’s behalf in the
          case, including the police.” Kyles v. Whitley, 514
          U.S. 419, 437 [] (1995). However, there is “no
          constitutional requirement that the prosecution make
          a complete and detailed accounting to the defense of
          all police investigatory work on a case.” Moore v.
          Illinois, 408 U.S. 786, 795 [] (1972). “The mere
          possibility that an item of undisclosed information
          might have helped the defense, or might have
          affected the outcome of the trial, does not establish
          ‘materiality’ in the constitutional sense.” United
          States v. Agurs, 427 U.S. 97, 109-10 [] (1976).

          Instead, “favorable evidence is material, and
          constitutional error results from its suppression by the
          government, if there is a reasonable probability that,
          had the evidence been disclosed to the defense, the
          result of the proceeding would have been different.”
          Kyles, 514 U.S. at 433 [] (quotation and citation
          omitted). “A ‘reasonable probability’ is a probability
          sufficient to undermine confidence in the outcome.”
          United States v. Bagley, 473 U.S. 667, 682 []
          (1985).      In evaluating whether a reasonable
          probability of a different outcome has been
          demonstrated, “[t]he question is not whether the
          defendant would more likely than not have received a
          different verdict with the evidence, but whether in its
          absence he received a fair trial, understood as a trial
          resulting in a verdict worthy of confidence.” Kyles,
          514 U.S. at 434[]. A defendant thus “need not
          demonstrate that after discounting the inculpatory
          evidence in light of the undisclosed evidence, there
          would not have been enough left to convict.” Id. at
          434-35[]. Rather, a defendant need only show that
          the favorable evidence “could reasonably be taken to
          put the whole case in such a different light as to
          undermine confidence in the verdict.” Id. at 435[].



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Commonwealth v. Natividad, 200 A.3d 11, 25-26 (Pa. 2019).

      Specifically, appellant contends that the Commonwealth “inadvertently

withheld evidence regarding the clothing found at Sheldon Sims’ residence.”

(Appellant’s brief at 21.) We find that appellant has failed to establish that

the clothing at issue was withheld by the Commonwealth.

      Indeed, as noted by the PCRA court:

            [Appellant’s PCRA] counsel conceded at the
            December 13, 2018 oral argument that the existence
            and recovery of Flowers’ clothing was noted in a police
            report, and that the police report was turned over to
            [appellant’s] trial counsel in discovery. [(Notes of
            testimony, 12/13/18 at 4-7.)        Appellant’s PCRA]
            counsel further conceded that the blood swabs were
            logged as evidence on an inventory log which was
            likewise revealed in discovery to [appellant’s] trial
            counsel.    [(Id. at 28.)]      The attorney for the
            Commonwealth similarly asserted, without objection
            by [appellant’s] counsel, that all discovery had been
            provided, including the entire file for Alvin Flowers’
            criminal case. [(Id. at 14-15, 21-22.)] Thus, the
            Commonwealth did not fail to disclose the existence
            of any items of evidence. The evidence at the PCRA
            hearing showed that the swabs and clothing were
            never subjected to any forensic testing prior to trial.
            Therefore, there was not any forensic testing of the
            items to disclose, nor is there any proof that
            conducting forensic testing of those items would result
            in exculpatory evidence. The requirements of Brady
            were therefore met in this case.

PCRA court opinion, 4/29/19 at 11.

      Based on our review of the record, we find that the PCRA court’s

conclusions are supported by the record. Accordingly, appellant’s Brady issue

is without merit.



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      Within his second issue, appellant further contends that his trial counsel

rendered ineffective assistance for failing to inquire as to the whereabouts of

the clothing, “and the Commonwealth’s failure to seek any form of testing of

said evidence.” (Appellant’s brief at 23.) As discussed above, this claim is

belied by the record. (See notes of testimony, 8/17/12 at 48.) Accordingly,

appellant’s second issue does not entitle him to relief.

      Third, appellant argues that trial counsel was ineffective for failing to

adequately cross-examine Commonwealth witnesses James Stewart and

Bradley Karas. (Appellant’s brief at 24-25.)

      The PCRA court concluded as follows:

            James Stewart’s and Bradley Karas’ testimony directly
            connected [appellant] to the homicide. They not only
            heard [appellant’s] admissions of guilt, they
            witnessed and participated in his actions to dispose of
            the evidence. Karas cleaned the murder weapon for
            [appellant], and Stewart sold it for him. [Appellant]
            claimed an alibi. He testified that he was not present
            in Stewart’s home that day, and claimed that his
            phone calls at the time distanced him from any
            connection to Stewart on that date. It does not
            appear to the [PCRA c]ourt to be an accident that trial
            counsel elicited [appellant’s] testimony of the phone
            calls to his brother while omitting testimony regarding
            [appellant’s] phone calls to Stewart.        Rather, it
            appears to the [PCRA c]ourt that any evidence which
            would have shown that [appellant] had actually called
            James Stewart during the critical time period when he
            claimed he was not present at Stewart’s residence
            would have only strengthened the Commonwealth’s
            case, and done considerable damage to [appellant’s]
            alibi. The evidence at the PCRA hearing showed that
            [appellant] attempted to call both Stewart’s landline,
            and then Stewart’s cell phone, one right after the
            other. [(Notes of testimony, 6/8/18 at 149-150.)] As


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            the Commonwealth has observed, each phone call’s
            duration was only six seconds, which is consistent
            with a phone call that is not answered, and a cell
            phone can clearly call a landline from any location,
            including while inside the residence where the landline
            is located. [(]Id. at 138.[)] Rather than having
            impeachment value, the evidence of [appellant’s]
            attempts to call Stewart are consistent with the
            Commonwealth’s case and the trial testimony that
            Stewart was asleep upstairs when [appellant] arrived.
            That evidence would have supported an inference that
            [appellant] wanted to speak to Stewart and was
            attempting to wake him. In short, [appellant’s] claim
            does not even have arguable merit because
            presenting the evidence which [appellant] claims
            should have [been] presented would have had little, if
            any, impeachment value, and would likely have only
            harmed [appellant’s] alibi and further corroborated
            the Commonwealth’s case.

PCRA court opinion, 4/29/19 at 33-34.

      Based on our review of the record, we find that the PCRA court’s

conclusions are based in the record and free of legal error. We, therefore,

find that appellant is not entitled to relief on his third issue.

      In his fourth issue, appellant appears to raise a cumulative prejudice

claim. Specifically, appellant contends that “[i]ndividually and cumulatively

[the above] claims prejudiced [appellant] and ‘but for’ . . . trial counsel’s

omissions, the outcome of the trial could have been different.” (Appellant’s

brief at 34.)

            [Our supreme court has] often held that “no number
            of failed [] claims may collectively warrant relief if
            they fail to do so individually.” [Commonwealth v.
            Johnson, 966 A.2d 523, 532 (Pa. 2009)] (quoting
            Commonwealth v. Washington, [] 927 A.2d 586,
            617 ([Pa.] 2007)). However, [the court has] clarified


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            that this principle applies to claims that fail because
            of lack of merit or arguable merit. [Commonwealth
            v. Sattazahn, 952 A.2d 640, 671 (Pa. 2008)]. When
            the failure of individual claims is grounded in lack of
            prejudice, then the cumulative prejudice from those
            individual claims may be properly assessed. Id.;
            Johnson, supra at 532 (citing Commonwealth v.
            Perry, [] 644 A.2d 705, 709 ([Pa.] 1994), for the
            principle that a new trial may be awarded due to
            cumulative prejudice accrued through multiple
            instances of trial counsel’s ineffective representation).

Commonwealth v. Spotz, 18 A.3d 244, 321 (Pa. 2011).

      Here, none of appellant’s three issues pertaining to ineffective

assistance of counsel was disposed of due to a lack of showing of prejudice.

Rather, all three issues failed because they lacked arguable merit.

Accordingly, appellant’s claim of cumulative prejudice from multiple errors is

without merit.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 8/25/2020




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