J-A08040-17

                                  2017 PA Super 138


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    ROBERT SHABAZZ-DAVIS                       :
                                               :
                      Appellant                :   No. 2525 EDA 2015

             Appeal from the Judgment of Sentence March 13, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0007330-2013


BEFORE:      PANELLA, LAZARUS, JJ., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                                FILED MAY 08, 2017

        Appellant Robert Shabazz-Davis appeals the judgment of sentence

entered in the Court of Common Pleas of Philadelphia County on March 13,

2015, at which time he was sentenced to life imprisonment without the

possibility of parole along with a consecutive term of three and one half

(3½) years to seven years in prison following his convictions of first-degree

murder and firearms not to be carried without a license.1 Appellant was a

juvenile at the time of the murder, bringing his case within the purview of

Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012),

and Commonwealth v. Batts, 620 Pa. 115, 66 A.3d 286 (2013)(”Batts

II”) (invalidating mandatory sentences of life without the possibility of

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2502(a), 6106(a)(1), respectively.
J-A08040-17



parole for juvenile offenders and indicating that appellate remedy for the

unconstitutional imposition of a mandatory life-without-parole sentence upon

a juvenile is a remand for resentencing at which the trial court must consider

the sentencing factors set forth in Miller).2 Following a careful review, we

affirm.

       The trial court aptly set forth the facts herein as follows:


              On May 28, 2012, at approximately 2:13 p.m., police
       officers from the 22nd District responded to a radio call of a
       shooting at 1732 Ridge Avenue. (N.T. 10/24/14 p. 89). Upon
       arrival officers found decedent Antwan Pack lying in a pool of
       blood on the floor inside the Sunshine Laundromat. (N.T.,
       10/24/14 pp. 89-90). Police Officer Joseph Kocher observed
       that decedent was in critical condition with multiple gunshot
       wounds to the back. (N.T., 10/24/14 p. 90). Eyewitness Jeffrey
       Noble helped police officers place Mr. Pack into a police wagon.
       (N.T., 10/24/14 p. 61). Mr. Noble and Officer Kocher rode in the
       back of the wagon with decedent as he was transported to
       Hahnemann Hospital.       (N.T., 10/24/14 p. 91).       Mr. Noble
       testified that en route to the hospital, Mr. Pack stated someone
       named “‘Rob’ from Highland” had shot him. (N.T., 10/24/14 pp.
       68-69. Officer Kocher also testified that on the way to the
       hospital, Mr. Pack identified the male that shot him as “Rob.”
       (N.T., 10/24/14 p. 92). Mr. Pack was admitted to Hahnemann
       Hospital and was taken to surgery, at around 3:00 p.m., in an
       attempt to save his life, but he was pronounced dead at 7:39
       p.m. (N.T., 10/27/14 p. 100). The autopsy report showed
       decedent had been shot twice in the back and suffered
       devastating injuries including fractures to his vertebrae, which
       rendered him paralyzed, and lacerations of his liver, left lung,
       and right lung, which prevented him from breathing and
       ultimately caused his death. (N.T., 10/27/14 pp. 99-107). Six
____________________________________________


2
  At the time of the murder, Appellant was sixteen years old and turned
seventeen twenty-three (23) days later.



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J-A08040-17


     fired cartridge casings and one projectile were recovered from
     the scene of the crime. (N.T., 10/24/14 p. 53).
            Eyewitnesses Antwyne Askew and Marcus Pough testified
     at trial about the events that took place the day decedent was
     shot and killed. On June 16, 2012, Mr. Askew gave an interview
     to homicide detectives wherein he stated that while standing on
     the corner of Vineyard Street and Ridge Avenue, on May 28,
     2012, he observed a male on a bicycle brandish a weapon.
     (N.Y., 10/27/14 pp. 36-38). Seconds later, he heard gunshots.
     (N.T., 10/27/14 pp. 36-37). Looking in the direction of the
     gunshots he observed the male on the bicycle known to him as
     “Rob” shooting at decedent. (N.T., 10/27/14 pp. 37-40). Mr.
     Askew identified “Rob” as [Appellant] Robert Shabazz-Davis from
     a photographic array. (N.T., 10/27/14 p. 43). Further, in his
     interview, Mr. Askew stated that [Appellant] and decedent had
     previously argued with each other. (N.T., 10/27/14 pp. 44-45).1
     Mr. Pough was interviewed on June 27, 2012, and he stated that
     on the day of the shooting, he was walking down Ridge Avenue
     towards the laundromat with his niece when he observed a male
     firing a gun into the laundromat. (N.T., 10/24/14 p. 129). Mr.
     Pough stated further that he saw the male place the gun in his
     waistband and ride off on a bicycle towards him. (Id.) Mr. Pough
     walked past the laundromat and observed decedent on the floor
     inside the laundromat suffering from gunshot wounds and
     screaming for help.       (Id.) Later, Mr. Pough was shown a
     photographic array and identified [Appellant] as the male he saw
     firing a gun into the laundromat. (N.T., 10/24/14 pp. 139-140).2
            By June 30, 2012 a number of unsuccessful attempts had
     been made to locate [Appellant] on an arrest warrant charging
     him with the murder of decedent and various weapons offenses.
     (N.T., 10/27/14 p. 116).         Extensive efforts to apprehend
     [Appellant] continued without immediate success.           (N.T.,
     10/27/14 pp. 117-124). On January 28, 2013, [Appellant’s]
     attorney notified authorities that [Appellant] wanted to
     surrender.     (N.T., 10/27/14 p. 124).      On that same day,
     [Appellant] was finally arrested. (Id.)
            On July 13, 2012, Daquan Johnson was arrested after
     fleeing police. (N.T., 10/27/14 pp. 86-91). He was found to be
     in possession of the firearm used to kill Antwan Pack. Id. Officer
     Michael Livewell testified that, according to social media
     websites, Mr. Johnson identified himself as a member of
     Highland and was one of [Appellant’s] associates.          (N.T.,
     10/27/14 pp. 13-15).


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J-A08040-17



        _____
        1
          At trial, Mr. Askew denied that he in fact made such statements
        and identified the shooter. (N.T., 10/27/14 p. 37-43). However,
        Detective Jacobs, who took Mr. Askew’s statement, testified to
        his statements and identification. (N.T., 10/27/14 p. 70-76).
        The jury was given the opportunity to view the signatures above
        and below the photographs on the array and determine Mr.
        Askew’s credibility regarding his denial.
        2
          Mr. Pough denied making those statements and identifying the
        shooter from the photo array at trial. (N.T., 10/24/14 pp. 141-
        142).      However, Detective Schmidt, who took Mr. Askew’s
        statement, testified to his statements and identification. (N.T.,
        10/24/14 p. 170-183).

Trial Court Opinion, filed 6/28/16, at 1-3.

        On March 22, 2015, Appellant filed his “Motion for Post Sentence Relief

And/Or Modification or Reconsideration of Sentence,” and the same was

denied by operation of law pursuant to Pa.R.CrimP. 720(B)(3) on August 6,

2015.    Appellant filed a notice of appeal pro se on August 18, 2015, and

upon consideration of defense counsel’s motion to withdraw and a hearing,

the trial court entered an Order on October 2, 2015, granting counsel’s

motion to withdraw.       Thereafter, on November 6, 2015, counsel was

reappointed to represent Appellant on direct appeal.       On June 12, 2016,

Appellant filed his Statement of Matters Complained of on Appeal pursuant

to Pa.R.A.P. 1925(b) wherein he raised ten (10) issues. The trial court filed

its Rule 1925(a) Opinion on June 28, 2016.

        In his brief. Appellant presents the following Statement of the

Questions Involved:




                                      -4-
J-A08040-17


       1.    In Miller v. Alabama, the U.S. Supreme Court outlawed
       mandatory life without parole for juveniles (“LWOP”), and
       instructed that the discretionary imposition of this sentence
       should be “uncommon” and reserved for the “rare juvenile
       offender whose crime reflects irreparable corruption.”

       A.    Did the Trial Court err when it imposed the sentence of life
       without the possibility of parole on Appellant despite the
       safeguards set forth by our Supreme Court in Miller v. Alabama
       and in contradiction of the safeguards provided by the United
       States Constitution and the Pennsylvania Constitution?

       B.    There is currently no procedural mechanism to ensure that
       juvenile LWOP will be “uncommon” in Pennsylvania. Should this
       Court exercise its authority under the Pennsylvania Constitution
       to promulgate procedural safeguards including (a) a presumption
       against juvenile LWOP, (b) a requirement for competent expert
       testimony, and (c) a “beyond a reasonable doubt” standard of
       proof?

       C.    In Miller, the U.S. Supreme Court stated that the basis for
       its individualized sentencing requirement was Graham’s
       comparison of juvenile LWOP to the death penalty. [ ] Appellant
       received objectively less procedural due process than an adult
       facing capital punishment. Should the Court address the
       constitutionality of [ ] Appellant’s sentencing proceeding?

       D.    Did the trial court err in not dismissing the case against
       Appellant due to the Commonwealth’s blatant violations under
       Brady v. Maryland?

       2. Did the Trial Court err in not dismissing the case against
          Appellant due to the Commonwealth’s blatant violations under
          Brady v. Maryland?[3]

____________________________________________


3
  See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215
(1963) (holding suppression by prosecution of evidence favorable to accused
upon request violates due process where evidence is material either to guilt
or punishment, regardless of good or bad faith by prosecution).




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J-A08040-17



Brief of Appellant at 4.

       At the outset, we observe that Appellant’s introductory comment and

issues B and C are, verbatim, the same questions which our Pennsylvania

Supreme Court agreed to consider in granting partial allowance of appeal in

Commonwealth v. Batts (“Batts III”), 125 A.3d 33 (Pa.Super. 2015),

appeal granted in part, 135 A.3d 176 (Pa. 2016). In addition, Appellant’s

issue A herein is reflected in the issues the Supreme Court will consider in

Batts III.4 Notwithstanding, we decline to postpone a decision in this case

____________________________________________


4
  Our Supreme Court’s Per Curiam Order entered on April 19, 2016, reads as
follows:

             AND NOW, this 19th day of April, 2016, the Petition for
       Allowance of Appeal is GRANTED, LIMITED TO the following
       issues raised by Petitioner:
             1. In Miller v. Alabama, the U.S. Supreme Court outlawed
       mandatory life without parole for juveniles (LWOP), and
       instructed that the discretionary imposition of this sentence
       should be “uncommon” and reserved for the “rare juvenile
       offender whose crime reflects irreparable corruption.”
                   i. There is currently no procedural mechanism to
             ensure that juvenile LWOP will be “uncommon” in
             Pennsylvania. Should this Court exercise its authority
             under the Pennsylvania Constitution to promulgate
             procedural safeguards including (a) a presumption against
             juvenile LWOP; (b) a requirement for competent expert
             testimony; and (c) a “beyond a reasonable doubt”
             standard of proof?
                   ii. The lower court reviewed the Petitioner's sentence
             under the customary abuse of discretion standard. Should
             the Court reverse the lower court's application of this
             highly deferential standard in light of Miller?
             2. In Miller, the U.S. Supreme Court stated that the basis
       for its individualized sentencing requirement was Graham's
(Footnote Continued Next Page)


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J-A08040-17



pending the Supreme Court’s resolution of the appeal in Batts, III. Until

our Supreme Court holds otherwise, we will employ the applicable legal

principles extant currently, and in doing so first find Appellant has waived his

second and third issues for his failure to raise them before the trial court and

preserve them in his Pa.R.A.P. 1925(b) statement.

             “Issues not raised in the lower court are waived and
      cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a).
      This requirement bars an appellant from raising “a new and
      different theory of relief” for the first time on appeal.
      Commonwealth v. York, 319 Pa.Super. 13, 465 A.2d 1028,
      1032 (1983).
             In addition, our Supreme Court has made it clear that
      “[a]ny issues not raised in a [Rule] 1925(b) [S]tatement will be
      deemed waived.” Commonwealth v. Castillo, 585 Pa. 395,
      888 A.2d 775, 780 (2005) (citation and quotation omitted). See
      also Pa.R.A.P. 1925(b)(4)(ii) (“The [1925(b) ] Statement shall
      concisely identify each ruling or error that the appellant intends
      to challenge with sufficient detail to identify all pertinent issues
      for the judge”).




                       _______________________
(Footnote Continued)

      comparison of juvenile LWOP to the death penalty. The Petitioner
      received objectively less procedural due process than an adult
      facing capital punishment. Should the Court address the
      constitutionality of the Petitioner's resentencing proceeding?

      The Petition for Allowance of Appeal is DENIED with respect to
      Petitioner's third stated issue.

Commonwealth v. Batts, 135 A.3d 176 (Pa. 2016).




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J-A08040-17


Commonwealth v. Wanner, 2017 WL 1152609, at * 2 (Pa.Super. filed

Mar. 28, 2017).

       Appellant’s issues B and C raised in his appellate brief request this

court to engage in a broad constitutional analysis and develop procedural

safeguards for determining “uncommonality,” while the issues he raised in

his Rule 1925(b) Statement essentially pertained to the legality of his

sentence in light of Miller v. Alabama, supra. Therefore, Appellant has

waived these claims.5

       As appellant’s issue A is evident from his statement of matters

complained of on appeal, we will consider the merits of the same. Therein

Appellant challenges the legality of his sentence of life imprisonment without

the possibility of parole in light of the federal and state constitutions and the

United States Supreme Court’s decision in Miller, supra.



____________________________________________


5
   We note Appellant’s brief is in violation of Pa.R.A.P. 2119(a), which
provides that “[t]he argument shall be divided into as many parts as there
are questions to be argued,” in that it is not divided into sections that
correspond to the questions presented. While the Statement of the
Questions Presented consists of two issues, the first of which contains three
subparts, the Argument portion of the brief begins with Section A entitled
“Miller and Montgomery Establish A Presumption Against Imposing Life
Without Parole Sentences On Juveniles,” under which are subsections
numbered 1 through 8. Issue B pertaining to Appellant’s Brady claim
follows.




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      A challenge to the legality of a sentence ... may be entertained as long

as the reviewing court has jurisdiction.” Commonwealth v. Wolfe, 106

A.3d 800, 802 (Pa.Super. 2014), affirmed, 140 A.3d 651 (Pa. 2016) (citation

omitted). “If no statutory authorization exists for a particular sentence, that

sentence is illegal and subject to correction.” Commonwealth v. Rivera,

95 A.3d 913, 915 (Pa.Super. 2014) (citation omitted). “An illegal sentence

must be vacated.” Id. “The determination as to whether the trial court

imposed an illegal sentence is a question of law; our standard of review in

cases dealing with questions of law is plenary.” Commonwealth v.

Stradley, 50 A.3d 769, 772 (Pa.Super. 2012) (citation omitted).

      In Miller, the United States Supreme Court held “mandatory life

without parole for those under the age of 18 at the time of their crimes

violates   the   Eighth   Amendment's   prohibition   on   ‘cruel   and   unusual

punishments.’” Miller, 567 U.S. at ____, 132 S.Ct. at 2460. Although the

Court made clear that it was not foreclosing a trial court's ability to impose a

life sentence upon a juvenile convicted of murder, it required the trial court

to first “take into account how children are different, and how those

differences counsel against irrevocably sentencing them to a lifetime in

prison.” Id. at ____, 132 S.Ct. at 2469. The Supreme Court recognized that

a sentencing court might encounter the rare juvenile offender who exhibits

such irretrievable depravity that rehabilitation is impossible and life without

parole is justified. But in light of what it described as “children's diminished


                                     -9-
J-A08040-17


culpability and heightened capacity for change,” Miller made clear that

“appropriate occasions for sentencing juveniles to this harshest possible

penalty will be uncommon.” Id. Therefore, it was the mandatory sentencing

scheme that the Supreme Court deemed unconstitutional when applied to

juveniles, holding that “a judge or jury must have the opportunity to

consider mitigating circumstances before imposing the harshest possible

penalty for juveniles.” Id. at ____, 132 S.Ct. at 2475.

      In Batts II, supra, our Supreme Court remanded to the trial court

with instructions to consider the following age-related factors in resentencing

the appellant:

      [A]t a minimum [the trial court] should consider a juvenile's age
      at the time of the offense, his diminished culpability and capacity
      for change, the circumstances of the crime, the extent of his
      participation in the crime, his family, home and neighborhood
      environment, his emotional maturity and development, the
      extent that familial and/or peer pressure may have affected him,
      his past exposure to violence, his drug and alcohol history, his
      ability to deal with the police, his capacity to assist his attorney,
      his mental health history, and his potential for rehabilitation.
      [Commonwealth v.] Knox, 50 A.3d [732,] 745 [ (Pa.Super.
      2012) ] (citing Miller, 132 S.Ct. at 2455) [(remanding for
      resentencing a juvenile who had previously received a
      mandatory life without parole sentence in violation of Miller, and
      instructing trial court to resentence juvenile to either life with
      parole or life without parole), appeal denied, 620 Pa. 721, 69
      A.3d 601 (2013)]. We agree with the Commonwealth that the
      imposition of a minimum sentence taking such factors into
      account is the most appropriate remedy for the federal
      constitutional violation that occurred when a life-without-parole
      sentence was mandatorily applied to Appellant. Batts II, supra
      at 297 (first brackets in original).

Batts III, supra, 125 A.3d at 38-39.


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J-A08040-17


      Our review of the transcript of the sentencing hearing belies

Appellant’s contention that the sentencing court “made no finding that

Appellant was irreparably corrupt, permanently incorrigible, or irretrievably

depraved, as Miller and Montgomery require.” Brief for Appellant at 15.

To the contrary, the sentencing court indicated its awareness that because

Appellant had been sixteen years of age at the time of the homicide, “he was

entitled to the relief provided to defendants so situated by our United States

Supreme Court as articulated in Miller versus Alabama and subsequently

adopted by the Pennsylvania Supreme Court with those safeguards

contained in Commonwealth versus Batts.” N.T. Sentencing, 3/13/15, at 4.

      The sentencing court further explained to Appellant why it had ordered

presentence and mental health evaluations to prepare for sentencing as

follows:

      [O]ver the time that you were awaiting trial, you heard from one
      or more attorneys that our Supreme Court decided in Batts that,
      in essence, children are different from adults for purposes of
      sentence and it requires the Court to conduct what's commonly
      referred to as individualized consideration of mitigating
      circumstances, particularly the defendant's youth, before a
      sentence of life in prison without the possibility of parole can be
      imposed. That is because children lack those qualities that inure
      to an adult and it is their underdeveloped sense of responsibility
      that makes them susceptible to influences and they generally
      have a less fixed character than adults.
            So for that reason, I ordered the various reports and set
      the matter down for sentencing today.

Id. at 7-8.




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J-A08040-17


      Prior to rendering its sentence, the sentencing court heard from the

victim’s grandmother, aunt, and mother, respectively.       Id. at 17-24.     The

sentencing court also was introduced to various friends and family members

of Appellant all of whom it noted obviously “have great love for him.” Id. at

40. The court indicated that it had reviewed the presentence investigation

report and taken into consideration all the required factors including

Appellant’s need for rehabilitation and society’s need for protection and

further stated the following:

             I’ve taken into consideration all the factors I’m required to,
      including [Appellant’s] need for rehabilitation and society’s need
      for protection. I’ve reviewed the presentence investigation, I’ve
      reviewed the mental health examination, and I have gone over
      the memorandum prepared by the Assistant District Attorney.
             With respect to [Appellant’s] chronological age, we have
      referred to him as being sixteen, but he was more a seventeen
      year old than a sixteen year old, obviously still a year and a
      month short of reaching his majority.           But that is to be
      considered.
             Regarding his level of maturity, he’s now fathered two
      children. His home environment was not the best but certainly
      not the worst. He was co-parented at least until his father died
      by both his mother and his father.
             I’ll say this with some trepidation. I hope it doesn’t come
      back to haunt me. But clearly, men who look like me are not in
      their children’s lives to the degree that they should be and that
      causes problems, in my humble opinion.
             There was nothing in the record that suggested that
      [Appellant] was subject to domestic violence, physical violence
      or sexual violence. He was the architect of this crime. He bears
      total responsibility for this crime. It was a vicious killing in the
      light of day, without any concern for the fact that somebody
      might see me and tell the authorities who did this.




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J-A08040-17


             Unlike the previous case I referenced, [6] it wasn’t one on
       one, two men face to face. The victim was shot in the back for
       the sin of living in the wrong neighborhood by a young man with
       no underlying mental health problems, who has a history of
       violence and demonstrating he was not amenable to
       rehabilitation. [7]
             I have heard from the family of the deceased. I’ve seen
       members of [Appellant’s] family array themselves here and
       stand up, and it’s obvious they have great love for him.
             Our Supreme Court has said that life in prison for a crime
       committed by a juvenile should be rare. It is most unfortunate
       that this is one of those rare cases.

Id. at, 3/13/15, at 38-41.

       In light of the foregoing, we find the trial court applied the appropriate

review prior to rendering its sentence and did not abuse its discretion in

considering the relevant sentencing factors set forth in Batts, II. “Absent a

specific directive from our Supreme Court or the General Assembly to do so,

we decline to expand the narrow holding in Miller.” Batts III, supra, 125

A.3d at 43.

       Lastly, Appellant asserts the trial court erred in denying his motion to

dismiss based upon the Commonwealth’s violation of Brady v. Maryland,

supra, and consequently, requests this Court to dismiss all charges. “To

____________________________________________


6
  The trial court earlier referenced a case wherein a young man had fired six
shots at another in a residential community believing he had been cut off.
The other individual fired back, although no one was killed. N.T. Sentencing,
3/13/15, at 38.
7
  Appellant had an extensive history with the juvenile justice system which
commenced in June of 2010 when he had been adjudicated delinquent of
felony robbery.      Two months after he was discharged from juvenile
supervision on March 22, 2012, Appellant committed the instant murder.



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J-A08040-17


succeed on a Brady challenge, the defendant must show: (1) the

Commonwealth suppressed the evidence; (2) the evidence was favorable to

the accused, either because it was exculpatory or impeaching; and (3) the

defendant suffered prejudice. Commonwealth v. Daniels, 628 Pa. 193,

223, 104 A.3d 267, 284 (2014).

      Herein Appellant maintains the Commonwealth failed for more than

two years to provide him with a statement of Marcus Pough wherein Mr.

Pough implicated himself in a separate homicide as well as all evidence

relating to the arrest of Daquan Johnson on July 3, 2012, who possessed the

murder weapon used to kill the victim in his waistband. Brief for Appellant

at 29-30.

     In his Motion to Dismiss filed on June 26, 2014, Appellant averred that

Mr. Johnson was arrested on July 13, 2012, after fleeing police at which time

the firearm used in the instant homicide was recovered from his person,

although this information was not disclosed to the defense until June 11,

2014. See Motion to Dismiss at ¶ 4. In addition, Appellant indicated that on

June 27, 2012, Mr. Pough provided police with a statement wherein he

implicated himself in a separate homicide and that this statement preceded

Mr. Pough’s statement that he had seen Appellant kill Mr. Pack. Id. at 11.

This information, too, was not provided to the defense until June 11, 2014.

Id. at 12.     Appellant reasoned that as the Commonwealth withheld

evidence that was clearly favorable to the defense for nearly two years, he


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J-A08040-17


had been prejudiced and, therefore, “[n]o other remedy short of dismissal

[would] protect [his] right to due process and a fair trial nor serve the goals

of justice.” Id. at ¶ 14-17.

      Prior to his filing of his Motion to Dismiss, Appellant’s motion for a

continuance of trial had been granted on June 23, 2017. The Commonwealth

detailed in its Response thereto, that before Appellant’s preliminary hearing

held on June 5, 2013, the Commonwealth disclosed to the defense that Mr.

Pough had been charged as an accomplice in an unrelated homicide, and

during the hearing defense counsel questioned him regarding those open

charges as well as the statement he provided to homicide detectives in the

instant homicide. See Commonwealth Response to Defense Motion to

Dismiss at ¶ 3. Hearings on Mr. Pough’s own murder case were open to the

public and transcripts thereof were prepared; notwithstanding, “in an effort

to ensure that counsel was adequately prepared for trial, [the ADA] provided

a copy of Mr. Pough’s statement in his own homicide case.” Id.

      In addition, on July 3, 2013, the Commonwealth made available to

Appellant a discovery letter wherein “Ballistics Report” was listed.      That

entry referenced a six-page report from ballistics in the Philadelphia Police

Department’s Firearm Identification Unit, at the end of which it was indicated

all shots fired at the scene of Mr. Pack’s murder were from the same firearm.

A “Cross Check Request” also was indicated. Id. at ¶ 4. The Commonwealth

went on to reason as follows:


                                    - 15 -
J-A08040-17


       5. Page six of six of the Ballistics Report which was prepared in
       September 2012, describes in detail the results of the cross
       check. To a reasonable degree of scientific certainty, all of the
       evidence from the homicide scene was fired in “PISTOL P1 of FIU
       #123778-DC#1209-028326.” Armed with the district control
       number, defense was able to access the public portal of the First
       Judicial District Website and find the following information:
       defendant’s name, defendant’s attorney, arrest date, arresting
       officer, court dates and charges. With reasonable diligence,
       defense counsel was able to subpoena the arresting officer,
       request discovery, order notes of testimony, interview the
       defendant, attend the court dates, and contact counsel for the
       defendant. Commonwealth v. Morris, 822 A.2d 684 (Pa. 2003).
       All of this information was accessible to the defense. On June
       11, 2014, ADA O’Malley, in an effort to ensure that counsel was
       adequately prepared for trial, provided a copy of the arrest
       paperwork that was provided on June 11, 2014 to the
       Commonwealth by the assigned detective regarding P-1.

Id. at ¶ 5.

       Upon our review of the certified record, we find the trial court did not

err in failing to afford relief on Appellant’s Brady claim upon finding the

evidence was immaterial to Appellant’s guilt or innocence and that Appellant

had failed to establish the Commonwealth’s conduct unavoidably prejudiced

the jury as to render it incapable of weighing the evidence fairly and arriving

at a just verdict. Trial Court Opinion, filed 6/28/16, at 13 quoting

Commonwealth v. Brown, 605 Pa. 103, 119, 987 A.2d 699, 709 (2009).

Thus, Appellant cannot demonstrate a Brady violation. See Feese, supra.8


____________________________________________


8
  Moreover, as the trial court points out, even had the evidence been
provided to Appellant at an earlier date, it would not have altered the
overwhelming evidence of his guilt, which included two eyewitness
(Footnote Continued Next Page)


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J-A08040-17


      Judgment of Sentence Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/8/2017




                       _______________________
(Footnote Continued)

identifications; therefore he could not have established prejudice.   Trial
Court Opinion, filed 6/28/16, at 13.




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