J-S59018-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                  Appellee                 :
                                           :
             v.                            :
                                           :
ADAM JOSEPH BROWN,                         :
                                           :
                  Appellant                :     No. 80 WDA 2015

             Appeal from the Judgment of Sentence July 1, 2014,
                    Court of Common Pleas, Erie County,
              Criminal Division at No. CP-25-CR-0002744-2013

BEFORE: BOWES, DONOHUE and FITZGERALD*, JJ.

MEMORANDUM BY DONOHUE, J.:                        FILED SEPTEMBER 24, 2015

      Adam Joseph Brown (“Brown”) appeals from the judgment of sentence

entered following his convictions of two counts each of attempted homicide,

aggravated    assault,   robbery,   recklessly    endangering   another   person,

unlawful restraint, and one count each of burglary, possessing instruments

of crime, theft and terroristic threats.1 We affirm.

      Brown’s convictions are the result of a brutal attack on an elderly

couple in their home, during which he slit both of their throats and stole

money and various other items from them. At the conclusion of a three-day

trial, the jury convicted Brown of the offenses listed above. The trial court

later sentenced Brown to an aggregate term of 60 to 120 years of

imprisonment.


1
 18 Pa.C.S.A. §§ 901, 2502, 2702(a)(1), 3701(a)(1)(i), 2705, 2902(a)(1),
3502(a)(1), 907, 3921, 2706.

*Former Justice specially assigned to the Superior Court.
J-S59018-15


        Brown filed pro se post-sentence motions seeking a new trial.      After

the denial of his post-sentence motions, Brown received a letter from the

prosecuting district attorney, Chief Deputy District Attorney Brian Krowicki,

informing him that the Commonwealth failed to turn over audio recordings of

the victims’ interviews with the police. Based upon this letter, Brown filed a

motion for reconsideration of his post-sentence motion.         The trial court

scheduled a hearing on Brown’s motion for reconsideration for September

10, 2014. Before that hearing occurred, Attorney Krowicki appeared in the

chambers of the trial judge and stated that he intentionally failed to turn the

audio recordings over as part of discovery. When the September 10, 2014

hearing convened, the trial court disclosed Attorney Krowicki’s admission.

The Commonwealth stated that it did not know about Attorney Krowicki’s

discussion with the trial judge but argued that his actions did not amount to
          2
a Brady       violation because the information was not material or exculpatory,

and also argued that a police report, which Brown had been provided with in

discovery, was almost a verbatim account of the recordings.              Brown

indicated that he had just been given the audio tapes and transcriptions

thereof and that he needed time to evaluate the discrepancies between them

and the police report that was used during trial. The trial court gave Brown

seven days in which to file “a written argument with any law you want to




2
    Brady v. Maryland, 83 S.Ct. 1194 (1963).


                                       -2-
J-S59018-15


cite or anything you want to put in concerning this issue[.]” N.T., 9/10/14,

at 9.

        Meanwhile, on September 22, 2014, the Commonwealth moved to

reopen the record on Brown’s motion to reconsider. The trial court granted

this request, and at a subsequent hearing, the Commonwealth presented

testimony from, inter alia, Attorney Krowicki and Donald McAleer, Ph.D., his

treating psychologist, as to Attorney Krowicki’s mental state during these

events and at the time of the hearing. Essentially, according to Dr. McAleer,

Attorney Krowicki was suffering from extreme stress and paranoia, which

caused Attorney Krowicki to make a false confession to the trial judge and

eventually led to him take a leave of absence from his position with the Erie

County District Attorney. He remained on leave at the time of the hearing.

The trial court denied Brown’s motion for reconsideration and this timely

appeal follows.

        Brown presents only a single issue for our review:     “Did the court

below commit an abuse of discretion and reversible error by failing to grant

[Brown] relief based upon the failure of the Commonwealth to turn over

discoverable materials prior to trial, resulting in a violation of [his] due

process rights?” Brown’s Brief at 1.

        “The law governing alleged Brady violations is well settled. In Brady,

the United States Supreme Court held that “the suppression by the

prosecution of evidence favorable to an accused upon request violates due



                                       -3-
J-S59018-15


process where the evidence is material either to guilt or to punishment,

irrespective     of    the     good    faith      or   bad   faith   of    the   prosecution.”

Commonwealth v. Lambert, 884 A.2d 848, 853 (Pa. 2005). The Brady

rule encompasses impeachment evidence.                   Commonwealth v. Weiss, 81

A.3d 767, 783 (Pa. 2013). “[T]o establish a Brady violation, a defendant

must    demonstrate          that:    (1)   the    evidence    was    suppressed       by   the

Commonwealth, either willfully or inadvertently; (2) the evidence was

favorable to the defendant; and (3) the evidence was material, in that its

omission resulted in prejudice to the defendant.”                         Commonwealth v.

Haskins, 60 A.3d 538, 547 (Pa. Super. 2012).

                      On the question of materiality, the Court has
               noted that “[s]uch evidence is material ‘if there is a
               reasonable probability that, had the evidence been
               disclosed to the defense, the result of the proceeding
               would have been different.’ ” Strickler v. Greene,
               [], 119 S.Ct. 1936 [](1999) (quoting [U.S. v.]
               Bagley, [] 105 S.Ct. [3375,] 3383 [(1985)]). The
               materiality inquiry is not just a matter of determining
               whether, after discounting the inculpatory evidence
               in light of the undisclosed evidence, the remaining
               evidence is sufficient to support the jury's
               conclusions. “Rather, the question is whether ‘the
               favorable evidence could reasonably be taken to put
               the whole case in such a different light as to
               undermine confidence in the verdict.’ ” Strickler, []
               119 S.Ct. at 1952 (quoting Kyles, [] 115 S.Ct. at
               1566).

Lambert, 884 A.2d at 854.

       The trial court found that the evidence at issue, the audio tapes, were

potentially    a      source    of    impeachment        evidence,        as   they   exhibited



                                               -4-
J-S59018-15


discrepancies between the statement of events that the victim told the police

immediately after the crime and her testimony at trial. Trial Court Opinion,

12/16/14, at 3. However, the trial court further found that in consideration

of the overwhelming wealth of other evidence of Brown’s guilt, there was no

reasonable probability that the disclosure of this impeachment evidence

would have led to a different result, and therefore, that there was no Brady

violation. Id. at 4-7.

      We conclude that the evidence was not material in that its omission

did not result in prejudice to Brown. In addition to the victim’s testimony

and identification of Brown as the man who assaulted and stole from her and

her husband, the record reveals the following evidence of Brown’s guilt: the

presence of the female victim’s blood on Brown’s face, hands, shirt, jeans

and shoes; the blood of both victims on the knife and handgun found in

Brown’s possession; eleven shoeprints from Brown’s shoes found in the

victims’ home; Brown’s admission to his cousins that he slit the throats of

two elderly people; Brown’s possession of the victims’ vehicle and other

items from their home; and the identification of Brown by the victims’

neighbor, who observed Brown speaking with the female victim outside of

their home on the morning of the attack. N.T., 5/12/14, at 84-89, 101-15;

120-25; N.T., 5/13/14, at 130-40, 154-56.

      Brown identifies two “obvious differences that could have been used to

impeach [the victim] by means of reference to her prior inconsistent



                                    -5-
J-S59018-15


statement.” Brown’s Brief at 10. First, that the victim told the police that

the attacker sexually assaulted her with a knife but did not state that this

occurred at trial or the preliminary hearing, and second, that the victim told

the police that the attacker’s gun was black, but testified at trial that it was

silver. Id.3 Our review of the record reveals that he is correct, but even if

the sum of these discrepancies led the jury to completely discredit the

victim’s testimony, that would not create a reasonable probability of a

different outcome because of the other independent evidence outlined

above.4   Thus, Brown was not prejudiced and the materiality test fails. It

was Brown’s burden to establish all three of the prongs necessary for a

finding of a Brady violation, Commonwealth v. Paddy, 15 A.3d 431, 451

(Pa. 2011), and he has failed to do so.

      Judgment of sentence affirmed.




3
  We note that Brown points out additional alleged discrepancies between
the tape recording and the police report. Brown’s Brief at 11-12. The
impeachment value of some of these alleged discrepancies is questionable,
such as Brown’s complaint that the victim’s stated on the tape that Brown
“pushed” past her to get into her home, but the report states that he
“busted” past her. Id. at 11.
4
  Tellingly, Brown does not discuss any of the other evidence against him in
his discussion as to the materiality of the tape recordings.


                                     -6-
J-S59018-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/24/2015




                          -7-
