J-S75014-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KENNETH O’CONNOR

                            Appellant                 No. 3511 EDA 2013


                Appeal from the PCRA Order November 20, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0010115-2007


BEFORE: ALLEN, J., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.:                         FILED DECEMBER 24, 2014

        Appellant, Kenneth O’Connor, appeals from the November 20, 2013

order denying his first petition for relief filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.         After careful review, we

affirm.1

        A previous panel of this Court set forth the relevant factual and

procedural background of this case as follows.

                    On March 3, 2007, [Appellant] and co-
              defendant [Patrick] (Horgan) were involved in an
              altercation with Jonathan Johnson (victim) in the
              victim’s home. After the victim was knocked
              unconscious, [Appellant] and Horgan took turns
              stomping on the victim’s head; the victim was
              hospitalized and died of blunt force trauma to the

____________________________________________
1
    The Commonwealth elected not to file a brief in this matter.
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          head five days later. The relevant events began
          twenty-four hours earlier.

                On March 2, 2007, [Appellant] and Horgan
          spent the day consuming drugs and large amounts of
          alcohol at an apartment complex located at 8225
          Roosevelt Boulevard in Philadelphia with some of the
          residents, “Eileen,” Angela Mancini, and “Anna.” At
          some point during the evening, Horgan lost his
          wallet. While he was leaving the apartment on the
          second floor, he realized he did not have it. Horgan
          believed “Anna,” a second-floor resident, had stolen
          it; he became enraged and furiously banged on her
          door, telling her to return it. Then, [Appellant] found
          Horgan’s wallet at the bottom of the staircase of the
          public hallway and returned it to him. [Appellant
          and Horgan] and Angela Mancini left the apartment
          building, and walked south down Roosevelt
          Boulevard. Shortly thereafter, in the early morning
          of March 3, 2007, [Appellant and Horgan] were
          stopped by Philadelphia Police Officer James Strohm,
          who was responding to a call about a disturbance at
          8223 or 8225 Roosevelt Boulevard.

                When Officer Strohm questioned Horgan as to
          why he was at the apartment building, Horgan
          replied that he was there “to kick the s[**]t out of
          the n[**]er for breaking his girlfriend’s leg.”
          [Appellant] also said that he was there to “beat the
          s[**]t out of him too.” As he spoke to them, Officer
          Strohm smelled alcohol on the two men’s breath.
          Officer Strohm discovered that [Appellant and
          Horgan] had outstanding warrants for their arrest,
          and took them into custody. When they arrived at
          the Eighth Police District to be processed for their
          summary warrants, Horgan was still agitated about
          his wallet.    When Officer James Gillespie asked
          Horgan to remove all items from his person, he
          threw his wallet on the table and stated that there
          was nothing inside it because “the f[**]king sp[*]c
          b[**]ch took my money and I’m going to go back
          and get them – going to go back and kill them.”




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                [Appellant and Horgan] were released from
          police custody between 7:30 and 8:00 a.m. on March
          3, 2007. They then proceeded to walk back to 8225
          Roosevelt Boulevard to find Horgan’s wallet, because
          he once again claimed it was missing. Although he
          wanted to go home, [Appellant] decided to stay with
          Horgan.

                  [Appellant] and Horgan returned briefly to the
          first-floor apartment occupied by “Eileen” and Ms.
          Mancini, then left, bought a case of beer, and drank
          six cans each at the park. They next bought some
          pizza and went to [Appellant’s] friend’s house to
          drink some more beer. Between 2:00 and 3:00 p.m.
          [Appellant and Horgan] left the house, picked up
          vodka, and mixed ice tea, which they bought at the
          Acme [Market] with the vodka. They drank this on a
          picnic table with Peter Fedorin, whom they ran into
          at the Acme. [Appellant and Horgan] separated from
          Mr. Fedorin and eventually decided to go to the
          victim’s house to “get off the street.”

                At approximately 5:00 on the evening of March
          3, 2007, they arrived at the victim’s apartment,
          located at 8223 Roosevelt Boulevard, right next door
          to the apartment where the previous evening’s
          events had occurred. [Appellant and Horgan] rang
          the victim’s bell and he walked down the stairs to
          open the security door. But, before allowing them
          upstairs to his apartment, the victim asked
          [Appellant], “Pat is going to be cool, right[?]”
          [Appellant] responded, “Yeah, everything is going to
          be all right.” The victim then opened the outer
          security door and the three men walked upstairs to
          [the victim’s] studio apartment.

                Once upstairs, they sat around the victim’s
          wooden kitchen table. They drank vodka mixed with
          iced tea, drank beer, and smoked a bag of crack
          [Appellant] had bought the previous night. Peter
          Fedorin arrived approximately thirty minutes later
          with another bottle of vodka, which the four men
          shared. Meanwhile Ms. Joniec, the victim’s girlfriend,
          was asleep in the next room of the studio apartment.

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                Horgan mentioned that he was frustrated over
          losing his wallet and stated, “I can’t believe I lost my
          f[***]ing money.” The victim told him to shut up.
          Angry at the victim’s reaction, Horgan accused him
          of stealing his wallet and a loud argument ensued.
          The argument calmed down at first, but then
          escalated.    Because the argument was “getting
          heated,” Mr. Fedorin piped in and asked [Appellant]
          to stop the altercation.

                [Appellant] separated Horgan and the victim
          by shoving each of them. The victim then assumed
          a karate stance and told [Appellant and Horgan] to
          leave his apartment. [Appellant] told the victim to
          “knock this s[**]t off.”         The victim then hit
          [Appellant] with a jab on the side of the ear.
          [Appellant] wrapped his arms around the victim in a
          “headlock hug,” and started wrestling with him.
          They continued wrestling and fell onto the wooden
          kitchen table, causing it to collapse.

                During their fall, [Appellant] landed on the
          victim. [Appellant] allowed the victim to stand up.
          A fist fight then broke out between the victim and
          [Appellant and Horgan].      The victim defended
          himself, fought back with his fists, and fell down a
          few times. He later grabbed one of the legs from the
          broken table (the table leg), raised it over his
          shoulder in a batting stance, and again told
          [Appellant and Horgan] to leave his apartment. He
          also shouted at Ms. Joniec, who was now awake, to
          get his gun from the closet.

                Meanwhile, the victim struck [Appellant] in the
          head with the table leg, causing [Appellant] to fall
          near Mr. Fedorin – who remained seated on a stool
          throughout the ensuing fight. Horgan picked up a
          chair and struck the victim on his side once, causing
          the victim to loosen his grip on the table leg.
          [Appellant] grabbed the table leg and started beating
          the victim’s head with it, and the victim collapsed.
          The victim was unconscious and was bleeding from
          his head. While the victim was unconscious on the

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          ground, [Appellant] and Horgan took turns stomping
          on his head.

                Ms. Joniec began screaming and telling
          [Appellant and Horgan] to stop because the victim
          was unconscious. Horgan pulled [Appellant] towards
          the front door. However, [Appellant] yanked his arm
          away from Horgan’s grip and stomped down on the
          victim’s head one last time before finally leaving the
          apartment.

                 Once [Appellant and Horgan] left, Ms. Joniec
          ran to the fire station next door to get help. On her
          way out of the apartment, Ms. Joniec saw Horgan
          trying to get back into the apartment – kicking the
          outer door and ringing all of the doorbells. Horgan
          was screaming that the victim “hadn’t had enough
          yet.” Horgan warned Ms. Joniec “not to say anything
          or he’d kill [her].” When Ms. Joniec returned from
          the fire station with a medic, [Appellant and Horgan]
          were gone.

                 The victim was taken to the hospital on March
          3, 2007 and was pronounced dead on March 8,
          2007. Dr. Bennett Preston, an expert in forensic
          pathology, testified to a reasonable degree of
          medical certainty that the cause of death was
          “multiple blunt force injuries to the head.”       In
          particular, two skull fractures caused cerebral
          hemorrhaging, which affected the victim’s breathing
          and eventually led to his death. Dr. Preston also
          testified that the victim had various lacerations and
          abrasions on the head and back that were consistent
          with having been stomped on and having been
          struck with a table leg.

                [Appellant and Horgan] also suffered severe
          head injuries requiring hospitalization. Horgan was
          found across Roosevelt Boulevard at Hoffnagle Street
          and taken to Frankford Torresdale Hospital, where he
          had his head stapled.     From there, Horgan was
          arrested and taken to the Fifteenth Police District
          holding cell, where he fainted and was taken to
          Frankford Hospital[’s] Frankford Division for five

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              days.    [Appellant] managed to make it to his
              mother’s house on the night of March 3, 2007, and
              she later took him to see Dr. Linn Carleton on March
              5, 2007.       After surrendering himself to the
              authorities, [Appellant] was taken to Hahnemann
              Hospital and later spent five weeks in the Detention
              Center’s Infirmary.

Commonwealth v. O’Connor, 4 A.3d 194 (Pa. Super. 2010) (unpublished

memorandum at 1-7) (some brackets in original; footnotes and internal

citations omitted), appeal denied, 9 A.3d 628 (Pa. 2010), quoting Trial Court

Opinion, 6/26/09, at 1-7.

        On September 4, 2007, the Commonwealth filed an information,

charging Appellant with one count each of murder in the third degree,

criminal conspiracy, and possession of an instrument of a crime.2 Appellant

proceeded to a bench trial, at the conclusion of which, the trial court found

Appellant guilty of third-degree murder, but not guilty of the remaining two

charges. On October 30, 2008, the trial court imposed a sentence of eight

to 20 years’ imprisonment, to be followed by 20 years’ probation.          On

November 7, 2008, Appellant filed a timely post-sentence motion, which the

trial court denied on March 9, 2009. Appellant filed a timely notice of appeal

to this Court.     This Court affirmed the judgment of sentence on May 17,

2010.      Id. at 1.      Our Supreme Court denied Appellant’s petition for

allowance of appeal on October 26, 2010. Commonwealth v. O’Connor, 9


____________________________________________
2
    18 Pa.C.S.A. §§ 2502(c), 903(a)(1), and 907(a), respectively.



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A.3d 628 (Pa. 2010).        Appellant did not seek a writ of certiorari from the

United States Supreme Court.

       On October 11, 2011, Appellant filed a timely pro se PCRA petition.

The PCRA court appointed counsel who filed amended petitions on May 24,

2012 and June 25, 2012. The Commonwealth filed a motion to dismiss on

October 3, 2012.        The PCRA court conducted an evidentiary hearing on

November 20, 2013, at the conclusion of which, the PCRA court denied

Appellant’s PCRA petition in open court. On December 10, 2013, Appellant

filed a timely notice of appeal.3

       On appeal, Appellant raises the following five issues for our review.

              1.     Did the PCRA court err as a matter of law in
                     finding that the Commonwealth’s central
                     witness was not threatened when it was
                     undisputed that police seized and detained her
                     overnight against her will, without any judicial
                     authority to do so, and only agreed to release
                     her once she testified?

              2.     Did the PCRA court err as a matter of law in
                     finding that undisclosed evidence of official
                     threats against and promises to its central
                     witness to secure her testimony was not
                     material where the [PCRA] court applied a
                     more restrictive standard than the governing
                     rule under Brady v. Maryland[, 373 U.S. 83
                     (1963)] simply because [Appellant] raised this
                     due process claim at the PCRA stage rather
                     than on direct appeal?


____________________________________________
3
  Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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               3.    Did the PCRA court err as a matter of law in
                     failing to address how competent defense
                     counsel could have used this evidence of
                     threats and promises and, instead, relied
                     exclusively on the witness’s subjective opinion
                     that the threats and promises did not affect
                     her testimony?

               4.    Does the record support the findings of the
                     PCRA court where it failed to consider the
                     undisclosed evidence that the police promised
                     the witness that she would be released from
                     custody only after she cooperated against
                     Appellant and also disregarded the undisclosed
                     evidence that police threatened her with
                     perjury if she refused to testify?

               5.    Did the PCRA court err as a matter of law in
                     failing to consider the objective weakness of
                     the Commonwealth’s case against Appellant
                     and the strength of his defense in its overall
                     materiality analysis?

Appellant’s Brief at 3.

      We begin by noting our well-settled standard of review. “In reviewing

the   denial    of   PCRA   relief,   we   examine   whether   the   PCRA   court’s

determination is supported by the record and free of legal error.”

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation

marks and citation omitted). “The scope of review is limited to the findings

of the PCRA court and the evidence of record, viewed in the light most

favorable to the prevailing party at the trial level.”         Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).           “It is well-settled

that a PCRA court’s credibility determinations are binding upon an appellate

court so long as they are supported by the record.”            Commonwealth v.

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Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this

Court reviews the PCRA court’s legal conclusions de novo. Commonwealth

v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).

      Although Appellant phrases his issue on appeal in five separate parts

in his statement of questions presented, he combines them all into one issue

in the argument section of his brief. We therefore elect to address all of his

issues together. Essentially, Appellant avers that the PCRA court erred when

it concluded that the Commonwealth did not commit a Brady violation when

it failed to disclose to the defense that its chief witness, Joniec, was allegedly

threatened and held against her will by law enforcement to compel her

testimony. Appellant’s Brief at 13. Specifically, Appellant complains that the

PCRA court erred when it concluded that this undisclosed evidence was not

material for Brady purposes. Id. at 14.

      “Under Brady, the State violates a defendant’s right to due process if

it withholds evidence that is favorable to the defense and material to the

defendant’s guilt or punishment.”      Smith v. Cain, 132 S. Ct. 627, 630

(2012) (citation omitted).      “Thus, to establish a Brady violation, an

appellant must prove three elements: (1) the evidence at issue is favorable

to the accused, either because it is exculpatory or because it impeaches; (2)

the evidence was suppressed by the prosecution, either willfully or

inadvertently; and (3) prejudice ensued.”      Commonwealth v. Weiss, 81

A.3d 767, 783 (Pa. 2013) (citation omitted).


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                   Pursuant to Brady and its progeny, the
            prosecutor has a duty to learn of all evidence that is
            favorable to the accused which is known by others
            acting on the government’s behalf in the case,
            including the police. Kyles v. Whitley, 514 U.S.
            419, 437 (1995).         Pursuant to Kyles, “the
            prosecutor’s Brady obligation clearly extends to
            exculpatory evidence in the files of police agencies of
            the same government bringing the prosecution.”
            Commonwealth v. Burke, 781 A.2d 1136, 1142
            ([Pa.] 2001). Moreover, there is no Brady violation
            when the defense has equal access to the allegedly
            withheld evidence. See Commonwealth v. Spotz,
            896 A.2d 1191, 1248 ([Pa.] 2006) (“It is well
            established that no Brady violation occurs where the
            parties had equal access to the information or if the
            defendant knew or could have uncovered such
            evidence with reasonable diligence[]” (internal
            citation omitted)).

Id. (parallel citations omitted).

      In this case, Joniec testified at the PCRA hearing that she told law

enforcement on three occasions that she did not wish to testify in court. The

first instance was right before Appellant’s preliminary hearing, but the

detectives told her that “[she had] to go” to testify. N.T., 11/20/13, at 9.

The second time was approximately one to two weeks before Appellant’s

trial. Joniec asked one of the detectives what would happen if she refused

to testify at Appellant’s trial, and the detective responded that she would be

charged with perjury. Id. at 14. The third instance was on the second day

of Appellant’s trial, where Joniec testified that a corrections officer informed

her that if she did not get up to go testify, she would be placed in solitary

confinement. Id. at 16, 29.


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      Joniec testified that the primary reason she did not wish to testify was

because “[she has] social anxiety and it’s really hard for [her] to get up in

front of people.” Id. at 20. When Joniec does get up in front of a crowd she

tends to “get panic attacks and [] get[s] sick.”        Id. at 20, 24.   Joniec

testified that the detectives “treated [her] well.”    Id. at 23.   Joniec also

agreed that they were nice to her.      Id.   Most importantly, Joniec testified

that none of the conduct she described amounted to her feeling any

pressure to lie at Appellant’s trial.    Id. at 29.    To the contrary, Joniec

confirmed at the PCRA hearing that her trial testimony, including her in-

court identification of Appellant was “truthful.” Id. at 32.

      As noted above, the Supreme Court has held that evidence is material

under Brady when “the likelihood of a different result is great enough to

‘undermine[ ] confidence in the outcome of the trial.’”         Smith, supra,

quoting Kyles, supra at 434.        We agree with the PCRA court that the

undisclosed evidence was relevant to Appellant’s trial, as it bore on Joniec’s

credibility. Nevertheless, the fact that said statements are relevant does not

render them material under Brady.        As the PCRA court observed, Joniec

testified at the PCRA hearing that her testimony at trial was truthful, and the

reason she did not want to come to court was solely because of her social

anxiety about getting in front of crowds. N.T., 11/20/13, at 20, 24, 32. At

best, “the officers influenced Joniec to appear in court, but [] the content of

her testimony was unaffected.” PCRA Court Opinion, 5/13/14, at 10.


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       In addition, at trial, even assuming arguendo that the jury would flatly

reject Joniec’s testimony, the Commonwealth presented other direct and

circumstantial evidence identifying Appellant as a perpetrator of the crime.

The Commonwealth presented the testimony of Peter Fedorin, who identified

Appellant as one of the perpetrators of the crime. N.T., 9/9/08, at 29-32.

The Commonwealth also presented the testimony of Philadelphia Police

Officer James Strohm.        Officer Strohm testified that Appellant was outside

the victim’s residence shortly before the murder and stated that he was

there to “beat the s[**]t out of [the victim].” N.T., 9/8/08, at 34. Based on

these considerations, we conclude that law enforcement’s conduct regarding

Joniec’s trial testimony does not “undermine [our] confidence” in Appellant’s

conviction.4    Smith, supra.        Therefore, Appellant is not entitled to relief

under Brady.


____________________________________________
4
  Because we conclude that the undisclosed evidence does not meet the
materiality test for Brady, we need not address Appellant’s issue where he
argues the PCRA court erroneously imposed a higher standard under the text
of the PCRA, independent of what the Federal Constitution requires.
Compare Commonwealth v. Ly, 980 A.2d 61, 76 (Pa. 2009) (stating,
“[a]s 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[]’”), and 42 Pa.C.S.A. § 9543(a)(2)(i) (same), with
Commonwealth ex. rel. Dadario v. Goldberg, 773 A.2d 126 (Pa. 2001)
(stating, “the language from Section 9543(a)(2)(ii) requiring proof that
counsel’s ineffectiveness ‘so undermined the truth-determining process that
no reliable adjudication of guilt or innocence could have taken place’
[embodies] the prejudice element of the Sixth Amendment standard for
ineffectiveness claims articulated in Strickland [v. Washington, 466 U.S.
(Footnote Continued Next Page)


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J-S75014-14


      Based on the foregoing, we conclude the PCRA court properly denied

Appellant’s PCRA petition.          See Fears, supra.   Accordingly, the PCRA

court’s November 20, 2013 order is affirmed.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/24/2014




                       _______________________
(Footnote Continued)

668 (1984)]”), and 42 Pa.C.S.A. § 9543(a)(2)(ii)            (containing   same
“undermining” clause as Section 9543(a)(2)(i)).



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