J-S27008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    HAKIM ABDUL WAKEEL                         :
                                               :
                      Appellant                :       No. 1772 EDA 2016


                    Appeal from the PCRA Order May 3, 2016
             In the Court of Common Pleas of Northampton County
              Criminal Division at No(s): CP-48-CR-0003579-2008


BEFORE: GANTMAN, P.J., OTT, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                              FILED JUNE 09, 2017

        Appellant, Hakim Abdul Wakeel, appeals from the order entered in the

Northampton County Court of Common Pleas, which denied his first petition

filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        The PCRA court opinions fully and correctly set forth the relevant facts

and procedural history of this case. Therefore, we have no need to restate

them.

        Appellant raises one issue for our review:

           DID THE PCRA COURT ERR BY CONCLUDING THAT THE
           CLAIM UNDERLYING [APPELLANT]’S ASSERTION OF PRIOR


____________________________________________


1
    42 Pa.C.S.A. § 9541-9546.


_____________________________

*Retired Senior Judge assigned to the Superior Court.
J-S27008-17


          COUNSELS’ INEFFECTIVENESS, I.E., THE BRADY[2] CLAIM,
          WAS WITHOUT ARGUABLE MERIT?

(Appellant’s Brief at 4).

        Our standard of review of the denial of a PCRA petition is limited to

examining      whether      the   evidence      of   record     supports      the     court’s

determination       and    whether     its     decision    is   free   of     legal    error.

Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied,

612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the

findings of the PCRA court if the record contains any support for those

findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal

denied, 593 Pa. 754, 932 A.2d 74 (2007).                  We give no such deference,

however, to the court’s legal conclusions.            Commonwealth v. Ford, 44

A.3d 1190 (Pa.Super. 2012). Traditionally, credibility issues are resolved by

the trier of fact who had the opportunity to observe the witnesses’

demeanor.      Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79

(1998), cert. denied, 528 U.S. 810, 120 S.Ct. 41, 145 L.Ed.2d 38 (1999).

Where the record supports the PCRA court’s credibility resolutions, they are

binding on this Court. Id.

        The   law   presumes      counsel      has   rendered     effective     assistance.

Commonwealth v. Gonzalez, 858 A.2d 1219, 1222 (Pa.Super. 2004),

appeal denied, 582 Pa. 695, 871 A.2d 189 (2005). To prevail on a claim of
____________________________________________


2
    Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).



                                             -2-
J-S27008-17


ineffective   assistance   of   counsel,   a   petitioner     must    show,   by   a

preponderance of the evidence, 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.      Commonwealth v. Turetsky, 925 A.2d 876, 880

(Pa.Super. 2007), appeal denied, 596 Pa. 707, 940 A.2d 365 (2007). The

petitioner must show: (1) the underlying claim has arguable merit; (2)

counsel lacked a reasonable strategic basis for his action or inaction; and (3)

but for counsel’s errors and omissions, there is a reasonable probability the

outcome of the proceedings would have been different. Id. “The petitioner

bears the burden of proving all three prongs of the test.” Id. “Where it is

clear that a petitioner has failed to meet any of the three, distinct prongs of

the…test, the claim may be disposed of on that basis alone, without a

determination    of   whether   the   other    two   prongs    have    been   met.”

Commonwealth v. Steele, 599 Pa. 341, 360, 961 A.2d 786, 797 (2008).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinions of the Honorable Paula A.

Roscioli, we conclude Appellant’s issue merits no relief.        The PCRA court’s

opinions comprehensively discuss and properly dispose of the question

presented.    (See PCRA Court Opinion, filed July 28, 2016, at 1-3; PCRA

Court Opinion, filed May 3, 2016, at 4-18) (finding: Julio Lopez testified at

Appellant’s trial that he participated in burglary with Appellant and identified


                                      -3-
J-S27008-17


Appellant as one of perpetrators; Lopez denied Commonwealth had

promised him consideration in Lopez’s then-pending criminal case in

exchange for his testimony; at Appellant’s initial PCRA hearing, Lopez also

denied Commonwealth had made him promises before he testified at

Appellant’s trial; Lopez disavowed written statement of private investigator,

Sharon Williams, in which Lopez said counsel had told him Commonwealth

had agreed to seek lesser sentence against him if he testified against

Appellant; Lopez’s counsel also testified at Appellant’s initial PCRA hearing,

and stated Commonwealth did not offer plea negotiation before Lopez

testified against Appellant; at most recent PCRA hearing, Lopez recanted his

prior testimony; Lopez said Commonwealth had told him he could plead to

charges to receive specific sentence if he testified; Lopez then adopted Ms.

Williams’ written statement; Lopez’s testimony at most recent PCRA hearing

was incredible; record belies Appellant’s assertion that Lopez reached

agreement with Commonwealth before he testified at Appellant’s trial;

additionally, Ms. Williams’ statement is unreliable because she embellished

her previous role in Pennsylvania State Police and lacked understanding of

facts of case when she interviewed Lopez; even if PCRA court did credit

Lopez’s recantation testimony, Appellant was not entitled to PCRA relief;

Lopez’s testimony at Appellant’s trial was not crucial to Appellant’s

convictions,   given   significant   other   evidence   to   support   Appellant’s

convictions; Lopez did not recant his testimony regarding events leading up


                                       -4-
J-S27008-17


to incident and his identification of Appellant as one of perpetrators; also,

Appellant challenged at trial Lopez’s credibility when he elicited testimony

from Lopez to demonstrate Lopez also faced charges arising from same

incident; accordingly, Appellant’s Brady violation claim lacks arguable merit

and there is no reasonable probability that outcome of Appellant’s trial would

have differed if jury knew that Commonwealth had made promise to Lopez

in exchange for his testimony against Appellant; PCRA court’s statement in

its November 12, 2013 opinion concerning potential materiality of Lopez’s

recantation testimony as impeachment evidence does not represent law of

case; PCRA court did not state Lopez’s identification of Appellant at trial was

material    to    Appellant’s    conviction,    but    that     existence     of

promise/understanding     between   Commonwealth      and     Lopez   would   be

material evidence subject to disclosure under Brady; court had previously

determined that Lopez’s identification testimony concerning Appellant was

not crucial to outcome of trial because there was ample other evidence

against Appellant).     The record supports the PCRA court’s rationale.

Accordingly, we affirm on the basis of the PCRA court’s opinions.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/9/2017

                                     -5-
                                                                   Circulated 05/30/2017 03:00 PM




      IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY
                 COMMONWEALTH OF PENNSYLVANIA
                        CRIMINAL DIVISION

COMMONWEALTH        OF PENNSYLVANIA
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      v.                                                                                           d
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HAKIM A. WAKEEL,
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                          Defendant.                                                               , .......Jl'.Ji'




              STATEMENT PURSUANT JO PENNSYLVANIA RULE
                   OF APPELLATE PROCEDURE 1925(a)

      AND   NOW,    this 28th day of July 2016, we hereby issue the following

Statement pursuant to Pennsylvania Rule of Appellate Procedure 1925(a):

      On June 8, 2016, this Court received a timely Notice of Appeal from our May

3, 2016 Order of Court denying Defendant's amended PCRA petition, said Notice

having been filed on May 27, 2016. On June 9, 2016, we issued an Order pursuant

to Pennsylvania Rule of Appellate Procedure 1925(b), directing Defendant to file of

record and serve upon the undersigned a concise statement of the errors

complained of on appeal no later than twenty-one (21) days from the date of said

Order. Counsel for Defendant delivered a timely statement of such perceived errors

on June 28, 2016.

      In his statement, Defendant raises two errors of which he complains. First,

Defendant contends that this Court erred in concluding that the testimony offered

at his most recent PCRA hearing by Julio Lopez was not credible. Our reasons for

concluding that Lopez was not credible are thoroughly set forth in our May 3, 2016

Opinion, and accordingly no further statement on this point is required.
      Second, Defendant contends that we erred in concluding that Lopez's trial

testimony   was not material for the purpose of establishing a Brady violation,

because(a) a determination of the materiality of said testimony was the law of the

case, and (b) Lopez's testimony was "crucial to the Commonwealth's case,"

because the other evidence linking Defendant to the crimes at issue was

"underwhelming." With respect to Defendant's argument regarding the law of the

case, we can only surmise that Defendant refers to the following statement in our

November 12, 2013 Opinion addressing his prior PCRA petition: "[A]ny promise or

understanding between the Commonwealth and Lopez with respect to Lopez's

testimony against this Defendant would be material impeachmentevidence subject

to disclosure under Brady and its progeny, given that Lopez was a key fact witness

for the Commonwealth[.]" Contrary to Defendant's argument on the present

occasion,.this statement does not represent the law of the case with respect to the

materiality of Lopez'strial testimony. Defendant conflatesour statements regarding

impeachment evidence and trial testimony identifying Defendant. We did not state

in our 2013 Opinion that Lopez'sidentification of Defendantat trial was material to

his conviction, but rather that the existence of a promiseor understanding between

the Commonwealth and Lopez would be material evidence subject to Brady

disclosure requirements. Importantly, we have found, both in 2013 and in 2016,

that such impeachment evidence does not and did not exist. Furthermore, as we

discussed at length in our May 3, 2016 Opinion, Lopez's identification testimony

with respect to Defendant at trial was not crucial to the outcome of the trial, as




                                    Page 2 of 3
there was ample other evidence connecting Defendant to the crimes at issue, even

in the absence of any identification   testimony by Lopez.

       In all other respects, Defendant's assertions of error are fully addressed in

our May 3, 2016 Opinion, and no further statement on our part is required at the

present time.


                                                      BY THE COURT:

                                                      / 41,J..   .A. l.Mc/ol,
                                                      PAULA A. ROSCIOLI, J.




                                       Page 3 of 3
                                                                  Circulated 05/30/2017 03:00 PM




     IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY
                COMMONWEALTH OF PENNSYLVANIA ~
                       CRIMINAL DIVISION       ~

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      This matter is presently before the Court for disposition of Defendant

Hakim Abdul Wakeel's amended petition for post-conviction collateral relief, filed

pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq.

Defendant Hakim A. Wakeel (Defendant) was convicted on May 18, 2009 of four

counts of robbery, two counts of aggravated assault, one count of burglary, four

counts of recklessly endangering another person, four counts of unlawful

restraint, five counts of terroristic threats, two counts of simple assault, and

related conspiracy charges, all stemming from an armed robbery at the home of

James Garcia (Garcia) in Bethlehem, Pennsylvania in which he participated on

July 26, 2007. Daniel Rivera, a friend of Garcia, was killed during the course of

the robbery, but Defendant was acquitted of all homicide charges. Three other

individuals   were also charged    in connection    with the   robbery      -     Angel

Echevarria, Julio Lopez and Susan Stohl. Another male, whose identity has not

been determined by law enforcement, was also involved in the robbery.
      Defendant was originally sentenced on June 12, 2009, and, following an

appeal of that sentence to the Superior Court, was resentenced on February 23,

2011. Thereafter,    he filed another direct appeal, and the Superior Court

affirmed his second sentence on rv\o.rc..l1 JJ?012. On April 10, 2013, Defendant

timely filed his original PCRA petition, which this Court ultimately denied on

November 12, 2013. Prior to this Court's denial of his petition,          Wakeel

requested to proceed prose, and to file an amended brief. His request to file an

amended brief was denied by this Court, as his appointed counsel had already

filed a brief prior to being withdrawn at Defendant's request. On appeal, the

Superior Court remanded the matter with instructions to conduct a hearing in

accordance with Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), to ensure

that Defendant's request to proceed pro se was knowing and intelligent, and to

permit Defendant to file an amended petition raising a claim of his PCRA

counsel's ineffectiveness.

      On    May     27, 2015, Defendant     advised   this   Court   by   way   of

correspondence that he did not wish to attend a Grazier hearing because he had

retained private counsel. On July 6, 2015, present counsel for Defendant

entered his appearance, rendering a Grazier hearing unnecessary. Accordingly,

on July 13, 2015, this Court issued an Order formally granting Defendant leave

to file an amended PCRA petition,      within 60 days thereafter.     Defendant's

amended petition     was filed September     11, 2015, and served upon the

undersigned on September 29, 2015. On October 30, 2015, an issue-framing

                                  Page 2 of 18
conference was held, at which time counsel for Defendant requested to file a

discovery motion, seeking discovery of correspondence sent to either this Court

or the Northampton County Office of the District Attorney by Julio Lopez (Lopez)

concerning Lopez's contention that, following his plea to third degree murder in

connection with the death of Daniel Rivera, he did not receive the sentence he

had been promised in exchange for his cooperation as the Commonwealth's

witness in this case and in the prosecution of Angel Echevarria. The discovery

motion was filed November 9, 2015, and denied on November 18, 2015, on the

grounds that no such correspondence exists. A hearing on Defendant's amended

PCRA petition was scheduled for January 11, 2016, and later continued to

February 11, 2016 due to the unavailability           of Defendant's counsel on the

January date. The hearing in fact took place on February 11, 2016, and a

briefing schedule was set.1 Both Defendant and the Commonwealth have now

filed briefs in support of their respective positions, and the matter is now ready

for disposition by this Court.

       In his amended PCRA petition, Defendant contends that both Attorney

David Mischak, who represented him at trial and on direct appeal, and Attorney

Brian Monahan, who represented him in connection with his original PCRA
1 At the close of the hearing, Defendant's counsel neglected to move his two exhibits into
evidence, but later requested, via a Motion to Re-Open Record, that the PCRA hearing
record be re-opened for the limited purpose of formally admitting those two exhibits. The
Commonwealth has not opposed said motion and, accordingly, we have entered an Order
admitting those exhibits, as we would have if counsel had moved their admission at the
hearing. We have not, however, admitted Defendant's proposed PCRA Exhibit 3, alleged to
be a copy of correspondence sent by Julio Lopez to this Court in January 2011, as such
exhibit contains hearsay that was not Introduced at the time of the hearing and about which
Lopez has not been cross-examined.
                                      Page 3 of 18
petition, "were ineffective for failing to properly preserve, present, and argue a

meritorious Brady claim." (Def. Am. Pet., 1129). Brady v. Maryland, 373 U.S. 83

(1963). More specifically, Defendant contends that, following Lopez's guilty plea

in November 2010 and sentencing in January 2011, Attorney Mischak should

have reviewed the transcripts thereof and liled a motion pursuant to Pa.R.C.P.

720(c), relating to after-discovered evidence, on the basis of statements made

in those proceedings that Defendant contends form a basis for his Brady claim.

Furthermore, he alleges that Attorney Monahan was ineffective for (a) failing to

allege that Attorney Mischak was ineffective, and (b) failing to ensure the

attendance of witness Sharon Williams at his first PCRA hearing in order to

impeach the testimony      given by Lopez on that occasion, in support of

Defendant's Brady claim.

      The heart of the matter is Defendant's contention that the Commonwealth

violated the requirements of Brady by failing to disclose to Defendant that there

was an understanding between Lopez and the Commonwealth such that Lopez

would receive favorable treatment          in exchange for his testimony     against

Defendant, and that Defendant is entitled to a new trial as a result of this

violation. Defendant bears the burden to prove this constitutional violation by a

preponderance of the evidence. 42 Pa.C.S. § 9543(a). Having considered the

entire record, we find that Defendant's Brady violation claim lacks arguable

merit, and that there is not   a   reasonable probability that, but for the omissions

of Attorneys Mischak and Monahan, the result of Defendant's trial would have

                                      Page 4 of 18
been different, and accordingly Defendant's amended PCRA petition must be

denied. Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).

      As Defendant accurately argues, Brady requires the disclosure to

Defendant of all exculpatory material, including evidence of an impeachment

nature. Commonwealth v. Lesko, 15 A.3d 345 (Pa. 2011). In addition to any

outright promise by the Commonwealth for leniency in consideration for a

witness's favorable testimony, "[a]ny implication, promise, or understanding

that the government would extend leniency in exchange for a witness's

testimony is relevant to the witness's credibility" and therefore subject to

disclosure by the Commonwealth. Commonwealth v. Strong, 761 A.2d 1167,

1171 (Pa. 2000). This is because a "jury's estimate of the truthfulness and

reliability of a given witness may well be determinative of guilt or innocence,

and it is upon such subtle factors as the possible interest of the witness in

testifying that a defendant's life or liberty may depend." Napue v, Illinois, 360

U.S. 264, 269 (1959). A violation of a defendant's constitutional rights under

Brady is proven when a defendant proves each of the following: "(1) the

prosecution concealed evidence; (2) which was either exculpatory evidence or

impeachment evidence favorable to him; and (3) he was prejudiced by the

concealment." Commonwealth v. Simpson, 66 A.3d 253, 264 (Pa. 2013). While

evidence of the type Defendant is suggesting would be impeachment evidence

favorable to him, he has failed to prove either that the Commonwealth




                                  Page 5 of 18
concealed such evidence, or that, even if said evidence· did exist, he was

prejudiced by its concealment.

      The alleged impeachment evidence at issue herein consists of testimony

and circumstantial evidence that Defendant contends proves that Lopez was

offered a "deal" in exchange for his cooperation with the Commonwealth by

testifying against Defendant. At trial, Lopez denied that he had been promised

any consideration for his testimony against Defendant. (N.T. 5/14/09, pp.28-32,

63). He continued to deny the existence of any promises at Defendant's first

PCRA hearing, testifying that while he was hoping for a sentence of 10-20

years, the Commonwealth had not promised him anything or negotiated a plea

prior to his trial testimony. (N.T. 9/24/13, pp.41-49). This testimony by Lopez

was supported by the testimony of his attorney, Erv Mclain, Esq., who testified

at the PCRA hearing, "I can tell you unequivocally when I approached the DA's

office prior they said no such luck," and "Quite literally there was no plea

negotiation." (N.T. 9/24/13, pp.34, 35).

      At the most recent PCRA hearing, Lopez recanted his prior testimony on

this point, contending that the Commonwealth had told him, "if you help us, we

will help you,'' and told him that he would be allowed to plea to charges which

would give him a 10-20 year sentence. (N.T. 2/11/16, pp.60-69.) He claims

that Attorney Mclain told him and his family that he would make sure that

Lopez did not get more than 10-12 years as his minimum sentence. (N.T.

2/11/16, p.67). Lopez claims now that he lied on each of the prior occasions on

                                  Page 6 of 18
which     he testified   that   there    was no deal or understanding       with   the

Commonwealth prior to his trial testimony, and though he does not recall his

specific conversations with ADA Richard Pepper, he was promised a lesser

sentence than what he received. (N.T. 2/11/16, pp.72, 78). In his most recent

testimony,    Lopez also adopted the written statement of private investigator

Sharon Williams, signed by him on April 18, 2013, wherein he contended that

his counsel, Mr. Mclain, "told me that the Commonwealth was not going to give

me a lot of time." (PCRA Ex.2). He further contended therein that he directed

correspondence to Mr. Mclain and this Court following his sentencing, wherein

he lamented the fact that he did not receive the consideration he had been

promised for his trial testimony. We note, as we have previously, that no such

correspondence was received by this Court. Lopez had previously disavowed the

writing of Sharon William at Defendant's first PCRA hearing on September 24,

2013, claiming     that Ms. Williams        had fabricated   portions of the written

statement. We must note that, while Lopez is recanting his prior testimony

regarding this impeachment matter; he has never recanted his core testimony

with respect to the series of events leading to the July 26, 2007 robbery and his

identification of Defendant as one of the perpetrators.

        We must note that recantation testimony, as we have here, is "extremely

unreliable." Commonwealth v. Floyd, 484 A.2d 365, 369 (Pa. 1984). "There is

no less reliable form of proof, especially when it involves an admission of

perjury." Commonwealth v. Coleman, 264 A.2d 649 (Pa. 1970). We must

                                        Page 7 of 18
"assess the credibility and significance of the recantation in light of the evidence

as a whole." Commonwealth v. D'Amato, 856 A.2d 806 (Pa. 2004). There are

several indicia of unreliability with respect to Lopez's recantation testimony in

this case. First, his present testimony is inconsistent with his vehement

testimony to the contrary on numerous prior occasions. He testified at

Defendant's trial   on cross examination that        he had no deal with the

Commonwealth, and that there was no understanding that he would get "a big

break" after testifying against Defendant. (N.T. 5/12/09, pp.28-29, 32). He

testified consistently at the trial of co-defendant Angel Echevarria, in which he

also testified on behalf of the Commonwealth. (Commonwealth v. Echevarria,

CP-48-CR-2008-1248, N.T.       9/14/10,   pp.67-70).   Furthermore, his present

testimony is inconsistent with his testimony at the prior PCRA hearing in 2013,

at which time he continued to deny that any promises had been made to him,

or any understanding reached with respect to the disposition of his case. (N.T.

9/24/13, pp.42-45). Having had an opportunity to hear Lopez's testimony on all

of these prior occasions, as well as his present testimony, and to observe his

demeanor on each of those occasions, we have concluded that Lopez is not

being truthful in his present testimony. While we can only speculate as to

Lopez's motivation to fabricate his present testimony, there are clearly potential

motives, including his anger that he did not receive the sentence that he

subjectively expected as consideration for his cooperation, or the fact that he

was violently assaulted and stabbed in prison by fellow inmates who regarded

                                   Page 8 of 18
him as a "snitch" as a result of his prior testimony. He stated at the most recent

hearing:

      I didn't give up free information, got beat up, stabbed, almost
      killed, for free information. It wasn't free at the end of the day, I
      mean[, w]hen you snitch on somebody, there's consequences
      behind that. At the end of the day, I didn't get my face slashed,
      you know, and stabbed and all that kind of stuff, for free
      information. At the end of the day, it wasn't free. I mean, I didn't
      expect something but they didn't give me nothing and they even
      spoke with my lawyer and my lawyer even told my family.
(N.T. 2/11/16, p.66).

      In addition to the conflict between Lopez's present testimony and his past

testimony, we must resolve the conflict between his present testimony and the

past testimony of his plea counsel, Attorney Erv Mclain, as well as the

statements of the prosecuting attorney, ADA Richard Pepper. As we summarized

in our prior Opinion of November 12, 2013:

     Attorney Mclain testified that there was no plea agreement for
     Lopez whatsoever prior to his testimony against the Defendant.
     (N.T. 9/24/13, p.32). In fact, he testified, the prosecutor laughed
     at him when he broached the subject; the Commonwealth already
     had a great deal of evidence against Lopez, in the form of his own
     admissions, which he had giveri to the investigating detective prior
     to retaining Attorney Mclain. (N.T. 9/24/13, pp.33-34, 38). Mclain
     said that he told Lopez that he was at the mercy of the
     Commonwealth, and that while Mclain hoped the Commonwealth
     would offer Lopez a negotiated plea as a result of his cooperation,
     there was no such promise made. (N.T. 9/24/13, pp.36-37).

Furthermore, Attorney Mclain indicated to the Court at the time of Lopez's

guilty plea that no agreement had been reached in connection with his

cooperation prior   to   his   testimony   against Defendant and      Echevarria.

(Commonwealth v. Lopez, CP-48-CR-2008-792, N.T. 11/19/10, p.3). Attorney

                                   Page 9 of 18
Pepper indicated for the Commonwealth that this was correct. Id. Were we to

believe Lopez's present version of events, would be required to wholly disregard

the testimony of these two officers of the Court and find that they had both

perjured themselves.

      While Lopez's testimony on the present occasion is supported by the

testimony     of Sharon Williams, her testimony that Lopez's statements were

consistent with his present testimony         is of no value if we find his present

testimony not to be credible, as we have done. Furthermore, we found Ms.

Williams herself to be less than reliable, given her embellishment of her role as

an employee of the Pennsylvania State Police, and her apparent lack of respect

for the authority of the Court, as she testified that she had received a subpoena

to testify at Defendant's first PCRA hearing and failed to appear because she

had not been paid. (N.T. 2/11/16,        pp.41, 46, 48-50). We further find Ms.

Williams'    testimony   to   be unreliable     given   that   she clearly   lacked an

understanding of the facts of the case when interviewing Lopez, as she was

evidently of the impression that Lopez had pied to first degree murder and

expected to withdraw that plea in exchange for testimony against Defendant.

(PCRA Ex. 2). The record in Lopez's case clearly shows that such a plea never

took place.

      Defendant     argues that    additional    evidence of record supports       his

contention    that Lopez's previous claims that he had no "deal"              with the

Commonwealth were false. In his brief, he points to the following: (a) Attorney

                                    Page 10 of 18
Mischak testified on February 11, 2016 that, prior to trial, Defendant was

offered consideration for testifying against others involved in the robbery; (b)

Lopez was incarcerated for approximately three years before pleading guilty;

and (c) statements were made by the Court and counsel at Lopez's plea to the

effect that   Lopez had cooperated in the prosecution of Defendant and

Echevarria and was being offered some consideration for that fact. (N.T.

2/11/16,   pp.26-28;   Commonwealth      v.   Lopez, CP-48-CR-2008-792, N.T.

11/19/10, pp.2-4). We disagree that these factors require the.conclusion that

the Commonwealth withheld impeachment evidence regarding Lopez.

      While it is true that Lopez was offered consideration for his assistance in

the prosecution of Defendant and Echevarria, the record belies Defendant's

contention that an agreement was made prior to his testimony. To the contrary,

all that this evidence shows is that the Commonwealth had significant evidence

against Lopez and it used that fact to its advantage by waiting to prosecute him

until after his testimony, and that it later chose to give him consideration for

this helpful testimony, in lieu of proceeding to a third trial. Unlike Defendant,

Lopez gave numerous incriminating statements to police prior to retaining Mr.

Mclain, thereby making it wholly unnecessary for the Commonwealth to

negotiate a plea with Lopez to gain his cooperation.         The fact that the

Commonwealth ultimately elected to permit Lopez to plea to a lesser offense

and receive a sentence that will see him released from prison well into his

retirement years is not evidence that there were negotiations prior to his

                                  Page 11 of 18
testimony. As Attorney Mclain testified, Lopez found himself at the mercy of the

Commonwealth, given their evidence against him, and he evidently elected to

cooperate in hopes of ingratiating himself with ADA Pepper.

         At best, the record illustrates that Lopez's attorney instructed him to

cooperate with the Commonwealth, that Lopez had an unreasonable expectation

of what that cooperation would garner him, and that he is dissatisfied that those

expectations did not come to fruition. In the absence of any credible testimony

that there was any understanding between Lopez and the Commonwealth, we

are left with nothing more than Defendant's supposition that a promise was

made to Lopez in exchange for his testimony, which supposition alone cannot

form the basis for a valid Brady claim. Commonwealth v. Champney, 832 A.2d

403 (Pa. 2003).

         Even if we were to credit Lopez's present testimony, we would not find

that it forms a proper basis upon which to grant Defendant PCRA relief. Not only

must     impeachment      evidence have been concealed in order to entitle a

defendant      to   a   new trial,   that    undisclosed     evidence must     have    been

constitutionally material. "[I]mpeachment          evidence is material, and thus subject

to obligatory disclosure, if there is a reasonable probability that had it been

disclosed the outcome of the proceedings would have been different." Strong,

supra,    at   1174. "A 'reasonable         probability'   is a probability   sufficient   to

undermine confidence in the outcome" of the trial." United States v. Bagley, 473

U.S. 667, 683 (1985). We must make this assessment in consideration of the

                                       Page 12 of 18
totality of the circumstances of the evidence offered at Defendant's trial. Id.

"The mere possibility that an item of undisclosed information might have helped

the defense, or might have affected the outcome does not establish materiality

In the constitutional sense." Commonwealth v. McGill, 832 A.2d 1014, 1019 (Pa.

2003). The relevant inquiry is "whether in [the] absence [of the impeachment

evidence] he received a fair trial,     understood as a trial resulting in a verdict

worthy of confidence." Kyles v. Whitley, 514 U.S. 419, 434 (1995). We note

that Defendant has failed to address this issue in his brief, concluding his

arguments     after   contending that    the   record reflects that there   was an

understanding between Lopez and the Commonwealth of which Brady required

disclosure.

      Considering all of the evidence offered at Defendant's trial, we cannot

come to the conclusion that there is a reasonable probability that the outcome

of the trial would have been different if the alleged impeachment evidence had

been presented to the jury. While Lopez was an important witness in identifying

Defendant as one of the perpetrators           of the July 26, 2007 robbery, his

testimony was not crucial to Defendant's conviction, as there was a significant

amount of other evidence to support it. See Commonwealth v. Buehl, 658 A.2d

771 (Pa. 1995) (prosecution's failure to reveal potential bias of witnesses who

had pending criminal charges did not entitle defendant to a new trial where

there was sufficient other evidence to support the conviction, outside of those

witnesses' testimony). Cf. Giglio v. U.S., 405 U.S. 150, 154 (1972) (defendant

                                   Page 13 of 18
entitled to new trial where evidence of an agreement     not to prosecute had been

withheld     regarding the state's witness without whom "there could have been no

indictment     and no evidence to carry the case to the jury");   Commonwealth v.

Galloway, 640 A.2d 454, 459 (Pa. Super. 1994) (reliability of witness was

determinate of verdict, as she "was the only witness to state that she saw [the

defendant] possess and shoot a gun" and thus the defendant was entitled to a

new trial where impeachment          evidence regarding that witness had been

withheld). Moreover, his credibility was tested when the jury learned that he

was facing charges identical to those that Defendant faced. Lopez was examined

on that occasion as follows on direct examination:

      Q:        Mr. Lopez, you're currently in prison[,] correct?
      A:        Yes.
      Q:        You're charged with this homicide[,] are you not?
      A:        Yes, I am.
      Q:        Along with a number of other offenses, robbery and
                aggravated assault and so on[,] correct?
       A:       Yes, I am, sir.
       Q:       Your lawyer is in the courtroom. Is he not?
       A:       Yes.
       Q:       Have you made any deals with anybody about what you're
                going to get in your case in exchange for your testimony?
       A:       No. I'm charged the same.
       Q:       My office offered you absolutely nothing?
       A:       No, sir.
       Q:       Mr. McLain, your lawyer, distinguished lawyer, been around
                quite some time, he's gotten nothing for you[,] has he?
       A:       No.
       Q:       No deals, nothing?
       A:       Nothing.
       Q:       You're still facing life imprisonment on this charge?
       A:       Yes.

(N.T. 5/14/09, pp.28-29). Lopez was then cross-examined as follows:

                                     Page 14 of 18
      Q:    You realize under oath that by admitting to that plan, you're
            admitting to the charge of second degree murder?
      A:    Yes.
      Q:    And you're aware that second degree murder carries a life
            sentence?
      A:    Yes.
      Q:    And you're telling the ladies and gentlemen under oath that
            despite the fact that you're admitting to a crime that carries a
            mandatory life sentence, you have no deal with the
            Commonwealth?
      A:    I don't.
      Q:    No understanding that they're going to cut you a big break
            after you're testifying in this case?
      A:    I don't.
      Q:    That's something you never brought up with your seasoned
            attorney whatsoever?
      A:    No. He told me to tell the truth. That's it.
      Q:    And he told you by testifying here in this case that you're not
            going to get that life sentence. You're going to get something
            substantially less?
      A:    He never told me.
      Q:    You told your cell mate not too long ago that you're
            expecting to get as low as 10 years on this case, didn't you?
      A:    No, never.

(N.T. 5/14/09, pp.31-32). Thus, the jury was well aware that Lopez was facing

substantial charges in connection with the armed robbery, and were able to use

that information in evaluating whether he had any bias or interest that would

flavor his testimony, as they did when evaluating the testimony of all of the

witnesses presented.

      In identifying Defendant at trial, Lopez testified that he had arranged for

a man he knew as Chucho, from           Philadelphia, to assemble some other

individuals to execute the robbery from Garcia's home. He testified that he had

never spoken to Defendant before, but that he met him on the night in question


                                  Page 15 of 18
prior to the robbery, and had a good opportunity to view the face of the

Defendant, who was riding in the front passenger seat of a van, while he

discussed the evening's plans with Chucho, Defendant, and the third individual

whose identity    remains unknown.       (N.T. 5/14/09,   pp.15-19.)   After this

discussion took place, the four men assumed their respective positions around

the Garcia property and waited for a lengthy period before the robbery took

place, during which time Lopez was not with Defendant. (N.T. 5/14/09, pp.19-

21). Lopez observed Defendant initiating the robbery from afar while he hid in

the tree line, as well as fleeing from the Garcia home afterwards, arid had no

contact with him after the robbery. (N.T. 5/14/09, pp.14, 21-24). While this

testimony was important in identifying Defendant at trial, it was not essential to

the Commonwealth's case, as there was ample other evidence linking him to

the crimes charged.

      In addition to the identification testimony by Lopez, the Commonwealth

offered the testimony of Garcia, one of the victims in the case. Garcia identified

Defendant at trial as one of the perpetrators, testifying that he had had no

difficulty in viewing the faces of the two black men with guns who approached

him on the pool deck and later escorted him into his home and committed the

crimes detailed above. (N.T. 5/12/09, pp.29-34). He further testified that he

had identified Defendant in a photo lineup during a police interview following

the robbery. (N.T. 5/12/09, p.47)




                                    Page 16 of 18
      Perhaps the most important evidence linking Defendant to the crimes in

this case was not the testimonial evidence from Lopez and Garcia, but evidence

relating to the use of Defendant's cellular phone. In questioning Detective Mark

Diluzio,   the lead investigator in the case, the Commonwealth presented

evidence of the records of a cell phone that was assigned to and paid for by

Defendant. (N.T. 5/14/09, p.132). The evidence presented, through testimony

and maps, showed that said phone connected with cell towers in a route from

Philadelphia, where Defendant resided, to Bethlehem, where the robbery took

place, in the hours prior to the robbery; that the phone connected with cell

towers in Bethlehem prior to and around the time of the robbery; and that it

connected with cell towers travelling back to Philadelphia from Bethlehem just

after the robbery took place. (N.T. 5/14/09, pp.133-147). The phone was never

reported stolen. (N.T. 5/14/09, pp.134-135). Moreover, the records indicated

that said phone exchanged numerous calls with Lopez's phone in the days

leading up to the robbery. (N.T. 5/14/09, pp.137-140).

      As an additional matter of circumstantial evidence, one of the female

victims of the robbery told police that one of the black male perpetrators had

been wearing stained Timberland boots and, during the course of their

investigation of this matter, police recovered a pair of stained Timberland boots

from Defendant's home, which tested positive for human blood. (N.T. 5/14/09,

pp.85-89). The amount of blood on the boot was insufficient for DNA analysis,

but was determined to be human. (N.T. 5/14/09, p.88). In addition, police

                                  Page 17 of 18
recovered some old currency from a safe at Defendant's home. (N.T. 5/14/09,

p.170). While Garcia was not able to identify any of those items as being his,

the items were consistent with items that Garcia had reported as stolen

following the robbery. (N.T. 5/14/09, p.171).

      Taking all of this evidence together, we cannot conclude that even the

complete absence of Lopez's identification testimony would make a different

verdict in this case reasonably probable. Where such a reasonable probability

does not exist, a defendant is not entitled to relief on Brady grounds.   See. e.g .•
Bagley, supra. Accordingly, we find that Defendant's amended PCRA petition

must be denied.

      WHEREFORE, we enter the following:




                                  Page 18 of 18
