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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    EDWARD D. WILSON                           :
                                               :
                       Appellant               :      No. 1556 WDA 2019

         Appeal from the Judgment of Sentence Entered July 18, 2019
             in the Court of Common Pleas of Armstrong County
            Criminal Division at No(s): CP-03-CR-0000647-2018

BEFORE: LAZARUS, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                               FILED JULY 29, 2020

        Edward D. Wilson (“Wilson”) appeals from the judgment of sentence

imposed following his convictions of one count each of aggravated assault and

simple assault.1 We affirm.

        On the evening of July 8, 2018, Chad Bennett (“Bennett”), his ex-

girlfriend, Crystal Johns (“Johns”), and friend, Justin Batten (“Batten”), were

drinking at the Hot Spot bar in Kittanning, Pennsylvania. At approximately

1:30 a.m. on July 9, 2018, Bennett, Batten, and Johns left the Hot Spot and

drove to the house of Johns’s aunt. When they arrived at the house, Johns

went inside while Bennett and Batten waited for her to return.

        At some point, Johns exited the house and began looking for something

in her car. While Bennett and Batten were waiting, Wilson arrived at the house

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1   18 Pa.C.S.A. §§ 2702(a)(1), 2701(a)(2).
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on a tractor. Wilson got off of the tractor, ran towards Johns, and struck Johns

in the face several times. Bennett saw Wilson strike Johns, shouted at Wilson

and walked towards him.          Wilson and Bennett approached each other and

began fighting. Some time thereafter, Batten broke up the fight. Batten and

Bennett discovered that Bennett had suffered a large gash wound from his

sternum to his stomach, and Bennett’s intestines were visible. No one saw

any weapons or sharp objects, and none were recovered.                Bennett was

transported to the hospital, and had several feet of his intestines removed as

a result of his injuries.

       A jury subsequently convicted Wilson of the above-mentioned crimes.

The trial court deferred sentencing for the purposes of preparing a pre-

sentence investigation report. On April 12, 2018, prior to sentencing, Wilson

filed a Post-Trial Motion alleging that the Commonwealth committed a Brady2

violation and requesting a new trial.          Specifically, Wilson argued that the

Commonwealth had failed to disclose the “Agreement to Classify Case as




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2  See Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that the
prosecution must disclose evidence favorable to the accused that is material
either to guilt or punishment).

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Inactive” (“Inactive Agreement”),3 which the Commonwealth used to secure

Bennett’s testimony against Wilson. The trial court considered the Motion to

be a premature post-sentence motion and deferred ruling until after Wilson’s

sentencing.

       On July 18, 2019, the trial court sentenced Wilson to a term of 10 to 20

years in prison for the aggravated assault conviction, with credit for time

served, plus fines and costs. The trial court imposed no further penalty for

Wilson’s conviction of simple assault.


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3 In its Memorandum and Order, the trial court explained the unique practice
of inactive status and inactive agreements in Armstrong County.           “In
Armstrong County, inactive status operates a[s a] general continuance of a
case, pending some action that causes the case to be placed back on active
status.” See Post-Sentence Motion Memorandum and Order, 9/20/19, at 3.
Further, “[i]nactive agreements are not a matter of public record.” Id. The
original copy of the agreement are retained by the Court Administrator until
active status is resumed, at which point the Court Administrator discards the
original agreement. Id. Additionally, the Commonwealth keeps a physical
copy of any inactive agreements. Id.

      On July 21, 2017, prior to the filing of charges against Wilson in the
instant case, Bennett was charged in a separate case with drug-related
offenses. The Commonwealth and Bennett subsequently entered into the
Inactive Agreement. As a result, Bennett’s case was placed on inactive status
pending the outcome of Wilson’s trial. The trial court found that, pursuant to
the Inactive Agreement, Bennett waived his Pa.R.Crim.P. 600 speedy trial
rights and his right to assert the applicable statute of limitations “as
consideration for being placed on [i]nactive [s]tatus.” Id. at 3. The Inactive
Agreement further specified that Bennett’s case would remain inactive “until
[Wilson’s] matter is finalized.” Id. At some point, the Commonwealth
provided discovery materials to Wilson, but did not include a copy of, or
otherwise mention, the Inactive Agreement. Id. at 3-5. Ultimately, Wilson
was not made aware of the Inactive Agreement until post-sentence
proceedings. Id.


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       On July 24, 2019, Wilson filed a Supplemental Post-Sentence Motion, in

which he incorporated the Brady claim, and included a list of witnesses to

testify about the Inactive Agreement.            The trial court conducted a Post-

Sentence Motion hearing on September 6, 2019. On September 20, 2019,

the trial court issued a Memorandum and Order denying Wilson’s Motion for

failure to establish the prejudice requirement of Brady. Thereafter, Wilson

filed a timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise

Statement of errors complained of on appeal.

       Wilson now raises the following issues for our review:

       1. Whether the trial court erred in failing to grant a new trial based
       on the violation of Brady v. Maryland and [Pa.R.Crim.P.]
       573(B)(1)[,] where the Commonwealth purposely withheld
       evidence affecting a witness’[s] credibility and such evidence was
       material and prejudicial in the finding of guilt of [Wilson]?

       2. Whether the trial court erred in imposing an illegal sentence by
       improperly applying 42 Pa.C.S.A. §[]9714 and its three[-]strike
       enhancement?

Brief for Appellant at 7 (issues renumbered; some capitalization omitted).4

       In his first claim, Wilson argues that the trial court erred when it denied

his Motion requesting a new trial based upon the alleged Brady violation. Id.

at 14. Wilson asserts that the Commonwealth withheld its Inactive Agreement

with Bennett. Id. at 15. Wilson contends that the Inactive Agreement was

used to secure Bennett’s testimony against Wilson in exchange for an

____________________________________________


4 Wilson has withdrawn the second issue in his brief, and does not address
this claim in the Argument section of his brief. Accordingly, we will not review
this claim.

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unspecified, but more favorable, sentence for Bennett.            Id. at 15-16.

Additionally, Wilson alleges that the Inactive Agreement would have been

used to impeach Bennett at trial because Bennett did not want to testify

against Wilson until after Bennett had entered into the Inactive Agreement.

Id. at 13-14.    Wilson acknowledges that Batten also testified about the

altercation, but claims that the suppression of the Inactive Agreement

prejudiced him because “[w]ithout Bennett’s testimony, the testimony

provided would not have been ample to convict Wilson of any of the

offenses[.]” Id. at 18-20.

      Our Supreme Court has explained that

      in order to establish a Brady violation, a defendant must show
      that: (1) the evidence was suppressed by the state, either willfully
      or inadvertently; (2) the evidence was favorable to the defendant
      either because it was exculpatory or because it could have been
      used for impeachment; and (3) the evidence was material, in that
      its omission resulted in prejudice to the defendant. However, the
      mere possibility that an item of undisclosed information might
      have helped the defense, or might have affected the outcome of
      the trial, does not establish materiality in the constitutional sense.
      Rather, evidence is material only if there is a reasonable
      probability that, had the evidence been disclosed to the defense,
      the result of the proceeding would have been different. A
      reasonable probability is a probability sufficient to undermine
      confidence in the outcome.

Commonwealth v. Williams, 168 A.3d 97, 109 (Pa. 2017) (citations,

quotation marks, and brackets omitted).       Further, “[t]o obtain a new trial

based on the Commonwealth’s failure to disclose evidence affecting a

witness’s credibility, the defendant must demonstrate that the reliability of the

witness may be determinative of the defendant’s guilt or innocence.”

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Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014). “Therefore, even

if the first two prongs have been established, a defendant must establish that

he was prejudiced by the failure to disclose.” Commonwealth v. Pugh, 101

A.3d 820, 825 (Pa. Super. 2014) (en banc).

      Instantly, the trial court concluded that Wilson had failed to establish

prejudice resulting from the nondisclosure of the Inactive Agreement with

Bennett. See Post-Sentence Motion Memorandum and Order, 9/20/19, at 15.

In denying Wilson’s claim, the trial court stated the following:

            Despite the fact that the Inactive Agreement was itself a
      benefit conferred on Bennett and that it was not disclosed by the
      Commonwealth, [] the agreement was not so material and
      exculpatory that it undermined confidence in the ultimate verdict.
      … [A]t issue in this case was not whether [Wilson] and Bennett
      were engaged in a fight at all or whether Bennett’s injuries were
      caused by the fight.      There was ample medical testimony
      regarding Bennett’s injuries and another eyewitness, [Batten],
      corroborated Bennett’s testimony. Further, the jury acquitted the
      defendant of the aggravated assault charge related to the use of
      a deadly weapon, most likely because it did not find sufficient
      evidence in the record identifying such a weapon. Bennett
      admitted in his testimony that he did not recall seeing[,] at any
      time[,] a knife or other sharp implement utilized by [Wilson].
      Even without Bennett’s testimony, there was ample evidence
      introduced at trial to support the jury’s verdict. See Tharp[,
      supra.]

                                 *      *     *

            Given the other evidence establishing [Wilson]’s guilt, [] the
      existence of the Inactive Agreement was [not] so material to
      Bennett’s credibility and [Wilson]’s guilt that its absence from trial
      undermines the reliability of the verdict. On that basis, [Wilson]
      has not established all of the requisite elements of a [Brady]
      claim[.]




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Id. at 13-15 (some citations omitted). We agree with and adopt the reasoning

of the trial court, in rejecting this claim. See id; see also Pugh, supra.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/29/2020




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