J-A25026-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

BRANDON TREMAYNE PIERCE

                            Appellant                 No. 2452 EDA 2013


         Appeal from the Judgment of Sentence of February 13, 2013
            In the Court of Common Pleas of Montgomery County
              Criminal Division at No.: CP-46-CR-0007038-2011


BEFORE: DONOHUE, J., WECHT, J., and PLATT, J.*

MEMORANDUM BY WECHT, J.:                          FILED NOVEMBER 03, 2014

       Brandon Pierce appeals his February 13, 2013 judgment of sentence.

We affirm.

       On November 14, 2012, a jury convicted Pierce of, inter alia, first-

degree murder, 18 Pa.C.S. § 2502(a).           In its March 7, 2014, Pa.R.A.P.

1925(a) opinion, the trial court summarized the evidence that was presented

at Pierce’s murder trial as follows:

       On Wednesday, July 20, 2011 at 12:02 [a.m.], Norristown police
       responded to a call of a shooting in the area of Green and East
       Basin Streets. Upon arrival, the police found sixteen[-]year[-
       ]old Dominique Devlin (“Dominique”) suffering from multiple
       gunshot wounds. She was transported to nearby Montgomery
       Hospital where she was pronounced dead at 12:32 [a.m.]


____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
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     Shortly before the shooting, between 11:30 [p.m.] on the prior
     evening and midnight [on] July 20, 2011, Glenda Baez (“Baez”)
     was with several friends in the backyard of a home in the 1100
     block of Green Street. From there, she saw Dominique flirting
     with a black male while standing at the rear of a 1992 Ford
     Probe parked on Basin Street. After a short time, Dominique
     and the male walked down an alley that runs between and
     parallel to Dekalb and Green Streets. Within a few minutes of
     their walking into the alley, Baez heard three gunshots. She
     then saw Dominique run out from behind a brick building where
     she collapsed.    Baez did not see the black male after the
     shooting. Baez’s testimony was echoed by another witness,
     Stephanie Bolger, who likewise saw Dominique by the Ford
     Probe with a black male with whom she walked into the alley off
     Basin Street. After which and within minutes, Bolger heard
     gunshots [and] a scream, and saw Dominique run from the alley
     and collapse.

                                *     *     *

     At the crime scene, police followed the blood trail left by
     Dominique to the end of the alley where they found two chairs
     facing each other. Along the nearby walkway of Dekalb Street[,]
     police recovered a Mauser 6.39 semi-automatic handgun as well
     as a spent .25 [Automatic Colt Pistol (“ACP”)] shell case.
     Detective John Finor (“Det. Finor”), a ballistics expert, confirmed
     that the Mauser has the capacity to fire .25 ACP ammunition,
     and that both the projectiles recovered from Dominique’s body
     and the shell case from the scene were fired by the Mauser. In
     short, it was the murder weapon. Close by the handgun, police
     recovered a dark Adidas brand T-shirt, a running pants set, a
     dark Villanova University baseball cap, and a plastic bottle
     containing bleach. The T-shirt and baseball cap were wet with
     bleach     which,   according   to    Laura     M.   Cronin,     the
     Commonwealth’s expert in forensic biology, is known to destroy
     DNA. Police also recovered a cell phone later determined to be
     Dominique’s.      Two witnesses, Jerome Purdy and Shamar
     Benjamin (“Benjamin”), saw and spoke with Dominique shortly
     before she was murdered. Dominique told both that she was
     heading to meet her ex-boyfriend, Brandon Pierce. Benjamin
     walked with Dominique toward the crime-scene where
     Dominique told Benjamin she was meeting [Pierce].                  A
     fingerprint taken from the Ford Probe (whose owner testified he
     did not know [Pierce] and [Pierce] had never been in his car)
     matched [Pierce’s] print. DNA found on the black Adidas pants,

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     black Adidas shirt, Villanova baseball cap, and gun grips of the
     murder weapon was consistent with [Pierce’s] DNA.          Most
     damning in this regard were the admission of cell phone records
     and texts exchanged between Dominique and [Pierce] which
     confirmed their plan to meet that night at the time and place of
     the murder[,] ostensibly for a sexual encounter.

     The evidence also revealed that, a few weeks before the
     murder[,] on July 6, 2011, there was a home invasion robbery of
     [Pierce’s] home, during which shots were fired at [Pierce]. As a
     result of which, [Pierce] moved from his house and was taken in
     by a friend’s family. One of the residents of that house, Jamil
     Harrell (“Harrell”), was away for a few days and returned to find
     [Pierce] living in the house. [Pierce] told Harrell of the home
     invasion and that the robbery was orchestrated by Dominique.
     He went on to tell Harrell, “[T]he bitch Dom tried to set me up,
     but she going to pay” at which point he pulled out a small semi-
     automatic pistol from his pocket which Harrell identified as the
     Mauser used to kill Dominique. Harrell also identified the shirt
     and baseball cap found at the scene as identical to clothing worn
     by [Pierce]. A number of witnesses, including Harrell, saw
     [Pierce] walking away from the scene of the murder shortly after
     the murder. At that point, these witnesses say, [Pierce] was
     wearing cargo shorts, a black T-shirt, and black shoes. These
     witnesses also say that when they saw [Pierce] shortly after the
     murder he was acting out of character.

     As part of this mountain of evidence, the Commonwealth called
     Cory Collins (“Collins”) who corroborated Harrell’s testimony as
     to [Pierce’s] motive and [Pierce] being in possession of the
     murder weapon. Collins also testified that [Pierce] told him [that
     Pierce] had committed the murder in retaliation for the home
     invasion robbery, and repeated details of the murder as related
     to him by [Pierce]. In response, the defense vigorously attacked
     Collins’ credibility.  The defense exploited Collins’ admitted
     failure to come forward to police with [Pierce’s] damning
     admissions and other information until after Collins himself had
     been arrested in Conshohocken, Montgomery County.             The
     defense emphasized that, as a result of that arrest, Collins was
     facing serious charges including carrying a firearm (a loaded
     Glock 9mm) without a license, disorderly conduct, and DUI—all
     carrying mandatory prison sentences—for which Collins entered
     into a proffer with the Commonwealth wherein the
     Commonwealth promised not to seek the mandatory sentences
     in exchange for his cooperation.

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     The defense was also permitted, over the Commonwealth’s
     objection, to bring out in cross-examination that[,] a year after
     that first gun charge, Collins had an open case in Philadelphia
     involving a litany of felony charges, including aggravated assault
     and kidnapping. In addition, the defense was permitted to
     confront Collings with the affidavit of probable cause in that
     case, which asserted that Collins forcibly refused to let his
     girlfriend leave his vehicle for several hours, repeatedly
     threatening her by putting a handgun in her mouth saying he
     “would blow her brains out” and that she would be “just another
     dead black bitch.” The defense further pointed out that while
     bail was originally $200,000.00, the Commonwealth later agreed
     to house arrest and then vacated the house arrest all together.
     The implication being that, notwithstanding the Montgomery
     County District Attorneys’ representations in the proffer letter
     that it had no control over the Philadelphia case, Colling was,
     indeed, getting favorable treatment in exchange for his
     cooperation and testimony. Finally, the defense also sought to
     impeach Collins with his prior inconsistent Grand Jury testimony.
     In short, the defense was flush with significant material evidence
     which placed Collins’ credibility in serious jeopardy.

                               *     *     *

     [Pierce took the stand in his own defense.] [Pierce] recalled the
     night of Dominique’s murder. He had spent that afternoon
     buying drugs in Philadelphia with friends and then drinking and
     doing those drugs on the drive back to Norristown. According to
     [Pierce], he fell asleep around 5:00 [p.m.] and was awoken by a
     call from his girlfriend, Courtney Watson, around 11:00 [p.m.]
     that night. He also acknowledged having received a series of
     phone calls and text messages from Dominique, with whom he
     had remained sexually involved. [Pierce admitted that] he had
     set out to meet Dominique around 11:30 [p.m.] for a sexual
     encounter. . . .

     First, as it was the middle of July, [Pierce] conceded it was a
     “hot” summer night.       Notwithstanding that . . . [Pierce]
     acknowledged that he had been wearing multiple layers of
     clothing, including a tank top, a T-shirt, cargo shorts, a pair of
     sweatpants, as well as a baseball cap—all of which were dark
     colored.      Presumably attempting to capitalize on the
     Commonwealth’s evidence that [Pierce] had murdered
     Dominique in retaliation for her orchestration of an invasion and
     robbery of his home, the story . . . was that he was, yet again,

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     set up by Dominique—a victim and not a perpetrator as the
     Commonwealth had cast him.

     [Pierce] claimed that Dominique, under the guise of agreeing to
     meet him at the usual place for a sexual encounter, lured him
     into that fateful alley to be robbed by an unknown accomplice
     who, in a fit of rage over [Pierce] not having any money on him
     to steal, shot Dominique. In presenting this story the jury,
     however, [Pierce] admitted both that he was the male who was
     with Dominique in the alley when she was shot and that it was
     his clothing that was found at the scene of the murder covered
     in bleach.

     The details, as told by him, were that he and Dominique had
     been texting about getting together for Dominique to perform
     fellatio on him at the usual place where they would meet for
     such encounters—the alleyway where the murder took place.
     Once there, Dominique went to take his sweatpants down but he
     stopped her to first relieve himself. As he got up from the chair
     he was sitting on (he and Dominique had been sitting, facing
     each other on two chairs he had found) a man jumped out of the
     bushes and hit him over the head with a hard object. He
     continued:

       A: After I was hit with the object, I basically went down
       and pretended to be unconscious. I laid on my side, and I
       just sat still and let the person feel inside my pockets. My
       phone was pulled out of my pockets, and my pants were
       pulled off. And he kept touching me, I could hear him
       start saying things like, where the money at or where the
       bread at. And I was scared, so I didn’t say nothing. But I
       basically tried to listen to see what was going on as much
       as possible. I didn’t want to open my eyes and look to
       make it seem as if I was still around. I just -- I tried to
       avoid having a part to play in this situation as best as
       possible, so I just continued to stay down.

       Q: What happened after that?

       A: After a while, like he just kept repeating the same
       things. Then I heard her say out of her mouth that he
       always got money on him or something like that. And
       then it was just like -- he started getting frustrated and he
       started grunting. The next thing I know, I heard him say
       something, You nut ass bitch. And then I heard the first
       shot. And after the first shot I heard her scream. And

                                   -5-
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       then I could like feel her run by me. Almost by the way I
       was laying, it was like the way the wind shifted, I could
       feel her run by me. And after the first shot, her voice just
       continued to travel. And then I heard like three more
       shots. But her voice just continued to travel. I could hear
       her voice.

       So he picked me up and he sat me in the chair, he pulled
       my shirt off of me. After he pulled my [shirt] off of me, he
       poured bleach overtop -- well, he poured something
       overtop of my head. At the time I didn’t know what it was.
       I thought he pissed on me, truthfully. But after that, I had
       felt my hand raised up. And as I feel my hand raised up, I
       feel my hand touching something, and the next [thing] I
       know, I panicked and I pushed it forward and I ran out
       towards Dekalb street.

       And as I ran out towards Dekalb Street, I ran across the
       street and I looked back towards the way I was coming
       from. And after that, I just -- like I kept running until I
       got to Spruce Street. As I got to Spruce Street, I started
       walking. And as I was walking, I kept looking back and I
       kept looking back. And finally, I seen somebody start
       walking down the street. As I seen them walking down the
       street, they made a left. Coming down Dekalb, they made
       a left onto Spruce --

       Q: And where did you go?

       A: -- And walked in the alleyway. I just kept walking up
       Spruce Street.

       Q: Now, can you describe the individual that hit you on the
       side of your head?

       A: Truthfully, no.

       Q: Can you give me an approximate size of that individual
       compared to you?

       A: Bigger than me.

     To explain his DNA on the murder weapon, [Pierce] testified as
     follows:




                                  -6-
J-A25026-14


       A: After the conversation is basically when he continued to
       get frustrated. And that’s when I heard, you know, you
       nut ass bitch, and then I heard the shots.

       Q: And then what happened?

       A: And then after that, I continued -- I felt her like run by
       me. By the way I was laying down, she was sitting
       towards Green. So I guess as she got up, she ran by. And
       when she ran by, it was like I could feel her running by
       me, but I could keep hearing her voice travel as I heard
       the last three shots.

       Q: And then what happened to you?

       A: After that, I was placed into a chair, he pulled my shirt
       off, and he poured what I later found was bleach on me
       and placed something in my hand. He picked up my hand
       and at the time I didn’t know what it was, but putting two
       and two together after I heard the shots, I figured it was a
       gun, so I pushed it forward and just continued to run.

     [T]he Commonwealth’s evidence directly contradict[ed Price’s]
     version of the actual shooting. At trial, Dr. Walter Hofman (“Dr.
     Hofman”), the Montgomery County Coroner and an expert in the
     field of forensic pathology, testified that Dominique died as a
     result of two gunshot wounds to her chest—both of which were
     “fired from the front” and “went from front to back.”       More
     specifically, Dr. Hofman stated “[g]unshot number one was in
     the sternal notch. That’s the little cavity at the top of your
     breastbone.[”] While Dr. Hofman could not specifically confirm,
     based on his examination, whether Dominique was sitting or
     standing when she was shot, he did opine that the path of the
     bullet “from up to down, at an angle of about 30 degrees,”
     suggests she may have been leaning forward when struck. Dr.
     Hofman’s findings [were] consistent with the Commonwealth’s
     theory that [Pierce] first shot Dominique when she was still
     seated in her chair.

     “[G]unshot number two was right in the chest.” This gunshot
     wound to Dominique’s chest had “minimal deflection,” with an
     angle of about ten degrees, suggesting to Dr. Hofman that it
     struck Dominique when she was in a more upright position. He
     also found a third, atypical gunshot wound involving Dominique’s
     right little finger and another graze gunshot wound on her right
     third finger. Dr. Hofman’s findings [were] consistent with the

                                   -7-
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      Commonwealth’s theory that [Pierce] first shot Dominique as she
      sat in the chair, and again when she stood to flee holding her
      right hand up defensively.       Moreover, his findings directly
      contradict[ed Pierce’s] claim that the alleged robber had fired a
      second shot into Dominique’s back as she fled the scene.

Trial Court Opinion (“T.C.O.”), 3/7/2014, at 1-9 (emphasis in original;

footnotes and references to notes of testimony omitted).

      On February 13, 2013, the trial court sentenced Pierce to life

imprisonment on the first-degree murder conviction. On February 25, 2013,

Pierce timely filed a post-sentence motion, in which he alleged, inter alia,

that the Commonwealth withheld exculpatory information in violation of

Brady v. Maryland, 373 U.S. 83 (1963).         Specifically, Pierce contended

that the Commonwealth had not disclosed to him information that was

material to impeaching the credibility of Commonwealth witness Cory

Collins.

      On May 21, 2013, the trial court held a hearing on Pierce’s motion.

The following is a summary of the relevant testimony elicited at that

hearing:

      After being convicted, Pierce was placed on a bus returning to the jail,

on which Pierce engaged in a conversation with an individual named Darious

Andrews. Andrews related to Pierce that, at some point before Pierce’s trial,

he had participated in a conversation with his attorney, the assistant district

attorney (“ADA”) assigned to prosecute Pierce, and other individuals




                                     -8-
J-A25026-14



involved in the investigation and prosecution of Pierce regarding the charges

against Pierce.1      Andrews stated that, during that conversation, he had

conveyed to the ADA that Collins was a compulsive liar, and that Collins

frequented the area where the murder occurred but no longer does so.

       After the meeting, the ADA drafted and sent an email to Andrews’

attorney indicating that the ADA believed that the conversation may have

produced some information that may require disclosure under Brady’s

mandate. That email was never disclosed either to Pierce or his counsel.

       The ADA explained that, as part of a profane rant, Andrews had

referred to Collins as a “fucking snitch,” a “fucking liar,” and “a “fucking rat.”

However, the ADA claimed that Andrews never used the term “compulsive

liar.” Regardless, Andrews conveyed to the ADA that Collins was well-known

in the community as a “snitch.”

       Additionally, the ADA explained that, in the email that he sent to

Andrews’ counsel, the material that he was concerned might fall under

Brady’s purview was not the information pertaining to Collins’ reputation on

the street as a snitch.        Rather, the ADA was referring to the fact that

Andrews had denied seeing Pierce with a gun over a year prior to the murder

and to the fact that Andrews denied supplying Pierce with the murder


____________________________________________


1
      Allegedly, Andrews was brought to the attention of the ADA because
the police suspected that Andrews had provided Pierce with the weapon that
was used in the murder.



                                           -9-
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weapon. Upon consideration of the issue with other members of his office,

the ADA did not provide the information regarding Andrews denying seeing

Pierce with a gun to the defense. The fact that Andrews denied providing

Pierce with the weapon was disclosed in the form of grand jury testimony.

The ADA did not disclose to the defense in any form material regarding

Andrews’ allegations regarding Collins being a liar, and being so known in

the community.

      On May 31, 2013, the parties reconvened before the trial court to

present oral argument on Pierce’s motion. At the conclusion of the hearing,

the trial court directed the parties to file memoranda of law in support of

their respective arguments. On July 25, 2013, after the parties filed their

respective memoranda, the trial court entered an order denying Pierce’s

post-sentence motion.

      On August 22, 2013, Pierce timely filed a notice of appeal.           In

response, the trial court directed Pierce to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). On September 19,

2013, Pierce timely filed a concise statement. On March 7, 2014, the trial

court issued an opinion pursuant to Pa.R.A.P. 1925(a).

      Pierce raises one issue for our review: “Does a blatant, intentional

violation of Rule 573(b)(i)(a) of the Pennsylvania Rules of Criminal

Procedure [w]arrant a new trial or arrest of judgment[?]” Brief for Pierce at

4.




                                    - 10 -
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      Although Pierce identifies Rule 573 for the basis of his argument in his

question presented, except for citing the language of the rule at the

beginning of his argument, see Brief for Pierce at 8, Pierce focuses all of his

attention of his argument upon whether the ADA’s actions violated Brady.

      In Brady, the United States Supreme Court held that “suppression by

the prosecution of favorable evidence to an accused upon request violates

due   process   where   the   evidence    is   material   either   to   guilt   or   to

punishment . . . .” Brady, 373 U.S. at 87. Brady’s mandate is not limited

to pure exculpatory evidence; impeachment evidence also falls within

Brady’s parameters and therefore must be disclosed by prosecutors. U.S.

v. Bagley, 473 U.S. 667, 677 (1985).           However, “the prosecutor is not

required to deliver his entire file to defense counsel, but only to disclose

evidence favorable to the accused that, if suppressed, would deprive the

defendant of a fair trial.” Id. at 675.

      To 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. Dennis, 17 A.3d 297, 308 (Pa. 2011). The

burden rests with the defendant to “prove, by reference to the record, that

evidence was withheld or suppressed by the prosecution.” Commonwealth

v. Paddy, 15 A.3d 431, 451 (Pa. 2011). The withheld evidence must have

been in the exclusive control of the prosecution at the time of trial.               No

                                     - 11 -
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Brady violation occurs when the defendant knew, or with reasonable

diligence, could have discovered the evidence in question.     Similarly, no

violation occurs when the evidence was available to the defense from a non-

governmental source. Id.

     Instantly, Pierce contends that the Commonwealth violated Brady by

failing to disclose Andrews’ comments to the ADA that Collins was a liar, and

was well known as such in the community.       This information, undeniably

relevant to impeaching the credibility of Collins, one of the Commonwealth’s

key witnesses, falls squarely within Brady’s purview.        Bagley, supra.

Additionally, based upon our review of the record, it is clear that the

Commonwealth failed to disclose this information to the defense. There is a

question as to whether this information was within the exclusive province of

the Commonwealth such that Pierce could not have obtained it from a non-

governmental source. However, we need not answer this more complicated

question because, even if the information was within the Commonwealth’s

exclusive possession, we hold that Pierce nonetheless cannot demonstrate

that the evidence was material for Brady purposes, i.e., that he was

prejudiced by the Commonwealth’s failure to disclose the material.

     To demonstrate prejudice, “the evidence suppressed must have been

material to guilt or punishment.”   Commonwealth v. Gibson, 951 A.2d

1110, 1126 (Pa. 2008). Evidence is material under Brady when there is a

reasonable probability that, had the evidence been disclosed, the result of

the trial could have been different. Kyles v. Whitley, 514 U.S. 419, 433-34

                                    - 12 -
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(1995). “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.” Commonwealth

v. McGill, 832 A.2d 1014, 1019 (Pa. 2003) (quoting U.S. v. Agurs, 427

U.S. 97, 109-10 (1976)). The relevant inquiry is “not whether the defendant

would more likely than not have received a different verdict with the

evidence, but whether in its absence he received a fair trial, understood as a

trial resulting in a verdict worthy of confidence.”   Kyles, 514 U.S. at 434.

To prove materiality where the undisclosed evidence affects a witness’

credibility, a defendant “must demonstrate that the reliability of the witness

may well be determinative of [the defendant’s] guilt or innocence.”

Commonwealth v. Johnson, 727 A.2d 1089, 1094 (Pa. 1999).                   “A

reviewing court is not to review the evidence in isolation, but, rather, the

omission is to be evaluated in the context of the entire record.” Dennis, 17

A.3d at 309 (citing Commonwealth v. Small, 741 A.2d 666, 675-76 (Pa.

1999)).

      Here, Pierce cannot demonstrate materiality for Brady purposes for

two reasons. First, the evidence against Pierce was so overwhelming that

the introduction of additional impeachment evidence against a witness would

not have been determinative of Pierce’s guilt or innocence. Johnson, supra.

Second, as the trial court explained, Pierce already had a substantial amount

of impeachment information that he utilized against Collins during trial such




                                    - 13 -
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that it cannot reasonably be said that additional impeachment information

would have impacted the trial in any discernible way.

      We turn first to the overwhelming evidence against Pierce at trial. We

note that “[i]f there is no reasonable doubt about guilt whether or not the

additional evidence is considered, there is no justification for a new trial. On

the other hand, if the verdict is already of questionable validity, additional

evidence of relatively minor importance might be sufficient to create

reasonable doubt.”    Commonwealth v. Copenhefer, 719 A.2d 242, 259

(Pa. 1998) (citing Commonwealth v. Green, 640 A.2d 1242, 1245 (Pa.

1994)). Instantly, there is no reasonable doubt regarding Pierce’s guilt.

      The evidence at trial established that, through text messaging, Pierce

orchestrated a meeting between himself and the victim for the exact location

and at the same time at which the victim was observed before being

murdered.   The victim told two of her friends that she was going to meet

Pierce that evening. After the murder, Pierce’s fingerprints were found on

the Ford Probe, a car that witnesses described seeing the victim and an

unknown male standing near shortly before the murder. Pierce’s DNA was

recovered from the pants, shirt, and baseball cap, each of which were found

at the murder scene and doused with bleach, an agent used to destroy DNA.

Pierce was observed walking away from the murder scene wearing different

clothes than what he had on when he was initially sighted. Pierce admitted

that he wore two sets of clothes to the meeting with the victim.




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J-A25026-14



       Moreover, Pierce’s DNA was found on the grip of the weapon that was

determined to be the murder weapon. At trial, the Commonwealth alleged

that   Pierce   murdered   the   victim   in   retaliation   for   a   prior   home

invasion/robbery in which Pierce believed the victim had played a vital role.

Collins not only confirmed this motive at trial, but he also testified that

Pierce confessed to committing the murder and admitted that it was done in

retaliation for the robbery.

       Based upon the text messages, the DNA evidence, and Pierce’s

confession, the evidence was so overwhelming that no reasonable doubt

existed as to Pierce’s guilt to enable this Court to conclude that additional

evidence pertaining to Collins’ credibility was material for Brady purposes.

See Copenhefer, supra.

       We now turn to our second reason for concluding that Pierce has not

established materiality: Pierce already had in his possession and utilized at

trial an abundance of impeachment material against Collins, to the degree

that additional impeachment information would not have impacted the

verdict in any material way.     In support of this conclusion, we need only

reiterate the trial court’s description of Pierce’s cross-examination of Collins

at trial:

       As part of this mountain of evidence, the Commonwealth called
       Cory Collins (“Collins”) who corroborated Harrell’s testimony as
       to [Pierce’s] motive and [Pierce] being in possession of the
       murder weapon. Collins also testified that [Pierce] told him [that
       Pierce] had committed the murder in retaliation for the home
       invasion robbery, and repeated details of the murder as related
       to him by [Pierce]. In response, the defense vigorously attacked

                                     - 15 -
J-A25026-14


     Collins’ credibility. The defense exploited Collins’ admitted
     failure to come forward to police with [Pierce’s] damning
     admissions and other information until after Collins himself had
     been arrested in Conshohocken, Montgomery County.            The
     defense emphasized that, as a result of that arrest, Collins was
     facing serious charges including carrying a firearm (a loaded
     Glock 9mm) without a license, disorderly conduct, and DUI—all
     carrying mandatory prison sentences—for which Collins entered
     into a proffer with the Commonwealth wherein the
     Commonwealth promised not to seek the mandatory sentences
     in exchange for his cooperation.

     The defense was also permitted, over the Commonwealth’s
     objection, to bring out in cross-examination that a year after
     that first gun charge, Collins had an open case in Philadelphia
     involving a litany of felony charges, including aggravated assault
     and kidnapping. In addition, the defense was permitted to
     confront Collings with the affidavit of probable cause in that
     case, which asserted that Collins forcibly refused to let his
     girlfriend leave his vehicle for several hours, repeatedly
     threatening her by putting a handgun in her mouth saying he
     “would blow her brains out” and that she would be “just another
     dead black bitch.” The defense further pointed out that while
     bail was originally $200,000.00, the Commonwealth later agreed
     to house arrest and then vacated the house arrest all together.
     The implication being that, notwithstanding the Montgomery
     County District Attorneys’ representations in the proffer letter
     that it had no control over the Philadelphia case, Colling was,
     indeed, getting favorable treatment in exchange for his
     cooperation and testimony. Finally, the defense also sought to
     impeach Collins with his prior inconsistent Grand Jury testimony.
     In short, the defense was flush with significant material evidence
     which placed Collins’ credibility in serious jeopardy.

T.C.O. at 4-5.   Our review of the trial transcript confirms the trial court’s

characterization of Pierce’s cross-examination of Collins.   Hence, it is clear

that Pierce not only had the opportunity to vigorously challenge Collins’

credibility, but he readily accepted that opportunity. Nothing in the record

or in Pierce’s arguments suggests to us that the absence of even more



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impeachment material would have impacted the outcome of the trial, or that

the absence of this material alters our confidence in the verdict. See Kyles,

supra.

     For these reasons, Pierce has not demonstrated that the information

that the ADA failed to disclose to him was material for Brady purposes.

Consequently, his argument necessarily fails.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/3/2014




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