J-S50027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                            :     IN THE SUPERIOR COURT OF
 PENNSYLVANIA                               :          PENNSYLVANIA
                                            :
                   Appellant                :
                                            :
                                            :
              v.                            :
                                            :
                                            :     No. 2396 EDA 2016
 KAREEM JOHNSON

                 Appeal from the PCRA Order July 11, 2016
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0400722-2004


BEFORE:    PANELLA, J., RANSOM, J., and PLATT*, J.

MEMORANDUM BY PANELLA, J.                             FILED JANUARY 09, 2018

      The Commonwealth of Pennsylvania appeals the order entered in the

Philadelphia County Court of Common Pleas granting the discovery motion of

Appellee, Kareem Johnson in connection with his petition filed under the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. The order directed

the   Commonwealth     to   produce   the       Philadelphia   Police   department’s

investigative homicide file for an in camera review. We affirm.

      The relevant facts and procedural history of this case are as follows. On

April 28, 2006, following a first-degree murder conviction, Appellee was

sentenced to life without parole. On direct appeal, this Court affirmed

Appellee’s sentence and the Pennsylvania Supreme Court denied allocator.

Appellee filed a timely PCRA petition, which the PCRA court permitted to be

amended multiple times over the course of several years. In May 2015,


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S50027-17



Appellee   filed   a   motion   for   discovery   pursuant   to   the   PCRA.   The

Commonwealth objected, citing the extreme delay in Appellee’s motion and

the lack of exceptional circumstances as required for an order of discovery

under the PCRA. After several hearings on the motion, the PCRA court granted

Appellee’s motion and ordered the Commonwealth to deliver the police file

from the homicide investigation to its chambers for an in camera review of its

contents. The Commonwealth filed a timely motion to reconsider, through

which it raised, for the first time, its claim that the PCRA court’s discovery

order violated its investigative privilege. The PCRA court denied the motion.

This timely appeal follows.

      Prior to addressing the merits of the Commonwealth’s appeal, we must

first address Appellee’s allegation that the order before us is a non-appealable

interlocutory order. See Appellee’s Brief, at 1-5. The Commonwealth argues

the order is immediately appealable as an order overruling an assertion of

privilege. See Commonwealth’s Brief, at 1-3.

      An order is appealable, and thus subject to our review, if it is final,

interlocutory and appealable by right or permission, or collateral. See

Commonwealth v. Kennedy, 876 A.2d 939, 943 (Pa. 2005). See also 42

Pa.C.S.A. § 702(b); Pa.R.A.P. 311-313, 1311-12. Neither party contends the

order in question is a final order (It obviously is not.), and the trial court

denied the Commonwealth’s request to certify its appeal as interlocutory by

permission. Thus, we may only review the order if we find it to be a collateral

order.

                                        -2-
J-S50027-17


      An appeal from a collateral order may be taken as of right where
      the order is separable from and collateral to the main cause of
      action, the right involved is too important to be denied review,
      and the question involved is such that if review is postponed, the
      claim will be irreparably lost.

Kennedy, 876 A.2d at 943 (citing Pa.R.A.P. 313).

      “This court has held that discovery orders involving privileged

information are ... appealable as collateral to the principal action pursuant to

Pa.R.A.P. 313.” Commonwealth v. Makara, 980 A.2d 138, 140 (Pa. Super.

2009) (citation and internal quotation marks omitted). Thus, ordinarily, we

would have found that the discovery order involving privileged information

would be appealable as a collateral order. But, as the Appellee argues, see

Appellee’s Brief, at 1-3, the Commonwealth failed to assert a claim of privilege

prior to the entry of the discovery order, thus it cannot claim jurisdiction under

this particular legal principle. While we agree with the Appellee that the

Commonwealth’s failure to properly assert its claimed privilege precludes its

reliance on this rule of law, we nonetheless find that the order is appealable

as a collateral order.

      The discovery order here is clearly separable from the issue of whether

Appellee is entitled to a new trial under the PCRA. Further, in a case with a

similar fact pattern, Commonwealth v. Frey, 41 A.3d 605, 609 (Pa. Super.

2012), we found that the “issue of whether the Commonwealth must disclose

material related to an ongoing murder investigation implicates rights deeply

embedded in public policy.” We see no reason why this case would have any


                                      -3-
J-S50027-17


less impact on public policy rights, and thus find the right too important to be

denied review. Finally, if appellate review was postponed, the Commonwealth

would be required to immediately disclose the police’s investigative file—and

any later ruling finding that disclosure was improper would be moot. Thus, we

find that the discovery order in question is a collateral order, properly

presented for our review.

      Moving to the issues raised on appeal, the Commonwealth contends the

PCRA court erred in ordering an in camera review of the police’s investigative

homicide file. See Commonwealth’s Brief, at 5, 19-36. Specifically, the

Commonwealth alleges this discovery order was entered in violation of the

PCRA mandate of finding “exceptional circumstances” prior to ordering

discovery and of the Commonwealth’s investigative privilege. See id.

            In PCRA proceedings, discovery is only permitted upon leave
      of court after a showing of exceptional circumstances. 42
      Pa.C.S.A. § 9545(d)(2); Pa.R.Crim.P. 902(E)(1). The PCRA and
      the criminal rules do not define the term “exceptional
      circumstances.” Rather, it is for the trial court, in its discretion, to
      determine whether a case is exceptional and discovery is therefore
      warranted.

            We will not disturb a court’s determination regarding the
      existence of exceptional circumstances unless the court abused its
      discretion. An abuse of discretion is not a mere error in judgment.
      Instead, it is a decision based on bias, ill will, partiality, prejudice,
      manifest unreasonableness, or misapplication of law. Moreover,
      we recall that the appellant has the duty to convince us an abuse
      occurred.

Frey, 41 A.3d at 611 (some internal citations omitted).




                                        -4-
J-S50027-17



      We have reviewed the briefs of the parties and the certified record

pursuant to this standard, and conclude that the opinion authored by the

Honorable Teresa M. Sarmina ably addresses the issues raised by the

Commonwealth on appeal. See Trial Court Opinion, 12/20/16, at 9-24. We

therefore adopt its cogent reasoning as our own, and affirm on that basis.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/9/18




                                    -5-
                                                                                                                 Circulated 12/12/2017 02:37 PM




                             PHILADELPHIA COURT OF COMMON PLEAS
                                   CRIMINAL TRIAL DIVISION

    COMMONWEALTH

                                                                                                 CP-51-CR-0400722-2004
                 v.
                                         CP-51-CR-0400722-2004 Comm.   v.   Johnson, Kareem
                                                            Opinion



    KAREEM JOHNSON

    Sarmina,J.
                                               II I
                                             II II II I 111111111111111
                                                     7880057541
                                                                                                    FJLED
    December 20, 2016                                                                                DEC 2 0 2016
                                                           OPINION                              Crirtunat Appeals Unit
                                                                                              First Judicial District of PA
PROCEDURAL HISTORY:

           On March 16, 2006, following a bench trial' before the Honorable Jane Cutler Greenspan,

Kareem Johnson (hereafter, petitioner) was convicted of murder of the first degree (H-1 ),

aggravated assault (F-1), carrying a firearm without a license (VUFA) (F-3), criminal conspiracy (F-

1), and possessing instruments of crime (PIC) (M-1).2 On April 28, 2006, following receipt and

review of pre-sentence and mental health reports, the trial court imposed a sentence of life

imprisonment without parole for the first degree murder conviction. 3 On May 11, 2006, petitioner

filed a post-sentence motion for relief which was denied by the trial court on July 5, 2006. On

October 18, 2007, Superior Court affirmed petitioner's judgment of sentence." On May 14, 2008,

our Supreme Court denied al!ocatur.5


1
    Petitioner was tried alongside co-defendant Kennell Spady.

2   18 Pa.C.S. §§ 2502, 2702, 6106, 903, and 907(a), respectively.

3
  As to the conviction for aggravated assault, petitioner was sentenced to a concurrent term of not less than ten nor
more than twenty years in prison. As to the conviction for VUFA, petitioner was sentenced to a consecutive term of
three and a half to seven years in prison. As to the conviction for criminal conspiracy, petitioner was sentenced to a
consecutive term of twenty to forty years in prison. As to the conviction for PIC, petitioner was sentenced to a
concurrent term of one to five years in prison. Trial Court Opinion, 7 /13/06, at 1-2.

4
    Commonwealth v. Johnson, No. 1892 EDA 2006, slip op. (Pa.Super., Oct. 18, 2007) (memorandum opinion).

5
    Commonwealth v. Johnson, No. 604 EAL 2007, slip op. (Pa. May 14, 2008).
            On October 8, 2008, petitioner filed a petition pursuant to the Post-Conviction Relief Act

(PCRA),6 prose. This matter was assigned to this Court on August 25, 2009.7 On September 11,

2009, Michael Gonzales, Esquire and Amy Donella, Esquire, of the Federal Community Defender

Office, appeared before this Court as counsel for petitioner and requested additional time to file an

amended PCRA petition. Following several continuances, petitioner filed an amended petition on

February 19, 2014, and an appendix thereto on July 18, 2014. On January 29, 2015, the

Commonwealth filed a Motion to Dismiss.

             On May 18, 2015, petitioner filed a Motion for Discovery, seeking 121 categories of

information from the case file in the Commonwealth's custody and control. On May 20, 2015,

petitioner filed a response to the Commonwealth's Motion to Dismiss and the Commonwealth filed

a response objecting to the discovery request. Following additional filings, this Court heard

argument on the discovery request on July 2, 2015.8 In discussing the defense's discovery request at

the hearing, the Court made clear to counsel that, pursuant to Pa.R.Crim.P. 902(E)(1)9, the burden

was on the defense to demonstrate "exceptional circumstances" before the Court could grant the

discovery request. With respect to exceptional circumstances, defense counsel asserted the existence

of several documents and items of evidence which should have been, but were not, provided to the

defense prior to trial, including: 1) a police activity sheet indicating that Jerome Broaster, one of the

participants in the gun battle central to the case, had been interviewed by police and had apparently




6   42 Pa.C.S. §§ 9541-9546.

7
    Justice Greenspan had been appointed to the Pennsylvania Supreme Court on July 2, 2008.

8
 At the hearing, Amy Donella, Esquire, withdrew from representation, and Eric Montrose, Esquire, joined Mr.
Gonzales as counsel for petitioner.

9
 This rule provides that, in a non-capital case under the PCRA, " ... no discovery shall be permitted at any stage of the
proceedings, except upon leave of court after a showing of exceptional circumstances." Though petitioner's case started
out as a capital case, ultimately this case ended up being non-capital.
                                                           2
provided exculpatory information; and, 2) documents indicating that police had recovered ballistics

and other evidence relating to the case from two separate automobiles which the police suspected

may have been used by the Broasters in connection with the gun battle. Notes of Testimony (N.T.)

7 /2/15 at 50-60. Defense counsel argued that this information was exculpatory in that it tended to

support petitioner's self-defense defense at trial, and therefore, under Brady10, the Commonwealth

had an obligation to provide this evidence to the defense

            Following additional filings on this issue, this Court heard additional argument on August

14, 2015. At this hearing, defense counsel represented that they had only been provided a property

receipt referencing the vehicles recovered by police, but nothing else with respect to any evidence

recovered from the vehicles. This Court found that any scientific or ballistics testing and all other

evidence recovered from the two vehicles should have been provided to defense counsel prior to

trial, and ordered the Commonwealth to provide this evidence to the defense. N.T. 8/14/15 at 65-

67. The Commonwealth had also provided the defense with a statement by Rafi Smith" made in an

interview with federal intelligence officer David Garroway on February 26, 2004; the

Commonwealth had failed to provide the statement in pretrial discovery. Id. at 8/14/15, at 114.

This Court ordered the Commonwealth to provide the defense with any other information provided

by Rafi Smith, finding that this information should have been provided to the defense in pretrial

discovery. Id. at 131.

           This Court held a status hearing on January 8, 2016, in preparation for an evidentiary hearing

to be held on January 26, 2016, on petitioner's claim that trial counsel had rendered ineffective

assistance for failure to present the defense that petitioner had requested, namely that petitioner was



10
     Brady v. Macyland, 373 U.S. 83 (1963).
11
  Rafi Smith was an associate of petitioner's who has, at various times, admitted or denied his presence in the gun battle
central to this case, and asserted the participation of other individuals in the gun battle.


                                                            3
not present at the gun battle. At the January 8, 2016 hearing, this Court also heard argument on the

discovery motion and ordered the Commonwealth to search its files for any information with

respect to whether Homicide detectives had interviewed Cassius Broaster or Rafi Smith, and further

ordered the Commonwealth to search its files for any information with respect to the purported

police interview of Jerome Broaster referenced in the police activity sheet. N.T. 1/8/16 at 31, 72-

74.

        At the evidentiary hearing conducted on January 26, 2016, in addition to hearing testimony

on petitioner's claim for ineffective assistance of counsel for failing to present the defense that

petitioner was not present at the gun battle, this Court heard testimony from Assistant District

Attorneys (ADA) Mark Gilson, one of the trial prosecutors for this case, as to his reasons for not

turning over the Rafi Smith statement to the defense in pretrial discovery. N.T. 1/26/16, at 202,

210-14. ADA Gilson testified that he did not turn the statement over because it indicated that

petitioner was present at the scene, and therefore he did not consider it to be exculpatory material

which he was obligated to provide the defense under Brady. Id.

        On May 20, 2016, this Court denied petitioner's claim that trial counsel was ineffective for

failure to present the defense that petitioner wanted, i.e., that he was not present at the gun battle,

and ordered an evidentiary hearing on petitioner's claim that trial counsel was ineffective for failure

to properly investigate and develop the self-defense defense that had been presented at trial against

petitioner's wishes. N.T. 5/20/16, 9, 14. This Court also heard argument and averments by the

defense that Detective Jack Cummings had testified before both a Grand Jury and at trial, and that

trial counsel had never been told about Detective Cummings' testimony before the Grand Jury.

N.T. 5/20/16 at 18-20. The Court ordered the Commonwealth to provide the defense the

Detective Cummings' Grand Jury testimony, as well as any tapes or transcripts of emergency calls

made to 9-1-1 on the day of the gun battle. N.T. 5/20/16 at 25, 52.


                                                    4
         On July 11, 2016, petitioner renewed his earlier request for all items of discovery, arguing

that the Commonwealth's failure to provide the evidence regarding the two vehicles, the Grand Jury

testimony, the activity sheet referencing police contact with Jerome Broaster, and the Rafi Smith

statement constituted exceptional circumstances which provided a basis for the Court to order the

Philadelphia Homicide Division to produce its entire file from the investigation into the gun battle,

so that defense counsel could determine whether all pertinent and exculpatory information had in

fact been provided. N.T. 7 /11/16 at 2-15. Over the objections of the Commonwealth, this Court

found that the Commonwealth's pattern of failure to provide information in pretrial discovery

which would have supported petitioner's self-defense defense showed exceptional circumstances

warranting discovery of the Homicide investigation file pursuant to Pa.R.Crim.P. 902(E)(1). Id. at

28-42. Therefore, this Court ordered the production of that entire investigative file to the Court's

chambers within two weeks, so that the file could be reviewed by this Court, defense counsel, and

counsel for the Commonwealth for any information which fairly should have been provided in

pretrial discovery.12 Id. at 41-3. This Court further ordered that the Commonwealth should have no

conversations with the Homicide detectives involved in the investigation with respect to these

discovery matters. On August 2, 2016, the Commonwealth filed this timely appeal to Superior

Court.

FACTS13

         Petitioner and Cassius Broaster were feuding for over five (5) years before the fatal gun

battle central to this case. N.T. 3/14/06, at 60. In December of 2003, Cassius Broaster shot




12 The Court indicated that it was willing to accommodate any of the Commonwealth's concerns with respect to the
integrity of the Homicide investigation file and supervision of the review of the file. These concerns were not
substantively addressed, as the Commonwealth instead elected to file this appeal.

13The facts are substantially as stated in Judge Greenspan's Pa.R.A.P. 1925(a) Opinion for petitioner's direct appeal,
dated July 13, 2006.


                                                            5
petitioner. N.T. 3/8/06, at 310-11. Following his hospitalization, petitioner moved to 1912 South

17th Street, apartment 301, with Jean Reddick, a family member.14 N.T. 3/10/06 at 132, 156-58.

About two (2) days prior to the shooting of Faheem Thomas-Childs, these individuals again engaged

in a shootout at 24th and Indiana Avenue. N.T. 3/14/06 at 61.

            On the morning of February 11, 2004, co-defendant Kennell Spady, petitioner, and a third

male, identified only as Chris, went to z3rc1 and Cambria Streets, near Thomas M. Pierce Elementary

School, to meet Rafi Smith. N.T. 3/15/06, at 11. Smith was purportedly taking his child to school

that day. N.T. 3/15/06, at 12. As these individuals met, Cassius and Jerome Broaster arrived in a

Lincoln. Id. at 12. The Broasters got out of the vehicle and an argument ensued between the two

groups. Id. The evidence presented at trial is unclear regarding the specific details of the

subsequent gun battle that ensued.

            Co-defendant Spady, in a statement given on February 14, 2004, claimed that Jerome

Broaster and then Cassius Broaster first began shooting at the defendants. N.T. 3/15/06, at 12. A

third individual, who was with the Broasters, began shooting as did co-defendant Spady and those

with him. Id. In his statement, co-defendant Spady also admitted that he was armed with a .30

caliber carbine semi-automatic rifle and that Rafi Smith, Cassius Broaster, and Jerome Broaster were

all armed with handguns. Id. at 16.

            There was also evidence through a statement of the witness, Russell Brown, given on

February 22, 2004, that following the argument between petitioner and Cassius Broaster, petitioner

pulled out a pistol and ran up 23rd Street. N.T. 3/8/06, at 307. Mr. Brown subsequently heard shots

being fired and took cover behind a car. Id. at 307-11. The statement provided by Mr. Brown

further indicates that he also saw a male with a shotgun further up on 23rd Street. Id. at 312.




14
     Jean Reddick raised petitioner and also was involved in a relationship with petitioner's uncle. N.T. 3/10/06, at 132.
                                                               6
         Kendra Sexton testified that she also saw two groups of males arguing. N.T. 3/14/06, at 85.

During the argument one of the males was located near a garage and the other group of males was

on the opposite side of the street by Peirce Elementary School. Id. at 85-88. Ms. Sexton further

testified that she had told police in a statement taken on February 11, 2004, that the first group of

males, that had been by the garage, had walked toward 23rd Street and then turned right onto 23rd

Street. Id. at 98. Ms. Sexton also told police that a male from the second group then went to his

car, retrieved a gun, ran in the direction of the first group and began shooting. Id. at 98-99.

         Police Officer Eugene Frasier and his partner Officer Eunice Allen received a radio call at

approximately 8:30 a.m. regarding the shooting and were the first to arrive on the scene. N.T.

3/8/06 at 5-6. Upon their arrival, they found a child bleeding from what appeared to be a gunshot

wound over the right eye. Id. at 8-9. The child was lying in the entrance of the schoolyard of the

Peirce Elementary School, located at 23'd and Cambria. Id. at 9. The young male, later identified as

Faheem Thomas-Childs, was immediately taken to the emergency room at Temple University

Hospital. Id. at 11-14, 17. Faheem Thomas-Childs was operated upon at Temple University

Hospital but his condition deteriorated and on February 17, 2004 life support was disconnected. Id.

at 93.

         Police Officer Susan Ehrmann also responded to the scene of the shooting. N.T. 3/8/06, at

95. Upon her arrival, Officer Ehrmann found crossing guard Debra Smith who had sustained a

bullet wound to her right foot. Id. at 98-99. Ms. Smith was taken to Temple University Hospital

where she was treated. Id. at 93.

         Police Officer Mark Williford was also called to the scene on February 11, 2004. N.T.

3 /9 /06, at 4-5. Officer Williford, along with several other officers, conducted a walk-through of the

scene to document any physical evidence. Id. at 6. Officer Williford testified that because there was

a tremendous amount of ballistics evidence at the scene and, due to the large size of the crime scene,


                                                   7
'
    the situs was subsequently divided into three (3) smaller regions. Id. at 6-7. Twelve (12) pieces of

    ballistics evidence were recovered in the 2800 block of North 23rd Street from Somerset Street to

    Cambria Street. Id. at 15. Sixty-one (61) pieces of ballistics evidence were recovered in the 2900

    block of North 23rd Street from Cambria Street to Indiana Avenue. lg. at 65-66. Fifty-six (56)

    pieces of ballistics evidence were recovered between the 2300 to 2500 blocks of Indiana Street. Id.

    at 207.

              Police Officer Leonard Johnson, from the Firearms Identification Unit in the Philadelphia

    Police Department, processed the ballistics evidence recovered from the scene. N.T. 3/13/06, at

    109-10. Officer Johnson testified to the positioning and identification of the various items

    recovered. Id. at 109-201. There were: (1) a total of twenty (20) fired cartridge casings from a .45

    caliber semi-automatic handgun; (2) a total of twenty-seven (27) fired cartridge casings from a .30

    caliber carbine semi-automatic rifle; (3) a total of eighteen (18) fired cartridge casings from a .9

    millimeter SWD caliber firearm and three (3) fired cartridge casings from a . 9 millimeter H caliber

    firearm; (4) a total of seven (7) fired cartridge casings from a .380 auto caliber firearm; and (5) a total

    of thirteen (13) fired cartridge casings from a .357. Id. at 129-71. Additionally, the bullet surgically

    removed from the head of Faheem Thomas-Childs was shot from a .45 caliber firearm and the

    projectile removed from the right foot belonging to Debra Smith was shot from a .9 millimeter

    firearm. Id. at 180-82, 188.

              On the morning of February 14, 2004, Lieutenant Stephen Bennis, along with other

    members of the SWAT Unit, went to apartment 305 located at 1912 South 17th St. to serve both an

    arrest warrant for petitioner and a search warrant for that apartment. N.T. 3/10/06, at 3-4. After

    searching apartment 305, and after receiving information that petitioner could possibly be in

    apartment 301, several officers went to that location. Id. at 11-13. Lieutenant Bennis and the other

    officers knocked several times on the door of apartment 301 and announced their presence. Id. at


                                                         8
26-28. Finally, the officers were admitted into the apartment by Joseph Davis.15 ld. at 28.

Petitioner and co-defendant Spady were both found inside apartment 301 and they were both taken

into custody. Id. at 30-33. A search warrant was then obtained for apartment 301 and both

apartment 301 and 305 were searched. N.T. 3/10/06, at 96-98. Recovered in the search of

apartment 301 under the mattress where petitioner was found was a Ruger .45 caliber semi-

automatic handgun which was loaded with one chambered .45 caliber round and which also

contained a magazine that contained eight (8) live .45 rounds. Id. at 98-100. This gun was

determined by the ballistician to be the murder weapon. N.T. 3/13/06, at 158-59.

LEGAL ANALYSIS:

         The Commonwealth raised the following issue on appeal:

1. Whether the PCRA court erred in ordering discovery of the Commonwealth's entire
investigative file in violation of the investigative privilege16 and the discovery provision of the
PCRA.17

         On appeal, the Commonwealth claims that this Court erred in granting petitioner's motion

to order the production of the Homicide Division's investigation file, in its entirety, to the Court for


ts Joseph Davis is the brother-in-law of Jean Reddick, who was the tenant of apartment 301. N.T. 3/10/06, at 15.

 16
    The Commonwealth refers to the common-law "executive privilege" recognized in Commonwealth y. Kauffman, 605
A.2d 1243, 1246-48 (Pa.Super. 1992), and referenced in Ben y. Schwartz, 729 A.2d 547, 553 (Pa. 1999). Preliminarily, it
is noted that the Commonwealth presented this argument for the very first time in its July 18, 2016 Motion to
Reconsider this Court's ruling, and not at the July 11, 2016 hearing on this discovery motion. Even ifwe were to reach
the merits, the Commonwealth's claim would fail, as these materials are not privileged: "Th[e executive privilege for
information from government investigative files] is not absolute but qualified; and, when asserted, requires the court to
balance the government's interest in ensuring the secrecy of the documents whose discovery is sought against the need
of the private litigant to obtain discovery of the relevant materials in possession of the government." Kauffman, 605
A.2d at 1247. Further, it has been observed that "the great majority of cases that have considered the discoverability of
law enforcement investigations have held that in general such discovery should be barred in ongoing investigations, but
should be permitted when the investigation and prosecution have been completed." Id. Here, as the investigation and
prosecution of petitioner's involvement in the fatal gun battle has been concluded for several years, the Commonwealth
cannot demonstrate an interest in ensuring the secrecy of this information outweighing the need of petitioner to discover
information which supports his claims for relief under the PCRA, particularly in light of the Commonwealth's pattern of
withholding information that should have been provided in pretrial discovery as discussed supra. Therefore, this Court
will not address this issue further

17 This Court states the issue here as phrased in the Commonwealth's Rule 1925(b) Statement of Errors Complained of

on Appeal, however, this phrasing is somewhat misleading. This Court's Order permitted discovery of only the
Philadelphia Police Department Homicide Division's investigative file, and made no ruling with respect to the file
maintained for this matter by the Philadelphia District Attorney's Office.
                                                           9
the purpose of making copies of relevant documents contained therein. This Court has not found

precedent in our jurisdiction which specifically defines or provides factors to consider when

determining whether "exceptional circumstances" exist to justify discovery in the PCRA context.

         This Court heard lengthy argument on several occasions with respect to the discovery

motion and PCRA counsel's basis for the motion, entertaining the Commonwealth's argument that

the motion was overly broad and a mere "fishing expedition." Following proffers by PCRA counsel

which led to findings by this Court that the Commonwealth had knowingly and deliberately withheld

several documents and items of evidence which would have supported petitioner's theory of self-

defense at trial, this Court ordered the Commonwealth to produce that evidence. At each occasion,

the Commonwealth maintained that the evidence was not exculpatory within the meaning of Brady

and that it had been under no obligation to furnish this evidence to the defense in pretrial discovery.

When it became clear that the Commonwealth had exhibited a pattern of withholding evidence

which should have been supplied in pretrial discovery, this Court found that exceptional

circumstances had been established and ordered the production of the investigative file to the Court

for the purpose of examining the file in camera in the presence of both PCRA counsel and counsel

for the Commonwealth. For the following reasons, this Court's decision should be affirmed.

         Pennsylvania Rule of Criminal Procedure 902(E) provides the general rule that discovery is

not permitted within the context of a petition for relief under the PCRA. Pa.R.Crim.P. 902(E)(1).

Unless the petitioner has received a sentence of death, a PCRA court may only order discovery

during the proceedings "after a showing of exceptional circumstances.'?" Id. Neither the PCRA nor

the Pennsylvania Rules of Criminal Procedure applicable to PCRA proceedings define "exceptional

circumstances," instead, "it is for the [PCRAJ court, in its discretion, to determine whether a case is



18 In a first petition for post-conviction relief, where the petitioner has received a sentence of death, the Rule permits
discovery upon a showing of the lesser "good cause" standard. Pa.R.Crim.P. 902(E)(2). Petitioner's case did not qualify
for the "good cause" standard for discovery as he did not receive a sentence of death, as discussed supra.
                                                           10
exceptional and discovery is therefore warranted." Commonwealth v. Frey, 41 A.3d 605, 611

(Pa.Super. 2012) citing Commonwealth v. Dickerson, 900 A.2d 407, 412 (Pa.Super. 2006). Appellate

courts will not disturb a PCRA court's finding with respect to the existence of exceptional

circumstances unless the court has abused its discretion. Id., citing Commonwealth v. Lark, 746 A.2d

585, 591 (Pa. 2000). "An abuse of discretion is not a mere error in judgment ... [i]nstead, it is a

decision based on bias, ill will, partiality, prejudice, manifest unreasonableness, or misapplication of

law." Id., citing Commonwealth v. Riley, 19 A.3d 1146, 1149 (Pa.Super. 2011). Here, the burden is

on the Commonwealth to demonstrate that an abuse of discretion has occurred. Id., citing

Commonwealth v. Bennett, 19 A.3d 541, 543 (Pa.Super. 2011) ("It is an appellant's burden to

persuade [Superior Court] that the PCRA court erred and that relief is due.").

       The mere speculation that exculpatory evidence may exist does not constitute an exceptional

circumstance warranting discovery. Frey, 41 A.3d at 612, citing Dickerson, 900 A.2d at 412.

However, just because a petitioner does not know for certain what a requested investigation file

contains does not mean that the petitioner is improperly "fishing" for discovery; so long as the

discovery requests are particular to specific documents based on a reasonable theory that those

documents would contain evidence tending to support petitioner's theory for relief. Frey, 41 A.3d at

612-13. The Frey court found exceptional circumstances where the petitioner's discovery request

was structured in such a fashion, and where the request was premised on a theory of the facts that

cast doubts on the Commonwealth's presentation of the facts at trial. Id. at 608.

   In Frey, the petitioner was convicted of murder of the first degree before the body of the

decedent, HopethanJohnson (johnson), was actually found. Frey, 41 A.3d at 611. When the body

of Johnson was discovered years later, forensic evidence arguably suggested that multiple persons

were involved in the shooting death, which had not been part of the Commonwealth's prosecution

theory or supported by the discovery materials to which the petitioner had had access at trial. Id.


                                                   11
This new evidence suggested a link between the murder of Johnson and the death of Stacy Farmer

(Farmer), an associate of the petitioner who, while petitioner was in custody and awaiting charges,

was found shot dead. Id. The evidence arguably suggested either a common killer or an accomplice

of the petitioner to the murder of Johnson who had then committed the murder of Farmer. lg.

Further, there were some indications within the record that police suspected the involvement of

Farmer in the murder of Johnson, but did not investigate these suspicions when Farmer was found

dead. Id. at 608.

   The petitioner in Frey alleged in his PCRA petition that Johnson's killer, or an accomplice

thereto, may have killed Farmer because he feared that Farmer was going to reveal facts which he

knew about Johnson's death. Id. The petitioner in Frey filed a motion seeking discovery of police

and ballistic reports, eyewitness statements, photographs, and autopsy reports regarding the death of

Farmer, all of which he contended could demonstrate similarities between the murders of Farmer

and Johnson and potentially indicate a common shooter. Frey, 41 A.3d at 608-9. The Frey court

upheld the PCRA court's finding of exceptional circumstances, finding that the unusual facts of the

case and the multiple indications that the two murders might be connected constituted exceptional

circumstances. Id. at 612. Frey rejected the Commonwealth's arguments that discovery should not

have been granted on the basis that the PCRA court had itself expressed skepticism about whether

the petitioner's theory of the facts would ultimately prove to be true:

   [T]he court's expression of skepticism was accompanied by the court's rational analysis and
   conclusion that it was "certainly possible" than an unknown person who was involved in the
   Johnson murder later killed Farmer. This possibility, in the context of the somewhat
   uncommon case facts ... led the court to conclude that this matter was an exceptional one.

Frey, 41 A.3d at 612.

       Frey recognized that mere speculation that exculpatory evidence might exist did not

constitute exceptional circumstances to warrant discovery, but maintained that the particular facts of

the case suggested that information that supported the petitioner's theory might be in the
                                                   12
investigative files. Id. Therefore, "[i]t [was] not manifestly unreasonable to conclude that witness

statements and/ or other evidence contained in the Farmer investigative file would thus be relevant

to the facts of the Johnson murder." Id. Frey found that the Commonwealth's characterization of

the discovery request as a mere "fishing expedition" was unjustified:

        The fact that Frey does not know for certain what the Farmer investigation file contains
does not mean that he is improperly "fishing." Parties frequently do not know with certainty the
contents of requested materials. Indeed, this lack of knowledge is often the main reason, though not
the only possible reason, that discovery requests are made in criminal cases.

Frey, 41 A.3d at 612.

       Reasoning that the petitioner had made particular requests for specific documents based on

the reasonable theory that those documents may have contained evidence tending to show a

common killer of Farmer and Johnson, and that the facts of record did suggest such a link, Frey held

that the discovery request was not a baseless or speculative request properly described as a "fishing

expedition." Id. at 612-13. Frey also noted that the question before the court was whether the

PCRA court had abused its discretion in deciding to order discovery and not whether the petitioner

deserved substantive relief, rejecting the Commonwealth's arguments based on the merits of the

petitioner's claims. Id. at 613. Frey further found that the Commonwealth's briefing failed to

demonstrate how granting the motion would result in detriment to the Commonwealth's interests,

short of a cursory assertion that the search warrants on the Farmer case had been sealed. Id.

Finding that the PCRA court had evaluated the facts and found exceptional circumstances based on

the unusual case history and the reasonable belief that the grant of discovery would reveal evidence

supporting one or more of the petitioner's PCRA theories, Frey ruled that the PCRA court had not

abused its discretion and affirmed the grant of discovery. Id.

       Here, this Court evaluated the facts and determined that this case involved exceptional

circumstances-namely, the intense public attention with respect to the outcome of the gun battle,

the sheer volume and complexity of the evidence collected, and this Court's finding that the

                                                  13
Commonwealth improperly withheld evidence which fairly supported petitioner's self-defense

defense and supported a reasonable theory that unreleased contents of the file would reveal further

evidence supporting petitioner's claims for relief. This Court found the Commonwealth's pattern of

withholding evidence which tended to support petitioner's trial defense theory was particularly

egregious and troubling in light of Judge Greenspan's having put the Commonwealth on notice at the

very beginning ofpetitioner's trial that any information supporting self-defense should be treated as

exculpatory, and having ordered ADA Gilson to furnish any such information to petitioner under

threat of reversal:

         THE COURT: Let me tell you both, if there is any exculpatory evidence and that means
         anything that would give them either self-defense or voluntary manslaughter, anything that
         goes along that route, motive from the other side to shoot that day, then you better give it to
         [petitioner or trial counsel].
         MR. GILSON: Absolutely, understood. We will.
         THE COURT: Or this case will get reversed by me.
         MR. GILSON: It goes without saying we will provide any of that information, Your Honor.

N.T. 3/6/06 at 77,19


         If evidence in the file sought by petitioner's discovery motion had been provided in

discovery to trial counsel, petitioner may demonstrate that the failure to do so caused petitioner

prejudice.

         Further, this Court's findings that the Commonwealth withheld from pretrial discovery

evidence potentially exculpatory to petitioner implicates the Commonwealth's obligations under

Brady, and further supports a finding of exceptional circwnstances.




19 ADA Gilson testified that he had reviewed the Garraway memorandum in preparation for trial and that the
memorandwn was in the file made available to him before petitioner's trial began. N.T. 1/26/16 at 197-200. Despite
Judge Greenspan's unambiguous directive, and in full knowledge that Judge Greenspan's order applied to evidence such
as the Garraway memorandum, ADA Gilson chose to disregard her directive and to suppress the Garraway
memorandum.
                                                         14
        Brady v. Maryland, 373 U.S. 83, (1963), obliges a prosecutor to disclose "all exculpatory

information material to the guilt or punishment of an accused, including evidence of an

impeachment nature." Commonwealth v. Chmiel, 30 A.3d 1111 (Pa. 2011).

        It is important to emphasize that the disclosure requirements of Brady are not limited to

purely exculpatory evidence; impeachment evidence also falls within Brady's parameters and must be

disclosed by the Commonwealth. Commonwealth v. Antidormi, 84 A.3d 736, 747, (Pa.Super. 2014),

allocatur denied, 95 A.3d 275 (Pa.2014); Commonwealth v. Herrick, 660 A.2d 51, 60 (Pa.Super.

1995)("Exculpatory evidence is evidence that is material to a determination of guilt or innocence or

affects the credibility of key prosecution witnesses ... [i]mpeachment evidence ... does fall within the

Brady rule ... [m]oreover, evidence of fabrication is always exculpatory."). The obligation to disclose

also "extends to exculpatory evidence in the files of police agencies of the same government

bringing the prosecution." Id., citing Commonwealth v. Puksar, 951 A.2d 267, 281 (Pa. 2008).

Moreover, the duty to disclose is "ongoing; information that may be deemed immaterial upon

original examination may become important as the proceedings progress, and the (Commonwealth)

would be obligated to release information material to the fairness of the trial." Pennsylvania v.

Ritchie, 480 U.S. 39, 60 (1987).

       Although substantive Brady claims are cognizable under the PCRA., � does not govern

the scope of discovery under the PCRA. Commonwealth v. Williams, 86 A.3d 771, 788 (Pa. 2014).

While the duty under Brady is both an affirmative and continuing duty upon the government, it

establishes no specific right in the petitioner to review the Commonwealth's file to see if he agrees

with the Commonwealth's representation that it has disclosed all materials to which the defense is

entitled. Id. The right to discover exculpatory evidence does not include the unsupervised authority

to search through the Commonwealth's files, and a defendant alone may not make the

determination as to the materiality of the information. Id. However, an in camera inspection of the


                                                   15
Commonwealth's file may be warranted where there is reason to believe that evidence favorable to

the defense will be revealed. Commonwealth v. Watson, 512 A.2d 1261, 1266 (Pa.Super. 1986),

("An in camera inspection of the Commonwealth's file is not required unless there is reason to

believe that evidence favorable to the defense will be revealed."), citing Commonwealth v. Colson,

490 A.2d 811, 822 (Pa. 1985), abrogated on other grounds lry Commonwealth v. Burke, 781 A.2d 1136

(Pa. 2001).

        To establish a Brady violation, a petitioner must prove three elements: 1) the evidence at

issue was 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. Chmiel, 30 A.3d at 1129-30. While the question before this Court on the discovery request

was whether exceptional circumstances were present, it is important to recognize the substance and

contours of the underlying merits when considering the propriety of a discovery request. Frey, 41

A.3d at 613.

        Here, this Court found exceptional circumstances in part due to findings that the

Commonwealth had improperly withheld from the defense evidence otherwise required to be

provided in pretrial discovery, including: 1) the statement of Rafi Smith made to David Garroway;

and, 2) the forensic evidence and testing done on the pair of vehicles which were believed to have

been involved in the gun battle.

        The first component of a Brady violation requires that the evidence at issue is favorable to

the accused because it is either exculpatory or impeaching. Chiniel, 30 A.3d at 1129. With respect

to the instant case, evidence would have been favorable or exculpatory to petitioner, and therefore

required for disclosure by the Commonwealth, if it tended to support petitioner's trial defense of

self-defense or tended to impeach the credibility of witnesses offered against him. As petitioner was

charged with first-degree murder, a successful self-defense defense would have resulted in either an


                                                  16
acquittal or a conviction of voluntary manslaughter for so-called "imperfect self-defense."

Commonwealth v. Sepulveda, SS A.3d 1108, 1124-25 (Pa. 2012). To prevail on such a defense, there

must be evidence that the petitioner "(a) reasonably believed he was in imminent danger of death or

serious bodily injury and that it was necessary to use deadly force against the victim to prevent such

harm; (b) that the [petitioner] was free from fault in provoking the difficulty which culminated in the

slaying; and (c) that the [petitioner] did not violate any duty to retreat." Id., citing Commonwealth v.

Samuel, 590 A.2d 1245, 1247-48 (Pa. 1991). For the derivative and lesser defense of imperfect self-

defense, there must be evidence that the petitioner's belief that deadly force was necessary was

unreasonable rather than reasonable, and all other principles of justification must be satisfied. Id. at

1124. Therefore, any evidence having any bearing on the reasonableness of petitioner's belief in

imminent danger of death or bodily injury, whether the Broaster group was the aggressor in the gun

battle, or whether petitioner retreated, would be Brady material requiring disclosure.

       The second component of a Brady violation requires that the evidence at issue be

suppressed by the government, either willfully or inadvertently. Chmiel, 30 A.3d at 1129-30.

Evidence, whether in the possession of the prosecution or the police, is subject to the Brady duty to

disclose. In order to comply with Brady, "the individual prosecutor has a duty to learn of any

favorable evidence known to the others acting on the government's behalf in this case, including the

police." Kyles v. Whitley, 514 U.S. 419, 437 (1995). For over a decade, our Supreme Court has

endorsed that same principle. Burke, 781 A.Zd at 1142 n.S (finding it immaterial that a prosecutor

was unaware of relevant statements in police files, given that "[t]his Court cannot ignore the obvious

implications of Kyles."); Commonwealth v. Gibson, 951 A.2d 1110, 1127 (Pa. 2008) ("The

prosecution's duty under Brady incorporates disclosure of all exculpatory evidence, regardless of




                                                   17
whether the defense specifically requests such materials, and extends to evidence in the possession

of police agencies of the same government bringing the prosecution.") (internal citations omittedj/"

         At the January 26, 2016 evidentiary hearing, this Court asked for ADA Gilson to explain the

context of Rafi Smith's statement to David Garroway and Gilson's reasons for failing to provide this

to the defense. N.T. 1/26/16 at 186-210. After the gun battle, Rafi Smith was arrested and his case

was taken over by federal authorities. Id. at 194. While in federal custody, Smith was interviewed by

federal intelligence officer David Garraway.          Id. Mr. Garraway prepared a memorandum (Garraway
memorandum) of his interview with Smith, noting that Smith also spoke to Homicide detectives.

Id., Exhibit P-9. The Garraway memorandum was located in the Homicide Division's investigation

file. Id. at 198. The Garraway memorandum states that Smith told Garraway the following: that, on

the day of the gun battle, petitioner told Smith that they were waiting for Smith to drop off his

children at Pierce Elementary School so that they could then buy marijuana. Id. 1/26/16 at 209-10.

While waiting, Jerome Broaster, his child, and the child's mother arrived in a car at the school, and

the mother exited the vehicle to drop off her child. Id. An argument between petitioner and

Broaster then ensued, and petitioner started to walk away, after which Broaster fired shots at

petitioner. Id. ADA Gilson testified that, although the Garraway memorandum indicated that Rafi

Smith told Garraway he had been interviewed by Philadelphia Homicide detectives, ADA Gilson

never located any record or statement of Rafi Smith to the Philadelphia Police Department. Id. at

203. ADA Gilson indicated that Smith may have in fact been interviewed by Homicide detectives,




20There is no dispute that the Philadelphia District Attorney's Office and the Philadelphia Police Department are part of
the "same government." Rafi Smith's statement to David Garraway, though made in the context of a federal
investigation, was supplied to the Philadelphia Police Department and the Commonwealth conceded that this statement
was in its file at the time of trial. N .T. 1 /8/16 at 30. The forensic evidence and testing collected from two vehicles
which were suspected to be involved in the gun battle was performed by the Philadelphia Police Department and
requested by the defense in pretrial discovery, but the defense was only provided with the property receipts for these
two vehicles. N.T. 8/14/15 at 61-67. Under� and�. all of this evidence is properly considered to be within
the scope of the prosecutor's control.


                                                           18
but that that was perhaps not documented in their files because Smith provided no helpful

information. Id. at 205. ADA Gilson testified that he reviewed the Garraway memorandum and did

not believe it was discoverable, and that this was the reason that the Garraway memorandum was

not disclosed to the defense in pretrial discovery. Id. at 202. ADA Gilson claimed that he did not

consider the information in the Garraway memorandum to be exculpatory because it "putO

[petitioner] at the scene?" and because the statement was inadmissible hearsay. Id. at 210-12.

         As discussed supra, the meaning of "exculpatory" for Brady purposes is not so limited as to

only include that evidence which indicates that a defendant was never present at the crime scene.

Because petitioner's trial defense theory was self-defense, any evidence which tended to support this

theory should have been disclosed. Even if this evidence only sufficed to establish an imperfect self-

defense, it was material to petitioner's charge of murder in the first degree. At the hearing, ADA

Gilson dismissed the possibility that this evidence could have prompted any defense investigation

which would have revealed admissible evidence. N.T. 1/26/16 at 211. This Court concluded that

ADA Gilson's assessment of what was exculpatory in this case, and his position that this statement

could not have lead to the discovery of any admissible evidence, was incorrect and an improper basis

for willfully withholding evidence which should have fairly been provided to the defense in pretrial

discovery, particularly after specifically being ordered to do so by Judge Greenspan. ADA Gilson, a

thorough prosecutor with many years of experience, knew better. When viewed in the context of

the assurances he mouthed to Judge Greenspan, knowing that this document was in his file, this

conduct reflects a brash disdain for a prosecutor's duty of candor to the tribunal.

         Months before the January 26, 2016 evidentiary hearing where ADA Gilson testified about

the Rafi Smith statement, this Court had heard argument on petitioner's discovery motion with


21
  But surely ADA Gilson is well versed in the notion that a defendant advancing a defense of self-defense is admitting he
committed the shooting - in other words, that he was present.


                                                           19
respect to a pair of automobiles, both of which were processed by police. Each car was suspected to

have been the car used by the Broasters in the gun battle. See N.T. 7 /2/15 at 53-58; N.T. 8/14/15

at 58-68. Petitioner had asserted that the Broasters chased him and fired at him from a car, and that

evidence supporting this position would have helped his self-defense theory to prevail at trial. At

the hearing on July 2, 2015, PCRA counsel asserted that trial counsel had been provided with two

property receipts, one for a car matching the description of the car used by the Broasters in the gun

battle with four bullet holes in the windshield, discovered near the crime scene within an hour of the

shooting. N.T. 7 /2/16 at 54. Counsel also described a car registered to Cassius Broaster, recovered

with a single bullet hole in the windshield, which was indicated by the second property receipt. Id.

at 55-56. At the August 14, 2015 hearing, PCRA counsel had asserted that the only evidence which

was disclosed to trial counsel with respect to these two vehicles was the police reports22 and

property receipts indicating that the vehicles were seized by police and ballistics testing was

performed, while information with respect to any forensic evidence, owner's information, or the

results of any ballistics testing was not provided to the defense. N.T. 8/14/15 at 60-62. This Court

found that this information should also have been turned over to the defense in pretrial discovery, as

any ballistics evidence from these vehicles could have contradicted the Commonwealth's

presentation of facts at trial and supported petitioner's self-defense theory at trial. Id. at 59-68.

         In Brady, the Supreme Court held that "the suppression by the prosecution of evidence

favorable to an accused upon request violates due process where the evidence is material either to

guilt or to punishment irrespeaioe of the goodfaith or badfaith of the prosecution." Brady, 3 73 U.S. at 87

(emphasis added). Though the prosecutor's intent is unimportant in a pure Brady analysis,

Pennsylvania courts have found that prosecutorial "gamesmanship" amounting to a violation of




22PCRA counsel represented that the only information in these police reports were references that the cars were "taken
by police to a police place" and that ballistics evidence was found inside the cars. N.T. 8/14/15 at 62.
                                                          20
discovery rules can be an independent reason to shape a remedy for a defendant where such

gamesmanship prejudices the defendant in his ability to present a defense. Commonwealth v.

Moose, 602 A.2d 1265, 1273-75 (Pa. 1992) (finding that where the prosecutor hid a statement from

defense counsel and told the court that "all available evidence had been provided" required that a

new trial be granted because it prejudiced the defendant and, otherwise, the court "would be

condoning and encouraging such last minute disclosures and gamesmanship.").23

         The third and final component of a Brady violation requires that prejudice ensued from the

prosecution's suppression of favorable evidence. Chmiel, 30 A.3d at 1129-30. "Prejudice" in this

context is defined by the concept of "materiality." For suppressed evidence to be considered

"material," there must be a "reasonable probability that, had the evidence been disclosed, the result

of the proceeding would have been different." Cone v. Bell, 556 U.S. 449, 470 (2009), citing Kyles,

514 U.S. at 435.

         When undertaking the "materiality" analysis, the court in Kyles indicated that materiality is

to be judged by reference to the "suppressed evidence considered collectively, not item-by-item"

with the focus on the "cumulative effect of suppression." Kyles, 514 U.S. at 437. Practically, courts

analyze the "cumulative effect of suppression" through two inquiries: whether suppression

negatively impacted the defense's case, and whether the government took advantage of the fact that

evidence favorable to the accused was withheld.

          In U.S. v. Perdomo, the Third Circuit measured the impact of suppression on the defense's

case by considering the "possible effects of non-disclosure on the defense's trial preparation," and

by asking whether, had that evidence been "disclosed and used efftctive/y, it may make the difference

between conviction and acquittal." 929 F.2d 967, 971-72 (3d Cir. 1991) (emphasis in original). In



23The� court relied on Commonwealth y. Thie!, 470 A.2d 145, 149 (Pa.Super. 1983), where the Superior Court
fashioned a remedy for a defendant after the government withheld information that should have been disclosed under
Pa.R.Crim.P. 305(B)(1)(f).
                                                        21
that case, the government unknowingly misrepresented to the defense that its key witness did not

have a criminal history, despite that witness in fact having two prior convictions. Id. at 970-72.

"Such information would have been critical in presenting the witness' mental state, demeanor and

behavior to the jury, and in questioning the witness' credibility." Id. at 972. The Perdomo court

stressed that the impact of suppression on the testimony that the defense "would have been able to

elicit" was magnified by the government's misrepresentation, which misleadingly induced defense

counsel into believing that the witness could not be impeached. Id. The cumulative impact of

suppression presented an "undisputable argument that a Brady violation occurred." Id. at 974.

         While the Perdomo court tackled the "materiality" question from the perspective of how

suppression impacted the defense's case, other cases have emphasized that evidence is more likely to

be considered "material" when the government seizes upon and exploits the presence (or absence)

of the suppressed evidence. The Kyles court, for example, considered the "word of the prosecutor"

relevant to the materiality computation. The United States Supreme Court found impeachment

evidence of two witnesses to be material in part because that evidence contradicted the argument set

forth by the prosecutor during closing arguments. Kyles, 514 U.S. at 444 ("The likely damage is best

understood by taking the word of the prosecutor, who contended during closing arguments that

Smallwood and Williams were the State's two best witnesses.").

         When this Court granted the discovery requests with respect to the Garraway memorandum

regarding Rafi Smith and the evidence collected from the automobiles, it was cognizant of the

Commonwealth's comments during closing arguments at petitioner's trial which the withheld

evidence tended to contradict." ADA Gilson's assurance to Judge Greenspan's admonition that any


24 With respect to the evidence collected from the cars and petitioner's theory that the Broasters had pursued petitioner
and fired at him from their cars, the Commonwealth asserted in closing arguments that: the only shots fired by the
Broasters were the five cartridge cases recovered from the street (N.T. 3/15/06 at 190); that petitioner and co-defendant
Spady had traveled up the block for the purposes of luring the Broasters into an inferior firing position rather than to
retreat (Id.. at 191); and that the Broasters had entered their cars for the purposes of fleeing petitioner and Spady rather
than to pursue (Id.. at 196). With respect to the Garraway memorandum describing Rafi Smith's statement supporting
                                                            22
evidence tending to support self-defense would be supplied to trial counsel therefore denotes a

willful and flagrant scorning of the trial court's orders.f

            This Court also considered the facts of this case as an unusually complex first-degree murder

case with dense volumes of evidence collected, heavy public attention and pressure on the

Commonwealth to bring the case to a resolution, and restrictions on which discovery materials

could be provided to the petitioner out of a concern that petitioner would intimidate witnesses.26

This Court considered the occasions where it found that evidence was improperly withheld from

pretrial discovery, which supported a reasonable belief that other, non-disclosed documents within

the Homicide Division file would support petitioner's PCRA theories. Finally, this Court found that

there would be no relative detriment to the Commonwealth by granting petitioner's discovery

request, as the investigation in this case has been concluded for several years.

            Therefore, in keeping with the guidance provided in Frey, this Court found that the facts of

this case and the Commonwealth's pattern of withholding items of evidence that supported

petitioner's trial defense theory of self-defense were exceptional circumstances and therefore granted

petitioner's request for discovery of the Homicide Division file in its entirety. The Commonwealth

has not presented an explanation for how detriment might result, other than to characterize this as a

"fishing expedition" and to assert that this would only further delay resolution of a petition for

PCRA relief that has lingered for years. In order to settle the issues in this matter expeditiously

rather than piecemeal, and in light of the extraordinary circumstances presented at arguments, this

Court directed the Commonwealth to provide the Homicide file to this Court's chambers for the



that the Broasters initiated both the argument and the gun battle, the Commonwealth asserted in closing arguments that:
petitioner and co-defendant Spady traveled to Pierce Elementary for the express purpose of killing Cassius Broaster in
revenge (Id. at 200); and that petitioner and Spady hid their weapons under their clothing and initiated arguments with
the Broasters for the purpose of provoking them into firing first (Id. at 206).

25
     �   N.T. 3/6/06 at 77.

26
     �   N.T. 7 /2/15 at 98-9.
                                                          23
purposes of reviewing the materials and determining whether any materials withheld from the

defense support one or more of petitioner's PCRA theories for relief. This Court thus did not err in

granting petitioner's motion for discovery of the Homicide Division's investigation file.

       For the foregoing reasons, this Court's order should be affirmed.


                                                       BY THE COURT:



                                                        Jt{ �
                                                       M. TERESA SARMINA                    J.




                                                 24
