J-S36039-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    :   IN THE SUPERIOR COURT OF
                                                    :        PENNSYLVANIA
                                                    :
                v.                                  :
                                                    :
                                                    :
    JONATHAN MICHAEL PROCTOR,                       :
                                                    :
                       Appellant                    :   No. 105 WDA 2020

            Appeal from the PCRA Order Entered December 31, 2019
       In the Court of Common Pleas of Potter County Criminal Division at
                        No(s): CP-53-CR-0000249-2014


BEFORE:      OLSON, J., KING, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                               FILED AUGUST 26, 2020

        Jonathan Michael Proctor (Appellant) appeals pro se from the order

denying his first petition filed pursuant to the Post-Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546, in the Court of Common Pleas of Potter

County (PCRA court). We affirm.

                                               I.

        On September 30, 2015, Appellant was convicted by a jury for his role

in the overdose death of Daniel Lowe (Lowe). The Commonwealth’s evidence

at trial was that on October 26, 2012, Lowe and his girlfriend, Dakota

Woodward (Woodard), went with Appellant to buy heroin from Brian Pierce

(Pierce). The three left together from Galeton Borough, Potter County, and


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*   Retired Senior Judge assigned to the Superior Court.
J-S36039-20


drove to Pierce’s trailer in Westfield Borough, Tioga County.      When they

arrived, Appellant got out and went in the trailer.     Inside a bathroom,

Appellant bought five bags of heroin from Pierce. Appellant got back in the

car and gave three of the bags to Lowe. Lowe then drove to a nearby dirt

road. Using a syringe, Lowe injected Woodard with heroin while Appellant did

the same to himself in the backseat. Lowe then injected himself.

     Because neither Lowe nor Woodard were able to drive, Appellant drove

the car back to Potter County. When they returned, Woodard discovered that

Lowe, who was seated in the backseat, was unresponsive. Woodard rushed

to get help from a friend, who then called 911.    Because he had a bench

warrant for his arrest, Appellant fled on foot before the ambulance arrived.

Lowe was taken to a nearby hospital and pronounced dead of a drug overdose.

     A few days later, on October 31, 2012, Appellant gave a voluntary

statement to the police. In his statement, he admitted that Lowe contacted

him about getting heroin and that he went with Lowe and Woodard to Pierce’s

to get the heroin. He denied, however, that he bought the heroin, instead

claiming that Pierce walked to the car and gave the heroin to Woodard, who

then gave it to Lowe.

     At trial, Woodard testified that Appellant gave the heroin to Lowe while

Pierce admitted that he sold the heroin to Appellant. Both denied that they

were testifying as part of any agreement to receive favorable treatment, with

Woodard acknowledging that she had related charges pending. Additionally,


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the Commonwealth presented Kaitlyn Piquadio. She testified that Appellant

admitted to her that he gave the heroin to Lowe. According to her, Appellant

also admitted that he was trying to get Pierce to testify that he sold the heroin

to Woodard.      Pierce confirmed the attempted fabrication during his direct

examination.

       The jury convicted Appellant of drug delivery resulting in death, flight to

avoid apprehension, delivery of a controlled substance, simple possession,

conspiracy     to    commit     simple    possession     and       possession     of    drug

paraphernalia.1 The trial court sentenced Appellant to an aggregate term of

12 years and 10 months to 26 years and 10 months of imprisonment. After

the denial of post-sentence motions, Appellant filed a direct appeal to this

Court. We affirmed the judgment of sentence on February 9, 2017, and our

Supreme      Court    denied    allowance      of   appeal    on   October      10,    2017.

Commonwealth v. Jonathan Michael Proctor, 156 A.3d 261 (Pa. Super.

2017), appeal denied, 172 A.3d 592 (Pa. 2017).

       On November 13, 2017, Appellant filed a pro se PCRA petition raising

several claims of trial counsel ineffectiveness.2            The PCRA court appointed

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1 18 Pa.C.S. §§ 2506(a), 5126(a), 35 P.S. §§ 780-113(a)(30), 780-
113(a)(16), 18 Pa.C.S. § 903(a), and 35 P.S. § 780-113(a)(32), respectively.

2 Appellant filed his petition before the judgment of sentence became final on
January 8, 2018, which would have been the expiration of time for seeking
certiorari with the United States Supreme Court.             See 42 Pa.C.S.
§ 9545(b)(3); U.S. Sup. Ct. R. 13. Because Appellant did not pursue further



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counsel and ordered counsel to file either an amended petition or a

Turner/Finley no-merit letter.3 After four extensions, PCRA counsel filed an

amended petition on June 22, 2018, raising two claims of ineffective

assistance of counsel based on:                (1) trial counsel not challenging the

admissibility of the forensic toxicologist’s determination of death; and (2)

direct appellate counsel not properly preserving Appellant’s sufficiency and

weight claims.

       The PCRA court eventually set an evidentiary hearing for December 14,

2018. A few days before the hearing, however, the Commonwealth filed a

motion to dismiss the trial counsel ineffectiveness claim, arguing it had been

prejudiced by Appellant’s delay in filing his petition because trial counsel had

passed away in February 2017.4 Because of the motion, as well as difficulty

in being able to consult with Appellant, PCRA counsel requested a continuance

of the hearing.        The PCRA court granted the request and, after two

continuances, rescheduled the hearing for March 15, 2019.


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direct review, his pro se PCRA petition related forward to January 8, 2018.
Consequently, despite the petition being prematurely filed, there were no
jurisdictional impediments to the PCRA court’s review.

3Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988).

4 Trial counsel passed away while Appellant’s direct appeal to this Court was
still pending.




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       Before the hearing could take place, PCRA counsel filed a petition for

leave to withdraw on March 12, 2019. In his Turner/Finley no merit letter,

counsel limited his discussion to only the issues raised in the amended

petition.5 That same day, the PCRA court issued a Pa.R.Crim.P. 907 notice of

its intent to dismiss the petition without hearing, stating that it had reviewed

the no merit letter and found that both Appellant’s pro se petition and

amended petition lacked merit.            The court’s notice, however, mistakenly

stated that Appellant had 30 days to appeal its ruling, which prompted

Appellant to file a notice of appeal on March 21, 2019.6           We eventually

dismissed the premature appeal on September 17, 2019.

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5 The traditional requirements for properly withdrawing, originally set forth in
Finley, were updated by this Court in Commonwealth v. Friend, 896 A.2d
607 (Pa. Super. 2006), to include, among others, “PCRA counsel must, in the
‘no-merit’ letter, list each claim the petitioner wishes to have reviewed, and
detail the nature and extent of counsel’s review of the merits of each of those
claims[.]” Id. at 615. In Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009),
our Supreme Court abrogated Friend “[t]o the extent Friend stands for the
proposition that an appellate court may sua sponte review the sufficiency of a
no-merit letter when the defendant has not raised such issue.” Id. at 879.
Because Appellant has not challenged the sufficiency of the no merit letter,
we need not address whether PCRA counsel complied with Turner/Finley.

6  The PCRA court also reissued its Rule 907 notice on March 21, 2019,
clarifying that it had not yet dismissed Appellant’s petition. However, once
Appellant filed the appeal, the PCRA court had no jurisdiction to proceed in
the matter. See Pa.R.A.P. 1701(a) (“Except as otherwise prescribed by these
rules, after an appeal is taken or review of a quasijudicial order is sought, the
trial court or other government unit may no longer proceed further in the
matter.”). Appellant nonetheless filed objections to the Rule 907 notice on
May 9, 2019, and the Commonwealth filed a motion to dismiss the PCRA
petition on August 1, 2019. The PCRA court never ruled on these pleadings.



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       Once the case was returned, the PCRA court reissued its Rule 907 notice

on November 21, 2019.7 In his response, Appellant argued that PCRA counsel

failed to raise additional claims of trial counsel ineffectiveness that were not

included in his initial pro se petition. Among these claims, Appellant alleged

that PCRA counsel was ineffective for not raising trial counsel’s failure to: (1)

request a corrupt and polluted source jury instruction for either Woodard or

Pierce; (2) raise a Brady violation based on the Commonwealth’s failure to

disclose Pierce’s pending charges; and (3) request a bill of particulars. On

December 31, 2019, the PCRA court dismissed the petition without hearing

and granted PCRA counsel’s request to withdraw from representation.

Appellant timely appealed and now raises the three layered claims of

ineffective assistance of counsel for our review.8


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7 The PCRA court’s Rule 907 notice did not state the reasons supporting its
intention to dismiss the claims without hearing. See Pa.R.Crim.P. 907(1).
Appellant, however, did not raise this in his response, nor does he argue on
appeal that he was by prejudiced by the notice. Accordingly, we need not
address this deficiency any further. See Commonwealth v. Zeigler, 148
A.3d 849, 851 n.2 (Pa. Super. 2016) (finding any defect in Rule 907 notice
was waived by appellant for failing to raise issue of PCRA court’s
noncompliance with Rule 907 on appeal).

8  “Our standard of review of the denial of a PCRA petition is limited to
examining whether the record evidence supports the court’s determination
and whether the court’s decision is free of legal error.” Commonwealth v.
Postie, 200 A.3d 1015, 1022 (Pa. Super. 2018) (en banc) (citation omitted).
Additionally, “[a] petitioner is not entitled to a PCRA hearing as a matter of
right; the PCRA court can decline to hold a hearing if there is no genuine issue
concerning any material fact, the petitioner is not entitled to PCRA relief, and



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                                               II.

       We briefly review our standard of review of layered claims of ineffective

assistance of counsel.

       The law presumes counsel has rendered effective assistance. The
       burden of demonstrating ineffectiveness rests on [a petitioner].
       To satisfy this burden, [a petitioner] must plead and prove by a
       preponderance of the evidence that: (1) his underlying claim is
       of arguable merit; (2) the particular course of conduct pursued by
       counsel did not have some reasonable basis designed to effectuate
       his interests; and, (3) but for counsel’s ineffectiveness, there is a
       reasonable probability that the outcome of the challenged
       proceeding would have been different. Failure to satisfy any prong
       of the test will result in rejection of the [petitioner’s] ineffective
       assistance of counsel claim.

Commonwealth v. McGarry, 172 A.3d 60, 70 (Pa. Super. 2017) (internal

citations and quotations omitted).

       Where the defendant asserts a layered ineffectiveness claim[,] he
       must properly argue each prong of the three-prong ineffectiveness
       test for each separate attorney.

       Layered claims of ineffectiveness are not wholly distinct from the
       underlying claims[,] because proof of the underlying claim is an
       essential element of the derivative ineffectiveness claim[.] In
       determining a layered claim of ineffectiveness, the critical inquiry
       is whether the first attorney that the defendant asserts was
       ineffective did, in fact, render ineffective assistance of counsel. If
       that attorney was effective, then subsequent counsel cannot be
       deemed ineffective for failing to raise the underlying issue.




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no purpose would be served by any further proceedings.”              Id. (citation
omitted).




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Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa. Super. 2012) (citations

omitted).9

                                               A.

        In his first claim, Appellant alleges that PCRA counsel was ineffective for

not raising trial counsel’s failure to request a corrupt and polluted source jury

instruction.10   He argues that this instruction was warranted because both

Woodard and Pierce could have been charged for their roles in Lowe’s death.



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9 Appellant preserved his claims by raising them in his response to the PCRA
court’s November 21, 2019 Rule 907 Notice. See Rykard, 55 A.3d at 1189
(holding that PCRA petitioner must raise allegations of ineffective assistance
of PCRA counsel in the Rule 907 response); Commonwealth v. Rigg, 84 A.3d
1080, 1085 (Pa. Super. 2014) (a petitioner can preserve the issue of PCRA
counsel’s ineffectiveness by including that claim in his Rule 907 response or
raising the issue while the PCRA court retains jurisdiction).

10   The Suggested Standard Jury Instruction is:

        First, you should view the testimony of an accomplice with
        disfavor because it comes from a corrupt and polluted source.

        Second, you should examine the testimony of an accomplice
        closely and accept it only with care and caution.

        Third, you should consider whether the testimony of an
        accomplice is supported, in whole or in part, by other evidence.
        Accomplice testimony is more dependable if supported by
        independent evidence. [However, even if there is no independent
        supporting evidence, you may still find the defendant guilty solely
        on the basis of an accomplice’s testimony if, after using the special
        rules I just told you about, you are satisfied beyond a reasonable
        doubt that the accomplice testified truthfully and the defendant is
        guilty.]

Pa. SSJI (Crim) 4.01.

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Specifically, Pierce was the original source of the deadly heroin, while Woodard

accompanied Lowe and Appellant to get the heroin. Appellant’s Brief at 8.

Because both witnesses were central to the Commonwealth’s case, Appellant

believes that there was no reasonable basis for trial counsel not to request the

instruction, and that the outcome of his trial would have likely been different

if the jury had received the instruction. Id. at 9-10.

      With respect to the corrupt and polluted source instruction, this Court

has explained:

      It is the rule in Pennsylvania that the testimony of an accomplice
      of a defendant, given at the latter’s trial, comes from a corrupt
      source and is to be carefully scrutinized and accepted with
      caution; it is clear error for the trial judge to refuse to give a
      charge to this effect after being specifically requested to do so.
      The justification for the instruction is that an accomplice witness
      will inculpate others out of a reasonable expectation of leniency.
      An accomplice charge is necessitated not only when the evidence
      requires an inference that the witness was an accomplice, but also
      when it permits that inference. Thus, if the evidence is sufficient
      to present a jury question with respect to whether the
      prosecution’s witness was an accomplice, the defendant is entitled
      to an instruction as to the weight to be given to that witness’s
      testimony. Where, however, there is no evidence that would
      permit the jury to infer that a Commonwealth witness was an
      accomplice, the court may conclude as a matter of law that he
      was not an accomplice and may refuse to give the charge. This is
      so because a trial court is not obliged to instruct a jury upon legal
      principles which have no applicability to the presented facts.
      There must be some relationship between the law upon which an
      instruction is required and the evidence presented at trial.

Commonwealth v. Hall, 867 A.2d 619, 630 (Pa. Super. 2005) (quotations

and citation omitted).




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      We have defined “an ‘accomplice’ [a]s an individual who knowingly and

voluntarily cooperates with or aids another in the commission of a crime.

Thus, and in following with the prior statement, a showing of mere presence

at the scene of a crime is insufficient to support a conviction:      evidence

indicating participation in the crime is required.” Id. (quotation and citations

omitted); see also 18 Pa.C.S. § 306(c)(1) (“A person is an accomplice of

another person in the commission of an offense if … with the intent of

promoting or facilitating the commission of the offense, he: (i) solicits such

other person to commit it; or (ii) aids or agrees or attempts to aid such other

person in planning or committing it[.]”).

      As to the first prong, though there is no dispute that the instruction was

not requested, Appellant must still show that he would have been entitled to

the instruction if timely requested at trial.   The statute for drug delivery

resulting in death defines the offense as follows:

      A person commits a felony of the first degree if the person
      intentionally administers, dispenses, delivers, gives, prescribes,
      sells or distributes any controlled substance or counterfeit
      controlled substance in violation of section 13(a)(14) or (30) of
      the act of April 14, 1972 (P.L. 233, No. 64), known as The
      Controlled Substance, Drug, Device and Cosmetic Act, and
      another person dies as a result of using the substance.

18 Pa.C.S. § 2506(a) (footnote omitted).

      According to his own testimony, Pierce sold the heroin that was

eventually ingested by Lowe and caused his death. While his potential criminal

liability would not change whether it was Appellant or Woodard who then gave


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it to Lowe, there was sufficient evidence to present an inference that he was

an accomplice to drug delivery resulting in death.

      Additionally, Woodard was at the very least an accomplice to the

purchase of the heroin in violation of 35 P.S. § 780-113(a)(16), which

prohibits “Knowingly or intentionally possessing a controlled or counterfeit

substance[.]” At trial, she testified that she knew the purpose of the trip was

to buy heroin and that Lowe drove her car to buy the heroin from Pierce.

Based on this testimony, she participated and aided in the purchase of the

heroin that ultimately resulted in Lowe’s death; she was not merely present.

Accordingly, there was enough evidence for Appellant to establish the first

prong of his claim as to both witnesses.

      However, even if there was no reasonable basis for trial counsel not to

request the instruction, Appellant was not prejudiced as it is not reasonably

probable that the outcome of the trial would have been different if the jury

had received the instruction.

      In rejecting Appellant’s claim, the PCRA court explained:

      [A]lthough the standard accomplice testimony instruction was not
      provided to the jury the Court did instruct the jury in making
      assessment of credibility to determine whether the witnesses were
      biased or had an interest in the outcome as follows:

        You alone are the sole judges of credibility. I will mention
        some of the factors which may bear on that determination.
        Whether the witness has an interest in the outcome of the
        case or has a friendship or animosity toward other persons
        concerned in the case, the behavior of the witnesses on the
        witness stand, his or her demeanor, his or her manner of
        testifying, whether he or she shows any bias or prejudice

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             which might color his or her testimony. [N.T., 9/30/15, at
             634-35].

             You should consider whether the witnesses appear to be
             biased or unbiased, whether they were interested, or
             disinterested persons and you should consider the other
             factors which go into their reliability. [Id. at 638].

       Finally, even if the accomplice testimony instruction had been
       given, the evidence was overwhelming from three witnesses
       Pierce, Woodard and Piquadio that [Appellant] alone provided the
       lethal dose of heroin to Lowe. Accordingly, the instruction would
       not have changed the outcome of the proceedings, especially due
       to the testimony of the [Appellant’s] friend Piquadio.

PCRA Court Opinion, 2/18/20, at 4.

       At trial, Woodard acknowledged that she had related charges pending

and was asked whether any promises had been made to her for testifying.

N.T., 9/28/15 at 33, 126. Likewise, Pierce was asked if his testimony was

influenced by his potential criminal liability for his role in Lowe’s death. Id. at

143. Trial counsel followed up with Woodard on her charges, asking her if she

had been promised anything for her testimony. Id. at 105-06. Then, during

his closing statement, trial counsel argued that Woodward was lying in part to

avoid criminal liability. N.T., 9/30/15, at 589 (“If the facts fall the other way,

she could be on the hook for this exact event.”), 597 (“[Woodard] knew if she

didn’t come up with a better story she was on the line for this.”). The jury

was, therefore, apprised that Woodard’s and Pierce’s testimony was

potentially influenced by their roles in Lowe’s death and their potential criminal

liability.




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      With   the   jury   aware   of    their   interests   in   testifying   for   the

Commonwealth, the trial court gave general instructions about how to assess

the witnesses’ testimony, including, as noted in the PCRA court’s opinion, to

consider whether they had any interest in the outcome of the case. Under

similar circumstances, our Supreme Court has found that a PCRA petitioner is

not prejudiced by trial counsel’s failure to seek and obtain a corrupt and

polluted source jury instruction.      See Commonwealth v. Wholaver, 177

A.3d 136, 166 (Pa. 2018) (finding no prejudice for failing to request

accomplice instruction where jury was apprised of witnesses’ plea agreements

and trial court provided general instructions for assessing witnesses’

credibility); see also Commonwealth v. Smith, 17 A.3d 873, 904-07 (Pa.

2011) (finding the same).

      Moreover, the PCRA court found that the Commonwealth presented

overwhelming evidence that Appellant gave the heroin to Lowe.                 Besides

Woodard’s direct eyewitness testimony, the Commonwealth presented

evidence that Appellant not only admitted to a friend that he gave the heroin

to Lowe, but also that he was attempting to get Pierce to testify that he initially

gave the heroin to Woodard. N.T., 9/28/15, at 180-81 (testimony of Kaitlyn

Piquadio). Pierce corroborated the attempted fabrication at trial, testifying

that Appellant asked him to give a different version of what happened. Id. at

142. Additionally, whether Pierce gave the heroin to Appellant or Woodard

would not change his potential accomplice liability, thus weakening Appellant’s


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claim that Pierce was lying in order to avoid criminal liability. Accordingly, in

light of all this evidence, together with the trial court’s general instructions on

witness credibility, the PCRA court did not err in finding Appellant’s claim as

not warranting relief.

                                       III.

      Appellant next claims that PCRA counsel was ineffective for failing to

raise a claim based on Brady v. Maryland, 373 U.S. 83 (1963), because the

Commonwealth did not give the defense information about Pierce’s unrelated

pending criminal case in Potter County. Appellant’s Brief at 11.

      We set forth the following with respect to a Brady claim:

      Under Brady[ ] and subsequent decisional law, a prosecutor has
      an obligation to disclose all exculpatory information material to
      the guilt or punishment of an accused, including evidence of an
      impeachment nature. To establish a Brady violation, an appellant
      must prove three elements: (1) the evidence at issue is favorable
      to the accused, either because it is exculpatory or because it
      impeaches; (2) the evidence was suppressed by the prosecution,
      either willfully or inadvertently; and (3) prejudice ensued.

Commonwealth v. Spotz, 47 A.3d 63, 84 (Pa. 2012).

      Appellant is not claiming that Pierce had an agreement with the

Commonwealth to receive favorable treatment in his pending criminal case in

exchange for testifying at Appellant’s trial. Instead, he merely alleges that

Pierce had pending criminal charges in Potter County at the time of the trial,

and that the Commonwealth had a duty to disclose the charges to Appellant

as potential impeachment evidence.         Even if there were no agreements,




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Appellant argues, the Commonwealth committed a Brady violation by not

disclosing the charges. Appellant’s Brief at 12.

      However, Pierce’s pending criminal charges would have been public

information that was equally accessible to Appellant and his trial counsel at

the time of trial. Appellant is not alleging that the Commonwealth took any

actions to hinder or block him from learning of the charges, nor has he alleged

that Pierce had any kind of agreement with the Commonwealth that it failed

to disclose in discovery. This being the case, the Commonwealth cannot be

deemed to have withheld any evidence in violation of Brady.               See

Commonwealth v. Ligons, 971 A.2d 1125, 1146 (Pa. 2009) (citing

Commonwealth v. Brown, 872 A.2d 1139, 1148 (Pa. 2005) (holding that

the Commonwealth has no obligation to provide a defendant with the criminal

history of the victim where that record is equally accessible to the defense));

Commonwealth v. Spotz, 896 A.2d 1191, 1248 (Pa. 2006) (“It is well

established that no Brady violation occurs where the parties had equal access

to the information or if the defendant knew or could have uncovered such

evidence with reasonable diligence.”) (internal citation omitted).

      The PCRA court correctly concluded that Appellant’s ineffective

assistance of counsel claim based on an alleged Brady violation lacked

arguable merit.




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                                       IV.

      In his last claim, Appellant argues that PCRA counsel should have raised

trial counsel’s failure to request a bill of particulars. The PCRA court addressed

this claim in its Rule 1925(a) opinion:

      [Appellant] argues that the failure of trial counsel to request a Bill
      of Particulars allowed the Commonwealth to present multiple
      theories as to how the victim died. The Court finds no merit to
      [Appellant’s] claim. The Affidavit of Probable Cause recites that
      the arresting officer, Chief Brackman, spoke with forensic
      pathologist, Dr. Michael Coyer who confirmed that the victim died
      as a result of heroin overdose. The Commonwealth’s Information
      specifically states that [Appellant] was charged with distributing
      heroin which resulted in the death of Lowe. At trial the Court
      heard no other theory espoused by the Commonwealth or its
      witnesses other than [Appellant] provided heroin to Lowe who
      died as a result of the injection of same. Accordingly, the Court
      determines that the failure to request a Bill of Particulars by trial
      counsel would not have affected the outcome of the trial.

PCRA Court Opinion, 2/18/20, at 5.

      We find no error in this analysis.      Moreover, in his two-paragraph

argument, Appellant does not explain how a bill of particulars would have

helped his case, alleging merely that his counsel was unable to prepare his

defense. On the contrary, trial counsel made the cause of Lowe’s death a

centerpiece of Appellant’s defense, even obtaining his own expert to testify

that he could not conclude that Lowe’s death was caused by the ingestion of

heroin because of the presence of other substances in Lowe’s system.

Accordingly, Appellant’s final claim of ineffectiveness based on the failure to

request a bill of particulars lacks merit, and the PCRA court did not err in

denying it.

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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/26/2020




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