Com. v. Berete, M., 1609 MDA 2016

Background

In February 2011 Reading police stopped Mohamed Sita Berete for slow driving and tinted windows; during the stop Officer Cortazzo observed suspicious movements, asked Berete to exit, and was struck by Berete, who then fled.
Officer Cortazzo deployed a Taser; a handgun fell next to Berete when he fell; the gun belonged to a store owner who denied giving it to Berete. Narcotics were found in the vehicle.
A jury convicted Berete of multiple offenses including carrying a firearm without a license, escape, receiving stolen property, and possession of a controlled substance; he was sentenced to 62–168 months.
Berete filed a PCRA petition claiming after-discovered evidence (a newspaper report that Officer Cortazzo was terminated) and inconsistent officer testimony would have changed the verdict; he also alleged PCRA counsel were ineffective for failing to pursue these issues.
The PCRA court held an evidentiary hearing: officers testified they had not recanted trial testimony and there was no proof Cortazzo was terminated rather than retired; the court denied relief and denied counsel’s ineffectiveness claims.
The Superior Court affirmed, finding many claims waived as direct-appeal issues and that Berete failed to satisfy the multi-pronged ineffective-assistance standard and did not show the alleged new evidence would change the outcome.

Issues

Issue	Plaintiff's Argument (Berete)	Defendant's Argument (Commonwealth/PCRA court)	Held
1. After-discovered evidence that Cortazzo was terminated and officers gave inconsistent testimony	Newspaper report of Cortazzo’s termination + officers’ inconsistent statements would impeach credibility and show falsified reports, warranting new trial	Hearing testimony showed officers did not recant; no proof Cortazzo was terminated; evidence lacked arguable merit and would not alter verdict	Denied — no arguable merit; credibility findings supported; no prejudice shown
2. Juror bias (prospective juror related to prosecutor)	Juror No.16 had connections and expressed doubts about fairness, depriving Berete of impartial jury	Claim was raised as if on direct appeal and therefore waived in PCRA collateral review	Waived — not considered on PCRA review
3. PCRA counsel ineffective for failing to investigate or pursue after-discovered evidence	Counsel’s Turner/Finley letters and withdrawals ignored meritorious claims and failed to investigate termination and inconsistencies	Berete failed to develop how counsel’s actions met all three Pierce prongs; no reasonable probability of different outcome shown	Denied — counsel presumed effective; Berete failed to prove second and third prongs of ineffectiveness test
4. Alleged violation of sequestration order and Brady failure to produce dashcam video	Cortazzo spoke with prosecutor/witnesses and dashcam withheld, undermining fairness and Brady obligations	Raised as direct-appeal type claim and thus waived; no proof of prejudice or Brady violation at PCRA stage	Waived/Denied — treated as direct appeal issues and not cognizable in PCRA; no prejudice established

Key Cases Cited

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) (standards for counsel withdrawal and counsel duties in post-conviction context)
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (procedural framework for no‑merit letters in PCRA proceedings)
Commonwealth v. Zook, 887 A.2d 1218 (Pa. 2005) (PCRA eligibility requires petitioner plead one of statutory grounds)
Commonwealth v. Pierce, 645 A.2d 189 (Pa. 1994) (three‑prong test for ineffective assistance of counsel)
Commonwealth v. D’Amato, 856 A.2d 806 (Pa. 2004) (requirement to address each layer of ineffectiveness with analysis)
Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009) (procedural preservation of claims when counsel seeks withdrawal)
Commonwealth v. Spotz, 84 A.3d 294 (Pa. 2014) (definition of reasonable probability to undermine confidence in outcome)
Commonwealth v. Chambers, 807 A.2d 872 (Pa. 2002) (prejudice standard for ineffectiveness claims)