*1
Submitted Jan. 2000. Dec.
Decided 2001.
Reargument May Denied 2002. *10 Nickerson, Moreno, H. Bel Philadelphia, Jerome James H. Air, MD, for appellant. Fisanick, Ass’n, A. Attys. Pa. Robert
Christian A. Dist. Gen., Graci, Atty. appellee. for Office of C.J., FLAHERTY, ZAPPALA, CAPPY, Before SAYLOR, NIGRO, CASTILLE, NEWMAN and JJ. THE ANNOUNCING JUDGMENT OPINION THE OF COURT Chief FLAHERTY. Justice right order of
This is an
as of
from an
the Court
appeal
County
denied
relief
Common
of Cambria
which
PCRA
Pleas
Simmons,
appellant,
con-
capital
case. The
Ernest
was
violently
murder
and stran-
first-degree
pounding
victed of
for
woman, Anna Knaze.
factual
gling
eighty-year-old
an
The
v.
described Commonwealth
fully
background of the case
Simmons,
(1995),
211,
In post-conviction order for cognizable claims to be PCRA, under the all of requirements of the PCRA must be set out in petitioner’s example, brief. For a PCRA petitioner claiming who is ineffectiveness of cоunsel must set out following:
1. of; complained ineffectiveness 2. they circumstances as case relate to the ineffectiveness;
claimed 3. that the ineffectiveness undermined the truth-determin-
ing process; 4. there could have adjudication been no reliable
guilt innocence; or 5. the claim being now made was not previously waived;
litigated or 6. that the to litigate failure the issue earlier was not the
result of any rational strategic or tactical by decision counsel;
7. that there is merit to claim ineffectiveness; of 8. that counsel had no conduct; reasonable basis for his 9. that there is a probability reasonable that but for the
act or omission challenged, the of proceed- outcome ing would have been different. §
Title 9543(a.)(2)(3)(4); Pa.C.S. Commonwealth v. Hollo way, 1039, 1044 (1999). 559 Pa. 739 A.2d
Therе are claims other than of ineffectiveness counsel may which pursuant be PCRA, made to the and for each such made, claim there are certain requirements in the PCRA itself which must be set out in order for the claim to cognizable. be requirements The of a claim, PCRA ineffectiveness stated above, only is example an of what must be out type set for one of claim.2 In order to avoid
2. petitioner confusion as to whether a has stated all claim, required that particular is for a each claim must contain a PCRA statement as required to what particular in order for that claim to be cognizable argument under the PCRA fully and supports that each of required petitioner elements. A may rely PCRA not on statements any in made other section of partially fully meeting his brief as or requirements of the claim at issue. allege Al-
Appellant’s process first four issues due errors. specify of the PCRA though does not the section appellant 9543(a)(2)(i). claims, § it is Under this to these applies which section, plead prove must and that petitioner a PCRA from: “A violation of the or sentence resulted conviction or or laws of this Commonwealth the Constitution Constitution which, circumstances of the of the States United case, truth-determining process particular so undermined adjudication guilt innocence could have that no or reliable 9543(a)(2)®.3 § place.” taken Pa.C.S. process four due claims of error is
The first these employed an undisclosed improperly that the Commonwealth after his communications his Sixth agent intercept state Appellant had neither right Amendment counsel attached. PCRA, any by required matters pleads proves nor of the he, allegedly illegal interceptions nor could for the fruits truth-determining trial and were introduced at never therefore, not have been process, could undermined. second, third, and fourth claims are process The due (2) process rights compro were state and federal due that argument in false engaged mised when the Commonwealth evidence; (3) exculpatory and that material suppressed the Commonwealth process suppressed due was violated when (4) reported laboratory reports concerning rape; the Commonwealth process due was violated when suppressed disposition it in the was involved favorable evidence concerning charges against rape-victim pur its her witness Pennsylvania chase violation of the gun of a Uniform 6105(a)(1). Act, § Firearms Pa.C.S.
Appellant fails to discuss these claims the context of the Specifically, appellant of the has failed to circumstances case. upon make in relative fashion to other evidence reference based, which and in the of that the conviction was absence discussion, to that this court is unable determine no reliable 9543(3) (4) inapplicable process § 3. 42 are because due Pa.C.S. and wrongly suppressed. suppres- Since the claims are that evidence was stages proceedings, sion known at of the it could not was not earlier litigated have been earlier. adjudication guilt place of at or innocence could have taken relief, therefore, appellant’s trial. No due. that trial
Appellant contends counsel was ineffective present for to failing impeachment evidence to discredit the testimony Margaret Cobaugh, appellant who said that to attempted rape early morning May in the her hours appellant 1992 and that then made reference to the Knaze Specifically, which had not yet homicide been discovered. it is alleged testimony that should counsel have introduced Knisel, Dorothy Cobaugh’s neighbor, next-door to contradict at Cobaugh’s testimony that of the sexual time assault she returning was home from visit with Knisel who had called her for in repairing oxygen Cobaugh assistance an tank. testified that she had unable to fix the tank and that been she called an company ambulance which to camе the scene and fixed tank. allegedly Knisel could have that testified Cobaugh time, did not visit at that her had not Knisel requested Cobaugh’s assistance with tank.
Appellant has failed to discuss this contention with refer- ence to the circumstances of the case. 42 Pa.C.S. 9543(a)(2)(h). § Specifically, referred, appellant has not fashion, relative to upon the other which evidence convic- his tion therefore, was based. It is impossible, to assess whether impeachment Cobaugh further would have had any effect in Hence, the face of all incriminating the other evidence. relief must be denied.
Next, appellant asserts that counsel was ineffective for failing to introduce of an evidence tacit alleged by admission Cobaugh that subjected she had not been to a battery sexual by аppellant. The asserted admission arises from the fact investigators that when defense to tried interview about her battery, the sexual immediately began yelling she them at leave. In the midst screaming, of her her husband told her to truth, tell but respond. agitated she did not was in She an state, waving nervous her arms and screaming she did not investigators. want talk to
420 claim, has failed to respect appellant again to this
With case. 42 circumstances of the Pa.C.S. discuss issue, 9543(a)(2)(ii). in this Specifically, § his discussion of upon which his has not described the other evidence appellant impossible This it to assess was based. makes conviction possible if such Cobaugh, of were impeachment whether admission, in any tacit would have had effect ground on the must, incriminating other evidence. Relief the face therefоre, be denied. for argued failing
It is that counsel was ineffective next penalty stage lay expert at various testimo present to regarding appellant’s background and mental health. The ny had a appellant would have indicated allegedly evidence problems. and emotional troubled childhood expert to present lay In counsel’s failure asserting testimony, to discuss the circumstances appellant fails case, imposition favoring the evidence sen- particularly therefore, It to impossible, of death. is assess whether tence testimony question in would have so under- absence of the adjudica- no truth-determining process reliable mined 9543(a)(2)(ii). place. § could have taken Pa.C.S. Re- tion accordingly be must denied. lief Appellant ineffectively next contends that trial counsel phase strategy designed to show that engaged penalty and so could being Knaze unconscious while assaulted became 9711(d)(8) (torture § have been tortured. not See Pa.C.S. circumstance). It claimed that counsel’s aggravating as and harmful details questioning unnecessarily graphic elicited report. the autopsy from this with
Appellant regard fails to discuss claim 9543(a)(2)(h). case, § For circumstances of Pa.C.S. is no of whether details of these example, there discussion at graphic already placed had been evidence matters appellant penalty guilt phase of trial. Nor does describe other sentence, phase supporting imposition of the death as evidence necessary for would be consideration of whether mаtters complained of significant were enough have affected the reliability adjudication. of the *14 is
It next asserted that trial instruction the court’s torture, on aggravating the of 42 circumstance Pa.C.S. 9711(d)(8), § vague.4 was court in unconstitutionally The aggravating inapplicable structed that this circumstance was to appellant unless intended inflict amount of a considerable pain suffering, or and that the must com murder have been heinous, in “unnecessarily mitted a manner that was atrocious cruel, or exceptional manifesting depravity.” This was identi cal to regarding aggravating instructions an factor torture as Edmiston, Commonwealth v. that previously upheld. we have 210, 236, 1078, (1993). instruction, 535 Pa. 634 A.2d 1091 The therefore, and, proper, appellant’s was to that the extent argument may challenge be construed аs a to aggravating itself, circumstance we note that a challenge constitutional vagueness Common based on already rejected. has been Pursell, wealth v. 212, 238, 183, (1985). 508 Pa. A.2d 495 196 In penalty phase, aggrava jury found as an ting circumstance that appellant “significant history has a felony involving convictions the use or to threat violence 9711(d)(9). person,” § 42 Pa.C.S. Appellant contends this is aggravating unconstitutionally in vague, circumstance that it provides no definition of the term “significant.” This conten tion patently meritless, as rejected this court has repeatedly Rivers, very argument. Commonwealth v. E.g., same 537 394, 412-13, 710, (1994). Pa. 644 A.2d 719
Next, appellant asserts that the trial court erred in jury instructing “aggravated things circumstances are about killing and killer degree which make a first murder more and deserving case terrible penаlty, the death while mitigating circumstances are things those which make deserving case less terrible and less of death.” This simply instruction placed aggravating and mitigating circum- raised, patently 4. reject When are we meritless claims will as such them regard they conformity without to whether have been in briefed with appellant’s burden under the PCRA. 422 language jury. for the It was not
stances
common sense
King,
In Commonwealth v.
554 Pa.
misleading
or
erroneous.
331, 364,
(1998),
upheld
virtually
we
721 A.2d
779-80
conformity
its
identical instruction
noted
with
Penn-
Jury
Ac-
sylvania Suggested Standard Criminal
Instructions.
Saranchak,
v.
158, 174-76,
Pa.
675
Commonwealth
cord
(1996)
instruction,
a similar
(upholding
A.2d
276-77
is free to use
own form of
noting that a “trial court
its
jury
legal
explain
order
often-difficult
expression
therefore,
is,
concepts”). This claim
without merit.
alleges
by appellant
next
raised
a violation
The
issuе
305(B)(1)(d) (Commonwealth’s duty to disclose
Pa.R.Crim.P.
identification)
pro-
and a due
photographic
circumstances of
Maryland,
Brady
under
U.S.
S.Ct.
cess violation
1194, 10
claim concerns what he
L.Ed.2d
This
*15
key
argument
a
is
by
a
witness. His
calls
“misidentification”
trial,
Cobaugh,
him at
had
Margaret
that
who identified
identify
mugbook;
was
a
failed to
him when she
shown
earlier
fact,
moreover,
this
the
failed to inform him of
Commonwealth
through
perjurious
affirmatively misrepresented it
the
and
Rok,
denied,
allegedly
during
who
testimony
detective
case,
rape
Cobaugh
in
that
had
preliminary hearing
been
Appellant argues
testimony
that this
mugbook.
shown a
false
103,
Agurs,
v.
97,
96
violated United States
427 U.S.
S.Ct.
States,
(1976);
405
Giglio
v. United
2392,
The essence of is he known idеntify mugbook to him from a he would Cobaugh’s failure which, asserts, an lineup, have he is requested never inherently risky strategy. He would instead have defense mugbook his in to recognize picture her to used failure trial. her identification at impeach mug- a Cobaugh The that was shown record reflects and that Rok identify appellant book and failed to Detective testified, separate rape proceedings, Cobaugh that never at mugbook. looked a argues The Commonwealth misspoke and detective it was not an intentional irrelevant, however, falsehood. It whether or not detective intended to appellant. mislead The misinformation was a violation of Pa.R.Crim.P. 573. Rule 573 (formerly Rule 305) promulgated response was of Brady. to the dictates Green, See Commonwealth v. 599, 607, 536 Pa. 640 A.2d provides, The rule in pertinent part, as follows: (B) BY THE DISCLOSURE COMMONWEALTH (1) MANDATORY cases,
In all request defendant, court on by the subject any to protective order which the Commonwealth might rule, obtain under this the Commonwealth shall dis- close to attorney the defendant’s following all of the re- quested information, items or provided they are material to shall, instant case. The Commonwealth applica- when ble, permit the defendant’s attorney inspect to copy or photograph such items.
(a) Any evidence favorable to the accused that is material guilt punishment, either or to and which is within the possession Commonwealth; or control of attorney for the 573(B)(1)(a). Pa.R.Crim.P. In the event of a violation of Rule “may the trial court order offending] party permit [the discovery inspection, or may grant continuanсe, may or prohibit offending] party introducing [the from evidence not disclosed, defendant, other than testimony of may or it *16 enter such other order as it just deems under the circum- 573(E). stances.” Pa.R.Crim.P.
In Kyles
v. Whitley,
419,
1555,
514 U.S.
115
131
S.Ct.
(1995),
L.Ed.2d 490
the United
Supreme
States
Court specifi
cally rejected the notion that Brady does not apply to evidence
only
“known
to police investigators and not to
prosecutor.”
the
Kyles,
438,
1555;
514
at
see also Strickler v.
U.S.
115 S.Ct.
Greene,
263, 280-81,
527
1936,
U.S.
119 S.Ct.
424 not prosecution that the is [the
To accommodate
view
only
known
to the
accountable for undisclosed evidence
change
to
from
police] would ... amount
a serious
of course
Brady
may
In
favor
be said
of cases.
the
it
line
State’s
police investigators
fail
no one
that
sometimes
doubts
is
they
know. But
prosecutor
to inform a
all
neither
any
“procedures
regulatiоns
doubt that
there
serious
carry
prosecutor’s]
to
and to
can be established
burden
[the
on each
insure communication
all relevant
information
v. United
Giglio
lawyer
with it.”
every
case to
who deals
States,
766,
150, 154,
768,
92
L.Ed.2d 104
S.Ct.
U.S.
(1972). Since, then,
to dis-
prosecutor
has
means
will, any
Brady responsibility
charge
if he
government’s
prosecutor
he
argument
excusing
disclosing
from
what
for
to
plea
not
to know about boils down to a
happen
does
police
prosecutor,
for
and even for the
substitute the
themselves,
government’s
as the
courts
final arbiters
obligation to
fair trials.
ensure
Thus,
Kyles,
438,
at
Thus there merit
claim of error.
governing
easily
such a violation is
stated.
The law
Brady,
Supreme
In
States
Court
that “the
the United
held
suppression
prosecution of
favorable to an
by the
evidence
upon request
process
violates due
evidence
accused
where the
or
guilt
punishment irrespective
is material
to
of the
either
faith or
faith of the
at
good
prosecution.”
bad
373 U.S.
Supreme
subsequently
1194.
Court
that the
S.Ct.
The
held
duty
applicable
such evidence is
if there has
disclose
even
Agurs,
United States v.
request
accused,
no
by
been
97, 107,
(1976),
The first two present. are The evidence was appellant favorable to in impeachment that it was evi dence and it was inadvertently suppressed by prosecution. The remaining element is prejudice. context, In preju this requires dice showing proba there exists “a reasonable that, bility had the defense, evidence been disclosed to the result of the proceeding would different,” have been “whether ‘the favorable could reasonably evidence be taken to put the whole case such a light different as to undermine ” Strickler, confidence the verdict.’ supra.
The nondisclosure of Cobaugh’s identify appellant failure to from a mugbook does not come establishing close to prejudice which would appellant entitle to relief. In first place, there no evidence of the circumstances of Cobaugh’s viewing mugbooks. of the important, More pick failure to out a black-and-white photograph from among pales hundreds insignificance when Cobaugh appellant later identified from a addition, multiple was
lineup. Cobaugh In one of witnesses question and there no serious appellant, who identified was *18 Thus, appellant’s prosecution. in foreclosure identification Cobaugh’s identification opportunity impeaching mere informing identify that' failed by jury at trial she had to begin a does to establish a appellant mugbook from not trial that the result of the would have probability reasonable different, reasonably put or be taken as to the whole case been light in in such a as to undermine confidence different verdict. conclude, therefore, appellant not to that entitled
We ground. on relief this imper next claims that
Appellant
the Commonwealth
missibly
challenges
its peremptory jury
to exclude
exercised
in
gender,
on
basis of their
violation of
potential jurors
T.B.,
ex
114
J.E.B. v. Alabama
rel
U.S.
S.Ct.
(1994),
I,
Pennsyl
28 of the
On
this court held that
had “failed
direct
facts or
which raise an infer
any
to establish
circumstances
of purposeful
ence
discrimination based on race” which would
79, 106
Batson v.
Kentucky,
have violated
U.S.
S.Ct.
Simmons,
A.2d
Next, appellant the claim that trial raises counsel failing was for “life-qualify”5 ineffective jury appellate was for failing counsel this ineffective raise claim. resulted, appellant asserts, This empaneling jury of a against which was him biased and biased favor the death *19 argument penalty. rejected This has by this court in been Keaton, 442, 529, v. Commonwealth Pa. 556 729 A.2d 543 (1999), where we held that is no requirement jury there that a be life-qualified, but that if a life-qualify defendant chooses to a jury, permit a trial court must him to do so. There is no implication holding or that not life-qualify jury the choice to a advocacy amounts to so glaringly substandard as to amount to deprivation right of the Sixth Amendment to counsel. Coupled “life-qualification” argument with the are claims to appellant alleges related three veniremen: jurors Foley and Vaughn Kathleen Terrol improperly were empaneled after equivocating on their attitudes towards the penalty words, death other failing to appreciate the “awe —in responsibility deliberating verdict; some” of on a life or death he also claims that Higdon Patricia was improperly excluded for cause because she asserted that she could set aside her beliefs and law follow the after had unequivocally she told the court not she did believe in death penalty. These claims "Life-qualification” 5. process by refers to the which or counsel court opinion identifies and excludes those veniremen who have a fixed always that a imposed sentence of death should be for a conviction of Keaton, 442, first-degree murder. v. Commonwealth Pa. A.2d 529, (1999). 542 n. 9 cognizable and are not under as trial error
are raised PCRA, they as have been waived. by that the trial court erred next claim is
Appellant’s penalty jury during written instructions to providing failing to all were ineffectivе phase prior and that counsel This issue is waived. appeal. this issue on object pursue argument presented tag-line, the But the ineffectiveness for error, alleging trial court rather appeal if a direct as this were Apparently appellant mis appeal it is. than the PCRA of an ineffectiveness that the mere addition takenly believes argued as trial court error renders upon label a claim placed of the provisions the waiver PCRA. immune from claim claims trial are not reviewable as of Such claims any such claims are waived under court because error and, 9543(a)(3), 9544(a),(b), PCRA, §§ as we see Pa.C.S. clear, practice capital waiver relaxing have our made E.g. to Com appeals capital appeals. not PCRA does extend Albrecht, 693, 700 554 Pa. 720 A.2d monwealth any destroying in addition to contrary practice, A cases, run “afoul of the in criminal would prospect finality [PCRA,] from very of the which excludes waived issues terms Id. at 720 A.2d at cognizable PCRA claims.” the class PCRA, which are cognizable under the 700. otherwise Claims Thus, waived, contrary appellant’s simply unavailable. are misunderstanding, allegation his of ineffectiveness apparent error, of trial his waived claim counsel cannot serve revive of the claim. Waived claims they nor “excuse” his waiver do *20 place no under PCRA. simply have claims, however, un cognizable are Ineffectiveness PCRA; indeed, they amount to the lifeblood of the der the matter, take petitioners routinely practical PCRA. As a PCRA of of and raise them under the rubric claims trial error waived ineffectiveness, many “layers” as of ineffectiveness as alleging absolutely it is necessary to review. But essential are obtain claims not the same as to that ineffectiveness are recognize they claims from which derive. Inef underlying the waived claims of independent, discrete constitu- fectiveness claims are dimension, arising tional under They the Sixth Amendment. are, essence, i.e., of malpractice, claims constitutional claims incompetent effectively that counsel was so as to have de- of his or prived right the defendant her constitutional to Allegations counsel. of ineffectiveness are serious matters not only because of prejudice muring to a defendant those constitutionally instances when counsel indeed has been in- competent, allegation grave but alsо is a because itself one claim, to level at an The attorney. underlying non-cognizable dimension, which often is not itself even constitutional upon only analysis. relevant as it bears the Sixth Amendment recognizes The PCRA ineffectiveness claims as labeling distinct claims—not mechanisms to evade the effect of underlying waiver of the claims.6 Claims ineffectiveness subject to specific pleading proof requirements are and under boilerplate assertions, PCRA. Mere as such those made here, inadequate prove are right denial of the effective necessary to counsel to warrant PCRA relief.
Furthermore, the PCRA provisions regarding in require effectiveness no more than what a constitutional inef analysis always fectiveness required, regardless has of wheth posed er the сlaim is under the or at PCRA an earlier appropriate stage litigation. always pre Counsel is effective; sumed unshifting prove burden to ineffective always upon ness rests the defendant and defendant must always plead both prove and performance counsel’s was prejudice deficient that actual from resulted the deficient performance. Boilerplate allegations have never been suffi cient to discharge this affirmative pre burden rebut sumption Pettus, of effectiveness. Commonwealth 492 Pa. 558, 563, (1981) (court 424 A.2d will not consider Thus, strictly speaking, 6. a successful demonstration ineffectiveness waiver, operate not does to “excuse” a occasionally, as we have perhaps imprecisely, suggested. somewhat The ineffectiveness claim is distinct, cognizаble serving claim underly- different interests than the ing only waived claim. It affects waiver in limited sense that the event, say trial, same improper the introduction of evidence at could form basis for a claim appeal, direct of trial error on or a claim of PCRA, ineffectiveness if under the the direct claim was waived.
430 assistance). also See Com
boilerplate claims of ineffective 312, 1037, Morris, 296, v. Pa. 684 A.2d 1045 monwealth 546 (1996) summarily rejected; claim (speculative of ineffectiveness vacuum) (citing in be raised claims cannot ineffectiveness Hentosh, 325, 334, cases); Pa. 554 A.2d v. 520 Commonwealth 37-38, 20, (1989); 2, 645 v. 538 Pa. Ragan, 24 Commonwealth (1994) 811, is basis for relief (boilerplate allegation 829 no A.2d in capital appeal). PCRA requirements dual that ineffec
Similarly, the PCRA’s
“in
of the
considered
the circumstances
tiveness claims be
deficient
petitioner
cаse” and that
the
show
counsel’s
adjudication
guilt
or
in an
performance
unreliable
resulted
ineffectiveness
simply mirror
the constitutional
innocence
prejudice requirement.
The
analysis under Strickland’s
that,
determining
Washington,
Court noted
Strickland
the
prejudice,
totality
the court “must consider the
evidence
668,
2052,
jury.” 466
104 S.Ct.
judge
before the
or
U.S.
(1984). Indeed,
as
circuit
Appellant’s next claim is that after
the Common
wealth allegedly injected the issue of
dangerousness
his future
trial,
into his
he was entitled to an instruction that if he were
sentence,
to receive a life
he would
statutorily ineligible
be
for
Carolina,
parole,
Simmons v. South
required by
as
512 U.S.
154,
2187,
114 S.Ct
129
133
L.Ed.2d
He adds that
trial counsel was
in failing
ineffective
to insist on such an
instruction
prior
and that
appellate counsel was ineffective for
failing to raise
on
appeal.
the issue
direct
Notwithstanding
appellant’s assertion,
the issue was
and
raised
decided ad
versely to him on
Simmons,
Commonwealth v.
appeal.
direct
25,
Appellant
if,
asserts
determined,
as we have
none
preceding
alleged errors and omissions of counsel
provides
relief,
a basis for
then the cumulative effect of the
alleged errors and omissions works a denial of
process.
due
We have
recognize
declined to
any generalized cumulation of
doctrine,
errors
noting, “it is axiomatic that ‘no quantity of
meritless issues can aggregate to form a denial of
pro
due
”
Rollins,
Commonwealth
cess.’
v.
532, 562,
558 Pa.
738 A.2d
435,
(1999)
452
(quoting Commonwealth v. Travaglia, 541 Pa.
108, 139,
denied,
352,
(1995),
cert.
A.2d
1121,
516 U.S.
(1996)).
S.Ct.
attempt “layering” to establish ineffectiveness being generally See Com- the issues deemed waived. avoid Marrero, n. 1 561 Pa. 748 A.2d 203-04 monwealth claims). Hence, (2000) is no there (layering of ineffectiveness claim to be addressed. substantive reasons, common order of the court of foregoing For the pleas affirmed. concurring opinion. a CAPPY files
Justice concur in the CASTILLE Justice NIGRO Justice result. dissenting opinion in which Justice
Justice SAYLOR files joins. ZAPPALA *23 CAPPY, concurring.
Justice
for the
by
majority
I concur in
result reached
in
fully
my concurring opinion
as
set forth in
reasons
more
(2001).
Lambert,
346, 797
v.
568 Pa.
A.2d 232
Commonwealth
SAYLOR, dissenting.
Justice
similarly
my dissenting opinion
in
in
As
Common-
reflected
239,
J.,
Rivers,
(2001)(Saylor,
v.
567 Pa.
In the lead’s treatment troubling able majority confronting Court is to avoid Appellant’s direct re- light circumstances that came after particular, presented In is with view became final. the Court pre-trial by multiple suppression instances of the Common- possession. in its Two such exculpatory wealth material
433 (albeit by explained instances are admitted the Commonwealth inadvertence), neglect, poor keeping, terms of record and is, my view, meritoriously the other not disputed. The 1) by suppressed prosecution recordings items include: post-arrest of multiple electronic surveillance conversations Appellant between and his girlfriend, who Common- acted as wealth agent questioning Appellant regarding in terms of recording answers, case and his and ultimately as a testified 2) trial; witness concerning Commonwealth at forensic reports physical scenes, samples taken from two crime the murder subsequent which, scene and the scene of a sexual assault according case, to the theory of Commonwealth’s was 3) killer; perpetrated by the evidence that the victim of identify the latter crime was Appellant mug unable to from a book shortly after the assault.
A Brаdy claimant is
to relief
there is a
entitled
where
that,
reasonable likelihood
suppressed
had the
evidence been
defense,
disclosed to the
proceeding
the result
would
Greene,
263,
have been different. See Strickler v.
527 U.S.
280,
1936, 1948,
(1999).
119 S.Ct.
I suffered would not conclude Brady present- only with one of the violations here confronted however, Each, potential of a advan- deprived the defense ed. Appellant’s pres- tage casting upon in terms of doubt either scenes, impeaching or in of at crime terms ence key government The electronic sur- credibility of a witness. Appellant’s fact of status of veillance and the associated agent poten- confidant as a had girlfriend and Commonwealth during testimony her as a impeachment tial value Common- a witness; reports possessed degree wealth the forensic value;1 identify assault victim’s failure to exculpatory and the book, worth as mug again, impeachment a had Appellant from of this important witness. None against an Commonwealth defense, Appellant after was disclosed to the even information discovery for sur- pre-trial request a electronic specific made Appel- photographic veillance materials identifications view, In by my the collective prosecution lant witnesses.2 laboratory analyses failed to 1. The of evidence from the crime scenes linking any Appellant to sexual physical reveal evidence either the murder; addition, belonging hair to neither assault human or Appellant rape upon or her was nor the victim husband found weight may clothing. Although the evidence have been victim’s modest, this degree. favor the defense to Other courts have did some it follows; recognized in similar circumstances as the effect Brady by alleges rights prosecu- that his were violated Petitioner by the FBI tion’s to release the results scientific tests made failure physical until that was late on evidence evidence introduced certain correctly characterized the test results in his The district court trial. ‘exculpatory.’ rather than But such a characterization as ‘neutral’ meaning; may, of its little evidence such as this because often has by neutrality, be to the While it not tend to favorable accused. does crime, any it absence from scene of the does means establish his link that a number of factors which could the defendant demonstrate to the do not. crime (4th Cir.1974); People Slayton, 478-79 Patler v. Nichols, 503 F.2d accord Ill.2d 349 N.E.2d regard, Supreme has 2. In this Court observed: incomplete response specific The that an to a Government notes evidence, request only deprives the defense of certain but also has not representing not to the defense that the evidence does effect of misleading representation, exist. In reliance on this the defense defenses, might independent investigation, trial lines of or abandon pursued. strategies it otherwise would have *25 all on part effect of of these omissions the of the Common- a upon reliability wealth cloud creates the of verdict and circumstances, judgment of these I sentence. Under would award a new trial. Z A joins dissenting opinion.
Justice APPAL this
Supreme Pennsylvania. Court of 13,
Aug. 2002. ORDER PER CURIAM. NOW,
AND
this 13th day August,
Petition for
GRANTED,
Appeal
Allowance of
is hereby
LIMITED to the
Superior Court’s conclusion that Petitioner’s ineffectiveness
claim
cognizable
PCRA,
was not
under
Order
Superior
VACATED,
is
Court
and the matter is REMAND-
ED for
consideration
merits
Petitioner’s ineffective
agree
prosecutor’s
We
respond fully
Brady
that the
failure to
to a
request
impair
may
adversary process
in this manner. And the
evidence,
specifically
requests
more
putting
defense
certain
thus
value,
prosecutor
on notice of its
the more
it is for
reasonable
defense to
from
assume
the nondisclosure that the evidence does not
exist,
pretrial
and make
and trial decisions on the basis of this
assumption.
667, 682-83,
3375, 3383-84,
Bagley,
United States v.
473 U.S.
105 S.Ct.
87 L.Ed.2d
Agurs,
See also United
States v.
U.S.
2392, 2399,
("When
prosecutor
S.Ct.
receives request, any and relevant the failure to make re- seldom, ever, excusable.”) sponse if