# Commonwealth v. Natividad, R., Aplt.

> Supreme Court of Pennsylvania · January 23, 2019 · 200 A.3d 11

URL: https://www.frixlaw.com/law-library/cases/4360922

## Case

- **Full name:** COMMONWEALTH of Pennsylvania, Appellee v. Ricardo NATIVIDAD, Appellant
- **Court:** Supreme Court of Pennsylvania
- **Decided:** January 23, 2019
- **Citations:** 200 A.3d 11
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Dougherty, Wecht
- **Cited by:** 78 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4360922

## How later opinions describe it (automated extraction)

- holding that “appellant satisfied an exception to the PCRA’s time-bar with respect to this claim, as the facts upon which his Brady claim were predicated—that the Commonwealth withheld evidence pertaining to another suspect—were unknown to him until the Commonwealth was forced…
- finding appellant failed to comply with 60-day filing requirement, even though he filed petition within 60 days of date investigator secured favorable affidavit from witness; “it was the [prior] disclosure of [a] note that formed the basis of appellant’s [PCRA] claim.”
- concluding that although the appellant had satisfied an exception to the PCRA time bar which conferred jurisdiction, no relief was due as the issues were meritless
- concluding that claim raised promptly after the disclosure of material withheld by the Commonwealth satisfied the § 9545(b)(1)(i) and (ii) exceptions

## Opinion text

[J-54-2018]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

COMMONWEALTH OF PENNSYLVANIA, : No. 743 CAP
:
Appellee : Appeal from the Order dated February
: 14, 2017 in the Court of Common
: Pleas, Philadelphia County, Criminal
v. : Division at Nos. CP-51-CR-0400131-
: 1997 and CP-51-CR-0703121-1997.
:
RICARDO NATIVIDAD, : SUBMITTED: July 19, 2018
:
Appellant :

OPINION

JUSTICE DOUGHERTY DECIDED: January 23, 2019
This is a direct capital appeal from an order dismissing a petition filed pursuant to

the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§9541-9546, following an evidentiary

hearing limited to one issue.1 Appellant Ricardo Natividad presents the Court with

multiple challenges pursuant to Brady v. Maryland, 373 U.S. 83 (1963) (prosecution must

disclose evidence favorable to the accused that is material either to guilt or punishment),

none of which afford him relief. We therefore affirm the order dismissing appellant’s

petition.

I. Background

We previously set forth the underlying facts in our opinion affirming the judgment

of sentence. Commonwealth v. Natividad, 773 A.2d 167, 171-73 (Pa. 2001) (Natividad I)

1This Court has jurisdiction over direct appeals from the grant or denial of post-conviction
relief in a death penalty case. 42 Pa.C.S. §9546(d).
(Opinion Announcing the Judgment of the Court), cert. denied, 535 U.S. 1099 (2002). As

these facts are directly relevant to the Brady claims raised in this appeal, we recite them

again at some length:

The evidence presented at trial established appellant’s involvement
in certain activities beginning at 2:00 a.m. on November 9, 1996 and
continuing through to approximately 11:00 p.m., November 9, 1996. About
2:00 a.m. on November 9, 1996, Michael Havens stopped to get a sandwich
at Philly’s Famous Cheesesteaks at the intersection of Island and Elmwood
Avenues in Philadelphia. Upon returning to his car with the sandwich, Mr.
Havens was approached by two men. Mr. Havens’[s] car was a dark blue
Lincoln that he recently had purchased. As Mr. Havens was entering the
combination to unlock the front driver’s door of the Lincoln, appellant
interrupted Mr. Havens by pointing a stainless steel revolver with rubber
grips at him. Another man, acting in concert with appellant, approached Mr.
Havens at the same time, standing behind him while appellant faced him
with the gun. Mr. Havens gave his wallet and car keys to appellant.
Appellant ordered Mr. Havens into the car. When Mr. Havens hesitated,
appellant threatened to kill him in the parking lot if he refused to get into the
car.

Mr. Havens sat in the back seat of the car. Appellant sat in the front
seat of the car on the passenger side. Appellant sat facing Mr. Havens,
with the gun aimed at Mr. Havens throughout the time they were in the car.
Appellant’s accomplice drove the vehicle. Over the next fifteen to twenty
minutes, appellant repeatedly threatened to shoot Mr. Havens while
demanding more money from him. Mr. Havens gave appellant and his
accomplice the cash from his pocket and begged to be released from the
vehicle. Appellant requested Mr. Havens’[s] money access card and that
Mr. Havens access the account to get them additional funds. Mr. Havens
responded that there was no money in the account as he had just paid bills.
Appellant continued to threaten Mr. Havens with the firearm. Finally, the
men pulled the car to the side of the road. Mr. Havens was ordered out of
the car and told to prepare to die by appellant. Appellant directed Mr.
Havens to turn his back and remain standing. While Mr. Havens complied,
appellant fled. Upon realizing that he was alone, Mr. Havens walked to a
nearby store, called for assistance and reported the incident to police.

At approximately 7:00 p.m. on the evening of November 9, 1996,
appellant, driving a blue Lincoln, met his friend, Byron Price, near 60th and
Catherine Streets in Philadelphia. Mr. Price testified that this was the first
time he had seen appellant in possession of a dark blue Lincoln. The two
men planned to spend the evening together watching a boxing match. Mr.
Price sat in the passenger seat of the Lincoln; appellant drove. Appellant

[J-54-2018] - 2
pulled the car into an EXXON gasoline station at the corner of 60th and
[Vine] Streets. Appellant told Mr. Price to wait. While sitting in the car, Mr.
Price heard a gunshot. Appellant ran back to the car with a chrome revolver
in his hand. Mr. Price noticed that a man he had formerly observed standing
by a car in the gas station was now lying on the ground. Dropping the gun
in his lap, appellant quickly made a U-turn out of the EXXON station and
sped away on 60th Street. Mr. Price asked appellant why he shot the man.
Appellant replied, “he drew on me.”

Mr. and Mrs. Johnson had been leaving their home across the street
from the EXXON station at the time of the shooting. They were unable to
identify appellant; however, they testified that the shooter left the EXXON
station in a dark Lincoln. They each, independently, testified to the following
observation: the victim raised his hands in the air and then fell backwards
at the same time that a gunshot was heard. The shooter was wearing a
lumberjack style jacket at the time of the incident. After the gunshot, the
shooter jumped into the driver’s side of a dark Lincoln and sped away on
60th Street.

On November 11, 1996, Philadelphia police recovered a dark blue
Lincoln that had been abandoned and set on fire. From the trunk of the car,
the police recovered a lumberjack style jacket. Mr. Havens identified the
burnt Lincoln as the car appellant had stolen from him at gunpoint on the
morning of November 9, 1996. Mr. Havens also identified the jacket
recovered from the trunk of the car as his own jacket that he had left in the
car at the time of the robbery.

The day after the murder, appellant made statements to several of
his acquaintances taking credit for having shot the man at the EXXON
station. Several weeks after the incident, appellant approached his friend
Keith Smith while Mr. Smith was helping Carl Harris wash Mr. Harris’s car.
Mr. Harris testified that he observed Mr. Smith and appellant engage in a
conversation, out of his hearing, and then walk around the corner from
where Mr. Harris was standing. When Mr. Smith returned after parting from
appellant, Mr. Smith had in his possession a chrome .357–Magnum firearm.
Sometime in December of 1996, Mr. Smith gave a .357 revolver to his
attorney, Mr. Spina. Attorney Spina immediately notified Philadelphia
homicide detectives that he had the gun in his possession. The homicide
detectives recovered the revolver from Mr. Spina’s office and turned it over
to the Philadelphia crime lab for testing.

Based on information received in their investigation, the police
obtained an arrest warrant for appellant in December of 1996. However, it
was not until March 17, 1997 that appellant was apprehended. Following
appellant’s arrest, Mr. Havens, the victim of the robbery of the Lincoln, came

[J-54-2018] - 3
to the police station to view a photographic array. Upon viewing the array,
Mr. Havens positively identified a photograph of appellant.

The results of forensic and pathology reports revealed that Mr.
Campbell had been shot in the head at a distance of at least two feet
causing his immediate death. The fatal wound was consistent with the type
of injury caused by a .357 Magnum firearm. The .357 Magnum obtained by
police from the office of Mr. Spina had been fired prior to being handed over
to the police. Mr. Havens identified the gun recovered from Mr. Spina’s
office as identical to the gun held on him by appellant during the robbery of
his motor vehicle. Mr. Price identified the gun appellant possessed after
shooting Mr. Campbell as similar in appearance to the gun Mr. Spina
delivered to the Philadelphia police.
Id. (citations to trial transcripts omitted).

Appellant was charged in separate indictments for the robbery of Michael Havens

and the murder of Robert Campbell. The indictments were consolidated for trial. On

November 10, 1997, a jury convicted appellant of first-degree murder, carrying a firearm

on a public street, two counts of possession of an instrument of crime, two counts of

robbery, one count of robbery of a motor vehicle, kidnapping, and criminal conspiracy.2

At the penalty phase, the jury returned a verdict of death after finding the aggravating

circumstances — killing while in the perpetration of a felony, 42 Pa.C.S. §9711(d)(6), and

a significant history of violent felony convictions, 42 Pa.C.S. §9711(d)(9) — outweighed

the sole mitigating factor, appellant’s life history, 42 Pa.C.S. §9711(e)(8). After the trial

court denied appellant’s post-verdict motions, it imposed a sentence of death for the first-

degree murder conviction, and imposed additional sentences for the other charges to run

concurrent to the sentence of death.

On automatic direct appeal pursuant to 42 Pa.C.S. §§722(4) and 9711(h)(1), this

Court rejected appellant’s five claims of trial court error in an Opinion Announcing the

Judgment of the Court. Natividad I, 773 A.2d at 181. Thereafter, on November 25, 2002,

appellant filed a first pro se PCRA petition. Counsel was appointed and filed an amended

2 18 Pa.C.S. §§2502(a), 6108, 907, 3701, 3702, 2901, and 903, respectively.

[J-54-2018] - 4
petition, raising twelve claims of ineffective assistance of trial counsel, trial court error,

and prosecutorial misconduct. Following a two-day evidentiary hearing limited to

appellant’s allegations of ineffective assistance of penalty-phase counsel, the PCRA court

denied the petition. This Court affirmed the order denying PCRA relief on December 27,

2007. Commonwealth v. Natividad, 938 A.2d 310 (Pa. 2007) (Natividad II).

Appellant filed a second pro se PCRA petition on March 11, 2008, challenging

PCRA counsel’s stewardship in handling his first PCRA petition. On November 14, 2011,

the PCRA court dismissed the second petition as untimely. Appellant did not seek further

review of that order.

On June 27, 2008, appellant, now represented by the Federal Community

Defender Office (FCDO), filed a petition for a writ of habeas corpus in the United States

District Court for the Eastern District of Pennsylvania. Natividad v. Beard, No. 08-cv-0449

(E.D. Pa.). As part of that litigation, appellant sought discovery from the Commonwealth.

Following informal negotiations over the course of several years, appellant eventually filed

a formal motion for discovery in the federal court, seeking access to the Commonwealth’s

internal trial file, as well as the investigating homicide detective’s file, or “H-file.” The

Commonwealth opposed the motion.

On August 19, 2011, the federal court ordered the Commonwealth to produce

certain discovery, but denied appellant’s request for access to the entire trial and

investigatory files in the possession of the Commonwealth and the police. In response to

the court’s order, the Commonwealth turned over more than 200 pages of documents to

appellant on March 6, 2012. See Appellant’s Third PCRA Petition, 8/9/2012, 3 ¶10.

Among those disclosed documents was a piece of paper with several roughly handwritten

notations, including the following entry:

5635 BELMAR DOERS LEFT IN SW + GOT TAG#
727-8853 JOHN ‘MACULLA’ B/M 40’s STOCKY, REDDISH HAIR

[J-54-2018] - 5
TOLD MANAGER ON SUNDAY 5’11 LT COMP
THAT HE WAS ON LOT + SAW INCIDENT
Id. at 3 ¶11; Exhibit B to Appellant’s Third PCRA Petition (the “Maculla” note).

On June 13, 2012, over three months after the Commonwealth disclosed the

“Maculla” note, an investigator hired by appellant’s counsel interviewed a “John

McCullough.” See Response in Opposition to the Commonwealth’s Motion to Dismiss,

8/27/2014, 3. Subsequently, on July 19, 2012, McCullough signed a declaration in which

he asserted the following under penalty of perjury:

1. One day in 1996, I was driving to a laundromat on 63rd Street in
West Philly. I was working as a security guard at another laundromat
at 60th and Cedar and had been offered part time work at the one at
63rd and Vine. That day, my 14 year old son and I had stopped by
a funeral home at 63rd and Oxford. On the way home, we stopped
by the laundromat at the Exxon gas station on 63rd Street.

2. I parked my car and just as we got out of the car, I noticed three men
about three cars away. One guy was tall and light skinned. He was
the victim. There were two darker skinned guys there. One guy was
facing the victim and had his hands on the victim’s shirt. There was
another guy standing to the side with a gun. I froze in my tracks so
as not to draw attention to myself or my son. I stood there looking at
the three men for what seemed like one and a half minutes.

3. All of a sudden, the victim pushed the guy in front of him away and I
heard one or more gunshots. I then saw the two darker guys run
toward an already running car. The car was dark colored.

4. After the shooting, the police came to the laundromat and I told them
what I saw. At first the police were suspicious of me because I was
standing so close to the crime, but did not get hurt. I was asked if I
knew either of the two dark skinned men, but I said that I did not.
They seemed to imply that I must have known them or else I would
have been shot, too. After a while, my son and I were taken to 55th
and Pine to give a statement. We sat in a hallway at the station
waiting to talk to a detective. As we were waiting, we started talking
to a man and woman who saw the incident and were waiting to talk
to the detectives too.

5. I talked to a detective at 55th and Pine and signed a 2½ page written
statement about what I saw.

[J-54-2018] - 6
6. Sometime after the incident on 63rd Street, I became ill with a heart
problem. Because of this illness, I left Philadelphia for a while to visit
my sister in Virginia. While I was in Virginia, I received a long
distance telephone call from a neighbor who said that there had been
what looked like policemen coming by my house on Belmar Terrace.
I called and left a message for the police telling them where I was. I
received a return call from the police and, after I explained that I was
ill and would return home after I recuperated, the policeman said they
would wait until I returned.

7. When I returned to Philadelphia, some police came by my house.
They asked me if I had spoken to anyone about what I saw that night.
I replied that I had been in Virginia and had not spoken to anyone.
They told me that they had “got the guy” and that they were “looking
for the second guy.” They said that they took care of everything and
did not need me.

8. I used to work for the Greater Philadelphia Urban Affairs Coalition
running summer programs for at risk youths. During one summer,
[appellant] was in my programs. I got to know him and would
recognize him if I saw him. Only recently did I find out that [appellant]
was in prison for committing the killing I saw.

9. [Appellant] was not one of the two men that I saw with the victim at
the laundromat at 63rd and Vine Street[s].
Declaration of John McCullough, attached as Exhibit D to Appellant’s Third PCRA

Petition, 8/9/2012.

After obtaining McCullough’s declaration, appellant filed the instant third PCRA

petition on August 9, 2012. In his petition, appellant alleged the Commonwealth violated

Brady and its progeny because it “never produced a written statement” that McCullough

claimed in his declaration he gave to a detective shortly after the murder, and because it

“had not even produced the note mentioning John ‘Maculla[.]’” Appellant’s Third PCRA

Petition, 8/9/2012, 6 ¶20.3 With regard to the “Maculla” note, appellant asserted its

3Although appellant asserted below that the Commonwealth withheld a written statement
McCullough supposedly gave to police on the night of the murder, the Commonwealth
was steadfast that “there is no such statement.” Commonwealth’s Motion to Dismiss,
3/18/2014, 9 n.12. In fact, none has ever been discovered, and the PCRA court credited

[J-54-2018] - 7
indication that McCullough “got” the tag number of the shooter’s vehicle was favorable

and material because the Commonwealth alleged at trial that the car stolen from Michael

Havens was the same car witnesses identified as belonging to the shooter and, thus, it

“provided the evidentiary link between the two crimes.” Id. at 6-7 ¶23. According to

appellant, if he “had received evidence that a different car was involved in the shooting,

he would have used it to refu[t]e the inferences of identity and motive . . . and challenge

the joinder of the two cases.” Id. at 7 ¶25.

Although appellant recognized his third petition was facially untimely, he alleged it

met two timeliness exceptions set forth in the PCRA. Id. at 10 ¶32. First, he asserted his

Brady claim could not have been raised sooner “as a result of government interference

with the production of exculpatory information in this case.” Id., citing 42 Pa.C.S.

§9545(b)(1)(i) (“the failure to raise the claim previously was the result of interference by

government officials with the presentation of the claim in violation of the Constitution or

laws of this Commonwealth or the Constitution or laws of the United States”). Second,

he argued his claim was timely pursuant to 42 Pa.C.S. §9545(b)(1)(ii) (“the facts upon

which the claim is predicated were unknown to the petitioner and could not have been

ascertained by the exercise of due diligence”), because the Commonwealth’s production

of the note “led to John McCullough.” Id. Regarding Section 9545(b)(2)’s requirement

that “[a]ny petition invoking an exception provided in paragraph (1) shall be filed within 60

days of the date the claim could have been presented[,]” appellant averred he satisfied

this requirement by filing his petition “within 60 days of the date that Mr. McCullough

signed the [d]eclaration, July 19, 2012, and within 60 days of the date that [appellant]’s

investigator first spoke with Mr. McCullough, June 13, 2012.” Id. at ¶33.

the investigating homicide detective’s testimony that McCullough never gave a statement
to police. See N.T. 5/20/2016, 51-54, 59; N.T. 7/14/2016, 61.

[J-54-2018] - 8
The Commonwealth filed a motion to dismiss appellant’s petition on March 18,

2014, alleging the petition was untimely and meritless. With respect to timeliness, the

Commonwealth argued appellant failed to raise his Brady claim within 60 days of the date

it could have been raised, as required by Section 9545(b)(2). See Commonwealth’s

Motion to Dismiss, 3/18/2014, 19. In the Commonwealth’s view, appellant was “required

to file his petition within sixty days of March 6, 2012[,]” the date the Commonwealth turned

over the “Maculla” note. Id.

On the merits, the Commonwealth argued the note was not material evidence that

it was required to disclose under Brady since “[t]he notation on the scrap of paper does

not reflect that ‘John Maculla’ identified the shooter — let alone that he identified the

assailant as someone other than [appellant].” Id. at 17 (emphasis in original). Invoking

prior pronouncements by this Court that there is no constitutional requirement that a

prosecutor “make a complete and detailed accounting to the defense of all police

investigatory work on a case,” Commonwealth v. Appel, 689 A.2d 891, 907 (Pa. 1997)

(citation omitted), the Commonwealth maintained it “had no duty under Brady to disclose

to the defense this tattered scrap of paper from the police homicide file” which “merely

reflects one of many investigatory leads in this case.” Id.

While appellant’s PCRA petition was pending in the PCRA court, appellant filed a

supplemental discovery motion in federal court, again seeking access to the complete

trial and investigatory files of the Commonwealth and the police. On July 9, 2014, the

federal court granted appellant’s request, and the Commonwealth made additional files

available to appellant on August 7, 2014.

This second production of documents yielded previously undisclosed statements

of three individuals: Joseph Rutherford, Cynthia Smith, and Rolston Ricardo Robinson.

All three statements were taken on November 14, 1996 — five days after the murder.

[J-54-2018] - 9
Rutherford indicated in his statement that after he was released from incarceration

on November 4, 1996, he went to a house located at 929 Wynnewood Road in

Philadelphia with his friend Edward Maloney. See Appellant’s Supplement to Third PCRA

Petition, 10/6/2014, Exhibit 1 pp.1-2. Michael Cupaiuolo owned and lived at the house

with his girlfriend “Cindy.” Id. at 1.4 When Rutherford and Maloney arrived, Robinson

was present, as was Kenny Hart. Id. at 2. Rutherford described Robinson as “a Jamaican

male [who] sells crack” and “likes intimidating people.” Id. That morning, Robinson

offered to front Rutherford $40 worth of crack if Rutherford agreed to pay him $80 in return

by noon. Id. Rutherford and Robinson “had some words” about the payment before

Robinson warned Hart “it was on him” to make sure Rutherford paid in full. Id. When

Rutherford met Hart later that day, he produced only $50, and instructed Hart to send a

message to Robinson that “this was all he’s getting.” Id. Rutherford returned to

Cupaiuolo’s house the following day, at which point Robinson came outside and

threatened to knock out the windows on Rutherford’s car unless he paid him the remaining

$30. Id. at 3. Rutherford told Robinson he would see him later and left. Id.

The next day, November 11, 1996, Rutherford was at his girlfriend’s house when

Robinson and another individual showed up with a hammer and demanded the $30.

Rutherford’s girlfriend paid Robinson the money. Id. Later that night, Rutherford went to

Cupaiuolo’s house where he got into an argument with Robinson and threatened to kill

him. Id. at 3-4. Robinson responded that he would “do [Rutherford] like he did Bob down

at the gas station.” Id. at 4. Rutherford noted in his statement “[t]here was already some

talk in the neighborhood about [Robinson] having something to do with Bob Campbell’s

killing.” Id. at 3.

4Although Rutherford referred to Cupaiuolo’s girlfriend by the name “Cindy,” Cynthia
Smith identified herself as Cupaiuolo’s girlfriend in her statement. See Appellant’s
Supplement to Third PCRA Petition, 10/6/2014, Exhibit 2 p.1.

[J-54-2018] - 10
The dispute between Rutherford and Robinson escalated again on the night of

November 13, 1996. Id. at 4. Rutherford was standing outside a bar at 66th and Lebanon

Streets when Robinson and two others pulled up in a car. Id. Rutherford and Robinson

“had words” before Rutherford walked back into the bar. Id. A few minutes later, Maloney

walked in and told Rutherford that Robinson and the other men were upset with

Rutherford and had guns. Id. At that point, Rutherford told “the entire bar that these were

the guys the cops suspected of killing Bob.” Id. The bartender told Rutherford to call 9-

1-1, which he did. Id. Eventually, police arrived, and Rutherford accompanied them to

Cupaiuolo’s house to locate Robinson. Id. at 5. When Robinson drove by and saw the

police he sped off, but the officers pursued and eventually stopped him. Id. In his

statement taken the next morning, Rutherford indicated “Cindy” had also “heard Rob

discussing” the murder, and that Cupaiuolo “thought Rob had something to do with it.” Id.

He further stated he had previously seen Robinson in a black Lincoln, but he did not know

where it was or where it came from. Id. at 6.

Smith explained in her statement that Cupaiuolo often let people stay in their house

at 929 Wynnewood Road, including Robinson. See Appellant’s Supplement to Third

PCRA Petition, 10/6/2014, Exhibit 2 p.1. She stated she learned of the victim’s death

shortly after it happened, when Robinson came into the house and turned on the news.

Id. at 2. When Smith asked Robinson what he was doing, he replied: “[T]his is important.

Didn’t you hear about the guy getting shot — down at the gas station[?] You know the

guy — the fucking snitch — that town watch guy Bobby Campbell.” Id. Robinson

continued discussing the news story until he left the house. Id. at 3. When he returned

an hour later, he told Smith he had been at the scene and saw the victim had a gun and

was bleeding. Id. He stated to Smith that he “stood over top of the guy saying ‘You dumb

fuck.’” Id. On the afternoon of November 13, 1996, Smith asked Robinson if he had

[J-54-2018] - 11
anything to do with the murder, to which he responded, “Yeah — I did it.” Id. at 3-4.

Robinson further stated “that’s what happens to snitches,” and that he “had to teach

somebody a lesson.” Id. at 4. After making these statements Robinson left the house,

but returned approximately fifteen to twenty minutes later and offered to “loan [Smith]

money for [ ] dope.” Id. at 4. Smith felt as if Robinson was “trying to buy [her] off.” Id.

Robinson also gave a statement to police on November 14, 1996. See Appellant’s

Supplement to Third PCRA Petition, 10/6/2014, Exhibit 3. He stated he went to the Turf

Club with his friend “C” around 7:45 p.m. on the night of the murder. Id. at 2. While there,

Robinson bet on some horses over the course of a few hours. Id. When they left,

Robinson passed by 63rd and Vine Streets, where he saw police at the gas station and

a man lying on the ground. Id. He parked his car by one of the gas pumps. Id. There

were five to ten people near the gas station, and a detective asked if anyone saw

anything; Robinson heard an African American female state, “they left in a Black Lincoln.”

Id. Robinson saw the victim was “[a] white male, laying on [the] ground on his back, [with]

blood near his shoulders.” Id. at 3. He also noted the victim was wearing a jacket and

had a gun in a holster on his waist. Id. Robinson explained he stopped at the gas station

because he saw the police cars, people standing around, and a body on the ground. Id.

He stated he stayed for only two or three minutes, and that he knew nothing about the

murder. Id. at 3, 6.

The Commonwealth also produced certain police investigatory paperwork that had

not previously been turned over to the defense and which referenced Robinson. Officer

Rita Wilson described in a statement that she responded to the dispute between

Rutherford and Robinson at the bar on 66th and Lebanon Streets. See Appellant’s

Supplement to Third PCRA Petition, 10/6/2014, Exhibit 8 p.1. She noted Rutherford told

[J-54-2018] - 12
her that “Rob” had stated “we’re going to do to you what we did to the guy at 63rd and

Vine.” Id. at 2.

Officer Shane Darden explained in his statement that around 4:00 a.m. on

November 14, 1996 — only hours after Rutherford had given his statement to homicide

detectives — Rutherford stopped him on the street and told him he had additional

information about the homicide. See Appellant’s Supplement to Third PCRA Petition,

10/6/2014, Exhibit 7 p.1. Rutherford directed Officer Darden to Cupaiuolo’s house, where

the officer encountered Cupaiuolo and Tracie Durham. Id. Cupaiuolo explained to Officer

Darden that Robinson had been telling people in Cupaiuolo’s house he “was there when

Campbell was shot.” Id. Durham stated she was on a pay phone near the gas station

about ten minutes prior to the homicide and saw Robinson drive by twice in a gray sedan.

Id. at 2.

A police activity sheet prepared by the assigned homicide detective and dated

November 13, 1996, also mentioned Robinson. See Appellant’s Supplement to Third

PCRA Petition, 10/6/2014, Exhibit 5 p.1. It stated, in relevant part:

The assigned was contacted by a retired Detective who related that he had
been contacted by an old informant who related that persons in 929
Wynnewood Rd. may have information as to the identity of the perpetrator
and that he may be named ROB and was a Jamaican male. Det. DiBlasi &
the assigned set up a surveillance of this location and noted that a B/M left
the location and drove away in a 1988 Acura painted gray. The license tag
was checked thru [sic] BMV and it was registered to a RUPERT ROBINSON
at [redacted]. This male fit the general description of the male called ROB.
It was also noted that adults aged 20 to 40 both white and black were
coming and going from this location. The Detectives stopped one of these
persons and learned that ROB does operate the gray Acura and several
persons in the location were upset with him over drug matters.
Id.

Two additional statements included in the Commonwealth’s production were also

never previously disclosed to the defense. On November 14, 1996, Tracie Durham, after

[J-54-2018] - 13
previously speaking with Officer Darden at Cupaiuolo’s house, gave a statement in which

she stated she did not know about the killing but “was told by Joe [Rutherford] . . . that a

guy name[d] Rob . . . did it.” See Appellant’s Supplement to Third PCRA Petition,

10/6/2014, Exhibit 4 p.1. She again explained she was on a pay phone outside the gas

station around 9:50 p.m. on November 9, 1996, when she saw a car that “looked like

Rob’s silver Lexus and a gentleman that looked like Rob driving it.” Id. She asserted she

did not see the victim at the gas station. Id. at 2.5

Finally, on November 12, 1996, Richard Anderson gave a statement to police in

which he stated he was not at the gas station on the night of the shooting, but that he

heard from a female named Tish that another man told her people who lived at “the house

at [929 Wynnewood Road] . . . [and] call themselves the Junior Black Mafia had something

to do with the shooting of Mr. Campbell.” See Appellant’s Supplement to Third PCRA

Petition, 10/6/2014, Exhibit 6 pp.2-3. Anderson also stated he had walked by a group of

teenagers on November 10, 1996, and heard one of them say they thought it was the

Junior Black Mafia who did it; Anderson took “it” to mean the shooting at the gas station.

Id. at 4.

Based on the Commonwealth’s disclosure of these various statements and

documents, appellant sought leave to amend his third PCRA petition to include an

additional Brady claim on October 6, 2014, and leave was subsequently granted without

objection by the Commonwealth. N.T. 7/7/2016, 61-63. As stated by appellant, the

withheld materials “identify a Rob as not only a suspect, but as the confessed killer of the

victim in this case.” Appellant’s Supplement to Third PCRA Petition, 10/6/2014, 5 ¶17.

Thus, appellant alleged, the materials “[a]lone, and in combination with the declaration of

5Durham explained to the detective she had been a drug addict since she was eleven
years old and had “smoked some crack” and then “shot up some coke” about two hours
before her interview. Id. at 1.

[J-54-2018] - 14
John McCullough that [appellant] was not the person who shot [the victim],” created “a

reasonable probability of a different outcome in this trial if the Commonwealth had timely

produced the evidence” to the defense. Id. at 12 ¶27. Regarding the timeliness of his

new Brady claim, appellant again asserted it satisfied both the governmental interference

and newly-discovered fact exceptions to the PCRA’s time-bar. Id. at 16 ¶45, citing 42

Pa.C.S. §9545(b)(1)(i) and (ii). He further argued his supplemental petition was filed

within 60 days of the date the Commonwealth disclosed the second batch of documents.

Id. at ¶46.

On February 11, 2015, the Commonwealth filed a supplemental motion to dismiss.

In relevant part, the Commonwealth argued appellant’s new Brady claim failed because

the leads identified in the second production of documents amounted to “nothing more

than inadmissible hearsay and unsubstantiated gossip and rumor about possible

suspects that police heard within the first few days after the victim’s shooting[,]” each of

which “police quickly eliminated . . . as having anything to do with the victim’s murder.”

Commonwealth’s Supplemental Motion to Dismiss, 2/11/2015, 21.

Appellant filed a reply to the Commonwealth’s supplemental motion to dismiss on

May 15, 2015, challenging the Commonwealth’s authority to be the “sole arbiter of what

investigatory leads are true or false and which witnesses are credible and which ones are

not.” Appellant’s Reply in Support of Supplement to Third PCRA Petition, 5/15/2015, 5.

Appellant further disputed the Commonwealth’s position the withheld evidence was not

material. In his view, the Commonwealth “deprived [him] of exculpatory evidence from at

least three separate sources, John McCullough, Joseph Rutherford and Cynthia Smith[,]”

[J-54-2018] - 15
which evidence was material because it “exonerates him in the homicide of Robert

Campbell.” Id.6

On November 30, 2015, the PCRA court granted an evidentiary hearing limited to

the timeliness of appellant’s initial Brady claim predicated on the “Maculla” note. N.T.

11/30/2015, 38. The PCRA court conducted the hearing over the course of three days

— April 28, 2016, May 20, 2016, and July 7, 2016. At the hearing, appellant presented

only McCullough as a witness. The Commonwealth, in turn, presented John McCullough

III (McCullough’s son),7 Detective James Dougherty (the assigned homicide detective), 8

and Assistant District Attorney Jason Harmon.9

6The Commonwealth and appellant filed additional responsive briefs on July 15, 2015,
and October 1, 2015, respectively.
7 Over the course of the three-day hearing, appellant subpoenaed the Pennsylvania
Board of Probation and Parole and the Philadelphia Department of Probation and Parole,
seeking any records for John McCullough III. The Commonwealth objected on the basis
appellant was engaging in a “fishing expedition,” and because the files would likely
contain privileged mental health records. N.T. 4/28/2016, 5-6. The Commonwealth also
reiterated that discovery during PCRA proceedings is limited and requires a showing of
exceptional circumstances. Id. at 5-6, 12; see also Pa.R.Crim.P. 902(E)(1) (“[N]o
discovery shall be permitted at any stage of the proceedings, except upon leave of court
after a showing of exceptional circumstances.”). Following an in camera review, the
PCRA court denied appellant’s request for the records. N.T. 5/20/2016, 4-5.
8 Detective Dougherty has no relation to the author of this opinion.
9 Due to our disposition of this issue, we need not recount at length the testimony at the
evidentiary hearing. Briefly, McCullough testified he was present at the time of the murder
with his teenage son, John McCullough III. McCullough claimed he saw three men, one
of whom was tall and the other two of whom had dark complexions. McCullough claimed
he heard one or two gunshots and then saw two men jump into a black car; he stated he
knew appellant, and that he was not one of the two men. N.T. 4/28/2016, 17-23, 85-86.
McCullough further claimed he gave a statement to the police, even though none was
ever discovered, and despite other police records reflecting McCullough was not recorded
as having been present at the scene or interviewed immediately after the crime. Id. at
26-32. John McCullough III disputed his father’s account that they were present at the
time of the murder, explaining he never witnessed a shooting or murder, and neither had
his father. N.T. 5/20/2016, 4-14. Detective Dougherty recounted his investigation in the
initial days following the murder, including his efforts to follow up on the tip referenced in

[J-54-2018] - 16
On June 17, 2016, before the PCRA court ruled on appellant’s Brady claims,

appellant filed a second motion to supplement his PCRA petition, which the court also

granted.10 In that supplemental petition, appellant alleged that, pursuant to Johnson v.

United States, __ U.S. __, 135 S.Ct. 2551 (2015), “the aggravating circumstance invoked

in support of [appellant]’s death sentence, 42 Pa.C.S. §9711(d)(9), is invalid because it

is unconstitutionally vague under the Eighth and Fourteenth Amendments to the United

States Constitution.” Appellant’s Second Supplement to Third PCRA Petition, 6/17/2016,

4 ¶9. In support of the timeliness of the claims raised in his second supplemental petition,

appellant relied on 42 Pa.C.S. §9545(b)(1)(iii) (“the right asserted is a constitutional right

that was recognized by the Supreme Court of the United States or the Supreme Court of

Pennsylvania . . . and has been held by that court to apply retroactively”), and argued his

petition was filed “within sixty days of the date of the Supreme Court’s opinion in Welch

[v. United States, __ U.S. __, 136 S.Ct. 1257 (2016)], which expressly made Johnson

retroactive.” Id. at 6 ¶14. The Commonwealth opposed this second supplemental petition

as well.

the “Maculla” note. Id. at 43-47. He explained that neither McCullough nor his son were
interviewed by the police on the night of the murder; rather, an activity sheet dated
November 12, 1996, contained a summary of Detective Dougherty’s interview of
McCullough on that date. The detective testified that at no time did McCullough claim to
be a witness and that he instead stated he had not been present. See id. at 56 (“He
positively told me he was not a witness.”). As the detective explained, it became clear
shortly after his conversation with McCullough that he “had no knowledge whatsoever of
what happened at the gas station.” N.T. 7/7/2016, 9-11, 14. Finally, Assistant District
Attorney Jason Harmon testified that, as the assigned prosecutor in the Charging Unit of
the Philadelphia District Attorney’s Office, his decision not to charge John McCullough III
when he was arrested for theft in April 2014 was due to a lack of evidence, and not
because McCullough III was willing to testify against his father. Id. at 46-51.
10 The PCRA court granted appellant’s motion to file the second supplement to his third
PCRA petition on July 7, 2016. The Commonwealth did not oppose appellant’s request
for leave to file. N.T. 7/7/2016, 62.

[J-54-2018] - 17
On July 14, 2016, following oral argument by the parties, the PCRA court denied

relief as to appellant’s original Brady claim concerning the “Maculla” note. N.T. 7/14/2016,

61. In so doing, the court explained it had credited the Commonwealth’s witnesses and

disbelieved John McCullough’s testimony. Id. at 60-61.

On July 26, 2016, appellant requested the PCRA court revoke its July 14th order

denying relief, on the basis the court had yet to adjudicate the vagueness challenge

presented in appellant’s second supplemental petition. The following day, the PCRA

court vacated its July 14, 2016 order. Over the ensuing months, the parties filed multiple

briefs related to appellant’s second supplemental petition.

By order dated December 21, 2016, the PCRA court dismissed appellant’s Brady

claims as untimely and meritless, but granted penalty phase relief on appellant’s claim

the Section 9711(d)(9) aggravator — a significant history of violent felony convictions —

was unconstitutionally vague. The Commonwealth filed a motion for reconsideration.

On January 13, 2017, the PCRA court vacated its prior order granting penalty

phase relief. Thereafter, on February 14, 2017, it denied relief as to all claims raised in

appellant’s third PCRA petition and the supplements thereto. Appellant subsequently

filed in this Court an appeal from the denial of collateral relief, which is now before us for

disposition.

II. Issues & General Principles of Law

Appellant presents five issues for our review: (1) whether the Commonwealth

violated Brady when it withheld the note identifying John “Maculla” as an eyewitness to

the homicide; (2) whether the Commonwealth violated Brady when it withheld evidence

that another person had confessed to the killing; (3) whether appellant was prejudiced by

the cumulative effect of the Commonwealth’s Brady violations; (4) whether appellant’s

death sentence should be vacated because it is supported by an unconstitutionally vague

[J-54-2018] - 18
aggravating circumstance; and (5) whether the PCRA court abused its discretion by failing

to grant appellant’s request for the parole and probation files of John McCullough III for

purposes of the PCRA evidentiary hearing. Appellant’s Brief at 1-2.

In reviewing the denial of PCRA relief, we examine whether the PCRA court’s

determinations are supported by the record and are free of legal error. Commonwealth

v. Spotz, 18 A.3d 244, 259 (Pa. 2011). The PCRA court’s credibility determinations, when

supported by the record, are binding on this Court; however, we apply a de novo standard

of review to the PCRA court’s legal conclusions. Id.

To be eligible for post-conviction relief, a petitioner must prove by a preponderance

of the evidence that his conviction or sentence resulted from one of several enumerated

circumstances, see 42 Pa.C.S. §9543(a)(2), and that the claims have not been previously

litigated or waived, see 42 Pa.C.S. §9543(a)(3). “A PCRA petition, including a second or

subsequent petition, must be filed within one year of a final judgment, unless the petitioner

alleges and proves that he is entitled to one of three exceptions to this general rule, and

that the petition was filed within 60 days of the date the claim could have been

presented[.]” Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013), citing 42 Pa.C.S.

§9545(b). These limitations are mandatory and jurisdictional in nature. Commonwealth

v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013) (citations omitted).

III. Brady Claims

Due process is offended when the prosecution withholds evidence favorable to the

accused where the evidence is material either to guilt or to punishment, irrespective of

the good faith or bad faith of the prosecution. Brady, 373 U.S. at 87. “There are three

components of a true Brady violation: The evidence at issue must be favorable to the

accused, either because it is exculpatory, or because it is impeaching; that evidence must

[J-54-2018] - 19
have been suppressed by the State, either willfully or inadvertently; and prejudice must

have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82 (1999).

Pursuant to Brady and its progeny, the prosecutor “has a duty to learn of any

favorable evidence known to the others acting on the government’s behalf in the case,

including the police.” Kyles v. Whitley, 514 U.S. 419, 437 (1995). However, there is “no

constitutional requirement that the prosecution make a complete and detailed accounting

to the defense of all police investigatory work on a case.” Moore v. Illinois, 408 U.S. 786,

795 (1972). “The mere possibility that an item of undisclosed information might have

helped the defense, or might have affected the outcome of the trial, does not establish

‘materiality’ in the constitutional sense.” United States v. Agurs, 427 U.S. 97, 109-10

(1976).

Instead, “favorable evidence is material, and constitutional error results from its

suppression by the government, if there is a reasonable probability that, had the evidence

been disclosed to the defense, the result of the proceeding would have been different.”

Kyles, 514 U.S. at 433 (quotation and citation omitted). “A ‘reasonable probability’ is a

probability sufficient to undermine confidence in the outcome.” United States v. Bagley,

473 U.S. 667, 682 (1985). In evaluating whether a reasonable probability of a different

outcome has been demonstrated, “[t]he question is not whether the defendant would

more likely than not have received a different verdict with the evidence, but whether in its

absence he received a fair trial, understood as a trial resulting in a verdict worthy of

confidence.” Kyles, 514 U.S. at 434. A defendant thus “need not demonstrate that after

discounting the inculpatory evidence in light of the undisclosed evidence, there would not

have been enough left to convict.” Id. at 434-35. Rather, a defendant need only show

that the favorable evidence “could reasonably be taken to put the whole case in such a

different light as to undermine confidence in the verdict.” Id. at 435.

[J-54-2018] - 20
With these general principles relevant to our review in mind, we turn to appellant’s

Brady claims.

A. The “Maculla” Note

Appellant first claims the Commonwealth violated Brady by failing to disclose to

the defense the note referencing John “Maculla,” a putative eyewitness to the murder.

Appellant’s Brief at 14. According to appellant, “the withheld note about John ‘Maculla’

affected [his] preparation for trial” because “[i]t would have led him to Mr. McCullough

who in turn would have testified that he saw the shooting, knew [a]ppellant, and [a]ppellant

was not one of the people involved in the shooting.” Id. at 20.

Before addressing the merits of this claim, we must first determine if we have

jurisdiction to do so. See Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008) (merits

of Brady claim may not be addressed until it is established petition was timely filed).

Appellant filed the instant PCRA petition, his third, on August 9, 2012 — well after his

judgment of sentence became final. Recognizing his petition was untimely on its face,

appellant argued below that the alleged Brady violation fell within the timeliness

exceptions set forth at 42 Pa.C.S. §9545(b)(1)(i) and (ii). See Appellant’s Third PCRA

Petition, 8/9/2012, 10 ¶32. More specifically, appellant alleged the Commonwealth

interfered with his ability to bring his Brady claim by withholding the note prior to trial, and

by refusing to turn it over until the federal court ordered the Commonwealth to produce it.

Id. Appellant noted in his petition that, in a letter dated April 17, 1997, the Commonwealth

represented to the defense it had voluntarily turned over “the names and addresses of all

eyewitnesses[.]” See Appellant’s Third PCRA Petition, 8/9/2012, 2-3 ¶7-8. Appellant

further asserted his petition satisfied the newly-discovered fact exception, since the

disclosure of the note led to appellant’s investigator “finding John McCullough who

provided a written statement on July 19, 2012.” Id. at 10 ¶32. Appellant continued that

[J-54-2018] - 21
his petition also met Section 9545(b)(2)’s separate requirement that the petition be filed

within 60 days of the date the claim could have been presented, as it was filed within 60

days of the date appellant’s investigator first spoke with, and then obtained a declaration

from, McCullough. Id. at ¶33.

The Commonwealth contested the timeliness of appellant’s petition in its motion to

dismiss. As particularly relevant here, with respect to Section 9545(b)(2)’s requirement

that the petition be filed within 60 days of when the claim could have been raised, the

Commonwealth argued appellant was required to file his petition within 60 days of March

6, 2012, the date it turned over the “Maculla” note. See Commonwealth’s Motion to

Dismiss, 3/18/2014, 19. Thus, because appellant did not file his petition until August 9,

2012 — more than three months after the 60-day period had elapsed — the

Commonwealth argued it was untimely. Id.

In response, appellant countered that “[n]o claim could have been raised” prior to

locating McCullough because “[t]he disclosure of the name[ ], without more, is not by itself

exculpatory and would not give rise to a Brady claim.” See Response in Opposition to

the Commonwealth’s Motion to Dismiss, 8/27/2014, 3. Instead, he argued, “[i]t was not

until [he] investigated that information, located the witness (after fifteen years) and spoke

to him that the exculpatory nature of the information came to the surface.” Id.

We begin by noting it is unclear whether the PCRA court determined appellant’s

Brady claim pertaining to the “Maculla” note was untimely and, if so, on what basis.

However, the court held an evidentiary hearing on this claim precisely to determine

whether it was timely, after which it denied relief. N.T. 11/30/2015, 38; N.T. 7/14/2016,

61.11 In its final order dated February 14, 2017, the PCRA court indicated it had dismissed

11In his brief, appellant asserts the Commonwealth sent a letter to the PCRA court in
which it conceded a hearing on the timeliness of appellant’s petition was not necessary.
Appellant’s Brief at 8, 26. This letter, which appellant attaches to his brief to this Court,

[J-54-2018] - 22
the petition as untimely. Later, in its Pa.R.A.P. 1925(a) opinion, the PCRA court again

indicated the petition was untimely, see PCRA Ct. Opinion, 8/9/2017, slip op. at 5, but

also noted the “Brady issues, if correct, would fall under 42 Pa.C.S. [§]9545(b)(1)(i)

[(governmental interference exception)] and possibly [§]9545(b)(1)(ii) [(newly-discovered

fact exception)],” id. at 6. Appellant now contends that, “[t]o the extent the court found

[his petition] untimely, the court erred.” Appellant’s Brief at 24. We disagree.

It is well-settled a Brady violation may fall within the governmental interference

exception. Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa. 2001). Nevertheless, “a

petition invoking the exception must be filed within 60 days of the date the claim could

have been filed pursuant to [S]ection 9545(b)(2).” Id. (citation omitted). The same is true

of a petition invoking the newly-discovered fact exception. Commonwealth v. Bennett,

930 A.2d 1264, 1272 n.11 (Pa. 2007).

Here, appellant raised a single claim in his initial petition: that the Commonwealth

violated Brady, and thereby offended his due process rights, by failing to disclose

favorable evidence that was material either to his guilt or punishment. See Appellant’s

Third PCRA Petition, 8/9/2012, 2-8, 10 ¶¶7-28, 34; see also 42 Pa.C.S. §9543(a)(2)(i) (a

petitioner may obtain post-conviction relief where he pleads and proves by a

preponderance of the evidence that his conviction or sentence resulted from “[a] violation

of the Constitution of this Commonwealth or the Constitution or laws of the United States

expressly states the Commonwealth was not conceding timeliness, but was merely
stipulating to the testimony of two proposed witnesses. See Exhibit C to Appellant’s Brief.
The Commonwealth does not reiterate in its brief the timeliness arguments it raised
below, except for its reference to the PCRA court’s order denying appellant’s petition as
untimely. Commonwealth’s Brief at 16 n.12. In any event, this does not impede our
independent jurisdictional review. See Commonwealth v. Chester, 895 A.2d 520, 522
(Pa. 2006) (“[I]f a PCRA petition is untimely, neither this Court nor the trial court has
jurisdiction over the petition. Without jurisdiction, we simply do not have the legal authority
to address the substantive claims.”) (quotation and citation omitted).

[J-54-2018] - 23
which, in the circumstances of the particular case, so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken place”). 12

Accordingly, to be considered timely, whether under the governmental interference or

newly-discovered fact exceptions, appellant’s petition must have been filed within 60 days

of the date his Brady claim could have been presented. 42 Pa.C.S. §9545(b)(2).

We conclude appellant failed to meet this requirement. Although he filed his

petition within 60 days of the date his investigator located and secured a favorable

declaration from McCullough, his Brady claim was predicated on the Commonwealth’s

suppression of the “Maculla” note, not its failure to disclose the statement McCullough

gave to the defense 15 years later. As it was the disclosure of the note that formed the

basis of appellant’s due process claim, Section 9545(b)(2)’s 60-day filing requirement

was triggered on the date the Commonwealth produced the note to the defense: March

6, 2012. Because appellant did not raise his Brady claim until August 9, 2012, his petition

was untimely.

In making this determination, we reject appellant’s argument that “[n]o claim could

have been raised” within 60 days of March 6, 2012, on the basis that the note, “without

more, is not by itself exculpatory and would not give rise to a Brady claim.” See Response

in Opposition to the Commonwealth’s Motion to Dismiss, 8/27/2014, 3. This assertion is

directly contrary to appellant’s prior claims in his petition. There, as previously discussed,

appellant argued the note itself was material evidence that the Commonwealth was

required to disclose pursuant to Brady, because it identified John “Maculla” as an

eyewitness and, more pointedly, indicated he “got [the] tag #” of the car involved in the

12 Appellant also asserted, in passing, that “to the extent [prior] counsel became aware
of, or should have become aware of, the statement by John McCullough . . . but failed to
use this information on [appellant]’s behalf,” they were ineffective. Appellant’s Third
PCRA Petition, 8/9/2012, 8-9 ¶30. Appellant did not pursue an ineffectiveness claim
further, and one is not before this Court.

[J-54-2018] - 24
homicide. See Appellant’s Third PCRA Petition, 8/9/2012, 6 ¶22. Appellant argued this

evidence was material because it may have led to “evidence that a different car was

involved in the shooting,” which “he would have used [ ] to refu[t]e the inferences of

identity and motive[.]” Id. at 7 ¶25. Appellant no longer espouses this theory, presumably

because it defeats his assertion that the claim could not have been raised sooner.

Moreover, while we recognize McCullough’s declaration certainly was evidence

favorable to appellant, we reiterate it was merely additional proof supporting the merits of

appellant’s claim the Commonwealth violated his due process rights by withholding the

note identifying McCullough as an eyewitness; it was not, however, the basis of the Brady

claim itself. It was the disclosure of the “Maculla” note, rather than the discovery of the

declaration, that informed the basis of appellant’s Brady claim, and it was incumbent upon

him to file his petition within 60 days of the date he received that material alerting him of

that claim. Nothing prevented appellant from filing his Brady claim within 60 days of

receiving the note, and Section 9545(b)(2) required that he do so. Consequently, we lack

jurisdiction to consider the merits of this untimely Brady claim.13

B. The Robinson Documents

1. Timeliness

13 We emphasize that our timeliness analysis with respect to this issue is limited by the
nature of appellant’s claim, i.e., a due process violation under Brady pursuant to 42
Pa.C.S. §9543(a)(2)(i). Arguably, had appellant raised a claim pursuant to Section
9543(a)(2)(vi), which permits relief where a petitioner pleads and proves the unavailability
at the time of trial of exculpatory evidence that has subsequently become available, his
petition would have been timely. This is so because appellant’s petition was filed within
60 days of the date McCullough provided his declaration, and the facts alleged within that
declaration were previously unknown to appellant and could not have been ascertained
sooner by the exercise of due diligence. See 42 Pa.C.S. §9545(b)(1)(ii). Nevertheless,
even if appellant had properly raised such a claim, it would not have entitled him to relief
given the PCRA court’s determination McCullough was not credible. See, e.g.,
Commonwealth v. Parker, 431 A.2d 216, 218 (Pa. 1981) (incredible testimony pertaining
to after-discovered evidence would not likely compel a different verdict).

[J-54-2018] - 25
Unlike his claim premised on the “Maculla” note, appellant’s Brady claim regarding

the evidence of another potential suspect was raised within 60 days of the

Commonwealth’s disclosure of that material. Pursuant to the federal court’s July 9, 2014

order instructing the Commonwealth to grant appellant access to its file and the homicide

detective’s H-file, the Commonwealth made the files available to appellant on August 7,

2014. Within 60 days of that date, on October 6, 2014, appellant filed his supplemental

petition raising the additional Brady claim. He has therefore satisfied 42 Pa.C.S.

§9545(b)(2) regarding this claim.

In addition, our review reveals appellant satisfied an exception to the PCRA’s time-

bar with respect to this claim, as the facts upon which his Brady claim were predicated —

that the Commonwealth withheld evidence pertaining to another suspect — were

unknown to him until the Commonwealth was forced to open its files on August 7, 2014.

42 Pa.C.S. §9545(b)(1)(ii). Accordingly, we have jurisdiction to consider this claim, and

we proceed to the arguments of the parties.

2. Arguments

Appellant claims the Commonwealth violated Brady by failing to disclose the

statements indicating Robinson confessed to the murder, and also by suppressing certain

police paperwork showing the police investigated those allegations against Robinson.

See Appellant’s Brief at 27-42. This evidence “of another person’s culpability,” appellant

contends, “was favorable to the defense, yet the prosecution did not disclose any of it to

the defense at trial.” Id. at 36. Thus, appellant argues the first two prongs of the Brady

test — the government suppressed evidence, and the evidence was favorable to the

accused — “are easily met.” Id.

Appellant also claims the suppressed evidence was material. He notes the

withheld statements demonstrate Robinson “confessed to the killing to at least two

[J-54-2018] - 26
different people[,]” Rutherford and Smith, each of whom “promptly reported the

confessions to both the police and other people.” Id. at 37. Appellant continues that

Robinson had a motive to kill the victim because Robinson was selling drugs out of a

house in the neighborhood where the victim was associated with Town Watch. Id. In this

regard, appellant highlights the fact Robinson once referred to the victim as a “snitch,”

and notes several of the suppressed reports showed Robinson had access to guns and

had previously threatened people with them. Id. Finally, appellant observes Rutherford,

in his statement, indicated he had previously seen Robinson in a black Lincoln, “the same

type of vehicle described by witnesses” as belonging to the shooter. Id. Appellant

concludes this evidence “would have been more than sufficient to charge and convict”

Robinson of the murder. Id.

In terms of proving materiality, appellant alleges this evidence satisfies the Brady

standard because, if the Commonwealth had provided it prior to trial, it “would have

allowed competent defense counsel to argue that [Robinson] was the real killer.” Id. at

37-38. In appellant’s view, “[e]vidence that another person confessed to the crime is

unquestionably exculpatory and material.” Id. at 27, citing Dennis v. Sec’y, Pa. Dep’t of

Corr., 834 F.3d 263, 304-05, 311 (3d Cir. 2016) (en banc) (suppressed evidence would

have allowed defense counsel to argue another person committed the crime). Appellant

further asserts “[c]ounsel would also have been able to challenge the adequacy of the

police investigation,” id. at 38, as “[p]olice reports that corroborate the details of that

confession are likewise exculpatory.” Id. at 27-28, citing Smith v. Sec’y of N.M. Dep’t of

Corr., 50 F.3d 801, 830 (10th Cir. 1995) (“[W]hile the knowledge the police were

investigating [another suspect] would arguably carry significant weight with the jury in and

of itself, that fact would also have been useful in discrediting the caliber of the

investigation or the decision to charge the defendant[.]”) (quotation and citation omitted).

[J-54-2018] - 27
Finally, appellant argues the PCRA court applied an improper standard of

materiality by focusing on whether the documents “would have made a difference” in the

jury’s verdict. Id. at 41, citing PCRA Ct. Opinion, 8/9/2017, slip op. at 8.14 According to

appellant, the PCRA court’s focus should have been on whether the Commonwealth’s

suppression of the evidence had “any adverse effect . . . on the preparation or

presentation of [appellant]’s case.” Id. at 41, quoting Bagley, 473 U.S. at 683. Under this

standard, he argues, the suppressed evidence meets Brady’s materiality requirement

because “[t]he entire course of the defense would have been changed” had it been

disclosed. Id. at 42. In this respect, appellant notes there was “no evidence to suggest

that anyone other than [appellant] had committed the offense” and, thus, “counsel chose

to raise a self-defense case, based on Price’s testimony that the deceased had drawn his

weapon.” Id. at 41-42. Appellant asserts that “[h]ad counsel been provided with the

evidence of [Robinson]’s confession, he could have challenged the credibility of Price’s

testimony . . . and argued that [Robinson] was the actual perpetrator.” Id. at 42.

The Commonwealth responds that appellant’s Brady claim “plainly fails on

materiality grounds.” Commonwealth’s Brief at 31.15 Regarding the evidence concerning

Robinson’s confessions, the Commonwealth argues that, even if it had been disclosed, it

would not have had a reasonable probability of affecting the verdict. It notes that not only

14 In its Rule 1925(a) opinion, the PCRA court gave little discussion to the merits of
appellant’s Brady claim regarding the Robinson materials, as it deemed the “Maculla”
claim the “principal Brady complaint[.]” PCRA Ct. Opinion, 8/9/2017, slip op. at 7.
However, it did note appellant “failed to develop the remaining Brady claims” or support
them with any testimony, and concluded appellant “failed to show how any of these claims
would have made a difference in the verdict” given the “overwhelming” evidence against
appellant. Id. at 8-9; see also id. at 8 (concluding appellant’s Brady claims are “not
material”).
15 The Commonwealth does not concede jurisdiction or that appellant has satisfied the
first and second prongs of Brady with respect to this claim, but “[a]ssum[es] solely for
argument’s sake” those requirements have been met. Commonwealth’s Brief at 31.

[J-54-2018] - 28
did Robinson provide an alibi for the murder, but “Rutherford and his associates were the

apparent sources of all of the multi-layered hearsay contained in the statements, which

reflected obvious animus toward Robinson based on his collection of drug debts.” Id. at

35. In the Commonwealth’s view, it would not “surprise jurors that a drug dealer

cultivating a violent image to aid such collection efforts had a business reason to falsely

boast about being involved in a well-publicized local crime until being questioned by

police.” Id. The Commonwealth concludes: “Viewing the evidence in its entirety, the

gossip circulating in early November 1997 among a group of people who did not witness

the murder and had scores to settle with Robinson over his business practices would not

satisfy Brady’s materiality requirement.” Id. at 42.

Turning to appellant’s claim the statements and police paperwork would have

enabled him to challenge the adequacy of the police investigation, the Commonwealth

highlights additional documents disclosed pursuant to the discovery order showing the

police promptly investigated all tips relating to possible perpetrators during the early days

of the investigation and quickly eliminated them as viable suspects. See id. at 35-38. As

the Commonwealth explains, any “[a]ttacks on the integrity of the police investigation

would thus have prompted additional Commonwealth testimony outlining these efforts.”

Id. at 38. The Commonwealth notes as well that appellant’s proposed use of the

statements would have resulted in a renewed focus on the rapid accumulation of evidence

indicating appellant’s guilt, which police collected while simultaneously investigating the

other early leads. See id. at 38-41 (setting forth a chronology of the police investigation

and detailing the evidence demonstrating appellant’s identity as the shooter). The

Commonwealth submits that, as the investigation evolved, “it became clear that the

carjacker of Michael Havens and the shooter of Robert Campbell were the same person,

that [appellant] was that lone perpetrator, that he shot the victim in front of three witnesses

[J-54-2018] - 29
(Bryon Price, Martin Johnson, and Beth Johnson) while wearing Mr. Haven[s]’s distinctive

lumberjack shirt, that — after being seen driving the stolen Lincoln by several people —

he later tried to destroy it and the shirt by setting the vehicle on fire, and that he sold the

murder/carjacking weapon to Keith Smith.” Id. at 42.

The Commonwealth next disputes appellant’s position it would have been

preferable for him to use the evidence to posit an “alternate perpetrator” defense, rather

than the theory of self-defense he presented at trial. Id. at 42-43. The Commonwealth

avers this “post hoc evaluation warrants skepticism” because it “ignores the central

problem facing the defense: namely, that [appellant]’s presence at the scene of the

murder and his participation in it was firmly established by testimonial and physical

evidence.” Id. at 43. In this vein, the Commonwealth reiterates appellant was identified

as the shooter by one eyewitness who knew him (Bryon Price) and by two others (Martin

and Beth Johnson) who identified him by means of the distinctive lumberjack shirt taken

during the carjacking of Michael Havens, who also positively identified him. Id.

Additionally, appellant was “later seen in possession of the distinctive gun used in both

crimes before selling it in a highly inculpatory fashion and was repeatedly seen driving

the stolen get-away car before it was set on fire.” Id. In the context of this evidence, the

Commonwealth concludes appellant’s “suggestion that he had a reasonable probability

of being acquitted if only defense counsel had advanced an alternative perpetrator

defense unsupported by any testimony — whether instead of, or in addition to, his claim

[of] self-defense — defies the record and common sense.” Id. (footnote omitted).

In his reply brief, appellant repeats the general thrust of his argument that the

suppressed evidence was material because it “would have not only allowed defense

counsel to raise a reasonable doubt about [appellant]’s guilt but would have allowed him

to dramatically shift strategy from a very weak self-defense theory to a much stronger

[J-54-2018] - 30
defense that [Robinson], a drug dealer with a motive to kill, was the actual perpetrator.”

Appellant’s Reply Brief at 5. In support, appellant relies on Dennis, supra, in which the

United States Court of Appeals for the Third Circuit concluded evidence of a witness’s

prior inconsistent statement was material because the evidence “‘would have enabled

defense counsel to raise a defense he was otherwise unable to present — that [another

person] committed the murder.’” Id. at 6, quoting Dennis, 834 F.3d at 304-05. Appellant

argues the same reasoning should apply here.

3. Analysis

We need not belabor our discussion of whether appellant has satisfied the first two

components of Brady: without a doubt, the trove of statements and investigatory

paperwork revealed during the federal discovery process were suppressed by the

government and favorable to appellant. There is no dispute the Commonwealth failed to

disclose these materials to the defense prior to trial,16 and some of them were plainly

exculpatory on their face, as they identified an alternate suspect who allegedly claimed

responsibility for the murder. Brady’s first two requirements are therefore clearly satisfied.

The question that remains is whether, even considering the improperly withheld

material, appellant “received a fair trial, understood as a trial resulting in a verdict worthy

of confidence.” Kyles, 514 U.S. at 434. Although we deem it to be a close call, after a

careful review of the entire record, we agree with the PCRA court that the

Commonwealth’s evidence against appellant was so overwhelming there is no

reasonable probability that if the Commonwealth had turned over the relevant evidence

the result of the trial would have been different. See PCRA Ct. Opinion, 8/9/2017, slip

16We recognize the omitted materials were contained within the internal “H-file” of the
police, rather than the Commonwealth’s file. See Commonwealth’s Brief at 13. This,
however, does not relieve the Commonwealth of its duty under Brady. See Strickler, 527
U.S. at 280-81 (“[T]he rule encompasses evidence ‘known only to police investigators
and not to the prosecutor.’”), quoting Kyles, 514 U.S. at 438.

[J-54-2018] - 31
op. at 8-9. In reaching this conclusion we begin, as we must, by considering the omitted

evidence “in the context of the entire record[,]” for “[i]f there is no reasonable doubt about

guilt whether or not the additional evidence is considered, there is no justification for a

new trial.” Agurs, 427 U.S. at 112-13.

With this in mind, we highlight at the outset that, while appellant’s Brady claim

implicates his identity as Campbell’s killer, the criminal episode resulting in Campbell’s

death began much earlier that day. At trial, the Commonwealth produced evidence that

appellant, along with another unidentified individual, carjacked Michael Havens in the

early morning hours of November 9, 1996. N.T. 11/5/1997, 146-54. During that

encounter, appellant pointed a stainless steel revolver at Havens, forced him to surrender

his wallet and keys, and ordered him into his own car — a dark blue Lincoln. Id. at 148-

52. Havens sat in the back seat and appellant sat in the front passenger seat, facing and

pointing his gun at Havens while appellant’s accomplice drove. Id. at 150. Dissatisfied

with the amount of money in Havens’s wallet, appellant threatened to kill Havens if he did

not produce more. Id. at 152. When Havens convinced appellant he had no additional

money available in his bank account, appellant and his accomplice abandoned Havens

on the side of a road and drove away in his car, which contained a distinctive lumberjack-

style jacket inside. Id. at 152-53, 157-58.

Havens’s identification of appellant as the assailant who carjacked him, pointed a

gun at his face, and threatened to kill him before speeding off in his Lincoln was

unwavering. He identified appellant from a photo array and at the preliminary hearing.

Id. at 173, 193. When Havens identified appellant as his armed carjacker at trial, he

explained he had no difficulty seeing appellant’s face while being held hostage at gunpoint

for fifteen to twenty minutes, as he was within one foot of him and the dome light was on

inside the car as appellant counted his money. Id. at 153-54. As to Havens’s confidence

[J-54-2018] - 32
in his identification of appellant as the carjacker, he testified “there’s no doubt in my mind.

I know that he did it. I know that it’s him.” Id. at 174.

With regard to the murder, the Commonwealth presented two witnesses at trial,

Martin and Beth Johnson, who were leaving their home across from the brightly-lit gas

station when they heard a gunshot. N.T. 11/6/1997, 76-78, 94. At that moment they

observed Campbell fall backward with his hands raised in the air. Id. at 78, 94. The

Johnsons then saw the shooter, who was wearing a lumberjack-style jacket, flee into the

driver’s side of a dark Lincoln and speed off. Id. at 78, 82, 85, 94-95.

Byron Price testified appellant picked him up around 7:00 p.m. the evening of the

murder in a blue Lincoln he had never before seen appellant drive. N.T. 11/6/1997, 6-7,

12. Appellant then drove them to the gas station and exited the car, but instructed Price

to wait in the passenger seat. Id. at 9. Price testified to hearing a gunshot, then seeing

appellant run back to the car with a chrome revolver in his hand. Id. at 9-10, 13. At that

time Price observed Campbell lying on the ground next to a gas pump. Id. at 13. When

appellant swiftly made a U-turn out of the gas station and sped away, Price asked him

why he shot the man. Id. at 14-15. Appellant replied: “He drew on me.” Id. at 15.

The Commonwealth also presented testimony that appellant admitted killing

Campbell to his friends the next day. While seated in the stolen Lincoln and talking to a

group of approximately fifteen people, appellant announced, “You know I got that body,

the town watch man.” Id. at 181-82. Still driving around in the Lincoln, appellant later

encountered his friend Robert Golatt. Id. at 163. Appellant told Golatt “that he was at the

service station and some, you know, the guy drawed [sic] on him and he, you know,

popped him first.” Id. at 165. Appellant admitted he had used a chrome .357 handgun

— a caliber consistent with the fatal gunshot wound to the victim’s head. Id.; N.T.

[J-54-2018] - 33
11/5/1997, 232. As a result of appellant’s bragging, it became common knowledge “on

the street” he had murdered Campbell. N.T. 11/6/1996, 164.

There was also evidence presented at trial that, about a week or two after the

murder, appellant sold his chrome .357 revolver to Keith Smith. Id. at 107-18; N.T.

11/7/1997, 42-43. Smith subsequently turned the gun over to his lawyer, who

immediately relinquished it to police. N.T. 11/7/1997, 14-17. Havens identified the gun

at trial as identical to the one appellant had used in the carjacking, while Price identified

it as similar in appearance to the one appellant used to kill Campbell. N.T. 11/5/1997,

170; N.T. 11/6/1997, 13, 115-16.

Price’s girlfriend testified against appellant as well. She explained that she called

a Crime Stoppers Tip Line prior to December 25, 1996, and identified appellant as

Campbell’s killer. N.T. 11/6/1997, 153-54. Appellant subsequently called her, admitted

to killing the victim, and boasted there was no evidence against him. Id. at 154-56.

Finally, the Commonwealth presented evidence that appellant evaded police after

they secured a warrant for his arrest. When police eventually located appellant he fled

and, once captured, gave the officers a false name, inaccurate address, and multiple

dates of birth. N.T. 11/7/1997, 57-88, 100-08, 118-20.

Against the backdrop of this extensive evidence of appellant’s guilt, we now

consider the material revealed in 2014 in response to the federal court’s order. Although

appellant emphasizes numerous statements and investigatory documents that were

withheld by the Commonwealth, they largely derive from a single event: the dispute over

Robinson’s collection of drug debts from individuals associated with the house located at

929 Wynnewood Road. After Robinson repeatedly threatened Rutherford for failing to

pay a drug debt owed to him, Rutherford and Smith came forward to report Robinson had

confessed his supposed involvement in the murder. The vast majority of the remaining

[J-54-2018] - 34
withheld statements and investigatory reports merely document the dispute between

Rutherford and Robinson or regurgitate Rutherford’s and Smith’s claims Robinson

confessed to being the killer. Two notable exceptions include Rutherford’s vague

description he had, at some unknown point in the past, seen Robinson in a Lincoln, and

Durham’s assertion she was at a pay phone near the gas station around the time of the

murder and saw what appeared to be Robinson drive by in his gray vehicle, which was

either a Lexus or an Acura.

Upon careful examination of the withheld material in the context of the entire

record, we cannot say the favorable evidence could reasonably be taken to put the whole

case in such a different light as to undermine confidence in the verdict. Kyles, 514 U.S.

at 434-35. While we do not discount the exculpatory power a third-party’s confession —

even one reported through yet another party — may have in an ordinary case, in the

context of the other evidence presented at this particular trial, the withheld evidence

regarding Robinson is “too little, too weak, or too distant from the main evidentiary points

to meet Brady’s standards.” Turner v. United States, __ U.S. __, 137 S.Ct. 1885, 1894

(2017).

In reaching this conclusion, we “bear in mind that not every item of the State’s case

would have been directly undercut if the Brady evidence had been disclosed.” Kyles, 514

U.S. at 451. Mindful of that instruction, we agree with the Commonwealth that appellant

“ignores the central problem facing the defense: namely, that [appellant]’s presence at

the scene of the murder was firmly established by testimonial and physical evidence.”

Commonwealth’s Brief at 43. Indeed, our careful review leads us to the inescapable

conclusion that, whatever evidentiary value the material regarding Robinson may have in

its own right, it does nothing to weaken the main evidentiary points raised at trial. Cf.

Kyles, 514 U.S. at 451 (evidence was material where “the physical evidence remaining

[J-54-2018] - 35
unscathed [by the withheld evidence] would . . . hardly have amounted to overwhelming

proof that [the defendant] was the murderer”).17

Critically, the withheld material in no way calls into question any of the evidence

proving appellant was the culprit who carjacked Havens. And the unchallenged evidence

17 Of course, we do not mean to imply appellant was required to demonstrate that “after
discounting the inculpatory evidence in light of the undisclosed evidence, there would not
have been enough left to convict.” Kyles, 514 U.S. at 434-35. In fact, “none of the Brady
cases has ever suggested that sufficiency of evidence (or insufficiency) is the
touchstone[,]” id. at 435 n.8, and we do not make it so here. Rather, our analysis is
confined, as it must be, to evaluating the withheld evidence in the context of the entire
record and determining in light of that examination whether there is a reasonable
probabability that, had the evidence been disclosed, the result of the proceeding would
have been different. See Turner, 137 S.Ct. at 1893, citing Cone v. Bell, 556 U.S. 449,
469-70 (2009) and Agurs, 427 U.S. at 112.
The dissent disputes our application of the Brady standards, contending we “engage[ ] in
something more closely resembling a sufficiency analysis[.]” Dissenting Opinion, slip op.
at 6. Respectfully, we do nothing of the sort. As we have explained, we consider the
omitted evidence “in the context of the entire record[,]” as the law demands. Agurs, 427
U.S. at 112; see also id. at 112-13 (“If there is no reasonable doubt about guilt whether
or not the additional evidence is considered, there is no justification for a new trial.”).
Moreover, contrary to the dissent’s suggestion, we do not “discount the exculpatory
statements of Rutherford and Smith,” nor do we make any credibility determinations.
Dissenting Opinion, slip op. at 7. Again, we reiterate our analysis is limited to considering
the exculpatory evidence in the context of the entire record, as United States Supreme
Court precedent requires. In fact, it is perplexing that the dissent suggests the materiality
principles announced in Agurs are no longer good law, see id. at 6 n.3, when the Supreme
Court itself repeatedly and extensively relied upon them in its most recent decision
applying Brady. See Turner, 137 S.Ct. at 1893 (“We must examine the trial record,
‘evaluat[e]’ the withheld evidence ‘in the context of the entire record,’ Agurs, supra, at
112, and determine in light of that examination whether ‘there is a reasonable probability
that, had the evidence been disclosed, the result of the proceeding would have been
different.’ Cone, supra, at 470[.]”); id. at 1894 (“Considering the withheld evidence ‘in the
context of the entire record,’ however, Agurs, supra, at 112, we conclude that it is too
little, too weak, or too distant from the main evidentiary points to meet Brady’s
standards.”); id. at 1895 (“We conclude only that in the context of this trial, with respect
to these witnesses, the cumulative effect of the withheld evidence is insufficient to
undermine confidence in the jury’s verdict[.]”) (internal quotation and citation omitted).
Thus, it is the dissent’s analysis, rather than ours, that misapplies the relevant Brady
precedent, by focusing exclusively on the nature of the omitted evidence, divorced from
the overwhelming evidence of appellant’s guilt contained in the trial record.

[J-54-2018] - 36
from that crime — the hijacked Lincoln, appellant’s chrome .357 revolver, and the stolen

lumberjack jacket — directly connected appellant to Campbell’s shooting only hours later.

Perhaps even more damning, yet also unaffected by the withheld material, was Price’s

eyewitness testimony that appellant killed Campbell and then explained to Price he did

so because Campbell allegedly “drew on him.” There was also, of course, the evidence

that appellant sold his chrome revolver shortly after the murder; bragged to a large group

of people he was the killer while sitting in Havens’s stolen Lincoln; told Price’s girlfriend

he killed Campbell and boasted there was no evidence against him; and evaded police

for months and gave false information regarding his identity when he was finally

apprehended. None of this evidence admitted at trial is cast into doubt or undercut by the

withheld material.

Given this overwhelming and intact evidence of appellant’s guilt, we are not

persuaded by his argument he would have had “a much stronger defense” had he been

able to present an alternate perpetrator theory, rather than the theory of self-defense he

presented at trial. Appellant’s Reply Brief at 5. In this respect, we reject appellant’s

reliance on the Third Circuit’s sharply-divided en banc decision in Dennis. See id. at 6-8;

see also Appellant’s Brief at 27. It is true the majority in Dennis held, under the facts of

that case, there was a reasonable probability that had the jury heard an “other person”

defense based on the withheld material, the result of the proceeding would have been

different. Dennis, 834 F.3d at 311. As the Third Circuit explained, however, “the

documents not only support an alternative shooter theory, but the very same alternative

shooter theory that defense counsel could have been prepared to raise had [additional

withheld evidence] also been disclosed.” Id. (emphasis in original). That other withheld

evidence included “a receipt corroborating Dennis’s alibi, an inconsistent statement by

the Commonwealth’s key eyewitness, and [additional] documents indicating that another

[J-54-2018] - 37
individual committed the murder[,]” the cumulative effect of which “effectively gutted the

Commonwealth’s case against Dennis.” Id. at 269; see also id. at 313 (“The withholding

of the Brady material would have given defense counsel unique ability to discredit the

Commonwealth’s primary witnesses, bolster his alibi defense using objective

documentary support from a disinterested party, highlight the shoddiness of the

Commonwealth’s investigation, and perhaps point to another perpetrator.”). The facts of

Dennis, as well as the nature and extent of the withheld evidence involved in that case,

are far different from those presented here. And contrary to the Third Circuit’s conclusion

in Dennis that the suppressed evidence there “effectively gutted” the Commonwealth’s

case, as we have explained, the same cannot be said of the withheld evidence here.18

We also reject appellant’s suggestion, see Appellant’s Brief at 37-38, that any

withheld evidence that could arguably be used by the accused to present a previously

unavailable defense theory, or which might cast doubt upon the integrity of the police

investigation, automatically renders it “material” in the constitutional sense. See

Commonwealth v. Chambers, 807 A.2d 872, 887 (Pa. 2002) (“The mere possibility that

an item of undisclosed information might have helped the defense, or might have affected

the outcome of the trial, does not establish materiality in the constitutional sense.”)

(citation omitted). Instead, as we have emphasized above, the law is clear that evidence

is material “only if there is a reasonable probability that, had the evidence been disclosed

to the defense, the result of the proceeding would have been different. A reasonable

18 Parenthetically, we note “this Court is bound by decisions of the U.S. Supreme Court,
not the opinions of the inferior federal courts.” Commonwealth v. Tedford, 960 A.2d 1, 15
(Pa. 2008). At the same time, it does not escape us that the Third Circuit’s decision in
Dennis was highly critical of this Court’s treatment of certain aspects of federal precedent
regarding Brady and its progeny. See, e.g., Dennis, 834 F.3d at 285 (“[T]he Pennsylvania
Supreme Court’s decisions . . . rested on unreasonable conclusions of fact and
unreasonable applications of clearly established law[.]”). Our analysis herein is mindful
of those pointed criticisms.

[J-54-2018] - 38
probability is a probability sufficient to undermine confidence in the outcome.” Id. at 887-

88, citing Bagley, 473 U.S. at 682.

On this point, we find the United States Supreme Court’s recent decision in Turner,

supra, particularly instructive. Turner involved the brutal rape and murder of Catherine

Fuller, in what the government believed had been a group attack. 137 S.Ct. at 1889. The

withheld evidence in Turner included the identities of two men, James McMillan and

Gerald Merkerson, whom a witness had seen run into the alley where Fuller was

murdered and stop near the garage where she had allegedly been raped. Id. at 1891.

The defendants argued this information was material because after Fuller’s murder,

McMillan assaulted and robbed two other women of comparable age in the same

neighborhood, and the suppressed information could have suggested McMillan was

returning to the scene of the crime to cover his tracks. Id. at 1894. More precisely, the

defendants argued that with the withheld evidence “they could have raised an alternative

theory, namely, that a single perpetrator (or two at most) had attacked Fuller.” Id. at 1893.

The defendants further argued they could have used the withheld evidence “to suggest

that an incomplete investigation had ended up accusing the wrong persons.” Id. at 1894.

The Supreme Court found these arguments unpersuasive, relying on the testimony of

multiple other government witnesses who affirmed that Fuller had been killed in a group

attack, and reasoning that, given the strength of the evidence presented to the jury, the

withheld evidence did not undermine confidence in the verdict. Id.

The analysis and result in Turner, while admittedly bound to the unique facts of

that case, supports our conclusion the withheld evidence in this case was not material.

Contrary to appellant’s claim, it is not enough, for purposes of establishing materiality

under Brady, to simply allege that the withheld evidence may have opened the door to an

otherwise unavailable defense theory, or to challenge the completeness of the police

[J-54-2018] - 39
investigation.19 Rather, the linchpin of materiality is whether there exists a reasonable

probability that, had the evidence been disclosed, the result of the proceeding would have

19 The dissent, consistent with Justice Kagan’s dissenting position in Turner, would hold
the Robinson documents material under Brady, arguing they are “evidence which, in the
hands of competent defense counsel, would have dramatically shifted the course of
[appellant]’s defense[,]” and “would have given [appellant] a much greater chance of
success.” Dissenting Opinion, slip op. at 11-12. To the extent the dissent appears to
endorse a bright-line rule holding any withheld evidence that could be used to support a
new defense theory is Brady material, see id. at 7-8, Turner squarely rejects the notion
such a rule exists. Even assuming the dissent’s view is limited to the circumstances of
this case, we likewise reject it. As we have repeated more than a few times, in
determining materiality, the law is clear the withheld evidence must be considered in the
context of the entire record. Turner, 137 S.Ct. at 1893, citing Agurs, 427 U.S. at 112.
Here, that record, which the dissent fails to fully discuss or appreciate, as we have
carefully done, consists of overwhelming evidence of appellant’s guilt, none of which is
affected by the Robinson documents. Indeed, although the dissent bemoans the “barren
evidentiary landscape upon which trial counsel apparently felt compelled to base his
case[,]” Dissenting Opinion, slip op. at 10, he fails to acknowledge that landscape is
precisely the same even in the face of the new evidence: Havens still unequivocally
identified appellant as his armed carjacker; the Johnsons still identified the killer as fleeing
in a car similar to Havens’s stolen Lincoln, while wearing a lumberjack-style jacket similar
to the one inside Havens’s car; Price still testified appellant shot the victim and then
alleged it was in self-defense; appellant still admitted to a group of fifteen people he killed
the victim; appellant still sold the murder weapon shortly after the murder; Havens and
Price still testified that recovered gun was identical or similar to the one appellant used in
the carjacking and murder; appellant still admitted to Price’s girlfriend that he killed the
victim and boasted there was no evidence against him; and appellant still evaded police
for months, fled when they finally found him, and gave false information regarding his
identity upon arrest. In the context of this unscathed evidence, the withheld evidence
does not undermine confidence in the jury’s verdict.
Of course, it bears emphasizing the result we reach in this particular case is tethered to
these facts, and nothing in this opinion undermines our prior decisions recognizing
Brady’s materiality assessment extends to consideration of a “defendant’s ability to
investigate alternate defense theories and to formulate trial strategy.” Commonwealth v.
Ly, 980 A.2d 61, 76 (Pa. 2009). But as we further explained in those decisions, consistent
with federal precedent, the determinative question for purposes of materiality under Brady
is whether “there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.” Commonwealth v.
Willis, 46 A.3d 648, 670 (Pa. 2012) (Opinion Announcing the Judgment of the Court).
That is the question we address herein, and we simply conclude, on this evidentiary
record, there does not exist a reasonable probability of a different result had the
Commonwealth disclosed the Robinson documents. Thus, the dissent’s implication our

[J-54-2018] - 40
been different. Id. at 1893. As we conclude the withheld evidence in this case does not

undermine confidence in the jury’s verdict, and there is not a reasonable probability the

result of appellant’s trial would have been different had it been disclosed, appellant’s

Brady claim does not entitle him to relief.20

C. Cumulative Effect of Suppressed Evidence

Before this Court, appellant raises an additional claim that he was prejudiced by

the cumulative effect of the Commonwealth’s alleged Brady violations. See Appellant’s

Brief at 42-43, citing Kyles, 514 U.S. at 436 (cumulative effect of state’s failure to reveal

multiple pieces of exculpatory evidence undermined fairness of trial and entitled

defendant to relief). The Commonwealth responds this claim is waived because it was

decision in this case renders the Brady rule “a mere suggestion without consequence[,]”
Dissenting Opinion, slip op. at 17, is ill-suited.
20 Notwithstanding our conclusion the Commonwealth did not violate Brady, we stress in
the most emphatic terms that we do not condone the Commonwealth’s failure to turn over
the clearly exculpatory material involved in this case. It will seldom be the case that a
prosecutor’s failure to turn over evidence, from whatever source, of another individual’s
confession to the crime charged against the accused will be deemed immaterial under
Brady, and we caution the Commonwealth against taking such a retrospective view of
materiality. See Bagley, 473 U.S. at 701 (Marshall, J., dissenting) (remarking on the
dangers posed by the Brady materiality standard, which “invites a prosecutor, whose
interests are conflicting, to gamble, to play the odds, and to take a chance that evidence
will later turn out not to have been potentially dispositive”). Along these lines, we remind
the Commonwealth that it is:
the representative not of an ordinary party to a controversy, but of a
sovereignty whose obligation to govern impartially is as compelling as its
obligation to govern at all; and whose interest, therefore, in a criminal
prosecution is not that it shall win a case, but that justice shall be done. As
such, he is in a peculiar and very definite sense the servant of the law, the
twofold aim of which is that guilt shall not escape or innocence suffer.

Berger v. United States, 295 U.S. 78, 88 (1935). Stated more plainly, “[n]o interest of the
State is served, and no duty of the prosecutor advanced, by the suppression of evidence
favorable to the defendant.” Agurs, 427 U.S. at 116 (Marshall, J., dissenting).

[J-54-2018] - 41
neither preserved before the PCRA court nor included in appellant’s Pa.R.A.P. 1925(b)

statement of matters complained of on appeal. See Commonwealth’s Brief at 45-46.

We disagree with the Commonwealth that appellant has waived this claim. True

as it is that appellant failed to raise cumulative prejudice as a standalone claim in the

court below and in his Rule 1925(b) statement, we agree with appellant that “[a]s a matter

of law, a [c]ourt reviewing multiple pieces of exculpatory evidence that the prosecution

failed to disclose is required to view the effect of the non-disclosures cumulatively.”

Appellant’s Reply Brief at 11. Indeed, the Supreme Court in Kyles instructed that

materiality of withheld evidence must be “considered collectively, not item by item.” 514

U.S. at 436. See also Wearry v. Cain, __ U.S. __, 136 S.Ct. 1002, 1007 (2016) (per

curiam) (“[T]he state postconviction court improperly evaluated the materiality of each

piece of evidence in isolation rather than cumulatively[.]”). Thus, we agree with appellant

“[t]his is not a waivable claim; it is, rather, the very nature of how a Brady claim is required

to be reviewed.” Appellant’s Reply Brief at 11.

On the other hand, we also recognize the precise nature of the claim appellant

urges us to consider is the cumulative prejudice created by the Commonwealth’s

suppression of the “Maculla” note along with the Robinson documents. See Appellant’s

Brief at 42. Given our determination that appellant’s Brady claim concerning the “Maculla”

note is untimely, that evidence is not properly before us, and we therefore decline to

consider it in the analysis. We underscore, however, that in addressing appellant’s sole

timely-raised Brady claim concerning the various withheld materials respecting Robinson,

we have carefully considered and rejected appellant’s cumulative materiality argument,

as set forth at length above.

D. PCRA Court’s Evidentiary Ruling21

21As appellant’s next claim relates to the evidentiary proceedings conducted below
pursuant to his Brady claims, we address it out of turn.

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Appellant argues the PCRA court abused its discretion when it ruled he was not

entitled to materials contained in the files maintained by the Pennsylvania Department of

Probation and Parole and the Philadelphia Department of Probation and Parole relating

to John McCullough III, the son of John McCullough. See Appellant’s Brief at 44-49.

Appellant stresses that his request “was not a discovery request subject to Pa.R.Crim.P.

902(E)(1)” because he was “not seeking to obtain the information from the prosecutor or

its agents[.]” Id. at 45. Even if construed as a discovery request, appellant continues, his

request satisfied the “exceptional circumstances” requirement of Rule 902(E)(1), as the

requested files may have provided him with information he could have used to challenge

the witness’s motive for testifying, as well as his “drug use and mental health condition.”

Id. at 46-48.

The Commonwealth argues appellant’s evidentiary claim is partially waived and

meritless in any event. See Commonwealth’s Brief at 52-56. As to waiver, the

Commonwealth notes appellant did not object or ask the PCRA court to set forth its

reasoning when it denied appellant’s request for the files following its in camera review

and, thus, “he cannot complain now that the lack thereof somehow supports his

challenge[.]” Id. at 53. On the merits, the Commonwealth relies on the strict standard for

obtaining discovery pursuant to Rule 902(E)(1) and argues the PCRA court acted well

within its discretion when it denied appellant’s request because the “fact of any probation

or parole, including any violations thereof, was already publicly available information” and,

therefore, appellant’s request “exceeded what would have been reasonable for purposes

of establishing possible bias.” Id. at 54. Moreover, the Commonwealth contends the

PCRA court acted appropriately when it denied appellant “the opportunity to turn the

limited PCRA discovery mechanisms into an invasion of the witness’s mental health and

other personal information[,]” much of which appellant successfully elicited through cross-

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examination in any event. Id. at 55-56. The Commonwealth concludes the PCRA court’s

decision to hold an in camera review “struck an appropriate balance, ensuring that any

material relevant to impeachment of John McCullough III was produced while guarding

against needless intrusions on the witness’s privacy.” Id. at 56.

Initially, we reject appellant’s attempt to recast his request for the witness’s records

as anything other than a discovery request governed by Rule 902. As the Commonwealth

points out, appellant offers no support for his proposed limitation on the definition of

“discovery” in the PCRA context to materials obtained directly from the police or district

attorney’s office, as opposed to those in the custody of other Commonwealth agencies or

even non-governmental entities. See Commonwealth’s Brief at 55 n.24. And, in fact, this

Court has previously construed medical records, which are maintained by entities

completely divorced from the Commonwealth, pursuant to the discovery provisions of

Rule 902(E). See, e.g., Commonwealth v. Keaton, 45 A.3d 1050, 1094 (Pa. 2012)

(upholding PCRA court’s denial of discovery motion that “essentially requested wholesale

discovery of police and medical records”) (emphasis added). Accordingly, we conclude

appellant’s claim is properly reviewed under the standards for obtaining discovery

pursuant to Rule 902(E)(1).

Viewed under these standards, we conclude the PCRA court did not abuse its

discretion in denying appellant’s request for the witness’s probation and parole files. See

Commonwealth v. Bryant, 855 A.2d 726, 749-50 (Pa. 2004) (“We review the denial of a

discovery request in post-conviction proceedings for an abuse of discretion.”). Appellant’s

discovery request was overly broad, and much of the impeachment material he hoped to

find was publicly available or could have been obtained by less obtrusive means. Under

these circumstances, the PCRA court did not abuse its discretion by holding an in camera

review and otherwise denying appellant’s overly-broad discovery request. See generally

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Commonwealth v. Sattazahn, 952 A.2d 640, 662 (Pa. 2008) (under less stringent “good

cause” standard governing discovery for first PCRA petitions in capital cases, a petitioner

must make “more than just a generic demand for potentially exculpatory evidence that

might be discovered if the petitioner is permitted to review requested materials”);

Commonwealth v. Collins, 957 A.2d 237, 271-72 (Pa. 2008) (rejecting “sweeping

requests” for PCRA discovery under “good cause” standard); Commonwealth v. Williams,

732 A.2d 1167, 1175 (Pa. 1999) (petitioner “failed to establish any specific ground that

would warrant his broad-based discovery request”).22

IV. Constitutionality of 42 Pa.C.S. §9711(d)(9)

In his final claim, appellant argues that because the language of 42 Pa.C.S.

§9711(d)(9) (significant history of violent felony convictions aggravator) is “materially

indistinguishable” from the residual language of the federal Armed Career Criminal Act

(ACCA), 18 U.S.C. §924(e)(2)(B)(ii) — which was ruled unconstitutional by the United

States Supreme Court in Johnson and made retroactive by Welch — his death sentence

violates the Eighth and Fourteenth Amendments to the United States Constitution.

Appellant’s Brief at 43. Appellant recognizes this claim is untimely under this Court’s

recent decision in Commonwealth v. Spotz, 171 A.3d 675, 681-82 (Pa. 2017) (explaining

“the (d)(9) aggravator must have been held unconstitutional at the time” the petition is

filed), but asserts he raises the issue solely “to preserve it for federal review.” Appellant’s

Brief at 44. As appellant correctly concedes, Spotz precludes our exercise of jurisdiction

22 Our conclusion that no relief is due on this claim is further supported by the fact that
this issue arose in the context of a hearing on appellant’s Brady claim concerning the
“Maculla” note, which we have already held was untimely in the first place.

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over his present challenge to the constitutionality of the Section 9711(d)(9) aggravator,

and we therefore need not need discuss it further.23

V. Conclusion

Having concluded that appellant’s claims in his third PCRA petition and the multiple

supplements thereto are either time-barred or lack merit, we affirm the order of the PCRA

court dismissing appellant’s serial petition.

Chief Justice Saylor and Justices Baer, Todd and Mundy join the opinion.

Justice Wecht files a dissenting opinion in which Justice Donohue joins.

23We note that in his reply brief, appellant argues the recent opinion by the United States
Supreme Court in Sessions v. Dimaya, __ U.S. __, 138 S.Ct. 1204 (2018), “which made
clear that the new test announced in Johnson extends to similarly worded though not
textually identical statutes, calls into question the decision in Spotz.” Appellant’s Reply
Brief at 13. This argument was not presented to the court below; consequently, we
decline to address it.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4360922. Public record. Not legal advice.