Com. v. Bush, J.

J-A10009-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JEREMIAH BUSH :

:

Appellant : No. 6 EDA 2023

Appeal from the PCRA Order Entered December 2, 2022

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0008142-2012

BEFORE: PANELLA, P.J.E., BECK, J., and COLINS, J.*

MEMORANDUM BY PANELLA, P.J.E.: FILED JUNE 7, 2024

Jeremiah Bush appeals pro se from the order entered on December 2,

2022, denying his first, timely petition pursuant to the Post-Conviction Relief

Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Because we conclude that his

claims either lack merit or are waived, we affirm.

A prior panel of this Court set forth the relevant factual history as

follows:

At trial, [held January 27, 2014, through January 30, 2014,]

the Commonwealth presented the testimony of Philadelphia Police

Sergeant Steven Crosby, Philadelphia Police Detectives Michael

Rocks and William Kelhower, Philadelphia Police Officers Robert

Burrell, Ronald Weitman, Russell Seiberlich, and Scott Pollack,

Assistant Medical Examiner Dr. Edwin Lieberman, as well as Lorna

Wall, Clarence Milton, K[h]alil Bell, and Robert Matthews. Bush

testified on his own behalf. Viewed in [the] light most favorable to

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* Retired Senior Judge assigned to the Superior Court.

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the Commonwealth as the verdict winner, the evidence

established the following.

Bush, Clarence Milton, and Steven Brown were childhood

friends who engaged in drug-selling activities for several years

prior to 2006. As part of his drug operation, Steven Brown used

to provide drugs to Kareem Brown. On March 26, 2006, Steven

Brown was shot and killed. Bush and Milton had conversations

regarding Steven Brown’s death and street gossip indicated that

Kareem Brown was the shooter.

On September 20, 2006, Bush attempted to locate Kareem

Brown, in an attempt to exact revenge for the death of Steven

Brown. While looking for Kareem Brown, Bush encountered

Kareem Brown’s brother-in-law, the decedent, Leary Wall. Bush

demanded that Wall tell him where Kareem Brown could be found

and, when Wall did not or could not tell, Bush shot him. Bush then

left the area in a vehicle driven by an individual named Qua.

At approximately 9:45 p.m. that same evening, Philadelphia

Police Detective Michael Rocks responded to a radio call on the

2100 block of Dover Street in Philadelphia. Upon arriving at the

scene, Rocks observed Wall lying on the highway, having been

shot four times. Wall was transported to Temple University

Hospital, where he was later pronounced dead. Two bullets were

recovered from Wall’s body, while seven nine[-]millimeter

cartridge cases were recovered from the homicide scene. Both

recovered bullets were fired from the same firearm.

Some time following Wall’s shooting, an individual by the

name of “Bum” contacted Bush’s friend Milton in order to buy a

firearm. Milton contacted Bush, who indicated that he had a “dirty”

gun to sell. Bush indicated that the firearm was “dirty” because

he had used it to shoot Wall and further detailed the circumstances

surrounding the shooting. Bush subsequently sold Bum a black

nine[-]millimeter firearm for approximately $500.00.

On July 12, 2007, Bush was arrested and charged for a

separate shooting that occurred on September 13, 2006, one

week prior to the shooting of Wall. On that date, police responded

to a reported shooting on the 1900 block of West Norris Street in

Philadelphia. Upon arriving at the scene, police found Amin Payne

and Timothy Fontaine, both suffering from gunshot wounds.

Payne was shot a total of seven times and police recovered seven

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nine[-]millimeter fired cartridge casings. Charges against Bush

were ultimately nolle prossed due to the lack of cooperation of the

witnesses.

In 2009, Bush was in custody in Delaware County Prison

with Robert Matthews as a cellmate. At some point, Payne, the

victim of the September 13, 2006 shooting, was escorted into the

cell block. Bush informed Matthews that he had shot Payne seven

times “over a beef” using a nine[-]millimeter handgun. Upon

noticing Bush, Payne alerted the prison officials and was escorted

from the block. At a later time, while still in custody, Bush told

Matthews that he had killed someone with the same firearm that

he had used to shoot Payne. Bush thereafter informed Matthews

of the circumstances of his shooting Wall.

On July 30, 2010, K[h]alil Bell, a friend of Bush, contacted

the Philadelphia Police through a letter stating that he was willing

to talk with police. Detective William Kelhower conducted an

interview with Bell on February 7, 2011, concerning the death of

Wall. In this interview, Bell stated that Bush had admitted to Bell

that Bush had shot Wall while attempting to locate Kareem Brown.

On September 20, 2010, Mat[t]hews gave a statement to

police concerning what Bush had told him while in custody. On

November 8, 2011, Clarence Milton, Bush’s friend, provided a

statement to the police indicating that Bush confessed to killing

Wall during their discussion about the sale of the “dirty” gun.

Subsequent testing confirmed that the seven bullet casings

recovered from the scene of the homicide matched the seven

casings recovered a week prior to the homicide from the shooting

of Payne. An arrest warrant was issued for Bush on February 6,

2012, and Bush was taken into custody two days later, on

February 8, 2012.

Commonwealth v. Bush, 2015 WL 7587344, unpublished memorandum, at

*1-2 (Pa. Super. filed February 17, 2015) (quoting Trial Court Opinion,

9/12/14, at 1-4) (brackets omitted). At the conclusion of trial, the jury

convicted Bush of first-degree murder, firearms not to be carried without a

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license, and possessing instruments of crime.1 On January 30, 2014, Bush was

sentenced to life imprisonment for his conviction of first-degree murder, and

no further penalty on the remaining charges.

Bush appealed, and this Court affirmed his convictions on February 17,

2015. Bush petitioned for allowance of appeal to our Supreme Court, which

the Supreme Court denied on July 29, 2015.

On February 1, 2016, Bush filed a timely pro se PCRA petition. Bush

thereafter filed multiple pro se supplemental PCRA petitions wherein he raised

multiple claims of ineffective assistance of trial and direct appeal counsel 2 and

Brady3 violations. The PCRA court4 appointed counsel to represent Bush

during the PCRA proceedings. The PCRA court granted an evidentiary hearing

on some, but not all, of Bush’s claims.

Bush believed his interests were not being adequately represented, so

he elected to proceed pro se. The PCRA court held a Grazier5 hearing and

granted his request. However, Bush allowed stand-by counsel to conduct the

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1 18 Pa.C.S.A. §§ 2502(a), 6106(a)(1), and 907(a), respectively.

2 Bush was represented by the same attorney for trial and direct appeal. This

attorney was unable to testify at the PCRA proceedings as he had passed away

during the pendency of the PCRA petition.

3 Brady v. Maryland, 373 U.S. 83 (1963).

4 The Honorable Glenn B. Bronson presided over Bush’s trial and PCRA

proceedings.

5 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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three evidentiary hearings held August 12, 2022, October 12, 2022, and

November 28, 2022. At the conclusion of the three evidentiary hearings, the

PCRA court dismissed Bush’s PCRA petition.

Bush appealed and complied with the PCRA court’s order to file a Rule

1925(b) statement. See Pa.R.A.P. 1925(b). He now raises 14 claims of error:

1. Did the PCRA [c]ourt err in denying [Bush’s] claim that trial

counsel provided ineffective assistance of counsel where he failed

to interview and present Timothy Fontaine as a witness during

trial?

2. Did the PCRA [c]ourt err in denying [Bush’s] claim that trial

counsel provided ineffective assistance of counsel where he failed

to present letters from Clarence Milton to Khalil Bell?

3. Did the PCRA [c]ourt err in denying [Bush’s] claim that direct

appeal counsel was ineffective for failing to raise on direct appeal

that the trial [c]ourt abused its discretion by admitting evidence

of the Amin Payne shooting during [Bush’s] trial?

4. Did the PCRA [c]ourt err in denying [Bush’s] claim that the

Commonwealth committed a Brady violation by suppressing

evidence of Khalil Bell's letter to homicide detectives and also

Bell’s statement falsely implicating [Bush] for the murder of

Sharieff Lighty?

5. Was PCRA counsel ineffective for failing to properly cross-

examine witness Clarence Milton and present evidence regarding

letters that Milton wrote to Kenneth Whitley?

6. Was PCRA counsel ineffective for failing to raise the claim of

after discovered/newly discovered evidence consisting of the

evidentiary testimony of Clarence Milton and Khalil Bell, where

both witnesses testified that [Bush] did not kill Sharieff Lighty,

and the allegations against [Bush] were fabricated?

7. After discovered/[n]ewly discovered evidence consisting of

Brady material that the Commonwealth intentionally suppressed

from the defense relating to the credibility and impeachment

evidence of witness Amin Payne?

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8. Did the PCRA [c]ourt abuse its discretion in failing to hold an

evidentiary hearing on claims where [Bush] had raised genuine

issues of material fact that entitle him to relief?

A) Trial counsel provided ineffective as[sis]tance when he failed

to object to the introduction of a statement from witness Khalil

Bell, thus violating [Bush’s] right to confrontation.

B) Trial counsel provided ineffective assistance when he failed to

investigate, interview, and call Alfonso Holder as a defense

witness at trial.

C) Direct [a]ppeal counsel failed to raise trial court abuse of

discretion by allowing prejudicial evidence at trial related to the

shooting of Amin Payne.

D) Direct appeal counsel failed to raise trial court abuse of

discretion when overruling trial counsel’s objection to the

prosecutor questioning [Bush] on cross-examination about

carrying guns.

E) The Commonwealth committed a Brady violation by failing to

disclose that witness Clarence Milton was arrested and convicted

for possession of the same caliber firearm used in the instant

murder case; also [Bush] was denied due process and a fair trial

as a result of this firearm being destroyed.

F) Newly discovered/[a]fter discovered evidence showing that the

prosecution committed a Brady violation by intentionally

withholding exculpatory evidence from the defense; and the use

of unduly coercive interrogation tactics by [D]etective William

Kelhower.

Appellant’s Brief, at 5-6 (suggested answers omitted).

Our review of the grant or denial of PCRA relief is limited to

examining whether the PCRA court’s findings of fact are supported

by the record, and whether its conclusions of law are free from

legal error. 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.

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Commonwealth v. Small, 189 A.3d 961, 971 (Pa. 2018) (citations omitted).

Furthermore,

[a] petitioner is not entitled to a PCRA hearing as a matter of right;

the PCRA court can decline to hold a hearing if there is no genuine

issue concerning any material fact, the petitioner is not entitled to

PCRA relief, and no purpose would be served by any further

proceedings.

Commonwealth v. Postie, 200 A.3d 1015, 1022 (Pa. Super. 2018) (en banc)

(citation omitted). It is Bush’s “burden to persuade this Court that the PCRA

court erred and that such error requires relief.” Commonwealth v. Williams,

196 A.3d 1021, 1027 (Pa. 2018) (citation omitted).

As several of Bush’s claims concern counsel’s effectiveness, we observe

that “[t]he law presumes counsel has rendered effective assistance.” Postie,

200 A.3d at 1022 (citation omitted).

To overcome this presumption, a petitioner must establish that:

(1) the underlying substantive claim has arguable merit; (2)

counsel did not have a reasonable basis for his or her act or

omission; and (3) the petitioner suffered prejudice as a result of

counsel’s deficient performance, that is, a reasonable probability

that but for counsel’s act or omission, the outcome of the

proceeding would have been different.

Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (citation

omitted). “A PCRA petitioner must address each of these prongs on appeal[,

and a] petitioner’s failure to satisfy any prong of this test is fatal to the claim.”

Id. (citations omitted).

In his first claim, Bush asserts trial counsel was ineffective for failing to

call Timothy Fontaine as a witness.

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`When raising a claim of ineffectiveness for the failure to call a

potential witness, a petitioner satisfies the performance and

prejudice requirements of the Strickland[6] test by establishing

that: (1) the witness existed; (2) the witness was available to

testify for the defense; (3) counsel knew of, or should have known

of, the existence of the witness; (4) the witness was willing to

testify for the defense; and (5) the absence of the testimony of

the witness was so prejudicial as to have denied the defendant a

fair trial.

Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012) (citations

omitted).

Bush argues that the PCRA court erred in finding that his trial counsel

was not ineffective for failing to call Timothy Fontaine as a witness at trial.

See Appellant’s Brief, at 10. Timothy Fontaine was a witness and victim of the

September 13, 2006, shooting. See N.T. PCRA Hearing, 8/12/22, at 19. Bush

claims that Fontaine would have been beneficial for his defense because the

Commonwealth used the September 13, 2006, shooting to connect him to the

homicide of September 20, 2006, as the same firearm was used in both

shootings and Bush confessed to both shootings. See N.T. Trial, 1/27/14, at

81; N.T. Trial, 1/29/14, at 51, 61-62, 65-66, 67. Fontaine testified at the PCRA

hearing that he did not see Bush shoot Amin Payne on September 13, 2006.

See N.T. PCRA Hearing, 8/12/22, at 20-21. Fontaine further testified that he

would have testified for Bush if called to do so, but that no one contacted him

prior to trial. See id. at 22, 30.

____________________________________________

6 Strickland v. Washington, 466 U.S. 668 (1984).

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The PCRA court held that Bush did not prove that Fontaine was available

for trial and that there was no prejudice from Fontaine’s failure to testify. See

PCRA Court Opinion, 3/14/23, at 10. As the PCRA court aptly explained:

Mr. Fontaine made numerous statements that diminished

his credibility. He stated that he did not “fully witness” the

shooting. [N.T. PCRA Hearing, 8/12/22, at 19]. Furthermore,

while Mr. Fontaine initially stated that [] two men were arguing

just before the shooting occurred, he later stated that the two men

were not arguing, but then changed his mind again. [See i]d. at

20, 41-42. Mr. Fontaine also stated that he did not remember ever

seeing the affidavit in his name submitted by defendant in support

of his PCRA petition, while also stating that he signed the affidavit.

[See i]d. at 33-34, 43-44.

Additionally, Mr. Fontaine testified that while he was

“something like” a mentor to the defendant, he did not know why

defendant was incarcerated. Id. at 36. He testified that someone

told him about three years ago that defendant had been arrested

in connection with Mr. Payne’s 2006 shooting, but that he never

contacted the police or the District Attorney’s Office to tell them

that the defendant could not have shot Mr. Payne. [See i]d. at

36. At the December 2, 2022 listing, the [c]ourt found Mr.

Fontaine’s testimony to be incredible. [See] N.T. 12/2/2022 at 10.

The [c]ourt also found that Mr. Fontaine was not willing to

testify at the time of defendant’s trial and was not available for

the defense. [See i]d. at 10. While Mr. Fontaine stated he was

available to testify on defendant’s behalf, [see] N.T. 8/12/2022

at 30, the record established that both the Commonwealth and a

defense investigator were looking for Mr. Fontaine at the time of

trial, but neither was able to locate him. [See] N.T. 1/28/2014 at

300. Furthermore, the record also demonstrates that the charges

against both Mr. Payne and the defendant in relation to the

September 13, 2006 shooting were nolle prossed for lack of

witness participation, further establishing that Mr. Fontaine was

unavailable or unwilling to testify.

Accordingly, defendant’s claim fails because Mr. Fontaine

was not willing or available to testify at trial. See

[Commonwealth v.] Johnson, 966 A.2d [523,] 536 [(Pa.

2009)]. In addition, based on Mr. Fontaine’s lack of credibility at

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the evidentiary hearing, there was not a reasonable probability

that the result of defendant’s trial would have been different had

trial counsel successfully subpoenaed Mr. Fontaine to testify at

defendant’s trial. See [Commonwealth v.] Sneed, 899 A.2d

[1067,] 1084 [(Pa. 2006)]. No relief is due.

PCRA Court Opinion, 3/14/23, at 9-10. We agree with the PCRA court and

adopt it analysis as our own. Bush’s first claim fails.

In Bush’s second allegation of error, he claims the PCRA court erred in

denying his claim that trial counsel was ineffective for failure to use letters

during his cross-examination of Clarence Milton that Milton allegedly wrote

and mailed to his brother, Khalil Bell, prior to trial. See Appellant’s Brief, at

11-12. Bush asserts that in these letters “authored by Milton, he implores his

brother (Bell)[] not to recant his testimony implicating appellant because

doing so would jeopardize Milton’s federal plea agreement.” Id. at 12.

There were two letters allegedly authored by Milton. One which the PCRA

court labeled the “print letter” and one which the PCRA court labeled the

“cursive letter” based upon the handwriting of the letters, as one was written

in cursive and the other letter was written in print. See PCRA Court Opinion,

3/14/23, at 11. The cursive letter did not provide any benefit to Bush, as it

did not discuss him or his case. See id. The print letter, however, “would have

provided [Bush] significant material to impeach Mr. Milton.” Id. The problem

with this claim is that Milton, at the PCRA hearing, denied writing the print

letter. See N.T. PCRA Hearing, 8/12/22, at 53-56.

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The PCRA court found that Milton credibly testified to which letters he

wrote. See PCRA Court Opinion, 3/14/23, at 11. The PCRA court further found

that “a lay review of the handwriting in the letters [] clearly appeared to have

been written by two different people.” Id. The PCRA court held that Bush could

not prove his counsel had no reasonable basis nor that prejudice resulted

because trial counsel failed to use the letters. See id. at 11-12. We agree.

Where matters of strategy and tactics are concerned,

counsel’s assistance is deemed constitutionally effective if he

chose a particular course that had some reasonable basis

designed to effectuate his client’s interests. A finding that a

chosen strategy lacked a reasonable basis is not warranted unless

it can be concluded that an alternative not chosen offered a

potential for success substantially greater than the course actually

pursued. A claim of ineffectiveness generally cannot succeed

through comparing, in hindsight, the trial strategy employed with

alternatives not pursued.

Sneed, 45 A.3d at 1107 (citations and quotation marks omitted).

Prejudice requires “a reasonable probability that the outcome of the

proceedings would have been different.” Postie, 200 A.3d at 1023 (citation

omitted). “[A] reasonable probability is a probability that is sufficient to

undermine the confidence in the outcome of the proceeding.” Id. (citation

omitted). When evaluating whether a PCRA petitioner has established

prejudice, we must consider the totality of the evidence presented. See id.

At trial, Milton testified to Bush’s confession that he shot Wall. See N.T.

Trial, 1/28/14, at 81. Bush’s counsel conducted a thorough cross-examination

that included Milton’s significant benefit for testifying against Bush, as he was

facing a minimum of 35 years to life in the federal court system, but only

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received ten years and was going to request a lesser sentence upon finishing

his cooperation; that Milton had a number of serious criminal offenses and

was a career criminal in the federal court system; that Milton was on the

streets of Philadelphia the day that Wall was shot and killed, and he wanted

retaliation for his friend Steven Brown being killed; that he was trying to find

Kareem Brown to kill him and was reaching out to people who knew Kareem

Brown because he believed Kareem Brown killed Steven Brown; that he was

arrested for firearm possession; that he has killed someone by shooting them;

that he has not been sentenced on his own murder charge, but he is expecting

a lesser sentence and a concurrent sentence to his federal sentence; that he

always carried a firearm; that he carried a nine-millimeter firearm at times;

that Bush told him he shot Wall in the head, although the facts confirmed that

Wall was not shot in the head; and, finally, that he knows the city of

Philadelphia very well and would not confuse two streets, but he testified at

the preliminary hearing that Bush confessed to him about a different street

corner than what he testified to at trial. See id. at 98-99, 99-100, 103, 105,

105-106, 107, 112-113, 122-123, 125, 129-132, 138.

While the PCRA court was unable to hear from trial counsel as he had

passed away prior to the hearings, we agree with the PCRA court that trial

counsel had a reasonable basis designed to effectuate his client’s interests by

conducting a thorough cross-examination of Milton and eliciting the reasons

why Milton might be lying and the possibility that Milton shot Wall. Bush has

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been unable to show that the potential for success in using a letter that Milton

denies writing was substantially greater than the course counsel chose to take.

Moreover, Bush has not shown how using a letter that Milton denies

writing would have led to a different result at trial. The totality of the evidence

shows that trial counsel did a thorough job cross-examining Milton and

eliciting beneficial information for his closing argument. Bush’s second claim

does not entitle him to relief.

Bush’s third allegation focuses on his direct appeal. Bush asserts that

direct appeal counsel should have argued that the trial court erred in admitting

the evidence of the shooting of Amin Payne. See Appellant’s Brief, at 13.

Although the heading of Bush’s argument states that direct appeal counsel

was ineffective, Bush’s argument in this section does not once address

ineffective assistance of counsel. See id. at 13-14. This section of Bush’s

argument focuses on why the trial court abused its discretion in admitting the

evidence of Payne’s shooting. See id. We find this claim of direct appeal

counsel’s ineffectiveness waived for Bush’s failure to develop it. See

Commonwealth v. D’Amato, 856 A.2d 806, 814 (Pa. 2004) (undeveloped

arguments that are the functional equivalent of no argument at all are

waived); Wholaver, 177 A.3d at 144 (a PCRA petitioner must address each

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of Stickland/Pierce7 prongs of ineffective assistance of counsel and failure

to do so can result in waiver).

Even if not waived, Bush would not be entitled to relief. The PCRA court

properly disposed of this claim, and we adopt its analysis as our own:

Defendant’s third claim is that the [c]ourt erred in denying

his claim that direct appeal counsel was ineffective for failing to

raise a claim that the trial court abused its discretion when it

admitted evidence of the Amin Payne shooting during trial. [] In

particular, the [c]ourt permitted the Commonwealth to prove that

on September 13, 2006, one week before the murder of Leary

Wall here at issue, defendant shot Amin Payne multiple times with

the same nine-millimeter handgun that was used to shoot and kill

Leary Wall. [] This claim is without merit.

The law regarding the admissibility of uncharged criminal

conduct in a criminal trial is well-established. While evidence of

other uncharged criminal acts is not admissible to prove bad

character or criminal propensity, it may be admitted for other

purposes where the probative value of the evidence outweighs the

potential for prejudice. [See] Pa.R.E. 404(b); [] Commonwealth

v. Williams, 896 A.2d 523, 539 (Pa. 2006). Rule 404(b) explicitly

permits evidence of other crimes for the purpose of “proving . . .

identity.” Pa.R.E. 404(b)(2). Evidence that the same weapon was

used in another crime is relevant to establishing identity. See

Commonwealth v. Stiles, 143 A.3d 968, 975-77 (Pa. Super.

2016); see also Commonwealth v. Beckman, 503 A.2d 443,

445 n. 3 ([Pa. Super.] 1986) (evidence of an unrelated previous

shooting was admissible to establish defendant’s identity because

ballistics evidence showed the same gun was used in both

shootings). The admission of other bad acts evidence will only be

reversed upon a showing of an abuse of discretion by the trial

court. [See] Commonwealth v. Chmiel, 889 A.2d 501, 534 (Pa.

2005).

Here, the Commonwealth’s ballistics evidence established

that the weapon used in the murder of decedent matched the

weapon used to shoot Amin Payne one week prior. [See] N.T.

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7 Commonwealth v. Pierce, 786 A.2d 203 (Pa. 2001).

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[Trial], 1/29/2014, at 51-52. Accordingly, evidence that

defendant was the shooter of Mr. Payne was compelling evidence

that defendant had access to the weapon used in Mr. Wall’s

murder, and therefore, that defendant was also the shooter of Mr.

Wall. As such, the [c]ourt properly found that the probative value

of the evidence exceeded the potential for unfair prejudice and

that it was admissible pursuant to [R]ule 404(b). See Williams,

896 A.2d at 539.

Furthermore, the [c]ourt gave the following instruction to

the jury specifying the limited purpose for which evidence

regarding the separate shooting could be considered:

Now, ladies and gentlemen, you heard evidence

during this case tending to prove that the defendant

was guilty of improper conduct for which he is not on

trial in this case. And what I’m speaking about is the

testimony to the effect that the defendant was

involved . . . with a shooting prior to the alleged

homicide that is at issue in our case. This evidence,

ladies and gentlemen, is before you for a limited

purpose. That is to say, for the purpose of tending . .

. to show access to and possession of the gun that was

allegedly used in the homicide that is at issue here in

this case. This evidence must not be considered by

you in any way other than for the purpose that I just

described to you. You must not regard this evidence

as showing that the defendant is a person of bad

character or criminal tendencies from which you might

be inclined to infer guilt.

N.T.[,] 1/30/2014[,] at 110-11. Given the [c]ourt’s instruction

cautioning the jury to consider the evidence for the proper

purpose only, the potential for unfair prejudice was limited. [See]

Commonwealth v. Sherwood, 982 A.2d 483, 497-98 (Pa. 2009)

(determining that a limiting instruction could overcome prejudicial

effect of prior bad acts evidence).

Accordingly, the evidence was properly admitted under Rule

404(b). Since counsel cannot be deemed ineffective for failing to

raise a meritless claim, no relief is due.

PCRA Court Opinion, 3/14/23, at 12-13.

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Bush’s fourth claim asserts a Brady violation.

The law governing alleged Brady violations is well-settled.

In Brady, the United States Supreme Court held that “the

suppression by the prosecution of evidence favorable to an

accused upon request violates due process where the evidence is

material either to guilt or to punishment, irrespective of the good

faith or bad faith of the prosecution.” Brady, 373 U.S. at 87[].

The Supreme Court subsequently held that the duty to disclose

such evidence is applicable even if there has been no request by

the accused, [see] United States v. Agurs, 427 U.S. 97, 107 []

(1976), and that the duty may encompass impeachment evidence

as well as directly exculpatory evidence, [see] United States v.

Bagley, 473 U.S. 667, 676–77 [] (1985). Furthermore, the

prosecution’s Brady obligation extends to exculpatory evidence in

the files of police agencies of the same government bringing the

prosecution. [See] Kyles v. Whitley, 514 U.S. 419, 438 []

(1995); Commonwealth v. Burke, [] 781 A.2d 1136, 1142

([Pa.] 2001).

On the question of materiality, the Court has noted that

“[s]uch evidence is material ‘if there is a reasonable probability

that, had the evidence been disclosed to the defense, the result

of the proceeding would have been different.’” Strickler v.

Greene, 527 U.S. 263, 280, [] (1999) (quoting Bagley, 473 U.S.

at 682[]). The materiality inquiry is not just a matter of

determining whether, after discounting the inculpatory evidence

in light of the undisclosed evidence, the remaining evidence is

sufficient to support the jury’s conclusions. “Rather, the question

is whether ‘the favorable evidence could reasonably be taken to

put the whole case in such a different light as to undermine

confidence in the verdict.’” Strickler, 527 U.S. at 290 [] (quoting

Kyles, 514 U.S. at 435[]). “Thus, there are three necessary

components that demonstrate a violation of the Brady strictures:

the evidence was favorable to the accused, either because it is

exculpatory or because it impeaches; the evidence was

suppressed by the prosecution, either willfully or inadvertently;

and prejudice ensued.” Burke, 781 A.2d at 1141 (citing

Strickler, 527 U.S. at 281–82[]).

Commonwealth v. Lambert, 884 A.2d 848, 853-54 (Pa. 2005).

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Bush claims a letter written by Khalil Bell that implicated him in the

murder of another individual, Sharieff Lighty, should have been disclosed to

him prior to trial.8 See Appellant’s Brief, at 15. Bush asserts this letter was

relevant to impeach Bell as Bush was incarcerated at the time of Lighty’s

murder and therefore could not have killed Lighty. See id.

Notably, however, Bush was incarcerated in Philadelphia’s work release

center at the time of Lighty’s murder. See N.T. PCRA Hearing, 11/28/22, at

53-54. The Correctional Lieutenant Work Release Director testified to his time

working at the Philadelphia work release center in 2006. See id. at 21-22. He

explained that, in and around 2006, an inmate at the work release center

could leave the work release center to obtain the necessary paperwork to

obtain a job such as an identification card, social security card, or birth

certificate; to visit family on a family pass which could last as long as 12 hours;

to go to an interview for a job; and during the hours he or she was scheduled

to work. See id. at 24, 41, 60. The work release center did keep records of

all inmates when they left the facility, however, the records from 2006 are no

longer available. See id. at 62. No one could say whether Bush was inside the

work release center at the time of Lighty’s murder.

____________________________________________

8 The letter provided to this Court, and the PCRA court, is illegible. However,

the PCRA court found the prosecutor at trial, Ms. Watson-Stokes, credibly

testified that the copy of the letter she had during trial was legible and it was

read verbatim into the trial record. See PCRA Court Opinion, 3/14/23, at 20

n.8.

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As Bush cannot show he was incarcerated at the time of Lighty’s murder,

making the letter and Bell’s accusations false, he cannot show that the letter

was material, i.e. that the letter undermines confidence in the verdict. See

Lambert, 884 A.2d at 854. Therefore, this claim has no merit.

In his fifth allegation of error, Bush asserts PCRA counsel was ineffective

for failing to cross-examine Clarence Milton with letters that Milton allegedly

wrote to another inmate, Kenneth Whitley.9 See Appellant’s Brief, at 18. Bush

claims these letters were written by Milton and provided to Whitley “so that

Whitley could memorize the details and corroborate Milton’s fabrications.” Id.

Bush does not provide any proof that Whitley had the letters for the purpose

of memorizing their contents to corroborate Milton’s statements. Whitley was

not called as a witness at the PCRA hearings to explain why he had the letters

allegedly written by Milton. The letters are undated and not signed. A thorough

review of the letters also show no connection to the homicide of Leary Wall

and Bush’s involvement in the homicide.

Furthermore, Milton was asked about Whitley during the PCRA hearing.

See N.T. Hearing, 8/12/22, at 64. Milton did not recall Whitley. See id. Milton

said he wrote to his family when asked if he wrote letters to other inmates.

____________________________________________

9 This claim was raised for the first time in Bush’s Rule 1925(b) statement and

pursuant to Commonwealth v. Bradley, 261 A.3d 381, 401 (Pa. 2021)

(holding that a PCRA petitioner may raise claims of PCRA counsel’s

ineffectiveness on appeal if that is the first opportunity to do so), we find that

this claim has been properly preserved for our review.

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See id. at 65. Without further specification, Bush has not provided any

evidence to show that the result of the PCRA hearings would have been

different if PCRA counsel had presented the letters to Milton. See Wholaver,

177 A.3d at 144. This claim fails.

Bush’s sixth allegation of error also focuses on PCRA counsel’s

stewardship: “Was PCRA counsel ineffective for failing to raise the claim of

after discovered/newly discovered evidence consisting of the evidentiary

hearing testimony of Clarence Milton and Khalil Bell, where both witnesses

testified that [Bush] did not kill Sharieff Lighty[] and the allegations against

[Bush] were fabricated?” Appellant’s Brief, at 19 (unnecessary capitalization

removed).

However, Bush does not discuss a claim of after discovered or newly

discovered evidence in his brief to this Court. See Appellant’s Brief, at 19-22.

Instead, Bush now asserts for the first time that the Commonwealth violated

Brady by failing to disclose the evidence of Milton’s and Bell’s false

accusations that Bush killed Lighty. See id. Because the Brady claim was not

presented to the PCRA court, it is waived. See Commonwealth v. Paddy,

15 A.3d 431, 446 (Pa. 2011) (noting that “[f]ailure to raise an issue before

the PCRA court results in waiver.”) (citation omitted). Moreover, even if Bush

had properly addressed his claim of after/newly discovered evidence, we

would conclude that the PCRA court accurately discussed and disposed of the

issue. See PCRA Court Opinion, 3/14/23, at 17-18.

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In Bush’s seventh allegation of error, he raises a claim of “after

discovered/newly discovered evidence consisting of Brady material[.]”

Appellant’s Brief, at 22. Specifically, Bush claims he discovered that Amin

Payne “falsely implicated several individuals for murder and that Payne

actually perjured himself during testimony in the murder trial of that case.”

Id. Bush cites to “exhibit P-37” to support his claim. Id. After an exhaustive

and thorough review of the record, we cannot find this exhibit nor any PCRA

petition that raises this claim. This exhibit is simply not in the record.

Therefore, this claim is waived. See Paddy, 15 A.3d at 446.

Moreover, as the PCRA court duly observed, “Mr. Payne never testified

at trial or the PCRA evidentiary hearing. As such, Mr. Payne’s credibility was

never at issue and there was no testimony to impeach. Accordingly,

defendant’s claim is frivolous.” PCRA Court Opinion, 3/14/23, at 24. We agree.

Even if preserved for appeal, it is not relevant whether Payne falsely

implicated others when Payne did not testify against Bush.

In Bush’s eighth issue he presents six sub-issues. See Appellant’s Brief,

at 24-47. These sub-issues include claims that the PCRA court did not grant

an evidentiary hearing. See id. Both the Commonwealth and the PCRA court

ask this Court to find these claims waived, as Bush did not enumerate these

claims in his Rule 1925(b) statement. See Appellee’s Brief, at 32; PCRA Court

Opinion, 3/14/23, at 25. We agree that these claims are waived.

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Bush’s final issue in his Rule 1925(b) statement states, in full, “Did the

PCRA [c]ourt abuse its discretion in failing to hold an evidentiary hearing on

claims where [Bush] had raised genuine issues of material fact that entitle

him to relief?” Rule 1925(b) Statement, 1/13/23, at 4 (unpaginated). “It is

well-established that any issue not raised in a Rule 1925(b) statement will be

deemed waived for appellate review.” Commonwealth v. Bonnett, 239 A.3d

1096, 1106 (Pa. Super. 2020) (citation omitted). “Further, an appellant’s

concise statement must identify the errors with sufficient specificity for the

trial court to identify and address the issues the appellant wishes to raise on

appeal.” Id. (citing Pa.R.A.P. 1925(b)(4)(ii)). Bush’s Rule 1925(b) statement

did not specify which claims he believed had genuine issues of material fact

which required a hearing. As such, we find Bush’s eighth issue, including all

six sub-issues, waived.

Order affirmed.

Date: 6/7/2024

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