Com. v. Coffey, J.

• Court: Superior Court of Pennsylvania
• Decided: December 24, 2025
• Docket: 1452 EDA 2024
• Status: Unpublished

Opinion

J-A25019-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JEROME COFFEY : : Appellant : No. 1452 EDA 2024

Appeal from the PCRA Order Entered April 25, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0441911-1993

BEFORE: LAZARUS, P.J., BOWES, J., and FORD ELLIOTT, P.J.E.*

MEMORANDUM BY BOWES, J.: FILED DECEMBER 24, 2025

Jerome Coffey appeals from the order dismissing his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.

This Court previously summarized the factual background of this matter

thusly:

[This case] follows the December 12, 1992 shooting death of Johnny Moss[,] who died from a gunshot wound to the head after his assailants pulled him from his vehicle under the pretense of acting as police officers. The evidence at trial established that Moss was seated in his father’s vehicle, stopped at the corner of 24th and Thompson Streets [at approximately 11:00 p.m.] in the City of Philadelphia. As Moss talked to his brother, Walker Lee Moss (Walker), who was standing at the curb, two other vehicles pulled in around his, boxing him in and blocking egress. Witnesses testified that three males [out of four total] then exited from the car in front and that one of them, identified as [Appellant], yelled “task force,” before another male pulled the victim from his own ____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-A25019-25

vehicle and pushed him into another. Although Walker struggled to help his brother, the assailants shot him, the bullet finding its place in his arm. When he ultimately reached his brother, he found him slumped in the car, bleeding from the head, with a bullet hole behind his ear. After the shootings, all four assailants fled.

Following [Appellant]’s apprehension, [he was charged and] this matter proceeded to a jury trial before the Honorable James J. Fitzgerald in June 1994. [Appellant’s cousin, Lee Smith, was also tried as a co-defendant.] Over a considerable number of days, [the jury] received the testimony of a member of the Philadelphia Police Mobil[e] Crime Unit who investigated the scene, as well as the supervising homicide detective and the medical examiner who conducted the victim’s autopsy. In addition, the Commonwealth called Nemo Kennedy, Frank Singleton, and Latoya Singleton, each of whom reported encounters during which [Appellant] made incriminating statements about Moss’s murder that either claimed responsibility or indicated his own complicity. [Clarence Moss, the victim’s nephew, also testified that he recognized Appellant as being involved in the incident, having viewed the encounter from inside a nearby residence.] Finally, the Commonwealth called Walker . . ., who positively identified [Appellant] as one of the assailants[, particularly, the one who yelled “task force,” and as someone that he had seen within the neighborhood before.]

Commonwealth v. Coffey, 81 A.3d 1006 (Table), 2013 Pa.Super. Unpub.

LEXIS 889 at 1-3 (Pa.Super. 2013) (unpublished memorandum). Appellant

did not testify, although he called his mother, Daisy Coffey (“Daisy”), and his

sister, Jean Coffey (“Jean”), to speak to their recollection that Appellant was

at home with them on the night of the shooting.

Following trial, Appellant was convicted of second-degree murder,

aggravated assault, possession of instruments of a crime, and criminal

conspiracy, whereas co-defendant Lee Smith was acquitted of all charges. The

trial court imposed on Appellant a sentence of life in prison.

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Appellant thereafter filed a direct appeal to this Court. As we later

acknowledged, “the procedural history of the case assume[d] a tortured path,

so sparsely documented that, seven years after the 1994 conviction, a panel

of this Court remanded the case to the trial court with direction to supplement

the record in view of the absence of several portions of the transcript.” Id. at

5. Despite our remand order being docketed in 2001, it took an additional

twelve years before this Court ultimately rendered a decision as to the merits

of Appellant’s direct appeal. As aptly explained and summarized by the PCRA

court:

The record remained incomplete until March 2007, when counsel for [Appellant] filed a statement addressing the state of the record. However, on September 24, 2007, the Superior Court dismissed [Appellant]’s direct appeal due to appointed counsel’s failure to file an appellate brief.

On July 9, 2008, [Appellant] filed a petition under the PCRA seeking reinstatement of his right to appeal nunc pro tunc. [Appellant]’s direct appeal rights were reinstated . . . and on May 29, 2013, the Superior Court affirmed [Appellant]’s judgment of sentence. On November 20, 2013, the Pennsylvania Supreme Court denied allocatur. [Appellant] was represented on reinstated appeal by J. Michael Farrell, Esquire.

On November 21, 2014, [Appellant] filed a pro se second petition under the PCRA . . ., which is at issue here. On February 29, 2016, David Rudenstein, Esquire[,] was appointed to represent [Appellant], and on May 26, 2017, [Appellant] filed a counseled, amended petition. On November 1, 2017, Martha Conley, Esquire[,] entered her appearance for [Appellant] pro bono, replacing [Attorney] Rudenstein, and on April 7, 2021, [Appellant] filed another amended petition.

On October 6, 2021, Bret Grote, Esquire, entered his appearance on behalf of [Appellant] pro bono alongside Ms. Conley, and on February 21, 2022, Rupalee Rashatwar, Esquire,

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also entered her appearance. On February 21, 2022, [Appellant] filed a third amended petition, which incorporated all arguments from [Appellant]’s April 7, 2021 amended petition and superseded all previous filings. On September 2, 2022, [Appellant] filed a supplement to his amended petition.

[In June] 2023, the Commonwealth filed a response to [Appellant]’s amended petition [as supplemented], in which it stated that it did not oppose an evidentiary hearing on all of [Appellant]’s claims except for (1) ineffective assistance of trial and appellate counsel for failure to raise a Batson[1] claim; and (2) ineffective assistance of appellate counsel for failing to raise a claim that the presence of uniformed police officers in the courtroom prejudiced [Appellant. Counsel] filed a reply to the Commonwealth’s response [that same month], in which he specifically claimed an evidentiary hearing was necessary to litigate the Batson claim. Following a status hearing . . ., the court directed [Appellant] to file a supplemental brief addressing his purported entitlement to relief that was premised upon the missing transcripts in his case. [Thereafter, Appellant] filed the requested supplemental briefing [and the Commonwealth responded].

On September 7, 2023, the court dismissed [Appellant]’s Batson claim without an evidentiary hearing. The court then held a three-day evidentiary hearing from September 11 th through September 13th on [Appellant]’s remaining claims[, wherein both Appellant and the Commonwealth called multiple witnesses]. Following the evidentiary hearing, [Appellant] filed a post-hearing brief[, as did the Commonwealth.] . . . On April 25, 2024, after having reviewed the briefs from both [Appellant] and the Commonwealth, the court rendered findings of fact and conclusions of law and dismissed [Appellant]’s [petition.]

PCRA Court Opinion, 8/13/24, at 2-4 (cleaned up).

____________________________________________

1 See Batson v. Kentucky, 476 U.S. 79, 89 (1986) (stating that “the Equal

Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant”).

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This timely appeal followed. Both Appellant and the PCRA court

complied with the dictates of Pa.R.A.P. 1925. Appellant presents the following

eleven issues for our review, which we have reordered for ease of disposition:

1. Did the PCRA court err in dismissing [Appellant]’s PCRA petition where [Appellant] pled and proved that trial counsel was constitutionally ineffective in failing to offer any individualized argument as to the suppression of prosecution witness [Walker]’s in-court identification of [Appellant] after [Walker]’s lineup identification was properly suppressed due to denial of [Appellant]’s right to counsel at the lineup?

2. Did the PCRA court err in dismissing [Appellant]’s PCRA petition where [Appellant] pled and proved that his rights under Brady v. Maryland, 373 U.S. 83 (1963), were violated when the prosecution suppressed a handwritten note from a police officer written the night of the murder reflecting that prosecution witness Walker . . . did not know the perpetrators of the offense, which contradicts [Walker]’s later testimony that he could identify [Appellant] as a perpetrator because he knew [Appellant] prior to the murder?

3. Did the PCRA court err in dismissing [Appellant]’s PCRA petition where [Appellant] pled and proved that trial counsel was constitutionally ineffective by failing to investigate alibi witness [Jean]’s hospital records[,] which corroborated [Appellant]’s alibi defense, and where these hospital records would have prevented the trial prosecutor from effectively impeaching the memory of another alibi witness for [Appellant]?

4. Did the PCRA court err in dismissing [Appellant]’s PCRA petition where [Appellant] pled and proved that his rights under [Brady] were violated when the prosecution suppressed hospital records from Jean . . . which were in its possession and which corroborated [Appellant]’s alibi defense and should have prevented the trial prosecutor from impeaching an alibi witness’s memory regarding dates reflected in the suppressed hospital records?

5. Did the PCRA court err in dismissing [Appellant]’s PCRA petition where [Appellant] pled and proved that trial counsel was constitutionally ineffective by absenting himself from prosecution

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witness Nemo Kennedy’s pre-trial material witness bond hearing, where trial counsel would have learned crucial impeachment information, including reference to an undisclosed third party statement implicating Kennedy in the murder, Kennedy’s sworn testimony about police threats made against him and his family in order to compel his testimony against [Appellant], and Kennedy’s sworn testimony that a statement he gave to police which implicated [Appellant] in the murder was false?

6. Did the PCRA court err in dismissing [Appellant]’s PCRA petition where [Appellant] pled and proved that trial counsel was constitutionally ineffective by failing to impeach prosecution witness Nemo Kennedy with a statement implicating Kennedy in the murder for which [Appellant] was convicted?

7. Did the PCRA court err in dismissing [Appellant]’s PCRA petition where [Appellant] pled and proved that his rights under [Brady] were violated when the prosecution suppressed a signed statement given to police by Renaldo Robichaw[,] which implicated prosecution witness Nemo Kennedy in the murder and would have been used by effective trial counsel to wholly discredit Kennedy’s testimony against [Appellant], undermine the police and prosecution’s entire investigation and prosecution of [Appellant], and introduce the possibility of an alternative suspect in the minds of jurors?

8. Did the PCRA court err in dismissing [Appellant]’s PCRA petition where [Appellant] pled and proved that trial counsel was constitutionally ineffective by failing to investigate potential defense rebuttal witness Andre Edmonds, where Edmonds testified to facts which would have rendered prosecution witness Nemo Kennedy’s implication of [Appellant] in the murder wholly incredible and where Edmonds testified that he attempted to reach [Appellant]’s trial counsel but was never contacted by trial counsel?

9. Did the PCRA court err in dismissing [Appellant]’s PCRA petition where [Appellant] pled and proved that appellate counsel was constitutionally ineffective in abandoning a claim on appeal that [Appellant]’s Confrontation Clause rights were violated at trial where prosecution witness Latoya Singleton testified about a co- defendant’s purported statement implicating [Appellant] in the offense and where the trial prosecutor “unmasked” [Appellant] as

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the subject of his co-defendant’s statement during closing argument?

10. Did the PCRA court err in dismissing [Appellant]’s PCRA petition where [Appellant] pled and proved that appellate counsel was constitutionally ineffective in failing to raise a claim on appeal under Commonwealth v. Shields, 383 A.2d 844 (Pa. 1978), that [Appellant] had a colorable claim that his Confrontation Clause rights were violated, but could not be reviewed due to loss of significant and necessary portions of his trial transcripts and lack of any equivalent picture of the relevant portions of the proceedings?

11. Did the PCRA court err in dismissing [Appellant]’s PCRA petition where [Appellant] pled and proved that the cumulative effects of violations of his right to constitutionally effective counsel and under [Brady] entitle him to relief?

Appellant’s brief at 2-6 (some capitalization and citations altered.

All of Appellant’s claims on appeal fall within two broad categories: (1)

a challenge to the efficacy of trial or appellate counsel, and (2) purported

violations of Appellant’s constitutional rights by the Commonwealth pursuant

to Brady. Before examining each issue seriatim, we generally recount the

relevant legal principles.

This Court reviews the dismissal of a PCRA petition to determine

“whether the findings of the PCRA court are supported by the record and are

free from legal error.” Commonwealth v. Howard, 285 A.3d 652, 657

(Pa.Super. 2022) (cleaned up). Ultimately, “[i]t is an appellant’s burden to

persuade us that the PCRA court erred and that relief is due.”

Commonwealth v. Stansbury, 219 A.3d 157, 161 (Pa.Super. 2019)

(cleaned up).

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With respect to Appellant’s attacks on the adequacy of counsel’s

representation, we observe that “counsel is presumed to be effective, and a

petitioner must overcome that presumption to prove” his entitlement to relief.

See Commonwealth v. Simpson, 112 A.3d 1194, 1197 (Pa. 2015). In that

regard:

[T]o establish a claim of ineffective assistance of counsel, a defendant must show, by a preponderance of the evidence, ineffective assistance of counsel 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. The burden is on the defendant to prove all three of the following prongs: (1) the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different.

Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa.Super. 2019)

(cleaned up). The petitioner’s failure to sustain any prong of the test defeats

the claim. See, e.g., Commonwealth v. Rivera, 199 A.3d 365, 374 (Pa.

2018). The Supreme Court of the United States has noted that “the purpose

of the effective assistance guarantee of the Sixth Amendment is not to

improve the quality of legal representation, although that is a goal of

considerable importance to the legal system. The purpose is simply to ensure

that criminal defendants receive a fair trial.” Strickland v. Washington, 466

U.S. 668, 689 (1984); see also Commonwealth v. Wright, 961 A.2d 119,

135 (“A defendant is entitled to a fair trial but not a perfect one.” (citation

omitted)).

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Furthermore, our High Court has offered the following summary of the

law governing Appellant’s Brady claims:

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. The Supreme Court subsequently held that the duty to disclose such evidence is applicable even if there has been no request by the accused, and that the duty may encompass impeachment evidence as well as directly exculpatory evidence. Furthermore, the prosecution’s Brady obligation extends to exculpatory evidence in the files of police agencies of the same government bringing the prosecution.

On the question of materiality, the Court has noted that such 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. 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. 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.

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

With this background in mind, we turn to Appellant’s issues on appeal.

A. Walker’s in-court identification

In his first claim, Appellant asserts ineffective assistance of trial counsel,

Michael G. Floyd, Esquire, for failing to more vigorously challenge Walker’s in-

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court identification of Appellant as Johnny Moss’s shooter. See Appellant’s

brief at 39-46.

By way of background, four months after the shooting, Walker

participated in a lineup during which he identified Appellant as being involved

in the incident, recognizing him by the name of “Hoagie.” However, the trial

court later granted a motion to suppress the lineup because it was performed

without any defense counsel present. At trial, Appellant’s counsel similarly

sought to preclude Walker from identifying Appellant as the shooter in court,

but in so doing merely relied upon arguments advanced by the counsel of co-

defendant, Lee Smith. Smith, unlike Appellant, was not identified by Walker

as a perpetrator at the lineup. The trial court rejected the co-defendants’

requests and permitted Walker to identify both Appellant and Smith in court,

finding that Walker had bases independent of the faulty lineup to support his

testimony. These included, among other things, the strong lighting conditions

and the fact that Walker had previously seen Appellant within the

neighborhood and was familiar with his nickname.

Appellant asserts that counsel’s representation in this regard was

constitutionally inadequate, as there were stronger arguments his attorney

could have raised to persuade the trial court to preclude identification. Citing

precedent from the Supreme Court of the United States, he notes that:

[w]hen a witness’s identification of a defendant at a pretrial lineup is inadmissible because the defendant was deprived the right to counsel, a subsequent in-court identification by that witness is not admissible unless the trial court determines that the in-court

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identification is not tainted by the illegal lineup and is derived from an independent origin.

Id. at 40 (citing Gilbert v. California, 388 U.S. 263 (1967)). He contends

that because the out-of-court lineup identification was suppressed as illegal,

the burden then shifted to the Commonwealth to demonstrate that Walker

had an independent ground for identification. Id. at 41. Appellant highlights

that there were difficulties and inconsistencies with Walker’s identification,

namely that he initially told police that the person who yelled “task force”

during the incident was “stocky” and approximately 5’5” or 5’6” in height,

whereas Appellant is 6’2” and 180 pounds. Id. at 41-42. Appellant

emphasizes that this is not a “trivial discrepancy,” but rather describes an

entirely different person. See Appellant’s reply brief at 12. He also notes that

Walker did not identify Appellant by his street name of “Hoagie” until the

unconstitutional lineup, months after the shooting, and that he was shown

additional photographs beforehand that potentially introduced additional

“taint.” Appellant’s brief at 42.

While Appellant acknowledges that trial counsel moved to preclude the

identification in court, he contends that counsel did not convincingly argue

these pertinent facts at that time. Id. at 42-44. Instead, counsel relied solely

upon the points raised by Smith’s attorney, which were inapt because Walker

did not identify Smith at the line-up. Id. at 43. Appellant argues that “[w]hen

in-court identifications are erroneously allowed despite illegal out-of-court

identifications with insufficient proof of independent origin, prejudice can be

shown even in the face of additional evidence.” Id. at 44. In addressing this

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additional evidence, Appellant maintains that although eyewitness and

nephew to the victim, Clarence Moss, also identified Appellant in court as a

perpetrator, that testimony was suspect for a variety of reasons, including the

witness’s youth, history of juvenile adjudications giving him reason to lie to

curry favor with law enforcement, and inconsistent accounts to police. Id.

Appellant additionally faults the PCRA court for placing the burden on him,

rather than the Commonwealth, to prove any infirmity as to the out-of-court

lineup. Id. at 45. He concludes that “[a] reasonable trial attorney in

[Attorney] Floyd’s situation would have ensured that Walker . . . was never

permitted to identify [Appellant] at trial.” Id.

The PCRA court found that Appellant did not meet his burden with

respect to this claim, particularly because he did not prove sufficient prejudice.

It recounted that the trial judge in 1994 “ruled that there was an independent

source for Walker’s in-court identification” of Appellant, namely that he was

able to see the assailants’ faces during the eleven-minute encounter and that

lighting conditions were good, despite it occurring at night. See PCRA Court

Opinion, 8/13/24, at 14-15. The PCRA court also noted a previous finding

from the trial judge that “at no time during any identification procedure did

the police indicate that the [various] defendants were involved, and that no

identification procedure was impermissibly suggestive based on improper

police conduct.” Id. at 15 (citing N.T., 5/24/94, at 19-20 (cleaned up)). The

PCRA court thus concluded that since there was no evidence of a procedural

infirmity with the pre-trial lineup beyond the absence of Appellant’s counsel,

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Appellant was not prejudiced by trial counsel’s failure to make additional

argument to preclude the subsequent in-court identification. Id. It further

determined that both the discrepancy in Walker’s initial description of

Appellant’s physical characteristics to police and any exposure to a photo array

would not have altered the trial court’s findings, since “the totality of the

circumstances established that Walker’s identification of [Appellant] was

reliable[.]” Id. at 16.

Beyond reiterating some of the same matters highlighted by the PCRA

court, in its brief, the Commonwealth maintains that Appellant’s burden-

shifting argument misses the point, since he misconstrues the burden relating

to a defendant’s motion to preclude in-court identification versus that imposed

on a petitioner at a PCRA hearing. See Commonwealth’s brief at 65-66 (citing

Commonwealth v. Spotz, 84 A.3d 294 (Pa. 2014), for the proposition that

“when a PCRA petitioner asserts his trial counsel was ineffective for failing to

litigate a pre-trial suppression claim, the burden of proof is on the defendant,

not the Commonwealth.”) The Commonwealth notes that the trial judge in

this case reviewed extensive evidence and testimony concerning how the

lineup was performed, and while it was illegal for lack of counsel, there was

nothing to evince that it was otherwise unduly suggestive. Id. at 66. Indeed,

this finding is bolstered by the fact that, inter alia, Walker misidentified

somebody else as co-defendant Smith at the lineup, which mitigates against

the notion that it was an overly-biased procedure. Id.

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Upon review, we cannot conclude that the PCRA court’s determinations

are either in error or lacking support from the record. Based on the evidence

presented, Appellant did not show a reasonable probability that the challenge

to Walker’s in-court identification would have succeeded had counsel raised

the same arguments set forth now. To begin, while we recognize that Walker

gave a different physical description of Appellant to police immediately

following the shooting than that provided at trial, this would go to the weight

of the evidence by which Walker could be impeached, not the admissibility of

the identification itself. See, e.g., Commonwealth v. Orr, 38 A.3d 868, 874

(Pa.Super. 2011) (stating that “any indefiniteness and uncertainty in the

identification testimony goes to its weight”).

Further, we have not been persuaded that the PCRA court improperly

placed an undue burden on Appellant in proving his claim. Although Appellant

is correct that during the suppression hearing in 1994, the Commonwealth

was required to demonstrate that Walker’s in-court identification was not

tainted by the prior suppressed lineup, he only cursorily presumes that the

burden was not met at that time. As the PCRA court and Commonwealth note,

the trial court reviewed substantial evidence before finding that Walker had

an independent basis for the in-court identification as of trial. This included

Walker’s prior knowledge of whom Appellant was, perception of the events on

the night in question, the adequate environmental lighting, and the dearth of

evidence showing that the lineup unfairly pointed to the co-defendants. The

trial court concluded that the Commonwealth met its burden at that juncture,

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and now for purposes of the PCRA evidentiary hearing, it was Appellant who

needed to demonstrate prejudice. See Stansbury, 219 A.3d at 161. In all,

we do not find that these newly-developed arguments would have convinced

the trial court to disallow Walker from identifying in court the man he claimed

was involved in killing his brother. Hence, no relief is due for this claim of

ineffectiveness of counsel.

B. Police note concerning Walker’s ability to identify the assailants

Closely related to the previous issue, Appellant contends that the

Commonwealth violated Brady by failing to disclose before trial a handwritten

note that appears to have been created by an officer on scene during the night

of the murder. See Appellant’s brief at 75-81. The note, which is not signed,

recorded Walker’s impression of the shooters immediately after the incident,

and indicated in relevant part: “Don’t know them, can ID.” N.T. Hearing,

9/11/23, at Defense Exhibit 2. As discussed above, Walker later identified

Appellant at a lineup and again at trial. During trial, he testified that he had

never interacted with Appellant, but that he had seen him around the

neighborhood before the shooting and that everyone knew him by the name

of “Hoagie.”

Appellant argues that this note constituted a “facial contradiction” to

Walker’s testimony and could have been used for effective impeachment

purposes. See Appellant’s brief at 75-76. He additionally posits that the note

“thoroughly undermines the notion that Walker . . . had an independent basis”

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for identifying Appellant in a lineup four months after the killing. Id. at 76.

Appellant avers that evidence of a witness previously failing to identify a

defendant, like this note, is subject to disclosure by the Commonwealth

pursuant to Brady. Id. at 77. He believes that had this information been

utilized by counsel, the trial court would not have permitted Walker’s in-court

identification. Id. at 79-80.

In rejecting this claim, the PCRA court found as follows:

Contrary to [Appellant]’s argument, Walker’s statement to the officer as memorialized in the officer’s note did not contradict Walker’s testimony in any significant way. At both the suppression hearing and at trial, Walker claimed only that he had seen [Appellant] before, and knew that people called him “Hoagie.” That is substantially consistent with a statement to an officer that he did not “know” any of the perpetrators, but was able to identify them. Because the impeachment value of the note was minimal, there is not a reasonable probability that the result of the trial could have been different if the note had been disclosed. Therefore, the Commonwealth’s failure to produce it did not violate Brady, and no relief is due.

PCRA Court Opinion, 8/13/24, at 27-28.

The Commonwealth provides additional explanation as to why it believes

the note had little impeachment benefit:

Walker’s trial testimony was generally that [Appellant] was a tenuous acquaintance from the neighborhood. In other words, Walker knew who [Appellant] was from seeing him once before in the neighborhood, but had never spoken to [Appellant] and did not “know” him personally. He testified at the suppression hearing, “I had seen [Appellant], you know, once before, before that night of the crime.” N.T. 5/16/92 at 17; see also id. at 26 (“I just knew one of them name. . . . That’s Hoagie. I didn’t know what his first name is . . . .) and id. (“Q. Can you tell what is the basis you refer to them by names, how did you get to know their names? A. Well, Hoagie name is in the street; everyone know

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him, know him as Hoagie.”). Then, at trial, when asked if he had “seen any of the [perpetrators] before in your life,” Walker responded: “Well, yes, one I had seen. . . . I had saw him, you know. . . . That would be Mr. Hoagie.” N.T., 6/7/9[4], at 194. And Walker’s testimony about a different man . . . further suggested that he did not consider seeing someone once and having heard their name around the neighborhood to be the same thing as “knowing” them. N.T., 6/8/94, at 50–51 (“Do I know him, no. . . . I heard his name. . . . I saw him once . . . .”).

Moreover, Walker’s alleged statement to officers was consistent with the formal police statement he gave later that night, which was read to jurors. In that statement, Walker was asked, “Would you be able to I.D. anyone from tonight?” He answered, “Probably the guy who did the shooting. The one that said task force.” N.T., 6/8/94, at 38–39. As he admitted under cross-examination, he did not at that time tell officers that he recognized the man as “Hoagie.” He simply said that he could probably identify him in the future. Id. at 83–84.

Accordingly, jurors already knew that on the night of the crime, Walker did not tell police that he knew (or knew of) the perpetrator. The hand-written note simply repeats what the jurors already knew about what Walker told the police that night— he didn’t know the man who said “task force,” but could probably make an identification in the future.

Commonwealth’s brief at 68-69 (cleaned up). The Commonwealth further

argues that it is unclear how the note would have been introduced at trial by

Appellant had it been disclosed, and that in the same vein, it would not have

influenced the trial court’s pre-trial decision to permit Walker’s in-court

identification. Id. at 70-71.

We find no fault with the PCRA court’s decision to deny relief as to this

claim. Assuming, arguendo, that the handwritten note constituted Brady

material, the PCRA court’s determination of no materiality is supported by the

record. Appellant’s argument relies heavily upon the semantics of the word

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“know.” Although he is adamant that introduction of this note would have

fundamentally undercut Walker’s testimony, the evidence bears out that this

was not the case. The statement in the note would merely have impeached

Walker in a duplicative manner on a point he was already questioned about,

namely his formal statement to police the night of the shooting wherein he

did not provide the name “Hoagie” and was somewhat equivocal about the

ability to identify the perpetrators. Since introduction of this document at trial

would not have raised “a reasonable probability that . . . the result of the

proceeding would have been different,” the note was not material as required

by Brady and its progeny. See Lambert, 884 A.2d at 854.

Our conclusion is not altered by the High Court’s recent decision in

Glossip v. Oklahoma, 604 U.S. 226 (2025), which was decided while this

appeal was pending and was raised in the Commonwealth’s brief and

Appellant’s reply. There, the Court held that “[e]vidence can be material even

if it goes only to the credibility of the witness[.]” Id. at 248 (cleaned up).

The Glossip Court vacated a murder conviction because the prosecution failed

to correct false testimony given by one of its key witnesses, Justin Sneed.

Sneed, who killed the victim, made an agreement to cooperate with the

prosecution and testified that he was hired by Glossip to commit the murder.

The false testimony in question given during the trial was “that [Sneed]

had been given lithium after asking for Sudafed [in jail] and had ‘never seen

no psychiatrist or anything.’” Id. at 247. The Court held that this information

was material because, had it been provided to the defense, it not only could

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have been used to impeach Sneed based on a willingness to lie under oath,

but also to support the theory that Sneed was solely responsible for the killing.

Id. at 249-50. It was known that Sneed was a drug user and later determined

that he was specifically prescribed lithium to treat bipolar disorder by the

prison psychiatrist. It was further undisputed that Sneed’s combined

diagnosis and drug usage had a high probability of driving him to bouts of

violence.

We find Glossip distinguishable such that it does not control the

outcome of this matter. Here, even if the handwritten police note arguably

impeached Walker’s account, its potential impact is significantly less than the

withheld evidence at issue in Glossip, which both indicated the witness’s

willingness to lie on the stand and provided a motive for the killing. As

discussed, the note in the matter sub judice was largely consistent with the

evidence heard by the jury, and neither undermined Walker’s veracity nor

implicated someone else as the guilty party. See, e.g., N.T. Trial, 6/15/94,

at 47-48 (defense counsel conceding during closing argument his belief that

Walker is not “a malicious person” who would lie, but rather was mistaken in

his identification of Appellant). Further, the note was not groundbreaking

because the defense had the opportunity to question Walker based upon not

naming “Hoagie” as a perpetrator until months after the shooting. This Brady

claim thus warrants no relief.

C. Claims relating to Appellant’s alibi defense

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In his next two issues, Appellant contends that trial counsel was

ineffective for failing to procure hospital records relating to the discharge of

his sister, Jean, from the hospital the day of the shooting. See Appellant’s

brief at 46-49. In a similar fashion, he argues that the Commonwealth

violated Brady by not disclosing these same records to Appellant before trial,

when it is undisputed that the Commonwealth possessed them. Id. at 86-89.

Pertinently, we recount that Appellant raised an alibi defense at trial.2

More specifically,

Jean testified that she gave birth to her son on December 10, 1992, and that she came home from the hospital two days later on December 12, 1992, which was the date of the murder. Jean stated that [Appellant] was at her house on the night of December 12, 1992, and that she saw [Appellant] sleeping in her bed at 11 p.m. Daisy[, Appellant’s mother,] testified at [Appellant]’s trial that “she thought” Jean came home from the hospital on “December, January the 12th” and that Jean “came out on a Friday or Saturday.” On cross-examination, Daisy admitted that she had not told [Appellant]’s counsel until after May 16, 1994, about this information regarding [Appellant]’s alibi. At [Appellant]’s evidentiary [PCRA] hearing, [Attorney] Floyd testified on this issue, stating that he had no recollection of trying to obtain hospital records for Jean.

PCRA Court Opinion, 8/13/24, at 16-17 (cleaned up).

In this context, Appellant argues that trial counsel undertook no

investigation “to present corroborating evidence in the form of hospital records

confirming the date of [Jean’s] release,” which allowed the testimony of Jean

2 In our prior decision, this Court erroneously indicated that Appellant proffered no evidence in his defense. See Coffey, 81 A.3d 1006 (Table), 2013 Pa.Super. Unpub. LEXIS 889 at 3.

- 20 - J-A25019-25

and Daisy to be prejudicially impeached. See Appellant’s brief at 48. He

avers that had his attorney pursued these documents, they could have been

used to invariably bolster the credibility of the witnesses and resolve Daisy’s

hazy recollection of the date that Jean was discharged. Id. at 48-49. With

respect to the Brady violation, Appellant generally reiterates these same

points, along with the fact that the Commonwealth did not disclose the

documents in question, despite having them in hand prior to trial. Id. at 86-

89.

In dismissing the PCRA petition, the court determined that there was a

lack of proven prejudice as to the ineffectiveness allegation. It found:

[T]here is not a reasonable probability of a different outcome had [Attorney] Floyd investigated Jean’s hospital records and presented them at trial. As stated by the court in its findings of fact and conclusions of law, although Daisy was equivocal in her recollection of the date Jean came home from the hospital, Jean, the mother of the baby who had just been born, was not uncertain of the date, and Jean’s testimony that she came home from the hospital on December 12 was not effectively challenged by the Commonwealth. Moreover, the sole value of the hospital records would have been to corroborate the testimony of [Appellant]’s mother and sister that they were home on the date of the murder. The records did not prove that [Appellant] was at home with them at the time of the murder.

PCRA Court Opinion, 8/13/24, at 17 (cleaned up). The court likewise

concluded that based on their limited probative value, the hospital records

were not “material” as contemplated by Brady, in the sense that they would

not have led to a different result at trial if introduced. Id. at 28.

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The Commonwealth argues furthermore that had these records been

entered into evidence, they would have undermined, not aided, Appellant’s

trial defense. See Commonwealth’s brief at 81-82. It maintains that Jean

testified at trial that she saw Appellant at her house early in the morning on

the day of the shooting, whereas the records reflected that she was not

discharged from the hospital until nearly noon that day. 3 The Commonwealth

also aligns with the PCRA court in asserting that even if the records would

have buttressed the credibility of Daisy, they were immaterial in the sense

that they did not speak to where Appellant was located during the time of the

murder. Id. at 82.

We find that Appellant is not entitled to relief on either of these related

Brady and ineffective assistance of counsel claims. Even though he is correct

that the documents likely would have bolstered Daisy’s credibility generally by

refreshing her recollection as to specific dates in question, they ultimately had

a tenuous bearing, at best, on the actual alibi. The shooting occurred in the

late evening hours of December 12, 1992, approximately eleven hours after

Jean was discharged from the hospital. As the PCRA court noted, the

Commonwealth did not dispute Jean’s testimony that she was discharged from

the hospital earlier on the day of the shooting. If counsel had introduced these

3 Appellant responds that the Commonwealth, through this contention, “ignores the substance of” the alibi witnesses’ testimony. He also reasserts that the hospital records were material for Brady purposes because they lent general credence to these witnesses, and that they need not have constituted direct proof of innocence. See Appellant’s reply brief at 24-27.

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documents at trial, we do not believe that there is “a reasonable probability

that the outcome of the proceedings would have been different.” Sandusky,

203 A.3d at 1043.

Moreover, although the documents may have aided slightly in fortifying

Daisy’s credibility in a broad sense, we note that the Commonwealth attacked

her testimony at trial not based upon her lack of recollection of the pertinent

dates, but rather her decision to wait nearly one and one-half years before

informing anyone that Appellant was with her the night of the murder. See,

e.g., N.T. Trial, 6/15/94, at 87 (arguing at closing that she “[d]idn’t tell the

lawyer, didn’t tell the investigator, didn’t tell [Jean], never went up to the

prison and told [Hoagie]. Kept it here until she got to city hall on or after May

16, 1994. Why would she testify that way?”). Since introduction of the

records would not have overcome this problematic aspect of the defense, it

was unlikely to have any effect on the verdict and likewise was not material

pursuant to Brady.

D. Issues relating to Nemo Kennedy and Renaldo Robichaw

Appellant’s next three claims all center around Nemo Kennedy and

Renaldo Robichaw, both of whom were acquainted with Appellant at the time

of the crime. Specifically, Appellant asserts that trial counsel was ineffective

in choosing not to impeach Kennedy with a statement given to police by

Robichaw (the “Robichaw Statement”), as well as opting not to stay at a bond

hearing for Kennedy as a material witness. See Appellant’s brief at 27-39.

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Appellant further avers that the Commonwealth violated Brady when it did

not provide the Robichaw Statement to the defense prior to trial. Id. at 81-

86.

The following background informs our consideration of these interrelated

issues. In March 1993, prior to trial, Kennedy provided a statement to police

indicating that within hours of the shooting, Appellant came to his residence

at 2538 West Turner Street in Philadelphia and said that “we just killed

somebody.” N.T. Hearing, 9/11/23, at Defense Exhibit 10. Kennedy’s

statement also expressed that on the following morning, Appellant called him

and relayed that “we did Johnny.” Id. Approximately a month before trial in

1994, however, Kennedy spoke with a defense investigator after receiving a

call from Appellant in jail and recanted, proclaiming that he was under the

influence of several drugs at the time he gave the statement to police and that

it was not accurate.

Roughly eight days after Kennedy’s recantation, Robichaw, a friend of

Kennedy, furnished the Robichaw Statement to police. At the time, Robichaw

was incarcerated for unrelated charges. In the statement, he asserted his

understanding that Kennedy, not Appellant, was responsible for the murder.

The Robichaw Statement also recounted that Kennedy requested that

Robichaw help lay the blame on “Hoagie,” i.e. Appellant, but Robichaw

informed him that he did not want to be involved. See N.T. Hearing, 9/11/23,

at Defense Exhibit 1. For reasons unknown, the Robichaw Statement was

never provided to counsel for Appellant before or during trial.

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On the day after the Robichaw Statement was taken, the court held a

hearing to set bond for Kennedy as a material witness for Appellant’s trial, as

Kennedy had been evading police efforts to contact him in the weeks prior.

Appellant himself did not appear for the hearing, though his trial counsel was

present up to the time it was set to begin. Counsel then received leave of

court to handle an unrelated matter in another courtroom, and informed the

court that the attorney for Appellant’s co-defendant, Lee Smith, would monitor

Appellant’s interests. During the bond hearing, the Commonwealth referenced

the Robichaw Statement but did not call Robichaw as a witness. Kennedy

attested somewhat in line with his recantation, but added allegations “that he

did not see [Appellant] on the night after the murder, that police had

threatened him and his family to get him to cooperate against [Appellant],

and that he recanted his [initial police] statement to [Appellant]’s investigator

in May 1994” because he was under the influence of drugs. See PCRA Court

Opinion, 8/13/24, at 11-12 (citing N.T. PCRA Hearing, 9/13/23, at 42). To

counter these allegations, the Commonwealth called Detective Robert Snell,

who testified that when he had spoken to Kennedy on the day prior, Kennedy

was very hostile and threatened the detective’s family. See N.T., 5/24/94, at

68.

At trial approximately two weeks later, the Commonwealth called

Kennedy as a witness but not Robichaw. Kennedy testified partially in line

with his initial 1993 statement to police and not with his recantation or account

from the material witness bond hearing. Specifically, he attested that

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Appellant came to the residence after the shooting and said that he and some

others “just did something.” N.T. Trial, 6/7/94, at 94. Kennedy also stated

that he confronted Appellant about shooting Johnny Moss two days later, and

Appellant replied he did not “care what people said” and “that’s how the game

goes.” Id. at 95. After then explaining that he did not recall anything else,

the Commonwealth entered into evidence Kennedy’s original police statement

as a prior inconsistent statement, which provided more detail and wherein

Kennedy confirmed to detectives that he was not under the influence of drugs

or alcohol. Appellant’s trial attorney impeached Kennedy with his recantation,

but did not do so with the Robichaw Statement or any information that was

disclosed by Kennedy during the material witness bond hearing. Although

Kennedy never testified that he recanted in fear of Appellant after Appellant

called him from jail, he nonetheless said that he was “shocked” when he

learned that Appellant viewed a copy of his 1993 statement to police.

At the evidentiary hearing for Appellant’s PCRA petition, both Kennedy

and Robichaw testified. Kennedy, contrary to the testimony he provided at

trial, maintained that his initial account to police was false. He again iterated

that he was intoxicated by drugs on the occasion, detectives threatened him

and his family to make him point the finger at Appellant, and he was afraid of

prosecution if he did not comply. The Commonwealth called rebuttal witness

Detective Steve Vivarina, who relayed that he was involved in the taking of

Kennedy’s 1993 statement and would not have recorded it if he believed

Kennedy was under the influence. Detective Vivarina also denied ever

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threatening Kennedy or witnessing any other law enforcement officer doing

the same.

Robichaw testified at the PCRA hearing that the Robichaw Statement

was untrue, and that he only implicated Kennedy for being responsible for the

murder because: (1) police told him that he would be able to go home after

giving the statement; and (2) he was under the impression that Kennedy told

investigators that Robichaw was involved. In essence, he contended that he

gave the false statement solely in retaliation against Kennedy, whom he

believed was blaming him for the shooting.

With this context, we return to Appellant’s overlapping claims of

ineffective assistance of counsel and Commonwealth violations of Brady. He

avers that trial counsel was ineffective by not attending Kennedy’s material

witness bond hearing. Had he done so, he would have learned that Kennedy

alleged police misconduct in the investigation, which was more egregious than

the limited information within his recantation statement to defense

investigators. See Appellant’s brief at 34-35. Appellant also asserts that this

testimony would have had a different “character and import” than the

recantation since it was given under oath in court. Id. at 37. He laments that

none of this information made it to the jurors. Id. at 35.

Second, Appellant contends that had counsel remained at the bond

hearing, he would have discovered the Robichaw Statement, which would

have implicated Kennedy, not Appellant, as a perpetrator of the murder. Id.

at 34. He argues that this was important because “Kennedy was the primary

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prosecution witness whose testimony implicated” Appellant, and that

Kennedy’s “credibility was paramount, and undermining his testimony would

have been an essential tactic for any reasonable trial counsel.” Id. at 28.

Appellant summarizes the importance of this information as follows:

The jury did not hear that Nemo Kennedy considered himself a suspect in the murder and was afraid he would be prosecuted himself if he did not testify against [Appellant]. The jury did not hear that the Robichaw Statement named Kennedy as the perpetrator of the homicide and stated his intent to frame [Appellant]. Effective use of the Robichaw Statement would have provided the jury with an alternative view of the reason for Kennedy’s testimony: that . . . Kennedy implicated [Appellant] in the offense to save himself from the threat of prosecution. The Robichaw Statement was explosive impeachment evidence with which Kennedy was never confronted.

The Robichaw Statement is a damning piece of evidence demonstrating the bias and unreliability of Kennedy as a witness due to his motivation to testify falsely to avoid prosecution, as well as the fact that police were willing to procure and use a statement they believed to be false in order to influence the testimony of a trial witness.

Id. at 29.

Appellant maintains that there is “more than a reasonable probability

that [the statement’s] use would have altered the outcome at trial,” since it

would have impeached Kennedy and cast doubt of the conduct of the officers

who took the original statement in 1993. Id. at 31. Finally, he argues that

prejudice is presumed because co-defendant Lee Smith was acquitted, with

the primary difference in evidence against him stemming from Kennedy’s

testimony. Id. at 31-32. Appellant reiterates many of these same points in

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his related position that the Commonwealth violated Brady by failing to

provide to the defense the Robichaw Statement. Id. at 81-86.

As with the previous claims discussed supra, the PCRA court determined

that Appellant failed to meet his burden of proving prejudice or materiality at

the evidentiary hearing. It determined that the Robichaw Statement was false

and therefore had minimal impeachment value as to Kennedy. See PCRA

Court Opinion, 8/13/24, at 10, 13. The court further held:

Kennedy’s vague and inconsistent trial testimony required the Commonwealth to substantially rely at trial on . . . Kennedy’s March 1993 prior inconsistent statement to police. Since the Robichaw Statement was given in May 1994, more than a year after . . . Kennedy’s . . . statement to police, the 1994 Robichaw Statement could not have served as a motive for . . . Kennedy to lie in 1993. Thus, the . . . Robichaw Statement would have been useless in impeaching the gravamen of . . . Kennedy’s testimony, which was information elicited from this 1993 statement.

Id. at 10-11.

Next, the court found that Kennedy’s testimony from the bond hearing

was “duplicative” of the recantation he gave to Appellant’s investigator, which

accordingly put the defense on notice of that information. Id. It also

determined that Kennedy’s statements at the evidentiary hearing about

threats from law enforcement investigators were incredible, and thus Attorney

Floyd’s failure to present such information at trial would not have likely

changed the outcome of trial. Id. In the same vein, the court held that

Appellant’s Brady claim as to the Robichaw Statement failed for lack of

materiality. Id. at 26.

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For its part, the Commonwealth likewise asserts that there was no

prejudice proven with regard to counsel’s failure to attend Kennedy’s material

witness bond hearing or to impeach him with the Robichaw Statement or other

information unveiled during the hearing. It highlights that: (1) by Appellant’s

own concession, the Robichaw Statement was false; (2) Robichaw would have

testified to this if called at trial; and (3) Robichaw admittedly had no firsthand

knowledge as to who committed the crime. See Commonwealth’s brief at 44.

The Commonwealth notes moreover that while Kennedy’s testimony was

favorable to the prosecution, “it was also internally inconsistent and asserted

that certain portions of his original statement to police, such as the exact

words [Appellant] used to confess and where in the house he did so, were

untrue.” Id. at 45. It argues therefore that, had counsel attempted to

impeach Kennedy with the Robichaw Statement, the Commonwealth simply

could have called Robichaw to demonstrate that the statement was false on

its face. Id. at 45-46.

The Commonwealth additionally asserts that use of the Robichaw

Statement would not have bolstered Kennedy’s recantation of his 1993 police

statement, which was not so much a recantation, but rather an attempt to

distance himself from his statements. In so doing, it opines that the defense

investigator at trial confirmed that Appellant did not dispute the accuracy of

Kennedy’s statement to police. Id. at 47-48. The Commonwealth adopts this

same reasoning in asserting that the PCRA correctly dismissed Appellant’s

Brady claim involving the Robichaw Statement. Id. at 49-50

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Based on our review of the record, we cannot discern any error on the

part of the PCRA court. We begin by noting that it is apparent that Attorney

Floyd did not attend Nemo Kennedy’s material witness bond hearing, proffered

no reasonable reason for failing to do so, and did not suggest that he made

any arrangement to follow up with counsel for Lee Smith after the hearing. It

is also plain that the Commonwealth was in possession of the Robichaw

Statement prior to trial and did not disclose it to Appellant before initiation of

these PCRA proceedings.

However, the court acted within its discretion in finding that, had

counsel utilized the Robichaw Statement or other information gleaned from

the bond hearing at trial, it would not have raised a reasonable probability of

changing the trial’s outcome. The Robichaw Statement, which implicated

Kennedy as the shooter, was demonstrably false. We agree with the

Commonwealth that any attempt to impeach Kennedy with it would have been

futile as the Commonwealth could have called Robichaw himself to dispel the

statement conclusively, which he acknowledged at the PCRA hearing that he

would have done.

Further, Kennedy’s credibility at trial was already largely suspect,

despite his being a witness of significance. Additional impeachment, even if

achieved, would not undermine this Court’s confidence in the proceedings. As

recounted above, his testimony at trial was vague and far less damning than

the information he provided to police in 1993. To support the

Commonwealth’s theory of the case, it largely utilized Kennedy as a vessel to

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introduce his police statement which, much more than his trial testimony,

provided evidence of Appellant’s guilt. Appellant had the full and fair

opportunity to impeach Kennedy about that statement with the information

provided to the investigator during his recantation, which bore out more an

attempt to disassociate himself than outright recant.

Furthermore, even if the Robichaw Statement would have buttressed

Kennedy’s recantation, this would not have provided a strong defense for

Appellant based on the presumed untrustworthiness of recantation testimony.

See, e.g., Commonwealth v. D’Amato, 856 A.2d 806, 825 (Pa. 2004)

(recognizing that, “as a general matter, recantation evidence is notoriously

unreliable, particularly where the witness claims to have committed perjury.”

(cleaned up)). This is especially true in light of the suggestion at trial that

Kennedy recanted after being “shocked” from a phone call from Appellant at

the jail, who read the 1993 police statement. 4

Next, despite Appellant’s suggestion, we do not presume prejudice

merely because co-defendant Smith was acquitted of all charges, whereas

Appellant was convicted of second-degree murder. There was additional

evidence of Appellant’s guilt, beyond Kennedy’s testimony, that was unique

to Appellant’s role in the crime. This includes, but is not limited to, the

identifications from Walker and Clarence Moss of Appellant as the actor who

4 We acknowledge that Appellant was never charged or convicted of any crime

related to intimidating Kennedy as a witness, nor did Kennedy explicitly ever accuse Appellant of engaging in such behavior in these proceedings.

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yelled “task force,” and specific recollections of his street name of “Hoagie”

and knowledge of him within the neighborhood. We note that Walker

mistakenly indicated that someone other than Lee Smith was involved in the

crime during a photo array, a fact that no doubt held great sway over the jury.

And while both Walker and Clarence Moss had at least seen Appellant within

the neighborhood in the weeks leading up to the shooting, there was no

indication this was true as to Smith.

Finally, we accept that if Attorney Floyd had access to the Robichaw

Statement and information from the material witness bond hearing, he could

have provided more concrete cross-examination of Kennedy as to the

allegations that police threatened him to testify against Appellant.

Nonetheless, the PCRA court found that Kennedy’s accusations were

unbelievable. It also credited the testimony of Detective Vivarina dispelling

Kennedy’s claims. As the judge in the position to see the demeanor and

presentation of the witnesses, we defer to the court’s findings in this regard.

See, e.g., Commonwealth v. Johnson, 966 A.2d 523, 539 (Pa.Super. 2009)

(stating that a PCRA court’s “credibility determinations should be provided

great deference by reviewing courts” and that “one of the primary reasons

PCRA hearings are held in the first place is so that credibility determinations

can be made”).5 We also perceive that Kennedy’s purported fear of law

5The amicus brief from the Law Enforcement Action Partnership and the National Police Accountability Project offered significant discussion relating to (Footnote Continued Next Page)

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enforcement, if presented at trial, could have also been undercut at least in

part by rebuttal testimony that Kennedy, not detectives, was asserting death

threats during his interviews with law enforcement.

In short, while there was doubtless relevant information the trial counsel

missed by failing to attend Kennedy’s material witness bond hearing, as well

as the Commonwealth’s failure to disclose the Robichaw Statement, Appellant

simply has not demonstrated the requisite prejudice or materiality as to these

claims.

E. Counsel’s failure to investigate Andre Edmonds

In his next issue, Appellant challenges the efficacy of trial counsel

because he did not investigate potential rebuttal witness Andre Edmonds. See

Appellant’s brief at 49-56.

Edmonds testified at the PCRA evidentiary hearing that on the night of

the shooting, he was at 2538 West Turner Street with Kennedy, Robichaw,

and another individual named Neil Ransome, among many others who resided

in the three-story house. He claimed that he was up until the early morning

hours of the following day taking care of his newborn daughter on the second ____________________________________________

coercion methods of the Philadelphia Police Department in the late 1980s and early 1990s. It specifically contends that the intimidation complained of by Kennedy was similar in nature to that commonly utilized by the department during that era. See, e.g., brief of amici curiae at 19-25. While we acknowledge the organization for its thoughtful and detailed insight into this important issue, we nevertheless reiterate that the PCRA court was able to assess the credibility of multiple individual witnesses, including Detective Vivarina, in ascertaining the veracity of the underlying accusations.

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floor, and that Appellant never came to the residence, contrary to Kennedy’s

statement to police. Edmonds also attested that before trial, he attempted to

contact Appellant’s trial lawyer, but never heard back. 6 He further offered

that if he had been called to trial, he would have testified in accordance with

the above.

Edmonds also spoke to an affidavit that he prepared in 1996,

approximately three and one-half years after the shooting and nearly two

years after trial. See N.T. Hearing, 9/11/23, at Defense Exhibit 15. The

content of the affidavit was generally consistent with his testimony at the

PCRA evidentiary hearing, though it was different in some respects. In the

affidavit, he stated that he was required to force Robichaw and another person

out of the house for being too loud on the night of the shooting. He

additionally claimed that most people in the house were high from ingesting

drugs that they procured that same evening. Edmonds declared that

Appellant did not come to the house after the shooting. Contrary to his

testimony of the PCRA hearing, the affidavit stated that Edmonds directly

communicated with Appellant’s trial counsel about the information contained

therein, but that counsel appeared to have no interest in speaking with him.

The PCRA court found that Appellant’s claim of ineffective assistance of

counsel for failing to investigate Edmonds could not succeed because

Appellant failed to prove adequate prejudice. Particularly, the court deemed ____________________________________________

6 Edmonds was incarcerated at the time and utilized his family to make those

communication attempts. See N.T. Evidentiary Hearing, 9/12/23, at 11.

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Edmonds incredible. See PCRA Court Opinion, 8/13/24, at 19. It stated:

“The gravamen of his testimony, that he could recall the details of numerous

people coming and going from a three-story house while he was taking care

of his infant daughter, on an otherwise ‘normal night’ – was not believable.”

Id. It also noted without significant discussion that Edmonds’s testimony at

the hearing had substantial inconsistencies with what was written in his 1996

affidavit. Id.

To the contrary, Appellant argues that had Edmonds “testified at trial in

1994, [he] would have provided valuable testimony to impeach prosecution

witness Nemo Kennedy’s . . . testimony and original statement to police, which

alleged that [Appellant] confessed to Johnny Moss’s murder.” Appellant’s brief

at 50. Appellant contends that the PCRA court’s finding of incredibility is belied

by the record, highlighting that Edmonds likely had strong recollection of the

night in question because he testified that some of the residents were “acting

out” and that was close in time to the murder of a neighbor. Id. at 52-53.

Appellant avers that the core of what Edmonds stated was consistent and that

the PCRA court’s reliance on minor inconsistencies was not justified. Id. at

53. He maintains that the court’s adverse credibility determination relies upon

the passage of time between the night of the murder and the PCRA hearing,

for which Appellant was not responsible. Id. at 54-55. Appellant furthermore

asserts that the failure to investigate Edmonds, beyond merely the failure to

call him as a witness, constituted ineffectiveness because had trial counsel

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simply spoken with Edmonds before trial, it would have led to additional

investigatory avenues, such as to Renaldo Robichaw. Id. at 55-56.

The Commonwealth counters with its view that the PCRA court’s

credibility determinations are supported by the record. It notes that during

his testimony at the evidentiary hearing, Edmonds stated that many people

came and went throughout the house every night, including Appellant several

times a week. See Commonwealth’s brief at 59. At no point did Edmonds

say that the evening of the shooting was memorable so many years later

because it was close in time to a murder that he later learned about. Id. at

60. The Commonwealth disputes that the PCRA court was using the passage

of time inequitably against Appellant, noting instead that Edmonds’s

testimony was implausible on its face and stressing that even the 1996

affidavit was created three and one-half years after the murder. Id. at 60-

61.

With respect to this issue, we find that the PCRA court’s credibility

findings are upheld by the certified record. In other words, there is adequate

support for the court’s determination that Edmonds’s testimony at the hearing

was incredible. Appellant presumes that Edmonds had a good reason to

remember the night of December 12, 1992, since Appellant was later

convicted of a murder occurring that evening, but this presumption was not

established through any evidence. Despite being asked in several ways what

helped Edmonds recall that particular night, his answers confirmed that it was

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largely a usual period and indistinguishable from many others where large

groups of people came and went.

Furthermore, Edmonds’s assurance that Appellant never came to the

residence that evening rested solely on his opinion that he would have heard

or seen him, despite acknowledging that others were being rowdy and loud

and that he spent the vast majority of the time on a different floor taking care

of a newborn. We also agree that there is a significant discrepancy between

Edmonds’s 1996 affidavit and his testimony at the PCRA evidentiary hearing,

namely the details and circumstances surrounding his purported attempts at

communicating with Appellant’s trial counsel prior to trial. In one instance,

he contended that he actually communicated with the attorney, who showed

little interest. On the other hand, at the hearing he claimed that neither he

nor his family was able to get in touch with Attorney Floyd.

Under these circumstances, we do not have the grounds to disturb the

PCRA court’s credibility determination. As it found, Edmonds’s testimony

would have provided little evidentiary benefit for Appellant had it been

introduced at trial, since it would not have effectively impeached Kennedy,

whose value to the Commonwealth primarily stemmed from a 1993 police

statement. Assuming for the sake of argument that Edmonds’s testimony at

the evidentiary hearing was generally consistent with his affidavit from 1996,

we note that the affidavit was created years after the shooting and trial, which

casts doubt on Edmonds’s ability to call into question Kennedy’s statement to

police occurring significantly closer in time to the murder.

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Moreover, even if counsel had investigated Edmonds before trial and

come to learn the significance of Renaldo Robichaw and his statement, that

would not have led to a different outcome in the proceedings for the reasons

discussed in more detail supra. Hence, we uphold the PCRA court’s rulings on

these claims.

F. Claims relating to the performance of appellate counsel

In his next two issues, Appellant lodges objections to the performance

of Attorney Farrell, his appellate counsel. First, he avers that Attorney Farrell

should have pursued a claim on direct appeal that the Commonwealth violated

Bruton v. United States, 391 U.S. 123 (1968), through testimony

introduced by witness Latoya Singleton and the Commonwealth’s subsequent

“unmasking” of Appellant as the shooter during closing remarks. See

Appellant’s brief at 57-65. Relatedly, Appellant faults counsel for failing to

argue a violation of Shields in this Court, insofar as the trial testimony

necessary to adjudicate the Bruton claim is no longer available. Id. at 65-

72.

The Supreme Court of the United States has outlined the following

pertinent history relating to Bruton:

In Bruton . . ., this Court recognized a narrow exception to the presumption that juries follow their instructions, holding that a defendant is deprived of his Sixth Amendment right of confrontation when the facially incriminating confession of a nontestifying codefendant is introduced at their joint trial, even with a proper instruction. In Richardson v. Marsh[, 481 U.S.

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200 (1987)], the Court declined to extend Bruton further to confessions that do not name the defendant. [The Court] later qualified Richardson by holding that certain obviously redacted confessions might be “directly accusatory,” and thus fall within Bruton’s rule, even if they did not specifically use a defendant’s name.

Thus, the Court’s precedents distinguish between confessions that directly implicate a defendant and those that do so indirectly.

Samia v. U.S., 599 U.S. 635, 647-48 (2023) (cleaned up).

In Shields, our High Court held that “[i]n order to assure that a

defendant’s right to appeal will not be an empty, illusory right, we require that

he or she be furnished a full transcript or other equivalent picture of the trial

proceedings.” Shields, 383 A.2d 844 at 846 (citation omitted). The Court

added that “[m]eaningful appellate review is otherwise an impossibility, and

fairness dictates that a new trial be granted.” Id. (citation omitted). Since

the appellant in that case, through no fault of his own, could not obtain access

to a transcript that spoke to his appellate claims, the Court determined that

he was entitled to new trial.

As additional context for these claims, we note that at trial, Latoya

Singleton, a person familiar with both Appellant and co-defendant Lee Smith,

testified on behalf of the Commonwealth. There is no dispute that the

transcript from the morning of her testimony is lost and unavailable. Based

on references made later in the Commonwealth’s closing and in the trial

court’s Pa.R.A.P. 1925(a) opinion, it is apparent that she attested to a written

statement she gave to police in 1993. See N.T. Hearing, 9/11/23, at Defense

Exhibit 16. In that statement, she indicated that approximately one or two

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days after the shooting, Smith told her that Appellant admitted to shooting

the victim. The statement specifically referenced Appellant by his pseudonym

of “Hoagie.” Furthermore, it appears that Singleton was posed a question by

Smith’s counsel about the statement that would have implicated Appellant

directly, and Appellant’s counsel lodged an objection. Although the exact

details of this exchange are now unknown, the trial court recalled in its Rule

1925(a) opinion that it sustained the objection and instructed the jury to

disregard the question of counsel, suggesting that Singleton did not respond

to the question.

The subject of Singleton’s testimony resurfaced during the

Commonwealth’s closing argument. Therein, the prosecutor stated:

Latoya Singleton testified that early morning hours right after the murder that Lee Lee[7] came back in the house at 1724 North 25 th Street and he said, Lee Lee said, hey, I was out there and those other guys did it. I was out there, he says, but those other guys did it. . . . Maybe it is something else that we’re talking about in terms of the quality of the mind or the character of the soul of the man who is so quick to try to silence a young girl or lay off part of his responsibility on a friend, associate, or even a cousin . . . but I think that an individual who would do such things as try and get a girl to keep her mouth shut and try to lay a little bit of blame off on somebody else maybe even his own cousin, might be lacking a little bit.

N.T. Trial, 6/15/94, 100-02 (emphases added). There is no dispute that

during the trial, the jurors were informed that Appellant and Lee Smith were

cousins.

7 Testimony indicated that this was a nickname for Lee Smith.

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Appellant asserts that counsel was ineffective for abandoning preserved

Burton and Shields claims on appeal. In particular, he cites U.S. Supreme

Court caselaw for the proposition that it is error for a prosecutor to “undo the

effect of a limiting instruction” of a statement that was redacted to comply

with Bruton. See Appellant’s brief at 59-60 (discussing Richardson). He

contends that the statements of the assistant district attorney in this matter

“intentionally and unequivocally implicated [Appellant] as the person

referenced in co-defendant Lee Smith’s statement to Latoya Singleton,”

namely by the allusion to their relationship as cousins. Id. at 60. In other

words, he believes that whatever protections were made by the trial court

with regard to Brutonizing Singelton’s statement at trial were undone by the

prosecution in closing. Id. at 62.

Within his brief, Appellant notes that the PCRA court relied upon

Commonwealth v. Brown, 925 A.2d 147 (Pa. 2007) (“Brown I”), where

our High Court concluded that particular comments by a prosecutor in closing

did not violate Bruton if they “affected the redaction only indirectly and by

inference and were not overly egregious.” Appellant’s brief at 62; Brown I,

925 A.2d at 160. However, he asserts that the Court of Appeals for the Third

Circuit subsequently determined that Brown I was wrongly decided based on

relevant law coming directly from the United States Supreme Court. See

Appellant’s brief at 62-63 (citing Brown v. Superintendent Greene SCI,

834 F.3d 506 (3d Cir. 2016). Appellant hence argues that the law stemming

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from Bruton and its progeny, as articulated by the Supreme Court, “cannot

be undone by decisions of the Pennsylvania Supreme Court[.]” Id. at 63.

As to the Shields claim, Appellant highlights that the transcript of

Singelton’s testimony is not recoverable and this oversight was not addressed

by counsel in any prior Pa.R.A.P. 1923 statement of absence of transcript. Id.

at 66. Without the testimony, Appellant protests, it cannot be known whether

Singleton answered any question implicating Appellant as the shooter before

the objection by counsel was lodged, and no jury instruction would have been

sufficient to preserve Appellant’s rights if that occurred. Id. at 67-68, 70. He

attacks the PCRA court’s reliance on statements of the prosecutor in closing

to reconstruct Singleton’s testimony, as these “do not provide a remotely

equivalent picture to the full transcript.” Id. at 68.

In addressing Appellant’s Bruton assertion, the PCRA court referenced

Commonwealth v. Roney, 79 A.3d 595, 629 (Pa. 2013), which cited Brown

I, for the proposition that a violation only occurs when “the prosecutor

discloses to the jury that the co-defendant’s statement has been redacted and

unequivocally identifies the defendant as the individual whose name was

removed.” PCRA Court Opinion, 8/13/24, at 23. The court found no evidence

that the comments rose to such a level here. Id. at 24. It also noted that

the trial court had given multiple instructions to the jury that a statement from

one defendant to a third party cannot be used against a co-defendant and that

statements of counsel do not constitute evidence. Id. at 24-25. In the court’s

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determination, this mitigated any prejudice arising from the assistant district

attorney’s comments.

The PCRA court similarly found that Appellant’s Shields claim was

meritless, since his issue concerning Bruton could be resolved by what

existed in the record. Id. at 22. It noted that during the Commonwealth’s

closing remarks, the prosecutor stated that “Laytoya [sic] Singleton testified

that . . . Lee Lee said, hey, I was out there and those other guys did it . . .”

Id. at 22 (citing N.T. Trial, 6/15/94, at 100-02). The court opined that if the

Commonwealth was permitted to utilize the statement that Singleton actually

gave police, wherein she referenced Appellant directly by his street name of

“Hoagie,” it would have done so instead of generally referring to “those other

guys.” Id. The court set forth the following additional analysis:

Moreover, it is evident from [the trial court]’s opinion regarding an issue raised by [Appellant] in his post-verdict motion that . . . Singleton’s testimony was Brutonized. [The trial court]’s opinion indicates that [Lee] Smith’s counsel directly asked . . . Singleton if . . . Smith had implicated [Appellant] in the shooting, [Attorney] Floyd objected, and Judge Fitzgerald sustained the objection. [The judge] instructed the jury to disregard the question, and further instructed the jury “several times” that questions of counsel were not evidence. Judge Fitzgerald would not have ruled in this manner if the jury had heard . . . Singleton say that Smith had said that “Hoagie . . . did it.”

Id. at 22 (cleaned up).8 ____________________________________________

8 In its brief, the Commonwealth agrees with the PCRA court on a general level that there was no Bruton violation, but further maintains that Singleton’s testimony at issue was not “testimonial,” which is required for a (Footnote Continued Next Page)

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Again, we find no reversible error with the PCRA court’s analysis as to

these claims. Particularly, we agree that had counsel pursued the Bruton

claim on direct appeal to this Court, it would not have garnered him relief.

Pursuant to binding authority from our High Court in Brown I, which was in

effect at the time Appellant’s brief was filed, we would have concluded that

there was no Bruton violation because the prosecutor’s statement referring

to a “cousin” shortly after discussing Singleton’s statement did not plainly

identify Appellant. Neither did the comment demonstrate that Appellant’s

name was redacted from Latoya Singleton’s police statement. See, e.g.,

Commonwealth v. Cannon, 22 A.3d 210, 219 (Pa. 2011) (“Thus, pursuant

to Brown [I], a Bruton violation may arise when a prosecutor discloses to

the jury that the co-defendant’s statement has been redacted and

unequivocally identifies the defendant as the individual whose name was

removed.” (emphasis added)).

Like the PCRA court, we do not find that the prosecution’s two passing

references to Smith’s cousin were so egregious as to warrant extension of the

Bruton rule to remarks that are not the testimony of a witness. See Brown

I, 925 A.2d at 398-99. This is so especially in light of the multiple cautionary

Confrontation Clause violation. See Commonwealth’s brief at 73-78 (citing Crawford v. Washington, 541 U.S. 36 (2004)). Appellant counters, inter alia, that it would be inequitable to utilize precedent from 2004 against him when, by no wrongdoing, his appeal was not decided until 2013, nearly twenty years after conviction. See Appellant’s reply brief at 21-24. Since we do not rely upon the Commonwealth’s particular contention within this decision, we do not address it further.

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instructions the trial court provided to the jury stressing that closing

arguments are not evidence. When viewed in context, the assistant district

attorney’s comments constituted two fleeting moments in a lengthy closing

that spanned forty-seven transcript pages. Thus, Attorney Farrell would not

have succeeded in this claim if it had been included in Appellant’s direct

appeal.

Similarly, Appellant would not have fared better if counsel had pursued

a Shields claim before this Court. We readily acknowledge that this case has

lacked any semblance of orderly punctuality and has faced procedural

missteps at nearly every level, for an unacceptable amount of time. 9 Had this

Court access to Latoya Singleton’s testimony at trial, we could more

definitively gauge the quality of Appellant’s Bruton claim insofar as his

concern that her testimony at trial was not redacted and directly implicated

Appellant as the shooter. Nevertheless, we align with the PCRA court in

determining that various surviving portions of the record provide adequate

insight to address the claim and would not have required a remand.

The trial court’s Rule 1925(a) opinion speaks to sustaining an objection

after Singleton was posed a question and specifically references a curative

instruction for the jurors to disregard that specific question. This heavily ____________________________________________

9 As discussed at length in the thoroughly researched and well-written amicus

brief from Phillips Black, a nonprofit, public interest law practice, much of this delay is attributable to the various court-appointed attorneys for Appellant. Yet, the court system is not free from fault. That includes this Court, which could have done more to ensure a proper progression of Appellant’s direct appeal throughout the 2000s.

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supports the notion that Singleton did not answer the question before the

objection was sustained, as the court otherwise would have provided and

discussed an instruction about disregarding Singleton’s response. Further,

we find persuasive the court’s observation that, during closing arguments, the

Commonwealth appeared to carefully go out of its way to avoid using the

name “Hoagie” when recapping Singleton’s testimony. The remark would

have been significantly stronger for the Commonwealth had it referenced

verbatim, or close to it, Singleton’s actual statement to police.

Although these sources are not the same as an existing transcript, we,

unlike Appellant and amici, find what remains of the lengthy record to be an

“equivalent picture of the trial proceedings” concerning this claim. See

Shields, 383 A.2d 844 at 846. By his argument, Appellant requests that we

ignore the fact that the Commonwealth significantly watered down its closing

to avoid directly referencing Appellant and that the trial court provided a

thoughtful analysis of the issue confirming counsel’s objection to the

testimony of Singleton. We will not disregard reasonable inferences that

undercut Appellant’s position merely because they do not refute it to a

mathematical certainty. Therefore, Appellant’s claims lodged against the

efficacy of appellate counsel fail.

G. Cumulative prejudice

In his remaining allegation on appeal, Appellant asserts that he is

entitled to a new trial based upon the cumulative prejudice arising from the

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various errors by counsel and the Commonwealth throughout these

proceedings. See Appellant’s brief at 89-94.

Our Supreme Court has recognized that “no number of failed

[ineffectiveness] claims may collectively warrant relief if they fail to do so

individually.” Johnson, 966 A.2d at 532 (citation omitted). However, the

Court clarified that this principle applies to claims that fail because of a lack

of merit or arguable merit. See Commonwealth v. Sattazahn, 952 A.2d

640, 671 (Pa. 2008). On the other hand, when the failures of multiple claims

are each grounded in lack of prejudice, “[the] cumulative prejudice from

individual claims may be properly assessed in the aggregate.”

Commonwealth v. Hutchinson, 25 A.3d 277, 319 (Pa. 2011). Our High

Court has also considered in this analysis allegations of constitutional errors,

such as Brady. See Commonwealth v. Lesko, 15 A.3d 345, 417 (Pa.

2011).

Appellant highlights the following claims of ineffectiveness and Brady

violations that the PCRA court determined lacked prejudice: trial counsel’s

failure to impeach Kennedy with the Robichaw Statement; counsel’s decision

not to remain at Kennedy’s material witness bond hearing; the inadequate

objections to Walker’s in-court identification; counsel’s choice not to obtain

and utilize hospital records supporting Appellant’s alibi defense; his attorney’s

opting not to investigate potential rebuttal witness Edmonds; and the

Commonwealth’s oversight in not providing the handwritten police note as to

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Walker’s observations the night of the shooting. 10 See Appellant’s brief at 90.

He accuses the PCRA court of performing a brief and inadequate analysis as

to this claim. Id. at 91. Appellant argues:

[The prosecution] failed to disclose evidence that corroborated [Appellant]’s alibi, contradicted an already suspect witness identification, and cast doubt on the fundamental integrity of police investigation in the case. But for trial counsel’s ineffectiveness in this case, [Appellant]’s jury would have encountered objective corroboration of his alibi defense. [It] would have learned that . . . Nemo Kennedy was coerced into testifying [by law enforcement], and heard from Andre Edmonds that [Appellant] did not come to Kennedy’s house on the night in question. [It] would not have been exposed to a profoundly unreliable identification by Walker Moss. The Commonwealth’s suppression of evidence and the failures of [Appellant]’s trial counsel weakened both the credibility of [Appellant]’s alibi witness and his ability to counter the Commonwealth’s shoddy evidence against him. The prejudice of these omissions cannot be viewed in isolation. Viewed individually and cumulatively, as they must, the many errors at [Appellant]’s initial trial and on appeal merit relief.

Id. at 91-92. Furthermore, Appellant points to the fact that Lee Smith was

acquitted of all charges, something he avers the PCRA court glossed over, and

that Appellant’s own conviction was for second-degree murder, which likely

was a compromise verdict from the jurors based on a weak presentation from

the Commonwealth. Id. at 92-93. He concludes: “There can be no ____________________________________________

10 To the extent that Appellant also includes his allegations of appellate counsel ineffectiveness, we do not consider them in weighing whether there was sufficient cumulative prejudice creating a reasonable possibility that the verdict of trial would have been different. By necessity, appellate counsel’s failure to pursue claims on appeal could not have affected the jury’s verdict directly. Moreover, we considered jointly the claims asserted against appellate counsel above, and concluded that even together, they would not have warranted appellate relief from this Court.

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confidence in the outcome of a trial riddled with so many Constitutional errors.

This Court has an opportunity to rectify over [thirty] years of wrongs suffered

by [Appellant] — an opportunity which it was previously denied due to

ineffective appellate counsel. Appellant’s conviction must be overturned.” Id.

at 94.11

In contrast to the PCRA court’s terse assessment of this claim, the

Commonwealth offers multiple points as to why it believes Appellant’s

argument fails. It works from the starting point of “imagin[ing] a trial where

all allegedly suppressed evidence was disclosed to defense counsel, and where

defense counsel behaved in all the ways that would have cured his alleged

deficiencies, according to [Appellant].” Commonwealth’s brief at 84. The

Commonwealth avers that several pieces of information would not be included

in the analysis due to the PCRA court’s finding of a lack of arguable merit

instead of prejudice, including counsel’s failure to make unmeritorious

arguments challenging Walker’s in-court identification, seek out Jean’s

hospital records, or pursue a Bruton claim on appeal. Id. at 84. With what

remains, the Commonwealth

assumes a trial where defense counsel had attempted to impeach Nemo Kennedy with Kennedy’s testimony from his bond hearing, with [the Robichaw Statement], and with testimony by Andre ____________________________________________

11 The amicus brief from Phillips Black discusses at length the frequent inadequacy of representation by court-appointed counsel in Pennsylvania, particularly in capital cases, where the prevalent fee structure disincentivizes thoroughness and creative argument. Since that specific issue is not before us, we do not weigh the wisdom of policies set by the various counties as enforced by the courts of common pleas.

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Edmonds. It also assumes that the Commonwealth turned over the handwritten note in the homicide file, concerning the early police interaction with Walker . . . on the night of the incident. Under these imagined alterations to the trial, confidence in the outcome is not undermined.

Id. at 84-85 (some capitalization altered).

In its brief, the Commonwealth concedes that Kennedy’s credibility

could have suffered if he was impeached with information gleaned from his

material witness bond hearing, but that none of it would have cast doubt on

his original statement to police in 1993, which ultimately ended up forming

the crux of his evidence against Appellant. Id. at 85. It additionally argues

that even if the Robichaw Statement were to bolster Kennedy’s later

recantation, the weak and vague testimony of police coercion would not have

held up because Appellant’s defense investigator testified that Kennedy

ultimately did not deny the accuracy of his statement to police. 12 Id. at 85-

86. The Commonwealth views less significantly than Appellant the fact that

Smith was acquitted, discussing that there was substantially different

evidence against the co-defendant, who was asserted to be less culpable than

Appellant and who was not identified correctly by Walker or Clarence Moss

prior to trial. Id. at 87.

While perhaps Appellant’s most robust argument on appeal, we

nevertheless find that his claim does not warrant reversal of the PCRA court. ____________________________________________

12 Appellant disputes this in his reply brief, arguing that the Commonwealth’s

interpretation of the testimony “borders on bad faith” and “rests on an implausible reading of a confused line of testimony.” Appellant’s reply brief at 9-10. Since we resolve this contention based on other bases, we do not adopt the Commonwealth’s particular argument in this respect.

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Unlike the Commonwealth, we conclude that all of Appellant’s claims before

the PCRA court failed based on a lack of prejudice. Accordingly, we consider

this issue in the same light as proposed by Appellant in his brief.

Viewing the additional evidence in the aggregate, we are not persuaded

that the errors by counsel, or related Brady violations by the Commonwealth,

“so undermined the truth-determining process that no reliable adjudication of

guilt or innocence could have taken place.” Sandusky, 203 A.3d at 1043.

Further argument as to Walker’s in-court identification would not have

compelled the trial court to preclude the same, especially since it allowed

Walker and Clarence Moss to identify Lee Smith in court, despite them making

prior mistakes in identification as to him. Next, had Walker been impeached

with the police note about not “knowing” the perpetrators, this would have

merely reiterated that he did not identify “Hoagie” by name the night of the

murder, something argued by the defense at trial. See, e.g., N.T. Trial,

6/15/94, at 53 (recounting that on the evening of the murder, Walker only

indicated that he could “probably” identify the person who did the shooting).

Additionally, if counsel had access to Jean’s hospital records surrounding the

birth of her child, this would not have offered any significant support to

Appellant’s purported alibi, when the crimes occurred half a day later and

when the alibi took almost eighteen months to surface.

Furthermore, as analyzed in closer detail above, we recognize that

information learned during Kennedy’s material witness bond hearing,

including the existence of the Robichaw Statement, certainly could have been

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used to further impeach Kennedy during trial. Yet, Kennedy’s value to the

prosecution came through introduction of his statement to police in 1993,

which was given well before the Robichaw Statement, recantation, or

testimony at the material witness bond hearing. Based on the credibility

determinations made by the PCRA court, which were supported by the record,

Kennedy’s allegations of undue police coercion were incredible and could have

been rebutted with force by the Commonwealth at trial, particularly through

Detective Vivarina.

Finally, had Andre Edmonds been called to further dismantle Kennedy’s

account, his questionable story, which the PCRA court found implausible, does

not erode our confidence in the verdict. At best, it would have indicated that

Edmonds did not see or hear Appellant at the residence on the night of the

shooting, despite him staying on another floor, the house containing many

rowdy and loud participants, and his preoccupation with watching his newborn

daughter.

Had trial proceeded under these circumstances, we do not find the

chance of a different jury verdict to be reasonably probable. Stated another

way, this Court is confident that the outcome of the trial Appellant claims he

should have had would have been the same as the one he, in fact, underwent.

While Appellant’s trial counsel seemingly failed to explore certain opportunities

for further impeachment of Commonwealth witnesses, we reiterate that

Appellant was entitled to constitutionally effect counsel and a fair trial, not

perfection. See Strickland, 466 U.S. at 689; Wright, 961 A.2d at 135.

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In short, we determine that Appellant has not met his burden with

respect to his multiple claims on ineffective assistance of counsel or the

Commonwealth’s violations of Brady. Accordingly, we have no cause to

disturb the PCRA court’s order dismissing Appellant petition.

Order affirmed.

Date: 12/24/2025

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