J-S04017-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ERIC M. COOPER : : Appellant : No. 1285 EDA 2024
Appeal from the PCRA Order Entered April 29, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0008618-2010
BEFORE: OLSON, J., STABILE, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY STABILE, J.: FILED MAY 7, 2025
Appellant, Eric M. Cooper, seeks review of an order entered by the Court
of Common Pleas of Philadelphia County (PCRA court) dismissing his petition
for postconviction relief. In 2012, Appellant was found guilty following a jury
trial of third-degree murder and other related offenses stemming from a fatal
drive-by shooting. He was sentenced to an aggregate prison term of 17.5 to
60 years, and the judgment of sentence was upheld on direct appeal.
Appellant timely filed a petition for postconviction relief in 2016 and it was
thereafter amended several times, until 2024, when the PCRA court dismissed
the operative version. In the present appeal, Appellant contends that the
PCRA court erred in dismissing his petition because his claims of trial counsel’s
ineffectiveness, and his claim of after-discovered evidence, entitle him to a
new trial or an evidentiary hearing. Upon review, we affirm. J-S04017-25
The underlying facts of the case have previously been summarized in
Appellant’s direct appeal:
On March 9, 2007 at approximately 3:18 p.m., Jacque Warren drove a purple van with a white fender in the area around 945 South 53rd Street in Philadelphia. After circling the block, Warren drove back up the street. The sliding door of the van on the driver's side opened, and Nutta Verdier emerged and began shooting at Darrell Cobb. Appellant also exited the van from the passenger side and began shooting at Darrell Cobb. A man identified as "GoGo" also exited the van and began shooting in "a whole opposite way."
Gary Autry Bigelow and Derrick Seals were outside an auto mechanic shop at 945 South 53rd Street at the time of the incident. Bigelow was the stepson of the shop owner, and Seals was working as an auto mechanic at the shop. During the incident, Bigelow was shot twice, once in the back and once in his left thigh. He was taken to the Hospital of the University of Pennsylvania and was pronounced dead at 3:47 p.m. the same day. Seals ran to his vehicle and attempted to drive to safety; however, he was shot through the back windshield. The bullet hit his right arm, and Seals suffered nerve damage from the wound; he is unable to work as an auto mechanic as a result of his injury.
While investigating the incident, police obtained a search warrant for, and recovered, a purple van with a white fender in the area of 5400 Belmar Terrace on March 13, 2007. The police learned the van was owned by Joyce Chavis, and her address was 5410 Belmar Terrace. On March 22, 2007 at approximately 5:30 a.m., Detective Joseph McDermott of the Philadelphia Police was executing a search warrant and attempting to arrest an individual pursuant to an arrest warrant, for an unrelated matter, at 5427 Belmar Terrace. After the attempt at finding the suspect was unsuccessful, Detective McDermott observed that an indoor light was illuminated at 5410 Belmar Terrace. He and Detective Maurizio knocked on the door, and Chavis answered and identified herself as the van owner and confirmed she lived in the residence. As the detectives were speaking to Chavis, a male appeared from the cellar stairway of the residence, looked in the direction of the detectives, and began running to the back of the residence. Detective Maurizio ran through the house and detained the male.
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Detective McDermott then heard running in the upstairs of the residence. He ran up the stairs, encountered Appellant in the middle bedroom, and observed a box of Remington ammunition. Detective McDermott then secured the premises and obtained a search warrant for the residence. The search of the residence yielded, "one box of Remington .9-millimeter bullets, 25 total[;] [] one copper projectile; four loose .45 caliber rounds; one black extended pistol magazine; one clear sandwich baggie with four smaller baggies with numerous packets of an off white chunky substance; and . . . $495[.00] U[nited] S[tates] currency."
On August 2, 2010, the Commonwealth filed a criminal information charging Appellant with the aforementioned offenses as well as simple assault, recklessly endangering another person (REAP), and first degree murder. On September 19, 2012, Appellant filed an omnibus pretrial motion seeking suppression of evidence based on, inter alia, an illegal search conducted without a warrant or probable cause. The trial court held a hearing on Appellant's motion on October 1, 2012, and at the conclusion of the hearing, denied Appellant's motion. On October 2, 2012, Appellant and codefendant Verdier proceeded to a jury trial. On October 12, 2012, the jury convicted Appellant of third-degree murder, criminal attempt to commit murder, criminal conspiracy, firearms not to be carried without a license, PIC, and aggravated assaults. The charges of simple assault and REAP were nolle prossed.
On December 19, 2012, the trial court imposed an aggregate sentence of 17½ to 60 years' imprisonment. On December 27, 2012, Appellant filed a timely post-sentence motion. The motion was denied by operation of law on April 29, 2013.
Commonwealth v. Cooper, No. 1268 EDA 2013, at *1-6 (Pa. Super. filed
August 28, 2015) (unpublished memorandum) (internal citations and
footnotes omitted). The judgment of sentence was affirmed. See id. Our
Supreme Court then denied further review. See Commonwealth v. Cooper,
No. 576 EAL 2015 (Pa. 2016).
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Appellant filed a PCRA petition (his first) on November 16, 2016, and
after the appointment of counsel, a supplemented petition was filed on July 3,
2017. Counsel was permitted to withdraw on September 11, 2017, and a new
attorney was appointed the same day. While the proceedings were still
pending, the replacement attorney passed away, and on March 5, 2019, a new
attorney was appointed to represent Appellant.
An amended petition was filed on April 26, 2019, and the
Commonwealth moved to dismiss it on July 30, 2019. On March 2, 2021, the
Commonwealth disclosed to Appellant that a prosecutor in his case had
received a letter on September 17, 2012, from Warren’s trial counsel which
suggested that, at his re-sentencing, the sentencing judge would be more
lenient on Warren if his testimony at Appellant and Verdier’s joint trial were
to incriminate those two co-defendants.
A new counseled amended petition was filed on April 10, 2021, and
Appellant filed a letter brief on May 30, 2022, supplementing the latter filing
on November 23, 2022. The Commonwealth filed an answer on October 21,
2023, and an additional letter brief was filed by PCRA counsel on January 23,
2024.
An evidentiary hearing was held on March 28, 2024. A central issue
developed at the hearing concerned the new testimony of Appellant’s co-
defendant, Nutta Verdier, who admitted his own guilt in the drive-by shooting
while denying Appellant’s involvement. Appellant also testified on his own
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behalf. The other issue developed at the evidentiary hearing concerned the
failure of Appellant’s trial counsel to seek a “corrupt and polluted source” jury
instruction as to the testifying witness, Darrell Cobb, who was the alleged
target of the drive-by shooting.
The PCRA court dismissed Appellant’s petition on April 29, 2024.
Appellant timely appealed, raising four issues in his brief:
1. Did the PCRA court err and was dismissal of Appellant's PCRA Petition not supported by the Record and free from legal error because trial counsel was ineffective and Appellant suffered prejudice because trial counsel did not request a [“]corrupt and polluted source[”] charge in relation to witness Darrell Cobb?
2. Did the PCRA court err and was dismissal of Appellant's PCRA Petition not supported by the Record and free from legal error because trial counsel was ineffective and Appellant suffered prejudice because trial counsel did not object to multiple Bruton v. United States violations at trial?
3. Did the PCRA court err and was dismissal of Appellant's PCRA Petition not supported by the Record and free from legal error because trial counsel was ineffective and Appellant suffered prejudice because trial counsel did not object or seek a mistrial or raise the issue of prosecutorial misconduct in relation to discovery violations and tacit agreements regarding preferential treatment for witness Jacque Warren and there was newly-discovered evidence as to same and associated police misconduct that Appellant was not permitted to explore at the evidentiary hearing?
4. Did the PCRA court err and was dismissal of Appellant's PCRA Petition not supported by the Record and free from legal error because the PCRA court denied relief following the testimony of Nutta Verdier who testified credibly as to Appellant's non- involvement in the underlying crimes?
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Appellant’s Brief, at 4.1
Appellant’s first claim is that his trial counsel was ineffective in failing to
request a “corrupt and polluted source” instruction with respect to the witness,
Darrell Cobb. He argues that trial counsel should have demanded this
instruction because, at the time of trial, Cobb himself had an open criminal
case in another criminal matter, making him more inclined to testify favorably
for the prosecution; Appellant also argued that the prosecution’s decision not
to charge Cobb in the underlying case allowed for the inference that Cobb had
cut a deal with the prosecution to implicate Appellant in exchange for leniency
in Cobb’s own case.
On review of an order dismissing a petition for postconviction relief, this
Court “is limited to examining whether the PCRA court's determination is
supported by the evidence of record and whether it is free of legal error.”
Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa. Super. 2019).
Consistent with that standard, this Court is bound by the PCRA court’s
credibility determinations as long as they are supported by the record. See
id. However, the PCRA court’s legal conclusions are subject to a de novo
standard of review. See id.
A petitioner seeking relief under the Post Conviction Relief Act (PCRA)
42 Pa.C.S.A. §§ 9541-9546, must show that the claims raised have not been
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1 Both Appellant and the PCRA court complied with Pa.R.A.P. 1925. See PCRA Court 1925(a) Opinion, 6/10/2024, at 6-17.
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previously litigated. See 42 Pa.C.S.A. § 9544. A claim is previously litigated
if the highest appellate court in which the petitioner could have had review as
a matter of right has ruled on the merits of the issue. See Commonwealth
v. Reid, 235 A.3d 1124, 1144 (Pa. 2020). Claims that have been previously
and fully litigated are procedurally barred. See 42 Pa.C.S.A. § 9544.
For the purposes of the PCRA, counsel is presumed to have been
effective. See Commonwealth v. Sepulveda, 55 A.3d 1108, 1117 (Pa.
2012). A PCRA petitioner has the burden of proving by a preponderance of
the evidence all three prongs of an ineffectiveness claim:
(1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel’s actions or failure to act; and (3) the petitioner suffered prejudice as a result of counsel’s error such that there is a reasonable probability that the result of the proceeding would have been different absent such error.
Id. (citing Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987)). A
claim has arguable merit for the purposes of the PCRA “where the factual
averments, if accurate, could establish cause for relief.” Commonwealth v.
King, 57 A.3d 607, 613 (Pa. 2012) (quoting Commonwealth v. Sandusky,
203 A.3d 1033, 1043-44 (Pa. Super. 2019)). Counsel cannot be found
ineffective for failing to raise a claim that is meritless. See Sepulveda, 55
A.3d at 1117.
“A ‘corrupt and polluted source’ instruction advises the jury that if it
finds that a certain witness who testified against the defendant was an
accomplice of the defendant in a crime for which he is being tried, then the
jury should deem that witness a ‘corrupt and polluted source’ whose testimony
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should be viewed with caution.” Commonwealth v. Collins, 957 A.2d 237,
262 (Pa. 2008) (citing Commonwealth v. (Roy) Williams, 732 A.2d 1167,
1181 (Pa. 1999)). The instruction is meant to address cases in which one
accomplice testifies against the other in exchange for favorable treatment by
the prosecution. See Commonwealth v. Smith, 17 A.3d 873, 906 (Pa.
2011).
The instruction is appropriate only where there is sufficient evidence to
present a jury question with respect to whether the witness is indeed the
defendant’s accomplice to a crime. See Collins, 957 A.2d at 262. Under 18
Pa.C.S.A. § 306(c), a person may qualify as a liable accomplice of another
person in the commission of an offense if:
(1) with the intent of promoting or facilitating the commission of the offense, he (i) solicits such other person to commit it; or (ii) aids or agrees or attempts to aid such other person in planning or committing it; or (2) his conduct is expressly declared by law to establish his complicity.
18 Pa.C.S.A. § 306(c).
Here, Appellant’s ineffectiveness claim has no merit because he failed
to present any evidence to justify the giving of a corrupt and polluted source
instruction as to the Commonwealth’s trial witness (and the alleged victim),
Cobb. There was no evidence from which it could reasonably be inferred that
Cobb was an accomplice of Appellant and the other individuals who were
shooting at Cobb on the date in question. As the PCRA court correctly notes,
the evidence presented at trial only showed that Cobb was an intended victim
of Appellant, Nutta Verdier, and Warren. The fact that Cobb returned fire
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against those individuals in self-defense could not have rendered him an
accomplice to Appellant’s criminal acts. See e.g., Commonwealth v.
Williams, 732 A.2d 1167, 1181-82 (Pa. 1999) (accomplice liability charge
was not warranted where there was no evidence from which jury could
reasonably have inferred that witness was accomplice, such that counsel was
not ineffective for not requesting such instruction); Commonwealth v.
Fisher, 741 A.2d 1234, 1246 (Pa. 1999) (same); Commonwealth v. Hall,
867 A.2d 619, 631 (Pa. Super. 2005) (same). Thus, Appellant’s trial counsel
could not have been ineffective in failing to request such an instruction as to
Cobb, as that underlying ground for relief has no arguable merit.
Appellant’s second claim, as described in his 1925(b) statement, is that
his trial counsel was ineffective in failing to object to the admission of portions
of Warren’s testimony which violated his Six Amendment rights under Bruton
v. United States, 391 U.S. 123 (1968).2
2 In his brief, Appellant alludes to different parts of Warren’s testimony as violative of Bruton, or more generally, the right to confrontation; Appellant also argues that some of Warren’s statements were inadmissible hearsay, and that much of his testimony was erroneously prompted by the prosecution. See Appellant’s Brief, at 15-16. Appellant contends further, within the same issue in his brief, that his trial counsel objected to the admission of some, but not all, of this evidence, see id., and that appellate counsel was ineffective for failing to raise on appeal the evidentiary issues preserved by timely objections, see id., at 17. This is an apparent departure from Appellant’s 1925(b) statement, in which he only raised claims based on trial counsel’s ineffectiveness in failing to object to portions of Warren’s testimony which violated Bruton. See Appellant’s 1925(b) Statement, 5/1/2024, at para. 2. Since our review must be limited to the grounds for relief enumerated in the (Footnote Continued Next Page)
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In Bruton, the United States Supreme Court examined whether a
defendant's constitutional right to confrontation was violated when, at a joint
trial, his non-testifying co-defendant's confession was introduced against him;
a related issue was whether an instruction directing the jury to consider the
confession as evidence of only the co-defendant’s guilt, and not the
defendant’s, would cure such a violation. See Bruton, 391 U.S., at 126. The
Bruton Court held that the introduction of the non-testifying co-defendant's
confession describing the defendant’s participation in the crime had violated
the defendant’s right of confrontation, and the error could not be cured by an
instruction. See id.
In the present case, the PCRA court correctly found that Bruton was
inapplicable at Appellant’s trial because Warren was a testifying witness who
was not a co-defendant. See PCRA Court 1925(a) Opinion, 6/10/2024, at 8-
10. Since Warren was subject to cross-examination at Appellant’s trial, his
right to confront the evidence against him was not violated for the purposes
of Bruton. Thus, Appellant’s trial counsel could not have been ineffective in
failing to object, or to seek an instruction to cure a Bruton violation, because
no such violation occurred in the manner that Appellant has described. See
e.g., Commonwealth v. Housman, 986 A.2d 822, 835-36 (Pa. 2009) (“The
Bruton rule applies solely to non-testifying co-defendants,” and is not
1925(b) statement, any additional claims may not be considered on the merits at this juncture. See Pa.R.A.P. 1925(b)(4)(vii).
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applicable where a witness testified at trial and subjected herself to cross-
examination).
Appellant’s third claim is essentially that he was entitled to relief on his
claim that the Commonwealth violated the mandate of Brady v. Maryland,
373 U.S. 83 (1963), which compels the prosecution to timely disclose evidence
favorable to the defense.3 Specifically, Appellant claims that the prosecution
did not disclose to him until 2021 that, at the time of Appellant’s trial, Warren
had negotiated to receive a more lenient sentence in his own case in exchange
for testifying against Appellant. According to Appellant, this purported
agreement conflicted with the trial testimony of Warren, as well as the
testimony of assigned detectives on the case, who insisted that Warren was
receiving no such benefit for his testimony. A related sub-issue is that the
PCRA court erred in preventing Appellant from developing his Brady claim at
the evidentiary hearing.
A Brady claim has three elements: “(1) the prosecutor has suppressed
evidence; (2) the evidence, whether exculpatory or impeaching, is helpful to
the defendant; and (3) the suppression prejudiced the defendant.”
Commonwealth v. Carson, 913 A.2d 220, 244 (Pa. 2006). Prejudice in this
3 Appellant has framed this issue as implicating the ineffectiveness of trial counsel. But in substance, Appellant only contends that the Commonwealth’s conduct prevented trial counsel from learning about the purported agreement between Warren and the prosecution, see Appellant’s Brief, at 17-29, in which case counsel could not have been ineffective on that ground. The issue of ineffectiveness was not developed in Appellant’s brief in his discussion of the alleged Brady violation. See id.
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context means a "reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been different."
Commonwealth v. Clark, 961 A.2d 80, 89 (Pa. 2008) (quoting
Commonwealth v. Burke, 781 A.2d 1136, 1141 (Pa. 2001)).
A PCRA petitioner may assert a Brady violation during postconviction
proceedings as long as the claim is not time-barred, as such constitutional
rights may be vindicated at the postconviction stage. See generally
Commonwealth v. Cox, 146 A.3d 221 (Pa. 2016) (citing 42 Pa.C.S.A. §
9543(a)(2)(i), (ii)). For Brady claims asserted long after the judgment of
sentence has been entered, it is common for PCRA petitioners to attempt to
establish their timeliness by satisfying two exceptions to the PCRA’s
jurisdictional time-bar. The first is that the claim arose from a new fact which
could not have been discovered sooner through the exercise of due diligence;
the second is that the delay in asserting the claim resulted from governmental
interference. See generally Commonwealth v. Natividad, 200 A.3d 11,
26-27 (Pa. 2019) (citing 42 Pa.C.S.A. § 9545(b)(2) (enumerating the newly-
discovered fact and the governmental interference timeliness exceptions).
In the present case, on March 2, 2021, the Commonwealth disclosed to
Appellant purported Brady material. The record shows that, on September
17, 2012, Warren’s trial counsel (William L. Bowe, Esq.) had sent a prosecutor
(ADA Deborah Watson Stokes) a letter regarding Warren’s upcoming re-
sentencing on October 1, 2012. The letter purports to remind the prosecutor
that Judge Jeffrey Minehart had “indicated that he would look favorably on a
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re-sentencing motion on behalf of Mr. Warren if he were to cooperate in the
trial of [Appellant] and Mr. Verdier. Their trial is scheduled for October 1,
2012. Mr. Warren’s [original] sentence was vacated on my motion.”
Appellant’s Supplemental PCRA Petition and Memorandum of Law, 4/10/2021,
at Exhibit A. The letter concludes by informing the prosecutor that Warren
had agreed to testify against Appellant and Verdier. See id.
We find that no relief is due on this Brady claim. As the PCRA court
noted:
The partes were all aware that Warren was going to testify at trial, and that while he hoped for leniency in his own sentence for his cooperation, he was not guaranteed anything in return for his testimony. Further, defense counsel for both co-defendants thoroughly cross-examined Warren regarding any motives he might have for testifying and argued that Warren's testimony should be discredited for various reasons in both their opening and closing statements.
PCRA Court 1925(a) Opinion, 6/10/2024, at 14.
The crux of the PCRA court’s reasoning is that, while the letter from
Warren’s attorney was itself newly disclosed, its content did not reveal any
new information or insight into Warren’s motive for testifying against
Appellant. Indeed, Appellant’s co-defendant, Verdier, made an identical
Brady claim in his own PCRA petitions, having learned of the same evidence
at the time that Appellant did.
This Court affirmed the denial of the Brady claim in Verdier’s case,
finding that the elements of the claim had not been met, and that the PCRA
court did not abuse its discretion in dismissing the claim:
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[Verdier] fails to establish that the Commonwealth and Warren had any agreement. The letter from Attorney Bowe indicates that Judge Minehart might “look favorably” upon Warren's cooperation at his resentencing hearing, a fact which was known and analyzed at length during his testimony. The letter does not indicate that there was a definite agreement between the Commonwealth and Warren, and merely indicates the possibility of a more favorable sentence should he cooperate with the Commonwealth. Ultimately, the decision on how to resentence Warren rested solely in the purview of Judge Minehart, whose decision was not reduced to a contractual certainty. Ultimately, On October 26, 2012, Judge Minehart resentenced Warren to twelve and a half to twenty-years imprisonment on the charge of Third-Degree Murder, and imposed a consecutive ten years of reporting probation for Conspiracy.
Commonwealth v. Verdier, 272 A.3d 470 (Pa. Super. filed January 11,
2022) (unpublished memorandum) (emphases added; internal citations and
footnotes omitted).
Further, this Court also had stressed in Verdier’s earlier PCRA appeal
that both Verdier and Appellant must have known at the time of their trial that
Warren was testifying against them in order to curry favor with the
Commonwealth:
Our review of the transcripts has not revealed an explicit admission that Warren had an agreement with the Commonwealth. Warren himself repeatedly denied that he had any form of deal with the Commonwealth, while admitting that he was hoping that his sentence would be reduced. See, e.g., N.T. Jury Trial, 10/9/12, at 57-58. Given the arguments of the parties and statements of the trial court in the transcript before us, it is clear that Warren was, to some extent, cooperating with the district attorney's office and had some expectation that his previously vacated sentence could be reduced upon re-sentencing if he curried favor with the district attorney.
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Commonwealth v. Verdier, 2910 EDA 2016, at n.6 (Pa. Super. filed
September 11, 2017) (unpublished memorandum) (emphasis added). This
Court held that, based on that prior litigation, Verdier’s Brady claim was
barred under the PCRA because it had already been fully litigated. See id.
In the present case, we adopt the reasoning of both the PCRA court, and
from our prior dispositions in Verdier’s case, as that rationale is directly
applicable here. The record is identical as to the joint trial of Appellant and
his co-defendant, Verdier. In both cases, there has been no showing that the
Commonwealth withheld the underlying fact that Warren was testifying in
order to curry favor with the prosecution and the sentencing judge. The letter
that Warren’s counsel sent to a prosecutor concerned the fact that the
sentencing judge would “look favorably” on Warren’s testimony against
Appellant, but this did not establish an agreement. Both Appellant, and his
co-defendant, Verdier, were well-aware of Warren’s motive to testify at the
time of trial, and Warren was thoroughly cross-examined on that basis.
In sum, the PCRA court’s dismissal of Appellant’s Brady claim must be
upheld because Appellant failed to show that the Commonwealth withheld an
agreement between Warren and the prosecution, or that Appellant could have
been prejudiced as a result of a non-disclosure concerning such an agreement.
Moreover, as we held in Verdier’s PCRA appeal, the issue already has been
fully litigated at the joint trial of Appellant and Verdier, barring reconsideration
of the issue in postconviction proceedings.
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With respect to Appellant’s related sub-issue – the PCRA court’s decision
to dismiss the Brady claim without allowing Appellant to develop it further at
the evidentiary hearing – we find that this claim too is meritless.
“It is well settled that [t]here is no absolute right to an evidentiary
hearing on a PCRA petition, and if the PCRA court can determine from the
record that no genuine issues of material fact exist, then a hearing is not
necessary.” Commonwealth v. Maddrey, 205 A.3d 323, 328 (Pa. Super.
2019) (internal quotations omitted). Where a petitioner seeks the reversal of
a PCRA court's decision to dismiss a petition without a hearing, he must show
that “he raised a genuine issue of fact which, if resolved in his favor, would
have entitled him to relief, or that the court otherwise abused its discretion in
denying a hearing.” Maddrey, 205 A.3d at 328 (quoting Commonwealth v.
Hanible, 30 A.3d 426, 452 (Pa. 2011)). The PCRA court’s decision to dispense
with an evidentiary hearing on an issue is subject to an abuse of discretion
standard of review. See Hanible, 30 A.3d at 452-53.
In this case, Appellant did not raise a genuine issue of that would entitle
him to relief if resolved in his favor. As discussed above, his Brady claim was
based on a letter sent by Warren’s counsel to a prosecutor concerning that
witness’s understanding that the sentencing judge might be lenient if he were
to testify against Appellant. But during the trial, the parties all understood
why Warren was taking the stand, and what he stood to gain. That issue was
thoroughly litigated, and it did not warrant further inquiry in Appellant’s most
recent PCRA proceedings. Thus, the PCRA court did not abuse its discretion
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in denying an evidentiary hearing on this issue, as the claim was barred,
already developed, and ultimately unavailing on the merits.
Appellant’s fourth and final claim is that the PCRA court abused its
discretion in denying postconviction relief based on the testimony of his co-
defendant, Nutta Verdier, who testified at the PCRA hearing that only he and
Warren had perpetrated the shooting, and that Appellant had not taken part
in it. Appellant contends that Verdier’s testimony was after-discovered
evidence which entitles him to a new trial.
Under the PCRA, a claim of after-discovered evidence is a substantive
ground for relief. See Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.
Super. 2015) (citing 42 Pa.C.S.A. § 9543(a)(2)(vi)). To assert such a claim,
the petitioner must plead and prove “[t]he unavailability at the time of trial of
exculpatory evidence that has subsequently become available and would have
changed the outcome of the trial if it had been introduced.” 42 Pa.C.S.A. §
9543(a)(2)(vi). Moreover, the petitioner must also prove that the evidence
could not have been obtained prior to trial through the exercise of due
diligence; the evidence is not cumulative; and the evidence is not being used
solely for impeachment purposes. See Commonwealth v. Burton, 158 A.3d
618, 629 (Pa. 2017).
At an evidentiary hearing, the PCRA court is the factfinder who has the
role of assigning weight to witness testimony and determine its credibility.
See Commonwealth v. Miller, 212 A.3d 1114, 1123 (Pa. Super. 2019)
(quoting Commonwealth v. Roney, 79 A.3d 595, 603 (Pa. 2013)). In that
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role, the PCRA court is free to believe all, part or none of such testimonial
evidence. See Commonwealth v. Mitchell, 105 A.3d 1257, 1277 (Pa.
2014). Inconsistencies in a witness’s testimony, and a witness’s motive to
testify, are matters that ultimately bear on the credibility of that witness. See
id.; see also Commonwealth v. DeJesus, 860 A.2d 102, 107 (Pa. 2004)
(same).
An appellate court may not re-weigh the evidence or substitute its
judgment for that of the factfinder. See id.; see also Commonwealth v.
Devries, 112 A.3d 663, 667 (Pa. Super. 2015). A PCRA court’s assignment
of weight to witness testimony is binding on the reviewing court as long as
that determination is supported by the record. See Mitchell, 105 A.3d at
1077.
In the present case, Appellant testified on his own behalf at an
evidentiary hearing before the PCRA court; he also presented the testimony
of his co-defendant at trial, Verdier, who was found guilty of taking part in the
same underlying incident, making him Appellant’s accomplice. See generally
Commonwealth v. Verdier, No. 2910 EDA 2016 (Pa. Super. filed December
19, 2012) (unpublished memorandum). Verdier gave testimony, which if fully
believed, would have exonerated Appellant of the offenses of which the jury
found him guilty. However, the PCRA court declined to credit Verdier’s
testimony for a number of reasons which are supported by the record.
In its 1925(a) opinion, the PCRA court found that Verdier’s account of
the subject incident differed from his consistent position in the preceding 13
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years that he was innocent of the subject crimes. See PCRA 1925(a) Opinion,
6/10/2024, at 16-17. Verdier had proclaimed his innocence at trial, as well
as direct appeal, postconviction proceedings, and federal habeas proceedings.
None of those efforts were availing. Accordingly, Verdier only abandoned his
assertions of innocence after all potential means of post-verdict relief had
been exhausted, diminishing the weight of his new testimony, which was no
longer against Verdier’s own penal interest, making it less reliable. See id.
Further, Verdier’s testimony at the evidentiary hearing was inconsistent
with the evidence presented at trial which linked Appellant to the attempted
murder of Cobb, and the death and injury of two innocent bystanders. The
PCRA court therefore found Verdier not to be credible because his testimony
at the evidentiary hearing conflicted with his prior claims, and he no longer
had anything to lose by implicating himself for Appellant’s advantage. See
id. As those credibility determinations are supported by the record, they are
binding on this Court, and we cannot find that the PCRA court abused its
discretion in dismissing Appellant’s claim of after-discovered evidence. Thus,
the PCRA court did not err in denying relief as to any of Appellant’s claims,
and the order of dismissal must be upheld.
Order affirmed.
- 19 - J-S04017-25
Date: 5/7/2025
- 20 -