Com. v. Gordon, J.

Opinion

J-S22003-26

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOHN GORDON : : Appellant : No. 1194 EDA 2025

Appeal from the PCRA Order Entered April 4, 2025 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0006008-2011

BEFORE: PANELLA, P.J.E., LANE, J., and BENDER, P.J.E.

MEMORANDUM BY PANELLA, P.J.E.: FILED JULY 1, 2026

John Gordon appeals from the order dismissing his petition filed

pursuant to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. Gordon asserts the court erred in failing to find his trial counsel was

ineffective and in dismissing his two Brady1 claims. After careful review, we

affirm.

We obtained the following factual and procedural history from the

certified record.

On July 18, 2011, Randy Campbell was shot and killed outside an after-

hours club in Delaware County, Pennsylvania. Through investigation, police

identified Gordon as the shooter and issued a warrant for his arrest. Gordon

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1 Brady v. Maryland, 373 U.S. 83 (1963). J-S22003-26

was charged with first-degree murder, third-degree murder, and persons not

to possess firearms.2 The Commonwealth filed a notice of aggravating

circumstances on November 17, 2011, indicating it was seeking the death

penalty. On September 10, 2015, the parties informed the court that they

came to agreement where Gordon would waive his right to a jury trial in

exchange for the Commonwealth not seeking the death penalty. On

September 23, 2015, the court conducted a thorough colloquy with Gordon

and found his waiver of his right to a jury trial voluntarily, intelligently, and

knowingly entered.

A bifurcated bench trial was held, beginning on September 23, 2015,

immediately after Gordon’s colloquy. Trial continued on October 5, 2015,

through October 8, 2015. The court took the matter under advisement and all

parties returned to court on October 15, 2015, for its verdict. The court found

Gordon guilty of first-degree murder and persons not to possess firearms. The

court ordered a pre-sentence investigation and scheduled sentencing for

December 4, 2015. The court sentenced Gordon to life imprisonment without

the possibility of parole and a concurrent five to ten years of incarceration.

Gordon filed a timely post-sentence motion and, after it was denied, a

notice of appeal to this Court. This Court affirmed the judgment of sentence

on August 14, 2017. See Commonwealth v. Gordon, 1088 EDA 2016 (Pa.

2 18 Pa.C.S.A. §§ 2502(a), 2502(c), and 6105, respectively.

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Super. filed Aug. 14, 2017) (unpublished memorandum). The Supreme Court

of Pennsylvania denied Gordon’s petition for allowance of appeal on March 13,

2018. See Commonwealth v. Gordon, 182 A.3d 447 (Pa. 2018).

On May 13, 2019, Gordon filed a timely pro se PCRA petition. The court

appointed counsel who sought multiple extensions of time to file a

supplemental PCRA petition. Gordon then hired private counsel, who entered

his appearance on October 27, 2020. Co-counsel entered her appearance on

May 9, 2022. The court, throughout this time, granted multiple extensions of

time to file a supplemental PCRA petition.

On February 15, 2023, Gordon filed, through counsel, an amended PCRA

petition. The Commonwealth eventually filed a responsive pleading which

requested the court to dismiss the PCRA petition without a hearing. Gordon

responded to the Commonwealth’s response and further sought leave of court

to amend his PCRA petition.

On December 29, 2023, the court entered an order granting leave to

amend and issued a partial notice of intent to dismiss the PCRA petition

without a hearing. The court noted that Gordon failed to comply with multiple

rules regarding the filing of a PCRA petition, including, but not limited to,

failing to attach Gordon’s verification and a signed affidavit or certification of

the planned testimony of any witnesses at an evidentiary hearing. See

Pa.R.Crim.P. 901(B), 902(A)(14), (D). However, the court granted Gordon

leave to fix these deficiencies and noted it would schedule a hearing on some

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claims if the issues were fixed. The court further dismissed Gordon’s Brady

claims without a hearing, finding that both claims were waived because

Gordon could have raised them before, during, and after trial but they were

not raised at that time. The court found that Gordon was aware of the

information prior to trial and as such, no new information was alleged in the

PCRA petition, and it was merely cumulative of what was presented at trial.

Gordon filed a response on January 22, 2024, correcting some of the

errors in his petition, and seeking discovery of the following: the name of the

person who told police that a shooter dropped a red cap near the scene of the

shooting, the grand jury testimony of eyewitness Lori Santos, and information

regarding whether there was a deal with Commonwealth witness Shakeria

Pinnock. The court granted the request for discovery and scheduled an

evidentiary hearing. In response, the Commonwealth informed the court it

had searched its files, which contained no identifying information on the

individual who directed the police to the red cap, and were unclear about

whether Santos ever testified before the grand jury. However, the

Commonwealth turned over discovery in the form of communications and U-

Visa applications between the Commonwealth and Shakeria Pinnock’s

immigration attorney.

At the evidentiary hearing held June 21, 2024, Gordon and his two trial

counsel testified. Relevant to the issues raised in Gordon’s brief, trial counsel

Coley Reynolds testified that he spoke to Gordon about the fact that very few

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people were recently put to death on death row; that death row was still a

horrible place to live; that he had subpoenaed witness Laurie Santos, but

decided not to call her as a witness due to her inconsistent statements; that

the 911 call Laurie Santos made was the better evidence and it was played

for the trial court and admitted as an exhibit; and that he did cross-examine

Shakeria Pinnock regarding her immigration status and may have had only

one letter regarding the U-Visa she applied for but did not have the actual U-

Visa applications found by PCRA counsel in the district attorney’s file. Trial

counsel William Wismer testified that he told Gordon death row is a bad place

to be even though no one has been put to death recently; he discussed with

Gordon how infrequently the death penalty is actually carried out; told Gordon

that there had not been any involuntary executions in Pennsylvania in years;

and that the governor was not signing death warrants. Gordon testified that

he did not know the governor had signed a moratorium on the death penalty

prior to his waiver of his right to a jury trial and if he knew about the

moratorium, he would have proceeded to a jury trial.

At the conclusion of the hearing, the court took the matter under

advisement. Prior to the court issuing its decision, Gordon sought either a

stipulation from the Commonwealth that it did not disclose the U-Visa and

other communications with Pinnock’s immigration attorney prior to trial, or

another evidentiary hearing to present the assigned district attorney who

prosecuted the case at trial. The Commonwealth declined to enter into a

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stipulation, and Gordon requested the court schedule another hearing. Instead

of an evidentiary hearing, the court scheduled oral argument to permit Gordon

to argue “whether [the court should] continue to deny or reconsider the

alleged Brady violation[.]” Order, 8/15/24, at 2. At the conclusion of the oral

argument held on October 4, 2024, the court took the matter under

advisement.

On April 4, 2025, the court entered its order and opinion dismissing

Gordon’s PCRA petition. Gordon filed a timely notice of appeal and complied

with the court’s order to file a Rule 1925(b) statement. See Pa.R.A.P. 1925(b).

On October 20, 2025, the PCRA court authored its Rule 1925(a) opinion. See

Pa.R.A.P. 1925(a). This matter is now ripe for our review.

Gordon raises the following claims for our review:

I. Whether the PCRA court erred as a matter of law and/or abused its discretion in denying [Gordon’s] request for post-conviction relief in finding that [Gordon’s] waiver of his right to a jury trial in exchange for the Commonwealth’s withdrawal of its death penalty certification was made intelligently, knowingly, and voluntarily even though trial counsel failed to inform [Gordon] of the gubernatorial death penalty moratorium?

II. Whether the PCRA court erred as a matter of law and/or abused its discretion in denying [Gordon’s] request for post-conviction relief in finding that trial counsels’ failure to call Ms. Laurie Santos as a defense witness at the trial did not meet the legal standards for ineffective assistance of counsel?

III. Whether the PCRA court erred as a matter of law and/or abused its discretion in denying [Gordon’s] request for post- conviction relief in finding that trial counsel’s examination of Commonwealth witness Shaker[i]a Pinnock met the threshold for effective assistance of counsel?

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IV. Whether the PCRA court erred as a matter of law and/or abused its discretion in denying [Gordon’s] request for post- conviction relief in declining to grant an evidentiary hearing with respect to the below-listed Brady v. Maryland claims?

a. The Commonwealth failed to disclose the name of the witness who reported seeing the shooter drop a red baseball cap in a parking lot near the crime scene; and

b. The Commonwealth suppressed U-VISA application documents, which if made available to [Gordon] and the trial court, would have yielded a different outcome.

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

We begin with our well-established standard and scope of review:

On appeal from the denial of PCRA relief, our standard of review calls for us to determine whether the ruling of the PCRA court is supported by the record and free of legal error. We review questions of law de novo, and our scope of review is limited to the PCRA court’s findings and the evidence of record, viewed in the light most favorable to the Commonwealth as the prevailing party.

Commonwealth v. Johnson, 353 A.3d 609, 627 (Pa. 2026) (footnotes

omitted).

Furthermore, “[t]he PCRA court’s credibility determinations, when

supported by the record, are binding on this Court.” Commonwealth v.

Spotz, 18 A.3d 244, 259 (Pa. 2011) (citation omitted).

Gordon’s first three claims assert his two trial counsel were ineffective:

It is well-settled that counsel is presumed to have been effective and that the petitioner bears the burden of proving counsel’s alleged ineffectiveness. To overcome this presumption, a petitioner must establish that: (1) the underlying substantive claim has arguable merit; (2) counsel did not have a reasonable basis for his or her act or omission; and (3) the petitioner suffered

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prejudice as a result of counsel’s deficient performance, that is, a reasonable probability that but for counsel’s act or omission, the outcome of the proceeding would have been different. A PCRA petitioner must address each of these prongs on appeal. A petitioner’s failure to satisfy any prong of this test is fatal to the claim.

Commonwealth v. Smith, 352 A.3d 111, 116 (Pa. 2026) (citations and

quotation marks omitted).

“With regard to the second, i.e., the reasonable basis prong, we will

conclude that counsel’s chosen strategy lacked a reasonable basis only if

Appellant proves that an alternative not chosen offered a potential for success

substantially greater than the course actually pursued.” Spotz, 18 A.3d at

260 (citation and internal quotation marks omitted).

Gordon first argues counsel was ineffective for failing to inform him of

the gubernatorial death penalty moratorium. See Appellant’s Brief, at 17. He

alleges this failure interfered with his ability to make an informed decision,

thereby causing his waiver to not be voluntarily, intelligently, and knowingly

entered. See id.

The Commonwealth points out that counsel and the court conducted a

thorough colloquy with Gordon regarding his waiver of his right to a jury trial.

See Appellee’s Brief, at 21. Further, the Commonwealth points to both trial

counsels’ testimony at the PCRA evidentiary hearing wherein they stated that

they each had conversations with Gordon regarding how infrequently the

death penalty had been carried out in Pennsylvania. See id. at 22-23. This

advice, the Commonwealth asserts, was constitutionally adequate and counsel

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were not required to advise Gordon of the moratorium in addition to the advice

they gave. See id. at 23-24. Finally, the Commonwealth notes that the PCRA

court found Gordon’s testimony “wholly disingenuous” and not credible. See

id. at 25 (quoting PCRA Court Opinion, 10/20/25, at 63).

The PCRA court found this claim lacked arguable merit. See PCRA Court

Opinion, 10/20/25, at 60. As the court noted: “In particular, both parties

acknowledged that the court’s on-the-record jury trial waiver colloquy

‘covered all of the required topics for a valid waiver of the right to a jury trial.’”

See id. (quoting Gordon’s PCRA petition, 2/13/23, at 10). Notably, the PCRA

court found Gordon lacked credibility in his PCRA hearing testimony. See id.

at 63. The PCRA court further found counsels’ advise to Gordon to waive his

right to a jury trial to remove the possibility of the death penalty reasonably

designed to effectuate Gordon’s interests. See id. at 62. We agree with both

the Commonwealth and PCRA court.

Our Supreme Court has held:

A valid waiver of the right to a jury trial must contain evidence that the accused understood the fundamental essentials of a jury trial which are: 1) that the jury be chosen from members of the community (i.e., a jury of one’s peers), 2) that the accused be allowed to participate in the selection of the jury panel, and 3) that the verdict be unanimous.

Commonwealth v. Miller, 987 A.2d 638, 660 (Pa. 2009) (quotation marks

and citation omitted).

A thorough colloquy was conducted on the record on September 23,

2015. See N.T. Hearing, 9/23/15, at 4-29. Gordon acknowledged his

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awareness that the jury would be chosen from members of the community,

that he would be allowed to participate in selection of the panel, and that the

verdict must be unanimous. See id. at 7-11. The colloquy conducted was

therefore constitutionally valid and Gordon’s resultant waiver of his right to a

jury trial was knowingly, voluntarily, and intelligently entered.

Gordon’s claim that he could not have knowingly, voluntarily, and

intelligently waived his right to a jury trial without knowing of the moratorium

is without merit. While both trial counsel testified at the PCRA hearing that

they did not use the word moratorium in discussing the death penalty with

Gordon, they did explain to Gordon that the governor was not signing death

warrants and no one had recently been put to death in Pennsylvania. See N.T.

PCRA Hearing, 6/21/24, at 21, 23-24, 33-34, 41, 43, 45, 147-50. Gordon

certainly had enough information prior to his waiver to decide if he wanted to

risk the death penalty by proceeding to a jury trial. Counsels’ performance

was constitutionally effective and did not interfere with Gordon’s decision

whether or not to waive his right to a jury trial.

Next, Gordon asserts counsel was ineffective for failing to call Laurie

Santos as a witness at trial. See Appellant’s Brief, at 19-20. Gordon claims

that Santos would have given a description of the shooter that was

“inconsistent with [Gordon] and consistent with the defense theory of

misidentification.” Id. at 20.

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The Commonwealth argues that Santos was never called as a witness

at the PCRA hearing, therefore, Gordon was unable to prove that the lack of

her testimony at trial was prejudicial. See Appellee’s Brief, at 28. Further, the

Commonwealth asserts that “the best, uncontradicted part of any known

testimony that could have been provided by Ms. Santos [on Gordon’s behalf]

was already in the trial record and considered by the finder of fact.” Id. This

testimony came in through the 911 call that Santos made right after the

shooting. See id. On the 911 call, which was admitted at trial and played for

the court, Santos gave a description of the shooter that did not match Gordon.

See id. at 28-29. Finally, the Commonwealth submits that counsel’s decision

not to call Santos as a witness was reasonably designed to effectuate Gordon’s

interests because counsel did subpoena Santos for trial, interviewed her, and

found her to be inconsistent in her statements. See id. at 29-30.

The PCRA court held:

… Gordon’s trial attorney had an eminently reasonable explanation for not calling Ms. Santos as a witness. As he recounted, in his interviews with Ms. Santos there were inconsistencies with what she was telling him versus what she reported on the 911 tape on the night of the incident. The 911 tape not being subject to damaging cross-examination was just better for the defense and the trial prosecutor was willing to stipulate to the recording and its contents.

[Gordon’s] trial counsel relatedly explained the one additional “fact” as to the height of the reported suspect that Ms. Santos allegedly added in a redacted statement to a private investigator was not worth introducing her testimony otherwise given the various additional inconsistencies which would have contradicted what was understandably deemed to be the extremely helpful and agreed to 911 tape. This reasoned decision was made only after

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[Attorney] Reynolds conferred with co-counsel [Attorney] Wismer and again spoke with Ms. Santos in the hallway behind the courtroom. Of course, the pure hearsay private investigator’s report cannot support the contention that trial counsel was ineffective in failing to present Ms. Santos’ testimony.

… Gordon on such a record simply failed to establish that the decision not to present Ms. Santos at trial as a defense witness lacked a rational basis and/or occasioned him to suffer prejudice in that on the relevant record there is simply no reasonable probability [that] had Ms. Santos been called to the stand and testified the trial’s outcome would have been different. …

PCRA Court Opinion, 10/20/25, at 66-67 (citations and record citations

omitted). We find no error in the PCRA court’s analysis.

Our Pennsylvania Supreme Court has held:

There are two requirements for relief on an ineffectiveness claim for a failure to present witness testimony. The first requirement is procedural. The PCRA requires that, to be entitled to an evidentiary hearing, a petitioner must include in his PCRA petition a signed certification as to each intended witness stating the witness’s name, address, date of birth and substance of testimony. The second requirement is substantive. Specifically, when raising a claim for the failure to call a potential witness, to obtain relief, a petitioner must establish that: (1) the witness existed; (2) the witness was available; (3) counsel was informed or should have known of the existence of the witness; (4) the witness was prepared to cooperate and would have testified on defendant’s behalf; and (5) the absence of such testimony prejudiced him and denied him a fair trial.

Commonwealth v. Reid, 99 A.3d 427, 438 (Pa. 2014) (quotation marks and

citations omitted).

Gordon did not meet the procedural requirement nor the fourth and fifth

substantive requirement. Gordon did not include a certification in any of his

petitions or motions with the PCRA court regarding Santos’ proposed

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testimony, even after the PCRA court gave him an opportunity to correct the

error. Gordon then did not call Santos as a witness at the PCRA hearing and

relied exclusively on trial counsel’s testimony. Without Santos’ testimony,

Gordon failed to prove that she was willing to testify on his behalf and that

her testimony would have changed the outcome of trial. See id.; see also

Commonwealth v. Dennis, 950 A.2d 945, 964 (Pa. 2008) (“we find

Appellant has failed adequately to plead and prove his foundational claim of

ineffective assistance of trial counsel with respect to putative alibi witnesses

… because without their testimony Appellant cannot demonstrate prejudice

sufficient to establish ineffectiveness of trial counsel.”).

We further agree with the PCRA court that trial counsel had a reasonable

basis for deciding to not call Santos as a witness. Attorney Reynolds explained

at the PCRA hearing that he did subpoena Santos and she did appear for trial.

See N.T. PCRA Hearing, 6/21/24, at 24. After talking with Santos and

conferring with co-counsel Attorney Wismer, Attorney Reynolds decided not

to call Santos as a witness because her statements were inconsistent. See id.

at 25, 68-69. Attorney Reynolds felt the 911 call that Santos made just after

the shooting was better for defense and was not subject to cross-examination.

See id. at 25, 70-71, 73-74, 79, 81-85. Attorney Reynolds was able to keep

any inconsistencies out of the record by not calling Santos as a witness. See

id. at 84-85. As the PCRA court aptly found, Attorney Reynolds had a

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reasonable basis for his decision not to call Santos as a witness at trial. This

claim therefore does not entitle Gordon to relief.

Next, Gordon argues trial counsel was ineffective for failing to

meaningfully cross-examine Commonwealth witness Shakeria Pinnock

because he did not have the communications between the Commonwealth and

Pinnock’s immigration attorney. See Appellant’s Brief, at 22-23. Gordon

claims “[b]ecause counsel’s examination of Pinnock was fundamentally

compromised by the Commonwealth’s failure to disclose material

impeachment evidence, the PCRA court erred in denying relief on this claim.”

Id. at 23.

The Commonwealth submits that trial counsel was aware of Pinnock’s

immigration status and cross-examined her extensively about it during trial.

See Appellee’s Brief, at 30. Further, although trial counsel initially testified

that he did not have all of the Pinnock communications, he did later

acknowledge he must have had some of them because he cross-examined

Pinnock on a letter from Captain Anthony Paparo regarding Pinnock’s U-Visa

application. See id. at 31. Finally, the Commonwealth asserts Gordon failed

to establish prejudice because the Pinnock communications did not provide

anything new that would have damaged Pinnock’s trial testimony. See id. at

33. Furthermore, Pinnock was not the only eyewitness to identify Gordon as

the shooter. See id. at 33-34. Two other independent eyewitnesses identified

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Gordon as the shooter. See id. Gordon was therefore unable to establish

prejudice. See id. at 34-35.

… According to trial counsel, although he may not have been in possession of a copy of [Pinnock’s] U-Visa application, he was[,] as the material case record reveals[,] very much aware of Ms. Pinnock’s immigration status issue. Armed with that information, … Gordon’s trial attorney extensively questioned and repeatedly challenged Ms. Pinnock. [The PCRA] court’s most recent review of the trial record just did not support a finding that defense counsel’s cross-examination was constitutionally ineffective and/or otherwise actionably deficient.

Being the capable and experienced criminal trial lawyer that he is, when presented at the collateral evidentiary hearing with a copy of the U-Visa application, nonetheless, [Attorney] Reynolds pointed out how he could have possibly bolstered his extensive trial efforts at impeaching Ms. Pinnock with some of the information that he recently [received] from PCRA counsel … . The glaring downside of the alleged newly acquired, previously undisclosed information was it showed that there was no quid pro quo agreement in exchange for Ms. Pinnock’s trial testimony.

Immediately after the murder victim, Randy Campbell, was shot and killed in 2011, Ms. Pinnock positively identified … Gordon as the shooter. At [Gordon’s] trial, Ms. Pinnock’s testimony was largely consistent with the information and statements she promptly gave to police. When she provided her statements and positive identification to law enforcement in 2011, Ms. Pinnock’s 2014 U-Visa application was not even on the horizon. Furthermore, her U-Visa application was approved in August 2015, in advance of [Gordon’s] October 2015 trial. Therefore, any “benefit” allegedly received by Ms. Pinnock clearly post-dated her initial statements to law enforcement and were unrelated to her trial testimony.

***

Trial counsel’s cross-examination clearly was designed, and most certainly did in fact further [Gordon’s] interests. Under these circumstances, [the PCRA] court did not hesitate in concluding any

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additional cross-examination of Ms. Pinnock that could have been conducted by use of the U-Visa application would have been largely cumulative and not of a higher degree and/or quality than that which had been [very ably undertaken] by … Gordon’s attorney at trial … .

Any additional attempts at such further, modest impeachment do not rise to the requisite prejudice needed to obtain a PCRA remedy. Recognizing the compelling direct and circumstantial evidence proving … Gordon’s guilt and given that trial counsel conducted a thorough and most competent cross-examination of this witness, [Gordon] utterly failed to prove that the trial would have had a different result had the actual U-Visa application document in questioning Ms. Pinnock also been employed.

PCRA Court Opinion, 10/20/25, at 67-70 (citation and record citations

We cannot find any error in the PCRA court’s analysis. Our review of the

trial and PCRA transcripts reveals that trial counsel spent considerable time

cross-examining Pinnock on her immigration status. See N.T. Trial, 10/5/15,

at 158-71, 173, 227-30. Trial counsel specifically asked Pinnock about the U-

Visa during cross-examination: “A U-Visa, right? The same thing the

government has given you in exchange for testifying in this case, correct?”

Id. at 167. Seemingly, counsel even knew that the Commonwealth

participated in reviewing her U-Visa application:

Q … Have you had the paperwork renewed a number of times by the Commonwealth, if you know?

A What paperwork? I don’t understand.

Q The U-Visa paperwork?

Id. at 169.

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At the PCRA hearing, trial counsel conceded that the later

communications between the Commonwealth and Pinnock’s immigration

counsel, as well as the U-Visa applications obtained by PCRA counsel,

“would’ve helped to build upon [his cross-examination of Pinnock at trial.]”

N.T. PCRA Hearing, 6/21/24, at 14. However, trial counsel explained that he

knew Pinnock’s immigration attorney was Wayne Sachs and that she was

pursuing a U-Visa prior to trial. See id. at 55, 57, 65. Further, he knew that

the Commonwealth certified that Pinnock was a witness or victim on her U-

Visa prior to trial; this information was brought out on direct examination.

See id. at 59.

We cannot find prejudice considering the thorough cross-examination

and the minor potential additions this evidence would have provided to the

defense. As the PCRA court cogently found, because Gordon was identified by

two other eyewitnesses as the shooter, and the additional evidence did not

contradict anything that Pinnock said at trial, even if a more thorough cross-

examination were completed, “[Gordon] failed to prove that the trial would

have had a different result[.]” PCRA Court Opinion, 10/20/25, at 70. This claim

therefore does not merit relief.

Gordon’s last two claims allege a violation of the dictates of Brady and

its progeny. We begin with the standards surrounding a Brady claim:

It is well-settled that Brady and subsequent precedent flowing therefrom impose upon a prosecutor the obligation to disclose all favorable evidence that is material to the guilt or punishment of

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an accused, even in the absence of a specific request by the accused. This Court has held that, to establish a Brady violation, a defendant has the burden to prove that: (1) the evidence at issue was favorable to the accused, either because it is exculpatory or because it impeaches; (2) the prosecution has suppressed the evidence, either willfully or inadvertently; and (3) the evidence was material, meaning that prejudice must have ensued.

Under Brady, prejudice occurs when a defendant shows a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability does not mean that the defendant would more likely than not have received a different verdict with the evidence; it means only that the likelihood of a different result is great enough to undermine confidence in the outcome of the trial. This Court has held that, as a matter of law, a court reviewing multiple pieces of exculpatory evidence that the prosecution failed to disclose is required to view the effect of the non-disclosures cumulatively.

The Brady obligation extends to information that may be used to impeach prosecution witnesses. Any implication, promise or understanding that the government would extend leniency in exchange for a witness’ testimony is relevant to the witness’ credibility. However, Brady is not violated when the appellant knew or, with reasonable diligence, could have uncovered the evidence in question, or when the evidence was available to the defense from other sources. In order to be entitled to a new trial for failure to disclose evidence affecting a witness’ credibility, the defendant must demonstrate that the reliability of the witness may well be determinative of his guilt or innocence.

Johnson, 353 A.3d 609, 631-32 (Pa. 2026) (citations, quotation marks, and

footnotes omitted).

Gordon first asserts the Commonwealth violated Brady by failing to

disclose the identity of an eyewitness who told police the shooter dropped a

red hat. See Appellant’s Brief, at 26. Gordon next claims the Commonwealth

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suppressed the U-Visa application and communications between it and

Pinnock’s immigration attorney. See id. at 27. Both claims were dismissed

without a hearing below, and Gordon claims this was error because he

“presented colorable Brady claims … [that] require[] credibility

determinations and factual development beyond the existing record.” Id. at

28-29.

The Commonwealth argues both claims are waived because Gordon

knew about both the fact that the Commonwealth certified Pinnock’s U-Visa

application and the lack of identification of who pointed out the red hat to

police prior to trial. See Appellee’s Brief, at 35-36. Because neither of these

claims were raised prior to or at trial, the Commonwealth submits they are

now waived. See id. at 36, 38.

Alternatively, the Commonwealth asserts it did not withhold or suppress

any evidence regarding the red hat. See id. at 39. Prior to trial, it turned over

all police reports regarding the red hat. See id. During the PCRA proceedings,

the PCRA court ordered the Commonwealth to search for and provide any

further evidence regarding the unidentified individual who told police about

the red hat. See id. None was found because police never did obtain the

identity of that person. See id. at 39-40. Therefore, no evidence was

suppressed or withheld. Gordon did not present any evidence that was

contrary to the Commonwealth’s response.

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As to the U-Visa documents, the Commonwealth also submits that it did

not suppress or withhold any evidence because the trial transcript makes it

clear that trial counsel had at least one letter regarding the U-Visa. See id. at

40. Further, even if we were to assume the documents were suppressed, the

Commonwealth asserts the documents are not material. See id. This is

because trial counsel extensively cross-examined Pinnock regarding her

immigration status and because Pinnock was only one of three people who

identified Gordon as the shooter. See id. at 41.

Since Gordon failed to establish any genuine issue of material fact, the

Commonwealth states that the trial court did not err in declining to hold an

evidentiary hearing on these claims. See id. Further, Gordon was given two

opportunities to address these claims—Gordon was permitted to introduce the

U-Visa documents to trial counsel at the evidentiary hearing and question him

about them, and the PCRA court scheduled oral argument to allow Gordon to

argue as to why he believed he was entitled to a further evidentiary hearing.

See id. at 41-42.

The PCRA court found the claims both waived and without merit:

Before trial, at the time of trial, upon the imposition of sentence in the at bar matter on December 4, 2015, and thereafter, [Gordon] did not raise any challenge grounded on purported due process violations based on prosecutorial misconduct and/or an alleged Brady violation, despite already then having the information necessary to advance these claims. No new information has been averred and/or it is merely cumulative to what was already in the defense’s possession at the time of trial and subsequent. These collateral attacks as a present basis for PCRA relief were therefore arguably waived.

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... Gordon’s first Brady claim is the prosecution failed to disclose the name of the witness who told Upper Darby Police Sergeant Anthony Vaughn that a red baseball cap in the parking lot near the crime scene was dropped by the shooter. The red cap was ultimately tested for DNA, and [Gordon’s] DNA was excluded as a contributor to the DNA profile on the hat. The parties stipulated to this exculpatory DNA evidence, and it was unquestionably part of the evidence presented at trial for the court’s factfinding consideration.

What can charitably be described as reasoned speculation, … Gordon hypothesized that law enforcement in fact obtained the name of the person who said she or he saw this shooter drop the red hat and that the prosecution failed to share that information with the defense.

At trial, none of the law enforcement witnesses were asked about the identity of this supposed witness or whether the police in fact had any knowledge of the person’s identity. [Gordon] candidly acknowledged “ … that this Brady claim is different than most.” However, there is simply no substantive basis to believe the prosecution suppressed the identity of this witness and/or that such information would be exculpatory.

[The PCRA] court relatedly observes that statements from PCRA counsel are not sufficient to warrant an evidentiary hearing. A PCRA petitioner must prove[,] by reference to the record, that evidence was withheld or suppressed by the prosecution. Without properly proffered, producible, and admissible evidence, there simply was no basis or reason for holding an evidentiary hearing on this issue.

Finally, … Gordon contends that the prosecution contravened due process by not disclosing consideration offered to Shakeria Pinnock, who was just one of the three (3) identification witnesses at [Gordon’s] trial.

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The consideration referenced in [Gordon’s] petition and attachment, and any pressure brought to bear by the police for Ms. Pinnock to mold her testimony was most extensively [examined] at trial … . There is here just nothing new. Ms. Pinnock during the trial was effectively and comprehensively questioned about her immigration and U-Visa status, and the alleged conversation referenced in [Gordon’s] attached certification … .

… Gordon failed to establish that had the prosecution delivered the information to the defense pretrial, there was a reasonable probability that its production would have caused a different trial outcome. …

PCRA Court Opinion, 10/20/25, at 74-82 (citations, some quotation marks,

and record citations omitted).

Gordon has failed to convince us that the PCRA court committed an error

of law or abused its discretion. Prior to trial, Gordon’s trial counsel was aware

that Pinnock was seeking a U-Visa, who her immigration attorney was, and

that the Commonwealth certified she was a witness or victim on her U-Visa

application. See N.T. PCRA Hearing, 6/21/24, at 57-59. Further, Gordon’s trial

counsel was well-aware of the red hat, its exculpatory value, and the fact that

police did not identify who said the shooter dropped the red hat prior to trial.

See N.T. Trial, 10/7/15, at 148-49. Gordon could have proceeded with these

alleged Brady violations prior to or during trial and failed to do so.

“Significantly, Brady claims are subject to waiver.” Commonwealth v. Holt,

273 A.3d 514, 534 (Pa. 2022). Where a Brady claim could have been raised

at trial or on direct appeal, but was not, the claim is waived on collateral

review. See id.; see also Commonwealth v. Hannibal, 156 A.3d 197, 210

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(Pa. 2016) (finding Brady claim waived because it could have been raised at

trial or on direct appeal).

Gordon could have raised these two Brady claims at trial. He failed to

do so. Gordon does not even attempt to refute the PCRA court’s decision that

these claims are waived in his brief to this Court. See Appellant’s Brief, at 23-

29. We therefore find these claims waived.

Even if we were not to find waiver, we would agree with the PCRA court

that these claims do not merit relief. Gordon simply has not presented any

evidence that the Commonwealth suppressed or withheld the identity of the

person who informed police that the shooter dropped the red hat. Further,

trial counsel extensively cross-examined Pinnock on her immigration status

and she was only one of three eyewitnesses who identified Gordon as the

shooter. Gordon therefore failed to establish this evidence was suppressed or

withheld, and resulting prejudice.

Based upon the foregoing reasons, we affirm the order of the PCRA court

dismissing Gordon’s PCRA petition.

Order affirmed.

Date: 7/1/2026

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