NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA
:
v. :
:
:
CLARENCE M. PONE :
:
Appellant : No. 641 EDA 2025
Appeal from the PCRA Order Entered March 6, 2025 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0011148-2013
BEFORE: PANELLA, P.J.E., LANE, J., and BENDER, P.J.E. MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 15, 2026 Appellant, Clarence M. Pone, appeals from the order denying his petition for relief under the Post Conviction Relief Act (“PCRA”). 1 He raises ineffective assistance of counsel (“IAC”) claims regarding suppression, discovery, and appellate issues. We affirm.
Appellant was convicted of, inter alia, homicide in the second degree for his participation in a scheme to rob Thomas Watson. The following factual history is adapted from our decision affirming Appellant’s sentence on direct appeal. See Commonwealth v. Pone, 1439 EDA 2019, 2021 WL 1157986 (Pa. Super. filed March 26, 2021).
Watson was a DJ for the Copabanana Club. One of the club’s security guards, co-defendant Ronnie Robinson, heard from co-defendant Larry Nelson
____________________________________________
1 42 Pa.C.S. §§ 9541 – 9546.
that Watson kept large amounts of cash and drugs at his home. On May 11, 2013, Nelson instructed Robinson to call when Watson would be heading home. At approximately 2:00 a.m., Watson texted his friend James Weisbrod for a ride. Weisbrod picked up Watson and Robinson, with the latter informing Nelson of Watson’s impending arrival. Eventually, Weisbrod dropped Watson off at his apartment, which was located above a Häagen-Dazs ice cream shop.
Several minutes later, Weisbrod noticed that Watson had left his DJ equipment outside in the rain. Concerned, he went to check on Watson; however, Appellant blocked Weisbrod from entering the shop and told him to leave. Shortly thereafter, Weisbrod heard gunshots and called 911. Authorities recovered video surveillance from inside the store showing the murder and, through investigation, the authorities identified one of the men depicted on the video as co-defendant Josephe Murray.
Murray was arrested on May 15 and confessed to shooting Watson, explaining that he and Appellant jointly grabbed Watson when he entered the building and dragged him to the back. Murray also implicated Nelson and Robinson, and identified Appellant on the video surveillance as the man barring Weisbrod’s entry.
Appellant was arrested on June 4, 2013, and waived his Miranda2 rights. During questioning, Appellant admitted that Nelson asked him to participate in the robbery in exchange for a cut of the proceeds but claimed
____________________________________________
2 Miranda v. Arizona, 396 U.S. 868 (1969).
3
that the plan was to merely rough up Watson before taking his money. Appellant confirmed that he blocked Weisbrod from entering the building while Murray was alone with Watson.
We now turn to the procedural history leading to the PCRA petition at issue in this appeal. Appellant’s trial counsel, W. Fred Harrison, Jr., Esq., moved to suppress Appellant’s statement on the basis it “was not a voluntary, intelligently made statement.” N.T. Suppression, 2/1/18, at 4. The basis for the claim was that officers threatened to arrest Appellant’s sister if he did not give a statement. Detective Joseph Bamberski, who took Appellant’s statement, agreed on cross-examination that Appellant’s sister had been transported to the police station that same morning, presumably by their fugitive squad. See id. at 28 (“[O]ur fugitive squad would have made arrangements to have her transported down.”). He denied threatening Appellant and the trial court denied the motion.
As relevant to these proceedings, the suppression hearing testimony established that Appellant was arrested at approximately 6:30 a.m. and arrived at the police station about an hour later. Id. at 25-26. Detective Bamberski issued Miranda warnings at 10:50 a.m. and testified that Appellant would have remained in the interrogation room between 7:30 and 10:50. He acknowledged that he did not know if any other detective had contact with Appellant during that time but opined that any contact beyond collecting biographical details would be unusual. Id. at 29.
4
Appellant filed a timely PCRA petition on March 24, 2022, raising three claims. The primary claim rests on his allegation that (1) Detective James Pitts entered the interrogation room during that timeframe, physically assaulted Appellant, and coerced him to give an inculpatory statement to Detective Bamberski, and (2) Appellant told Attorney Harrison of this fact. Appellant faults trial counsel for failing to litigate a motion to suppress centered on this allegation. Related thereto, Appellant notes that the Commonwealth disclosed in pre-trial discovery that Detective Pitts had a history of misconduct and that by the time of trial he was on a “do not call” list.
Before trial started, the trial court asked the parties to address what, if any, evidence concerning Detective Pitts would be admitted. The attorneys for Appellant’s co-defendants all indicated they did not intend to raise any issues regarding Detective Pitts, as the co-defendants’ statements had either already been suppressed or the detective had not participated in the relevant interrogation. Appellant argues that “counsel ineffectively failed to advise the [c]ourt that Det. Pitts had been in the interrogation room alone with the Appellant and that during that time Det. Pitts physically assaulted him in order to ensure that he would tell Det. Bamberski what they wanted to hear.” Appellant’s Brief at 33.
The jurist who presided over the trial, the Honorable Steven R. Geroff, had retired prior to the PCRA hearing and the matter was assigned to the Honorable Scott DiClaudio. The PCRA court held an evidentiary hearing on
5
this claim and a second, discovery-related claim involving surveillance videos. Appellant, the sole witness called, testified that Detective Pitts entered the room by himself and “gripped [him] up by [the] neck” and asked questions about the murder. N.T., 3/6/25, at 7. Appellant told the detective he “wasn’t there at the time of the shooting,” but Detective Pitts “didn’t want to hear that. He said, ‘you’re going to tell me what I want to hear, and he pushed me down.’” Id. Detective Pitts then “punched [him] in [the] face.” Id. Detective Pitts left the room, and Detective Bamberski returned. Appellant said he gave the statement out of fear. Id. at 8.
Appellant testified that he told Attorney Harrison about Detective Pitts’
abuse. Id. at 21. He recalled informing counsel about the abuse during their first meeting, which took place approximately two years before trial. Id. at 23-24. Appellant brought the issue up again “right before trial.” Id. at 24.
Judge DiClaudio explained at length why he deemed Appellant’s testimony not credible. Id. at 56-63. The PCRA court denied the petition and Appellant timely filed a notice of appeal and complied with the order to file a Rule 1925(b) statement. The Honorable Rose Marie DeFino-Nastasi thereafter transmitted the record to this Court without an opinion. See Order, 11/7/25 (single page).3 Appellant presents the following issues on appeal:
I. Did the PCRA [c]ourt err in finding that Appellant’s constitutional rights under the Sixth and Fourteenth Amendments of the U.S.
Constitution and Article 1, sec. 9 of the Pennsylvania Constitution
____________________________________________
3 The PCRA court did not issue a Rule 1925(a) opinion because Judge DiClaudio was suspended by the Court of Judicial Discipline on November 6, 2025.
6
were not violated due to trial counsel’s ineffective failure to investigate and present Appellant’s testimony and other available evidence related to Det. Pitts[’] misconduct history & pattern and practice of coercing/fabricating confessions during the Motion to Suppress Appellant’s inculpatory statement to police and at trial[?]
II. Did the PCRA [c]ourt err in finding that Appellant’s constitutional rights under the Sixth and Fourteenth Amendments of the U.S. Constitution and Article 1, sec. 9 of the Pennsylvania Constitution were not violated due to counsel’s ineffective failure [to] obtain and have the videotaped evidence examined by an expert to determine if it had been altered or manipulated?
III. Did the PCRA [c]ourt err in finding that Appellant’s constitutional rights under the Fourth, Sixth and Fourteenth Amendments of the U.S. Constitution and Article 1, sec. 9 of the Pennsylvania Constitution were not violated due to direct appeal counsel’s ineffective failure to appeal the trial court’s ruling that evidence of misconduct committed by Det. Dove could not be presented by the defense?
Appellant’s Brief at 7 (reordered).
With the exception of the PCRA court’s legal conclusions, our standard of review is deferential:
We view the findings of the PCRA court and the evidence of record in a light most favorable to the prevailing party. With respect to the PCRA court’s decision to deny a request for an evidentiary hearing, or to hold a limited evidentiary hearing, such a decision is within the discretion of the PCRA court and will not be overturned absent an abuse of discretion. The PCRA court’s credibility determinations, when supported by the record, are binding on this Court;
however, we apply a de novo standard of review to the PCRA court’s legal conclusions.
Commonwealth v. Hand, 252 A.3d 1159, 1165 (Pa. Super. 2021) (quoting Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015)).
Suppression claim
7
Appellant’s first claim is that the PCRA court erred in denying his IAC claim regarding Detective Pitts’ alleged abuse.
[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) (citations and quotation marks omitted).
Appellant reiterates his testimony that he informed Attorney Harrison of the abuse and asserts, “[h]ad the evidence about Det. Pitts been presented the Appellant’s statement would have to have been suppressed.” Appellant’s Brief at 44.
Appellant’s arguments largely concern the standard of review, as he recognizes the key consideration is whether, as a matter of fact, he told Attorney Harrison that Detective Pitts abused him. Thus, the critical question is whether Judge DiClaudio’s determination that Appellant was not credible is supported by the record. We conclude that it is.
Returning to our standard of review, “[a] PCRA court passes on witness credibility at PCRA hearings, and its credibility determinations should be provided great deference by reviewing courts.” Commonwealth v.
8
Johnson, 966 A.2d 523, 539 (Pa. 2009). However, we are bound by those findings only “when the record supports them.” Commonwealth v. Franklin, 346 A.3d 812, 820 (Pa. Super. 2025) (citation omitted).
Appellant first argues that the absence of a written opinion hampers our ability to review the PCRA court’s findings, claiming we “can only speculate as to why the PCRA judge in this instance found … Appellant incredible and importantly, how he considered and/or weighed the remaining evidence.” Appellant’s Brief at 26. We disagree. The PCRA court clearly deemed Appellant not credible and set forth its reasons on the record at the hearing. N.T., 3/6/25, at 56-63.
Next, Appellant submits that to the extent the PCRA court did make credibility findings those findings lack record support because the PCRA court relied on generalizations and speculation. Specifically, Appellant points to a comment following an exchange between the PCRA court and Appellant. After Appellant testified that he told Attorney Harrison about the alleged abuse on several occasions, the PCRA court asked, “Did you ever put it in writing?” N.T., 3/6/25, at 24. Appellant answered that he had not. Then, the court asked, “Did you ever put in writing why aren’t we doing a motion to suppress – you knew what a motion to suppress was, right?” Id. at 26. Appellant replied, “I didn’t -- I just found out. I don’t know too much about--”. Id. The PCRA court expressed skepticism, suggesting that “when [Appellant] got to prison ... those words kind of get out like every 15 minutes, right?” Id. at 26.
9
Appellant and the PCRA court went back-and-forth, concluding with the following exchange:
[Appellant]: I didn’t -- when I first -- as I said before, Your Honor, I know nothing about -- I didn’t know nothing about the law.
THE COURT: I got it. When you got – when you met the detective and he supposedly beat you, you knew nothing about the law. But at some point, when you’re in prison for a year or two awaiting trial, somebody had to tell you like you got to tell somebody this guy beat me. And somebody will say, yo you got to get that shit suppressed. That had to happen in a year or two, right? Or it never happened? Or maybe it didn’t happen?
[Appellant]: It never happened.
THE COURT: It never happened? Nobody -- you are the only guy in the history of prison who has never heard of a motion to suppress or not having your statement used if you got beat. Okay.
Next question.
Id. at 27-28. Citing these comments, Appellant avers that the PCRA court “apparently believed that all criminal pre-trial defendants automatically know what Motions to Suppress are and what their rights are related to them.” Appellant’s Brief at 25. Appellant maintains that the PCRA court’s credibility determination was therefore based on “conjecture or subjective impressions” and is accordingly unsupported by the record. Id. at 26.
The PCRA court’s comments, while perhaps intemperate, must be assessed in context. This exchange occurred after the PCRA court asked Appellant if he ever wrote to Attorney Harrison to inquire about a motion to suppress, i.e., the PCRA court wanted to know if there was any evidence to corroborate Appellant’s testimony. The PCRA court used the legal term of art for excluding evidence and then expressed disbelief, based on the particular
10
circumstances of Appellant’s lengthy incarceration, that Appellant had not heard of a motion to suppress.
Regardless of whether the PCRA court’s commentary was appropriate, the salient point is that the PCRA court did not base its credibility assessment on this isolated point. Notably, preceding these comments Appellant had testified that he did not recall being present for the motion to suppress the statement. N.T., 3/6/25, at 12. Appellant repeated this point:
Q. Did Mr. Harrison discuss with you what was going to happen at the suppression hearing?
A. No, he -- I never -- I never was at a suppression hearing. He never --
THE COURT: Say that again? You were never at a suppression hearing?
[Appellant]: I don’t think -- I don’t think I was there.
THE COURT: That can’t be right.
[Appellant]: I don’t think I was there.
THE COURT: That can’t be right. Judges don’t do suppression hearings without defendants, last I checked. I’ve never heard of one. He was present, right?
Id. at 16.4 The PCRA court then observed that if Appellant could not remember being present for a proceeding that involved a critical part of his case, that failure casts doubt on his ability to recall what he told Attorney Harrison. Id.
____________________________________________
4 The Commonwealth cited the transcript, which showed that while Appellant
did not speak at the hearing, the record reflected that Detective Bamberski identified Appellant as being present in court. N.T., 3/6/25, at 17.
11
at 17 (“It’s a motion to suppress. It’s the most important thing in your case. Him not remember[ing] being there calls into question how good his memory could possibly be.”).
That point factored into the PCRA court’s determination, as did Appellant’s failure to mention Detective Pitts’ alleged abuse at his jury trial. “If I can’t believe him, which I can’t, he can’t sustain that burden, it must be denied. … It’s [difficult] to believe a lot of the things he said, but the worst part of it is his changing of his own theory on why the police shouldn’t be believed.” Id. at 58. At the PCRA hearing, the Commonwealth asked Appellant why, during his trial testimony, he merely alleged that the authorities threatened to charge his sister. Appellant asserted that he did, in fact, mention Detective Pitts’ abuse.
Q. Mr. Pone, did you testify at trial?
A. Yes, I did.
Q. Okay. At trial did you ever mention that Detective Pitts allegedly attacked you?
A. Yes, I did.
Q. Did you?
A. Yes.
Id. at 46. The PCRA court showed Appellant the transcript, which contained no reference to Detective Pitts’ alleged assault.
THE COURT: Nothing about they beat me, they hit me, they punched me, they threw me to the ground. It appears you testified under oath the only reason you signed it [is] because they threatened you with your sister, right?
12
[Appellant]: But, Your Honor --
THE COURT: Yes or no?
[Appellant]: Yes.
THE COURT: Is there anything in there about they hit you, kicked you, punched you, or did anything like that?
[Appellant]: Yes.
THE COURT: Why?
[Appellant]: It should -- it should be because I --
THE COURT: All right. So you’re saying now that the court reporter left your words out, yes?
[Appellant]: I don’t -- I guess so if it’s not there.
Id. at 50.
We find that the PCRA court’s credibility finding is amply supported by the record. Accordingly, our resolution of this ineffectiveness claim is straightforward. “Arguable merit exists when the factual statements are accurate and could establish cause for relief. Whether the facts rise to the level of arguable merit is a legal determination.” Commonwealth v. Urwin, 219 A.3d 167, 172–73 (Pa. Super. 2019) (quoting Commonwealth v. Barnett, 121 A.3d 534, 540 (Pa. Super. 2015)). Here, the record supports the PCRA court’s determination that Appellant did not tell Attorney Harrison that Detective Pitts abused him, thus there is no arguable merit to the claim trial counsel ineffectively failed to seek suppression on that basis. See Commonwealth v. Little, 246 A.3d 312, 323 (Pa. Super. 2021) (“The PCRA court may deny an ineffectiveness claim if the petitioner’s evidence fails to meet a single one of these prongs.”) (quotation marks and citation omitted).
13
For the same reasons, we reject Appellant’s related claim that Attorney Harrison ineffectively failed to investigate other instances of abuse committed by Detective Pitts. “Counsel ... apparently did no investigation into Det. Pitts despite the fact that he was aware that Appellant was alleging that Pitts used physical and psychological force to obtain a false inculpatory statement.” Appellant’s Brief at 31. Again, the factual record does not support that trial counsel was aware of the allegation.
Finally, Appellant submits that trial counsel ineffectively failed to call him to testify at the suppression hearing. “There was no reasonable, rational evidentiary basis for counsel to advise that Appellant not testify at the suppression hearing.” Appellant’s Brief at 28. Citing Commonwealth v. Walker, 110 A.3d 1000 (Pa. Super. 2015), Appellant submits that the prejudice inquiry is simply “whether the result of the waiver proceeding would have been different absent counsel’s ineffectiveness (i.e. whether the defendant would have chosen to take the stand) not whether the outcome of the trial itself would have been more favorable had the defendant taken the stand.” Id. at 30.
We conclude that Appellant cannot establish prejudice. Due to our rejection of the underlying claim of ineffectiveness, the proffered testimony concerning Detective Pitts would have no bearing on the issue actually pursued by counsel. Thus, there is no reasonable probability that the outcome would be any different.
14
Furthermore, we reject Appellant’s argument that the prejudice inquiry is simply whether Appellant would have testified without reference to the actual issue presented. Even accepting the doubtful proposition that Appellant had an absolute right to testify at a pre-trial suppression hearing, 5 Appellant does not cite any incorrect advice given by Attorney Harrison. This argument is therefore simply an attempt to circumvent the credibility finding, as Appellant claims he wanted to testify about Detective Pitts’ abuse and would have done so. However, as detailed supra, he and Attorney Harrison never discussed that topic.
Discovery claim
____________________________________________
5 Appellant cites Walker, a case dealing with a defendant waiving his right to
testify at trial, not a pre-trial proceeding. Counsel in that case incorrectly advised Walker that the Commonwealth could impeach him with his prior convictions for dealing drugs. Thus, the context is quite different.
The “United States Supreme Court has identified four decisions that are fundamental to a criminal case, such that counsel may not choose a course of action with respect to them until first obtaining the express consent of the defendant,” Commonwealth v. Mason, 130 A.3d 601, 667 (Pa. 2015), one of which is whether to “testify in his or her own behalf.” Id. (quoting Jones v. Barnes, 463 U.S. 745, 751 (1983). But the Court has not specifically held that this fundamental right extends beyond the actual trial. While we have not found any case directly on point in this Commonwealth, other courts have held that whether the defendant testifies at a pre-trial hearing is within the exclusive control of the attorney’s professional judgment. See, e.g., People v. Krueger, 296 P.3d 294, 301 (Colo. App. 2012) (“Because the strategic decision whether to request a suppression hearing belongs to counsel, rather than the defendant, it stands to reason that the decision whether to present defendant’s testimony at any such hearing is also counsel’s.”). See Commonwealth v. Rosendary, 313 A.3d 236, 244 n.9 (Pa. Super. 2024) (stating “This Court may cite to the decisions of other states for persuasive authority”).
15
Appellant’s second claim alleges that trial counsel ineffectively failed to request several videos in discovery. Appellant testified at the PCRA hearing that during a proffer session he was shown surveillance video from Häagen- Dazs depicting him in a red Nike hat, like the one recovered following the execution of a search warrant at his residence. The Commonwealth “later conceded that at the time of the crime defendant had been wearing a black hat as reported by Mr. Weisbrod.” Commonwealth’s Brief at 4. The video shown at trial was in black-and-white.
Appellant knew that he “had on a black Nike baseball cap” the night of the murder. N.T., 3/6/25, at 35. According to Appellant, he immediately alerted Cynthia Ann Thornton, Esq., who was then representing him, of the discrepancy. See N.T., 3/6/25, at 36 (asserting that “the red Nike hat that was taken from my house was in the proffers video” and that he told “Cynthia Ann Thornton that that’s not me in the video because I did not have on a red hat”). Upon meeting Attorney Harrison, Appellant “advised his attorney that he believed that the videotape that had been shown at the preliminary hearing[6] had been modified and would be different than the raw footage.” Amended PCRA Petition, 3/24/22, at 45-46 (unnumbered). “[Appellant] specifically asked counsel to obtain the raw video and to have an expert review it and the video he had seen at the preliminary hearing.” Id. at 46
(unnumbered). Attorney Harrison “ineffectively failed to obtain the raw
____________________________________________
6 It is not clear from the testimony whether the “proffer video” and the “preliminary hearing video” are the same video.
16
footage and have it reviewed by an expert.” Id. In conjunction with this claim, Appellant requested discovery, asking the PCRA court to
order the Commonwealth to disclose the raw video footage obtained from the Haagen Daz [sic] security cameras, the videotape shown to the witnesses during their interrogations, the videotape that was played at the preliminary hearing and the videotape that was shown at trial. Upon receipt of that data Petitioner intends to retain an appropriate forensic video expert to review the data, draft a report and if necessary, testify at a hearing.
Id. at 46-47 (unnumbered).
The Commonwealth replied that the “raw footage was apparently lost at some point before trial” and that “PCRA counsel was permitted to review the DAO [District Attorney Office] file and the police H[omicide] file” in April of 2023, i.e., after the amended petition was filed. Commonwealth’s Answer, 3/27/24, at 24. Appellant has not challenged the Commonwealth’s representation.
The PCRA hearing encompassed this claim, and Appellant testified consistently with the preceding assertions, namely, that the Commonwealth manipulated the videos. The PCRA court did not specifically address Appellant’s testimony concerning this topic, nor did it explicitly rule on the discovery request.
While framed as an IAC claim, Appellant concedes that any such claim based on the failure to obtain the video is premature since Appellant first needs to prevail on his discovery claim. “Should the expert review of the videotape show that it was altered/manipulated, [Appellant] would have the
17
basis for supplementing the instant claim that trial counsel was ineffective for failing to obtain the raw data and expert review.” Appellant’s Brief at 68. Appellant therefore asks that we “remand with instructions for the PCRA [c]ourt to grant the discovery motion” and allow Appellant to seek leave to amend “after discovery and expert review of the raw video data is complete.” Id. at 69. We find that no purpose would be served by remand.
Because this is not a death penalty case, Rule of Criminal Procedure 902(E)(1) applies, which states that “no discovery shall be permitted at any stage of the proceedings, except upon leave of court after a showing of exceptional circumstances.” Discovery is not warranted if the petitioner “is asking for nothing more than a fishing expedition.” Commonwealth v. Reid, 99 A.3d 427, 445 (Pa. 2014). In Reid, the petitioner alleged that the Philadelphia District Attorney’s Office “had a ‘policy and practice of providing significant Commonwealth witnesses in homicide prosecutions free housing and cash stipends, especially where the witness is perceived as unreliable, either because reluctant to testify or a drug addict (both of which applied to Morris Dozier).’” Id. at 444 (quoting Reid’s brief). Reid sought discovery of those items with respect to Dozier, which the PCRA court denied. Similar to Appellant’s allegations here, Reid maintained that he could not proceed on his substantive theories for relief under Brady v. Maryland, 373 U.S. 83 (1963), and/or ineffective assistance of counsel without that discovery. Id. at 445. Our Supreme Court affirmed the denial of discovery because “[Reid], in his PCRA petitions, as amended, only ‘believes and alleges’ that Dozier received
18
considerations. This is insufficient to permit discovery, or to form the basis for a Brady claim.” Id. Moreover, “as [Reid] fails to provide even a minimal basis for his claim, [he] is asking for nothing more than a fishing expedition.” Id.
Appellant’s request for discovery is even less compelling than that exhibited in Reid.7 Appellant’s discovery request presumes that the “raw video data” is in the Commonwealth’s possession. The Commonwealth represented that the footage was lost and provided PCRA counsel with access to its files as well as the police homicide file. Appellant does not argue that this claim is incorrect or that the Commonwealth stymied Appellant’s review in any way. The courts cannot force the Commonwealth to disclose that which does not exist.
Additionally, the only evidence that any video was manipulated comes solely from Appellant’s testimony, which the PCRA court declined to credit. We add that Appellant’s testimony indicated that Attorney Thornton was present at the proffer session. Appellant did not call Attorney Thornton to corroborate whether his assertion that the surveillance video shown during the proffer session depicted him in a red hat. Appellant also indicated that Gina Copuano, Esq., represented Appellant at a preliminary hearing at which the (allegedly) modified video was shown; again, Appellant failed to call that
____________________________________________
7 The petition in Reid was a first, counseled petition in a capital case and involved the more favorable standard of allowing discovery “upon leave of court after a showing of good cause.” Pa.R.Crim.P. 902(E)(2).
19
attorney or any other witness. N.T., 3/6/25, at 31. As in Reid, Appellant has offered nothing more than a belief that the sought items exist. The PCRA court would abuse its discretion if it granted discovery under these circumstances. Therefore, no purpose would be served by a remand.
Ineffective assistance of appellate counsel Appellant’s third and final claim alleges that direct appeal counsel ineffectively failed to pursue a preserved claim seeking introduction of evidence regarding Detective Ronald Dove’s misconduct. This claim was pursued by co-defendant Murray, and Appellant joined the motion. Murray raised the issue in his direct appeal, and our opinion in that case aptly discusses the relevant history and basic theory:
[Murray] posits that the trial court abused its discretion by precluding him from introducing evidence that Detective Dove, a detective involved in the investigation underlying this case, was convicted of tampering with or fabricating evidence in an unrelated homicide investigation. We hold that the trial court properly excluded this evidence.
Joseph Bamberski, an officer with eighteen years’ experience, was selected as the assigned detective for the case. On May 13, 2013, he executed a search warrant at [Murray]’s residence at 5706 Reedland Street, along with three fellow officers, Detective Burns, Detective Harkins, and Detective Dove. During this search, the officers recovered a pair of camouflage shorts that resembled clothing [Murray] was seen wearing in the surveillance video while attacking Watson. Detective Bamberski stored the shorts in a drawer under his control in the Homicide Unit and produced them prior to trial. A few days later, Detective Bamberski executed a separate warrant at the home of co-defendant Pone and recovered two letters providing proof of Pone’s residency and a Nike hat that resembled clothing Pone was seen wearing in the surveillance video while attacking the victim. Afterward, while filling out paperwork, Detective Dove accidently wrote “one red Nike hat”
20
and “two letters” in the property seized section on the face of the warrant for [Murray’s] house instead of Pone’s house. When Detective Bamberski pointed out the error, Detective Dove crossed out what he had written.
The following year, Detective Dove became personally involved in an unrelated homicide matter in which his girlfriend was the principal suspect. In an effort to protect her, he hid evidence implicating her and lied to the police. In 2017, he pled guilty to charges including hindering apprehension, tampering with evidence, and unsworn falsification to authorities.
Commonwealth v. Murray, 248 A.3d 557, 573–74 (Pa. Super. 2021) (citations to transcript omitted).
The Murray panel held that the trial court did not err in denying the motion. The panel explained that “pertinent case law permits a police witness to be cross[-]examined about misconduct as long as the wrongdoing is in some way related to the defendant’s underlying criminal charges and establishes a motive to fabricate.” Id. at 574 (quoting Commonwealth v. Bozyk, 987 A.2d 753, 757 (Pa. Super. 2009)). We held that the trial court did not abuse its discretion in excluding the evidence:
The Commonwealth proved its case through, inter alia, thirteen police witnesses other than Detective Dove. Neither the Commonwealth nor the defendants asked Detective Dove to testify. Furthermore, the execution of the search warrants at [Murray’s] and Pone’s residences took place in May 2013.
Detective Dove’s crimes took place approximately one year later in a completely unrelated homicide investigation involving his girlfriend. There is no evidence in the present case that Detective Dove was romantically involved with the victim’s murderer or that he sought to conceal inculpatory evidence, as he later did to protect his girlfriend in the unrelated case. Under these circumstances, this evidence had limited probative value (if any), and its potential for prejudice outweighed its probative value.
Murray, 248 A.3d at 575.
21
Appellant challenges direct appeal counsel’s failure to pursue the same evidentiary issue on direct appeal. We recently described an appellant’s burden as follows:
In Commonwealth v. Paddy, then-Chief Justice Castille explained the application of the IAC test in these circumstances.
With a stand-alone claim, the entire focus is upon the performance of appellate counsel .... To prevail, the PCRA petitioner must show exactly how appellate counsel was ineffective, by offering additional evidence or controlling authority, missed by direct appeal counsel, that would have changed the appeal outcome; or by specifically alleging the winning claim or distinct legal theory that appellate counsel failed to recognize; and then by showing how the appeal, as pursued, was incompetent by comparison.
Commonwealth v. Paddy, 15 A.3d 431, 476 (Pa. 2011)
(Castille, C.J., concurring). See also Commonwealth v.
Koehler, 36 A.3d 121, 142 (Pa. 2012) (“To succeed on such a claim, a PCRA petitioner must demonstrate that appellate counsel was ineffective in the manner by which he litigated the claim on appeal.”) (citing Paddy concurrence).
Commonwealth v. Litvinov, 1051 MDA 2025, 2026 WL 2032562, at *6 (Pa. Super. filed July 14, 2026) (unpublished memorandum). 8 We find Appellant has failed to establish prejudice. Appellant must show the claim appellate counsel failed to pursue was so strong that no competent attorney would choose to forego the forfeited claim in favor of the issues
____________________________________________
8 We may cite non-precedential decisions issued after May 1, 2019 for their persuasive value. Pa.R.A.P. 126(b)(1).
22
raised.9 Id. Appellant develops at length an argument that Detective Dove made numerous errors during the execution of search warrants and that these “significant discrepancies with those warrants and the related property receipts ... render the evidence seized inherently unreliable, violating both the Fourth Amendment and the Fourteenth Amendment.” Appellant’s Brief at 51.
Appellant’s invocation of the Fourth Amendment, with no further development, is confusing. As the Murray panel explained, the trial court’s ruling involves a garden-variety application of weighing the probative value of misconduct against its prejudicial effect, which has nothing to do with the Fourth Amendment.
Turning to other authorities, Appellant asserts that “Commonwealth v. Williams, 215 A. 3d 1019 (Pa. Super. 2019) is instructive. In Williams, like the case at bar, the history of the officer’s misconduct would have undermined the testimony of the only affiant on the application for a search warrant.” Appellant’s Brief at 60. In Williams, “[t]he Commonwealth presented testimony from a single witness, former Philadelphia Police Officer Reginald Graham.” Williams, 215 A.3d at 1022. Williams filed a PCRA petition, “alleg[ing] he recently discovered serious allegations of misconduct against former Officer Graham.” Id. The Commonwealth agreed that Williams
____________________________________________
9 The PCRA court did not permit an evidentiary hearing on this claim, and appellate counsel therefore did not testify to his strategic decisions. That said, Appellant’s petition did not list appellate counsel as a witness.
23
should receive a new trial, but the PCRA court denied the petition and Williams appealed. We reversed.
We disagree that Williams is on point. The defendant’s guilt in that case rested on Graham, whereas here “[t]he Commonwealth proved its case through, inter alia, thirteen police witnesses other than Detective Dove.” Murray, 248 A.3d at 575. Additionally, the Commonwealth represented in Williams that “if Graham were called to testify at a new trial, the Commonwealth asserts it would have an affirmative duty to correct the testimony of a witness which [the prosecutor] knows to be false.” Id. at 1028 (quotation marks omitted; bracketing in original). Thus, the case involved a scenario where the Commonwealth concluded that it could not prove the defendant’s guilt beyond a reasonable doubt. In contrast, the Commonwealth did not call the detective as a witness at Appellant’s trial and its case therefore did not turn on Detective Dove.
We agree with the Murray panel’s fundamental point that Detective Dove’s misconduct in a completely unrelated matter has no apparent connection to the Watson investigation. Murray, 248 A.3d at 575 (“There is no evidence in the present case that Detective Dove was romantically involved with the victim’s murderer or that he sought to conceal inculpatory evidence, as he later did to protect his girlfriend in the unrelated case.”) Appellant’s argument does not address that point, and we conclude that Appellant has failed to show a reasonable probability that the panel would have granted relief had appellate counsel pressed the claim on appeal.
24
Order affirmed.
Date: 9/15/2026