Commonwealth v. Burkhardt

833 A.2d 233, 2003 Pa. Super. 357, 2003 Pa. Super. LEXIS 3183
CourtSuperior Court of Pennsylvania
DecidedSeptember 22, 2003
StatusPublished
Cited by36 cases

This text of 833 A.2d 233 (Commonwealth v. Burkhardt) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Burkhardt, 833 A.2d 233, 2003 Pa. Super. 357, 2003 Pa. Super. LEXIS 3183 (Pa. Ct. App. 2003).

Opinions

OPINION BY

JOHNSON, J.:

¶ 1 On this appeal, we are asked to determine whether the Commonwealth’s failure to disclose a material witness’s subjective expectation of leniency in exchange for that witness’s testimony results in the denial of due process warranting a new trial. We conclude that the supposed understanding of the witness, if established, would be relevant to that witness’s credibility and therefore material. Nevertheless, on the facts presented here, we conclude, had the expectation of leniency been presented to the jury, that it would not have raised a reasonable probability that the result of the trial would have been different. Accordingly, we determine that a new trial is not warranted, and we affirm the denial of post-conviction collateral relief.

¶ 2 On January 12, 1990, a jury convicted George W. Burkhardt of two counts of second degree murder. The Honorable Michael A. Georgelis sentenced Burkhardt to two concurrent life sentences. Burk-hardt filed post-verdict motions which were denied. Following direct appeal, this Court affirmed and our Supreme Court granted, then dismissed, Burkhardt’s petition for allowance of appeal. See Commonwealth v. Burkhardt, 421 Pa.Super. 646, 618 A.2d 26 (1992) (unpublished Memorandum), appeal granted, 534 Pa. 635, 626 A.2d 1155 (1993), dismissed as improvidently granted, 535 Pa. 547, 636 A.2d 1117 (1994).

¶ 3 Burkhardt filed his first petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, on June 20, 1994. The court appointed counsel, a hearing was held, and the court denied relief. Burkhardt appealed and we affirmed. On November 7, 1997, our Supreme Court denied allowance of appeal. See Commonwealth v. Burkhardt, 695 A.2d 434 (Pa.Super.1997) (unpublished Memorandum), appeal denied, 550 Pa. 676, 704 A.2d 634 (1997).

¶ 4 Following an unsuccessful pro se petition for habeas corpus relief pursuant to 28 U.S.C. § 2254, which was rejected by the federal district court, the Court of Appeals for the Third Circuit, and the United States Supreme Court, Burkhardt filed his second PCRA petition on December 3, 1999. The Commonwealth filed its answer after which the trial court stayed proceedings pending final disposition of Burkhardt’s federal appeal. Following a [236]*236hearing on March 29, 2001, and the filing of briefs by both parties, Judge Georgelis denied relief, prompting this present appeal.

¶ 5 In filing his petition on December 3, 1999, Burkhardt invoked an exception contained in the PCRA permitting a filing beyond the standard one-year limitation following the date the judgment of sentence becomes final. See 42 Pa.C.S. § 9545(b)(1). He averred in his petition that the facts upon which his claim is predicated were unknown to him and could not have been ascertained with due diligence prior to November 12,1999, the date upon which Robert Paul O’Neill, a material witness at Burkhardt’s trial, signed an affidavit relating the facts surrounding his testimony at that trial. Such an allegation of after-discovered evidence brings a PCRA petition within the permissible time limitations found in 42 Pa.C.S. § 9545(b)(1)(h) and (b)(2). The distinguished trial judge found the petition to be timely filed, inasmuch as it was filed within sixty days of the date O’Neill executed his affidavit. We accept Judge Georgelis’s finding and proceed to our review of the denial of PCRA relief.

¶ 6 Burkhardt presents the following question for our review:

Was the Appellant deprived of due process of law by the failure to reveal at trial the full extent of the arrangement between key prosecution witness Robert O’Neill and the prosecutor in exchange for trial testimony against this Appellant?

Brief for Appellant at 3.

¶ 7 We begin with our standard of review. ‘We review an order granting or denying PCRA relief to determine whether the PCRA court’s decision is supported by evidence of record and whether its decision is free from legal error.” Commonwealth v. Liebel, 825 A.2d 630, 632 (Pa.2003); see also Commonwealth v. Wilson, 824 A.2d 331, 333 (Pa.Super.2003) (en banc) (same). “Great deference is granted to the findings of the PCRA court, and these findings will not be disturbed unless they have no support in the certified record.” Wilson, 824 A.2d at 333. A second or any subsequent post-conviction request for relief “will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred.” Commonwealth v. Carpenter, 555 Pa. 434, 725 A.2d 154, 160 (1999) (quoting Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107, 112 (1988)). “A petitioner makes a prima fa-cie showing if he ‘demonstrates that either the proceedings which resulted in his conviction were so unfair that a miscarriage of justice occurred which no civilized society could tolerate, or that he was innocent of the crimes for which he was charged.’” Id. (quoting Commonwealth v. Morales, 549 Pa. 400, 701 A.2d 516, 520-21 (1997)); see also Commonwealth v. Palmer, 814 A.2d 700, 709 (Pa.Super.2002) (same). Finally, we remain always cognizant that the formal purpose of the Superior Court is to maintain and effectuate the decisional law of our Supreme Court as faithfully as possible. See Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382, 386 (1985); accord Commonwealth v. Shaffer, 696 A.2d 179, 183 (Pa.Super.1997) (citing Commonwealth v. Fiore, 445 Pa.Super. 401, 665 A.2d 1185, 1193 (1995), reversed on other grounds, 557 Pa. 453, 734 A.2d 840 (1999)).

¶ 8 It is with these stringent standards in mind that we now turn to Burkhardt’s allegations. Burkhardt argues that both his federal and state constitutional rights to due process were violated by the failure to reveal to him at the time of trial that the crucial Commonwealth witness had obtained an arrangement through his attorney that, in exchange for testimony against [237]*237Burkhardt, he would be given “consideration” by the District Attorney (D.A.) in determining the charges to which the witness would be permitted to plead guilty. Brief for Appellant at 7. A brief statement of the facts surrounding Burkhardt’s arrest and prosecution are helpful in placing this contention in context.

¶ 9 In our unpublished Memorandum filed May 12, 1992, at No. 2402 Philadelphia 1991, this Court set forth the following:

On September 17, 1979, Horace Swarr and his sister, Mary Swarr, were found bound and gagged in their home.

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Cite This Page — Counsel Stack

Bluebook (online)
833 A.2d 233, 2003 Pa. Super. 357, 2003 Pa. Super. LEXIS 3183, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-burkhardt-pasuperct-2003.