Commonwealth v. Natividad, R., Aplt.
Opinions
JUSTICE DOUGHERTY
This is a direct capital appeal from an order dismissing a petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541 - 9546, following an evidentiary hearing limited to one issue.1 Appellant Ricardo Natividad presents the Court with multiple challenges pursuant to Brady v. Maryland ,
I. Background
We previously set forth the underlying facts in our opinion affirming the judgment of sentence. Commonwealth v. Natividad ,
The evidence presented at trial established appellant's involvement in certain activities beginning at 2:00 a.m. on November 9, 1996 and continuing through to approximately 11:00 p.m., November 9, 1996. About 2:00 a.m. on November 9, 1996, Michael Havens stopped to get a sandwich at Philly's Famous Cheesesteaks at the intersection of Island and Elmwood Avenues in Philadelphia. Upon returning to his car with the sandwich, Mr. Havens was approached by two men. Mr. Havens'[s] car was a dark blue Lincoln that he recently had purchased. As Mr. Havens was entering the combination to unlock the front driver's door of the Lincoln, appellant interrupted Mr. Havens by pointing a stainless steel revolver *15with rubber grips at him. Another man, acting in concert with appellant, approached Mr. Havens at the same time, standing behind him while appellant faced him with the gun. Mr. Havens gave his wallet and car keys to appellant. Appellant ordered Mr. Havens into the car. When Mr. Havens hesitated, appellant threatened to kill him in the parking lot if he refused to get into the car.
Mr. Havens sat in the back seat of the car. Appellant sat in the front seat of the car on the passenger side. Appellant sat facing Mr. Havens, with the gun aimed at Mr. Havens throughout the time they were in the car. Appellant's accomplice drove the vehicle. Over the next fifteen to twenty minutes, appellant repeatedly threatened to shoot Mr. Havens while demanding more money from him. Mr. Havens gave appellant and his accomplice the cash from his pocket and begged to be released from the vehicle. Appellant requested Mr. Havens'[s] money access card and that Mr. Havens access the account to get them additional funds. Mr. Havens responded that there was no money in the account as he had just paid bills. Appellant continued to threaten Mr. Havens with the firearm. Finally, the men pulled the car to the side of the road. Mr. Havens was ordered out of the car and told to prepare to die by appellant. Appellant directed Mr. Havens to turn his back and remain standing. While Mr. Havens complied, appellant fled. Upon realizing that he was alone, Mr. Havens walked to a nearby store, called for assistance and reported the incident to police.
At approximately 7:00 p.m. on the evening of November 9, 1996, appellant, driving a blue Lincoln, met his friend, Byron Price, near 60th and Catherine Streets in Philadelphia. Mr. Price testified that this was the first time he had seen appellant in possession of a dark blue Lincoln. The two men planned to spend the evening together watching a boxing match. Mr. Price sat in the passenger seat of the Lincoln; appellant drove. Appellant pulled the car into an EXXON gasoline station at the corner of 60th and [Vine] Streets. Appellant told Mr. Price to wait. While sitting in the car, Mr. Price heard a gunshot. Appellant ran back to the car with a chrome revolver in his hand. Mr. Price noticed that a man he had formerly observed standing by a car in the gas station was now lying on the ground. Dropping the gun in his lap, appellant quickly made a U-turn out of the EXXON station and sped away on 60th Street. Mr. Price asked appellant why he shot the man. Appellant replied, "he drew on me."
Mr. and Mrs. Johnson had been leaving their home across the street from the EXXON station at the time of the shooting. They were unable to identify appellant; however, they testified that the shooter left the EXXON station in a dark Lincoln. They each, independently, testified to the following observation: the victim raised his hands in the air and then fell backwards at the same time that a gunshot was heard. The shooter was wearing a lumberjack style jacket at the time of the incident. After the gunshot, the shooter jumped into the driver's side of a dark Lincoln and sped away on 60th Street.
On November 11, 1996, Philadelphia police recovered a dark blue Lincoln that had been abandoned and set on fire. From the trunk of the car, the police recovered a lumberjack style jacket. Mr. Havens identified the burnt Lincoln as the car appellant had stolen from him at gunpoint on the morning of November 9, 1996. Mr. Havens also identified the jacket recovered from the trunk of the *16car as his own jacket that he had left in the car at the time of the robbery.
The day after the murder, appellant made statements to several of his acquaintances taking credit for having shot the man at the EXXON station. Several weeks after the incident, appellant approached his friend Keith Smith while Mr. Smith was helping Carl Harris wash Mr. Harris's car. Mr. Harris testified that he observed Mr. Smith and appellant engage in a conversation, out of his hearing, and then walk around the corner from where Mr. Harris was standing. When Mr. Smith returned after parting from appellant, Mr. Smith had in his possession a chrome .357-Magnum firearm. Sometime in December of 1996, Mr. Smith gave a .357 revolver to his attorney, Mr. Spina. Attorney Spina immediately notified Philadelphia homicide detectives that he had the gun in his possession. The homicide detectives recovered the revolver from Mr. Spina's office and turned it over to the Philadelphia crime lab for testing.
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JUSTICE DOUGHERTY
This is a direct capital appeal from an order dismissing a petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541 - 9546, following an evidentiary hearing limited to one issue.1 Appellant Ricardo Natividad presents the Court with multiple challenges pursuant to Brady v. Maryland ,
I. Background
We previously set forth the underlying facts in our opinion affirming the judgment of sentence. Commonwealth v. Natividad ,
The evidence presented at trial established appellant's involvement in certain activities beginning at 2:00 a.m. on November 9, 1996 and continuing through to approximately 11:00 p.m., November 9, 1996. About 2:00 a.m. on November 9, 1996, Michael Havens stopped to get a sandwich at Philly's Famous Cheesesteaks at the intersection of Island and Elmwood Avenues in Philadelphia. Upon returning to his car with the sandwich, Mr. Havens was approached by two men. Mr. Havens'[s] car was a dark blue Lincoln that he recently had purchased. As Mr. Havens was entering the combination to unlock the front driver's door of the Lincoln, appellant interrupted Mr. Havens by pointing a stainless steel revolver *15with rubber grips at him. Another man, acting in concert with appellant, approached Mr. Havens at the same time, standing behind him while appellant faced him with the gun. Mr. Havens gave his wallet and car keys to appellant. Appellant ordered Mr. Havens into the car. When Mr. Havens hesitated, appellant threatened to kill him in the parking lot if he refused to get into the car.
Mr. Havens sat in the back seat of the car. Appellant sat in the front seat of the car on the passenger side. Appellant sat facing Mr. Havens, with the gun aimed at Mr. Havens throughout the time they were in the car. Appellant's accomplice drove the vehicle. Over the next fifteen to twenty minutes, appellant repeatedly threatened to shoot Mr. Havens while demanding more money from him. Mr. Havens gave appellant and his accomplice the cash from his pocket and begged to be released from the vehicle. Appellant requested Mr. Havens'[s] money access card and that Mr. Havens access the account to get them additional funds. Mr. Havens responded that there was no money in the account as he had just paid bills. Appellant continued to threaten Mr. Havens with the firearm. Finally, the men pulled the car to the side of the road. Mr. Havens was ordered out of the car and told to prepare to die by appellant. Appellant directed Mr. Havens to turn his back and remain standing. While Mr. Havens complied, appellant fled. Upon realizing that he was alone, Mr. Havens walked to a nearby store, called for assistance and reported the incident to police.
At approximately 7:00 p.m. on the evening of November 9, 1996, appellant, driving a blue Lincoln, met his friend, Byron Price, near 60th and Catherine Streets in Philadelphia. Mr. Price testified that this was the first time he had seen appellant in possession of a dark blue Lincoln. The two men planned to spend the evening together watching a boxing match. Mr. Price sat in the passenger seat of the Lincoln; appellant drove. Appellant pulled the car into an EXXON gasoline station at the corner of 60th and [Vine] Streets. Appellant told Mr. Price to wait. While sitting in the car, Mr. Price heard a gunshot. Appellant ran back to the car with a chrome revolver in his hand. Mr. Price noticed that a man he had formerly observed standing by a car in the gas station was now lying on the ground. Dropping the gun in his lap, appellant quickly made a U-turn out of the EXXON station and sped away on 60th Street. Mr. Price asked appellant why he shot the man. Appellant replied, "he drew on me."
Mr. and Mrs. Johnson had been leaving their home across the street from the EXXON station at the time of the shooting. They were unable to identify appellant; however, they testified that the shooter left the EXXON station in a dark Lincoln. They each, independently, testified to the following observation: the victim raised his hands in the air and then fell backwards at the same time that a gunshot was heard. The shooter was wearing a lumberjack style jacket at the time of the incident. After the gunshot, the shooter jumped into the driver's side of a dark Lincoln and sped away on 60th Street.
On November 11, 1996, Philadelphia police recovered a dark blue Lincoln that had been abandoned and set on fire. From the trunk of the car, the police recovered a lumberjack style jacket. Mr. Havens identified the burnt Lincoln as the car appellant had stolen from him at gunpoint on the morning of November 9, 1996. Mr. Havens also identified the jacket recovered from the trunk of the *16car as his own jacket that he had left in the car at the time of the robbery.
The day after the murder, appellant made statements to several of his acquaintances taking credit for having shot the man at the EXXON station. Several weeks after the incident, appellant approached his friend Keith Smith while Mr. Smith was helping Carl Harris wash Mr. Harris's car. Mr. Harris testified that he observed Mr. Smith and appellant engage in a conversation, out of his hearing, and then walk around the corner from where Mr. Harris was standing. When Mr. Smith returned after parting from appellant, Mr. Smith had in his possession a chrome .357-Magnum firearm. Sometime in December of 1996, Mr. Smith gave a .357 revolver to his attorney, Mr. Spina. Attorney Spina immediately notified Philadelphia homicide detectives that he had the gun in his possession. The homicide detectives recovered the revolver from Mr. Spina's office and turned it over to the Philadelphia crime lab for testing.
Based on information received in their investigation, the police obtained an arrest warrant for appellant in December of 1996. However, it was not until March 17, 1997 that appellant was apprehended. Following appellant's arrest, Mr. Havens, the victim of the robbery of the Lincoln, came to the police station to view a photographic array. Upon viewing the array, Mr. Havens positively identified a photograph of appellant.
The results of forensic and pathology reports revealed that Mr. Campbell had been shot in the head at a distance of at least two feet causing his immediate death. The fatal wound was consistent with the type of injury caused by a .357 Magnum firearm. The .357 Magnum obtained by police from the office of Mr. Spina had been fired prior to being handed over to the police. Mr. Havens identified the gun recovered from Mr. Spina's office as identical to the gun held on him by appellant during the robbery of his motor vehicle. Mr. Price identified the gun appellant possessed after shooting Mr. Campbell as similar in appearance to the gun Mr. Spina delivered to the Philadelphia police.
Appellant was charged in separate indictments for the robbery of Michael Havens and the murder of Robert Campbell. The indictments were consolidated for trial. On November 10, 1997, a jury convicted appellant of first-degree murder, carrying a firearm on a public street, two counts of possession of an instrument of crime, two counts of robbery, one count of robbery of a motor vehicle, kidnapping, and criminal conspiracy.2 At the penalty phase, the jury returned a verdict of death after finding the aggravating circumstances - killing while in the perpetration of a felony, 42 Pa.C.S. § 9711(d)(6), and a significant history of violent felony convictions, 42 Pa.C.S. § 9711(d)(9) - outweighed the sole mitigating factor, appellant's life history, 42 Pa.C.S. § 9711(e)(8). After the trial court denied appellant's post-verdict motions, it imposed a sentence of death for the first-degree murder conviction, and imposed additional sentences for the other charges to run concurrent to the sentence of death.
On automatic direct appeal pursuant to 42 Pa.C.S. §§ 722(4) and 9711(h)(1), this Court rejected appellant's five claims of trial court error in an Opinion Announcing the Judgment of the Court. Natividad I ,
Appellant filed a second pro se PCRA petition on March 11, 2008, challenging PCRA counsel's stewardship in handling his first PCRA petition. On November 14, 2011, the PCRA court dismissed the second petition as untimely. Appellant did not seek further review of that order.
On June 27, 2008, appellant, now represented by the Federal Community Defender Office (FCDO), filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania. Natividad v. Beard , No. 08-cv-0449 (E.D. Pa.). As part of that litigation, appellant sought discovery from the Commonwealth. Following informal negotiations over the course of several years, appellant eventually filed a formal motion for discovery in the federal court, seeking access to the Commonwealth's internal trial file, as well as the investigating homicide detective's file, or "H-file." The Commonwealth opposed the motion.
On August 19, 2011, the federal court ordered the Commonwealth to produce certain discovery, but denied appellant's request for access to the entire trial and investigatory files in the possession of the Commonwealth and the police. In response to the court's order, the Commonwealth turned over more than 200 pages of documents to appellant on March 6, 2012. See Appellant's Third PCRA Petition, 8/9/2012, 3 ¶ 10. Among those disclosed documents was a piece of paper with several roughly handwritten notations, including the following entry:
5635 BELMAR DOERS LEFT IN SW + GOT TAG# 727-8853 JOHN `MACULLA' B/M 40's STOCKY, REDDISH HAIR &sign; TOLD MANAGER ON SUNDAY &sign; 5'11 LT COMP THAT HE WAS ON LOT + SAW INCIDENT
On June 13, 2012, over three months after the Commonwealth disclosed the "Maculla" note, an investigator hired by appellant's counsel interviewed a "John McCullough." See Response in Opposition to the Commonwealth's Motion to Dismiss, 8/27/2014, 3. Subsequently, on July 19, 2012, McCullough signed a declaration in which he asserted the following under penalty of perjury:
1. One day in 1996, I was driving to a laundromat on 63rd Street in West Philly. I was working as a security guard at another laundromat at 60th and Cedar and had been offered part time work at the one at 63rd and Vine. That day, my 14 year old son and I had stopped by a funeral home at 63rd and Oxford. On the way home, we stopped by the laundromat at the Exxon gas station on 63rd Street.
2. I parked my car and just as we got out of the car, I noticed three men about three cars away. One guy was tall and light skinned. He was the victim. There were two darker skinned guys there. One guy was facing the victim and had his hands on the victim's shirt. There was another *18guy standing to the side with a gun. I froze in my tracks so as not to draw attention to myself or my son. I stood there looking at the three men for what seemed like one and a half minutes.
3. All of a sudden, the victim pushed the guy in front of him away and I heard one or more gunshots. I then saw the two darker guys run toward an already running car. The car was dark colored.
4. After the shooting, the police came to the laundromat and I told them what I saw. At first the police were suspicious of me because I was standing so close to the crime, but did not get hurt. I was asked if I knew either of the two dark skinned men, but I said that I did not. They seemed to imply that I must have known them or else I would have been shot, too. After a while, my son and I were taken to 55th and Pine to give a statement. We sat in a hallway at the station waiting to talk to a detective. As we were waiting, we started talking to a man and woman who saw the incident and were waiting to talk to the detectives too.
5. I talked to a detective at 55th and Pine and signed a 2½ page written statement about what I saw.
6. Sometime after the incident on 63rd Street, I became ill with a heart problem. Because of this illness, I left Philadelphia for a while to visit my sister in Virginia. While I was in Virginia, I received a long distance telephone call from a neighbor who said that there had been what looked like policemen coming by my house on Belmar Terrace. I called and left a message for the police telling them where I was. I received a return call from the police and, after I explained that I was ill and would return home after I recuperated, the policeman said they would wait until I returned.
7. When I returned to Philadelphia, some police came by my house. They asked me if I had spoken to anyone about what I saw that night. I replied that I had been in Virginia and had not spoken to anyone. They told me that they had "got the guy" and that they were "looking for the second guy." They said that they took care of everything and did not need me.
8. I used to work for the Greater Philadelphia Urban Affairs Coalition running summer programs for at risk youths. During one summer, [appellant] was in my programs. I got to know him and would recognize him if I saw him. Only recently did I find out that [appellant] was in prison for committing the killing I saw.
9. [Appellant] was not one of the two men that I saw with the victim at the laundromat at 63rd and Vine Street[s].
Declaration of John McCullough, attached as Exhibit D to Appellant's Third PCRA Petition, 8/9/2012.
After obtaining McCullough's declaration, appellant filed the instant third PCRA petition on August 9, 2012. In his petition, appellant alleged the Commonwealth violated Brady and its progeny because it "never produced a written statement" that McCullough claimed in his declaration he gave to a detective shortly after the murder, and because it "had not even produced the note mentioning John 'Maculla[.]' " Appellant's Third PCRA Petition, *198/9/2012, 6 ¶ 20.3 With regard to the "Maculla" note, appellant asserted its indication that McCullough "got" the tag number of the shooter's vehicle was favorable and material because the Commonwealth alleged at trial that the car stolen from Michael Havens was the same car witnesses identified as belonging to the shooter and, thus, it "provided the evidentiary link between the two crimes."
Although appellant recognized his third petition was facially untimely, he alleged it met two timeliness exceptions set forth in the PCRA.
The Commonwealth filed a motion to dismiss appellant's petition on March 18, 2014, alleging the petition was untimely and meritless. With respect to timeliness, the Commonwealth argued appellant failed to raise his Brady claim within 60 days of the date it could have been raised, as required by Section 9545(b)(2). See Commonwealth's Motion to Dismiss, 3/18/2014, 19. In the Commonwealth's view, appellant was "required to file his petition within sixty days of March 6, 2012[,]" the date the Commonwealth turned over the "Maculla" note. Id.
On the merits, the Commonwealth argued the note was not material evidence that it was required to disclose under Brady since "[t]he notation on the scrap of paper does not reflect that 'John Maculla' identified the shooter - let alone that he identified the assailant as someone other than [appellant]." Id. at 17 (emphasis in original). Invoking prior pronouncements by this Court that there is no constitutional requirement that a prosecutor "make a complete and detailed accounting to the defense of all police investigatory work on a case," Commonwealth v. Appel ,
While appellant's PCRA petition was pending in the PCRA court, appellant filed a supplemental discovery motion in federal court, again seeking access to the complete trial and investigatory files of the Commonwealth and the police. On July 9, 2014, the federal court granted appellant's request, and the Commonwealth made additional files available to appellant on August 7, 2014.
This second production of documents yielded previously undisclosed statements of three individuals: Joseph Rutherford, Cynthia Smith, and Rolston Ricardo Robinson. All three statements were taken on November 14, 1996 - five days after the murder.
Rutherford indicated in his statement that after he was released from incarceration on November 4, 1996, he went to a house located at 929 Wynnewood Road in Philadelphia with his friend Edward Maloney. See Appellant's Supplement to Third PCRA Petition, 10/6/2014, Exhibit 1 pp.1-2. Michael Cupaiuolo owned and lived at the house with his girlfriend "Cindy." Id. at 1.4 When Rutherford and Maloney arrived, Robinson was present, as was Kenny Hart. Id. at 2. Rutherford described Robinson as "a Jamaican male [who] sells crack" and "likes intimidating people." Id. That morning, Robinson offered to front Rutherford $40 worth of crack if Rutherford agreed to pay him $80 in return by noon. Id. Rutherford and Robinson "had some words" about the payment before Robinson warned Hart "it was on him" to make sure Rutherford paid in full. Id. When Rutherford met Hart later that day, he produced only $50, and instructed Hart to send a message to Robinson that "this was all he's getting." Id. Rutherford returned to Cupaiuolo's house the following day, at which point Robinson came outside and threatened to knock out the windows on Rutherford's car unless he paid him the remaining $30. Id. at 3. Rutherford told Robinson he would see him later and left. Id.
The next day, November 11, 1996, Rutherford was at his girlfriend's house when Robinson and another individual showed up with a hammer and demanded the $30. Rutherford's girlfriend paid Robinson the money. Id. Later that night, Rutherford went to Cupaiuolo's house where he got into an argument with Robinson and threatened to kill him. Id. at 3-4. Robinson responded that he would "do [Rutherford] like he did Bob down at the gas station." Id. at 4. Rutherford noted in his statement "[t]here was already some talk in the neighborhood about [Robinson] having something to do with Bob Campbell's killing." Id. at 3.
The dispute between Rutherford and Robinson escalated again on the night of November 13, 1996. Id. at 4. Rutherford was standing outside a bar at 66th and Lebanon Streets when Robinson and two others pulled up in a car. Id. Rutherford and Robinson "had words" before Rutherford walked back into the bar. Id. A few minutes later, Maloney walked in and told Rutherford that Robinson and the other men were upset with Rutherford and had guns. Id. At that point, Rutherford told "the entire bar that these were the guys the cops suspected of killing Bob." Id. The bartender told Rutherford to call 9-1-1, which he did. Id. Eventually, police arrived, and Rutherford accompanied them *21to Cupaiuolo's house to locate Robinson. Id. at 5. When Robinson drove by and saw the police he sped off, but the officers pursued and eventually stopped him. Id. In his statement taken the next morning, Rutherford indicated "Cindy" had also "heard Rob discussing" the murder, and that Cupaiuolo "thought Rob had something to do with it." Id. He further stated he had previously seen Robinson in a black Lincoln, but he did not know where it was or where it came from. Id. at 6.
Smith explained in her statement that Cupaiuolo often let people stay in their house at 929 Wynnewood Road, including Robinson. See Appellant's Supplement to Third PCRA Petition, 10/6/2014, Exhibit 2 p.1. She stated she learned of the victim's death shortly after it happened, when Robinson came into the house and turned on the news. Id. at 2. When Smith asked Robinson what he was doing, he replied: "[T]his is important. Didn't you hear about the guy getting shot - down at the gas station[?] You know the guy - the fucking snitch - that town watch guy Bobby Campbell." Id. Robinson continued discussing the news story until he left the house. Id. at 3. When he returned an hour later, he told Smith he had been at the scene and saw the victim had a gun and was bleeding. Id. He stated to Smith that he "stood over top of the guy saying 'You dumb fuck.' " Id. On the afternoon of November 13, 1996, Smith asked Robinson if he had anything to do with the murder, to which he responded, "Yeah - I did it." Id. at 3-4. Robinson further stated "that's what happens to snitches," and that he "had to teach somebody a lesson." Id. at 4. After making these statements Robinson left the house, but returned approximately fifteen to twenty minutes later and offered to "loan [Smith] money for [ ] dope." Id. at 4. Smith felt as if Robinson was "trying to buy [her] off." Id.
Robinson also gave a statement to police on November 14, 1996. See Appellant's Supplement to Third PCRA Petition, 10/6/2014, Exhibit 3. He stated he went to the Turf Club with his friend "C" around 7:45 p.m. on the night of the murder. Id. at 2. While there, Robinson bet on some horses over the course of a few hours. Id. When they left, Robinson passed by 63rd and Vine Streets, where he saw police at the gas station and a man lying on the ground. Id. He parked his car by one of the gas pumps. Id. There were five to ten people near the gas station, and a detective asked if anyone saw anything; Robinson heard an African American female state, "they left in a Black Lincoln." Id. Robinson saw the victim was "[a] white male, laying on [the] ground on his back, [with] blood near his shoulders." Id. at 3. He also noted the victim was wearing a jacket and had a gun in a holster on his waist. Id. Robinson explained he stopped at the gas station because he saw the police cars, people standing around, and a body on the ground. Id. He stated he stayed for only two or three minutes, and that he knew nothing about the murder. Id. at 3, 6.
The Commonwealth also produced certain police investigatory paperwork that had not previously been turned over to the defense and which referenced Robinson. Officer Rita Wilson described in a statement that she responded to the dispute between Rutherford and Robinson at the bar on 66th and Lebanon Streets. See Appellant's Supplement to Third PCRA Petition, 10/6/2014, Exhibit 8 p.1. She noted Rutherford told her that "Rob" had stated "we're going to do to you what we did to the guy at 63rd and Vine."Id. at 2.
Officer Shane Darden explained in his statement that around 4:00 a.m. on November 14, 1996 - only hours after Rutherford had given his statement to homicide *22detectives - Rutherford stopped him on the street and told him he had additional information about the homicide. See Appellant's Supplement to Third PCRA Petition, 10/6/2014, Exhibit 7 p.1. Rutherford directed Officer Darden to Cupaiuolo's house, where the officer encountered Cupaiuolo and Tracie Durham. Id. Cupaiuolo explained to Officer Darden that Robinson had been telling people in Cupaiuolo's house he "was there when Campbell was shot." Id. Durham stated she was on a pay phone near the gas station about ten minutes prior to the homicide and saw Robinson drive by twice in a gray sedan. Id. at 2.
A police activity sheet prepared by the assigned homicide detective and dated November 13, 1996, also mentioned Robinson. See Appellant's Supplement to Third PCRA Petition, 10/6/2014, Exhibit 5 p.1. It stated, in relevant part:
The assigned was contacted by a retired Detective who related that he had been contacted by an old informant who related that persons in 929 Wynnewood Rd. may have information as to the identity of the perpetrator and that he may be named ROB and was a Jamaican male. Det. DiBlasi & the assigned set up a surveillance of this location and noted that a B/M left the location and drove away in a 1988 Acura painted gray. The license tag was checked thru [sic ] BMV and it was registered to a RUPERT ROBINSON at [redacted]. This male fit the general description of the male called ROB. It was also noted that adults aged 20 to 40 both white and black were coming and going from this location. The Detectives stopped one of these persons and learned that ROB does operate the gray Acura and several persons in the location were upset with him over drug matters.
Two additional statements included in the Commonwealth's production were also never previously disclosed to the defense. On November 14, 1996, Tracie Durham, after previously speaking with Officer Darden at Cupaiuolo's house, gave a statement in which she stated she did not know about the killing but "was told by Joe [Rutherford] ... that a guy name[d] Rob ... did it." See Appellant's Supplement to Third PCRA Petition, 10/6/2014, Exhibit 4 p.1. She again explained she was on a pay phone outside the gas station around 9:50 p.m. on November 9, 1996, when she saw a car that "looked like Rob's silver Lexus and a gentleman that looked like Rob driving it." Id. She asserted she did not see the victim at the gas station. Id. at 2.5
Finally, on November 12, 1996, Richard Anderson gave a statement to police in which he stated he was not at the gas station on the night of the shooting, but that he heard from a female named Tish that another man told her people who lived at "the house at [929 Wynnewood Road] ... [and] call themselves the Junior Black Mafia had something to do with the shooting of Mr. Campbell." See Appellant's Supplement to Third PCRA Petition, 10/6/2014, Exhibit 6 pp.2-3. Anderson also stated he had walked by a group of teenagers on November 10, 1996, and heard one of them say they thought it was the Junior Black Mafia who did it; Anderson took "it" to mean the shooting at the gas station. Id. at 4.
Based on the Commonwealth's disclosure of these various statements and documents, appellant sought leave to amend his *23third PCRA petition to include an additional Brady claim on October 6, 2014, and leave was subsequently granted without objection by the Commonwealth. N.T. 7/7/2016, 61-63. As stated by appellant, the withheld materials "identify a Rob as not only a suspect, but as the confessed killer of the victim in this case." Appellant's Supplement to Third PCRA Petition, 10/6/2014, 5 ¶ 17. Thus, appellant alleged, the materials "[a]lone, and in combination with the declaration of John McCullough that [appellant] was not the person who shot [the victim]," created "a reasonable probability of a different outcome in this trial if the Commonwealth had timely produced the evidence" to the defense. Id. at 12 ¶ 27. Regarding the timeliness of his new Brady claim, appellant again asserted it satisfied both the governmental interference and newly-discovered fact exceptions to the PCRA's time-bar. Id. at 16 ¶ 45, citing 42 Pa.C.S. § 9545(b)(1)(i) and (ii). He further argued his supplemental petition was filed within 60 days of the date the Commonwealth disclosed the second batch of documents. Id. at ¶ 46.
On February 11, 2015, the Commonwealth filed a supplemental motion to dismiss. In relevant part, the Commonwealth argued appellant's new Brady claim failed because the leads identified in the second production of documents amounted to "nothing more than inadmissible hearsay and unsubstantiated gossip and rumor about possible suspects that police heard within the first few days after the victim's shooting[,]" each of which "police quickly eliminated ... as having anything to do with the victim's murder." Commonwealth's Supplemental Motion to Dismiss, 2/11/2015, 21.
Appellant filed a reply to the Commonwealth's supplemental motion to dismiss on May 15, 2015, challenging the Commonwealth's authority to be the "sole arbiter of what investigatory leads are true or false and which witnesses are credible and which ones are not." Appellant's Reply in Support of Supplement to Third PCRA Petition, 5/15/2015, 5. Appellant further disputed the Commonwealth's position the withheld evidence was not material. In his view, the Commonwealth "deprived [him] of exculpatory evidence from at least three separate sources, John McCullough, Joseph Rutherford and Cynthia Smith[,]" which evidence was material because it "exonerates him in the homicide of Robert Campbell." Id.6
On November 30, 2015, the PCRA court granted an evidentiary hearing limited to the timeliness of appellant's initial Brady claim predicated on the "Maculla" note. N.T. 11/30/2015, 38. The PCRA court conducted the hearing over the course of three days - April 28, 2016, May 20, 2016, and July 7, 2016. At the hearing, appellant presented only McCullough as a witness. The Commonwealth, in turn, presented John McCullough III (McCullough's son),7 *24Detective James Dougherty (the assigned homicide detective),8 and Assistant District Attorney Jason Harmon.9
On June 17, 2016, before the PCRA court ruled on appellant's Brady claims, appellant filed a second motion to supplement his PCRA petition, which the court also granted.10 In that supplemental petition, appellant alleged that, pursuant to Johnson v. United States , --- U.S. ----,
On July 14, 2016, following oral argument by the parties, the PCRA court denied relief as to appellant's original Brady claim concerning the "Maculla" note. N.T. 7/14/2016, 61. In so doing, the court explained it had credited the Commonwealth's witnesses and disbelieved John McCullough's testimony. Id. at 60-61.
*25On July 26, 2016, appellant requested the PCRA court revoke its July 14th order denying relief, on the basis the court had yet to adjudicate the vagueness challenge presented in appellant's second supplemental petition. The following day, the PCRA court vacated its July 14, 2016 order. Over the ensuing months, the parties filed multiple briefs related to appellant's second supplemental petition.
By order dated December 21, 2016, the PCRA court dismissed appellant's Brady claims as untimely and meritless, but granted penalty phase relief on appellant's claim the Section 9711(d)(9) aggravator - a significant history of violent felony convictions - was unconstitutionally vague. The Commonwealth filed a motion for reconsideration.
On January 13, 2017, the PCRA court vacated its prior order granting penalty phase relief. Thereafter, on February 14, 2017, it denied relief as to all claims raised in appellant's third PCRA petition and the supplements thereto. Appellant subsequently filed in this Court an appeal from the denial of collateral relief, which is now before us for disposition.
II. Issues & General Principles of Law
Appellant presents five issues for our review: (1) whether the Commonwealth violated Brady when it withheld the note identifying John "Maculla" as an eyewitness to the homicide; (2) whether the Commonwealth violated Brady when it withheld evidence that another person had confessed to the killing; (3) whether appellant was prejudiced by the cumulative effect of the Commonwealth's Brady violations; (4) whether appellant's death sentence should be vacated because it is supported by an unconstitutionally vague aggravating circumstance; and (5) whether the PCRA court abused its discretion by failing to grant appellant's request for the parole and probation files of John McCullough III for purposes of the PCRA evidentiary hearing. Appellant's Brief at 1-2.
In reviewing the denial of PCRA relief, we examine whether the PCRA court's determinations are supported by the record and are free of legal error. Commonwealth v. Spotz ,
To be eligible for post-conviction relief, a petitioner must prove by a preponderance of the evidence that his conviction or sentence resulted from one of several enumerated circumstances, see 42 Pa.C.S. § 9543(a)(2), and that the claims have not been previously litigated or waived, see 42 Pa.C.S. § 9543(a)(3). "A PCRA petition, including a second or subsequent petition, must be filed within one year of a final judgment, unless the petitioner alleges and proves that he is entitled to one of three exceptions to this general rule, and that the petition was filed within 60 days of the date the claim could have been presented[.]" Commonwealth v. Edmiston ,
III. Brady Claims
Due process is offended when the prosecution withholds evidence favorable to the accused where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Brady ,
Pursuant to Brady and its progeny, the prosecutor "has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police." Kyles v. Whitley ,
Instead, "favorable evidence is material, and constitutional error results from its suppression by the government, if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Kyles ,
With these general principles relevant to our review in mind, we turn to appellant's Brady claims.
A. The "Maculla" Note
Appellant first claims the Commonwealth violated Brady by failing to disclose to the defense the note referencing John "Maculla," a putative eyewitness to the murder. Appellant's Brief at 14. According to appellant, "the withheld note about John 'Maculla' affected [his] preparation for trial" because "[i]t would have led him to Mr. McCullough who in turn would have testified that he saw the shooting, knew [a]ppellant, and [a]ppellant was not one of the people involved in the shooting."Id. at 20.
Before addressing the merits of this claim, we must first determine if we have jurisdiction to do so. See Commonwealth v. Stokes ,
The Commonwealth contested the timeliness of appellant's petition in its motion to dismiss. As particularly relevant here, with respect to Section 9545(b)(2)'s requirement that the petition be filed within 60 days of when the claim could have been raised, the Commonwealth argued appellant was required to file his petition within 60 days of March 6, 2012, the date it turned over the "Maculla" note. See Commonwealth's Motion to Dismiss, 3/18/2014, 19. Thus, because appellant did not file his petition until August 9, 2012 - more than three months after the 60-day period had elapsed - the Commonwealth argued it was untimely. Id.
In response, appellant countered that "[n]o claim could have been raised" prior to locating McCullough because "[t]he disclosure of the name[ ], without more, is not by itself exculpatory and would not give rise to a Brady claim." See Response in Opposition to the Commonwealth's Motion to Dismiss, 8/27/2014, 3. Instead, he argued, "[i]t was not until [he] investigated that information, located the witness (after fifteen years) and spoke to him that the exculpatory nature of the information came to the surface." Id.
We begin by noting it is unclear whether the PCRA court determined appellant's Brady claim pertaining to the "Maculla" note was untimely and, if so, on what basis. However, the court held an evidentiary hearing on this claim precisely to determine whether it was timely, after which it denied relief. N.T. 11/30/2015, 38; N.T. 7/14/2016, 61.11 In its final order dated February 14, 2017, the PCRA court indicated it had dismissed the petition as untimely. Later, in its Pa.R.A.P. 1925(a) opinion, the PCRA court again indicated the petition was untimely, see PCRA Ct. Opinion, 8/9/2017, slip op. at 5, but also noted the " Brady issues, if correct, would fall *28under 42 Pa.C.S. [§]9545(b)(1)(i) [ (governmental interference exception) ] and possibly [§]9545(b)(1)(ii) [ (newly-discovered fact exception) ]," Id. at 6. Appellant now contends that, "[t]o the extent the court found [his petition] untimely, the court erred." Appellant's Brief at 24. We disagree.
It is well-settled a Brady violation may fall within the governmental interference exception. Commonwealth v. Breakiron ,
Here, appellant raised a single claim in his initial petition: that the Commonwealth violated Brady , and thereby offended his due process rights, by failing to disclose favorable evidence that was material either to his guilt or punishment. See Appellant's Third PCRA Petition, 8/9/2012, 2-8, 10 ¶¶ 7-28, 34; see also 42 Pa.C.S. § 9543(a)(2)(i) (a petitioner may obtain post-conviction relief where he pleads and proves by a preponderance of the evidence that his conviction or sentence resulted from "[a] violation of the Constitution of this Commonwealth or the Constitution or laws of the United States 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").12 Accordingly, to be considered timely, whether under the governmental interference or newly-discovered fact exceptions, appellant's petition must have been filed within 60 days of the date his Brady claim could have been presented. 42 Pa.C.S. § 9545(b)(2).
We conclude appellant failed to meet this requirement. Although he filed his petition within 60 days of the date his investigator located and secured a favorable declaration from McCullough, his Brady claim was predicated on the Commonwealth's suppression of the "Maculla" note , not its failure to disclose the statement McCullough gave to the defense 15 years later. As it was the disclosure of the note that formed the basis of appellant's due process claim, Section 9545(b)(2)'s 60-day filing requirement was triggered on the date the Commonwealth produced the note to the defense: March 6, 2012. Because appellant did not raise his Brady claim until August 9, 2012, his petition was untimely.
In making this determination, we reject appellant's argument that "[n]o claim could have been raised" within 60 days of March 6, 2012, on the basis that the note, "without more, is not by itself exculpatory and would not give rise to a Brady claim." See Response in Opposition to the Commonwealth's Motion to Dismiss, 8/27/2014, 3. This assertion is directly contrary to appellant's prior claims in his petition. There, as previously discussed, appellant argued the note itself was material evidence that the Commonwealth was required to disclose pursuant to Brady , because it identified John "Maculla" as an eyewitness and, more pointedly, indicated he "got [the] tag #" of the car involved in the homicide. See Appellant's Third PCRA Petition, 8/9/2012, *296 ¶ 22. Appellant argued this evidence was material because it may have led to "evidence that a different car was involved in the shooting," which "he would have used [ ] to refu[t]e the inferences of identity and motive[.]"Id. at 7 ¶ 25. Appellant no longer espouses this theory, presumably because it defeats his assertion that the claim could not have been raised sooner.
Moreover, while we recognize McCullough's declaration certainly was evidence favorable to appellant, we reiterate it was merely additional proof supporting the merits of appellant's claim the Commonwealth violated his due process rights by withholding the note identifying McCullough as an eyewitness; it was not, however, the basis of the Brady claim itself. It was the disclosure of the "Maculla" note, rather than the discovery of the declaration, that informed the basis of appellant's Brady claim, and it was incumbent upon him to file his petition within 60 days of the date he received that material alerting him of that claim. Nothing prevented appellant from filing his Brady claim within 60 days of receiving the note, and Section 9545(b)(2) required that he do so. Consequently, we lack jurisdiction to consider the merits of this untimely Brady claim.13
B. The Robinson Documents
1. Timeliness
Unlike his claim premised on the "Maculla" note, appellant's Brady claim regarding the evidence of another potential suspect was raised within 60 days of the Commonwealth's disclosure of that material. Pursuant to the federal court's July 9, 2014 order instructing the Commonwealth to grant appellant access to its file and the homicide detective's H-file, the Commonwealth made the files available to appellant on August 7, 2014. Within 60 days of that date, on October 6, 2014, appellant filed his supplemental petition raising the additional Brady claim. He has therefore satisfied 42 Pa.C.S. § 9545(b)(2) regarding this claim.
In addition, our review reveals appellant satisfied an exception to the PCRA's time-bar with respect to this claim, as the facts upon which his Brady claim were predicated - that the Commonwealth withheld evidence pertaining to another suspect - were unknown to him until the Commonwealth was forced to open its files on August 7, 2014. 42 Pa.C.S. § 9545(b)(1)(ii). Accordingly, we have jurisdiction to consider this claim, and we proceed to the arguments of the parties.
2. Arguments
Appellant claims the Commonwealth violated Brady by failing to disclose the statements indicating Robinson confessed to the murder, and also by suppressing certain police paperwork showing the police investigated those allegations against Robinson.
*30See Appellant's Brief at 27-42. This evidence "of another person's culpability," appellant contends, "was favorable to the defense, yet the prosecution did not disclose any of it to the defense at trial." Id. at 36. Thus, appellant argues the first two prongs of the Brady test - the government suppressed evidence, and the evidence was favorable to the accused - "are easily met." Id.
Appellant also claims the suppressed evidence was material. He notes the withheld statements demonstrate Robinson "confessed to the killing to at least two different people[,]" Rutherford and Smith, each of whom "promptly reported the confessions to both the police and other people." Id. at 37. Appellant continues that Robinson had a motive to kill the victim because Robinson was selling drugs out of a house in the neighborhood where the victim was associated with Town Watch. Id. In this regard, appellant highlights the fact Robinson once referred to the victim as a "snitch," and notes several of the suppressed reports showed Robinson had access to guns and had previously threatened people with them. Id. Finally, appellant observes Rutherford, in his statement, indicated he had previously seen Robinson in a black Lincoln, "the same type of vehicle described by witnesses" as belonging to the shooter. Id. Appellant concludes this evidence "would have been more than sufficient to charge and convict" Robinson of the murder. Id.
In terms of proving materiality, appellant alleges this evidence satisfies the Brady standard because, if the Commonwealth had provided it prior to trial, it "would have allowed competent defense counsel to argue that [Robinson] was the real killer." Id. at 37-38. In appellant's view, "[e]vidence that another person confessed to the crime is unquestionably exculpatory and material." Id. at 27, citing Dennis v. Sec'y, Pa. Dep't of Corr. ,
Finally, appellant argues the PCRA court applied an improper standard of materiality by focusing on whether the documents "would have made a difference" in the jury's verdict. Id. at 41, citing PCRA Ct. Opinion, 8/9/2017, slip op. at 8.14 According to appellant, the PCRA court's focus should have been on whether the Commonwealth's suppression of the evidence had "any adverse effect ... on the preparation or presentation of [appellant]'s case." Id. at 41, quoting Bagley ,
The Commonwealth responds that appellant's Brady claim "plainly fails on materiality grounds." Commonwealth's Brief at 31.15 Regarding the evidence concerning Robinson's confessions, the Commonwealth argues that, even if it had been disclosed, it would not have had a reasonable probability of affecting the verdict. It notes that not only did Robinson provide an alibi for the murder, but "Rutherford and his associates were the apparent sources of all of the multi-layered hearsay contained in the statements, which reflected obvious animus toward Robinson based on his collection of drug debts." Id. at 35. In the Commonwealth's view, it would not "surprise jurors that a drug dealer cultivating a violent image to aid such collection efforts had a business reason to falsely boast about being involved in a well-publicized local crime until being questioned by police."Id. The Commonwealth concludes: "Viewing the evidence in its entirety, the gossip circulating in early November 1997 among a group of people who did not witness the murder and had scores to settle with Robinson over his business practices would not satisfy Brady 's materiality requirement." Id. at 42.
Turning to appellant's claim the statements and police paperwork would have enabled him to challenge the adequacy of the police investigation, the Commonwealth highlights additional documents disclosed pursuant to the discovery order showing the police promptly investigated all tips relating to possible perpetrators during the early days of the investigation and quickly eliminated them as viable suspects. See Id. at 35-38. As the Commonwealth explains, any "[a]ttacks on the integrity of the police investigation would thus have prompted additional Commonwealth testimony outlining these efforts." Id. at 38. The Commonwealth notes as well that appellant's proposed use of the statements would have resulted in a renewed focus on the rapid accumulation of evidence indicating appellant's guilt, which police collected while simultaneously investigating the other early leads. See Id. at 38-41 (setting forth a chronology of the police investigation and detailing the evidence demonstrating appellant's identity as the shooter). The Commonwealth submits that, as the investigation evolved, "it became clear that the carjacker of Michael Havens and the shooter of Robert Campbell were the same person, that [appellant] was that lone perpetrator, that he shot the victim in front of three witnesses (Bryon Price, Martin Johnson, and Beth Johnson) while wearing Mr. Haven[s]'s distinctive lumberjack shirt, that - after being seen driving the stolen Lincoln by several people - he later tried to destroy it and the shirt by setting the vehicle on fire, and that he sold the murder/carjacking weapon to Keith Smith." Id. at 42.
*32The Commonwealth next disputes appellant's position it would have been preferable for him to use the evidence to posit an "alternate perpetrator" defense, rather than the theory of self-defense he presented at trial. Id. at 42-43. The Commonwealth avers this "post hoc evaluation warrants skepticism" because it "ignores the central problem facing the defense: namely, that [appellant]'s presence at the scene of the murder and his participation in it was firmly established by testimonial and physical evidence." Id. at 43. In this vein, the Commonwealth reiterates appellant was identified as the shooter by one eyewitness who knew him (Bryon Price) and by two others (Martin and Beth Johnson) who identified him by means of the distinctive lumberjack shirt taken during the carjacking of Michael Havens, who also positively identified him. Id. Additionally, appellant was "later seen in possession of the distinctive gun used in both crimes before selling it in a highly inculpatory fashion and was repeatedly seen driving the stolen get-away car before it was set on fire." Id. In the context of this evidence, the Commonwealth concludes appellant's "suggestion that he had a reasonable probability of being acquitted if only defense counsel had advanced an alternative perpetrator defense unsupported by any testimony - whether instead of, or in addition to, his claim [of] self-defense - defies the record and common sense." Id. (footnote omitted).
In his reply brief, appellant repeats the general thrust of his argument that the suppressed evidence was material because it "would have not only allowed defense counsel to raise a reasonable doubt about [appellant]'s guilt but would have allowed him to dramatically shift strategy from a very weak self-defense theory to a much stronger defense that [Robinson], a drug dealer with a motive to kill, was the actual perpetrator." Appellant's Reply Brief at 5. In support, appellant relies on Dennis ,
3. Analysis
We need not belabor our discussion of whether appellant has satisfied the first two components of Brady : without a doubt, the trove of statements and investigatory paperwork revealed during the federal discovery process were suppressed by the government and favorable to appellant. There is no dispute the Commonwealth failed to disclose these materials to the defense prior to trial,16 and some of them were plainly exculpatory on their face, as they identified an alternate suspect who allegedly claimed responsibility for the murder. Brady 's first two requirements are therefore clearly satisfied.
The question that remains is whether, even considering the improperly withheld material, appellant "received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Kyles ,
With this in mind, we highlight at the outset that, while appellant's Brady claim implicates his identity as Campbell's killer, the criminal episode resulting in Campbell's death began much earlier that day. At trial, the Commonwealth produced evidence that appellant, along with another unidentified individual, carjacked Michael Havens in the early morning hours of November 9, 1996. N.T. 11/5/1997, 146-54. During that encounter, appellant pointed a stainless steel revolver at Havens, forced him to surrender his wallet and keys, and ordered him into his own car - a dark blue Lincoln.
Havens's identification of appellant as the assailant who carjacked him, pointed a gun at his face, and threatened to kill him before speeding off in his Lincoln was unwavering. He identified appellant from a photo array and at the preliminary hearing.
With regard to the murder, the Commonwealth presented two witnesses at trial, Martin and Beth Johnson, who were leaving their home across from the brightly-lit gas station when they heard a gunshot. N.T. 11/6/1997, 76-78, 94. At that moment they observed Campbell fall backward with his hands raised in the air. Id. at 78, 94. The Johnsons then saw the shooter, who was wearing a lumberjack-style jacket, flee into the driver's side of a dark Lincoln and speed off. Id. at 78, 82, 85, 94-95.
Byron Price testified appellant picked him up around 7:00 p.m. the evening of the murder in a blue Lincoln he had never before seen appellant drive. N.T. 11/6/1997, 6-7, 12. Appellant then drove them to the gas station and exited the car, but instructed Price to wait in the passenger seat. Id. at 9. Price testified to hearing a gunshot, then seeing appellant run back to the car with a chrome revolver in his hand. Id. at 9-10, 13. At that time Price observed Campbell lying on the ground next to a gas pump. Id. at 13. When appellant swiftly made a U-turn out of the gas station *34and sped away, Price asked him why he shot the man. Id. at 14-15. Appellant replied: "He drew on me." Id. at 15.
The Commonwealth also presented testimony that appellant admitted killing Campbell to his friends the next day. While seated in the stolen Lincoln and talking to a group of approximately fifteen people, appellant announced, "You know I got that body, the town watch man." Id. at 181-82. Still driving around in the Lincoln, appellant later encountered his friend Robert Golatt. Id. at 163. Appellant told Golatt "that he was at the service station and some, you know, the guy drawed [sic ] on him and he, you know, popped him first." Id. at 165. Appellant admitted he had used a chrome .357 handgun - a caliber consistent with the fatal gunshot wound to the victim's head. Id. ; N.T. 11/5/1997, 232. As a result of appellant's bragging, it became common knowledge "on the street" he had murdered Campbell. N.T. 11/6/1996, 164.
There was also evidence presented at trial that, about a week or two after the murder, appellant sold his chrome .357 revolver to Keith Smith. Id. at 107-18; N.T. 11/7/1997, 42-43. Smith subsequently turned the gun over to his lawyer, who immediately relinquished it to police. N.T. 11/7/1997, 14-17. Havens identified the gun at trial as identical to the one appellant had used in the carjacking, while Price identified it as similar in appearance to the one appellant used to kill Campbell. N.T. 11/5/1997, 170; N.T. 11/6/1997, 13, 115-16.
Price's girlfriend testified against appellant as well. She explained that she called a Crime Stoppers Tip Line prior to December 25, 1996, and identified appellant as Campbell's killer. N.T. 11/6/1997, 153-54. Appellant subsequently called her, admitted to killing the victim, and boasted there was no evidence against him. Id. at 154-56.
Finally, the Commonwealth presented evidence that appellant evaded police after they secured a warrant for his arrest. When police eventually located appellant he fled and, once captured, gave the officers a false name, inaccurate address, and multiple dates of birth. N.T. 11/7/1997, 57-88, 100-08, 118-20.
Against the backdrop of this extensive evidence of appellant's guilt, we now consider the material revealed in 2014 in response to the federal court's order. Although appellant emphasizes numerous statements and investigatory documents that were withheld by the Commonwealth, they largely derive from a single event: the dispute over Robinson's collection of drug debts from individuals associated with the house located at 929 Wynnewood Road. After Robinson repeatedly threatened Rutherford for failing to pay a drug debt owed to him, Rutherford and Smith came forward to report Robinson had confessed his supposed involvement in the murder. The vast majority of the remaining withheld statements and investigatory reports merely document the dispute between Rutherford and Robinson or regurgitate Rutherford's and Smith's claims Robinson confessed to being the killer. Two notable exceptions include Rutherford's vague description he had, at some unknown point in the past, seen Robinson in a Lincoln, and Durham's assertion she was at a pay phone near the gas station around the time of the murder and saw what appeared to be Robinson drive by in his gray vehicle, which was either a Lexus or an Acura.
Upon careful examination of the withheld material in the context of the entire record, we cannot say the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. Kyles ,
In reaching this conclusion, we "bear in mind that not every item of the State's case would have been directly undercut if the Brady evidence had been disclosed." Kyles ,
*36Critically, the withheld material in no way calls into question any of the evidence proving appellant was the culprit who carjacked Havens. And the unchallenged evidence from that crime - the hijacked Lincoln, appellant's chrome .357 revolver, and the stolen lumberjack jacket - directly connected appellant to Campbell's shooting only hours later. Perhaps even more damning, yet also unaffected by the withheld material, was Price's eyewitness testimony that appellant killed Campbell and then explained to Price he did so because Campbell allegedly "drew on him." There was also, of course, the evidence that appellant sold his chrome revolver shortly after the murder; bragged to a large group of people he was the killer while sitting in Havens's stolen Lincoln; told Price's girlfriend he killed Campbell and boasted there was no evidence against him; and evaded police for months and gave false information regarding his identity when he was finally apprehended. None of this evidence admitted at trial is cast into doubt or undercut by the withheld material.
Given this overwhelming and intact evidence of appellant's guilt, we are not persuaded by his argument he would have had "a much stronger defense" had he been able to present an alternate perpetrator theory, rather than the theory of self-defense he presented at trial. Appellant's Reply Brief at 5. In this respect, we reject appellant's reliance on the Third Circuit's sharply-divided en banc decision in Dennis . See Id. at 6-8; see also Appellant's Brief at 27. It is true the majority in Dennis held, under the facts of that case, there was a reasonable probability that had the jury heard an "other person" defense based on the withheld material, the result of the proceeding would have been different. Dennis ,
*37We also reject appellant's suggestion, see Appellant's Brief at 37-38, that any withheld evidence that could arguably be used by the accused to present a previously unavailable defense theory, or which might cast doubt upon the integrity of the police investigation, automatically renders it "material" in the constitutional sense. See Commonwealth v. Chambers ,
On this point, we find the United States Supreme Court's recent decision in Turner , supra , particularly instructive. Turner involved the brutal rape and murder of Catherine Fuller, in what the government believed had been a group attack.
The analysis and result in Turner , while admittedly bound to the unique facts of that case, supports our conclusion the withheld evidence in this case was not material. Contrary to appellant's claim, it is not enough, for purposes of establishing materiality under Brady , to simply allege that the withheld evidence may have opened the door to an otherwise unavailable defense theory, or to challenge the completeness of the police investigation.19
*38Rather, the linchpin of materiality is whether there exists a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.
*39C. Cumulative Effect of Suppressed Evidence
Before this Court, appellant raises an additional claim that he was prejudiced by the cumulative effect of the Commonwealth's alleged Brady violations. See Appellant's Brief at 42-43, citing Kyles ,
We disagree with the Commonwealth that appellant has waived this claim. True as it is that appellant failed to raise cumulative prejudice as a standalone claim in the court below and in his Rule 1925(b) statement, we agree with appellant that "[a]s a matter of law, a [c]ourt reviewing multiple pieces of exculpatory evidence that the prosecution failed to disclose is required to view the effect of the non-disclosures cumulatively." Appellant's Reply Brief at 11. Indeed, the Supreme Court in Kyles instructed that materiality of withheld evidence must be "considered collectively, not item by item."
On the other hand, we also recognize the precise nature of the claim appellant urges us to consider is the cumulative prejudice created by the Commonwealth's suppression of the "Maculla" note along with the Robinson documents. See Appellant's Brief at 42. Given our determination that appellant's Brady claim concerning the "Maculla" note is untimely, that evidence is not properly before us, and we therefore decline to consider it in the analysis. We underscore, however, that in addressing appellant's sole timely-raised Brady claim concerning the various withheld materials respecting Robinson, we have carefully considered and rejected appellant's cumulative materiality argument, as set forth at length above.
D. PCRA Court's Evidentiary Ruling 21
Appellant argues the PCRA court abused its discretion when it ruled he was not entitled to materials contained in the files maintained by the Pennsylvania Department of Probation and Parole and the Philadelphia Department of Probation and Parole relating to John McCullough III, the son of John McCullough. See Appellant's Brief at 44-49. Appellant stresses that his request "was not a discovery request subject to Pa.R.Crim.P. 902(E)(1)" because he was "not seeking to obtain the information from the prosecutor or its agents[.]" Id. at 45. Even if construed as a discovery request, appellant continues, his request satisfied the "exceptional circumstances" requirement of Rule 902(E)(1), as the requested files may have provided him with information he could have used to *40challenge the witness's motive for testifying, as well as his "drug use and mental health condition." Id. at 46-48.
The Commonwealth argues appellant's evidentiary claim is partially waived and meritless in any event. See Commonwealth's Brief at 52-56. As to waiver, the Commonwealth notes appellant did not object or ask the PCRA court to set forth its reasoning when it denied appellant's request for the files following its in camera review and, thus, "he cannot complain now that the lack thereof somehow supports his challenge[.]" Id. at 53. On the merits, the Commonwealth relies on the strict standard for obtaining discovery pursuant to Rule 902(E)(1) and argues the PCRA court acted well within its discretion when it denied appellant's request because the "fact of any probation or parole, including any violations thereof, was already publicly available information" and, therefore, appellant's request "exceeded what would have been reasonable for purposes of establishing possible bias." Id. at 54. Moreover, the Commonwealth contends the PCRA court acted appropriately when it denied appellant "the opportunity to turn the limited PCRA discovery mechanisms into an invasion of the witness's mental health and other personal information[,]" much of which appellant successfully elicited through cross-examination in any event. Id. at 55-56. The Commonwealth concludes the PCRA court's decision to hold an in camera review "struck an appropriate balance, ensuring that any material relevant to impeachment of John McCullough III was produced while guarding against needless intrusions on the witness's privacy." Id. at 56.
Initially, we reject appellant's attempt to recast his request for the witness's records as anything other than a discovery request governed by Rule 902. As the Commonwealth points out, appellant offers no support for his proposed limitation on the definition of "discovery" in the PCRA context to materials obtained directly from the police or district attorney's office, as opposed to those in the custody of other Commonwealth agencies or even non-governmental entities. See Commonwealth's Brief at 55 n.24. And, in fact, this Court has previously construed medical records, which are maintained by entities completely divorced from the Commonwealth, pursuant to the discovery provisions of Rule 902(E). See, e.g. , Commonwealth v. Keaton ,
Viewed under these standards, we conclude the PCRA court did not abuse its discretion in denying appellant's request for the witness's probation and parole files. See Commonwealth v. Bryant ,
*41Commonwealth v. Collins ,
IV. Constitutionality of 42 Pa.C.S. § 9711(d)(9)
In his final claim, appellant argues that because the language of 42 Pa.C.S. § 9711(d)(9) (significant history of violent felony convictions aggravator) is "materially indistinguishable" from the residual language of the federal Armed Career Criminal Act (ACCA),
V. Conclusion
Having concluded that appellant's claims in his third PCRA petition and the multiple supplements thereto are either time-barred or lack merit, we affirm the order of the PCRA court dismissing appellant's serial petition.
Chief Justice Saylor and Justices Baer, Todd and Mundy join the opinion.
Justice Wecht files a dissenting opinion in which Justice Donohue joins.
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