Opinion
J-S28015-18 No. 1148 MDA 2017
10-10-2018
COMMONWEALTH OF PENNSYLVANIA Appellant v. LARRY TRENT ROBERTS
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order June 30, 2017
In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0001127-2006 BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J. MEMORANDUM BY OLSON, J.:
The Commonwealth of Pennsylvania (Commonwealth) appeals from an order entered on June 30, 2017 in which the Criminal Division of the Court of Common Pleas of Dauphin County granted Larry Trent Roberts (Roberts) a new trial pursuant to his petition filed under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court accurately summarized the facts of this case is as follows:
In late 2005, [Roberts] spoke to Layton Potter, an alleged drug dealer, about a Duwan ("Wubb") Stern, the victim in this case. Potter knew Stern, and Stern had been supplied crack by [Roberts] and his brother. [Roberts] was angry because he had not been paid by Stern for cocaine, which [Roberts] felt could be sold on the street for about $10,000[.00]. [Roberts] wanted Potter to "shake him down" to get whatever Stern had in his possession. Potter told [Roberts] that he "wasn't going into that anymore." In one conversion, [Roberts] told Potter he was going
to "go B.C. on Wubb" referring to Brian Charles, who Potter knew from prison to be serving a life sentence for murder.
On December 21, 2005, [] Thomas Mullen and an acquaintance, Ebersole, were in Harrisburg in the vicinity of 20th and Swatara Streets with the intention of buying drugs. Mullen knew Stern, having bought drugs from him in the past. At approximately 9:10 [p.m.]., Ebersole dropped Mullen off, and Mullen waited about a half block away from 20th and Swatara Streets while Ebersole went to meet his dealer.
At approximately 10:00 p.m., the victim, Stern, drove to where Mullen was standing. He had a passenger in the car. Stern made an offer to sell Mullen drugs. However, because Ebersole had the money, it was necessary for Stern to go around the corner to talk to Ebersole. Ebersole rejected the idea of buying drugs from someone else, so Mullen walked back toward the location of Stern's car. As he did so, he heard the motor of Stern's car 'revving' as if the tires were spinning on a patch of ice. At about the same time, Mullen heard [two-to-three] gunshots in quick succession. As he arrived at the car, the left front tire was slowly spinning and a person was standing at the driver's side of the car. Mullen asked the person if Stern was stuck on the ice; the person pulled a gun out and said, "Yeah, he's stuck." Mullen looked at Stern and saw that he was sitting in the driver's seat, staring straight ahead, not moving, with blood on his lips and neck. The person standing by the driver's door said he needed help getting Stern out of the car. Mullen did not want to argue since the person had a gun. Since Stern was a large person, Mullen did not know how he was going to get the body out of the car. He walked to the passenger side with the man, and got into the car, crouching on the seat. After pushing the body out of the car, Mullen backed out of the car, got onto the sidewalk, and left quickly, hoping he would not get shot. He got into Ebersole's car and left to find a dealer from whom they could buy drugs. Mullen did not initially contact police because he was in violation of parole by being out past curfew, and feared that he would be charged with a crime. He and Ebersole contacted police at around 12[:00]-12:30 [p.m.] that night. Mullen told police what had occurred, but initially did not say that he moved the body. He was charged with [h]indering [a]pprehension and [t]ampering with [e]vidence. While in a holding cell at the police station, Mullen was asked to look at a photo array. He looked, but refused to cooperate because he was angry that he was charged with a crime, having cooperated.
Mullen saw a photograph of [Roberts] in the array. Eventually, he gave a statement in February 2006, in which he told police everything. He identified the person with the gun as [Roberts].PCRA Court Opinion, 6/30/17, at 1-3 (record citations omitted).
Stern's body was found by Harrisburg Police who responded to a call of shots fired at 20th and Swatara Streets. Wayne Ross, M.D. of the Dauphin County Coroner's office, testified that an autopsy revealed that Stern died of a gunshot wound about the right ear which came from the right side.
Commonwealth witness Lisa Starr, who lived in an apartment at 20th and Swatara Streets in Harrisburg, testified that at approximately 10:00 p.m., she heard two gunshots in quick succession. Upon hearing squealing [] tires, Ms. Starr looked out of the window and saw an African[-]American man with his head in an older car, with his other hand braced on the car. The man then walked around the front of the car. She observed the person in front of the headlights for a minute or two. The person crossed the street, and walked up the street, in Ms. Starr's direction. She saw him from her window approximately [three to four] feet away. By the time Ms. Starr was able to call police, officers were arriving at the scene. She gave a statement to police very early in the morning of December 22, 2005. Ms. Starr identified [Roberts] as the person she saw that night.
Jacqueline Wright also lived on Swatara Street and looked out her window upon hearing gunshots and the squeal of tires[.] Approximately three weeks later[,] she identified [Roberts as the perpetrator].
A jury convicted Roberts of first-degree murder on November 14, 2007. On the same date, the trial court imposed the mandatory sentence of life imprisonment. Roberts filed a notice of appeal on December 14, 2007 and this Court affirmed his judgment of sentence on March 31, 2009. Thereafter, Roberts filed a petition for allowance of appeal to the Supreme Court, which was denied on November 9, 2009. Roberts then filed a timely PCRA petition on January 27, 2011, which the PCRA court dismissed without a hearing on June 28, 2012.
Roberts filed a notice of appeal from the dismissal of his petition on July 16, 2012. On March 20, 2013, this Court determined that Roberts raised a genuine issue of material fact regarding his location during the time of the murder and trial counsel's effectiveness in failing to call Tyisha Williams as an alibi witness. Accordingly, we affirmed in part and vacated in part the PCRA court's dismissal order and remanded this matter for an evidentiary hearing.
Following our remand order, Roberts filed three amendments to his PCRA petition. As amended, the PCRA court scheduled hearings on Roberts' petition for March 29, April 1, and April 4, 2016. Counsel for Roberts clarified the claims to be addressed at the outset of the hearing. Specifically, PCRA counsel alleged that the Commonwealth violated Roberts' due process rights under Brady v. Maryland , 373 U.S. 83 (1963). The first Brady violation occurred when the Commonwealth failed to disclose an email from Detective David Lau expressing potential doubts about Roberts' involvement in the instant offense in light of information regarding the location of his cellular telephone during the relevant time period. Roberts also claimed that the Commonwealth violated his due process rights when it failed to disclose emails related to Thomas Mullen's alleged agreement with the Commonwealth to testify about Roberts' motive for the murder in exchange for favorable treatment on other criminal charges. Next, PCRA counsel alleged that defense counsel was ineffective in failing to present alibi testimony from Tyisha Williams. Her testimony related to Roberts' whereabouts on the night of December 21, 2005 and whether he possessed his cellular telephone that evening. Lastly, PCRA counsel explained that Roberts sought to raise a newly-discovered evidence claim based on Layton Potter's recantation of his trial testimony.
Because many of Roberts' claims center upon the viability of his alibi defense, as established through the location of his cellular telephone, we recount the relevant evidence originally introduced to the jury. The PCRA court summarized this evidence as follows:
At trial, the parties jointly called Don Strickland, a Sprint engineer, as an expert witness. Before Mr. Strickland's testimony began, the prosecutor read to the jury the following stipulation of the facts Mr. Strickland used to form his conclusions:
December 21, 2005, at 9:57:37 seconds p.m. time, [Roberts'] cell phone received an inbound call lasting approximately 8 seconds from area code 717-XXX-XXXX. That phone call - and this fact will be relevant in a moment - bounced off the Devonshire tower, Devonshire Road cellular Nextel tower is the first half of the stipulation. Second, at approximately 10:08:54 seconds, December 21st, 2005 in the p.m., [Roberts'] cellular phone received a 19 second inbound call from the same number [] mentioned a moment ago. That call also bounced off the Devonshire Road Nextel cellular tower.
Mr. Strickland testified that an area called Sector 3 was the coverage area for the Devonshire tower. He then testified about a diagram or "footprint" [] that showed an area outlined in red and an area outlined in blue. The red area was the "basic serving area" for the Devonshire tower Sector 3, and there was a potential that it could also serve in the blue area. Mr. Strickland testified that a call hitting off Sector 3 would be "anywhere within that red area...." There was a "lower probability" that i[t] could be in the larger blue area. At the time of the calls that were the subject of
the stipulation, the towers in the area were functioning. Mr. Strickland further testified that, at the time of those calls, there was a "high probability" [Roberts'] phone was in the red area, a "lower probability" the phone was in the blue area, and "an impossibility" the phone would be outside the blue area. Mr. Strickland also testified that he was not able to pinpoint precisely where the phone was with the data he had, and had no way of knowing who possessed the phone at any particular time.PCRA Court Opinion, 6/30/17, at 3-5 (record citations omitted).
In light of this testimony and Roberts' cellular telephone records, the PCRA court found there was a high probability that Roberts' telephone was used several minutes before 10:00 p.m. and several minutes after 10:00 p.m. on December 21, 2005. The court also found that the murder occurred outside the areas indicated by Strickland's testimony and that if Roberts possessed his telephone, "he could not have been within a three-mile radius of the crime scene[.]" Id. at 5. The trial evidence regarding usage of Roberts' cellular telephone, coupled with the alibi testimony adduced at the PCRA hearing (summarized below), undermined the court's confidence in the guilty verdict. We quote at length the PCRA court's summary of the hearing testimony relevant to Roberts' alibi defense as well as other issues.
The PCRA court noted the Commonwealth's concession that if Roberts possessed his cellular telephone, then he could not have committed the murder. See PCRA Court Opinion, 6/30/17, at 6.
[Tyisha Williams was Roberts' first witness at the PCRA hearing.] She testified to being the mother of [Roberts'] 21-year-old daughter, and to having known [Roberts] for 25 years. At the time of the murder, Ms. Williams testified that she and [Roberts] had been dating off and on, and that [Roberts] was seeing other people as well. When asked about what she was doing on
December 21st, 2005, Ms. Williams testified that every year for the past 19 years, she has always taken off from work to get the house organized for Christmas. On December 21st, she was cleaning her daughter's room and washed her comforter. The lace on the comforter melted in the dryer, so she went looking to purchase another one to match at area stores. The comforter she purchased did not match, so Ms. Williams called [Roberts] on his cell phone at around 10:25 or 10:30 p.m and asked him to run her to Target to return it. [Roberts] told her that he was either at his father's house or on his way to his father's house, which was a 10 minute drive from Ms. William's house. [Roberts] told her he would pick her up. [Roberts] picked up Ms. Williams, drove her to Target, and then the two of them went to Media Play afterwards.
Ms. Williams was then shown an exhibit which was a fax cover sheet from Ms. Williams to [defense counsel, Bryan S. Walk, Esq.], showing the Target receipt for the comforter return. The receipt indicated the return was made at 10:46 p.m. on December 21st. When asked if Ms. Williams recalled if [Roberts] received any phone calls that evening on his cell phone, she said that he had. While they were at Media Play he received a call from a man by the nickname of "Boobie." When he hung up with Boobie, [Roberts] told Ms. Williams that Boobie told him that he heard from his sister that Duwan Stern was killed. [Roberts] then took Ms. Williams home.
Ms. Williams was then asked if she recalled giving a statement to anyone about being at Red Lobster on the evening of December 21st. Ms. Williams testified that she and Roberts used to go there all the time. While sitting at work one day, Ms. Williams got a call from a detective saying that Roberts ha[d] been arrested. When asked where she was the day in question, Ms. Williams said she thought she and [Roberts] were at Red Lobster. Her reason for being confused was the fact that on an evening when the two of them had been at Red Lobster, they received a phone call that a young man had been killed, and she believed his name was Soto. As the days went on, Ms. Williams realized that it was not December 21st that they were at Red Lobster, but a different night close to the date of the 21st. Ms. Williams testified that she communicated the same timeline, phone records, and Target receipt to Attorney Walk prior to Defendant's trial. She was subpoenaed to testify but was not called as a witness.
The next witness to testify for Roberts was Bernard Lyd. Mr. Lyd was a mechanic who did some work for [Roberts] when [Roberts] owned a used car lot. On the morning of December 21st, [Roberts] called Mr. Lyd and asked him to attend an auction with him, and also to help him to tow a vehicle belonging to Bilal Watts. Mr. Lyd got the call at around 10:00 a.m. [Roberts] picked up Mr. Lyd and the two of them got the tow truck and went over to Mr. Watts' apartment complex to pick up his Chrysler. They took Mr. Watts' car to the used car lot, which was located on Cameron Street in Steelton. At that point they were supposed to go to the auction, but [Roberts] and Mr. Watts stepped out and were gone for a long period of time. Mr. Lyd estimated that he was in the car lot for about 6 or 7 hours, until about 7:00 or 8:00 p.m. At that point [Roberts], Mr. Lyd, and Mr. Watts left the lot and stopped to get something to eat at a Vietnamese restaurant on 29th Street. They were there until close to 9:00 p.m. [Roberts] was tired, so Mr. Watt's drove. Once at Mr. Watts' house in Steelton, Mr. Watts exited the vehicle and Mr. Lyd drove back to the Colonial Park area, where Mr. Lyd lived. When they arrived there, he woke up [Roberts]. It was around 9:30 or 9:35 p.m. [Roberts] told Mr. Watts that he was going to his father's house, which was at 3225 Willow Lane in Susquehanna Township. Mr. Lyd spoke to Attorney Walk about the timeline. Mr. Lyd was subpoenaed to testify but was never called.
[Roberts] testified on his own behalf at the PCRA hearing. [Roberts'] testimony regarding the day of December 21st is consistent with Mr. Lyd's timeline. After eating at the Vietnamese restaurant and dropping off Mr. Watts, [Roberts] placed and received some phone calls on his cell phone. This is while [Roberts] was a passenger, on the way to Mr. Lyd's house, while Mr. Lyd was driving. [Roberts] was shown his cell phone records for the evening of December 21st. He testified as having seen them before, as he was given a copy of them by Attorney Walk. At 7:16 p.m. there was an outbound call to Ms. Williams, then several calls to a Danielle McCollum. Defendant testified that he was "trying to hook up with" Ms. McCollum. At 9:14 p.m. there was an outbound call lasting for approximately 20 minutes. [Roberts] testified that call was to Ms. McCollum. At 9:53 p.m. there was an inbound call. While [Roberts] could not recall who made that call, he testified that he had his phone with him then and would have received that call. [Roberts] also testified that he had his phone at 10:08 p.m., when another call was received. At 10:10 p.m., there was an outbound call made, and [Roberts]
testified the recipient of that call was his friend Liz Britton. At 10:26 p.m. the phone records reflect a call from Ms. Williams, which was the phone call where she asked [Roberts] to take her to Target. [Roberts] testified that he was at his father's house when he received that call. He picked up Ms. Williams, took her to Target, then went to Media Play and purchased two DVDs. It was around that time that [Roberts] received a call from "Boobie" (Earnest Fry) which was reflected in the phone records. [Roberts] testified that Boobie and Robert Cook were at 20th and Swatara Streets, and that the police had the scene taped off around a car that looked like Duwan Stern's.
On the day [Roberts] was arrested, Detective Lau asked several questions such as how did [Roberts] know Mr. Stern, and where was [Roberts] on the evening in question. [Roberts] said he thought he was at Red Lobster but was not sure. He asked to call Ms. Williams to see if she could remember. [Roberts] dialed Ms. Williams' number and handed the phone to Detective Lau, who questioned her. [Roberts] confirmed that there was a night when the two of them were at Red Lobster when he received a call from someone letting him know that a Melvin Soto had been killed.
[Roberts'] trial counsel [] was next to testify at the PCRA hearing. Attorney Walk agreed that at trial, his best argument was what he had stated in his closing at trial: "The thing that proves the best to you that they got the wrong guy is from those phone records. There was a 9:53:57 [p.m.] call in the red area and a 10:09 [p.m.] call back in the red area." Attorney Walk testified that it was true that the purpose in gathering the information about the phone records was to show point-by-point where phone calls were either incoming or outgoing from [Roberts'] phone on the evening of December 21st. Attorney Walk agreed that if it could be shown that [Roberts] and his phone were together at around 10:00 p.m. on the night of December 21st, that [Roberts] was physically unable to be where Mr. Stern was murdered.
When asked about Danielle McCollum, Attorney Walk could not recall if she had testified at trial, and he was given trial transcripts to refresh his memory that she did, in fact, testify. The trial testimony revealed, and Attorney Walk agreed, that Mr. Walk had not spoken to Ms. McCollum prior to trial. Attorney Walk established at trial that she knew and was a friend of [Roberts], and knew what his phone number was. Attorney Walk did not ask Ms. McCollum if she had spoken to [Roberts] on the evening of
December 21st. Attorney Walk also recalled meeting with Tyisha Williams[.] Attorney Walk did not call Ms. Williams as an alibi witness or present her Target receipt at trial. Also, Attorney Walk did not call Bernard Lyd, [Roberts'] mechanic friend who testified to spending the day with [Roberts] on December 21st. Attorney Walk testified that he did not call Ms. Williams or Mr. Lyd because he wanted corroboration closer to the time of the murder. [The following exchange occurred at the hearing:]
[PCRA Counsel]: You had Danielle [McCollum] between 9:00 [p.m.] and 10:00 [p.m.], starting around 9:15 [p.m.], with a series of phone calls. You established from phone records who the two numbers belonged to, but you didn't ask her whether she was talking to [Roberts] on those particular times or for that length of time, correct?
MR. WALK: Correct.
[PCRA Counsel]: And then you had Tyisha Williams who could testify about [Roberts] possessing the phone and using the phone starting around 10:26 [p.m.] after the murder, and you didn't present her as a witness at all, correct?
MR. WALK: Correct.
[PCRA Counsel]: And what was your strategic reason for not presenting Tyisha Williams to corroborate [Roberts'] possession of the phone immediately after the murder?
MR. WALK: Because it was after the murder. It was almost a half an hour after the murder occurred, which wouldn't prove, in my mind, where the phone was at 10:00 [p.m.]. She is talking to him at 10:26 [p.m.]. In theory, my concern was the [district attorney] could still argue he shot [Stern] and went back to wherever he was and got his phone or had his phone with him when he called her. So, after the time of the murder, where she was or where [Roberts] was, wasn't as important to me as putting the time of the murder into question.
Attorney Walk went on to testify that he also did not wish to open the door to the Red Lobster memory mistake. He further did not wish to give the Commonwealth the ability to cross-examine Ms. McCollum any more than he wanted, that the phone records spoke
better than witness testimony, and that the dots were connected sufficiently for what he was trying to show.
Attorney Walk was also questioned about emails that [PCRA counsel] presented to Attorney Walk. The documents had been found in the district attorney's file for the prosecution of [Roberts]. Attorney Walk confirmed that when he was provided discovery from the district attorney's file, he was not provided with a copy of the emails. Attorney Walk was first questioned about [] a copy of an email from Senior Deputy District Attorney Michael Rozman to Assistant District Attorney Jon Baer dated October 2nd, 2007. It is an email that was forwarded from Detective [] Lau dated September 11, 2007 to Michael Rozman. Detective Lau was the lead investigator in the case. [PCRA counsel] read part of the email from Detective Lau to Attorney Walk: "I know we can never be absolutely certain, but if Hopper is right...about the closest tower thing, this causes me to hesitate. With that, I'd rather see [Roberts] get over on us then [sic] to carry with me the possibility that the witnesses could be wrong and an innocent man is incarcerated." Attorney Walk testified that "Hopper" is Jonna Hopper with Nextel. [PCRA counsel] went on to read more of the email: "This girl told me she is one of the ones trained in this stuff...and knows this for sure. And this being true, if we agree to give the benefit of the doubt to [Roberts] that he was on his phone at the time of the calls in question, we need to give serious consideration that [Roberts] might not be the killer in this case because it appears that [Roberts'] phone was likely closest to a Devonshire tower at 9:53 [p.m.] and 10:08 [p.m.]." When asked if he had had this email in his possession when cross-examining Detective Lau at trial, as the chief investigator had expressed serious doubts about the case against [Roberts], would Mr. Walk have used the email? Mr. Walk replied, "Absolutely."
In another set of documents [], Attorney Walk was presented with emails regarding Thomas Mullen, a witness in the case that Attorney Walk contended was the actual person who committed the murder. According to his own testimony, Mr. Mullen was present at the scene of the murder and eyewitness for the Commonwealth. In Mr. Mullen's own statement, he [placed] himself in the front passenger seat adjacent to the deceased's right side [] where the fatal gunshot wound had entered. Mr. Mullen had some pending charges related to Mr. Stern's death, including tampering with evidence and hindering apprehension. According to the emails in question, Mr. Mullen had entered into a
proffer letter with the Commonwealth sometime during the pendency of [Roberts'] case and the case against Mr. Mullen. One of the emails, from Michael Rozman to Justin McShane (Mr. Mullen's attorney) stated: "As we discussed, I expect Mullen to testify at some point on Tuesday. If you and Ed [Marsinco, Daughin County District Attorney] do not have his case agreed on before he testifies, we are just going to have to tell the jury and Walk that there is not any type of deal. Whether there is a deal or not, Walk is going to make a big production out of it, so I am not even sure that it matters. I would like for him to be taken to another courtroom right after he testifies so his case can be resolved[.]" When Attorney Walk was asked whether [he] had been in possession of this email thread when he was cross-examining Mr. Mullen about whether or not he had a deal in exchange for testimony, would he have used that on cross-examination? "Absolutely," was Attorney Walk's response. He would have found it helpful and powerful.
Detective David Lau provided testimony on the emails in question as well. As far as what prompted Detective Lau to send an email to [Mr.] Rozman, Detective Lau testified that in any investigation he is working on, he wants to make sure that he has factual information before casting any opinions on any of the issues. Specifically, he testified:
One of the issues involved in this case was a cell phone that belonged to [Roberts] and that cell phone according to the records [] from Sprint indicated that the cell phone itself which was determined to belong to the [Roberts] was not in the area of this incident when it occurred. It was in a radius of a couple miles but it was not in the exact area where this incident occurred at the time that it occurred and I wanted to make sure that we had very thorough discussions concerning this matter before we moved forward with any type of prosecution. That is why I forwarded the email to Mr. Rozman.
Detective Lau went on to express that if [Roberts] was proven to be on the other end of his phone at the time in question, then the eye-witnesses in the case were wrong and that needed to be dealt with appropriately.PCRA Court Opinion, 6/30/17, at 1-14 (footnotes in original; record citations omitted).
John Baer, Esq. of the Dauphin County District Attorney's office and lead prosecutor in [Roberts'] case, also testified at the PCRA hearing. Layton Potter, a witness at [Roberts'] trial and also at the PCRA hearing, gave a statement to [PCRA counsel] in 2013, claiming that Attorney Baer coerced him to testify regarding [Roberts'] motive to kill Mr. Stern. Mr. Potter was under the impression that if he helped out Attorney Baer, it would help him with the gun charges he was facing. After testifying against [Roberts], Mr. Potter was sentenced on his gun charges. Mr. Potter later testified that the motivation for providing the 2013 statement was because he was upset with Attorney Baer. Mr. Potter felt as if Attorney Baer did not fulfill his end of their "agreement." He was upset at the district attorney's office for being sentenced to extra time for his gun charges.
When Mr. Potter was asked about his trial testimony concerning his statement that he knew [Roberts] and bought drugs from him, Mr. Potter stated that that "was exaggerated testimony." Regarding his trial testimony, Mr. Potter stated: "Honestly, sir, the only thing I really remember was me trying my darndest [sic] to be a part of it so I could make any situation a little better. That is, anything else I think I would be guessing as for as validity or not." Potter also admitted that he did not know the extent of [Roberts'] and Mr. Stern's relationship outside of rumors he had heard. He claimed to have gotten to know [Roberts] in the early 1990s, as he was "dating his little sister." Mr. Potter was ten years old in 1990. [Roberts] testified he did not know Mr. Potter until he was made aware of him via Mr. Potter's testimony.
According to the testimony of a staff investigator for PCRA counsel, a review of Attorney Walk's file showed that the emails from Detective Lau to Mr. Rozman, and the email exchange between Attorney McShane and Mr. Rozman were not in Attorney Walk's file. Additionally, no notice of alibi defense was located in Attorney Walk's file.
The Commonwealth raises the following issues on appeal:
Whether the PCRA Court erred in granting PCRA relief where the Commonwealth did not violate Brady with respect to Detective Lau's email? Detective Lau's email was not an expression of doubt regarding Roberts' guilt, but a discussion with the Commonwealth about the
evidence of the case. The email did not contain exculpatory or material information, and was thus not subject to disclosure.Commonwealth's Brief at 4-5.
Whether the PCRA court erred in granting PCRA relief where the Commonwealth did not commit a Brady violation with respect to its email to Mullen's attorney? The withdrawal of Mullen's charges occurred prior to trial, was disclosed to defense prior to trial, and was disclosed to the jury during trial. Mullen's charges were not withdrawn pursuant to a specific agreement, but due to Mullen's substantial, pretrial incarceration on relatively minor charges. This email was thus not subject to disclosure.
Whether the PCRA Court erred in granting PCRA relief where trial counsel was not ineffective for failing to present alibi testimony? Tyisha Williams' PCRA testimony directly contradicted her and Roberts' statements to police shortly after the murder. Williams admitted that her statement to police was not true and that she never attempted to correct it. Williams could not account for Roberts' whereabouts at the time of the murder, and her testimony would have exposed her to cross-examination regarding receiving money for her testimony.
Whether the PCRA Court erred in granting PCRA relief where Potter's recantation does not constitute newly discovered evidence? Potter's testimony would be used solely for impeachment purposes, and would not have changed the outcome of trial.
Whether the PCRA Court abused its discretion in granting PCRA relief where Potter withdrew his incredible recantation? Williams' PCRA testimony was incredible as it contradicted her statements to police, and she was biased in favor of Roberts.
We have carefully reviewed the certified record, the submissions of the parties, and the opinion of the PCRA court. Based upon our review, we conclude that the PCRA court correctly determined that trial counsel was ineffective in failing to call Tyisha Williams as a witness, and present her receipt from Target, in support of Roberts' alibi defense and that Roberts was entitled to relief in the form of a new trial. Because the PCRA court has adequately and accurately addressed this issue in its June 30, 2017 opinion, we adopt the PCRA court's discussion of this issue as our own. The parties are instructed to attach a copy of the court's opinion to all future filings relating to our disposition in this appeal.
In view of this determination, we need not pass on the other issues raised by the Commonwealth in this appeal. --------
Order affirmed.
Judge Musmanno joins this memorandum.
Judge Kunselman files a concurring statement. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/10/2018
Image materials not available for display.