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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. CONCURRING STATEMENT BY KUNSELMAN, J.:
I agree with the entirety of the majority's Memorandum in this case, that the PCRA court correctly concluded that Roberts is entitled to a new trial based on ineffectiveness of counsel. Notably, however, the PCRA court granted Roberts' Petition and ordered a new trial based on three reasons: 1) newly discovered evidence (i.e. post-trial statements made by a witness who recanted his trial testimony); 2) a violation of Robert's due process rights under Brady v. Maryland , 373 U.S. 83 (1963); and 3) ineffectiveness of counsel for failing to call an alibi witness who claimed she was with Roberts at Target around the time of the murder and had a receipt to prove it. T.C.O., 6/30/17, at 24.
Our decision affirms the granting of a new trial based only on ineffectiveness of counsel, without addressing the two other reasons. I agree we do not need to address the other reasons, however, in all fairness to Roberts' defense counsel, Attorney Walk, it appears he planned his trial strategy without the benefit of all of the relevant information from the district attorney's office. The district attorney had two separate categories of e-mails that Attorney Walk did not see prior to trial. At the PCRA hearing, when asked if he would have used the missing emails in his cross-examination, Attorney Walk replied, "Absolutely". One of those emails involved the investigator's doubts about Roberts' location at the time of the murder, given the information from cell phone towers. This information could have influenced Attorney Walk's decision on whether to call the alibi witness.
Thus, without deciding whether the district attorney's failure to turn over these emails was a Brady violation, I write separately to recognize that counsel's ineffectiveness here was not necessarily his fault.