Appeal from the Order entered on June 30, 2009, in the Court of Common Pleas of Bradford County at No. CP-08-CR-0000309-1995
The opinion of the court was delivered by: Mr. Justice Baer
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
In this capital case, John Joseph Koehler ("Appellant") appeals from an order of the Bradford County Common Pleas Court, which dismissed his petition for collateral relief filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546.*fn1 For the reasons set forth herein, we affirm the denial of relief.
The record establishes that in 1996, Appellant was convicted of the first degree murder of Regina Clark and her nine year-old son, Austin Hopper. The evidence presented at Appellant's trial established the following, as recited in our opinion on direct appeal. Commonwealth v. Koehler, 737 A.2d 225 (Pa. 1999). In August of 1994, Appellant informed 18 year-old William Curley that he was a "hit man" for the mob. Appellant attempted to recruit Curley into his "profession" by promising that Curley could earn "six digits."*fn2 Curley entertained the proposition, believing that he would only kill drug dealers and individuals connected with the mob, not innocent people.
Eight months later, on April 17, 1995, while Curley was staying at the home of his friends, Melissa Mack and Ricky Hunsinger, Appellant informed Curley that he was bringing "two packages" and wanted Curly to "deliver them." Unbeknownst to Curley, Appellant meant that he was bringing two individuals to Curley, and wanted Curley to kill them. Curley unwittingly agreed. On April 18, 1995, at 4:00 a.m., Appellant arrived at the Mack/Hunsinger residence, accompanied by Regina Clark, with whom Appellant had a romantic relationship, and Clark's nine year-old son, Austin Hopper. Melissa Mack had the opportunity to observe Clark and her son while they stayed in Mack's home. It is unclear why Appellant chose Clark to be the victim of Curley's first killing.
Shortly after Appellant arrived, he explained to Curley that he wanted him to kill Clark. Curley, however, stated that he did not want to participate in the murder. In response, Appellant threatened that if Curley refused to kill Clark, Appellant would kill Curley. Appellant also gave Curley a loaded .22 caliber Baretta to use for the murder, and the two men located an abandoned refrigerator at a dump where they could dispose of Clark's body after the shooting. Curley again told Appellant that he did not want to kill Clark, to which Appellant responded, "kill or be killed." N.T. Mar. 28, 1996, Vol. VII at 47. The men thereafter agreed that Curley would kill Clark later that afternoon on Stone Jug Road.
Before acting upon their plans, Appellant and Curley drove Clark and Hopper to a restaurant. Appellant entered the restaurant, while Curley, Clark, and Hopper drove off, purportedly to retrieve another vehicle. The true purpose of the diversion was for Curley to kill Clark on Stone Jug Road. Curley drove to that location with Clark and Hopper, and pointed a gun to the back of Clark's head. Neither Clark nor Hopper observed the gun. Curley, however, could not pull the trigger, and, instead drove Clark and Hopper back to the restaurant to join Appellant.
That same afternoon, Appellant and Curley discussed where the murder should take place, and decided that it would occur at the home of Janet Schrader, as Curley was a friend of Schrader's son, Kirk. Hours later, Curley proceeded to the Schraders' residence, accompanied by Appellant, Clark, and Hopper. Everyone entered the Schraders' home, with the exception of Curley, who remained in the garage. Appellant and Kirk Schrader later joined Curley in the garage to discuss ways to kill Clark. When Curley told Appellant that he did not think he could execute the plan, Appellant responded that Curley had to kill Clark. Ultimately, Curley waited in the garage alone, and when Clark entered, shot her three times in the head. Curley then placed Clark in the trunk of his car. Appellant came to the garage to check Clark's pulse, and believed she was still alive. Appellant then suggested that Curley slit Clark's throat. Curley grabbed a knife, and then he and Kirk Schrader entered the car and drove off, hearing a thumping noise emanating from the trunk.
Curley dropped Kirk off at the home of Kirk's friend, Roger Hitchcock, and proceeded to dispose of Clark's body in the abandoned refrigerator at the dump. Curley slightly cut Clark's throat with the knife, closed the refrigerator door, and returned to the Schraders' residence. When he arrived, Appellant told Curley that Clark's nine year-old son, Austin Hopper, was a "loose link," and had to be killed. Shortly thereafter, Curley accompanied Hopper to the garage, and shot Hopper three times in the head and twice in the body. Curley then drove to "Snake Road," and placed the child's body in a sluice pipe.
When Curley arrived back at the Schraders' residence, he and Appellant cleaned the garage where the shootings took place. The two men thereafter returned to the abandoned refrigerator to secure it with a lock and chain, but the chain was too short. The men then drove to "Twin Ponds," where, upon Appellant's suggestion, Curley disposed of the knife and the gun used in the murders. Appellant later drove Curley to the Mack/Hunsinger residence, left him, and drove away. The following week, Curley moved to North Carolina.
Eight days after the murders, on April 26, 1995, a man searching for recyclables at the dump discovered Clark's body in the abandoned refrigerator, and contacted the police. Melissa Mack, with whom Appellant, Curley, and Clark had stayed prior to the killings, heard a news broadcast, which indicated that a woman's body wearing particular clothing had been discovered one-half mile from Mack's home. Mack recognized the clothing as that worn by Clark on the day of the shooting, and called police. Mack later identified the body discovered in the refrigerator as Clark's, and told police that Clark had been travelling with a child. Mack further consented to a search of her home, which revealed, inter alia, a lock and bullets.
On April 28, 1995, police officers travelled to North Carolina to interview Curley. Curley confessed to the shootings and told the officers where the boy's body could be found. He also revealed Appellant's involvement in the crimes, and disclosed where they had discarded the murder weapon. At 11:00 p.m. that evening, the police found Austin Hopper's body, and later recovered from Twin Ponds the gun and knife used in the murders. The police thereafter arrested Curley and charged him with the first degree murders of Clark and Hopper, various counts of criminal conspiracy, kidnapping, and aggravated assault, and one count each of endangering the welfare of a child and possession of an instrument of crime. The police also subsequently arrested Appellant for the first degree murders of Clark and Hopper, and charged him with related offenses. The Commonwealth tried Curley and Appellant separately, prosecuting Curley first.
Curley waived his right to a jury, and proceeded to a bench trial based on stipulated facts on March 6, 1996. Immediately prior to Curley's trial, however, the Commonwealth nolle prossed all the lesser charges against Curley, and proceed to prosecute him for two counts of first degree murder and one count of burglary. During Curley's trial, the Commonwealth's theory of criminal liability was that although Appellant solicited Curley to kill Clark and Hopper, Curley acted with his own free will in carrying out the crimes. Curley was thereafter convicted of two counts of first degree murder and one count of burglary.
On March 25, 1996, after Curley was convicted, but prior to his penalty proceeding, Appellant's trial commenced. To demonstrate Appellant's criminal liability for the first degree murders of Clark and Hopper based on a conspiracy and accomplice theory, the Commonwealth presented Curley's testimony, which described in detail Appellant's participation in the crimes. Curley informed the jury that in exchange for his testimony against Appellant, the Commonwealth would stipulate in Curley's upcoming penalty proceeding that his cooperation served as mitigating evidence. The Commonwealth also presented the testimony of Kirk Schrader, whose involvement in this matter has its own prolix history, which is explained fully infra at 17-22. Schrader testified that he observed Curley and Appellant discuss plans to kill Clark on the day of the murders. He explained that later that day, he heard gunshots being fired in his garage and saw Curley in the garage with his arm extended. The cars in the garage purportedly blocked Schrader's view of Curley's gun and Clark. Schrader further testified that he did not receive anything from the Commonwealth in exchange for his testimony.
The Commonwealth also presented the testimony of a forensic pathologist, who opined that the cause of Clark's death was a gunshot wound to the head, and the manner of her death was homicide. The forensic pathologist further testified that the cause of Hopper's death was multiple gunshot wounds, and that the manner of his death was homicide. Additionally, Kerrien Ramsey testified that she had travelled with Appellant, Clark, and Hopper, before the murders in February or March of 1995, and that Appellant showed Ramsey a loaded gun and told Ramsey that he would kill Clark.
On April 11, 1996, the jury convicted Appellant of two counts of first degree murder, two counts of conspiracy to commit murder, two counts of kidnapping, and one count of burglary. At the penalty phase of the trial, the Commonwealth urged the jury to find three aggravating circumstances: (1) Appellant's conviction of another murder either before or at the time of the offense at issue, 42 Pa.C.S. § 9711(d)(11) (relating to both murders); (2) that the victim was less than twelve years' old, id. § 9711(d)(16) (relating only to Hopper's murder); and (3) that the defendant paid or had contracted to pay or be paid by another person for the killing of the victim. Id. § 9711(d)(2). As mitigating evidence, the defense presented only the testimony of Appellant's mother, who explained that she divorced Appellant's father when Appellant was seven years old, that she was rarely home as she worked two jobs, and that her ex-husband had been physically abusive to Appellant. See N.T. Apr. 12, 1996, at 21-25.
As to the first degree murder of Clark, the jury found one aggravating circumstance (Appellant's conviction of another murder) and no mitigating circumstances. Regarding the first degree murder of Hopper, the jury found two aggravating circumstances (Appellant's conviction of another murder and the victim being less than twelve years' old) and no mitigating circumstances. Accordingly, the jury returned two death sentences. The trial court thereafter imposed two sentences of death, as well as additional terms of incarceration for the remaining offenses, totaling 35 to 70 years of imprisonment. *fn3
Appellant, represented by trial counsel, filed a direct appeal in this Court, raising 15 issues. Finding no merit to his contentions, we affirmed Appellant's judgment of sentence. Commonwealth v. Koehler, 737 A.2d 225 (Pa. 1999). The United States Supreme Court denied Appellant's petition for writ of certiorari on October 2, 2000. Koehler v. Pennsylvania, 531 U.S. 829 (2000).
On September 6, 2001, Appellant filed a timely petition for post-conviction relief entitled, "Petition for Habeas Corpus Relief Under Article I, Section 14 of the Pennsylvania Constitution and For Statutory Post-Conviction Relief under the Post Conviction Relief Act," in which he raised 19 issues, primarily challenging prior counsel's effectiveness.*fn4 Several extensions of time were sought by the parties, and the trial court ("PCRA court") conducted evidentiary hearings on May 31, 2006, June 1, 2006, and March 1, 2007, at which Appellant presented the testimony of several witnesses including his prior counsel, who represented him at trial and on appeal.*fn5
Appellant's presentation of evidence at the hearing focused primarily on the following claims: (1) whether trial counsel was ineffective for failing to argue that the Commonwealth violated due process by setting forth a theory of criminal liability in Appellant's trial that was inconsistent with the theory of criminal liability it pursued in Curley's trial; (2) whether the Commonwealth violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose agreements it had entered into with key Commonwealth witnesses Curley and Schrader; and, (3) whether trial counsel was ineffective for failing to investigate and present sufficient mitigation evidence during the penalty phase of trial.
At the evidentiary hearing, Appellant did not question counsel regarding his trial strategy as it related to each claim of ineffectiveness presented. Further, when Appellant questioned counsel regarding his general handling of the direct appeal, counsel responded that he had no recollection of any particular appellate strategy. See N.T. May 31, 2006 at 49 (where counsel states, "I don't remember anything about the appeal. I wasn't aware that you were going to ask me questions in this area, and I made no attempt to refresh my recollection. It's been ten years and I don't have a good memory."). Counsel went on to testify, however, that his general appellate strategy was to raise any issue on appeal "that might well be viable." Id. at 50. *fn6
On June 30, 2009, the PCRA court issued an opinion and order denying collateral relief. The court found that while Appellant raised 19 issues in his PCRA petition, he pursued only the three aforementioned claims at the PCRA hearing and in his brief. As to the first issue addressed at the PCRA hearing, the court held that because there were no inconsistencies between the Commonwealth's theories in the separate prosecutions of Appellant and Curley, no due process violations resulted, and there was no basis for an ineffectiveness claim. The court reasoned that it was not inconsistent to argue in Appellant's trial that he solicited Curley to commit murder, and argue in Curley's trial that Curley was not under duress and acted with free will. It held that the evidence supported a finding that Curley was motivated to commit the offenses by both his fear of Appellant, and his belief that it would be "neat" to be a "hit man."
Concerning the second issue addressed at the PCRA hearing, the court held that the Commonwealth did not violate Brady by failing to disclose agreements it had purportedly entered into with Commonwealth witnesses Curley and Schrader. In reaching this conclusion, the PCRA court made specific factual findings based upon conflicting evidence presented, which is described in detail infra. As to Curley, the court found as a matter of fact that no undisclosed agreement existed between the Commonwealth and Curley; thus there was no exculpatory or impeaching evidence that the Commonwealth had a duty to disclose under Brady. As to Schrader, the court found that although the Commonwealth had entered into a non-prosecution agreement with Schrader, it had revoked the agreement prior to when Schrader testified at Appellant's trial. Thus, the PCRA court concluded that there was no undisclosed agreement that might have served to impeach Schrader, and no undisclosed exculpatory evidence. The PCRA court further held that Schrader's testimony was not critical to the prosecution, and, thus, any failure to disclose evidence to impeach Schrader's testimony did not prejudice Appellant.
Finally, the PCRA court held that trial counsel was not ineffective for failing to present sufficient mitigating evidence. It concluded that while counsel devoted little time to developing mitigation evidence, and presented scant evidence at the penalty hearing, there was virtually no mitigation evidence available to trial counsel. Thus, the court held that Appellant failed to demonstrate that he was prejudiced by counsel's performance in this regard.
In response to Appellant's Concise Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925(b), the PCRA court issued an opinion on December 30, 2009, referencing its June 30, 2006 opinion, which addressed the three claims described above. The court further explained that the remaining substantive claims were waived for failure to raise them on direct appeal, and the derivative ineffectiveness claims failed because Appellant "failed to produce evidence that counsel's chosen course of action had no reasonable basis designed to effectuate his client's interests." PCRA Ct. Opinion, Dec. 30, 2009, at 1. The court further held:
Simply stated, Appellant cannot prove appellate counsel's ineffectiveness by merely identifying arguably meritorious claims. He must present evidence proving that appellate counsel had no reasonable strategic basis for failing to pursue the claims. Having failed to explore appellate counsel's reasoning, Appellant has not overcome the presumption that appellate counsel provided effective representation.
In his direct appeal from the denial of PCRA relief, Appellant now raises 13 issues. Our review of a PCRA court's decision is limited to examining whether the PCRA court's findings of fact are supported by the record, and whether its conclusions of law are free from legal error. Commonwealth v. Colavita, 993 A.2d 874, 886 (Pa. 2010). The scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the PCRA court level. Id.
To be eligible for PCRA relief, Appellant must prove by a preponderance of the evidence that his conviction or sentence resulted from one or more of the enumerated circumstances found at 42 Pa.C.S. § 9543(a)(2) (listing, inter alia, the ineffective assistance of counsel and the unavailability at the time of trial of exculpatory evidence, which would have changed the outcome of the trial had it been introduced). Further, Appellant must demonstrate that the issues raised in his PCRA petition have not been previously litigated or waived. Id. § 9543(a)(3). An issue has been previously litigated if "the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue." Id. § 9544(a)(2). A PCRA claim is waived "if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state post[-]conviction proceeding." Id. § 9544(b).
The majority of Appellant's claims challenge the effectiveness of prior counsel. It is well-established that counsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrate that counsel's performance was deficient and that such deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 687-91 (1984). This Court has characterized the Strickland standard as tripartite, by dividing the performance element into two distinct parts. Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987). Thus, to prove counsel ineffective, Appellant must demonstrate that: (1) the underlying legal issue has arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3) Appellant was prejudiced by counsel's act or omission. Id. at 975.
Relating to the reasonable basis prong, "[g]enerally, where matters of strategy and tactics are concerned, counsel's assistance is deemed constitutionally effective if he chose a particular course that had some reasonable basis designed to effectuate his client's interests." Colavita, 993 A.2d at 887 (citing Commonwealth v. Howard, 719 A.2d 233, 237 (Pa. 1998)). Courts should not deem counsel's strategy or tactic unreasonable "unless it can be concluded that an alternative not chosen offered a potential for success substantially greater than the course actually pursued." Id. Also "[a]s a general rule, a lawyer should not be held ineffective without first having an opportunity to address the accusation in some fashion. . . . The ultimate focus of an ineffectiveness inquiry is always upon counsel, and not upon an alleged deficiency in the abstract." Colavita, 993 A.2d at 895.
Relating to the prejudice prong of the ineffectiveness test, the PCRA petitioner must demonstrate "that there is a reasonable probability that, but for counsel's error or omission, the result of the proceeding would have been different." Commonwealth v. Ly, 980 A.2d 61, 73 (Pa. 2009). Particularly relevant herein, it is well- settled that "a court is not required to analyze the elements of an ineffectiveness claim in any particular order of priority; instead, if a claim fails under any necessary element of the Strickland test, the court may proceed to that element first." Commonwealth v. Lesko, 15 A.3d 345, 374 (Pa. 2011) (citing Strickland, supra; Commonwealth v. Albrecht, 720 A.2d 693, 701 (Pa. 1998)).
As Appellant was represented by the same counsel at trial and on direct appeal, the first opportunity for him to challenge trial counsel's performance was on collateral review. See Commonwealth v. Bennett, 930 A.2d 1264, 1274 (Pa. 2007) (recognizing general rule that counsel cannot raise his own ineffectiveness).*fn7 Under these circumstances, we need not examine appellate counsel's performance when addressing ineffectiveness claims that derive from an act or omission of trial counsel. See Commonwealth v. Hughes, 865 A.2d 761, 775 n.7 (Pa. 2004) (providing that when appellant was represented by the same counsel at trial and on direct appeal, the PCRA proceeding is the first opportunity to challenge the stewardship of prior counsel and the analysis of such issue does not involve a layered claim of ineffectiveness). Stand-alone claims of appellate counsel ineffectiveness, which specifically challenge the manner by which appellate counsel litigated a claim on appeal (as opposed to the failure to raise an issue on direct appeal), will be examined, as these claims do not arise from counsel's acts or omissions at trial, and the PCRA proceeding is the first opportunity to challenge appellate counsel's performance in this regard.
Appellant argues that the Commonwealth violated Brady by failing to disclose the separate agreements that it had entered into with Commonwealth witnesses Curley and Schrader. Before examining the details of the purportedly undisclosed agreements, we review the relevant law. In Brady, the United States Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87. This Court has held that to prove a Brady violation, the defendant has the burden of demonstrating that: "(1) the prosecutor has suppressed evidence; (2) the evidence, whether exculpatory or impeaching, is helpful to the defendant, and (3) the suppression prejudiced the defendant." Commonwealth v. Carson, 913 A.2d 220, 245 (Pa. 2007) (citing Commonwealth v. Collins, 888 A.2d 564, 577-78 (Pa. 2005)). Prejudice is demonstrated where the evidence suppressed is material to guilt or innocence. Ly, 980 A.2d at 75. Further, "[f]avorable 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Commonwealth v. Paddy, 15 A.3d 431, 450 (Pa. 2011) (citations omitted).
With this background in mind, we proceed to review Appellant's claims as they relate to the separate agreements allegedly entered into between the Commonwealth and Curley and Schrader.
A. Purported Undisclosed Agreement with Curley
Initially, we acknowledge that Curley's testimony was critical to the prosecution as it served as the primary evidence that Appellant not only solicited Curley to kill the victims, but also threatened to kill Curley if he did not carry out the murders. As noted, Curley testified at Appellant's trial that the Commonwealth had agreed that Curley's cooperation with the authorities would serve as mitigating evidence at Curley's upcoming sentencing proceeding. Appellant contends, however, that Curley entered into a separate agreement with the Commonwealth, whereby he would testify against Appellant in exchange for the nolle pros of charges relating to the instant murders, including all counts of criminal conspiracy, kidnapping, and aggravated assault, and one count each of endangering the welfare of a child, and possession of an instrument of crime. He asserts that, immediately before Curley's bench trial, the Commonwealth dismissed these charges against Curley in exchange for his testimony against Appellant, and that such agreement constituted important impeachment evidence that the Commonwealth, pursuant to Brady and its progeny, was required to disclose.
In support of this claim, Appellant presented at the PCRA hearing the testimony of Attorney Kyle Rude, Curley's defense counsel. Attorney Rude testified that Curley had no incentive to testify against Appellant because District Attorney McGinnis had refused "to take the death penalty off the table." N.T. Jun. 1, 2006, at 27. Attorney Rude further stated that on March 6, 1996, immediately prior to Curley's bench trial on stipulated facts, he asked District Attorney McGinnis to "drop any of the charges" against Curley. See id. at 28 (wherein Attorney Rude testified that "[a]t the last moment we agreed or I asked Mister McGuiness if he would be willing to drop any of the charges, just prior to the case stated trial. And that was not something that was for Mister Curley's testimony, but I call it a last little push - a nudge, at the end, before the case stated trial"). While conceding that the District Attorney did not expressly agree to dismiss the charges at issue in exchange for Curley's testimony against Appellant, Attorney Rude testified that the Commonwealth actually dismissed such charges shortly after he requested the same. Id. at 53, 58, 74. Appellant characterizes such action as an undisclosed deal between the Commonwealth and Curley, which the Commonwealth had an obligation to disclose to Appellant.*fn8
The Commonwealth, however, presented evidence at the PCRA hearing disputing the existence of an undisclosed deal between Curley and the Commonwealth. Specifically, the Commonwealth presented the testimony of District Attorney McGinnis who explained that he agreed to nolle pros several charges against Curley prior to Curley's bench trial solely because he desired to make the case easier for the trial judge to render a prompt decision, as he wanted to have at least the guilt phase of Curley's trial concluded prior to Appellant's trial. Id. at 100. District Attorney McGinnis testified that the Commonwealth had very strong evidence against Curley supporting two counts of first degree murder and burglary, and was not concerned with the kidnapping and misdemeanor charges. Id. He further definitively stated that dismissing the lesser charges was never part of an agreement with Curley to obtain his testimony against Appellant. Id. at 99. Rather, District Attorney McGinnis emphasized, the full extent of the Commonwealth's agreement with Curley, as explained on the record at Appellant's trial, was that the Commonwealth agreed to stipulate that Curley's cooperation in Appellant's prosecution would serve as mitigating evidence at Curley's sentencing. Id.
The PCRA court credited the testimony of District Attorney McGinnis and found as a matter of fact that there was no undisclosed agreement between Curley and the Commonwealth. Consistent with both District Attorney McGinnis' testimony at the PCRA hearing and Curley's testimony at Appellant's trial, the PCRA court held that the only consideration for Curley's testimony was that it would serve as mitigating evidence at Curley's sentencing hearing -- a fact of which Appellant's jury was keenly aware. The court concluded that the "deal" that Appellant faulted the Commonwealth for not disclosing did not exist, thus, there was no Brady violation.
The Commonwealth argues that there is ample support in the record for the PCRA court's factual finding that no undisclosed agreement existed between the Commonwealth and Curley, thus, no impeachment evidence was suppressed. It relies on the testimony of District Attorney McGinnis, as referenced above, as well as Curley's testimony at Appellant's trial that the only benefit he received in exchange for his testimony against Appellant was that such testimony would serve as mitigating evidence at Curley's sentencing. The Commonwealth points out that the PCRA court credited the testimony of District Attorney McGinnis, and that this Court cannot, pursuant to Appellant's suggestion, reweigh the evidence presented.
Upon careful review of the record, we agree with the Commonwealth that there is ample support for the PCRA court's factual finding that the Commonwealth's dismissal of lesser criminal charges prior to Curley's murder trial did not serve as consideration for Curley's subsequent testimony at Appellant's trial. See id. at 99 (where District Attorney McGuiness indicates that the agreement with Curley did not, in any way, include the dismissal of certain charges against Curley). Because there was no undisclosed agreement between the Commonwealth and Curley regarding the dismissal of charges against Curley, no exculpatory or impeaching evidence existed that the Commonwealth had an obligation to disclose under Brady. Appellant was, therefore, properly denied collateral relief on this claim.*fn9
B. Purported Agreement with Schrader
Appellant next argues that the Commonwealth violated Brady by failing to disclose that, in exchange for Schrader's testimony against Appellant, the Commonwealth had agreed not to prosecute Schrader for any offenses related to the instant murders. As noted, Schrader testified at Appellant's trial that he observed Curley and Appellant discuss plans to kill Clark, and that later that day, he heard gunshots being fired in his garage, and saw Curley in the garage with his arm extended. The cars in the garage purportedly blocked Schrader's view of Curley's gun and Clark. Schrader's testimony was critical to the prosecution, Appellant maintains, because Schrader was the only witness who could corroborate Curley's version of the events. Schrader also testified at Appellant's trial that he did not receive promises of leniency from the Commonwealth in exchange for his testimony. Appellant submits that the Commonwealth emphasized this in its closing argument when the prosecutor told the jury there were no offers of immunity and no deals to obtain Schrader's testimony. See N.T. Apr. 10, 1996, Vol. XXVI, at 21 (where the prosecutor, in closing argument, stated that no immunity was given to Schrader and that Schrader's testimony could be used against him). This was false, Appellant argues, because the evidence at the PCRA hearing demonstrates that a non-prosecution agreement existed.
Although Schrader had no charges pending against him at the time of Appellant's trial, Appellant points out that Schrader was arrested one month later and charged with hindering apprehension or prosecution, aiding consummation of a crime, and criminal conspiracy, stemming from the instant murders. The Commonwealth's information charged that Schrader, knowing that Curley had already killed Clark upon Appellant's direction, intentionally aided Curley and Appellant in an unlawful objective by supplying the .22 caliber bullets, which Curley used to shoot Hopper. See Commonwealth v. Schrader, Trial Ct. Slip Op., May 27, 1997, at CP-08-CR-286-1996, at 1-2. Following Schrader's arrest, ...