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Commonwealth v. Weiss

Supreme Court of Pennsylvania

October 31, 2013

COMMONWEALTH of Pennsylvania, Appellee
v.
Ronald Lee WEISS, Appellant.

Submitted Nov. 20, 2012.

Appeal from the Order entered on March 19, 2012 in the Court of Common Pleas, Criminal Division, of Indiana County at No. CP-32-CR-0000218-1997. Trial Court Judge: John H. Foradora, President Judge.

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James Joseph McHugh Jr., Esq., Shawn Nola, Esq., Defender Association of Philadelphia, for Ronald Lee Weiss.

Gregory Joseph Simatic, Esq., Amy Zapp, Esq., PA Office of Attorney General, for Commonwealth of Pennsylvania.

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.

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OPINION

BAER, Justice.

Ronald Lee Weiss (Appellant) appeals from the denial of guilt-phase claims raised in his petition for post-conviction relief, filed pursuant to 42 Pa.C.S. § 9541 et seq. We conclude that the Post Conviction Relief Act (PCRA) court's rejection of Appellant's guilt-phase claims was supported by the record and free from legal error. Because the PCRA court granted relief on a penalty phase issue and the Commonwealth has not cross-appealed, Appellant will be afforded a new penalty hearing. Accordingly, the order of the PCRA court is affirmed.

As we described in our opinion on Appellant's direct appeal, sixteen-year old Barbara Bruzda (Victim) was last seen on October 23, 1978, playing pool with Appellant at her family's tavern and later that evening at a party with Appellant at the home of Henry Hobart. See Commonwealth v. Weiss, 565 Pa. 504, 776 A.2d 958 (2001)( Weiss I ). Several witnesses saw Victim and Appellant leave the party together. Before he left the party, Appellant may have borrowed a jack and tire iron from Mr. Hobart, which he never returned. [1] Five months later, on March 20, 1979, hikers found the victim's body wrapped in a distinctive, homemade red and white quilt in a remote area of Indiana County.

At the time of Victim's disappearance, Appellant lived with his wife, Sharon Pearson (Ex-wife). Although suspicion immediately fell on Appellant, the police were initially unable to obtain sufficient evidence of Appellant's guilt. In 1985, however, after Ex-wife separated from Appellant, she reported to the police that on the night of October 23, 1978, Appellant had been driving the Buick the couple shared. She cleaned out the car on October 24, 1978, as was her custom after Appellant drove the vehicle, and she made two important observations. First, she observed blood on the back of the front seat, on the interior of the roof, and on the back seat of the car. Second, she observed that the red and white quilt she kept in the car to cover the damaged back seat was missing. She was able to identify the quilt in which the victim's body was found as the handmade quilt that was missing from the car. Appellant gave the car to a junkyard in the Spring of 1979 even though, according to Ex-wife's subsequent testimony, nothing was apparently wrong with it.

Appellant was arrested in 1985. However, the prosecutor nolle prossed the charges in 1987, when the trial court determined that Ex-wife was incompetent to testify due to spousal privilege. See 42 Pa.C.S. § 5913 (1987) (barring spouses from testifying against each other).[2] This section was amended in 1989 to permit spousal testimony in cases of homicide.[3]

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An investigative grand jury was empaneled in 1993, but did not return an indictment.

Meanwhile, in 1989 Appellant committed a robbery and assault with a codefendant, David Townsend, which involved striking another man with a tire iron. During his incarceration before and after the assault, Appellant was briefly confined, at different times, with Kermeth Wright and Samuel Tribuiani. Each of these three men (Townsend, Wright, and Tribuiani) later testified at Appellant's trial that they heard Appellant confess to the murder of Victim.

In 1995, police still had made no arrest in Victim's murder, other than the aborted 1985 arrest of Appellant. The Commonwealth again reviewed the circumstances surrounding the murder, and concluded that it still had insufficient evidence to prosecute Appellant successfully. Following this 1995 decision not to prosecute, prosecutors became aware of the statements from two jailhouse informants, Kermeth Wright and Samuel Tribuiani, who stated that Appellant confessed to them individually and at separate times that he killed the victim. Finally, with this new evidence, Appellant was arrested and charged with Victim's murder on February 19, 1997. The trial court appointed counsel to represent Appellant. Appointed counsel moved for the appointment of new counsel, asserting a conflict of interest premised on one of Appellant's attorneys' prior representation of one of the Commonwealth witnesses against Appellant, Kermeth Wright. The trial court denied the motion without a hearing.

During pre-trial discovery, the Commonwealth identified Kermeth Wright and Samuel Tribuiani as potential witnesses. The Commonwealth averred that there were no deals with these witnesses, and it had not made any promises to them in exchange for their cooperation. At Appellant's trial, the Commonwealth introduced twenty-six witnesses. The Commonwealth's forensic evidence demonstrated that the victim died of massive skull fractures inflicted with an object such as a pry bar, pipe, or tire iron, and that Victim was hit at least twice.

The victim's mother, Roxie Bruzda, (Victim's Mother) testified that she observed Victim and Appellant playing pool at the family's tavern on the night she disappeared. Several other witnesses testified that they saw Appellant with Victim at Mr. Hobart's house the night she disappeared, and Mr. Hobart testified about possibly providing Appellant with a jack and tire iron. Ex-wife testified consistently with her prior statement to police that she and Appellant shared a car, that Appellant used the car the night the victim disappeared, and that the day after the disappearance, she observed " a lot" of blood in the car, specifically, on the back of the front seats, the back seat, and the interior roof. She testified that Appellant told her the blood came from a small abrasion on his knuckle. Ex-wife further identified the distinctive handmade quilt, in which Victim's body was found, as the one she kept in the back seat of the Buick, which was missing from the car the morning after Victim disappeared.[4]

Additionally, through the testimony of several witnesses, the Commonwealth introduced

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evidence of Appellant's evolving explanations of what transpired on October 23, 1978. Specifically, Victim's Mother telephoned Appellant on October 25, 1978, looking for her daughter. Appellant explained that he left the tavern shortly after Victim left, and saw the victim hitchhiking with a young man. Appellant stated that he picked up the two hitchhikers, who indicated they were on their way to Saltsburg, Pennsylvania, and dropped them off in Clarksburg, Pennsylvania. Appellant added that Victim had been running away from home. Unsatisfied with his response, Victim's Mother drove to Appellant's residence and confronted him. Appellant added to his prior explanation that when he dropped the two hitchhikers off, there was a black pick-up truck waiting for them, and the two hitchhikers got into the truck and it drove away in the direction of Saltsburg.

A police officer with the Young Township, Pennsylvania, Police Department, Trooper Jakela, testified that on October 25, 1978, he received information that the victim may be at Appellant's residence. While he was investigating this tip, Appellant repeated the explanation he had provided to Victim's Mother. Appellant also offered a physical description of the driver of the pick-up truck. Appellant repeated this explanation to police again in November and December, 1978, and January, 1979, explaining that after he dropped the hitchhikers off, he went straight home. Appellant did not mention attending the party at Mr. Hobart's house. None of the witnesses who observed Appellant in the days following Victim's disappearance observed any injuries on Appellant.[5]

Following the presentation at trial of testimony of Appellant's repeated assertions to others that he picked up Victim while she was hitchhiking and dropped her off in Clarksburg, the Commonwealth offered the testimony of several witnesses who observed Appellant and Victim arrive together at Henry Hobart's house on the evening of October 23, 1978, and testified that the two were affectionate to each other, and that they left the party together. The Commonwealth next offered the testimony of two witnesses who received correspondence from Appellant after he was arrested for the victim's murder, and after he was aware that the Commonwealth had several witnesses who saw Appellant with Victim at Mr. Hobart's house (thereby refuting his explanation that he dropped her off in Clarksburg and went home).

In this correspondence, Appellant detailed a different version of what transpired on October 23, 1978. Specifically, he indicated that he did not kill Victim but he knew who did, and identified his ex-wife's two brothers, Larry and Gary Priest. Appellant explained that he believed his ex-wife asked her brothers to kill him because of a life insurance policy, and that the brothers attempted to comply while Appellant was driving Victim home after leaving Mr. Hobart's party. He stated that as he was driving down a remote road, the Priest brothers, driving two separate cars, intercepted him, stopped his car, pulled him out of the vehicle, beat him until he was unconscious, left him to die, and when he awoke, the victim was gone. He believed they killed Victim because she witnessed the assault. He explained that he did not come forward with what happened because the brothers had threatened the life of his parents, wife, and children if he ever told anyone what had happened.

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Ernest Sachweh testified for the Commonwealth that he was with Appellant on a day in the fall of 1978, just after the disappearance, when Victim's Mother came to Appellant's house looking for the victim. After Victim's Mother left, Appellant told Mr. Sachweh that he wished she would leave him alone, and, to that end, asked Mr. Sachweh to call Victim's Mother and report falsely that he had seen the victim alive and well with her boyfriend, and that she just wanted to be left alone. Mr. Sachweh did not comply.

Mr. Wright and Mr. Tribuiani testified for the Commonwealth that while incarcerated for other crimes Appellant confessed to each of them that he had killed Victim. Mr. Wright testified that Appellant confessed to him in 1985, and Mr. Tribuiani testified that Appellant confessed to him in 1993 that he killed Victim to prevent her from " tell[ing] on their sex parties and they were in some kind of weed business or whatever." Notes of Testimony (N.T.), 7/7/1997, p. 557. Mr. Wright and Mr. Tribuiani testified that they had received no special treatment in exchange for their testimony. James Drylie testified that he had observed marijuana plants growing on Appellant's property.

Appellant testified on his own behalf and denied any involvement. His testimony centered on explaining the discrepancy in his initial statements to police and his subsequent version implicating the Priest brothers. He admitted that his hitchhiker story was a lie. Instead, according to his trial testimony, after he left the tavern he saw two people hitchhiking, stopped to give them a ride, and recognized one of them as Victim. He testified that they asked for a ride to Clarksburg, but the victim changed her mind and asked instead for a ride to Mr. Hobart's house. Appellant dropped off the male hitchhiker, and continued to Mr. Hobart's house with Victim. Once there, according to Appellant, he decided to stay for a short while because he had something to discuss with Mr. Hobart. As he was leaving the party, Victim requested a ride home. Appellant complied, and, while Victim was a passenger in his car on a remote road, two vehicles, each driven by one of the Priest brothers, forced his car to stop; dragged him from his car; beat him with a club; left him unconscious in a ditch; and, when he regained consciousness, Victim was gone. Appellant maintained that the Priest brothers acted at the direction of Ex-wife, their sister. He further testified that when he awoke, he went to his mother's house to tend to his injuries, thus attempting to explain the blood in the car. He stated that he did not reveal the truth before trial because the following morning, the brothers accosted him in the parking lot of a mall and told him that if he ever told anyone about the beating they would kill him and his family.[6] In the course of testifying, Appellant stated that he could never strike someone with a tire iron.

In rebuttal, the Commonwealth called David Townsend, who testified that in 1989 he observed Appellant strike someone with a tire iron in a robbery and assault. Mr. Townsend further testified that, also in 1989, Appellant confessed that he had killed a girl, and if Mr. Townsend did not keep quiet about the 1989 assault, he would end up like Victim.[7]

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On July 9, 1997, the jury found Appellant guilty of first-degree murder. Following a penalty hearing where the jury found one aggravating circumstance (a significant history of violent felony convictions involving the use or threat of violence) and no mitigating circumstances, the jury sentenced Appellant to death. Appellant appealed, represented by trial counsel. We affirmed. See Weiss I.

Following our affirmance, counsel from the Defender Association of Philadelphia represented Appellant for post-conviction proceedings. On May 15, 2003, Appellant filed a counseled PCRA petition raising nineteen claims of entitlement to relief. Appellant argued that the Commonwealth had violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to provide Appellant's counsel with copies of letters it had written to the Department of Corrections and the Board of Probation and Parole (Parole Board), among others, asking those authorities to consider the cooperation of Commonwealth witnesses Mr. Wright and Mr. Tribuiani when deciding whether to grant them parole.[8] Appellant also claimed that trial counsel represented him under a conflict of interest because of the prior representation of Commonwealth witness, Mr. Wright. The PCRA court held hearings on the petition in March, 2007.

Following the hearings, on July 31, 2007, the PCRA court issued an opinion and order granting Appellant a new trial. The court found that the Commonwealth had violated its obligations under Brady, by failing to disclose impeachment evidence relevant to the credibility of Mr. Wright and Mr. Tribuiani. Considering the testimony of these two witnesses to be " the crux" of the Commonwealth's case, and their credibility of " grave importance," the court awarded a new trial on that basis. PCRA Court Findings of Fact, 10/31/2007, at 1. With regard to the conflict of interest claim, the PCRA court held that the trial court erred by failing to conduct a hearing on the motion for the appointment of new counsel, and concluded that trial counsel had an actual conflict of interest in representing Appellant, because counsel was simultaneously representing a Commonwealth witness, Mr. Wright, on an unrelated matter.

The Commonwealth appealed the PCRA court's grant of a new trial to this Court. See Commonwealth v. Weiss, 604 Pa. 573, 986 A.2d 808 (2009)( Weiss II ). We reversed. We recognized that due process is offended when the prosecution withholds evidence favorable to the accused, Brady, 373 U.S. at 87, 83 S.Ct. 1194, that impeachment evidence falls within the Brady rule, and that 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." United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Reviewing the opinion of the PCRA court, we held that the court did not make any explicit determination

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as to whether the prosecution's failure to disclose information relating to Mr. Wright's and Mr. Tribuiani's credibility created a reasonable probability of a different outcome. Weiss II, 986 A.2d at 815. Instead, " a fair reading of the PCRA court's cursory opinions in this matter reflects that the court concluded a new trial was warranted apparently simply because the Commonwealth failed to disclose alleged impeachment evidence that would have been helpful to the defense." Id.

This Court further disagreed with the PCRA court's characterization of the jailhouse informants' testimony as the crux of the Commonwealth's case, and found that this finding was erroneous and not supported by the record. Id. at 816. Rather, focusing on the evidence against Appellant, the Court held that other testimony was damaging to the defense and helpful to the prosecution. Accordingly, the Court remanded to the PCRA court for it to address the salient inquiry of whether Appellant received a fair trial under the circumstances. Id. (citing Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (holding that in determining whether there is a reasonable probability of a different outcome resulting from the prosecution's suppression of Brady material, " [t]he question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." )). We directed the PCRA court that in making this determination, it was to review all of the evidence presented at trial for the potential negative effect disclosure of the impeachment evidence would have had thereon. Weiss II, 986 A.2d at 816.[9]

We next turned to the Commonwealth's argument that the PCRA court erred in reaching the merits of Appellant's claim that counsel acted under a conflict of interest, because, according to the Commonwealth, Appellant waived it by not challenging on direct appeal the trial court's pre-trial ruling rejecting his motion for appointment of new counsel. We agreed that the only viable claim resulting from the trial court's failure in this regard was a claim of counsel ineffectiveness for failing to raise this issue on appeal. On the merits of the ineffectiveness issue, we expressed disagreement with the PCRA court's finding that counsel was conflicted due to simultaneous representation of Appellant and Mr. Wright. Rather, this Court's review of the record revealed that the circumstances here involved successive, rather than simultaneous, representation. Specifically, the public defender's office began representing Mr. Wright in an unrelated matter in August 1995, Mr. Wright was sentenced January 15, 1996, and Appellant's trial began after Mr. Wright's sentence was imposed.

When the case was remanded, the PCRA court judge who originally heard the case and who had granted a new trial had retired. Consequently, the case was reassigned to another judge, who granted

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a de novo hearing. When this judge's unexpected death preceded completion of that hearing, a third judge was appointed to hear the case. The new judge incorporated the existing PCRA record by agreement of the parties, held a three-day hearing at which the parties submitted additional evidence, and issued an opinion on the merits denying relief on all guilt phase issues.

With respect to the remanded Brady issue concerning Mr. Wright and Mr. Tribuiani, the PCRA court accepted the prior PCRA court's finding that the prosecution violated its duty to disclose evidence favorable to the accused by withholding information that the defense could have utilized to impeach Mr. Wright and Mr. Tribuiani. It held, however, that the Commonwealth's failure in this regard did not deprive Appellant of a fair trial or undermine confidence in the verdict.

In reaching this conclusion the PCRA court examined the evidence against Appellant as a whole. It observed that the two jailhouse informants were not the sole witnesses against Appellant, and highlighted other compelling evidence against Appellant: the testimony of David Townsend that Appellant had confessed to killing Victim; testimony establishing that Appellant and Victim left the party at Mr. Hobart's house together; testimony by Ex-wife about the blood in the car and identifying the blanket in which the victim's body was found as the one which was missing from the car Appellant drove the night Victim disappeared; and testimony by Ernest Sachweh that Appellant asked him to lie to Victim's Mother on his behalf.

According to the PCRA court, however, the most damning evidence against Appellant was his own testimony, which it stated would have guaranteed a conviction even if the jury had known of the impeachment evidence against Mr. Wright and Mr. Tribuiani.

The court considered that Appellant's trial testimony was not persuasive, and that it failed to answer numerous questions, such as why Victim changed her mind and decided to go to Mr. Hobart's house, and then home, when Appellant was leaving; why she and Appellant appeared friendly and even affectionate together at the party; how the Priest brothers could have known Appellant would be on a certain road at a certain time when even Appellant did not know he would be driving Victim home from Mr. Hobart's house; despite his assertion that the brothers split his head open, no one who saw him thereafter witnessed any injuries except, according to Appellant, his mother, who had passed away by the time of trial; his claim that he believed Ex-wife asked her brothers to kill him was not consistent with his returning home to her following the alleged assault and continuing to live with her; he did not explain how the Priest brothers knew he would be in the mall parking lot the following morning, where he testified they threatened him; and why the threat to his family allegedly kept Appellant quiet about Victim's murder long after his parents had died, his children had grown, and his wife had divorced him. The PCRA court held that Appellant's testimony left the jury with the impression of a man, on trial for his life, who only remembered the details he had fabricated and who, having admittedly lied to the police and others for nearly twenty years, was still being untruthful about what happened on October 23, 1978.

With regard to the post-conviction penalty phase issues, the Commonwealth conceded that penalty phase relief was appropriate, and the PCRA court agreed, thereby granting a new penalty phase. The Commonwealth has not appealed,

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leaving only guilt phase issues for our review on appeal.

In reviewing the denial of PCRA relief, we examine whether the PCRA court's determination " is supported by the record and free of legal error." Commonwealth v. Sepulveda, __ Pa. __, 55 A.3d 1108 (2012) (citing Commonwealth v. Rainey, 593 Pa. 67, 928 A.2d 215, 223 (2007)); Commonwealth v. Miller, 585 Pa. 144, 888 A.2d 624 (2005). The PCRA provides that to be entitled to relief, a petitioner must establish, by a preponderance of the evidence, that his conviction or sentence resulted from one or more of the enumerated errors in Section 9543(a)(2), and his claims have not been previously litigated or waived. 42 Pa.C.S. § 9543(a)(2).[10] An issue is previously litigated if " the highest appellate court in which [the appellant] could have had review as a matter of right has ruled on the merits of the issue." 42 Pa.C.S. § 9544(a)(2). An issue is waived if the appellant " could have raised it but failed to do so before trial, at trial, ... on appeal or in a prior state postconviction proceeding." 42 Pa.C.S. § 9544(b).

To succeed on a claim of ineffective assistance of counsel, a PCRA petitioner must satisfy the performance and prejudice test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Sepulveda, 55 A.3d at 1117. In Pennsylvania, we have applied the Strickland test by looking to three elements. The petitioner must establish that: (1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's actions or failure to act; and (3) the petitioner suffered prejudice as a result of counsel's error such that there is a reasonable probability that the result of the proceeding would have been different absent such error. Sepulveda, 55 A.3d at 1117 (citing Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975 (1987)); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (explaining that, to establish an ineffective assistance claim, a defendant must show that counsel's performance was deficient and that such deficiencies prejudiced the defense). See also Commonwealth v. Williams, 594 Pa. 366, 936 A.2d 12, 19 (2007) (" It is settled that the test for counsel ineffectiveness is the same under both the Pennsylvania and Federal Constitutions: it is the performance and prejudice

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test set forth in Strickland v. Washington ...." ) (quoting Commonwealth v. Gribble, 580 Pa. 647, 863 A.2d 455, 460 (2004) (collecting cases)). Counsel is presumed to have rendered effective assistance. Sepulveda, 55 A.3d at 1117. Finally, both the U.S. Supreme Court and this Court have made clear 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. Id. at 1117-18; Strickland, supra; Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 701 (1998). Counsel cannot be deemed ineffective for failing to raise a meritless claim. Commonwealth v. Jones, 590 Pa. 202, 912 A.2d 268, 278 (2006).

I. Brady claims

Due process is offended when the prosecution withholds material evidence favorable to the accused. Brady, 373 U.S. at 87, 83 S.Ct. 1194. See also Weiss II, 986 A.2d at 814; (citing Commonwealth v. Strong, 563 Pa. 455, 761 A.2d 1167 (2000)). The Brady rule encompasses impeachment evidence such as information as to any potential understanding between the prosecution and a witness, because such information is relevant to the witness's credibility. See United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (holding that impeachment evidence, as well as exculpatory evidence, falls within the Brady rule); Commonwealth v. Spotz, 616 Pa. 164, 47 A.3d 63, 84 (2012); Strong, 761 A.2d at 1175 (" Impeachment evidence which goes to the credibility of a primary witness against the accused is critical evidence and it is material to the case [even when] that evidence is merely a promise or an understanding between the prosecution and the witness." ). Thus, to establish a Brady violation, an appellant must prove three elements: (1) the evidence at issue is favorable to the accused, either because it is exculpatory or because it impeaches; (2) the evidence was suppressed by the prosecution, either willfully or inadvertently; and (3) prejudice ensued. Spotz, 47 A.3d at 84; Commonwealth v. Lambert, 584 Pa. 461, 884 A.2d 848, 854 (2005).

Pursuant to Brady and its progeny, the prosecutor has a duty to learn of all evidence that is favorable to the accused which is known by others acting on the government's behalf in the case, including the police. Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Pursuant to Kyles, " the prosecutor's Brady obligation clearly extends to exculpatory evidence in the files of police agencies of the same government bringing the prosecution." Commonwealth v. Burke, 566 Pa. 402, 781 A.2d 1136, 1142 (2001). Moreover, there is no Brady violation when the defense has equal access to the allegedly withheld evidence. See Commonwealth v. Spotz, 587 Pa. 1, 896 A.2d 1191, 1248 (2006) (" It is well established that no Brady violation occurs where the parties had equal access to the information or if the defendant knew or could have uncovered such evidence with reasonable diligence." (internal citation omitted)).

As we explained in Weiss II, 986 A.2d at 814-15, where we addressed the relevant legal standard to employ in assessing the prejudice prong of Appellant's Brady claims, " 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, 514 U.S. at 433, 115 S.Ct. 1555 (quoting Bagley, 473 U.S. at 682, 105 S.Ct. 3375). " A reasonable probability is a probability sufficient to undermine

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confidence in the outcome." Bagley, 473 U.S. at 682, 105 S.Ct. 3375. In determining if a reasonable probability of a different outcome has been demonstrated, " [t]he question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Weiss II, 986 A.2d at 815 (quoting Kyles, 514 U.S. at 434, 115 S.Ct. 1555). See also Bagley, 473 U.S. at 678, 105 S.Ct. 3375 (explaining that a reasonable probability of a different result is shown when the government's suppression of evidence " undermines confidence in the outcome of the trial." ). " The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish materiality in the constitutional sense." Commonwealth v. Chambers, 570 Pa. 3, 807 A.2d 872, 887 (2002).

Rather, to be entitled to a new trial for the Commonwealth's failure to disclose evidence affecting a witness's credibility, the defendant must demonstrate that the reliability of the witness may well be determinative of his guilt or innocence. Weiss II, 986 A.2d at 815 (citing Commonwealth v. Johnson, 556 Pa. 216, 727 A.2d 1089, 1094 (1999)). See also Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) (" [t]he jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend." ). In this regard, " [m]ere speculation" by a defendant, however, will not be sufficient to meet this burden. See Wood v. Bartholomew, 516 U.S. 1, 6, 116 S.Ct. 7, 133 L.Ed.2d 1 (1995). In assessing the significance of the evidence improperly withheld, a reviewing court is to bear in mind that not every piece of evidence against a defendant would necessarily have been directly undercut had the Brady evidence been disclosed. Weiss II, 986 A.2d at 815 (citing Kyles, 514 U.S. at 451, 115 S.Ct. 1555). To establish a reasonable probability that the result of the proceeding would have been different had the evidence been disclosed, a defendant necessarily must explain how the undisclosed evidence would have changed the result of the proceeding. See Commonwealth v. Willis, 616 Pa. 48, 46 A.3d 648, 670 (2012) (Opinion announcing the judgment of the court).

Appellant raises Brady claims with respect to Mr. Wright and Mr. Tribuiani, which he discusses together, and to Mr. Townsend. We will first examine the claim which caused our prior remand, and which was premised on agreements between the Commonwealth and Mr. Wright and Mr. Tribuiani.

A. Kermeth Wright and Samuel Tribuiani

We observed in Weiss II that the first PCRA court to hear Appellant's Brady claim found without hesitation that the Commonwealth had violated its obligations under Brady by failing to disclose impeachment evidence relevant to the credibility of Tribuiani and Wright. The Commonwealth averred that it had no agreements with these witnesses and that nothing had been promised in exchange for their cooperation, and failed to provide, during discovery, copies of letters it had written to the Parole Board and the Department of Corrections, among others, asking these authorities to consider the witnesses' cooperation when deciding whether to grant them parole or other early release. Weiss II, 986 A.2d at 812. On remand from this Court, the PCRA

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court considered our decision in Weiss II to have implicitly affirmed the first PCRA court's finding that the Commonwealth violated its duty to disclose with respect to this evidence, and reasoned that both witnesses came to expect that the prosecutor's representations about their cooperation would result in leniency. Had the jurors been privy to the communications on these witnesses' behalf, according to the PCRA court, they may well ...


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