J-S41029-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF 

: PENNSYLVANIA 

 Appellee : 

: 

 v. : 

: 

GEORGE VINCENT KUBIS, : 

: 

 Appellant : No. 3347 EDA 2013 

Appeal from the PCRA Order November 4, 2013, 

Court of Common Pleas, Bucks County, 

Criminal Division at No. CP-09-CR-0008943-2007 

BEFORE: BOWES, DONOHUE and MUNDY, JJ. 

MEMORANDUM BY DONOHUE, J.: FILED AUGUST 12, 2014 

George Vincent Kubis (“Kubis”) appeals from the November 4, 2013

order entered by the Bucks County Court of Common Pleas denying his 

motion filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 

9541-9546 (“PCRA”). Following the submission of briefs in this appeal, 

counsel for Kubis filed a document in this Court entitled “Motion for Remand 

and Hearing to Assert Grounds for a New Trial on the Basis of Recent 

Pennsylvania Supreme Court Decision” (“Motion for Remand”). After careful 

review, we deny the Motion for Remand and affirm the PCRA court’s order.

 On appeal from Kubis’ judgment of sentence, a prior panel of this 

Court summarized the facts of the case as follows: 

At approximately 8:10 a.m. on August 23, 2007, 

[Kubis] entered Mr. Stencler’s hair salon wearing a 

black bandana, sunglasses, and black clothing. 

[Kubis] demanded that Stencler give him all his 
J-S41029-14

- 2 - 

money and then hit him in the head with his palm. 

After Stencler emptied the cash register, [Kubis] 

threatened to stab Stencler if he did not give [Kubis] 

the rest of the money in the store. Stencler then led

[Kubis] to the salon’s safe. As Stencler struggled 

with the safe’s combination, [Kubis] stated, ‘If you 

don’t open that safe in the next two seconds, I am 

going to run a knife through you.’ N.T., 3/12/08, at 

8. After Stencler handed over the money, [Kubis] 

instructed Stencler to stay down and threatened to 

beat him. 

[Kubis] then turned to leave the salon, ripping a 

ringing phone off the wall as he exited. Stencler did

not have a clear view of the vehicle [Kubis] fled in,

but believed it was dark in color. After [Kubis] left, 

Stencler called 911 from another phone in the salon. 

Detective John Schlotter of the Warminster Township 

Police Department spoke with Glen Ockenhouse, an 

employee of the bank located in the same shopping 

center as Stencler’s salon. Ockenhouse arrived at 

work during the robbery and witnessed a dark 

colored Jeep Cherokee parked next to the hair salon. 

He stated that the driver, a man in a black bandana 

and sunglasses, exited the Jeep and entered the 

salon. Ockenhouse was also able to provide 

Detective Schlotter with video footage from the bank 

surveillance camera which showed a dark vehicle 

resembling a Jeep driving through the bank parking 

lot. 

Detective Schlotter then received a tip from the 

Horsham Township Police Department indicating that 

[Kubis] had recently been released from prison after 

serving time for two armed robberies involving a 

knife, and had been spotted in a Jeep that matched 

the description given by Ockenhouse and seen on 

the bank video. 

Detective Schlotter proceeded to [Kubis’] apartment, 

where he found a Jeep Cherokee similar to the one 

viewed on the bank surveillance video. Inside, police 
J-S41029-14

- 3 - 

saw a black bandana, two folding knives, and a box 

cutter. After questioning [Kubis], officers seized the 

Jeep. During the seizure, [Kubis] attempted to 

remove the car from the premises, but was not 

permitted to do so. A later search of the Jeep 

pursuant to a warrant revealed sunglasses and a pair 

of gloves in its passenger compartment. 

Detective Schlotter then used computer software to 

compile a photo lineup. The detective selected seven 

photos of balding men with light complexions, 

mustaches, and blue eyes to match [Kubis’] general 

appearance. From the assembled array, Stencler 

selected photos of [Kubis] and one other man. 

Based on the foregoing, the Commonwealth arrested 

[Kubis] and charged him with robbery and related 

offenses. [Kubis] filed a motion to suppress the 

evidence found in his Jeep, claiming that the police 

violated the Fourth Amendment when they seized it. 

The trial court denied the motion and following a jury 

trial, [Kubis] was convicted of robbery under 18 

Pa.C.S. §§ 3701(a)(ii), 3701(a)(iii), respectively.[FN]

_________________ 

[FN]

 [Kubis] was also charged with two lesser graded 

counts of robbery, theft, terroristic threats, and 

simple assault. The two robbery convictions merged 

at sentencing, and no further penalty was imposed 

for any of the remaining three charges. 

Commonwealth v. Kubis, 978 A.2d 391, 392-93 (Pa. Super. 2009). 

 Kubis filed a direct appeal to this Court and on July 21, 2009, we 

affirmed his judgment of sentence. Kubis did not file a petition for allowance 

of appeal to the Pennsylvania Supreme Court. 

 On August 17, 2009, Kubis filed a timely pro se PCRA petition. The 

PCRA court appointed counsel and scheduled a hearing on the petition. At 

the hearing scheduled on May 5, 2011, the PCRA court continued the matter 
J-S41029-14

- 4 - 

for counsel to further consult with Kubis and file an amended PCRA petition. 

Counsel filed the amended PCRA petition on April 23, 2013. The PCRA court 

held a hearing on May 20, 2013, at which Kubis, his trial counsel, the trial 

prosecutor, and two members of the Warminster Township Police 

Department – Detectives Schlotter and Bonargo – testified. Following the 

hearing and the submission of briefs by the parties, the PCRA court denied 

Kubis’ requested relief.

 Kubis filed a timely notice of appeal followed by a court-ordered 

concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 

1925(b). Kubis raises one issue for our review: 

The [p]rosecution’s deliberate and premeditated 

decision to conceal from the defense before trial a 

portrait of the person who committed the robbery 

made pursuant to a description of a witness deprived 

[Kubis] of his right to a fair trial under the Fifth,

Sixth and Fourteenth Amendments to the United 

States Constitution and Article I, Sections 1 and 9 of 

the Pennsylvania Constitution, as well as 

Pa.R.Crim.Pro. 573. 

Kubis’ Brief at 11.1

 

1

 This issue is taken from the argument section of Kubis’ appellate brief, as 

it was not included in his statement of questions involved. The speedy trial 

issue specified in his statement of questions involved – the only issue raised 

therein – does not appear in the argument made on appeal and bears no 

relation to the record of the proceedings below. However, because Kubis 

included the specific question to be addressed in the argument section of his 

appellate brief and in his concise statement of errors complained of on 

appeal, we will address the issue on its merits. See Commonwealth v. 

Long, 786 A.2d 237, 239 n.3 (Pa. Super. 2001) aff’d, 572 Pa. 690, 819 A.2d 

544 (2003); but see Pa.R.A.P. 2116(a) (“No question will be considered 
J-S41029-14

- 5 - 

 Prior to addressing the merits of the issue raised, we first address 

Kubis’ Motion for Remand. On June 26, 2014, while the appeal was pending 

before this Court, Kubis filed a Motion for Remand, seeking for the case to 

be remanded so that he can file a PCRA petition based upon the 

Pennsylvania Supreme Court’s decision in Commonwealth v. Walker, __ 

A.3d __, 2014 WL 2208139 (Pa. May 28, 2014). In Walker, our Supreme 

Court held “that the admission of expert testimony regarding eyewitness 

identification is no longer per se impermissible in our Commonwealth,” id. at

*22, which Kubis asserts “represents a break with prior case law, as such 

expert testimony would not have been admissible at [Kubis’] trial, which 

hinged largely on identification evidence of him as the person who robbed 

the victim.” Motion for Remand, 6/26/14, at ¶ 5. The Commonwealth filed 

an answer opposing remand, stating that Walker is inapplicable to the case 

at bar. Answer to Motion for Remand and Hearing Filed June 26, 2014, 

7/8/14, at ¶¶ 6-8. For the reasons that follow, we agree. 

 First, Kubis’ PCRA petition would be untimely at this point. Section 

9545(b)(1) requires a petitioner to file a PCRA petition within one year of the 

date the judgment became final. 42 Pa.C.S.A. § 9545(b)(1). “[A] judgment 

becomes final at the conclusion of direct review, including discretionary 

review in the Supreme Court of the United States and the Supreme Court of 

 

unless it is stated in the statement of questions involved or is fairly 

suggested thereby.”). 
J-S41029-14

- 6 - 

Pennsylvania, or at the expiration of time for seeking the review.” 42 

Pa.C.S.A. § 9545(b)(3). 

Here, Kubis’ judgment of sentence became final on August 20, 2009 –

30 days after this Court affirmed his judgment of sentence on direct appeal. 

See Pa.R.A.P. 1113(a) (A petition for allowance of appeal to the 

Pennsylvania Supreme Court must be filed within 30 days of the entry of the 

Superior Court order to be reviewed.). Thus, a PCRA petition filed on or 

after June 26, 2014 is facially untimely, rendering the PCRA court without 

jurisdiction to decide it on its merits. 

Second, Kubis’ request for remand pursuant to a limited exception to 

the timeliness requirements fails. His request is based upon 42 Pa.C.S.A. § 

9545(b)(1)(iii) and (2), which state: 

(b) Time for filing petition.—

(1) Any petition under this subchapter, including a 

second or subsequent petition, shall be filed within 

one year of the date the judgment becomes final, 

unless the petition alleges and the petitioner proves 

that: 

* * * 

(iii) the right asserted is a constitutional right that 

was recognized by the Supreme Court of the United 

States or the Supreme Court of Pennsylvania after 

the time period provided in this section and has been 

held by that court to apply retroactively. 

(2) Any petition invoking an exception provided in 

paragraph (1) shall be filed within 60 days of the 

date the claim could have been presented. 
J-S41029-14

- 7 - 

42 Pa.C.S.A. § 9545(b)(1)(iii), (2). Although Kubis timely filed his request 

within 60 days of the Walker decision, the holding in Walker is not a 

recognition of a new constitutional right. To the contrary, in a footnote 

accompanying the holding of the case, the Walker Court expressly declined 

to consider the appellant’s constitutional claim regarding the right to present 

expert testimony. Walker, 2014 WL 2208139 at *22 n.12. Thus, this 

exception does not apply. 

 Finally, our review of the record comports with the Commonwealth’s 

account that Kubis never requested to have an expert testify regarding the 

fallibility of eyewitness identifications. As such, there is no basis for remand 

in this case. 

 Turning to the question raised on appeal, this Court’s standard of 

review regarding an order denying a petition under the PCRA is whether the 

determination of the PCRA court is supported by the evidence of record and 

is free of legal error. Commonwealth v. Davis, 86 A.3d 883, 887 (Pa. 

Super. 2014). The PCRA court’s findings will not be disturbed unless there is 

no support for the findings in the certified record. Id.

The issue raised on appeal stems from the Commonwealth’s failure, 

prior to trial, to provide Kubis or his council with a computer-generated 

image of the perpetrator of the robbery created by the police during an 

interview with the victim using a program called “Faces.” Detective Bonargo 

created the picture using the computer software while interviewing the 
J-S41029-14

- 8 - 

victim, but never showed the image generated to the victim, as the only 

details on the picture provided by the victim were the bandana and 

sunglasses worn by the perpetrator, neither of which were reflected 

accurately because of a flaw with the Faces program. N.T., 5/20/13, at 60, 

75, 85. According to Kubis, the failure to provide the image to trial counsel 

prior to trial constituted a Brady2

 violation and a violation of the mandatory 

discovery provision contained in Rule of Criminal Procedure 573, as the 

image created looked nothing like him and could have been used in support 

of his misidentification defense. Kubis’ Brief at 11-13. The PCRA court 

found that there was no violation of Brady or Rule 573, as (1) Detective 

Schlotter testified at the suppression hearing in this case regarding the 

existence of the computer-generated image, and (2) Kubis cannot 

demonstrate that the computer-generated image would have changed the 

outcome of the case. PCRA Court Opinion, 2/14/14, at 8. 

We begin with the Brady claim. In Brady v. Maryland, 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.” Brady, 373 U.S. at 87. This 

holding has been adopted by our Supreme Court, which set forth the 

standards for establishing a Brady violation as follows: “[A] defendant must 

 

2

 Brady v. Maryland, 373 U.S. 83 (1963). 
J-S41029-14

- 9 - 

show that: (1) the evidence was suppressed by the state, either willfully or 

inadvertently; (2) the evidence at issue is favorable to the defendant; and 

(3) the evidence was material, meaning that prejudice must have ensued.” 

Commonwealth v. McGill, 574 Pa. 574, 583, 832 A.2d 1014, 1019 (2003) 

(citations omitted). 

 The record reflects that the following exchange took place between 

Kubis’ counsel and Detective Schlotter at the suppression hearing:

Q. At no time did you ever make any effort with 

anyone in your department to go to Mr. Stencler and 

work on a composite sketch based on his description 

or have Mr. Stencler look through mug books or 

whatever you could come up with based on his 

description, at no time did you do anything like that; 

is that right? 

A. I had Detective Bonargo create a Faces mug 

shot, I guess you would call it. 

Q. He did that without you questioning —

A. He did that and he used the description in writing 

from the victim. But no, there was no need to do 

that based on the information that I had received. 

Q. So what you’re saying is Detective Bonargo did 

use some sort of whatever you just described 

computer composite but you never used that, 

nobody ever used it, right? 

A. We didn’t use it because it wasn’t able to 

accurately depict the descriptive components that 

were given to us by the victim and the witnesses. In 

other words, the program was limited in what it was 

able to do, and the photo that we were able to 

generate was not realistic based on the descriptions 

that we had received. 
J-S41029-14

- 10 - 

N.T., 3/10/08, at 55-56. Counsel for Kubis did not ask Detective Schlotter 

any further questions regarding the computer-generated image or follow up 

with the Commonwealth to request a copy of the image. 

At the PCRA hearing, trial counsel testified that he asked the question 

of whether police had a composite sketch drawn, expecting the answer to be 

“no.” N.T., 5/20/13, at 28. When Detective Schlotter testified that the 

police had in fact attempted to do a composite sketch, trial counsel operated 

under a “mistaken assumption [that] he was referring to” photographs 

provided in discovery, and thus made no further inquiries about the image. 

Id.

“There is no Brady violation when the appellant knew or, with 

reasonable diligence, could have uncovered the evidence in question[.]” 

Commonwealth v. Chamberlain, 30 A.3d 381, 409-10 (Pa. 2011) 

(citations omitted). As Kubis was aware that the police attempted to create 

a computer-generated image of the robbery suspect based upon a 

description given by the victim in this case and failed to exercise reasonable 

diligence to obtain the image from the Commonwealth, we find no fault with 

the PCRA court’s conclusion that no Brady violation occurred. 

Turning to the Rule 573 claim, the portions of the Rule Kubis asserts 

the Commonwealth violated by failing to turn over the computer-generated 

drawing state: 
J-S41029-14

- 11 - 

(B) Disclosure by the Commonwealth. 

(1) Mandatory. In all court cases, on request by the 

defendant, and subject to any protective order which 

the Commonwealth might obtain under this rule, the 

Commonwealth shall disclose to the defendant's 

attorney all of the following requested items or 

information, provided they are material to the 

instant case. The Commonwealth shall, when 

applicable, permit the defendant’s attorney to 

inspect and copy or photograph such items. 

(a) Any evidence favorable to the accused that is 

material either to guilt or to punishment, and is 

within the possession or control of the attorney for 

the Commonwealth; 

* * * 

(d) the circumstances and results of any 

identification of the defendant by voice, photograph,

or in-person identification; 

(e) any results or reports of scientific tests, expert 

opinions, and written or recorded reports of 

polygraph examinations or other physical or mental 

examinations of the defendant that are within the 

possession or control of the attorney for the 

Commonwealth[.] 

Pa.R.Crim.P. 573(B)(1)(a), (d), (e). 

 At the outset, we find that subsection (e) is inapplicable to the 

evidence before us because there is nothing in the record to support (nor 

does Kubis argue) that the computer-generated image at issue was the 

result of a scientific test, expert opinion, polygraph examination, or other 

examination of Kubis. The record further reflects that it was neither material 

to Kubis’ guilt nor an identification of Kubis. Rather, the record reflects that 
J-S41029-14

- 12 - 

Detective Bonargo testified that he created the image while talking to the 

victim in this case, but the victim did not see the image or adopt it as being 

an accurate depiction of the perpetrator. N.T., 5/20/13, at 75. The only 

information provided by the victim was that the perpetrator was wearing a 

black bandana and sunglasses; Detective Bonargo filled in the remaining 

features of the perpetrator’s face so that there was an actual image to view 

– otherwise, it would only have been a picture of a bandana and sunglasses. 

Id. at 75, 85. In short, the computer-generated image was not a picture of 

the perpetrator as described by the victim, was never seen by the victim, 

and was never adopted by the victim as resembling the perpetrator. 

Therefore, the image itself was not material to Kubis’ guilt or even an 

identification of Kubis. 

The decision of the PCRA court is supported by the evidence and is 

free of legal error. Davis, 86 A.3d at 887. We therefore affirm its decision. 

Motion for Remand denied. Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/12/2014