J-A08040-17

2017 PA Super 138

COMMONWEALTH OF PENNSYLVANIA

v.

ROBERT SHABAZZ-DAVIS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2525 EDA 2015

Appeal from the Judgment of Sentence March 13, 2015

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0007330-2013

BEFORE: PANELLA, LAZARUS, JJ., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED MAY 08, 2017

Appellant Robert Shabazz-Davis appeals the judgment of sentence 

entered in the Court of Common Pleas of Philadelphia County on March 13, 

2015, at which time he was sentenced to life imprisonment without the 

possibility of parole along with a consecutive term of three and one half 

(31⁄2) years to seven years in prison following his convictions of first-degree 

murder and firearms not to be carried without a license.1 Appellant was a 

juvenile at the time of the murder, bringing his case within the purview of 

Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), 

and Commonwealth v. Batts, 620 Pa. 115, 66 A.3d 286 (2013)(”Batts 

II”) (invalidating mandatory sentences of life without the possibility of 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2502(a), 6106(a)(1), respectively.
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parole for juvenile offenders and indicating that appellate remedy for the 

unconstitutional imposition of a mandatory life-without-parole sentence upon 

a juvenile is a remand for resentencing at which the trial court must consider 

the sentencing factors set forth in Miller).2 Following a careful review, we 

affirm. 

The trial court aptly set forth the facts herein as follows: 

On May 28, 2012, at approximately 2:13 p.m., police 

officers from the 22nd District responded to a radio call of a 

shooting at 1732 Ridge Avenue. (N.T. 10/24/14 p. 89). Upon 

arrival officers found decedent Antwan Pack lying in a pool of 

blood on the floor inside the Sunshine Laundromat. (N.T., 

10/24/14 pp. 89-90). Police Officer Joseph Kocher observed 

that decedent was in critical condition with multiple gunshot 

wounds to the back. (N.T., 10/24/14 p. 90). Eyewitness Jeffrey 

Noble helped police officers place Mr. Pack into a police wagon. 

(N.T., 10/24/14 p. 61). Mr. Noble and Officer Kocher rode in the 

back of the wagon with decedent as he was transported to 

Hahnemann Hospital. (N.T., 10/24/14 p. 91). Mr. Noble 

testified that en route to the hospital, Mr. Pack stated someone 

named “‘Rob’ from Highland” had shot him. (N.T., 10/24/14 pp. 

68-69. Officer Kocher also testified that on the way to the 

hospital, Mr. Pack identified the male that shot him as “Rob.” 

(N.T., 10/24/14 p. 92). Mr. Pack was admitted to Hahnemann 

Hospital and was taken to surgery, at around 3:00 p.m., in an 

attempt to save his life, but he was pronounced dead at 7:39 

p.m. (N.T., 10/27/14 p. 100). The autopsy report showed 

decedent had been shot twice in the back and suffered 

devastating injuries including fractures to his vertebrae, which 

rendered him paralyzed, and lacerations of his liver, left lung, 

and right lung, which prevented him from breathing and 

ultimately caused his death. (N.T., 10/27/14 pp. 99-107). Six 

____________________________________________

2 At the time of the murder, Appellant was sixteen years old and turned 

seventeen twenty-three (23) days later. 
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fired cartridge casings and one projectile were recovered from 

the scene of the crime. (N.T., 10/24/14 p. 53). 

Eyewitnesses Antwyne Askew and Marcus Pough testified 

at trial about the events that took place the day decedent was 

shot and killed. On June 16, 2012, Mr. Askew gave an interview 

to homicide detectives wherein he stated that while standing on 

the corner of Vineyard Street and Ridge Avenue, on May 28, 

2012, he observed a male on a bicycle brandish a weapon. 

(N.Y., 10/27/14 pp. 36-38). Seconds later, he heard gunshots. 

(N.T., 10/27/14 pp. 36-37). Looking in the direction of the 

gunshots he observed the male on the bicycle known to him as 

“Rob” shooting at decedent. (N.T., 10/27/14 pp. 37-40). Mr. 

Askew identified “Rob” as [Appellant] Robert Shabazz-Davis from 

a photographic array. (N.T., 10/27/14 p. 43). Further, in his 

interview, Mr. Askew stated that [Appellant] and decedent had 

previously argued with each other. (N.T., 10/27/14 pp. 44-45).1 

Mr. Pough was interviewed on June 27, 2012, and he stated that 

on the day of the shooting, he was walking down Ridge Avenue 

towards the laundromat with his niece when he observed a male 

firing a gun into the laundromat. (N.T., 10/24/14 p. 129). Mr. 

Pough stated further that he saw the male place the gun in his 

waistband and ride off on a bicycle towards him. (Id.) Mr. Pough 

walked past the laundromat and observed decedent on the floor 

inside the laundromat suffering from gunshot wounds and 

screaming for help. (Id.) Later, Mr. Pough was shown a 

photographic array and identified [Appellant] as the male he saw 

firing a gun into the laundromat. (N.T., 10/24/14 pp. 139-140).2

By June 30, 2012 a number of unsuccessful attempts had 

been made to locate [Appellant] on an arrest warrant charging 

him with the murder of decedent and various weapons offenses. 

(N.T., 10/27/14 p. 116). Extensive efforts to apprehend 

[Appellant] continued without immediate success. (N.T., 

10/27/14 pp. 117-124). On January 28, 2013, [Appellant’s] 

attorney notified authorities that [Appellant] wanted to 

surrender. (N.T., 10/27/14 p. 124). On that same day, 

[Appellant] was finally arrested. (Id.) 

On July 13, 2012, Daquan Johnson was arrested after 

fleeing police. (N.T., 10/27/14 pp. 86-91). He was found to be 

in possession of the firearm used to kill Antwan Pack. Id. Officer 

Michael Livewell testified that, according to social media 

websites, Mr. Johnson identified himself as a member of 

Highland and was one of [Appellant’s] associates. (N.T., 

10/27/14 pp. 13-15). 
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_____

1 At trial, Mr. Askew denied that he in fact made such statements 

and identified the shooter. (N.T., 10/27/14 p. 37-43). However, 

Detective Jacobs, who took Mr. Askew’s statement, testified to 

his statements and identification. (N.T., 10/27/14 p. 70-76). 

The jury was given the opportunity to view the signatures above 

and below the photographs on the array and determine Mr. 

Askew’s credibility regarding his denial. 

2 Mr. Pough denied making those statements and identifying the 

shooter from the photo array at trial. (N.T., 10/24/14 pp. 141-

142). However, Detective Schmidt, who took Mr. Askew’s 

statement, testified to his statements and identification. (N.T., 

10/24/14 p. 170-183). 

Trial Court Opinion, filed 6/28/16, at 1-3. 

On March 22, 2015, Appellant filed his “Motion for Post Sentence Relief 

And/Or Modification or Reconsideration of Sentence,” and the same was 

denied by operation of law pursuant to Pa.R.CrimP. 720(B)(3) on August 6, 

2015. Appellant filed a notice of appeal pro se on August 18, 2015, and 

upon consideration of defense counsel’s motion to withdraw and a hearing, 

the trial court entered an Order on October 2, 2015, granting counsel’s 

motion to withdraw. Thereafter, on November 6, 2015, counsel was 

reappointed to represent Appellant on direct appeal. On June 12, 2016, 

Appellant filed his Statement of Matters Complained of on Appeal pursuant 

to Pa.R.A.P. 1925(b) wherein he raised ten (10) issues. The trial court filed 

its Rule 1925(a) Opinion on June 28, 2016. 

In his brief. Appellant presents the following Statement of the 

Questions Involved:
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1. In Miller v. Alabama, the U.S. Supreme Court outlawed 

mandatory life without parole for juveniles (“LWOP”), and 

instructed that the discretionary imposition of this sentence 

should be “uncommon” and reserved for the “rare juvenile 

offender whose crime reflects irreparable corruption.” 

A. Did the Trial Court err when it imposed the sentence of life 

without the possibility of parole on Appellant despite the 

safeguards set forth by our Supreme Court in Miller v. Alabama

and in contradiction of the safeguards provided by the United 

States Constitution and the Pennsylvania Constitution?

B. There is currently no procedural mechanism to ensure that 

juvenile LWOP will be “uncommon” in Pennsylvania. Should this 

Court exercise its authority under the Pennsylvania Constitution 

to promulgate procedural safeguards including (a) a presumption 

against juvenile LWOP, (b) a requirement for competent expert 

testimony, and (c) a “beyond a reasonable doubt” standard of 

proof?

C. In Miller, the U.S. Supreme Court stated that the basis for 

its individualized sentencing requirement was Graham’s

comparison of juvenile LWOP to the death penalty. [ ] Appellant 

received objectively less procedural due process than an adult 

facing capital punishment. Should the Court address the 

constitutionality of [ ] Appellant’s sentencing proceeding?

D. Did the trial court err in not dismissing the case against 

Appellant due to the Commonwealth’s blatant violations under 

Brady v. Maryland?

2. Did the Trial Court err in not dismissing the case against 

Appellant due to the Commonwealth’s blatant violations under 

Brady v. Maryland?

[3]

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3 See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 

(1963) (holding suppression by prosecution of evidence favorable to accused 

upon request violates due process where evidence is material either to guilt 

or punishment, regardless of good or bad faith by prosecution).
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Brief of Appellant at 4. 

At the outset, we observe that Appellant’s introductory comment and 

issues B and C are, verbatim, the same questions which our Pennsylvania 

Supreme Court agreed to consider in granting partial allowance of appeal in 

Commonwealth v. Batts (“Batts III”), 125 A.3d 33 (Pa.Super. 2015), 

appeal granted in part, 135 A.3d 176 (Pa. 2016). In addition, Appellant’s 

issue A herein is reflected in the issues the Supreme Court will consider in 

Batts III.

4

 Notwithstanding, we decline to postpone a decision in this case 

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4 Our Supreme Court’s Per Curiam Order entered on April 19, 2016, reads as 

follows: 

AND NOW, this 19th day of April, 2016, the Petition for 

Allowance of Appeal is GRANTED, LIMITED TO the following 

issues raised by Petitioner:

1. In Miller v. Alabama, the U.S. Supreme Court outlawed 

mandatory life without parole for juveniles (LWOP), and 

instructed that the discretionary imposition of this sentence 

should be “uncommon” and reserved for the “rare juvenile 

offender whose crime reflects irreparable corruption.”

i. There is currently no procedural mechanism to 

ensure that juvenile LWOP will be “uncommon” in 

Pennsylvania. Should this Court exercise its authority 

under the Pennsylvania Constitution to promulgate 

procedural safeguards including (a) a presumption against 

juvenile LWOP; (b) a requirement for competent expert 

testimony; and (c) a “beyond a reasonable doubt” 

standard of proof?

ii. The lower court reviewed the Petitioner's sentence 

under the customary abuse of discretion standard. Should 

the Court reverse the lower court's application of this 

highly deferential standard in light of Miller?

2. In Miller, the U.S. Supreme Court stated that the basis 

for its individualized sentencing requirement was Graham's 

(Footnote Continued Next Page)
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pending the Supreme Court’s resolution of the appeal in Batts, III. Until 

our Supreme Court holds otherwise, we will employ the applicable legal 

principles extant currently, and in doing so first find Appellant has waived his 

second and third issues for his failure to raise them before the trial court and 

preserve them in his Pa.R.A.P. 1925(b) statement. 

“Issues not raised in the lower court are waived and 

cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). 

This requirement bars an appellant from raising “a new and 

different theory of relief” for the first time on appeal. 

Commonwealth v. York, 319 Pa.Super. 13, 465 A.2d 1028, 

1032 (1983).

In addition, our Supreme Court has made it clear that 

“[a]ny issues not raised in a [Rule] 1925(b) [S]tatement will be 

deemed waived.” Commonwealth v. Castillo, 585 Pa. 395, 

888 A.2d 775, 780 (2005) (citation and quotation omitted). See 

also Pa.R.A.P. 1925(b)(4)(ii) (“The [1925(b) ] Statement shall 

concisely identify each ruling or error that the appellant intends 

to challenge with sufficient detail to identify all pertinent issues 

for the judge”).

(Footnote Continued) _______________________

comparison of juvenile LWOP to the death penalty. The Petitioner 

received objectively less procedural due process than an adult 

facing capital punishment. Should the Court address the 

constitutionality of the Petitioner's resentencing proceeding?

The Petition for Allowance of Appeal is DENIED with respect to 

Petitioner's third stated issue.

Commonwealth v. Batts, 135 A.3d 176 (Pa. 2016).
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Commonwealth v. Wanner, 2017 WL 1152609, at * 2 (Pa.Super. filed 

Mar. 28, 2017). 

Appellant’s issues B and C raised in his appellate brief request this 

court to engage in a broad constitutional analysis and develop procedural 

safeguards for determining “uncommonality,” while the issues he raised in 

his Rule 1925(b) Statement essentially pertained to the legality of his 

sentence in light of Miller v. Alabama, supra. Therefore, Appellant has 

waived these claims.5 

As appellant’s issue A is evident from his statement of matters 

complained of on appeal, we will consider the merits of the same. Therein 

Appellant challenges the legality of his sentence of life imprisonment without 

the possibility of parole in light of the federal and state constitutions and the 

United States Supreme Court’s decision in Miller, supra. 

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5 We note Appellant’s brief is in violation of Pa.R.A.P. 2119(a), which 

provides that “[t]he argument shall be divided into as many parts as there 

are questions to be argued,” in that it is not divided into sections that 

correspond to the questions presented. While the Statement of the 

Questions Presented consists of two issues, the first of which contains three 

subparts, the Argument portion of the brief begins with Section A entitled 

“Miller and Montgomery Establish A Presumption Against Imposing Life 

Without Parole Sentences On Juveniles,” under which are subsections 

numbered 1 through 8. Issue B pertaining to Appellant’s Brady claim 

follows. 
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A challenge to the legality of a sentence ... may be entertained as long 

as the reviewing court has jurisdiction.” Commonwealth v. Wolfe, 106 

A.3d 800, 802 (Pa.Super. 2014), affirmed, 140 A.3d 651 (Pa. 2016) (citation 

omitted). “If no statutory authorization exists for a particular sentence, that 

sentence is illegal and subject to correction.” Commonwealth v. Rivera, 

95 A.3d 913, 915 (Pa.Super. 2014) (citation omitted). “An illegal sentence 

must be vacated.” Id. “The determination as to whether the trial court 

imposed an illegal sentence is a question of law; our standard of review in 

cases dealing with questions of law is plenary.” Commonwealth v. 

Stradley, 50 A.3d 769, 772 (Pa.Super. 2012) (citation omitted).

In Miller, the United States Supreme Court held “mandatory life 

without parole for those under the age of 18 at the time of their crimes

violates the Eighth Amendment's prohibition on ‘cruel and unusual 

punishments.’” Miller, 567 U.S. at ____, 132 S.Ct. at 2460. Although the 

Court made clear that it was not foreclosing a trial court's ability to impose a 

life sentence upon a juvenile convicted of murder, it required the trial court 

to first “take into account how children are different, and how those 

differences counsel against irrevocably sentencing them to a lifetime in 

prison.” Id. at ____, 132 S.Ct. at 2469. The Supreme Court recognized that 

a sentencing court might encounter the rare juvenile offender who exhibits 

such irretrievable depravity that rehabilitation is impossible and life without 

parole is justified. But in light of what it described as “children's diminished 
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culpability and heightened capacity for change,” Miller made clear that 

“appropriate occasions for sentencing juveniles to this harshest possible 

penalty will be uncommon.” Id. Therefore, it was the mandatory sentencing 

scheme that the Supreme Court deemed unconstitutional when applied to 

juveniles, holding that “a judge or jury must have the opportunity to 

consider mitigating circumstances before imposing the harshest possible 

penalty for juveniles.” Id. at ____, 132 S.Ct. at 2475. 

In Batts II, supra, our Supreme Court remanded to the trial court 

with instructions to consider the following age-related factors in resentencing 

the appellant: 

[A]t a minimum [the trial court] should consider a juvenile's age 

at the time of the offense, his diminished culpability and capacity 

for change, the circumstances of the crime, the extent of his 

participation in the crime, his family, home and neighborhood 

environment, his emotional maturity and development, the 

extent that familial and/or peer pressure may have affected him, 

his past exposure to violence, his drug and alcohol history, his 

ability to deal with the police, his capacity to assist his attorney, 

his mental health history, and his potential for rehabilitation. 

[Commonwealth v.] Knox, 50 A.3d [732,] 745 [ (Pa.Super. 

2012) ] (citing Miller, 132 S.Ct. at 2455) [(remanding for 

resentencing a juvenile who had previously received a 

mandatory life without parole sentence in violation of Miller, and 

instructing trial court to resentence juvenile to either life with 

parole or life without parole), appeal denied, 620 Pa. 721, 69 

A.3d 601 (2013)]. We agree with the Commonwealth that the 

imposition of a minimum sentence taking such factors into 

account is the most appropriate remedy for the federal 

constitutional violation that occurred when a life-without-parole 

sentence was mandatorily applied to Appellant. Batts II, supra

at 297 (first brackets in original).

Batts III, supra, 125 A.3d at 38-39.
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Our review of the transcript of the sentencing hearing belies 

Appellant’s contention that the sentencing court “made no finding that 

Appellant was irreparably corrupt, permanently incorrigible, or irretrievably 

depraved, as Miller and Montgomery require.” Brief for Appellant at 15. 

To the contrary, the sentencing court indicated its awareness that because 

Appellant had been sixteen years of age at the time of the homicide, “he was 

entitled to the relief provided to defendants so situated by our United States 

Supreme Court as articulated in Miller versus Alabama and subsequently 

adopted by the Pennsylvania Supreme Court with those safeguards 

contained in Commonwealth versus Batts.” N.T. Sentencing, 3/13/15, at 4.

The sentencing court further explained to Appellant why it had ordered 

presentence and mental health evaluations to prepare for sentencing as 

follows:

[O]ver the time that you were awaiting trial, you heard from one 

or more attorneys that our Supreme Court decided in Batts that, 

in essence, children are different from adults for purposes of 

sentence and it requires the Court to conduct what's commonly 

referred to as individualized consideration of mitigating 

circumstances, particularly the defendant's youth, before a

sentence of life in prison without the possibility of parole can be 

imposed. That is because children lack those qualities that inure

to an adult and it is their underdeveloped sense of responsibility 

that makes them susceptible to influences and they generally 

have a less fixed character than adults. 

So for that reason, I ordered the various reports and set 

the matter down for sentencing today. 

Id. at 7-8. 
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Prior to rendering its sentence, the sentencing court heard from the 

victim’s grandmother, aunt, and mother, respectively. Id. at 17-24. The 

sentencing court also was introduced to various friends and family members 

of Appellant all of whom it noted obviously “have great love for him.” Id. at 

40. The court indicated that it had reviewed the presentence investigation 

report and taken into consideration all the required factors including 

Appellant’s need for rehabilitation and society’s need for protection and 

further stated the following: 

I’ve taken into consideration all the factors I’m required to, 

including [Appellant’s] need for rehabilitation and society’s need 

for protection. I’ve reviewed the presentence investigation, I’ve 

reviewed the mental health examination, and I have gone over 

the memorandum prepared by the Assistant District Attorney. 

With respect to [Appellant’s] chronological age, we have 

referred to him as being sixteen, but he was more a seventeen 

year old than a sixteen year old, obviously still a year and a 

month short of reaching his majority. But that is to be 

considered.

Regarding his level of maturity, he’s now fathered two 

children. His home environment was not the best but certainly 

not the worst. He was co-parented at least until his father died 

by both his mother and his father. 

I’ll say this with some trepidation. I hope it doesn’t come 

back to haunt me. But clearly, men who look like me are not in 

their children’s lives to the degree that they should be and that 

causes problems, in my humble opinion.

There was nothing in the record that suggested that 

[Appellant] was subject to domestic violence, physical violence 

or sexual violence. He was the architect of this crime. He bears 

total responsibility for this crime. It was a vicious killing in the 

light of day, without any concern for the fact that somebody 

might see me and tell the authorities who did this. 
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Unlike the previous case I referenced, [6]it wasn’t one on 

one, two men face to face. The victim was shot in the back for 

the sin of living in the wrong neighborhood by a young man with 

no underlying mental health problems, who has a history of 

violence and demonstrating he was not amenable to 

rehabilitation. [7]

I have heard from the family of the deceased. I’ve seen 

members of [Appellant’s] family array themselves here and 

stand up, and it’s obvious they have great love for him. 

Our Supreme Court has said that life in prison for a crime 

committed by a juvenile should be rare. It is most unfortunate 

that this is one of those rare cases. 

Id. at, 3/13/15, at 38-41. 

In light of the foregoing, we find the trial court applied the appropriate 

review prior to rendering its sentence and did not abuse its discretion in 

considering the relevant sentencing factors set forth in Batts, II. “Absent a 

specific directive from our Supreme Court or the General Assembly to do so, 

we decline to expand the narrow holding in Miller.” Batts III, supra, 125 

A.3d at 43. 

Lastly, Appellant asserts the trial court erred in denying his motion to 

dismiss based upon the Commonwealth’s violation of Brady v. Maryland, 

supra, and consequently, requests this Court to dismiss all charges. “To 

____________________________________________

6 The trial court earlier referenced a case wherein a young man had fired six 

shots at another in a residential community believing he had been cut off. 

The other individual fired back, although no one was killed. N.T. Sentencing, 

3/13/15, at 38. 

7 Appellant had an extensive history with the juvenile justice system which 

commenced in June of 2010 when he had been adjudicated delinquent of 

felony robbery. Two months after he was discharged from juvenile 

supervision on March 22, 2012, Appellant committed the instant murder. 
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succeed on a Brady challenge, the defendant must show: (1) the 

Commonwealth suppressed the evidence; (2) the evidence was favorable to 

the accused, either because it was exculpatory or impeaching; and (3) the 

defendant suffered prejudice. Commonwealth v. Daniels, 628 Pa. 193, 

223, 104 A.3d 267, 284 (2014).

Herein Appellant maintains the Commonwealth failed for more than 

two years to provide him with a statement of Marcus Pough wherein Mr. 

Pough implicated himself in a separate homicide as well as all evidence 

relating to the arrest of Daquan Johnson on July 3, 2012, who possessed the 

murder weapon used to kill the victim in his waistband. Brief for Appellant 

at 29-30.

In his Motion to Dismiss filed on June 26, 2014, Appellant averred that 

Mr. Johnson was arrested on July 13, 2012, after fleeing police at which time 

the firearm used in the instant homicide was recovered from his person, 

although this information was not disclosed to the defense until June 11, 

2014. See Motion to Dismiss at ¶ 4. In addition, Appellant indicated that on 

June 27, 2012, Mr. Pough provided police with a statement wherein he 

implicated himself in a separate homicide and that this statement preceded 

Mr. Pough’s statement that he had seen Appellant kill Mr. Pack. Id. at 11. 

This information, too, was not provided to the defense until June 11, 2014. 

Id. at 12. Appellant reasoned that as the Commonwealth withheld 

evidence that was clearly favorable to the defense for nearly two years, he 
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had been prejudiced and, therefore, “[n]o other remedy short of dismissal 

[would] protect [his] right to due process and a fair trial nor serve the goals 

of justice.” Id. at ¶ 14-17. 

Prior to his filing of his Motion to Dismiss, Appellant’s motion for a

continuance of trial had been granted on June 23, 2017. The Commonwealth 

detailed in its Response thereto, that before Appellant’s preliminary hearing 

held on June 5, 2013, the Commonwealth disclosed to the defense that Mr. 

Pough had been charged as an accomplice in an unrelated homicide, and 

during the hearing defense counsel questioned him regarding those open 

charges as well as the statement he provided to homicide detectives in the 

instant homicide. See Commonwealth Response to Defense Motion to 

Dismiss at ¶ 3. Hearings on Mr. Pough’s own murder case were open to the 

public and transcripts thereof were prepared; notwithstanding, “in an effort 

to ensure that counsel was adequately prepared for trial, [the ADA] provided 

a copy of Mr. Pough’s statement in his own homicide case.” Id. 

In addition, on July 3, 2013, the Commonwealth made available to 

Appellant a discovery letter wherein “Ballistics Report” was listed. That 

entry referenced a six-page report from ballistics in the Philadelphia Police 

Department’s Firearm Identification Unit, at the end of which it was indicated 

all shots fired at the scene of Mr. Pack’s murder were from the same firearm. 

A “Cross Check Request” also was indicated. Id. at ¶ 4. The Commonwealth 

went on to reason as follows: 
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5. Page six of six of the Ballistics Report which was prepared in 

September 2012, describes in detail the results of the cross 

check. To a reasonable degree of scientific certainty, all of the 

evidence from the homicide scene was fired in “PISTOL P1 of FIU 

#123778-DC#1209-028326.” Armed with the district control 

number, defense was able to access the public portal of the First 

Judicial District Website and find the following information: 

defendant’s name, defendant’s attorney, arrest date, arresting 

officer, court dates and charges. With reasonable diligence, 

defense counsel was able to subpoena the arresting officer, 

request discovery, order notes of testimony, interview the 

defendant, attend the court dates, and contact counsel for the 

defendant. Commonwealth v. Morris, 822 A.2d 684 (Pa. 2003). 

All of this information was accessible to the defense. On June 

11, 2014, ADA O’Malley, in an effort to ensure that counsel was 

adequately prepared for trial, provided a copy of the arrest 

paperwork that was provided on June 11, 2014 to the 

Commonwealth by the assigned detective regarding P-1. 

Id. at ¶ 5. 

Upon our review of the certified record, we find the trial court did not 

err in failing to afford relief on Appellant’s Brady claim upon finding the 

evidence was immaterial to Appellant’s guilt or innocence and that Appellant 

had failed to establish the Commonwealth’s conduct unavoidably prejudiced 

the jury as to render it incapable of weighing the evidence fairly and arriving 

at a just verdict. Trial Court Opinion, filed 6/28/16, at 13 quoting 

Commonwealth v. Brown, 605 Pa. 103, 119, 987 A.2d 699, 709 (2009). 

Thus, Appellant cannot demonstrate a Brady violation. See Feese, supra.

8

 

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8 Moreover, as the trial court points out, even had the evidence been 

provided to Appellant at an earlier date, it would not have altered the 

overwhelming evidence of his guilt, which included two eyewitness 

(Footnote Continued Next Page)
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Judgment of Sentence Affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/8/2017

(Footnote Continued) _______________________

identifications; therefore he could not have established prejudice. Trial 

Court Opinion, filed 6/28/16, at 13.