J-S51023-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JALIK PEAY 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1242 EDA 2017

Appeal from the PCRA Order March 22, 2017

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0014638-2011

BEFORE: DUBOW, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY NICHOLS, J.: FILED SEPTEMBER 25, 2018

Appellant Jalik Peay appeals from the order denying his first Post 

Conviction Relief Act (“PCRA”)1 petition. He contends the Commonwealth 

withheld evidence regarding Aaron Young, a known witness, and, relatedly, 

that his trial counsel was ineffective for failing to investigate Young. We 

affirm.

We state the background as follows:

Aaron Young allegedly had a dispute with inmate Sean Sullivan 

over a [prison cell] block worker job in Curran-Fromhold 

Correctional Facility. [On June 21, 2011,] Sullivan passed 

“bangers” [(i.e., prison knives)] to [Appellant], Rashawn Edwards, 

and Haleem Poole and devised a plan of attack; the plan included 

distracting the prison guards so that the perpetrators could invade 

cell 15 which housed victims Young and Richard Gyton. Earl Bostic 

was nearby watching television in a dayroom when he was 

attacked by [Appellant], Rashawn Edwards, and Haleem Poole.

____________________________________________

1 42 Pa.C.S. §§ 9541-9456.
J-S51023-18

- 2 -

Bostic died of multiple stab wounds to the neck, chest, back, and

right arm, one of which partially severed his aorta. Gyton and

Young were seriously injured when they were stabbed in the hand,

head, arm, and stomach by [Appellant], Rashawn Edwards, and

Haleem Poole. The perpetrators used shanks and bangers to carry

out the bloody attacks. 

Police officers interviewed Gyton at Hahnemann Hospital at the

time he was being treated for his stab wounds. The officers

memorialized Gyton’s statements in a document, which was later

read into the record at both the preliminary hearing and at [the 

jury] trial. In the document, Gyton identified [Appellant], 

Rashawn Edwards, and Haleem Poole] as the individuals who 

stabbed the inmate-victims. At trial, however, Gyton testified he 

did not know who stabbed him, he recanted statements he 

allegedly made during a prison assessment that indicated he 

needed to be separated in jail from the [Appellant], Rashawn 

Edwards, and Haleem Poole because he feared they would harm 

him again, and he testified about a letter he sent to [Appellant], 

Rashawn Edwards, and Haleem Poole explaining that his “story”

about them committing the crimes had been fabricated.

PCRA Ct. Op. at 2-3 (brackets in original and citation omitted). Young did not 

testify.

The jury convicted Appellant of third-degree murder, conspiracy, 

possession of an instrument of crime, and using or possessing a prohibited 

offensive weapon. The court imposed an aggregate sentence of forty to eighty 

years’ imprisonment. Appellant appealed, this Court affirmed on January 21, 

2015, and the Pennsylvania Supreme Court denied Appellant’s petition for 

allowance of appeal on July 23, 2015. Commonwealth v. Peay, 2372 EDA 

2013 (Pa. Super. Jan. 21, 2015) (unpublished mem.), appeal denied, 118 A.2d 

1108 (Pa. July 23, 2015) (table). 
J-S51023-18

- 3 -

On October 30, 2015, Appellant filed his first pro se PCRA petition. The 

court appointed counsel, who filed an amended PCRA petition on October 12, 

2016. The amended petition claimed that trial counsel was ineffective by not 

investigating Aaron Young, the victim and a potential witness. Am. PCRA Pet., 

10/12/16, at ¶ 10. Young, according to the petition, was not called as a trial 

witness, and he would have testified that Appellant “was not the aggressor, 

but was there to help protect him from the actual assailants.” Id. (citation 

omitted). Appellant also claimed the Commonwealth failed to disclose 

exculpatory evidence, specifically that the prosecutor failed to inform him that 

Young would have testified favorably for Appellant. Id. at ¶ 12. The petition 

attached a typewritten interview of Young by PCRA counsel that was allegedly 

signed by Young. Id. at Ex. A. In that statement, Young denied that Appellant 

attacked him. Id. It also stated that Young met with a prosecutor, who 

allegedly informed him that if Young signed a statement falsely implicating 

Appellant, the prosecutor would help Young out with his unrelated case. Id. 

The exhibit also included Young’s unsworn declaration essentially reiterating 

the same claim. Id. Young died in December of 2016.2

____________________________________________

2 On February 10, 2017, Appellant’s counsel filed a motion to amend the 

petition to include the affidavit of Selwyn Young. Mot. to Amend PCRA Pet., 

2/10/17, at ¶ 2. The motion claimed that Young was the victim of an unrelated 

murder, and Selwyn would testify at the evidentiary hearing. Id. Attached 

to the motion was Selwyn’s affidavit, which essentially averred that Young

informed Selwyn that Appellant was innocent. Id. at Ex. A. The record does 

not reflect that the PCRA court granted PCRA counsel’s motion to amend.
J-S51023-18

- 4 -

The PCRA court held hearings on March 20 and 22, 2017. Andrew 

Notaristefano, Esq., the assistant district attorney that prosecuted the case, 

testified. According to Notaristefano, Young spoke with the police on June 23, 

2011, shortly after the attack, but he did not want to sign a formal written 

statement out of a concern that other prisoners would find out. N.T. PCRA 

Hr’g, 3/20/17, at 28-29. According to a summary of that interview, Young

stated that Appellant, Sullivan, and Poole entered the cell with weapons and 

began stabbing him. Id. at 48. Young also indicated he did not see who 

stabbed the decedent. Id. That summary was disclosed to Appellant. Id.

Notaristefano, along with two detectives, again met Young a week prior 

to trial. N.T. PCRA Hr’g, 3/20/17, at 16-18; N.T. Trial, 4/29/13, at 11. 

Notaristefano elaborated on the meeting as follows:

We brought in Mr. [Aaron] Young. He was extremely 

uncooperative and very belligerent. He kept saying he was going

to refuse to testify, he was going to refuse to testify, refuse to 

testify [sic]. He would not say why he was going to refuse to 

testify. Prior to this trial, I tried two codefendants [i.e., Rashawn 

Edwards and Haleem Poole] as a waiver trial in front of Judge 

Minehart in, I believe, February. At that time Mr. Young had an 

open warrant for his own case. And I had warrant officers looking 

for him because I wanted to speak to him to see if I would have 

him testify in that trial first because that trial was first in time. 

We couldn’t find him. He was gone.

He was found prior to [Appellant’s] trial which was April. The first 

thing that he said was, he expressed his displeasure about the

Warrant Unit looking for him; that he skipped the county because 

he didn’t want to be found because he didn’t want to testify. Then 

when the trial was over, he came back to Philadelphia. He was 

mad that the Warrant Unit officers were not looking for him for his

own case. He’s not worried about this, his own case. It was just 

this. He said, I’m not testifying in this case, I’m not testifying in
J-S51023-18

- 5 -

this case [sic]. I asked him why. He refused to say why. And he 

was very uncooperative.

We got into a little bit about the case, not much. He did admit to 

being a block worker and he said that because the whole thing 

was with [Sullivan], he said that he would beat up [Sullivan] or 

something like that because he was a boxer. And that [Sullivan] 

could never take him with a shank or something like that. 

[Sullivan] was the only name that came up that I remember. We 

never even got to your client [i.e., Appellant].

It was not a very long meeting in the DA’s office because he was 

entirely uncooperative. And I had nothing to Brady[3] him with, 

because he didn’t sign a statement so why would I ever call him 

or go any further. That was that.

N.T. PCRA Hr’g, 3/20/17, at 37-39. Notaristefano reiterated that Young did 

not mention Appellant during this meeting. Id. at 44.4

During the Commonwealth’s cross-examination, Notaristefano testified 

that he turned over the Department of Corrections’ (DOC) investigation. Id.

at 49. The investigation, in relevant part, disclosed that the DOC had 

interviewed fifty to sixty people about the incident, and Young denied 

“knowing anything.” Id. at 50. The Commonwealth concluded its crossexamination with Notaristefano agreeing he disclosed two contradictory 

____________________________________________

3 Brady v. Maryland, 373 U.S. 83 (1963).

4 PCRA counsel also questioned Notaristefano about the testimony of Maureen 

Gay, a prison nurse. Id. at 30. Specifically, Appellant’s trial counsel had 

asked Gay about what Young said to her on the day of the incident. Id. at 

31-32. The Commonwealth successfully objected on the basis of hearsay, 

“the proper channel would have been to call Mr. Young not Ms. Gay to get in 

hearsay of Mr. [Aaron] Young and that’s why I objected.” Id. at 32. At the 

time of trial, Young was still alive.
J-S51023-18

- 6 -

documents: the DOC interview in which Young denied “knowing anything” and 

the June 23, 2011 summary of his unsworn statement to the police inculpating 

Appellant. Id. at 50-51. 

During re-direct examination, Notaristefano reiterated that at the 

meeting shortly before trial, Young was uncooperative and did not ask him 

about Appellant. Id. at 51. Notaristefano acknowledged he did not notify 

defense counsel about that last meeting and Young’s lack of cooperation. Id.

at 52. We add that Notaristefano testified that as a matter of course, he would 

have provided the criminal history of Young and any other witness to 

Appellant. Id. at 23.

Appellant’s trial counsel also testified at the hearing. Trial counsel 

stated he had no recollection of Young, including whether he asked Young 

about his statements and whether he discussed Young’s potential testimony 

with the prosecutor. N.T. PCRA Hr’g, 3/22/17, at 8-11. Young’s DOC 

statement was in the file. Id. at 8. Appellant did not present Selwyn as a 

witness.

Although not part of the record sent to this Court, the docket reflects 

that the PCRA court dismissed Appellant’s petition on March 22, 2017. 

Appellant timely appealed and timely filed a court-ordered Pa.R.A.P. 1925(b) 

statement.

Appellant raises the following issues:

1. Whether the PCRA court erred as a matter of law and abused 

its discretion when it denied Appellant’s sought-after PCRA relief 
J-S51023-18

- 7 -

asking for a new trial because of trial counsel’s failure to 

investigate Aaron Young as a witness.

2. Whether the PCRA court erred as a matter of law and abused 

its discretion when it denied Appellant’s sought-after PCRA relief 

asking for a new trial because the prosecution failed to produce 

exculpatory evidence pursuant to Brady, namely, information from 

Aaron Young provided to the prosecution shortly before trial and 

the fact that Aaron Young had a new, pending criminal matter 

against him.

Appellant’s Brief at 4.

We summarize Appellant’s arguments for both of his issues, as they are 

interrelated.5 In Appellant’s view, the Commonwealth engaged in pervasive 

suppression at all levels. Id. at 10. Specifically, according to Appellant, the 

police and the prosecutor heard Young’s statement and elected to conceal it. 

Id. at 10-11. Relatedly, Appellant argues that trial counsel was ineffective by 

failing to investigate Young. Id. at 12-13. In Appellant’s view, it was per se 

unreasonable for his trial counsel to not investigate Young. Id. at 13. 

Appellant opines that Young was available as a witness, Young’s prior written 

statements were provided to trial counsel prior to trial, and Young’s criminal 

history was a matter of public record. Id.

Our standard of review is well-settled:

We review an order dismissing a petition under the PCRA in the 

light most favorable to the prevailing party at the PCRA level. This 

____________________________________________

5 We note that although Appellant raised two issues, he only presented one 

argument, which violates Pa.R.A.P. 2119(a). See Pa.R.A.P. 2119(a) (“The 

argument shall be divided into as many parts as there are questions to be 

argued”).
J-S51023-18

- 8 -

review is limited to the findings of the PCRA court and the evidence 

of record. We will not disturb a PCRA court’s ruling if it is 

supported by evidence of record and is free of legal error. This 

Court may affirm a PCRA court’s decision on any grounds if the 

record supports it. Further, we grant great deference to the 

factual findings of the PCRA court and will not disturb those 

findings unless they have no support in the record. However, we 

afford no such deference to its legal conclusions. Where the 

petitioner raises questions of law, our standard of review is de 

novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations 

omitted).

It is well-settled that

[t]o establish a Brady violation, [the defendant] must 

demonstrate: (1) the prosecution concealed evidence; (2) the 

evidence was either exculpatory[6] or impeachment evidence 

favorable to him; and (3) he was prejudiced. To establish 

prejudice, [the defendant] must demonstrate a reasonable 

probability that, had the evidence been disclosed to the defense, 

the result of the proceeding would have been different. 

Impeachment evidence, which goes to the credibility of a primary 

witness against the accused, is critical evidence and it is material 

to the case whether that evidence is merely a promise or an 

understanding between the prosecution and the witness. . . . 

Finally, we note there is no Brady violation when [the defendant]

knew or, with reasonable diligence, could have uncovered the 

evidence in question.

____________________________________________

6 “Exculpatory evidence is that which extrinsically tends to establish 

defendant’s innocence of the crimes charged.” Commonwealth v. Lambert, 

765 A.2d 306, 325 n.15 (Pa. Super. 2000) (citation omitted); accord 

Commonwealth v. Redmond, 577 A.2d 547, 552 (Pa. Super. 1990) 

(“Exculpatory evidence includes material that goes to the heart of the 

defendant’s guilt or innocence as well as that which might well alter the jury’s 

judgment of the credibility of a crucial prosecution witness.” (internal 

quotation marks and citation omitted)).
J-S51023-18

- 9 -

Commonwealth v. Treiber, 121 A.3d 435, 460-61 (Pa. 2015) (internal 

quotation marks, brackets, and citations omitted). 

In Commonwealth v. Wholaver, 177 A.3d 136 (Pa. 2018), the 

Pennsylvania Supreme Court elaborated on the prejudice prong:

[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. In determining if a reasonable 

probability of a different outcome has been demonstrated, the 

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. 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.

Id. at 158-59 (quotation marks, brackets, and citations omitted).

We also note that it is “well established that where the Commonwealth 

has in its possession pretrial statements of its witnesses which have been 

reduced to writing and relate to the witness’ testimony at trial, it must, if 

requested, furnish copies of these statements to the defense.” 

Commonwealth v. Brinkley, 480 A.2d 980, 984 (Pa. 1984) (citation 

omitted). Such “statements made by a witness prior to trial are subject to 

disclosure only when they are signed, adopted or otherwise shown to be 

substantially verbatim statements of that witness.” Id. (citations omitted).

To warrant relief based on an ineffectiveness claim, a petitioner must 

show that such ineffectiveness “in the circumstances of the particular case, so 
J-S51023-18

- 10 -

undermined the truth-determining process that no reliable adjudication of 

guilt or innocence could have taken place.” Commonwealth v. Jones, 912 

A.2d 268, 278 (Pa. 2006); accord 42 Pa.C.S. § 9543(a)(2)(ii). Counsel is 

presumed to have rendered effective assistance. Commonwealth v. Weiss, 

81 A.3d 767, 783 (Pa. 2013). To overcome the presumption, the defendant 

has to satisfy the performance and prejudice test set forth in Strickland v. 

Washington, 466 U.S. 668 (1984). The Pennsylvania Supreme Court has 

applied the Strickland test by examining three elements, specifically whether 

(1) the underlying claim has arguable merit; (2) no reasonable basis existed 

for counsel’s action or failure to act; and (3) the petitioner has shown that he 

suffered prejudice as a result of counsel’s lapse, i.e., that there is a reasonable 

probability that the result of the proceeding would have been different. 

Commonwealth v. Bennett, 57 A.3d 1185, 1195-96 (Pa. 2012). If a claim 

fails under any necessary element of the Strickland test, the court may 

proceed to that element first. Bennett, 57 A.3d at 1195-96. Counsel will not 

be deemed ineffective for failing to raise a meritless claim. Jones, 912 A.2d 

at 278.

When raising a failure to call a potential witness claim, the PCRA 

petitioner satisfies the performance and prejudice requirements of 

the Strickland test by establishing that:

(1) the witness existed; (2) the witness was available to 

testify for the defense; (3) counsel knew of, or should have 

known of, the existence of the witness; (4) the witness was 

willing to testify for the defense; and (5) the absence of the 

testimony of the witness was so prejudicial as to have 

denied the defendant a fair trial.
J-S51023-18

- 11 -

To demonstrate Strickland prejudice, the PCRA petitioner must 

show how the uncalled witnesses’ testimony would have been 

beneficial under the circumstances of the case. Commonwealth 

v. Gibson, 597 Pa. 402, 951 A.2d 1110, 1134 (2008); see also 

Commonwealth v. Chmiel, 585 Pa. 547, 889 A.2d 501, 546 

(2005) (“Trial counsel’s failure to call a particular witness does not 

constitute ineffective assistance without some showing that the 

absent witness’ testimony would have been beneficial or helpful in 

establishing the asserted defense.”).

Commonwealth v. Johnson, 966 A.2d 523, 536 (Pa. 2009) (internal 

quotation marks and one citation omitted).

In the case at hand, there was no statement by Young as a result of the 

meeting with Notaristefano a week before trial. Because there was no 

statement, the Commonwealth could not turn it over. See Brinkley, 480 

A.2d at 984. But even if the Commonwealth should have disclosed that 

particular meeting with Young, there was no evidence of exculpatory or 

impeachment material. See N.T. PCRA Hr’g, 3/20/17, at 37-39. Indeed, 

Young never even mentioned Appellant. See id. at 44. 

Regardless, even if Young’s uncooperative stance and “statements” at 

that meeting could possibly be construed as favorable or impeachment 

evidence, Appellant has not established their materiality. Specifically, 

Appellant has not demonstrated that without such evidence, he did not receive 

a fair trial. See Wholaver, 177 A.3d at 158-59; Bennett, 57 A.3d at 1195-

96. It is not entirely evident how knowledge of Young’s lack of cooperation
J-S51023-18

- 12 -

would have helped Appellant at trial, let alone undermined the verdict. See 

Wholaver, 177 A.3d at 158-59.7

Although Appellant similarly claims that trial counsel was ineffective by 

not investigating Young, Appellant has not, and cannot, demonstrate that the 

absence of Young’s testimony denied him a fair trial. See Johnson, 966 A.2d 

at 536. Young was unwavering in his decision not to testify at Appellant’s trial 

and at the trial of Appellant’s co-defendants several months beforehand. See 

N.T. PCRA Hr’g, 3/20/17, at 37-39. Further, Young left Philadelphia to avoid 

being compelled to testify and only returned because he thought Appellant’s 

trial was over. See id. Therefore, Appellant has failed to establish that Young

was willing to testify, which is a required element of a potential witness claim. 

See Johnson, 966 A.2d at 536. Because Appellant similarly failed to establish 

the merits of his Brady violation, see Treiber, 121 A.3d at 460-61, we 

conclude the PCRA court’s order is free of legal error and affirm the order 

below. See Ford, 44 A.3d at 1194.

Order affirmed.

____________________________________________

7 As noted above, Gyton incriminated Appellant, although he recanted at trial.
J-S51023-18

- 13 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/25/18