J-S16019-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TYREEK DENMARK 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 917 EDA 2022

Appeal from the PCRA Order Entered March 3, 2022

In the Court of Common Pleas of Philadelphia County

Criminal Division at CP-51-CR-0006336-2013

BEFORE: DUBOW, J., MURRAY, J., and McCAFFERY, J.

MEMORANDUM BY MURRAY, J.: FILED MAY 31, 2023

Tyreek Denmark (Appellant) appeals from the order dismissing his 

petition filed pursuant to the Post Conviction Relief Act.

1

 We affirm.

This Court recounted the underlying facts:

On March 29, 2013, at approximately 11:00 a.m., 

Philadelphia Police Officer Andrew Monroe and his partner 

responded to a call of domestic violence on the 5400 block of 

Regent Street in Philadelphia. The officers met with Erica Hood

[(Hood)], the alleged victim of domestic violence. While 

conducting a walk-through of Hood’s property to secure the 

premises, Officer Monroe discovered [Appellant] hiding in the 

basement. As Hood was uncooperative with police officers at that 

time, no further action was taken by police. Officer Monroe 

observed Thyeem Snipe [(Snipe)] ... standing across the street as 

the officer participated in the investigation. One week 

prior, Snipe and Hood had been in a physical altercation with each 

other[,] which was broken up by police.

____________________________________________

1 42 Pa.C.S.A. §§ 9541-9546.
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After police left the scene, [Appellant], Jonathan Shaw

[(Shaw)], co-defendant Paul Tucker Bennett, and Tyleal Denmark

[(Tyleal)] ([Appellant’s] cousin), were hanging out on Regent 

Street outside of Bennett’s home. [Appellant] and Bennett were 

standing on the porch to Bennett’s home while Tyleal and Shaw 

were located on the sidewalk. Snipe was getting on the porch wall 

outside of 5519 Regent Street, which was located next door to 

Bennett’s home. Bennett appeared to hand an object to 

[Appellant]. [Appellant], with a gun in his hand, 

approached Snipe and shot him multiple times. [Appellant] then 

left the scene in his car, parking it a short distance away.

Snipe suffered a total of five gunshot wounds. ... Each of 

these gunshot wounds was fatal on its own. As a result of a 

gunshot wound to the neck, Snipe’s cerebral spinal cord was 

severed, resulting in near instantaneous death.

Police Officer Monroe, who had responded to the earlier 

domestic violence call, heard the shots fired by [Appellant] and 

responded to 5519 Regent Street at 12:09 p.m. Officer Monroe 

observed [Appellant] walking northbound on 55th Street towards 

Chester Avenue. Officer Monroe further observed Snipe lying on 

the porch of 5519 Regent Street.

Eyewitness Jameel Starnes [(Starnes)] told police at the 

scene that [Appellant] was the shooter, and [Appellant] was taken 

into custody. Police never recovered the murder weapon.

Commonwealth v. Denmark, 144 A.3d 184 (Pa. Super. 2016) (unpublished

memorandum at 2-3). 

The PCRA court summarized the procedural history that followed:

On October 10, 2014, following a jury trial before this 

[c]ourt, [Appellant] was convicted of one count each of firstdegree murder (18 Pa.C.S. [§] 2502) and possessing an 

instrument of crime (18 Pa.C.S. [§] 907) (“PIC”). The [c]ourt 

immediately imposed the mandatory sentence of life in prison for 

the murder charge (18 Pa.C.S. [§] 1102(a)(1)) and imposed no 

further penalty on the PIC charge. [Appellant] was tried with his 

co-defendant, ... Bennett, who was acquitted of all charges....
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... On March 1, 2016, the Superior Court affirmed 

[Appellant’s] judgment of sentence and on August 22, 2016, the 

Supreme Court of Pennsylvania denied allocatur. 

[Commonwealth v. Denmark, 144 A.3d 184 (Pa. Super. 2016), 

appeal denied 156 EAL 2016 (Pa. filed August 22, 2016.)] ....

On August 21, 2017, [Appellant] filed a pro se petition 

pursuant to the [PCRA]. David Rudenstein, Esquire, was 

appointed to represent [Appellant] on October 27, 2017. On June 

15, 2018, Mr. Rudenstein filed an amended petition (“First 

Amended Petition”) alleging that Commonwealth witness []

Starnes was paid to testify falsely at [Appellant’s] trial. The 

Commonwealth filed a motion to dismiss the petition on December 

6, 2018. Shawn Page, Esquire, entered his appearance on behalf 

of [Appellant] on May 1, 2019. Mr. Page filed an amended petition 

(“Second Amended Petition”) on November 4, 2020, in which he 

adopted, by reference, the First Amended Petition and averred 

that [Appellant] intended to present testimony from Starnes’s 

mother to support the claim that Starnes’s trial testimony was 

false. The Commonwealth filed a second motion to dismiss on 

February 17, 2021. [Appellant] filed a response to the 

Commonwealth’s motion to dismiss on April 12, 2021 (“Response 

to Motion to Dismiss”)[,] to which he appended a signed 

statement from Starnes’s mother, Darlene Oliver [(Oliver)], 

claiming that Starnes could not have witnessed the murder[; 

Appellant also appended] a photo of a signed and notarized 

affidavit from Starnes recanting his trial testimony ....

On March 3, 2022, the Court held an evidentiary hearing on 

the issues related to the recantation of Starnes and the testimony 

of Oliver. At the conclusion of the hearing, the [c]ourt dismissed 

[Appellant’s] petition. [Appellant] filed a notice of appeal on April 

1, 2022. The [c]ourt issued an order pursuant to Pa.R.A.P. 

1925(b) directing [Appellant] to file a Concise Statement of Errors 

Complained of on Appeal by April 26, 2022.

PCRA Court Opinion, 6/13/22, at 1-2. Appellant and the PCRA court have 

complied with Pa.R.A.P. 1925. 

Appellant presents the following questions:

[1.] Did the trial court err in denying the Appellant relief under the 

[PCRA]?
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[2.] Did the trial court err [or] commit an abuse of discretion by 

overruling a request for a continuance of the evidentiary hearing 

to allow then-counsel the opportunity to present the testimony of 

[] Starnes regarding his location on the night in question, 

payments made to him by law enforcement and what, if anything 

he observed on the night in question[?]

Appellant’s Brief at 8.

This Court’s standard of review “is limited to examining whether the 

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

whether it is free of legal error.” Commonwealth v. Sandusky, 203 A.3d 

1033, 1043 (Pa. Super. 2019) (citation and quotation marks omitted). “The 

PCRA court’s credibility determinations, when supported by the record, are 

binding on this Court; however, we apply a de novo standard of review to the 

PCRA court’s legal conclusions.” Commonwealth v. Mitchell, 105 A.3d 

1257, 1265 (Pa. 2014) (citation omitted). Our scope of review is limited to 

the findings of the PCRA court and the evidence on the record of the PCRA 

court’s hearing, viewed in the light most favorable to the prevailing party. 

Commonwealth v. Fahy, 959 A.2d 312, 316 (Pa. 2008). 

Appellant argues the PCRA court improperly denied his request for a 

continuance to obtain evidence of the Commonwealth’s payment to Starnes. 

Appellant’s Brief at 13, 16. Appellant claims: “The document request had 

been outstanding for several YEARS. Counsel for the Commonwealth 

recognized that prior counsel had mishandled the request. This was the first 

request for a continuance by the defense.” Id. at 15. (citation omitted). 
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Appellant points out that the murder weapon was not recovered, and no 

witnesses had come forward prior to Starnes’s statement. Id. at 16.

Appellant asserts that while “the [PCRA c]ourt was correct that [there] would 

be a delay, that needs to be balanced against the constitutional demand for a 

fair trial.” Id.

Appellant directs our attention to the “clear and unequivocal” testimony 

of Oliver, Starnes’s mother. Id. at 17. Appellant asserts “the likelihood of 

whether Oliver’s testimony would compel a different verdict is quite high.” Id. 

Pertinently, the denial of a motion for a continuance

is within the sound discretion of the trial court and will be reversed

only upon a showing of an abuse of discretion. An abuse of

discretion is not merely an error of judgment; rather[,] discretion

is abused when the law is overridden or misapplied, or the

judgment exercised is manifestly unreasonable, or the result of

partiality, prejudice, bias, or ill will, as shown by the evidence or

the record[.] ... We will not reverse a denial of a motion for

continuance in the absence of prejudice.

Commonwealth v. Antidormi, 84 A.3d 736, 745-46 (Pa. Super. 2014)

(citations and quotation marks omitted).

The PCRA court explained the context and rationale for its decision:

[T]he [PCRA c]ourt’s denial of [Appellant’s] request for a lastminute continuance was entirely reasonable and well within its 

discretion. At 10:25 a.m. on the day of the evidentiary hearing, 

which was scheduled to begin at 9:30 a.m., [Appellant’s counsel]

informed the [c]ourt that his witnesses were on the way to the 

courthouse and requested additional time to get them there. N.T. 

3/3/2022 at 21-23. The [PCRA c]ourt recessed to allow the 

witnesses to arrive. Id. at 27. Following the recess, the defense 

called Oliver to the stand. Id. After Oliver [testified], [Appellant’s 

counsel] stepped out of the courtroom to check for Starnes and, 

not finding him, the defense rested. Id. at 65. The 
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Commonwealth then presented the testimony of Officer Riddick. 

Id. at 73-84. After the Commonwealth rested, [Appellant] 

requested another recess to attempt to get Starnes to appear. Id.

at 87-91. The [PCRA c]ourt agreed to hear argument on 

[Appellant’s] remaining claims and then take a lunch break to 

accommodate [Appellant’s] request. Id. at 91, 104. When 

Starnes had still failed to appear after the lunch recess, 

[Appellant] requested that the [c]ourt bifurcate the hearing. Id.

at 104. The [c]ourt denied the request on the grounds that the 

PCRA petition had been pending for over four years, and 

[Appellant] had many months’ notice of the hearing in order to 

line up his witnesses. Id.

PCRA Court Opinion, 6/3/22, at 8-9. The PCRA court added:

[I]t was obvious that Starnes was intentionally hiding, and 

that a continuance would not likely result in him appearing and 

rendering testimony helpful to the defense. At 10:45 a.m., on the 

morning of the evidentiary hearing, defense counsel advised the 

[c]ourt that he had spoken to [Appellant’s] mother, and that she 

had confirmed that she was with Starnes and Oliver (Starnes’s 

mother), and that they were on their way to the courthouse. N.T. 

3/3/2022 at 22-23. Only Oliver showed up[] and claimed to have 

no knowledge of Starnes’s whereabouts. Id. at 33. Moreover, 

Starnes had been the subject of substantial attempts at witness 

intimidation as a result of his testimony identifying [Appellant] as 

the shooter in this case.3Importantly, defense counsel never 

represented that Starnes had been subpoenaed to testify at the 

evidentiary hearing, and he never requested the [c]ourt to take 

action to require Starnes to appear.

3 Starnes testified at trial that he failed to comply with subpoenas 

from the Indicting Grand Jury in this case on numerous occasions 

because he was afraid of retaliation, scared of “getting killed[,]”

and did not appear until he was detained prior to testifying. N.T. 

10/8/2014 at 32-33, 83. He testified that the only reason he came 

to court during the trial was because he did not want to be 

detained again. Id. at 34. Following Starnes’s trial testimony, 

the [c]ourt was informed of inappropriate behavior by spectators 

both inside the courtroom and immediately outside of the 

courtroom. Id. at 85. The [c]ourt was made aware that 

spectators were “making inappropriate threatening comments 

[and] acting in an inappropriate way.” Id. The [c]ourt warned 
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the gallery that the behavior would not be tolerated and that 

[identification] would be required to enter the courtroom from that 

time on. Id. at 85-86. 

Additionally, the resolution of [Appellant’s] petition had 

been delayed prior to the evidentiary hearing by 17 continuances 

that had been requested by the defense. Since [Appellant] 

declined to appear for this hearing via video during the Covid-19 

epidemic, the hearing was further delayed for nearly a year. 

Accordingly, the [c]ourt did not abuse its discretion when it denied 

[Appellant’s] request for another continuance in order for Starnes 

to testify. No relief is due.

Id. at 9-10 (footnote in original, remaining footnotes omitted). 

With regard to Appellant’s claim that the Commonwealth withheld 

evidence of its payment to Starnes, the PCRA court cited applicable law in

explaining:

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

evidence not disclosed to the defense will give rise to a due 

process violation and will require a new trial if the exculpatory 

evidence is “material” either to guilt or punishment. [Id. at] 87; 

see also Pa.R.Crim.P. 573(B)(1)(a) (specifying, as mandatory 

discovery, “[a]ny 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”). 

Therefore, to establish a Brady violation, [Appellant] must 

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

which was either exculpatory evidence or impeachment evidence 

favorable to him; and (3) he was prejudiced by the concealment.”

Commonwealth v. Simpson, 66 A.3d 253, 264 (Pa. 2013). ... 

[T]o establish prejudice, [Appellant] “must demonstrate a 

reasonable probability that, had the evidence been disclosed to 

the defense, the result of the proceeding would have been 

different. A reasonable probability for these purposes is one which 

undermines confidence in the outcome of the trial.” Id. (internal 

quotations and citations omitted). Moreover, “Brady evidence 

may not be cumulative of other evidence, cannot have been 

equally available to the defense, and cannot have been 
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discoverable through the exercise of reasonable diligence.” Id.

(internal citations omitted).

....

[Appellant] failed to produce any evidence to show that 

Starnes was promised or received any form of payment pre-trial, 

let alone that the Commonwealth withheld information regarding 

these alleged payments.2 At the evidentiary hearing, [Appellant] 

failed to present Starnes as a witness, even after the [c]ourt 

granted multiple defense requests for additional time during the 

day to locate him. N.T. 3/3/2022 at 21-22, 26, 87-90, 104. Since 

[Appellant] failed to prove that the Commonwealth concealed 

anything regarding payments or promises to Starnes, the [c]ourt 

properly rejected [Appellant’s] Brady claim premised upon such 

concealment.

2 Before the evidentiary hearing, while addressing a preliminary 

issue regarding a defense motion for a continuance, [Appellant]

provided the [c]ourt with a letter from the Pennsylvania Office of 

the Attorney General and a letter from the Philadelphia District 

Attorney’s Office detailing payments made to Starnes. N.T. 

3/3/2022 at 14-15. The Office of the Attorney General paid posttrial hotel expenses in the amount of $2,643.90 from its Witness 

Relocation Program. Letter from Office of the Attorney General 

dated 2/14/2022. The Philadelphia District Attorney made two 

post-trial per diem payments in the amount of $210 each. Letter 

from the District Attorney’s Office dated 2/25/2022. These letters 

were never made part of the record. In any event, they only 

document post-trial payments to Starnes, and fail to support 

[Appellant’s] claim that Starnes was promised anything prior to 

testifying.

As to the claim that the Commonwealth withheld evidence 

regarding Starnes’s “whereabouts on the time and place of the 

incident,” Statement of Errors at ¶ 30(a), this claim was never 

raised in the PCRA court. Because [Appellant’s] counsel is raising 

this issue for the first time on appeal, the issue is waived. See

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived 

and cannot be raised for the first time on appeal.”) ....

PCRA Court Opinion, 6/3/22, at 5-7 (footnote in original, emphasis added).
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In sum, the record supports the PCRA court’s findings and its legal 

conclusions are proper. Sandusky, 203 A.3d at 1043. Appellant’s issues do 

not merit relief.2 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/31/2023

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2 To the extent Appellant challenges the PCRA court’s credibility findings 

regarding Oliver, the “PCRA court’s credibility determinations, when supported 

by the record, are binding on this Court[.]” Commonwealth v. Mason, 130 

A.3d 601, 617 (Pa. 2015) (citation omitted). “We will not disturb the findings 

of the PCRA court if they are supported by the record, even where the record 

could support a contrary holding.” Commonwealth v. Flor, 259 A.3d 891,

911 (Pa. 2021) (citation omitted).
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