J-A32006-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

ROD MATTHEWS

                            Appellant                   No. 415 EDA 2013


          Appeal from the Judgment of Sentence September 21, 2012
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0009582-2010


BEFORE: PANELLA, J., OLSON, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.                                 FILED MAY 26, 2015

        Appellant, Rod Matthews, appeals from the judgment of sentence

entered September 21, 2012, in the Court of Common Pleas of Philadelphia

County.      We vacate the judgment of sentence and remand for further

proceedings.

        We take the pertinent facts of this case from the trial court’s opinion.

              Philadelphia Police Detective John Palmiero testified that
        on May 12, 2010, he had been a police officer for approximately
        seven years and had been involved in hundreds of narcotics
        arrests. (N.T., 6/12/12, pgs. 40, 57) On this date Detective
        Palmiero[ ] was on routine patrol in full uniform as a passenger
        in a marked police vehicle with his [p]artner, Police Officer
        Confesor Nieves, in the vicinity of the Lindbergh Avenue and 62nd
        Street in the City of Philadelphia, which he described as a “high
        crime area.” (N.T., 6/12/12, pgs. 40-42, 60) At approximately
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*
    Former Justice specially assigned to the Superior Court.
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     11:30 p.m., he observed [Matthews] yelling “call up the block”
     and making hand gestures towards a female across the street
     from him. (N.T., 6/12/12, pgs. 42-43, 45) As she turned to
     approach, [Matthews] gestured again to her and began to cross
     the street in her direction. (N.T., 6/12/12, pg. 44) After
     engaging in a brief conversation, they started walking away from
     Detective Palmiero’s patrol car. Believing “there was a possible
     drug sale in progress,” he and his partner made a U-turn to
     investigate further. (N.T., 6/12/12, pgs. 46, 50) As they
     approached, he “observed [Matthews] reaching into his right
     front pants pocket [as the female was reaching into her purse
     with her right hand. At that time] both of them looked in our
     direction and began to walk off in separate directions at a very
     fast pace.” (N.T., 6/12/12, pgs. 46, 50)

           As Detective Palmiero exited his patrol car, he called to
     [Matthews], “Where are you going? At that time he puts his
     hand in a fast manner into his right front pants pocket and kind
     of crouches down in a fast manner behind an SUV that is right
     there, which happens to be out of my line of sight.” (N.T.,
     6/12/12, pg. 51) Fearing [Matthews] may have had a handgun,
     Detective Palmiero ordered him to take his hand out of his
     pocket. In response, [Matthews] quickly removed it and then
     jammed it back in. On forcibly removing his hand from his
     pocket, Detective Palmiero discovered [Matthews] was holding
     an orange prescription bottle containing multiple packets
     containing a chunky substance which he recognized as crack
     cocaine. (N.T., 6/12/12, pgs. 51, 52, 61) [Matthews] was then
     taken into custody by the officers, at which time they also
     recovered $29 in cash and two cell phones from his pockets.
     (N.T., 6/12/12, pgs. 54, 55) Detective Palmiero also testified
     that he did not recover any drug paraphernalia used in the
     consumption of drugs. (N.T., 6/12/12, pgs. 57, 62)

            Detective Palmiero testified that the orange bottle
     contained “38 small blue-tinted heat-sealed baggies, and three
     clear in color heat-sealed baggies,” for a total of 41 baggies. It
     was stipulated by and between counsel that a chemical analysis
     of four of the 38 blue tinted packets recovered, performed by a
     chemist with the police chemistry laboratory, tested positive for
     cocaine base…. It was further stipulated that a chemical analysis
     of one of the three clear packets of white powder tested positive
     for cocaine. It was also stipulated that the narcotics recovered
     weighed a total of 2.085 grams. (N.T., 6/12/12, pg. 94)


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Trial Court Opinion, 11/22/13, at 4-6.

        Matthews was charged with, inter alia, Possession with Intent to

Deliver a Controlled Substance1 (“PWID”) and Possession of a Controlled

Substance.2      Matthews filed a suppression motion, which the trial court

denied following a hearing.           A jury convicted Matthews of the simple

possession charge, but was unable to reach a verdict on the PWID charge.

The trial court subsequently declared a mistrial.      Following a second jury

trial, a jury convicted Matthews of PWID.

        Matthews filed a Post-Verdict Motion for Extraordinary Relief, arguing

that the Commonwealth had allegedly withheld evidence favorable to the

defense in violation of the United States Supreme Court’s decision in Brady

v. Maryland, 373 U.S. 83 (1963). Specifically, Matthews claimed that the

Commonwealth withheld statements made by Officers Palmiero and Nieves

during the course of an Internal Affairs investigation, that Matthews was

extremely intoxicated when he was arrested.         Matthews argued that such

evidence would have corroborated his claim that he possessed the drugs for

personal use, impeached the officers’ claims that Matthews did not look like

a drug user at the time of his arrest, and provided a basis for cross-

examination of the Commonwealth’s narcotics expert witness.



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1
    35 P.S. § 780-113(a)(30).
2
    35 P.S. § 780-113(a)(16).



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      At sentencing, Matthews sought to introduce evidence in support of his

motion for extraordinary relief.   The trial court accepted into evidence the

full report of the Internal Affairs investigation containing Officers Palmiero

and Nieves’ statements under the stipulation Matthews had not been

provided with the investigation until two weeks after trial.        See N.T.,

9/21/12 at 8-10, 12.      Matthews also attempted to call Philadelphia Police

Officer   James   Johnson,   the   Commonwealth’s    narcotics   expert   from

Matthews’s first trial, to testify that “had he seen those documents and

those statements, he would not have testified [at trial] that the drugs were

possessed with the intent to deliver.” Id. at 14.    The trial court refused to

permit Officer Johnson to testify, denied the motion and sentenced him to

three years’ probation.    Matthews filed a timely Post-Sentence Motion for

New Trial and New Motion to Suppress Evidence, which was later denied by

operation of law. This timely appeal followed.

      Matthews raises the following issues for our review.

      1. Did the trial court err in refusing to grant a new trial
         inasmuch as the Commonwealth violated its duty pursuant to
         Brady v. Maryland by failing to disclose exculpatory evidence
         until after trial, specifically, written statements given by
         testifying police officers during an Internal Affairs
         investigation, where this withheld evidence substantially
         undermined confidence in the jury’s verdict, where the failure
         to disclose this evidence violated appellant’s rights to due
         process, and where the interests of justice required a new
         trial, and did not the trial court err in refusing to allow
         appellant to call a witness in support of his motion for a new
         trial?




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      2. Did the Commonwealth violate its duty under Brady by failing
         to provide, prior to the litigation of a motion to suppress
         physical evidence, the identity of an eyewitness to appellant’s
         arrest, Helena Mooney, who would have contradicted the
         testimony of the Commonwealth’s witness and who was, in
         fact, called by the defense at trial once her identity was
         revealed, and did not the trial court err in refusing to order
         that the motion accordingly be granted or to grant a new
         suppression hearing and new trial based on this evidence?

      3. Did the trial court err in denying appellant’s challenge,
         pursuant to Batson v. Kentucky, to the Commonwealth’s
         racially discriminatory use of peremptory strikes, and in
         refusing to grant a new trial on the same grounds?

      4. Did the Commonwealth improperly claim, in its closing
         argument to the jury, that the defense’s failure to impeach
         Commonwealth witnesses indicated that any prior statements
         of those witnesses must have been consistent with their trial
         testimony as it constituted impermissible bolstering and
         burden-shifting, and did the trial court err in rejecting
         appellant’s request for a curative instruction?

      5. Was it improper for the trial court to instruct the jury that, if
         the Commonwealth had met its burden of proving the
         defendant guilty beyond a reasonable doubt, the jury “must”
         find him guilty, thereby violating appellant’s right to due
         process of law pursuant to the United States and
         Pennsylvania Constitutions?

      6. Did the trial court err in refusing to grant appellant’s motion
         for a new trial, where the verdict was against the weight of
         the evidence and a new trial was necessary in the interests of
         justice?

Appellant’s Brief at 4-5.

      Under Brady, “a prosecutor has an obligation to              disclose all

exculpatory information material to the guilt or punishment of an accused,

including evidence of an impeachment nature.” Commonwealth v. Spotz,

18 A.3d 244, 275-276 (Pa. 2011) (citation omitted).         To prove a Brady


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violation, the defendant bears the burden of demonstrating that: “(1) the

prosecutor has suppressed evidence; (2) the evidence, whether exculpatory

or impeaching, is helpful to the defendant, and (3) the suppression

prejudiced the defendant.” Commonwealth v. Koehler, 36 A.3d 121, 133

(Pa. 2012) (citation omitted).   To establish prejudice, the defendant must

prove that “there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been

different.” Commonwealth v. Appel, 547 Pa. 171, 689 A.2d 891 (1997)

(citation omitted); see also, Commonwealth v. Bomar, 104 A.3d 1179,

1189 (Pa. 2014) (“Stated differently, the undisclosed evidence must be

‘material to guilt or punishment.’”) (citation omitted).       “A reasonable

probability is a probability sufficient to undermine confidence in the

outcome.”    Commonwealth v. Chmiel, 30 A.3d 1111, 1130 (Pa. 2011)

(citation omitted).

      We further note:

      In determining whether 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. 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 United
      States Supreme Court has made clear that [the] materiality
      standard is not a sufficiency of the evidence test. A Brady
      violation is established by showing that the favorable evidence
      could reasonably be taken to put the whole case in such a
      different light as to undermine confidence in the verdict.
      Importantly, the mere possibility that an item of undisclosed

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      information might have helped the defense, or might have
      affected the outcome of the trial, does not establish materiality
      in the constitutional sense. In order to be entitled to a new trial
      for 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.

Id. (citation omitted).

      Instantly, it is undisputed that the statements made by Officers

Palmieri and Nieves during the Internal Affairs Investigation were in the

Commonwealth’s continuous possession and were not provided to Matthews

until after he was convicted.     Matthews argues that the statements in

question were material and exculpatory in that they would have been

admissible to not only impeach the officers’ testimony and that of the

Commonwealth’s narcotics expert, but also as substantive evidence of his

drug use.

      In support of his argument that the statements were “material” for

Brady purposes, Matthews directs our attention to the United States

Supreme Court’s decision in Cone v. Bell, 556 U.S. 449 (2009). In Cone,

the appellant argued that the State of Tennessee violated his due process

rights when it suppressed witness statements and police reports that would

have corroborated his insanity defense at trial and bolstered his case in

mitigation of the death penalty. Specifically, Cone asserted at trial that he

killed two people while suffering from chronic amphetamine psychosis, a

disorder caused by drug addiction.         In rebutting Cone’s evidence of

addiction, the Commonwealth portrayed Cone not as a drug user, but as a


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drug dealer.3 The jury rejected the insanity defense, convicted Cone of first-

degree murder and related counts, and sentenced him to death.

       Ten years after his conviction, Cone discovered that the State had

suppressed evidence supporting his claim of drug addiction in violation of

Brady.      The evidence included witness statements describing Cone’s

behavior before and after the killings as “real weird” and his appearance as

“wild eyed,” as if he were “high or on drugs.”                556 U.S. at 459 (citations

omitted). A police report prepared contemporaneous to Cone’s arrest also

contained statements in which a police officer described Cone as looking

around “in a frenzied manner,” and “walking in [an] agitated manner” prior

to his apprehension. Id.

       On   federal    habeas     review,      the   United    States   Supreme   Court

determined that the undisclosed evidence undoubtedly strengthened the

inference that Cone was impaired by the use of drugs around the time the

murders were committed, and could have been used to impeach the

testimony at trial that cast doubt on Cone’s drug addiction. See id. at 470-

471.    The Court ultimately held that, given the high standard Cone was

required to satisfy to establish an insanity defense, the evidence would not

likely have altered the jury’s verdict on the issue of insanity. See id. at 474.

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3
  The prosecutor argued, “I'm not trying to be absurd, but he says he's a
drug addict. I say baloney. He's a drug seller. Doesn't the proof show that?”
Cone, 556 U.S. at 455-456.



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Notably, however, the Court concluded that for sentencing purposes, the

suppressed evidence “may have persuaded the jury that Cone had a far

more   serious   drug   problem   than   the   prosecution   was   prepared   to

acknowledge, and that Cone's drug use played a mitigating, though not

exculpating, role in the crimes he committed.”       Id. at 475.   Finding that

neither the District Court nor the Court of Appeals fully assessed the

cumulative effect of the suppressed evidence with respect to Cone’s capital

sentence, the Court remanded the case to the District Court to consider

whether the evidence was material to the jury’s assessment of the proper

punishment in that case.

       We agree with Matthews that the case presented in Cone is

substantially similar to this case. At trial, Matthews argued in his defense

that he had a serious substance abuse problem and that he possessed the

cocaine for personal use. The Commonwealth rebutted this defense with the

arresting officers’ testimony that Matthews did not look like a typical drug

user when he was arrested because he appeared to be stocky and healthy,

and the Commonwealth continued this argument in closing. See N.T., Jury

Trial, 6/12/12 at 80-81; N.T., Jury Trial, 6/13/12 at 127-131. The withheld

evidence disclosed after Matthews’s conviction consisted of statements made

by Officer Palmiero that “Mr. Matthews was so intoxicated on the night of

this incident, that he doesn’t recall what transpired, or who he actually

interacted with,” and Officer Nieves’ statement that “it seemed like


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[Matthews] may have been under the influence of something” at the time of

his arrest.     See Defense Post-Verdict Motion for Extraordinary Relief,

9/11/12, Exhibits A and B.

       In light of this undisclosed evidence, we agree that there is a

possibility that the evidence of Matthews’s severe intoxication at the time of

his arrest could have caused the jury to conclude that the possession of the

crack cocaine was for his personal use, rather than with the intent to sell.

This evidence may have impeached both the arresting officers’ testimony

that Matthews did not appear to be a crack addict and the testimony of the

Commonwealth’s narcotics expert that he possessed the drugs with the

intent to deliver. It also strengthened his claims of drug abuse.

       In light of the trial court’s refusal to hear Officer Johnson’s4 testimony

as to whether the withheld evidence actually caused him to change his

opinion regarding Matthews’s intent to deliver the drugs, we conclude that a

full review of the cumulative effect of this evidence and its materiality with

respect to Matthews’s PWID conviction is warranted. Accordingly, we vacate

the judgment of sentence and remand this case for full consideration of the
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4
  Officer Johnson did not testify at the second trial, at which Matthews was
convicted of the PWID charge, and the trial court refused to hear his
testimony on that basis. See N.T., Sentencing, 9/21/12 at 13-14. However,
as Officer Johnson did testify as the Commonwealth’s narcotics expert at
Matthews’s first trial, prior to the time the Commonwealth disclosed the
officers’ statements, his testimony as to whether this withheld evidence
actually altered his opinion of Matthews’s intent to deliver the cocaine is still
undoubtedly relevant to the materiality of the evidence for Brady purposes.



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merits of Matthews’s Brady claim and of the undisclosed evidence. If the

trial court determines that Matthews has established a Brady violation, it is

to order a retrial. If the trial court determines that Matthews has failed to

establish a Brady violation, it shall reinstate the judgment of sentence.

      As the resolution of this issue on remand may potentially necessitate a

new trial in this matter, thus rendering the remaining claims moot, we defer

an examination of those issues at this time, without prejudice to Matthews’s

right to re-raise these claims on direct appeal in the future.

      Judgment    of   sentence   vacated.      Case     remanded   for   further

proceedings consistent with this memorandum. Jurisdiction relinquished.

      Judge Olson joins in the memorandum.

      Justice Fitzgerald files a dissenting statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/26/2015




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