A blog of the Philadelphia Bar Association’s Criminal Justice Section

 By Burt Rose

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In COMMONWEALTH OF PENNSYLVANIA, Appellant v. MICHAEL WILLIS, Appellee, 9 EAP 2009, 2012 WL 1940334, by a 3-3 vote, the PA Supreme Court has reversed a decision of the Superior Court entered on May 14, 2008 at 1024 EDA 2007 which had vacated a Judgment of Sentence of Judge Glenn Bronson of the Court of Common Pleas of Philadelphia County, Criminal Division CP–51–CR–1000571–2005, and had remanded the case to thelower court.

In his opinion for the trial court, Judge Bronson acknowledged that an unrevealed statement, which identified someone other than Willis as the person who robbed the victim, was exculpatory and should have been provided to the defense. Nevertheless, the trial court concluded that this statement was not material within the meaning of Brady because disclosure of the statement could not have affected the outcome of the case. Specifically, the trial court reasoned that the out-of-court statement was inadmissible hearsay, and that, based on the prosecutor’s statement that the declarant’s attorney told her he would advise the client not to testify, the statement would never have been introduced to the jury. The Superior Court reversed.

The Commonwealth was granted allocatur and asked the Supreme Court to consider whether the materiality requirement of Brady v. Maryland, 373 U.S. 83 (1963), was satisfied where evidence not disclosed by the Commonwealth would itself not have been admissible at trial. In Commonwealth v. Green,536 Pa. 599, 640 A.2d 1242 (1994), the Court held that evidence that is not admissible at trial may, nevertheless, be deemed material. Justice Todd held that nondisclosed favorable evidence which is inadmissible at trial may be considered material for purposes of Brady, as long as there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Mere speculation by a defendant, however, will not be sufficient to meet this standard; rather, the defendant must identify specific evidence or information that would have been uncovered, and explain how that evidence or information would have changed the result of the proceeding. In this case, the Appellee did not establish that there was a reasonable probability that, had the evidence withheld by the Commonwealth been disclosed, there would have been a different outcome at trial. Therefore, the order of the Superior Court remanding for a new trial was reversed and the Appellee’s judgment of sentence was reinstated.

    Attorney Mitchell S. Strutin of Strutin & Smarro represented Willis.

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