Com. v. Rosencrance, N.

J-S02042-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NICHOLAS ALEXANDER :
ROSENCRANCE :
: No. 904 MDA 2022
Appellant :
Appeal from the Judgment of Sentence Entered May 3, 2022
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0000136-2019
BEFORE: PANELLA, P.J., OLSON, J., and DUBOW, J.
MEMORANDUM BY DUBOW, J.: FILED: MARCH 10, 2023
Appellant, Nicholas Alexander Rosencrance, appeals from the May 3,
2022 judgment of sentence following his jury conviction of one count each of
Aggravated Indecent Assault by Forcible Compulsion, Indecent Assault by
Forcible Compulsion, and Sexual Assault.1 Appellant challenges the sufficiency
and weight of the evidence and an evidentiary ruling, and raises a Brady2
claim. After careful review, we affirm.
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1 18 Pa.C.S. §§ 3125(a)(2), 3126(a)(2), and 3124.1.
2 Brady v. Maryland, 373 U.S. 83 (1963).
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The relevant facts and procedural history are as follows. On October
17, 2018, the victim (“Victim”) reported to police that, almost two years earlier
in November of 2016, Appellant had sexually assaulted her at a house party.3
Following an investigation into the allegations, the Commonwealth
charged Appellant with the above crimes.4
On September 20, 2021, Appellant’s jury trial commenced. The
Commonwealth presented the testimony of Victim, witnesses Kayla Pollack
and Hallie Brownell,5 and Lackawanna County Detective Michele Mancuso.
Appellant called Scott Township Police Officer Frank Rapoch to testify as on
cross-examination.
Victim testified that she and Appellant both attended a party on the
night in question. Victim and Appellant had known each other since
elementary school, and had mutual friends, but were not themselves close
friends. After they engaged in some small talk, Appellant asked Victim to
accompany him to his car. Victim testified that, when they arrived at
Appellant’s small four-door car, Victim opened the back door, the two got in
the back seat, and Appellant shut the door behind him. They talked for a
short time and then Appellant kissed Victim, first on the lips and then on the
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3Victim and Appellant were both high school students at the time of the sexual
assault.
4 The Commonwealth also charged Appellant with Rape. The jury acquitted
him of this charge.
5 Ms. Brownell’s first name sometimes appears in the record as “Hallie” and
sometimes as “Halle.”
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neck. Victim testified that, at first, she kissed Appellant back, but Victim knew
immediately that she did not want to have sex because she was a virgin and
felt uncomfortable.
Victim testified that while Appellant was kissing her, he got on top of
her and inserted his finger in her vagina. She testified that Appellant was
much bigger than her and weighed much more.6 Victim explained that most
of Appellant’s body weight was on top of her body when he started to insert
his fingers in her vagina. Victim testified that Appellant pulled her leggings
and underwear down around her ankles and that everything happened quickly.
Victim further testified that after Appellant digitally penetrated her, he
put his penis inside her vagina. Victim stated that it hurt right away because
she had never had intercourse before, and she knew she didn’t want to have
intercourse with Appellant. Victim testified that she told Appellant “multiple
times” that she did not want to have sexual intercourse with him; however,
Appellant continued to have intercourse with her even after Victim protested
by telling Appellant many times that she just wanted to go back to the party
with her friends. N.T. Trial, 9/20/21, at 52.7 Victim explained that, when she
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6Appellant was a 230-pound athlete and Victim weighed between 110 and
117 pounds, Appellant was between 6 feet and 6 feet 3 inches tall, and Victim
was approximately 5 feet 4 inches tall.
7 The lower court transmitted the notes of testimony from Appellant’s trial in
four separate volumes, three of which memorialize testimony from the first
day of Appellant’s trial. We have cited to Victim’s testimony from the
September 20, 2021 “Transcript of Proceedings of Jury Trial,” which we
(Footnote Continued Next Page)
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told him she didn’t want to continue, Appellant got off her and grabbed her by
her waist and put her on top of him. Victim testified that she was not willingly
engaging in any way, but that Appellant had his hands on her, holding her
waist and thrusting his body as his penis went inside her. Victim stated that
eventually she sensed that Appellant was frustrated by her lack of interest in
having intercourse with him and she was then able to push away from him.
Victim testified that Appellant only spoke to her once during the assault to tell
her that it would be fast. According to Victim, the assault lasted five to ten
minutes.
Victim testified that she returned to the party, found her best friends
Hallie Brownell and Leah Lomis,8 and another girl, Kayla Pollack. The girls
went to the bathroom where, Victim began to cry. Victim testified that when
she sat on the toilet, she saw blood coming from her vagina. Victim told the
girls she had had sex with Appellant against her will. As the girls exited the
bathroom, they saw Appellant who said “maybe next time you’ll know what
you were doing.” Id. at 60.
Victim further testified that, in addition to providing an oral statement
to Detective Mancuso, she also gave a short, written statement to Officer
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received as a separate bound volume, and to Ms. Brownell’s testimony from
the September 20, 2021 “Transcript of Proceedings of Excerpt of Trial
Testimony of Hall[i]e Brownell,” which the lower court incorporated into the
part of the certified record that contains the pleadings.
8 Ms. Lomis died in a boating accident in 2017 and, therefore, did not testify
at Appellant’s trial.
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Frank Rapoch containing some details about the assault. At sidebar,
Appellant’s counsel requested a copy of the written statement. The
Commonwealth indicated that it did not have any written statement provided
to Officer Rapoch by Victim. On cross-examination, Victim testified that she
was given a blank document on which police asked her to write down a
statement of what had happened, that she followed those instructions, that
she gave Officer Rapoch the handwritten statement, and that she did not know
what happened to it.
Kayla Pollack testified that when Victim returned to the party, she
“looked completely soulless.” N.T. Trial, 9/21/21, at 14. She testified that
she accompanied Victim to the bathroom where Victim began crying and
explaining that she had had nonconsensual sex with Appellant. Ms. Pollack
confirmed that there had been blood coming from Victim’s vagina.
Hallie Brownell testified that she also saw Victim when Victim returned
to the party. She testified that Victim was “frantic,” upset, and crying when
she returned. N.T. Excerpt, 9/20/21, at 8. She testified that Victim asked
Ms. Brownell to accompany her to the bathroom. She testified that Victim
was bleeding from her vagina and that Victim stated that she had unwillingly
had sex with Appellant. She testified that Victim explained that Appellant had
ripped her leggings down and that Victim had repeatedly asked him to go back
to the party, but he had refused. Ms. Brownell also testified that, when the
girls left the bathroom, Appellant was outside and, stated “maybe next time
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she’ll know what she’s doing,” and commented about the blood on the seat of
his car. Id. at 10.
On cross-examination, Appellant’s counsel asked Ms. Brownell why she
had had consensual sex with Appellant in the summer of 2017, which was
after the assault of Victim. The Commonwealth objected to this question. At
sidebar, Appellant’s counsel argued that whether Ms. Brownell had ever had
consensual sex with Appellant was relevant to Ms. Brownell’s “credibility as to
whether [the assault of Victim] ever happened . . . It is a straight credibility
issue[.]” Id. at 14. Counsel further explained that “I will argue to the jury
that that never happened. . . . And the fact that [Ms. Brownell] had voluntary
relations with my client is direct credibility.” Id.9 Counsel emphasized his
“position that it is the most monumental credibility if she did have consensual
sex with him after finding out that allegedly [Appellant] raped her.” Id. at
17-18.
The Commonwealth asserted that Ms. Brownell and Appellant had had
consensual sex sometime before the assault on Victim and that “bringing in
this teenage girl’s sex life is not relevant to the charges at hand.” Id. at 16.
The trial court sustained the Commonwealth’s objection and issued a
cautionary instruction to the jury to disregard the question. Id. at 17-19.
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9 Counsel also stated that Appellant intended to testify that he and Ms.
Brownell had sex in the summer of 2017. Appellant ultimately did not testify
at trial.
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Detective Mancuso, the lead investigator on the case, testified that
during her interview of Victim, Detective Mancuso took notes and
memorialized Victim’s responses in a report. She testified that she did not
provide Victim with a blank statement for Victim to complete. She further
testified that never saw a written statement from Victim and that Officer
Rapoch did not provide her with a statement from Victim.
Officer Rapoch testified that he did not have a written statement that
Victim stated she had given him in 2018 and did not remember Victim giving
him such a statement.
On September 21, 2021, the jury convicted Appellant of Aggravated
Indecent Assault by Forcible Compulsion, Indecent Assault by Forcible
Compulsion, and Sexual Assault.
On May 3, 2022, the court sentenced Appellant to an aggregate term of
5 ½ to 12 years’ incarceration followed by 6 years of special probation. On
May 13, 2022, Appellant filed a post-sentence motion in which he requested
modification of his sentence. On May 19, 2022, the trial court denied the
motion.
This appeal followed. Both Appellant and the trial court complied with
Pa.R.A.P. 1925.
A.
Appellant raises the following issues on appeal:
1. Whether [Appellant] was denied his right to confront adverse
witnesses, as guaranteed by the United States and
Pennsylvania Constitution, when he was prohibited from
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impeaching a key Commonwealth witness about her
inconsistent and contradictory behavior which also calls into
question her bias and hostility toward [Appellant?]
2. Whether the evidence was insufficient[] as a matter of law to
sustain convictions for Aggravated Indecent Assault by Forcible
Compulsion and Indecent Assault by Forcible Compulsion
where the evidence failed to establish the key element of
forcible compulsion[?]
3. If this Honorable Court determines sufficient evidence was
presented to enable a fact-finder to find the key element of
forcible compulsion, under Counts 2 and 4, whether the verdict
was so against the weight of the evidence that the verdict
shocks the conscious of one’s sense of justice[?] Additionally,
whether the verdict related to Count 3, Sexual Assault, was so
against the weight of the evidence that the verdict shocks one’s
sense of justice[?]
4. Whether [Appellant’s] Due Process Rights under Brady[] were
violated because [Appellant] was unable to adequately
impeach the alleged victim with her original written statement
to law enforcement because the statement mysteriously went
missing[?]
Appellant’s Brief at 5-6.
B.
In his first issue, Appellant asserts that the trial court denied him his
constitutional right to confront witness Hallie Brownell when it sustained the
Commonwealth’s objection to his counsel’s question pertaining to Ms.
Brownell’s alleged subsequent sexual relationship with Appellant. Id. at 18-
29. Appellant claims that the court should have permitted him to elicit
testimony that Ms. Brownell had a sexual relationship with Appellant after he
had allegedly assaulted her best friend, Victim, to “impeach her version of
events based on her inconsistent and contradictory behavior.” Id. at 21-22.
Appellant avers that the trial court incorrectly assumed when sustaining the
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Commonwealth’s objection that Appellant’s counsel’s purpose was to impeach
Ms. Brownell’s character for truthfulness. Id. at 21. He explains instead that
his counsel’s actual purpose was to “show that Ms. Brownell’s behavior was
inconsistent with how a ‘best friend’ would normally act after a ‘violent’
assault.” Id. at 23-24. He argues that it is clear from the Notes of Testimony
that “this line of questioning was intended to impeach the veracity of [Ms.
Brownell’s] testimony based upon behavior which a reasonable person could
call into question following a traumatic event.” Id. at 27. Notwithstanding
the above arguments, Appellant does not address the legal conclusion upon
which the trial court based its evidentiary ruling.
Appellant also claims that, through his cross-examination, his counsel
sought to reveal Ms. Brownell’s bias or hostility toward Appellant or that she
had a motive to lie. Id. at 23. In particular, Appellant asserts that if his
counsel had been permitted to reveal that Ms. Brownell and Appellant had a
consensual sexual relationship months after Appellant’s assault of Victim, “the
jury would have been made aware of a complex love triangle.” Id. at 27.
Appellant then avers that this testimony would have also revealed a “four-
sided love square” between Appellant, Victim—with whom Appellant maintains
his sexual relationship was consensual—Ms. Brownell, and Ms. Pollack, who
admitted that Appellant had accompanied to her senior prom “a couple years”
after Appellant’s alleged sexual assault of Victim. Id. at 29. Appellant
concludes that this “thorny relationship certainly suggests bias” and that
“[c]learly, something other than the alleged violent sexual assault of their
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close friend caused [the witnesses’] relationships with [Appellant] to spoil.”
Id. at 28-29 (emphasis omitted).
We review the trial court’s rulings on the admissibility of evidence for an
abuse of discretion. Commonwealth v. Thompson, 106 A.3d 742, 754 (Pa.
Super. 2014). An abuse of discretion is “the overriding or misapplication of
the law, or the exercise of judgment that is manifestly unreasonable, or the
result of bias, prejudice, ill-will, or partiality, as shown by the evidence of
record.” Commonwealth v. Harris, 884 A.2d 920, 924 (Pa. Super. 2005)
(citation omitted).
“It is well-settled that the trial court has the discretion to determine the
scope and limits of cross-examination and that this Court cannot reverse those
findings absent a clear abuse of discretion or an error of law.” In re Lokuta,
11 A.3d 427, 444 (Pa. 2011) (citation and quotation marks omitted). The
right to confront witnesses “guarantees an opportunity for effective cross-
examination, not cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.” Commonwealth v. Rogers, 250
A.3d 1209, 1216 (Pa. 2021) (citation and quotation marks omitted).
Before we reach the merits of Appellant’s evidentiary challenge, we must
determine whether he has preserved for our review the arguments he now
asserts to his support his claim.
It is well-established that issues not raised before the trial court are
waived and cannot be raised for the first time on appeal. Pa.R.A.P. 302(a). In
order to preserve an evidentiary issue for review, “a party must make a timely
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and specific objection.” Commonwealth v. Duffy, 832 A.2d 1132, 1136 (Pa.
Super. 2003) (citation omitted). “Also, an appellant may not raise a new
theory for an objection made at trial on his appeal.” Id. See also
Commonwealth v. Rose, 172 A.3d 1121, 1128 (Pa. Super. 2017) (finding a
challenge to the admission of certain testimony waived where counsel
asserted a “bald objection without specificity” during trial); Commonwealth
v. Lopez, 57 A.3d 74, 82 (Pa. Super. 2012) (concluding that the appellant
waived his claim that certain testimony was inadmissible hearsay where, at
trial, appellant’s counsel merely objected without explanation).
Our review of the Notes of Testimony indicates that Appellant’s proffered
reason for seeking Ms. Brownell’s testimony that she had a sexual relationship
with Appellant subsequent to his assault of Victim was that this “fact”
presented a “monumental” challenge to her credibility.10 Appellant’s counsel
never claimed, as Appellant argues in his Brief to this Court, that he sought
to pursue this testimony to expose Ms. Brownell’s bias against or motive to lie
about Appellant, the existence of any so-called “love triangle” or “four-sided
love square,” or to “show that Ms. Brownell’s conduct was inconsistent with
how a ‘best friend’ would normally act after a ‘violent’ assault.”11 Accordingly,
we conclude these new theories in support of his request for the admission of
this evidence, raised for the first time on appeal, are waived.
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10 N.T. Excerpt, 9/20/21, at 17-18.
11 Appellant’s Brief at 23-24, 27, 29.
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Moreover, even if Appellant had challenged the trial court’s legal
conclusion to exclude Ms. Brownell’s testimony regarding her alleged
subsequent sexual relationship with Appellant, it would not merit relief.
Generally, all relevant evidence is admissible, and evidence is relevant
if it has “any tendency to make a fact more or less probable than it would be
without the evidence.” Pa.R.E. 401(a). See also id. at 402. Here, any
evidence of Ms. Brownell’s subsequent relationship with Appellant was not
relevant to whether Appellant committed the offenses against Victim.
Furthermore, to the extent Appellant sought Ms. Brownell’s testimony
to impeach her credibility as he claimed at trial, Pa.R.E. 608 precludes the use
of specific instances of a witness’s conduct to attack her character for
truthfulness. See Pa.R.E. 608(b)(1) (“The character of a witness for
truthfulness may not be attacked or supported by cross-examination or
extrinsic evidence concerning specific instances of the witness’[s]
conduct[.]”). Rather, to challenge Ms. Brownell’s credibility, the Rules of
Evidence limited Appellant to introducing evidence of her general reputation
for truthfulness or untruthfulness. See id. at 608(a) (“A witness’s credibility
may be attacked or supported by testimony about the witness’s reputation for
having a character for truthfulness or untruthfulness.”). Thus, the trial court
did not abuse its discretion in precluding Appellant from cross-examining Ms.
Brownell on this issue. See Trial Ct. Op., 10/19/22, at 9 (explaining that it
precluded Appellant from cross-examining Ms. Brownell on her alleged sexual
relationship with Appellant because Pa.R.E. 608 prohibited Appellant from
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using specific instances of Ms. Brownell’s conduct for this purpose). Appellant
is, therefore, not entitled to relief on this claim.
C.
In his next issue, Appellant claims that the Commonwealth’s evidence
was insufficient to prove the “forcible compulsion” element of Aggravated
Indecent Assault by Forcible Compulsion and Indecent Assault by Forcible
Compulsion. Appellant’s Brief at 30. He asserts that the Commonwealth failed
to show that he used any kind of force when digitally penetrating Victim. Id.
at 32-33, 38.
“A claim challenging the sufficiency of the evidence is a question of law.”
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). We review a
sufficiency challenge de novo, and our scope of review is limited to the
evidence of record and all reasonable inferences arising therefrom, viewed in
the light most favorable to the Commonwealth as verdict winner.
Commonwealth v. Rushing, 99 A.3d 416, 420-21 (Pa. 2014).
The evidence is sufficient if it can support every element of the crime
charged beyond a reasonable doubt. Commonwealth v. Sebolka, 205 A.3d
329, 337 (Pa. Super. 2019). The Commonwealth may sustain its burden by
means of wholly circumstantial evidence. Id. “Significantly, we may not
substitute our judgment for that of the factfinder; thus, so long as the
evidence adduced, accepted in the light most favorable to the Commonwealth,
demonstrates the respective elements of [an appellant’s] crimes beyond a
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reasonable doubt, the appellant’s convictions will be upheld.” Id. (citation
omitted).
“[T]he uncorroborated testimony of a sexual assault victim, if believed
by the trier of fact, is sufficient” to sustain a conviction. Commonwealth v.
Diaz, 152 A.3d 1040, 1047 (Pa. Super. 2016) (citation omitted). See also
18 Pa.C.S. § 3106 (explaining that the “testimony of a complainant need not
be corroborated in prosecutions” for sexual offenses).
A person commits the offense of Aggravated Indecent Assault by
Forcible compulsion if he “engages in penetration, however slight, of the
genitals or anus of a complainant with a part of the person’s body for any
purpose other than good faith medical, hygienic[,] or law enforcement
procedures . . . if . . . the person does so by forcible compulsion[.]” 18 Pa.C.S.
§ 3125(a)(2).
A person commits the offense of Indecent Assault by Forcible
Compulsion if he “has indecent contact with the complainant [or] causes the
complainant to have indecent contact with [him] . . . and . . . the person does
so by forcible compulsion[.]” Id. at § 3126(a)(2).
The Crimes Code defines “forcible compulsion” as “[c]ompulsion by use
of physical, intellectual, moral, emotional[,] or psychological force, either
express or implied.” Id. at § 3101.
Our review of the Notes of Testimony indicates that the Commonwealth
presented sufficient evidence to prove each element of the charged offenses,
including that Appellant used physical force in his commission of the assault
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on Victim. Specifically, the Commonwealth presented evidence that Appellant
overpowered Victim and ignored her protests when he penetrated her with his
fingers and penis. The jury found credible Victim’s testimony that Appellant
climbed on top of her in the back of his car, pulled down her leggings and
underwear and digitally penetrated her vagina, then grabbed her by the waist
and put her on top of him and forced his penis into her vagina. Victim also
testified that she experienced physical pain during the entire encounter, bled
heavily as a result of it, and that she told Appellant multiple times that she
wanted to return to the party. In addition, the jury was able to see that
Appellant is significantly larger than Victim so as to credit Victim’s testimony
that Appellant ignored Victim’s protestations and physically overcame her to
force sexual assault.
From this evidence, and all reasonable inferences therefrom, it was
reasonable for the jury to conclude that Appellant employed forcible
compulsion to assault Victim. Appellant’s challenge to the sufficiency of the
evidence, thus, fails to garner relief.
D.
In his third issue, Appellant challenges the weight the jury gave to the
Commonwealth’s evidence in support of each of his convictions. Appellant’s
Brief at 38-50.
A challenge to the weight of the evidence must be raised before the trial
court either orally or in written motion. Pa.R.Crim.P. 607.
The Rule provides:
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Rule 607. Challenges to the Weight of the Evidence
(A) A claim that the verdict was against the weight of the evidence
shall be raised with the trial judge in a motion for a new trial:
(1) orally, on the record, at any time before sentencing;
(2) by written motion at any time before sentencing; or
(3) in a post-sentence motion.
Pa.R.Crim.P. 607(A)(1)-(3). “As noted in the comment to Rule 607, ‘the
purpose of this rule is to make it clear that a challenge to the weight of the
evidence must be raised with the trial judge or it will be waived.’”
Commonwealth v. Gillard, 850 A.2d 1273, 1277 (Pa. Super. 2004) (quoting
Pa.R.Crim.P. 607 cmt.). An appellant’s failure to avail himself of any of the
prescribed methods for presenting a weight of the evidence issue to the trial
court constitutes waiver of that claim, even if the trial court responds to the
claim in its Rule 1925(a) opinion. Commonwealth v. Burkett, 830 A.2d
1034, 1037 (Pa. Super. 2003).
Our review of the trial court record, including the Notes of Testimony
and Appellant’s post-sentence motion, indicates that Appellant did not raise
his challenge to the weight of the evidence at any time at or before sentencing
or in his post-sentence motion. Accordingly, Appellant has waived this claim.
E.
In his final issue, Appellant asserts that the Commonwealth violated his
Due Process rights pursuant to Brady by failing to allow him to inspect the
written statement Victim indicated she had provided to Officer Rapoch.
Appellant’s Brief at 50-54. Appellant concedes that Officer Rapoch testified
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that he did not recall Victim giving him a written statement. Id. at 52.
Appellant speculates that “the written statement likely contained important
impeachment evidence pertaining to the intricacies of the alleged incident.”
Id. at 52. The Commonwealth responds that no such written statement
exists. Commonwealth’s Brief at 29 (citing N.T., 9/20/21, at 69).
In Brady, the U.S. Supreme Court held that “the suppression by the
prosecution of evidence favorable to the accused upon request violates due
process where the evidence is material to either guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” Brady, 373
U.S. at 87 (emphasis added).
“[T]o establish a Brady violation, an appellant must prove three
elements: (1) the evidence at issue is favorable to the accused, either because
it is exculpatory or because it impeaches; (2) the evidence was suppressed
by the prosecution, either willfully or inadvertently; and (3) prejudice ensued.”
Commonwealth v. Spotz, 47 A.3d 63, 84 (Pa. 2012).
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.
[Rather, e]vidence is material only 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.
Commonwealth v. Willis, 46 A.3d 648, 656 (Pa. 2012) (citations, marks,
and brackets omitted).
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The defendant has the burden of proving, by reference to the record,
that the Commonwealth withheld or suppressed evidence. Commonwealth
v. Hutchinson, 25 A.3d 277, 310 (Pa. 2011). “[A] prosecutor’s disclosure
obligation encompasses only information known or readily ascertainable by
the government actors involved in the prosecution.” Commonwealth v.
Weiss, 81 A.3d 767, 792 (Pa. 2013), abrogated on other grounds by
Commonwealth v. Yale, 249 A.3d 1001 (Pa. 2021).
Following our review, we conclude that Appellant has failed to
demonstrate that the Commonwealth committed a Brady violation. Neither
the prosecutor nor Appellant had access to Victim’s alleged written statement.
In addition, the Commonwealth cannot be found to have suppressed a
statement, either willfully or inadvertently, as the statement does not exist.
Detective Mancuso testified that Officer Rapoch never provided her with a
written statement from Victim, and Officer Rapoch testified that he did not
remember obtaining a written statement from Victim and could not provide a
copy of such a statement. See N.T., 5/21/21, at 23 (where Detective Mancuso
testified that Officer Rapoch never provided her with a written statement from
Victim), 41 (where Officer Rapoch testified that he does not remember
obtaining a written statement from Victim).
Appellant’s argument as to the value of a written statement that was
not available to either his attorney or the prosecutor is pure speculation,
particularly where he could not establish that the statement exists. As stated
above, a mere possibility that an item of undisclosed information might have
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been helpful to Appellant is not sufficient to establish materiality. Accordingly,
Appellant has not established that the Commonwealth violated his rights
under Brady. He is, thus, not entitled to relief on this claim.
F.
For the foregoing reasons, we affirm Appellant’s judgment of sentence.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/10/2023
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