Com. v. Whitaker, D.

J-A09042-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAMIAN WHITAKER :
:
Appellant : No. 1664 EDA 2020
Appeal from the Judgment of Sentence Entered August 7, 2020
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0005797-2018
BEFORE: NICHOLS, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED APRIL 12, 2022
Damian Whitaker (Whitaker) appeals from the judgment of sentence
imposed in the Court of Common Pleas of Delaware County (trial court) after
his jury conviction of misdemeanor Strangulation, Simple Assault, Possession
of an Instrument of Crime (PIC) and Institutional Vandalism.1 He argues that
the evidence was insufficient to support his conviction. Counsel has filed an
application to withdraw pursuant to Anders v. California, 386 U.S. 738(1967). We grant counsel’s application to withdraw and affirm the judgment
of sentence.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 2718(a), 2710(a)(3), 907 and 3307(a)(3), respectively. The
jury acquitted Whitaker of the felony charges of Rape, 18 Pa.C.S.
§ 3123(a)(1), and Sexual Assault, 18 Pa.C.S. § 3124.
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We take the following facts from the trial court’s March 9, 2021 opinion
and our independent review of the record.
I.
On October 24, 2018, the Commonwealth filed an Information charging
Whitaker with the foregoing crimes. A three-day trial commenced on
November 6, 2019. Brandi Gray, her fifteen-year-old son and Yeadon Borough
police officers Jenna Long and Nicholas Tokonitz testified on behalf of the
Commonwealth.
Ms. Gray testified that as of the time of the May 19, 2018 incident,
Whitaker had been her boyfriend for a few months. After going out to a
restaurant in the afternoon with Whitaker and her sons to celebrate the oldest
son’s twenty-second birthday, they returned to her apartment. Whitaker
asked her to have sex two to three times, to which she said no. She fell asleep
on her bed and woke when Whitaker put a pillow over her face that restricted
her breathing until she was able to turn her head. He then wrapped the
pillowcase around her throat which she had to loosen to breathe. He used his
body and elbows to hold her down. He removed Ms. Gray’s jeans and
penetrated her vagina. Whitaker momentarily left the bedroom. When he
returned, he retrieved a knife from her dresser and held it to her throat, pulling
her to a standing position. She testified that she had been fearful that
Whitaker would harm her with the knife, which she identified at trial. (See
N.T. Trial, 11/07/19, at 52-62, 65, 67, 91, Exhibit C-6).
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Ms. Gray’s fifteen-year-old son testified that on the day of the incident,
he heard a “loud commotion” from the bedroom that concerned him so he
went in to investigate. While standing at the bedroom doorway in shock, he
observed that Whitaker had a pillowcase around Ms. Gray’s neck and she was
struggling to break free. Ms. Gray was able to toss her cellphone to her son
and he then hid in a closet and called his grandmother and 911. (See id. at
127-29, Exhibit C-6).
Officer Long testified that she was the first officer to arrive on scene.
When she parked her vehicle in front of the apartment, she could hear a
female screaming. Upon entering the residence and approaching the stairway,
she observed Ms. Gray and Whitaker standing close together at the top of the
stairs with him holding the knife. Whitaker tossed the knife down the stairs
and Ms. Gray was visibly upset and shaking. The officer collected the knife,
pillows and pillowcases. She identified the knife at trial.
Officer Long stated that after Whitaker was placed in a holding cell at
the police station, she observed him masturbating on the closed-circuit
camera. The trial court overruled Whitaker’s best evidence rule objection to
testimony about what was seen on the video. The officer stated that she
accompanied Officer Tokonitz when he went to tell Whitaker to stop his
behavior and she saw urine on the floor of the cell. (See id. at 144-47, 149-
50).
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Officer Tokonitz testified that he and another officer were dispatched to
Ms. Gray’s residence after Officer Long had gotten there. They placed
Whitaker in handcuffs and escorted him to a police vehicle. Although Whitaker
initially cooperated with the officers, he then resisted, and the police had to
forcibly place him in their vehicle and into the holding cell at the police station.
Afterward, Officer Tokonitz observed Whitaker masturbating on the closed-
circuit television. The officer went to the cell to tell him to stop and observed
fresh urine both in the cell and in front of it, and that the plywood frame on
the cell’s bed was broken in half. Whitaker had been the only person in this
cell block and the officer testified the cell had been clean earlier and there had
been no damage to the bedframe before he placed Whitaker in it. (See id. at
164-65, 177-78).
On November 8, 2019, the jury convicted Whitaker of misdemeanor
Strangulation, Simple Assault, PIC and Institutional Vandalism and acquitted
him of felony Rape and Sexual assault. On December 6, 2019, the trial court
sentenced him to an aggregate sentence of not less than forty-four nor more
than 132 months’ incarceration.
Timely post-sentence motions were filed on December 16, 2019 ,in
which Whitaker raised several challenges and counsel requested the
opportunity file a supplemental post-sentence motion. On December 26,
2019, the trial court granted the request to file a supplemental motion, giving
Whitaker fourteen days after transcripts were filed. On January 3, 2020, the
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court appointed new counsel at Whitaker’s request. On March 11, 2020, it
granted new counsel fifteen more days to file supplemental post-sentence
motions. On May 11, 2020, counsel filed supplemental post-sentence
motions, and on August 7, 2020, the trial court granted the motion to the
extent it challenged the sentence and denied all other claims. Whitaker timely
appealed.2, 3 Counsel has filed an application to withdraw and an Anders
____________________________________________
2On August 31, 2020, Whitaker filed a pro se notice of appeal at 1660 EDA
2020. Counsel filed a notice of appeal on September 3, 2020, at 1664 EDA
2020. On April 27, 2021, this Court dismissed the pro se appeal as duplicative.
3 On June 30, 2021, a Rule was issued for Whitaker to show cause why this
matter should not be quashed as untimely. After receiving his response, the
Rule was discharged and referred to the merits panel. Hence, as a preliminary
matter, we must determine if this appeal is properly before us. On March 11,
2020, during the 120-day period to decide Whitaker’s post-sentence motion,
the trial court granted counsel until March 26, 2020, to file a supplemental
motion. See Pa.R.Crim.P. 720(B)(1)(b). The 120-day period for filing an
order on Whitaker’s December 16, 2019 post-sentence motion expired on April
15, 2020. See Pa.R.Crim.P. 720(B)(3). However, the Supreme Court of
Pennsylvania entered a Judicial Emergency Order in response to the Covid-19
pandemic stating that all papers required to be filed between March 19, 2020,
and May 8, 2020, shall be deemed timely if filed by May 11, 2020. Therefore,
because the deadline for deciding the motion and the date for filing the
supplemental post-sentence motion fell during this time, May 11, 2020,
became the 120-day deadline for: (1) Whitaker to file a supplemental post-
sentence motion; and either (2) the court to file an order deciding the post-
sentence motion; or (3) the prothonotary to file an order denying the post-
sentence motion by operation of law pursuant to Pa.R.Crim.P. 720(B)(3)(a).
Whitaker timely filed his supplemental post-sentence motion, but neither the
trial court nor prothonotary entered an order. Instead, the trial court decided
the post-sentence motion on August 7, 2020, which was within 120-days after
May 11, 2020, but well after it had lost jurisdiction to decide the December 16
2019 post-sentence motion, including any supplement thereto. See
Pa.R.Crim.P. 720(B)(3)(a). Whitaker filed a notice of appeal within thirty days
of the August 7, 2020 decision, but because the decision was filed outside the
(Footnote Continued Next Page)
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brief. On December 27, 2021, Whitaker filed a pro se response brief to the
Anders brief and on March 10, 2021, he filed a pro se reply brief.
II.
A.
Criminal defendants have a constitutional right to a direct appeal as well
as to counsel on that appeal. See Commonwealth v. Woods, 939 A.2d 896,
898 (Pa. Super. 2007). Before appointed appellate counsel may be permitted
to withdraw pursuant to Anders, the following conditions must be met:
Direct appeal counsel seeking to withdraw under Anders must file
a petition averring that, after a conscientious examination of the
record, counsel finds the appeal to be wholly frivolous. Counsel
must also file an Anders brief setting forth issues that might
arguably support the appeal along with any other issues necessary
for the effective appellate presentation thereof.
Id. at 898.
Once an Anders brief is filed, its contents are only sufficient if they:
(1) provide a summary of the procedural history and facts, with
citations to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4) state
counsel’s reasons for concluding that the appeal is frivolous.
Counsel should articulate the relevant facts of record, controlling
____________________________________________
120-days authorized by Rule 720, it was a legal nullity; thus, ordinarily we
would be deprived of jurisdiction to decide this matter. However, under the
circumstances and due to any potential confusion caused by the Covid-19
pandemic and the Judicial Emergency Order entered in response thereto, we
will deem the failure of either the trial court or the prothonotary to timely act
on Whitaker’s post-sentence motion to be a breakdown in the operation of the
court and will consider the merits of his appeal. See Commonwealth v.
Khalil, 806 A.2d 415, 420-21 (Pa. Super. 2002).
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case law, and/or statutes on point that have led to the conclusion
that the appeal is frivolous.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
In addition, counsel must provide the appellant a copy of the petition to
withdraw and the Anders brief, advising him of the right to retain new
counsel, to proceed pro se, or to raise new grounds for appellate relief. See
id. If counsel has met these obligations, “it then becomes the responsibility
of the reviewing court to make a full examination of the proceedings and make
an independent judgment to decide whether the appeal is in fact wholly
frivolous.” Id. at 354 n.5.
In this case, counsel has satisfied the technical requirements of Anders
and Santiago. He has filed a petition seeking to withdraw with this Court,
stating that he has examined the entire record and found this appeal to be
frivolous. The petition included an attached copy of the letter he sent to
Whitaker. Enclosed with that letter was a copy of the petition to withdraw, as
well as a copy of the Anders brief. The content of the Anders brief also
comports with all requirements for counsel’s withdrawal.
Because the Anders requirements have been satisfied, we will turn to
an independent review to determine if Whitaker’s appeal challenging the
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sufficiency of the evidence to support his conviction of Strangulation, Simple
Assault, PIC and Institutional Vandalism is, in fact, wholly frivolous.4
B.
1.
In his response brief to the Anders brief, Whitaker maintains that the
evidence was insufficient to support the charge of Strangulation because he
was acquitted of Sexual Assault. (See Whitaker’s Response Brief, 12/27/21,
at 7).
The Crimes Code provides, in pertinent part, that:
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4 When reviewing a sufficiency of the evidence challenge, we must determine:
[w]hether viewing all of the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may be
resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be
drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the finder of fact while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Commonwealth v. Gause, 164 A.3d 532, 540-41 (Pa. Super. 2017)
(citations and quotation marks omitted).
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(a) … A person commits the offense of strangulation if the person
knowingly or intentionally impedes the breathing or circulation of
the blood of another person by:
(1) applying pressure to the throat or neck[.]
* * *
(d) Grading—
(1) Except as provided in paragraph (2) or (3) a violation of
this section shall constitute a misdemeanor of the second degree.
(2) A violation of this section shall constitute a felony of the
second degree if committed:
* * *
(iii) in conjunction with sexual violence as defined in
42 Pa.C.S. § 62A03 (relating to definitions)[.]
18 Pa.C.S. § 2718(a), (d)(1), (2)(iii).
As the above unambiguous language demonstrates, although sexual
assault is considered for grading purposes, it is not an element that must be
proven to support a conviction for strangulation.5 Moreover, the evidence
presented at trial was sufficient to support the Strangulation conviction.
Ms. Gray testified that Whitaker secured a pillowcase around her throat
and she could not breathe. (See N.T. Trial, 11/07/19, at 53-54). This
testimony was corroborated by Ms. Gray’s son who observed Whitaker
____________________________________________
5As stated previously, Whitaker was convicted of Strangulation as a second-
degree misdemeanor because he was found not guilty of sexual assault.
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wrapping the pillowcase around his mother’s throat before calling the police.6
(See id. at 127). This evidence was sufficient to establish that Whitaker
intentionally impeded Ms. Gray’s breathing by applying pressure to her throat.
See 18 Pa.C.S. § 2718(a).7
2.
Whitaker next maintains that the evidence was insufficient to establish
Simple Assault because Ms. Gray was not in fear of serious bodily injury. (See
Whitaker’s Response Brief, at 7). In support of his position, he directs this
Court’s attention to Ms. Gray’s preliminary hearing testimony in which she
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6 In his March 10, 2022 reply brief, Whitaker states that the Commonwealth
erred in using the testimony of Ms. Gray’s minor son without first performing
a competency hearing. (See Whitaker’s Reply Brief, 3/10/22, at 1-2, 5)
(pagination provided). This issue is waived because Whitaker provides no
legal authority for this allegation, discussion thereof, references to the record
or place of raising any such objection at trial. See Pa.R.A.P. 2101, 2119(a)-
(c), (e). Moreover, our review of the record reflects that although the witness
was fourteen at the time of the incident, he was fifteen at the time of trial.
(See N.T. Trial, 11/07/19, at 7, 126). No competency test was required. See
Commonwealth v. Moore, 980 A.2d 647, 650 (Pa. Super. 2009), appeal
denied, 991 A.2d 311 (Pa. 2010) (“[W]hen a witness is under the age of
fourteen, the trial court must hold a competency hearing. [C]ompetency
presumed where the child is more than 14 years of age.”) (citations and
internal quotation marks omitted).
7 Although there was testimony that Whitaker held a pillow against Ms. Gray’s
face so she could not breathe without turning her head, which arguably would
have supported a conviction pursuant to 18 Pa.C.S. § 2718(b), Whitaker was
only charged under subsection (a). (See Information, 10/24/18, at 1); see
also 18 Pa.C.S. § 2718(b) (“A person commits the offense of strangulation if
the person knowingly or intentionally impedes the breathing … of another
person by … blocking the nose and mouth of the person.”).
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stated that she would not have called the police and did not direct her son to
do so. (See id.); (N.T. Preliminary Hearing, 9/25/18, at 17). He also argues
that the 911 recording played at trial reflects that she did not tell her son to
request an ambulance. (See N.T. Trial, 11/08/19, at 71).
First, Whitaker’s argument, which considers the evidence in the light
most favorable to him, is contrary to our standard of review, which requires
we review the evidence in the light most favorable to the Commonwealth as
verdict winner. See Gause, supra at 540-41. Second, it is irrelevant
whether Ms. Gray advised her son to tell the 911 operator to send an
ambulance or not because there was sufficient evidence to establish the crime
of Simple Assault.
Under the Crimes Code, “a person is guilty of assault if he … attempts
by physical menace to put another in fear of imminent serious bodily injury[.]”
18 Pa.C.S. § 2701(a)(3). Here, not only did Whitaker commit the crime of
Strangulation as described above, but he also pressed a pillow against Ms.
Gray’s face to restrict her breathing and held her down against her will,
physically restraining her with his elbows and restricting her movements
before he jabbed a knife into her neck, which she repeatedly testified caused
her to fear that he was going to use the weapon to slice her. (See N.T. Trial,
11/07/19, at 52-53, 57-58, 62, 91). Officer Long observed Whitaker with the
knife and both she and Ms. Gray identified it at trial as the same one that he
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threw to the officer and that he had held to Ms. Gray’s neck. (See id. at 65,
67, 146-47, Exhibit C).
Accordingly, the evidence was sufficient to support the Simple Assault
conviction where the jury could reasonably find that it showed that Whitaker
attempted by physical injury to put Ms. Gray in fear of imminent bodily injury.
See 18 Pa.C.S. § 2701(a)(3).
3.
Whitaker next argues that the evidence was insufficient to support his
conviction of PIC because the Commonwealth failed to obtain DNA or
fingerprint evidence from the pillowcases or knife. (See Whitaker’s Response
Brief, at 8); (Whitaker’s Reply Brief, at 1) (pagination provided).
The Commonwealth charged Whitaker with PIC based on his possession
of the subject knife. (See Information, at 1, Count 5). “A person commits a
misdemeanor of the first degree if he possesses any instrument of crime with
intent to employ it criminally.” 18 Pa.C.S. § 907(a). An “instrument of crime”
is “anything used for criminal purposes and possessed by the actor under
circumstances not manifestly appropriate for lawful uses it may have.” 18
Pa.C.S. § 907(d)(2).
Fingerprint and DNA evidence are not required elements of PIC and,
therefore, do not implicate sufficiency. See Gause, supra at 540-41
(sufficiency claim focuses on whether evidence established each element of
offense).
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Ms. Gray testified that Whitaker brandished a knife and held it to her
throat hard enough to jab her. (See id. at N.T. Trial, 11/07/19, at 52-54).
Officer Long saw the knife in Whitaker’s hand before he threw it to her and
she secured it at the scene. (See id. 145-46, 148). Both Ms. Gray and Officer
Long identified the knife at trial. (See id. at 65, 67, 147).
This evidence was sufficient to support a finding that Whitaker
possessed the knife with the intent to employ it criminally under circumstances
not manifestly appropriate for its lawful purposes. See 18 Pa.C.S. § 907(a),
(d)(2). This issue lacks merit.
4.
In his final sufficiency argument, Whitaker contends that his conviction
for Institutional Vandalism was insufficient because there was no videotape of
the closed-circuit footage or photograph of the damage contrary to the best
evidence rule and the charge was supported by perjury and hearsay. (See
Whitaker’s Response Brief, at 8-9); (Whitaker’s Reply Brief, at 2). He also
contends that at the preliminary hearing, Officer Tokonitz stated that two
other officers told him that Whitaker vandalized his holding cell, and at trial,
he stated that Officer Long witnessed the institutional vandalism, which
conflicted with his prior testimony and was insufficient to support his
conviction because it was hearsay. (See Whitaker’s Response Brief, at 8-9).
We first consider the issue of any alleged conflicts in testimony between
the preliminary hearing and trial about Institutional Vandalism. As a
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preliminary matter, we note that this issue is waived on two bases. First,
Whitaker fails to identify where in the record this issue was raised and, second,
our independent review confirms that counsel did not question Officer Tokonitz
about any alleged conflicts between his preliminary hearing and trial
testimony. See Pa.R.C.P. 302(a), 2119(e).
Moreover, the argument lacks merit. Officer Tokonitz stated at the
preliminary hearing that two other officers told him that they observed
Whitaker break the bed. (See N.T. Preliminary Hearing, at 46). This was not
inconsistent with his trial testimony in which he stated that he observed
Whitaker masturbating on the closed-circuit television and when he went to
the holding cell to tell Whitaker to stop, he saw that the bed in the cell had
been broken. (See N.T. Trial, 11/07/19, at 176-77). Furthermore, although
Officer Tokonitz first stated that Officer Long “brought his attention to the
closed-circuit television,” before re-phrasing this to he “had occasion to look
at the closed-circuit television,” at no time did he say that it was Officer Long
who witnessed Whitaker breaking the bed. (Id.).
Regarding his best evidence rule contention, that rule provides“[a]n
original writing, recording, or photograph is required in order to prove its
content unless these rules, other rules prescribed by the Supreme Court, or a
statute provides otherwise.” Pa.R.E. 1002. The best evidence rule:
is applicable only in circumstances where the contents of the
writing, recording or photograph are integral to proving the
central issue in a trial.... Consequently, if the Commonwealth is
introducing a writing, recording, or photograph at trial, Rule 1002
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requires that the original be introduced only if the Commonwealth
must prove the contents of the writing, recording or photograph
to establish the elements of its case.
Commonwealth v. Green, 162 A.3d 509, 518 (Pa. Super. 2017) (citation
omitted).
In this case, Officers Tokonitz and Long testified that they saw Whitaker
masturbating on the closed-circuit television to explain why they went to his
holding cell. (See N.T. Trial, 11/07/19, at 149-50, 177). The Commonwealth
did not rely in any way to prove the Institutional Vandalism charge. Because
the contents of the video were not integral to proving Institutional Vandalism,
which was based on Whitaker breaking the holding cell bed, the best evidence
rule did not apply.
Finally, the Commonwealth produced sufficient circumstantial evidence
to prove that Whitaker committed Institutional Vandalism. “A person commits
the offense of institutional vandalism if he knowingly … vandalizes, defaces or
otherwise damages … any … municipal building” or any property located
therein. 18 Pa.C.S. § 3307(a)(3), (5).
Here, Officer Tokonitz testified that when he went to Whitaker’s cell to
tell him to stop masturbating, he observed that the bedframe of his cot was
broken. (Id. at 177-78). Officer Tokonitz stated that prior to this incident,
no one else was in the cellblock and the cot was not damaged. (See id. at
177-78). It was for the jury to consider the credibility of Officer Tokonitz, and
there was sufficient circumstantial evidence for the jury to find that the
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evidence established Whitaker knowingly vandalized, defaced or otherwise
damaged the municipal property in his jail holding cell. See 18 Pa.C.S.
§ 3307(a)(3), (5).
Based on the foregoing, viewing the evidence in the light most favorable
to the Commonwealth, we conclude that it was sufficient for the jury to convict
Whitaker of all crimes charged. See Gause, supra at 540-41. Whitaker’s
issues lack merit, and our independent review of the record does not reveal
any non-frivolous issues. Accordingly, we grant counsel’s application to
withdraw and affirm the judgment of sentence.8
Judgment of sentence affirmed. Counsel’s application to withdraw
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/12/2022
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8 In his reply brief, Whitaker also states that the Commonwealth violated the
appellate filing rules and its duty to produce a witness statement for Officer
Long pursuant to the federal rules. (See Whitaker’s Reply Brief, at 3-5)
(pagination provided). Not only does our review of the record fail to disclose
any filing errors by the Commonwealth that would support the grant of relief
requested by Whitaker, (see id. at 6) (pagination provided), the rules of
Federal Criminal Procedure do not apply to this matter. We also note that,
although Whitaker lists “violation of Lively standard” and “violation of Brady
Rule,” he provides absolutely no discussion, so it is not clear to what he is
referring.
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