Com. v. Verdier, N. ( 2022 )

J-S37035-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NUTTA VERDIER :
:
Appellant : No. 944 EDA 2021
Appeal from the PCRA Order Entered May 6, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008626-2010
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 11, 2022
Appellant Nutta Verdier appeals from the Order entered in entered in
the Court of Common Pleas of Philadelphia County on May 6, 2021, denying
his second petition filed pursuant to the Post Conviction Relief Act (PCRA).1
Following a careful review, we affirm.
This Court previously set forth the relevant facts and procedural history
herein as follows:
On October 12, 2012, a jury convicted [Appellant] of Third-
Degree Murder, Attempted Murder, Conspiracy, Aggravated
Assault, Firearms Not to be Carried Without a License, and
Possession of an Instrument of a Crime. [Appellant’s] conviction
stems from his role in a shoot-out involving three co-conspirators
on a Philadelphia street, during which a bystander was shot and
killed and another injured. The trial court sentenced [Appellant]
to an aggregate term of not less than nineteen and one-half nor
more than sixty years of imprisonment. Following reinstatement
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
J-S37035-21
of his direct appeal rights nunc pro tunc, we affirmed the judgment
of sentence on September 11, 2017. [Appellant] did not seek
further review in our Supreme Court.
[Appellant], acting pro se, filed the instant, timely PCRA
petition on November 8, 2017, and appointed counsel
subsequently filed an amended petition. [Appellant] claimed a
right to relief based on after-discovered evidence in the form of
affidavits prepared by his co-conspirator turned Commonwealth
witness Jacque Warren[2] and his brother, Sharif Warren. At trial,
Jacque Warren testified that [Appellant], along with his co-
conspirators, shot at a rival and the bystander was killed in the
crossfire. However, in his affidavit, dated May 27, 2015, Jacque
Warren recants this testimony and avers that [Appellant] was not
present when the shooting took place. (See J. Warren Affidavit,
5/27/15). Sharif Warren's statement similarly avers that when he
visited his brother in prison in 2011, Jacque conceded that
[Appellant] was innocent and was not present at the scene of the
shooting. (See S. Warren Statement, 8/05/13). Sharif's
statement is dated August 5, 2013.
After issuing notice of its intent to do so, the PCRA court
entered an order and opinion dismissing [Appellant’s] petition. He
then filed this appeal arguing that the PCRA court erred in denying
relief on his claim of after-discovered evidence based on Jacque
Warren's recantation statements and that the PCRA Court
improperly denied his PCRA counsel's request for a continuance
Commonwealth v. Verdier, 2019 WL 1450358, at *1 (Pa.Super. Apr. 1,
2019) (unpublished memorandum) (footnotes omitted), appeal denied, 217
A.3d 212 (Pa. 2019).
____________________________________________
2 In its appellate brief, the Commonwealth indicates it had recently learned
that Jacque Warren was killed on January 10, 2021. See Commonwealth’s
Brief at 25. Following a motion of the Philadelphia Defender Association, the
trial court formally abated Warren’s criminal case in its Order dated April 21,
2021. See Id. at Exhibit B. As a result, Appellant would be unable to obtain
Warren’s live testimony at a PCRA hearing to corroborate his unsworn
declaration that he and his brother committed the shooting of which Appellant
and his co-defendants were convicted.
-2-
J-S37035-21
On March 16, 2021, Appellant filed the instant PCRA petition, his second,
pro se. On March 26, 2021, the PCRA court issued its Notice of Intent to
Dismiss pursuant to Pa.R.Crim.P. 907. On April 7, 2021, Appellant filed a
counseled, amended petition, and on May 6, 2021, the PCRA court dismissed
the petition without a hearing.
In his brief, Appellant presents the following claims for our review:
I. Did the PCRA [c]ourt err when it found that the newly disclosed
letter dated September 17, 2012 wherein Bowe[3] advised the
Commonwealth that Judge Minehart indicated that he would look
favorably at Warren's resentencing if he were to cooperate in the
Appellant and his co-defendant's trial was not timely filed under
42 Pa.C.S.A §9545(b)(1)(ii)(newly discovered evidence) and/or
42 Pa.C.S.A §9545(b)(1)(i) (governmental interference) and/or
lacked merit?
II. Did the PCRA [c]ourt err when it found that the claim related
to the newly disclosed history of misconduct committed by Det.
James Crone, Det. Joseph McDermott and Police Officer Thomas
Fitzpatrick was not timely filed under 42 Pa.C.S.A §9545(b)(1)(ii)
(newly discovered evidence) and/or 42 Pa.C.S.A §9545(b)(1)(i)
(governmental interference) and/or lacked merit?
III. Did the PCRA [c]ourt err in not authorizing/ordering the
discovery requested by the Appellant pertaining to additional
referenced but undisclosed history of misconduct by detectives
and officers who investigated this case.
IV. Did the PCRA [c]ourt err in not conducting an evidentiary
hearing on either/both of the above claims?
____________________________________________
3 Apparently, a reference to Jacque Warren’s trial counsel, William Bowe.
-3-
J-S37035-21
Brief for Appellant at 3-4. As these issues are interrelated, we will address
them together.4
____________________________________________
4 Both Appellant and the Commonwealth represent in their respective briefs
that co-defendant Eric Cooper filed his initial PCRA petition asserting claims
similar to those Appellant previously advanced, and the information on which
Appellant relies herein was produced as part of Cooper’s proceeding and
provided to Appellant. Specifically, the Commonwealth stresses that:
Cooper’s petition was assigned to Judge O’Keefe, however
rather than Judge McDermott. And whereas Judge McDermott
dismissed [Appellant’s] first petition without a hearing, Judge
O’Keefe has granted a hearing on Cooper’s identical
recantation/coercion claim based on the Warren Brothers’
certifications. [Appellant’s] claims in his second PCRA petition
now under this Court’s review arise out of discovery supplied to
both co-defendants in advance of Cooper’s evidentiary hearing
before Judge O’Keefe.
Commonwealth’s Brief at 19-20.
Recognizing this procedural posture, the Commonwealth states it would
agree to a PCRA hearing on the recantation/coercion claim, without waiving
any applicable defenses and while opposing further proceedings on Appellant’s
claims, inter alia, that an undisclosed cooperation agreement existed between
the Commonwealth and Jacque Warren. Id. at 20.
In addition, Appellant references a pending federal petition for writ of
habeas corpus petition which Appellant filed on April 14, 2020, and for which
the federal court granted a stay pending the instant PCRA litigation.
Appellant’s Brief at 19 n. 8.
However,
It is well established that a court may not ordinarily take judicial
notice in one case of the records of another case, whether in
another court or its own, even though the contents of those
records may be known to the court. Steel v. Levy, supra; R.K.O.
Dist. Corp. v. Shook, 108 Pa.Super. 383, 387, 164 A. 855;
Walter v. Baldwin, 126 Pa.Super. 589, 596, 193 A. 146. Naffah
v. City Deposit Bank et al., 339 Pa. 157, 160, 13 A.2d 63, 64
(1940). This is especially so “when the facts are not admitted”.
Steel v. Levy, 282 Pa. 338, 342, 127 A. 766 (1925). Thus, a court
is admonished not to take judicial notice of the record of another
case, if not pleaded. Chorba v. Davlisa Enterprises, Inc., 303
(Footnote Continued Next Page)
-4-
J-S37035-21
Before we reach the merits of Appellant’s aforementioned issues, we
first must determine whether we have jurisdiction to do so. Pursuant to 42
Pa.C.S.A. § 9545(b)(1), any PCRA petition must be filed within one year of
the date the judgment becomes final unless Appellant alleges and proves that
the petition falls within three enumerated exceptions, specifically:
(b) Time for filing petition.—
(1) Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the
judgment becomes final, unless the petition alleges and the
petitioner proves that:
(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation of the
claim in violation of the Constitution or laws of this Commonwealth
or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were
unknown to the petitioner and could not have been ascertained by
the exercise of due diligence; or
(iii) the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States or the
Supreme Court of Pennsylvania after the time period provided in
this section and has been held by that court to apply retroactively.
42 Pa.C.S.A § 9545(b)(1)(i)-(iii).
In addition,
(2) Any petition invoking an exception provided in
paragraph (1) shall be filed within one year of the date the claim
could have been presented.
____________________________________________
Pa.Super. 497, 450 A.2d 36 (1982). Accord Coccia v. Coccia,
285 Pa.Super. 259, 427 A.2d 212 (1981).
Woolard v. Burton, 498 A.2d 445, 448 (Pa.Super. 1985).
-5-
J-S37035-21
(3) For purposes of this subchapter, a judgment becomes
final at the conclusion of direct review, including discretionary
review in the Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration of time for
seeking the review.
42 Pa.C.S.A § 9545(b)(2), (3).
The PCRA time restrictions are jurisdictional in nature. Thus,
“Pennsylvania courts may not entertain untimely PCRA petitions.”
Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011). Indeed, the
jurisdictional nature of the PCRA time-limits are such that they implicate a
court's power to adjudicate a controversy. Commonwealth v. Fahy, 737
A.2d 214, 222 (Pa. 1999).
Moreover,
... a PCRA petitioner is not automatically entitled to an
evidentiary hearing. We review the PCRA court's decision
dismissing a petition without a hearing for an abuse of discretion.
[T]he right to an evidentiary hearing on a postconviction
petition is not absolute. It is within the PCRA court's discretion to
decline to hold a hearing if the petitioner's claim is patently
frivolous and has no support either in the record or other evidence.
It is the responsibility of the reviewing court on appeal to examine
each issue raised in the PCRA petition in light of the record
certified before it in order to determine if the PCRA court erred in
its determination that there were no genuine issues of material
fact in controversy and in denying relief without conducting an
evidentiary hearing.
Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super. 2014) (citations
omitted and brackets in original).
Appellant’s judgment of sentence became final on October 11, 2017,
thirty days after the period of time in which he had to file a petition for
-6-
J-S37035-21
allowance of appeal with the Pennsylvania Supreme Court expired. Pa.R.A.P.
1113(a). As such, Appellant had until October 11, 2018, in which to file a
timely PCRA petition. The instant petition, filed on March 16, 2020, is facially
untimely; thus, Appellant was required to plead and prove one of the above-
enumerated exceptions to the PCRA time bar.
Appellant initially maintains in his appellate brief that the PCRA court
erred in dismissing his claims of “new evidence/facts” and governmental
interference without a hearing. Appellant’s Brief at 14-15, 28. Throughout
the brief, Appellant at times refers to both newly disclosed evidence and facts.
Id. at 14-16. In addition, the PCRA court finds that Appellant’s claim of police
misconduct meets “the newly discovered facts exception” to the PCRA time
bar but later addresses the merits of what it terms his “timely claim of after
discovered evidence.” PCRA court Opinion, filed 5/6/21, at 8-9. In doing so,
both Appellant and the PCRA court conflate the newly-discovered fact
exception with an after-discovered evidence claim. Compare 42 Pa.C.S.A. §
9545(b)(1)(ii) with 42 Pa.C.S.A. § 9543(a)(2)(vi); see Commonwealth v.
Brown, 111 A.3d 171, 178 (Pa.Super. 2015), appeal denied, ––– Pa. ––––,
125 A.3d 1197 (2015). Nevertheless, we find Appellant’s attempt to invoke
either exception to the PCRA time bar herein fails.
It is possible for a petitioner to plead and prove the newly-discovered
fact exception, which gives the PCRA court jurisdiction and permits it to
-7-
J-S37035-21
consider the petition on the merits, and then ultimately fail on the merits of
an after-discovered evidence claim. The newly-discovered fact exception:
has two components, which must be alleged and proved. Namely,
the petitioner must establish that: 1) the facts upon which the
claim was predicated were unknown and 2) could not have been
ascertained by the exercise of due diligence. If the petitioner
alleges and proves these two components, then the PCRA court
has jurisdiction over the claim under this subsection.
***
On the other hand:
To obtain relief based on after-discovered evidence, [a petitioner]
must demonstrate that the evidence: (1) could not have been
obtained prior to the conclusion of the trial by the exercise of
reasonable diligence; (2) is not merely corroborative or
cumulative; (3) will not be used solely to impeach the credibility
of a witness; and (4) would likely result in a different verdict if a
new trial were granted.
Commonwealth v. Brown, 141 A.3d 491 n. 8 (Pa.Super. 2016) (citations
omitted).
The PCRA court determined information regarding the alleged police
misconduct concerned new evidence/facts which were not discoverable with
Appellant’s exercise of reasonable diligence. To the contrary, the court further
found his claim regarding Warren’s testimony does not. PCRA court Opinion,
filed 5/6/21, at 7-9. In doing so, the trial court thoroughly reasoned as
follows:
. . . The facts underlying the allegations of misconduct against the
detectives and police officer were unknown to [Appellant] prior to
receiving them through his requests because this is not the type
of information that can be uncovered through regular due
diligence. Thus, this [c]ourt has jurisdiction to reach the merits of
-8-
J-S37035-21
[Appellant’s] claim.
The physical letter from Attorney Bowe to ADA Watson
Stokes was unknown to [Appellant] until he received it on January
27, 2021, but its contents were known to him. The possibility of
Warren receiving lenient treatment because of his testimony at
[Appellant’s] trial was known to [Appellant] at the time of his trial
and formed the basis for his direct appeal and first PCRA petition.
Because he cannot show that this letter reveals any new
information that was not available at his trial, his claim fails for
want of jurisdiction.
Addressing the merits of [Appellant’s] timely claim of after-
discovered evidence, to obtain relief on after-discovered evidence,
a petitioner must show that the evidence: (1) could not have been
obtained prior to the conclusion of trial by the exercise of
reasonable diligence; (2) is not merely corroborative or
cumulative; (3) would not be used solely to impeach the credibility
of a witness; and, (4) would likely result in a different verdict if a
new trial were granted. Commonwealth v. Williams, 215 A.3d
1019, 124 (Pa.Super. 2019) (citing Commonwealth v. Pagan, 950
A.2d 270, 292 (Pa. 2008)). For a petitioner to prove a Brady[5]
violation, they must show: (1) the prosecution was in possession
of favorable evidence to the petitioner, either exculpatory or
impeaching; (2) the prosecution suppressed that evidence; and,
(3) the petitioner was prejudiced by this suppression.
Commonwealth v. Donoughe, 243 A.3d 980 (Pa. Super. 2020).
****
[Appellant] alleges that the Commonwealth violated his due
process rights by failing to disclose instances of police misconduct.
[Appellant] supplies evidence indicating the misconduct of
Detectives Crone and McDermott, as well as Police Officer
Fitzgerald. On November 25, 2013, Detective Crone received an
official reprimand for failing to report a violent domestic dispute.
Additionally, on August 29, 2018 the Philadelphia Inquirer
reported that Detective Crone was under internal investigation for
writing racially charged memo to an African-American colleague.
[Appellant] avers that Detective Crone is also under investigation
____________________________________________
5Brady v. Maryland, 373 U.S. 83 (1963) (holding a defendant must establish
the prosecution withheld evidence favorable to the defense and that but for
the suppression there is a reasonable probability that the verdict would have
differed).
-9-
J-S37035-21
for misconduct related to Commonwealth v. Tyheed Brown, (CP-
51 -CR-0002593- 2018) and requests that the Commonwealth
provide the findings of the internal investigation into Detective
Crone's letter and his involvement in that matter.
Detective McDermott, then a patrol officer, was
reprimanded on July 18, 1993, after verbally and physically
abusing a prisoner during transport and failing to report that he
used his blackjack. [Appellant] provided the Misconduct Disclosure
he received through his Right to Know requests, which was almost
entirely redacted except for the conclusion, finding Detective
McDermott guilty of misconduct. [Appellant] further avers that
Detective McDermott is no longer employed by the Philadelphia
Police and that his misconduct in Commonwealth v. Warren
Wooden (CP-51 -CR-0010810-2010) is being investigated, and
requests the Commonwealth pass this information to him.
On April 1, 1997, Officer Fitzgerald had been reprimanded
for falsely describing the way other police officers removed an
unnamed paralyzed individual from an Emergency Patrol Wagon.
This occurred after another officer pistol-whipped that individual,
causing a cut to his ear. While in the Emergency Patrol Wagon,
that individual fell forward and hit his head, causing him to be
permanently paralyzed from the neck down.
[Appellant] cannot succeed on his claims of Brady violations.
[Appellant] fails to relate claims investigators' misconduct in other
matters to his underlying conviction. Other than bald assertions
that their misconduct in other matters implicates their
involvement in this matter, [Appellant] has not established that
any of these instances are relevant to his case. [Appellant] would
only be able to use this information to impeach the testimony of
Detectives Crone and McDermott and Police Officer Fitzpatrick,
and this information has limited value as impeachment evidence.
The misconduct of Detective Crone occurred after his involvement
and could not be introduced in this matter and did not implicate
his investigation procedures as a detective. The misconduct of
Detective McDermott and Police Officer Fitzpatrick are both
equally archaic and irrelevant, and do not implicate their
investigation of the Petitioner's matter.
Moreover, [Appellant] would not have been unable to
impeach Detective McDermott and Police Officer Fitzgerald [sic]
with this information because both incidents occurred over ten
years before [Appellant’s] trial. See Pa.R.E. 609(b) (prohibiting
use crimen falsi convictions over ten years old unless their
probative value substantially outweighs their prejudicial effect).
Detective McDermott's misconduct pertained to his behavior as a
- 10 -
J-S37035-21
patrol officer and occurred nearly nineteen years before the
Petitioner's trial while Police Officer Fitzpatrick's misconduct
occurred nearly fifteen years previously. Because [Appellant]
cannot show that these instances are relevant in any way to his
matter or that he would have been able to even introduce them
at trial, he his [sic] entitled to neither an evidentiary hearing nor
relief on this claim.
Addressing [Appellant’s] discovery claims: it is axiomatic
that in PCRA proceedings discovery is only permitted upon leave
of court after a showing of exceptional circumstances. 42 Pa.C.S.
§ 9545(d)(2); Pa.R.Crim.P. 902(E)(1). Exceptional circumstances
are not defined, and the Superior Court has consistently
reaffirmed that it is in the discretion of the trial court to determine
whether a case is exception [sic] and discovery is warranted.
Commonwealth v. Frey, 41 A.3d 605, 611 (Pa.Super. 2012). A
“mere speculation” that exculpatory evidence exists does not
establish exceptional circumstances. Id. (citing Commonwealth
v. Dickerson, 900 A.2d 407, 412 (Pa. Super. 2006)).
[Appellant] has not established exceptional circumstances
in this matter because he has not established that the past
behavior of police is in anyway [sic] relevant to his underlying
conviction. Because granting discovery would be tantamount to
granting a license for a fishing expedition, his request for
discovery is denied.
Even though [Appellant’s] remaining after-discovered
evidence claim with respect to the testimony of Warren is
untimely, this [c]ourt shall briefly address its merits for the benefit
of any future proceeding. A petitioner seeking relief under the
PC.RA must also show that their claims are not previously
litigated. 42 Pa.C.S. § 9544. A claim is previously litigated if the
highest appellate court in which the petitioner could have had
review as a matter of right has ruled on the merits of the issue.
Commonwealth v. Reid, 235 A.3d 1124, 1144 (Pa. 2020). While
the letter from Warren's attorney to ADA Watson Stokes is new,
[Appellant] has raised the issue of Warren's testimony on direct
appeal and in his previous PCRA petition and the Superior Court
of Pennsylvania has affirmed this Court's dismissal of those claims
each time.
On October 4, 2012, Warren testified that he did not know
that [Appellant], codefendant Cooper, or “GoGo” were armed.
before Cobb drew his firearm. N.T. 10/4/12 at 137; 139-140.
Court was adjourned without Warren being able to complete his
testimony. The trial court ordered Warren not to speak to anyone
about the case until his testimony resumed on October 9, 2012.
- 11 -
J-S37035-21
On that day, in a conference with ADA Watson Stokes,
[Appellant’s] and codefendant's defense counsels [sic], and
Attorney Bowe, Attorney Bowe informed the [c]ourt that ADA
Watson Stokes contacted him over the weekend and informed him
that she was not pleased with Warren's testimony because she
believed it contradicted his previous statement to police. Warren
was cross-examined by the defense, outside the presence of the
jury, on what he was told over the weekend. Warren testified that
he had spoken to his mother and Attorney Bowe, in violation of
the [c]ourt’s sequestration order, but nothing that was said would
change his testimony. Both counsel for [Appellant] and co-
defendant moved for a mistrial. Warren's testimony resumed on
October 9, 2012, and on re-direct examination, contradicted his
previous statement that he knew his colleagues had firearms
before they got into the van because he had seen the weapons.
N.T. 10/9/2012 101-102.
Warren's turnabout prompted both defense attorneys to
argue, at sidebar, that his change of testimony made relevant the
entirety of the conversation between ADA Watson Stokes and
Attorney Bowe and renewed their motion for a mistrial, which was
denied. Instead, the trial court accepted the following stipulation:
Over the weekend, the District Attorney spoke to the
witness’ lawyer and told him that she was dissatisfied
with the witness’ testimony because he testified that he
didn't see anyone get in the van with a gun, whereas
during trial preparation and in a pretrial interview he had
stated that all three men had guns when they got in the
van. The witness’s attorney then communicated this to
the witness and indicated to him that this might affect
future proceedings before Judge Minehart [the
resentencing judge].
N.T. 10/9/2012 at 146. When [Appellant’s] counsel cross-
examined Warren, he once again changed his testimony, and
explained that he did not know that his colleagues were armed
before they got in the car. Id. at 151.
On direct appeal, [Appellant] challenged the trial court's
failure to grant a mistrial after conversations between the
prosecution and Warren's attorney came to light. Judge Temin
denied the motion for a mistrial, finding that a new trial would not
be the appropriate remedy because Warren would still be in the
same position. Judge Temin stated: “I'm sure that he already
knows that his sentence depended on whether or not he ...
‘cooperated’ with the Commonwealth. And ... ‘cooperated’ means
to testify in a certain way. I'm sure he knows that. He's not stupid.
- 12 -
J-S37035-21
And that's what every witness ... who is a cooperating-
codefendant [knows]. So, I don't think that he knows any more
now after having spoken to Mr. Bowe [than] when [defense
counsel was] cross-examining him."” N.T. 10/9/2012 33-34. On
September 11, 2017, the Superior Court of Pennsylvania, affirmed
this Court's dismissal of [Appellant’s] claim that Judge Temin
erred in not granting a mistrial, finding that in any future
proceeding, the risk of Warren losing out on any favorable
resentencing would be an ever-present-specter shadowing his
testimony. To that end, Judge Temin informed jurors that they
may view Warren's testimony as an attempt to “curry favor” with
the Commonwealth. N.T. 10/10/2012 at 164.
Additionally, in [Appellant’s] previous PCRA petition, he
argued that his trial counsel was ineffective for failing to object to
the Commonwealth's failure to disclose its agreement of
understanding with Warren. As discussed in this Court's April 19,
2018 Order and Opinion Dismissing the Petitioner's claim, the
Petitioner fails to establish that the Commonwealth and Warren
had any agreement. Id. at *10-11. The letter from Attorney Bowe
indicates that Judge Minehart might “look favorably” upon
Warren's cooperation at his resentencing hearing, a fact which
was known and analyzed at length during his testimony. The letter
does not indicate that there was a definite agreement between the
Commonwealth and Warren, and merely indicates the possibility
of a more favorable sentence should he cooperate with the
Commonwealth. Ultimately, the decision on how to resentence
Warren rested solely in the purview of Judge Minehart, whose
decision was not reduced to a contractual certainty. 12 Ultimately,
On October 26, 2012, Judge Minehart resentenced Warren to
twelve and a half to twenty-years imprisonment on the charge of
Third-Degree Murder, and imposed a consecutive ten years of
reporting probation for Conspiracy. 13
[Appellant’s] assertion that the letter from Attorney Bowe
to ADA Watson Stokes is not previously litigated is belied by the
record. The unusual facts surrounding this matter have been
litigated ad nauseam and this instant attempt to relitigate matters
fails, just as before.
_____
12 The Superior Court specifically addressed lack of an explicit
agreement between Warren and the Commonwealth:
- 13 -
J-S37035-21
Our Review of the transcripts has not revealed an explicit
admission that Warren had an agreement with the
Commonwealth. Warren himself repeatedly denied that
he had any form of deal with the Commonwealth, while
admitting that he was hoping that his sentence would be
reduced. N.T. 10/9/12 57-58. Given the arguments of
the parties and statements of the trial court in the
transcript before us, it is clear that Warren was, to some
extent, cooperating with the district attorney's office and
he had some expectation that his previously vacated
sentence could be reduced upon resentencing if he
curried favor with the district attorney.
Commonwealth v. Verdier, 2910 EDA 2016, at n. 6 (Pa. Super.
Decided September 11, 2017) (unpublished memorandum).
13 Judge Minehart originally imposed consecutive sentences of
imprisonment of twelve and a half to twenty-five years for Third-
Degree Murder, five to ten years for each count of Aggravated
Assault, and a concurrent sentence of ten to twenty years
imprisonment for Conspiracy, for at total sentence of thirty-two
and a half to sixty-five years imprisonment. At the resentencing,
Judge Minehart imposed no further penalty on the Aggravated
Assault charges.
PCRA Court Opinion, filed 5/6/21, at 8-16.
Upon our review of the record, we find no abuse of discretion. Appellant
indicates only that Detectives Crone and McDermott and Officer Fitzpatrick
“worked on his case,” and a review of the record reveals they were among
numerous Philadelphia Police Officers associated with the investigation.
Importantly, Detective Crone was involved in a domestic disturbance which
occurred after Appellant’s arrest and bore no relation to Appellant’s trial. The
offensive letter he admitted to writing was not addressed to a named
individual and was penned after Appellant’s trial.
- 14 -
J-S37035-21
Detective McDermott’s reprimand stemmed from his verbal and physical
abuse of a suspect over fifteen years prior to Appellant’s arrest, and his
hearing was held on July 18, 1993. Also, Officer Fitzpatrick’s discipline record
revealed he had been driving a van transporting a prisoner on April 1, 1997,
fifteen years prior to Appellant’s trial, who was assaulted and seriously injured
by other officers riding therein.
Although the behavior which led to the disciplinary actions taken against
these police officers is certainly troubling, these records alone cannot support
a successful claim of after-discovered evidence under Section
9454(b)(1)(a)(vi) or, in the alternative, of Brady violation herein, for
Appellant has failed to show a nexus between them and his convictions.
Appellant simply presents a summary of the officers’ behavior and resultant
discipline and stresses that this information became known to him only as a
result of the recent disclosure in conjunction with co-defendant’s PCRA
petition. Appellant’s Brief at 18-23.
Appellant thereafter baldly alleges the disciplinary records “could have”
been used to call the entire investigation of the murder of which he had been
convicted into doubt and lead to a different verdict. Id. at 24-26. He similarly
attempts to invoke the “newly disclosed facts/evidence exception” to the PCRA
time bar by baldly claiming the Jacque Warren’s letter reveals previously
unknown information that Warren knew the trial court would “look favorably”
on his cooperation in this case. Id. at 28-29. Therefore, we find that, for the
- 15 -
J-S37035-21
reasons supplied by the PCRA court, the record conclusively establishes that
defendant's proffered “after-discovered evidence/facts” could not entitle him
to relief.
In his third issue, Appellant maintains the PCRA court erred and abused
its discretion in denying his discovery request for information regarding
alleged pending investigations by the Conviction Integrity Unit of the District
Attorney’s Office relating to Detectives Crone and McDermott. Regarding
discovery in PCRA proceedings, Rule 902(E) of the Pennsylvania Rules of
Criminal Procedure provides:
(E) Requests for Discovery
(1) Except as provided in paragraph (E)(2), no discovery shall be
permitted at any stage of the proceedings, except upon leave of
court after a showing of exceptional circumstances.
(2) On the first counseled petition in a death penalty case, no
discovery shall be permitted at any stage of the proceedings,
except upon leave of court after a showing of good cause.
Pa.R.Crim.P. 902(E). As this is not a death penalty case, Appellant was
required to demonstrate exceptional circumstances in support of his discovery
request.
As the PCRA court acknowledged, the PCRA and the applicable rules do
not define “exceptional circumstances” that would support discovery on
collateral review, but rather it is within the province of the PCRA court to
determine, in its discretion, whether a case is exceptional and discovery is
warranted. This Court will not reverse the PCRA court’s determination absent
- 16 -
J-S37035-21
an abuse of discretion. Commonwealth v. Frey, 41 A.3d 605, 611
(Pa.Super. 2012).
“Mere speculation” that exculpatory evidence may exist does not
establish that exceptional circumstances exist. Commonwealth v.
Dickerson, 900 A.2d 407, 412 (Pa.Super. 2006); Commonwealth v.
Hanible, 30 A.3d 426, 452 (Pa. 2011) (holding that a showing of good cause
under Rule 902(E)(2) “requires more than just a generic demand for
potentially exculpatory evidence”).
Herein, Appellant supports his claim that he is entitled to discovery with
speculation and bald allegations that he might discover exculpatory evidence
pertaining to ongoing proceedings relating to the officers. Thus, we find the
PCRA court did not abuse its discretion in its determination that Appellant did
not show exceptional circumstances to warrant production of the discovery he
requested.
Finally, when deciding the PCRA court’s alleged error in not granting
defendant an evidentiary hearing, we are mindful that “[i]t is well settled that
[t]here is no absolute right to an evidentiary hearing on a PCRA petition, and
if the PCRA court can determine from the record that no genuine issues of
material fact exist, then a hearing is not necessary.” Commonwealth v.
Maddrey, 205 A.3d 323, 328 (Pa.Super. 2019) (internal quotations omitted).
Further, where a defendant seeks the reversal of a PCRA court's decision to
dismiss a defendant's petition without a hearing, defendant must show “he
- 17 -
J-S37035-21
raised a genuine issue of fact which, if resolved in his favor, would have
entitled him to relief, or that the court otherwise abused its discretion in
denying a hearing.” Maddrey, 205 A.3d at 328 (quoting Commonwealth v.
Hanible, 30 A.3d 426, 452 (Pa. 2011)).
For the reasons set forth above, we find the trial court did not abuse its
discretion in dismissing Appellant’s second petition without an evidentiary
hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/11/2022
- 18 -