Com. v. Poole, A. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDREW POOLE :
:
Appellant : No. 760 EDA 2017
Appeal from the PCRA Order February 7, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002735-2008
BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY BOWES, J.: FILED MARCH 27, 2018
Andrew Poole appeals from the PCRA court’s order granting the
Commonwealth’s motion to dismiss his PCRA petition. We vacate and
remand for further proceedings.
We previously set forth the factual background pertinent to this
matter:
On September 24, 2007, at approximately 3:00 p.m., a
gunman with a bandana covering his face opened fire at the
Tustin Recreation Center playground in the city of Philadelphia.
Carl Wallace sustained multiple gunshot wounds but survived.
Mehkee Gatewood, who was only 18 months old at the time of
the shooting, was also struck in the foot and arm. Although no
one was able to positively identify the gunman, he was seen
running from the direction of the playground after the shooting.
Appellant came to believe that Tremayne Walker (“Walker”) had
told police that he was involved.
On November 11, 2007, not far from the Tustin playground
at the corner of 61st and Oxford streets, Walker was shot to
death. Before he died, Walker told multiple eyewitnesses,
including Officer Robert Saccone, Alice Holmes (“Holmes”), and
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his friend Terrell Watson (“Watson”), that it was [Appellant] who
had shot him. [The victim] told Holmes, “If I die, Andrew Poole
shot me.” When Officer Saccone, who was only two blocks away
at the time of the shooting and arrived immediately thereafter,
asked Walker who shot him, Walker replied, “Drew Poole got
me.” Walker died from injuries sustained from three gunshot
wounds.
....
On December 10, 2008, [Appellant] was found guilty of
murder in the first degree for the shooting death of Walker,
possessing an instrument of crime (“PIC”), firearms not to be
carried without a license, and intimidation of a witness or victim.
The jury was unable to reach a verdict on the charges related to
the September 24, 2007 playground shooting.
On June 18, 2009, [Appellant] was sentenced to life
imprisonment for first-degree murder, followed by 10 to 20
years for witness intimidation. Appellant’s sentences on the
remaining convictions were run concurrently.
Commonwealth v. Poole, 30 A.3d 527 (Pa.Super. 2011) (unpublished
memorandum at *1-4). Appellant’s conviction was largely based on
testimony provided by Watson at the preliminary hearing, which stated that
Walker had identified Appellant as his assailant immediately prior to his
death. Watson’s testimony during the preliminary hearing was read into the
record at trial when Watson failed to appear to testify, and the
Commonwealth could not locate him despite a diligent effort to do so.
Appellant appealed his judgment of sentence, and we affirmed.
Poole, supra. On March 1, 2012, the Supreme Court denied Appellant’s
petition for allowance of appeal. Commonwealth v. Poole, 40 A.3d 1235(Pa. 2012). On February 14, 2016, Appellant filed a counseled PCRA petition
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alleging that he received an affidavit from Watson in which Watson recanted
his testimony indicating that Walker had identified Appellant as his shooter
on the night in question. Watson also averred that Officer Saccone coerced
him to falsely identify Appellant as the shooter. Appellant appended
Watson’s affidavit to the PCRA petition and argued that his petition was
timely filed pursuant to the newly-discovered fact and governmental
interference exceptions to the PCRA’s statutory time bar.
On August 16, 2016, the Commonwealth filed a motion to dismiss
Appellant’s PCRA petition, arguing that Appellant’s petition was untimely,
and that he failed to establish any of the exceptions to the PCRA’s statutory
time bar. On November 29, 2016, the PCRA court filed Rule 907 notice of its
intent to dismiss Appellant’s petition without a hearing, stating that
Appellant’s petition was untimely, and his issues were without merit. On
February 7, 2017, the PCRA court granted the Commonwealth’s motion to
dismiss, and this timely appeal followed. Appellant complied with the court’s
order to file a Rule 1925(b) concise statement of errors complained of on
appeal, and the court authored its Rule 1925(a) opinion. This matter is now
ready for our review.
Appellant raises three questions for our consideration:
I. Whether the PCRA court erred when it granted the
Commonwealth’s motion to dismiss without first holding a
hearing to determine the credibility of the Affiant?
II. Whether the facts presented in Terrell Watson’s affidavit,
which must be accepted as true for purposes of ruling on
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the Commonwealth’s motion to dismiss, are sufficient to
establish exceptions to the PCRA’s one year time bar for
governmental interference and/or newly[-]discovered fact?
III. Whether the facts presented in Terrell Watson’s affidavit,
which must be accepted as true for purposes of ruling on
the Commonwealth’s motion to dismiss, are sufficient to
establish the conviction was obtained by the knowing use
of perjured testimony suborned by a police officer?
Appellant’s brief at 2-3.
Our scope and standard of review of decisions denying relief pursuant
to the PCRA is well-settled. Our review of a PCRA court’s decision is limited
to examining whether the PCRA court’s findings of fact are supported by the
record, and whether its conclusions of law are free from legal error.
Commonwealth v. Chmiel, 173 A.3d 617, 624 (Pa. 2017). Our review of
questions of law is de novo. Id. at 625. Under Pennsylvania Rule of
Criminal Procedure 907, the PCRA court may dismiss a petition without a
hearing if, after reviewing the petition, it is “satisfied from this review that
there are no genuine issues concerning any material fact,” and thus, the
defendant is not entitled to relief. Pa.R.Crim.P. 907(1). When performing
this review, the court must find that “the facts alleged would not, even if
proven, entitle the defendant to relief[.]” Id. at comment.
We must first consider Appellant’s second issue, as it concerns our
jurisdiction over this matter. A PCRA petition, including a subsequent or
serial petition, must be filed within one year of the date that a defendant’s
judgment of sentence became final, unless an exception to the one-year
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time restriction applies. 42 Pa.C.S. § 9545(b)(1). This time bar is
jurisdictional in nature. Whether a petition is timely is a matter of law.
Commonwealth v. Hudson, 156 A.3d 1194, 1197 (Pa.Super. 2017).
Appellant concedes that his petition is facially untimely. When a PCRA
petition is facially untimely, the petitioner must plead and prove that one of
the statutory exceptions applies. Id. If no exception applies, then the
petition must be dismissed, as we cannot consider the merits of the appeal.
Id. The PCRA reads, in relevant part:
(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 of sentence 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 the government officials
with the presentation of the claim in violation of the
Constitution or law 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.
(2) Any petition invoking an exception provided in
paragraph (1) shall be filed within 60 days of the date
the claim could have been presented.
42 Pa.C.S. § 9545(b)(1) and (2).
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Appellant claims that the PCRA court erred in dismissing his petition
since there remain genuine issues of material fact that, if true, would
establish an exception to the PCRA’s time bar. In his petition, Appellant pled
facts implicating the newly-discovered fact and governmental interference
exceptions to the PCRA time bar. We discuss each in turn.
The newly-discovered fact exception, as set forth in § 9545(b)(1)(ii),
requires a petitioner to plead and prove: (1) he did not know the fact(s)
upon which he based his petition; and (2) he could not have learned those
fact(s) earlier by the exercise of due diligence. Commonwealth v. Shiloh,
170 A.3d 553, 558 (Pa.Super. 2017). Due diligence, in this context, obliges
the petitioner “to take reasonable steps to protect [his] own interests.” Id.(citation omitted). Nevertheless, it does not demand “perfect vigilance nor
punctilious care, but rather it requires reasonable efforts by a petitioner,
based on the particular circumstances, to uncover facts that may support a
claim for collateral relief.” Id. (citation omitted). As such, “the due
diligence inquiry is fact-sensitive and dependent upon the circumstances
presented,” and “[a] petitioner must explain why she could not have learned
the new fact earlier with the exercise of due diligence.” Id. (citation
omitted).
Appellant appended to his PCRA petition a signed and notarized
affidavit provided by Watson on January 15, 2016. He highlighted the
following statements made within the affidavit:
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When I [(Watson)] got to the corner, Tremayne was
running toward me, he was out of breath and bent over. I asked
what happened and he said I’m shot. I’m shot and then he fell
to the ground. I then asked him repeatedly, who shot you, was
it Drew but he was incoherent while trying to speak and I could
not understand what he was saying.
The Philadelphia Police arrived and they were trying to talk
to Tremayne but he was still incoherent and the police asked him
who shot him but he was not able to answer. Tremayne just
rolled on the ground in pain. The ambulance then arrived and
took him away. When the ambulance left, the police officer
asked everyone there, does anyone know anything and I said
yes. I explained to the officer that I believe [Appellant] shot my
friend over a previous argument.
The officer then asked me did Tremayne tell me that
[Appellant] shot him and I said he was trying to say something
but no he did not. The officer then told me that [Appellant]
needed to be off the street and that will only happen if I will say
Tremayne told me [Appellant] shot him. At first, I told the
officer that I did not think that was the right thing. The officer
told me he was aware of [Appellant] and officers were looking
for him already. The officer then said [Appellant] had shot up a
playground with children in it, he has just shot your friend, so
what is there to say he will not shoot you next.
The officer said it would not be smart to make a statement
if I did not say I heard Tremayne say [Appellant] shot him.
Because [Appellant] would probably come looking for me and my
family. So I agreed to make the statement and he drove me
down there. I went to Homicide and told the Detective what the
officer had instructed me to say. I then went home for the
night. Over the next few weeks, I got a call to come and testify
at the preliminary hearing and I did so and said what the officer
told me to say which was Tremayne said [Appellant] shot him.
When it was time for the trial, I felt guilty and did not go back
thinking the case would be thrown out without me being present
and I did not want to lie under oath again. Over the next nine
years I felt bad but I was living my own life and it was an
afterthought.
Around March of 2015, I received a phone call from an old
friend from the neighborhood named “P” telling me that
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[Appellant’s] sister was filing an appeal for him and wanted to
know if I would talk to an investigator on [Appellant’s] behalf
and I agreed because I am a more mature person now and I
have found a higher power. Also, I was in the military which
gave me some core beliefs regarding honesty and integrity.
For this reason, I felt I had no other choice but to right my
wrong and tell the 100% truth.
Appellant’s brief at 9-11.
Appellant maintains that he filed the instant PCRA on February 14,
2016, within sixty-days of his receipt of Watson’s affidavit. He claims that,
prior to receiving Watson’s affidavit, he could not have known that Watson
had lied at the preliminary hearing, and could not otherwise have compelled
him to recant his testimony. Thus, he relies on the date Watson signed his
affidavit as the triggering event for his obligation to file a PCRA pursuant to
the newly-discovered fact exception.
The PCRA court determined that Watson’s affidavit failed to satisfy the
newly-discovered fact exception, and thus, his PCRA petition was barred by
the statutory time bar. It found that Appellant had not acted with due
diligence since he had been friends with Watson since 1998, and thus, could
have contacted him prior to the date Watson provided the affidavit. The
court also noted that Appellant did not aver what steps he took to locate
Watson. In addition, it found that Appellant did not allege when he actually
learned of Watson’s false testimony. The court notes that, since Watson
agreed to meet with an investigator in March 2015, Appellant should have
filed his petition within sixty days of March 2015 because he could have
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learned of the information contained in Watson’s affidavit at that time.
Hence, the court concluded that Appellant’s petition was time-barred.
Instantly, Appellant offered Watson’s recantation of his prior testimony
as a newly-discovered fact, which he learned when Watson provided the
affidavit on January 15, 2016. Appellant incorporated the memorandum of
law in support of his petition, which included Watson’s affidavit, into his
PCRA petition. When considering these documents together, Appellant pled
that he learned that Watson was willing to speak to an investigator on his
behalf in March 2015, and sometime thereafter, he learned of Watson’s
willingness to recant his prior testimony.
We find that the PCRA court erred in finding that the sixty-day period
within which Appellant was required to file his PCRA petition began running
in March 2015, because the record does not conclusively settle whether
Appellant knew at that time that Watson would recant his testimony, or was
merely willing to speak with an investigator. We can infer from the record
that Appellant learned the content of Watson’s affidavit sometime after the
alleged phone call, either from the investigator or from Watson himself. It is
entirely possible that Appellant did not know that Watson had purportedly
lied during the preliminary hearing until January 15, 2016, when he provided
the affidavit, as he claimed. Hence, if Appellant could not have learned of
this fact until January 15, 2016, or at any time within sixty-days prior to the
filing of his PCRA petition, then Appellant’s petition would meet the PCRA’s
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sixty-day timeliness requirement. As the record does not support the PCRA
court’s finding in this regard, an evidentiary hearing is necessary to
determine exactly when Appellant could have ascertained Watson’s
retraction through the exercise of due diligence.
Moreover, we find the PCRA court erred in finding that Appellant had
not exercised due diligence since he had known Watson since 1998, and
could have otherwise contacted him during the nine intervening years
following his judgment of sentence and the filing of the instant PCRA
petition. On the record before us, there is no indication as to the nature or
length of Appellant’s relationship with Watson, other than the
Commonwealth’s assertion in its motion to dismiss that the two were long-
time friends.
In addition, when considering that Watson averred that Appellant’s
sister sought him out in 2015, and only then did he consider recanting his
testimony, the record does not support the trial court’s finding that Appellant
could have discovered Watson’s recanted testimony earlier than he did. This
is especially true since Appellant’s conviction was based, in part, on
Watson’s prior testimony during the preliminary hearing that Walker had
identified Appellant as his assailant, and Appellant had no means to directly
dispute that testimony. See Commonwealth v. Medina, 92 A.3d 1210(Pa.Super. 2014) (finding defendant could not have discovered recanted
testimony through exercise of due diligence where witness “testified
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consistently and unequivocally at trial,” and defendant had no other factual
basis to counter that testimony). Hence, due to the fact-sensitive nature of
the due diligence inquiry, an evidentiary hearing is also necessary to
determine whether Appellant took reasonable steps to locate Appellant.
Shiloh, supra; see also Commonwealth v. Davis, 86 A.3d 883, 890-891
(Pa.Super. 2014) (finding that due diligence does not require a defendant
“should have assumed the Commonwealth’s witnesses were committing
perjury, and the Commonwealth was improperly permitting them to do so.”).
Appellant also raises a claim that his petition satisfies the
governmental interference exception to the PCRA’s time bar. In this vein,
the PCRA court determined, similar to its analysis above, that Appellant did
not exercise due diligence in obtaining Watson’s affidavit. Further, it found
that, since Watson provided the information, Appellant did not plead that a
government official prevented him from raising the claim.
Appellant maintains that the Commonwealth’s knowing reliance on
purportedly perjured testimony constitutes a Brady violation,1 and that
Officer Saccone’s actions can be imputed on the Commonwealth.
Essentially, Appellant argues that the government actively hid the use of
perjured testimony from him, and thus, he could not bring the present
action until Watson’s affidavit apprised him of the falsified testimony.
____________________________________________
1 Brady v. Maryland, 373 U.S. 83 (1963).
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Our High Court has previously noted that the “proper questions” with
regard to this exception “are whether the government interfered with
Appellant’s ability to present his claim and whether Appellant was duly
diligent in seeking the facts on which his claims are based.”
Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013);
Commonwealth v. Hawkins, 953 A.2d 1248 (Pa. 2006) (noting “although
a Brady claim may fall within the governmental interference exception, the
petitioner must plead and prove that the failure to previously raise these
claims was the result of interference by governmental officials, and that the
information could not have been obtained earlier with the exercise of due
diligence.”). Since Watson’s affidavit, if proven to be true, may entitle
Appellant to relief, and this claim also relies on proof of his due diligence,
Appellant may, as noted above, offer such evidence at a hearing on remand.
In summary, our review of the record reveals there are genuine issues
concerning material facts that remain unresolved. Thus, we find that the
PCRA court erred in dismissing Appellant’s petition as untimely without first
holding a hearing to determine whether Appellant satisfied an exception to
the PCRA’s statutory time bar. We direct the PCRA court to hold such a
hearing, and to determine whether Appellant has pled and proven such an
exception. In light of this disposition, we cannot reach the merits of
Appellant’s remaining issues at this time.
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Order vacated. Case remanded for further proceedings. Jurisdiction
relinquished.
Judge Musmanno joins this memorandum.
Judge Shogan notes dissent.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/27/18
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