Com. v. Butler, D. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DARRYL BUTLER :
:
Appellant : No. 788 EDA 2021
Appeal from the PCRA Order Entered April 6, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0615311-1992
BEFORE: BENDER, P.J.E., BOWES, J., and DUBOW, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 10, 2022
Appellant, Darryl Butler, appeals pro se from the post-conviction court’s
April 6, 2021 order denying, as untimely, his petition filed under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant maintains
that he has discovered new evidence of misconduct by several detectives
involved in his case and, thus, an evidentiary hearing is warranted. After
careful review, we affirm.
This Court previously summarized the facts and procedural history of
Appellant’s case, as follows:
On May 21, 1992, [Appellant] and two other men drove to 3449
North Orianna Street, where they encountered Shadrack Townes
and Yolanda Watson. [Appellant] and Townes were acquainted
with each other, and began to argue about an earlier incident
where Townes had apparently insulted the wife of one of
[Appellant’s] friends. The argument lasted several minutes, but
the two stayed reasonably calm. [Appellant] suddenly pulled out
a semi-automatic pistol and shot Townes twice in the abdomen.
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Townes collapsed on the sidewalk. [Appellant] began to walk
away, but then turned around and shot Townes another dozen or
so times. [Appellant] put the gun to Townes’ head to administer
the coup de grace, but the gun merely clicked when [Appellant]
pulled the trigger-the ammunition was spent. [Appellant] fled
with his two friends.
Yolanda Watson and another eyewitness who observed the
shooting later identified [Appellant] from a photo array. Townes
also noticed that [Appellant] wore a necklace with the name
“Darryl,” and told police as he lay bleeding on the sidewalk that
Darryl had shot him. Townes died within hours of the shooting.
The next morning detectives arrived at [Appellant’s] girlfriend’s
apartment with an arrest warrant. There[,] they discovered in
plain view a box for a rare, heavier than normal type of nine-
millimeter ammunition which matched casings found near Townes’
body.
[Appellant] chose not to testify at his jury trial. His girlfriend
provided an alibi, claiming that she, [Appellant] and their children
had spent the day at the zoo. [Appellant] specifically did not
dispute the events surrounding Townes’ death; he simply claimed
that he could[ not] have been the shooter since he wasn’t there.
The jury found otherwise and convicted [Appellant] of first-degree
murder and possessing an instrument of crime [(PIC)].
[Appellant] received the mandatory life sentence for the murder,
and a concurrent one to two years[’ incarceration] for the PIC
charge.
Commonwealth v. Butler, 647 A.2d 928, 930-31 (Pa. Super. 1994).
Appellant filed a timely appeal from his judgment of sentence and, after
this Court affirmed, see id., our Supreme Court denied his subsequent
petition for allowance of appeal on October 27, 1994. Commonwealth v.
Butler, 655 A.2d 983 (Pa. 1994).
From 1997 through 2014, Appellant litigated four unsuccessful PCRA
petitions. On November 19, 2018, he filed a fifth, pro se PCRA petition, which
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underlies his present appeal.1 In Appellant’s petition, he claimed that he
discovered new evidence on November 12, 2018, when he received in the mail
several documents (from an entity that he called the Legal Researcher Exhibit
News), including a federal, civil case of Wright v. City of Philadelphia, et
al., 16 CV 5020 (E.D. Pa. 2016). Appellant explained that the facts of the
Wright case revealed to him that Philadelphia Police Detectives David Baker
and Dennis Dusak had engaged in misconduct in Wright and other criminal
cases, and had been placed on a “do not call to testify” list created by the
Philadelphia District Attorney’s Office. Appellant stressed that those
detectives had both been involved in the investigation and prosecution of his
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1 We observe that, on August 1, 2018, Appellant also filed a petition for writ
of habeas corpus, claiming that 18 Pa.C.S. § 1102(a), the sentencing statute
for first-degree murder, is void for vagueness. The PCRA court seemingly
consolidated Appellant’s writ of habeas corpus petition with his November 12,
2018 PCRA petition, and dismissed both petitions in its April 6, 2021 order.
See Order, 4/6/21, at 1 (stating that the PCRA petition is dismissed as
untimely, and the “[h]abeas petition is dismissed for failing to raise a non-
waived claim”) (emphasis, unnecessary capitalization, and footnote omitted).
On appeal, Appellant declares that he is not challenging the court’s denial of
his void-for-vagueness claim, which implicates the legality of his sentence.
See Appellant’s Brief at 3; see Commonwealth v. Moore, 247 A.3d 990,
997 (Pa. 2021) (finding that a claim that section 1102(a) is void for vagueness
implicates the legality of the sentence). While generally, this Court can
consider a legality of sentencing claim sua sponte, the Moore Court held that
a claim that section 1102(a) is void for vagueness is cognizable under the
PCRA and, therefore, it must meet the PCRA’s one-year timeliness
requirement or an exception thereto. Id. at 998; see also Commonwealth
v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (holding that claims challenging the
legality of sentence are subject to review within the PCRA, but must first
satisfy the PCRA’s time limits). Because Appellant makes no attempt to plead
or prove the applicability of any timeliness exception to his sentencing claim,
we do not address it herein.
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case, and he claimed that they had committed misconduct. Specifically, he
averred that Detective Baker had planted evidence of the empty bullet box in
Appellant’s girlfriend’s apartment, Detective Dusak had used suggestive photo
arrays to obtain witness identifications of Appellant, and both detectives had
fabricated their testimony at Appellant’s trial.
On February 5, 2021, the PCRA court issued a Pa.R.Crim.P. 907 notice
of its intent to dismiss Appellant’s petition without a hearing on the basis that
it is untimely. Appellant filed a pro se response, but on April 6, 2021, the
court issued an order dismissing his petition as untimely. Appellant filed a
timely, pro se notice of appeal. It does not appear that the PCRA court ordered
him to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal, but this Court received a Rule 1925(a) opinion from the PCRA court
on May 13, 2021. Herein, Appellant states one issue for our review: “The
[PCRA] court abused its discretion when it dismissed the new evidence [claim
in Appellant’s] PCRA petition as being untimely filed and not meeting the
exception set forth to the time-bar in 42 Pa.C.S.[] § 9545(b)(1)(ii).”
Appellant’s Brief at 3.
This Court’s standard of review regarding an order denying a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the
timeliness of Appellant’s petition, because the PCRA time limitations implicate
our jurisdiction and may not be altered or disregarded in order to address the
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merits of a petition. See Commonwealth v. Bennett, 930 A.2d 1264, 1267
(Pa. 2007). Under the PCRA, any petition for post-conviction relief, including
a second or subsequent one, must be filed within one year of the date the
judgment of sentence becomes final, unless one of the following exceptions
set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:
(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. § 9545(b)(1)(i)-(iii). Additionally, section 9545(b)(2) requires that
any petition attempting to invoke one of these exceptions “be filed within one
year of the date the claim could have been presented.” 42 Pa.C.S. §
9545(b)(2).
Here, Appellant’s judgment of sentence became final on January 25,
1994, ninety days after the Pennsylvania Supreme Court denied his petition
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for permission to appeal and the time expired for him to file an appeal with
the United States Supreme Court. See 42 Pa.C.S. § 9545(b)(3) (stating that
a judgment of sentence becomes final at the conclusion of direct review or the
expiration of the time for seeking the review); Commonwealth v. Owens,
718 A.2d 330, 331 (Pa. Super. 1998) (directing that under the PCRA,
petitioner’s judgment of sentence becomes final ninety days after our
Supreme Court rejects his or her petition for allowance of appeal since
petitioner had ninety additional days to seek review with the United States
Supreme Court). Thus, Appellant’s present petition filed in 2018 is patently
untimely and, for this Court to have jurisdiction to review the merits thereof,
he must prove that he meets one of the exceptions to the timeliness
requirements set forth in 42 Pa.C.S. § 9545(b).
Instantly, Appellant argues that he meets the newly-discovered
evidence exception of section 9545(b)(1)(ii) based on his discovery of the
misconduct of Detectives Baker and Dusak. Appellant claims that the
detectives’ misconduct in Wright and other criminal cases — which led to
their being placed on the District Attorney’s “no call at trial list” — constitutes
proof that these detectives also planted evidence, utilized suggestive photo
arrays to secure Appellant’s identification, and committed perjury in
Appellant’s case. Although Wright was filed in 2016, Appellant stresses that
he was pro se and incarcerated at that point and, thus, he “did not have access
to information otherwise readily available to the public.” Appellant’s Brief at
18 (citing Commonwealth v. Burton, 158 A.3d 618 (Pa. 2017) (holding that
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the presumption that information which is of public record cannot be deemed
‘unknown’ for purposes of the newly-discovered-fact exception to the PCRA’s
one-year time limit does not apply to pro se, incarcerated petitioners)).
Appellant contends that he acted with due diligence in discovering and raising
his newly-discovered fact claim, as he filed his petition within days of receiving
the information concerning the detectives’ misconduct in 2018. He insists that
a hearing on his after-discovered-evidence claim is warranted, at which he will
present the testimony of Anthony Wright “concerning the hard/true facts[]
that became available in his litigation, against both Detective[s] Baker and
Dusak, and their pattern of presenting false evidence and false facts and false
testimony.” Id. at 22.
It is well-settled that, “[t]o qualify for an exception to the PCRA’s time
limitations under subsection 9545(b)(1)(ii), a petitioner need only establish
that the facts upon which the claim is based were unknown to him and could
not have been ascertained by the exercise of due diligence.” Burton, 158
A.3d at 629. Here, Appellant attested that the misconduct of Detectives Baker
and Dusak was previously unknown to him until 2018 when he received the
Wright case in the mail. Although the detectives’ transgressions in Wright
became public information when that decision was issued in 2016, at that
point Appellant was unrepresented and incarcerated. Therefore, we cannot
presume that that Wright’s allegations of misconduct against Detectives Baker
and Dusak were knowable to Appellant simply because they were made public.
See Butler, supra. Instead, we agree with Appellant that he exhibited due
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diligence by filing his petition within days of receiving the information about
the detectives’ misconduct. Therefore, we conclude that Appellant has
satisfied the newly-discovered-fact exception to the PCRA’s one-year
timeliness requirement.
Nevertheless, no evidentiary hearing or other relief is warranted on
Appellant’s claim.
To warrant a new trial based on after-discovered evidence, the
appellant must show that the evidence “(1) could not have been
obtained prior to trial by exercising reasonable diligence; (2) is
not merely corroborative or cumulative; (3) will not be used solely
to impeach a witness’s credibility; and (4) would likely result in a
different verdict.”
Commonwealth v. Castro, 93 A.3d 818, 821 (Pa. 2014) (quoting
Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008)).
In Commonwealth v. Brown, 134 A.3d 1097 (Pa. Super. 2016), this
Court rejected Brown’s claim that he deserved an after-discovered-evidence
hearing based on two newspaper articles discussing the misconduct of
Philadelphia Police Detectives Ronald Dove and James Pitts in unrelated cases.
Id. at 1108. Detectives Dove and Pitts had both been directly involved in
Brown’s case, taking statements from Brown and another witness, who later
recanted that statement. Id. Despite this direct involvement, we concluded
that Brown was not entitled to an evidentiary hearing to explore whether the
detectives had committed misconduct in his case. Id. at 1108-09. We
reasoned that, with respect to Detective Dove, Brown had relied only “on [a]
newspaper article reporting on Dove’s possible misconduct” in an unrelated
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case, and he did “not articulate what evidence he would present at the
evidentiary hearing on remand.” Id. at 1109. Pertaining to Detective Pitts,
Brown only specified witnesses that he would call to testify about Pitts’
improper interrogation techniques in other cases. Id. We concluded that,
absent proof that Detective Pitts had committed misconduct in Brown’s case,
the evidence of his improper interrogation tactics from other cases could only
be used by Brown to attack Pitts’ credibility, which cannot satisfy the after-
discovered evidence test. Id. Therefore, because “an evidentiary hearing is
not meant to function as a fishing expedition for any possible evidence that
may support some speculative claim,” we held that Brown had not
demonstrated that a hearing was warranted. Id.2
Likewise, in this case, Appellant has failed to establish a nexus between
his convictions and the misconduct of Detectives Baker and Dusak in other
unrelated cases. As in Brown, Appellant has only presented speculative
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2 See also Commonwealth v. Johnson, 179 A.3d 1105, 1122-23 (Pa.
Super. 2018) (affirming the denial of a PCRA after-discovered evidence claim
based on criminal convictions of a police detective who testified at defendant’s
trial and was involved in questioning a witness who identified the defendant,
where convictions occurred years after defendant’s trial and arose out of
conduct in an unrelated case); Commonwealth v. Foreman, 55 A.3d 532,
534-35, 537 (Pa. Super. 2012) (affirming the denial of a PCRA after-
discovered evidence claim based on criminal charges against a police detective
who testified at the defendant’s trial, where the charges arose out of conduct
in an unrelated case that occurred more than two years after the defendant’s
trial); see also Commonwealth v. Griffin, 137 A.3d 605, 610 (Pa. Super.
2016) (reversing the grant of a new trial based on after-discovered evidence
of misconduct of a police officer who testified at the defendant’s trial where
alleged misconduct was in unrelated case).
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allegations that the detectives planted evidence, used suggestive photo
arrays, and lied on the stand. Appellant’s allegations do not even mirror the
misconduct allegedly committed by the detectives in the Wright case.3
In addition, Appellant has not articulated what specific evidence he
would present at a hearing to show that the detectives engaged in misconduct
in this case. Instead, he states only that he would call Anthony Wright to
testify about the detectives’ misconduct in Wright’s case. However, the
detectives’ misdeeds in Wright and/or other, unrelated criminal cases, could
only be used by Appellant to impeach their credibility, which is an insufficient
basis for a new trial under the after-discovered evidence test.
In sum, without something more to show that Detectives Baker and/or
Dusak engaged in misconduct in Appellant’s case, we cannot conclude that
the PCRA court erred by dismissing his petition.
Order affirmed.
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3 In that case, Wright was wrongfully convicted for rape and murder and
served 25 years in prison before being exonerated by DNA evidence. Wright,
16 CV 5020 at *1. Wright subsequently filed a federal lawsuit alleging various
civil rights violations against eleven members of the Philadelphia Police
Department, including Detectives Baker and Dusak. Id. In the decision cited
by Appellant herein, the district court addressed the defendants’ motion to
dismiss, and ultimately denied that motion based on the allegations of
misconduct alleged by Wright. Regarding Detectives Baker and Dusak, Wright
alleged that they had both failed to report statements from witnesses that
exculpated Wright, and provided prosecutors with false and misleading
information to obtain Wright’s arrest and prosecution. Id. at *3, *6, *7.
Additionally, Wright claimed that Detective Dusak, who was the lead
investigator, encouraged interrogating detectives to coerce Wright’s
confession. Id. at *7.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/10/2022
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