Com. v. Torres, M. ( 2020 )


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  • J-S24025-20
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
    OF PENNSYLVANIA
    Appellee
    v.
    MICHAEL TORRES
    Appellant               No. 1244 EDA 2019
    Appeal from the PCRA Order Entered March 29, 2019
    In the Court of Common Pleas of Philadelphia County
    Criminal Division at No: CP-51-CR-0000548-2014
    BEFORE: BENDER, P.J.E., STABILE, J., and STRASSBURGER, J.*
    MEMORANDUM BY STABILE, J.:                      FILED NOVEMBER 20, 2020
    Appellant, Michael Torres, appeals from the March 29, 2019 order
    dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”), 42
    Pa.C.S.A. §§ 9541-46. We affirm.
    On May 19, 2016, a jury found Appellant guilty of possession of
    controlled substances with intent to deliver, conspiracy, and several firearms
    offenses.1 On July 22, 2016, the trial court imposed an aggregate 7½ to 20
    years of incarceration. On July 27, 2017, this Court affirmed the judgment of
    sentence and granted counsel’s petition to withdraw pursuant to Anders v.
    ____________________________________________
    *   Retired Senior Judge assigned to the Superior Court.
    1    75 P.S. § 780-113(a)(30), 18 Pa.C.S.A. §§ 903, 6105, 6106, and 6108.
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    California, 
    386 U.S. 738
     (1967). Appellant did not seek allowance of appeal
    from our Supreme Court.
    Appellant filed this timely first pro se PCRA petition on March 5, 2018.
    Appointed counsel filed an amended petition on June 29, 2018. Appellant filed
    several requests for further investigation both before and after counsel’s
    amended petition.     The PCRA court’s handling of those requests, which is
    governed by Pa.R.Crim.P. 902(E), is at issue in this appeal. The PCRA court
    entered its notice of intent to dismiss the petition without a hearing pursuant
    to Pa.R.Crim.P. 907 on February 28, 2019, and then dismissed the petition as
    set forth above. This timely appeal followed. Appellant raises a single issue:
    “Did the PCRA court error [sic] in failing to grant [Appellant’s] motion for
    discovery in order to allow proper analysis by court-appointed counsel?”
    Appellant’s Brief at 2.
    Before we address the merits, we consider the PCRA court’s opinion that
    Appellant’s concise statement of issues complained of on appeal, pursuant to
    Pa.R.A.P. 1925(b), is fatally deficient. Appellant raised two issues in his Rule
    1925(b) statement:
    1.    The trial court abused its discretion in denying
    petitioner’s PCRA without a hearing because there were material
    issues of fact material [sic] necessary to be determined for
    disposition.
    2.     The trial court erred in not granting petitioner’s
    request for discovery as a matter of law.
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    Appellant’s Pa.R.A.P. 1925(b) Statement, 5/29/19, at 1.         The PCRA court
    observed that Appellant’s Rule 1925(b) statement fails to describe the
    material issues of fact, and that it does not describe why the PCRA court was
    wrong in denying Appellant’s discovery request.           PCRA Court Opinion,
    6/15/19, at 9. Nonetheless, the PCRA court went on to address its reasons
    for denying Appellant’s discovery request, and the need for discovery is the
    sole issue Appellant addresses in his appellate brief.      Because Appellant’s
    vague concise statement has not hampered our review in this case, we will
    address the merits.
    We    review    the   PCRA     court’s   legal   conclusions    de    novo.
    Commonwealth v. Mason, 
    130 A.3d 601
    , 617 (Pa. 2015). The PCRA court
    may dispose of a petition without a hearing when it is satisfied that the petition
    raises no genuine issues of material fact. Pa.R.Crim.P. 907(1). 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
    -3-
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    request.   The PCRA and the applicable rules do not define “exceptional
    circumstances” that would support discovery on collateral review. 
    Id. at 611
    .
    “Rather, it is for the trial court, in its discretion, to determine whether a case
    is exceptional and discovery warranted.” Commonwealth v. Frey, 
    41 A.3d 605
     (Pa. Super. 2012), appeal denied, 
    65 A.3d 413
     (Pa. 2013) (citing
    Commonwealth v. Dickerson, 
    900 A.2d 407
    , 412 (Pa. Super. 2006),
    appeal denied, 
    911 A.2d 933
     (Pa. 2006)). We will not reverse the PCRA
    court’s determination absent an abuse of discretion. 
    Id.
     “Mere speculation”
    that exculpatory evidence may exist does not establish that exceptional
    circumstances exist. Dickerson, 
    900 A.2d at 412
    ; see also 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[.]”); cert denied, 
    586 U.S. 1091
     (2013).
    Appellant’s discovery request arose out of the trial court’s denial of his
    pre-trial request to identify a Confidential Informant (“CI”).        Appellant’s
    defense at trial was mistaken identity, and the only witnesses of the drug
    transactions, other than the CI, were police officers. N.T. Hearing, 7/10/15,
    at 5. A police officer testified that the CI was still serving as an informant,
    and that identifying any CI can result in his or her death and possibly the
    death of family members. Id. at 8, 25. The trial court denied the motion to
    identify, and the case proceeded to trial.
    -4-
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    Presently, Appellant claims that the first trial judge ordered the CI file
    to be reviewed in camera. Appellant notes that nothing in the record confirms
    that the second trial judge—and the one who ultimately denied Appellant’s
    motion to identify the CI—ever conducted the in camera review.             Thus,
    Appellant claims the PCRA court erred in denying his motion for discovery of
    the CI’s file, in order that PCRA counsel could review it and ascertain whether
    any meritorious claim might arise from it. Appellant’s Brief at 6.2
    Appellant relies on Frey, in which the petitioner, Frey, was convicted of
    murder before police recovered the victim’s body.        Frey had confessed to
    killing the victim, Johnson, prior to his conviction, and a large body of
    circumstantial evidence pointed to his guilt. Frey, 
    41 A.3d at 607-08
    . Several
    years after his conviction, however, the Commonwealth recovered and
    identified Johnson’s remains and provided a forensic report to Frey and his
    counsel.    Frey filed a PCRA petition seeking a new trial based on after
    discovered evidence.       According to Frey, the forensic report indicated that
    Johnson’s death occurred after Frey was incarcerated. A third person, Farmer,
    who was associated with Frey and suspected of involvement in Johnson’s
    death, was murdered while Frey was incarcerated. Farmer’s murder occurred
    near the location where police recovered Johnson’s remains. 
    Id. at 608-09
    .
    Frey filed a motion for discovery under Rule 902(E)(1) regarding the Farmer
    ____________________________________________
    2  Appellant acknowledges that counsel might choose to file a no-merit letter
    after reviewing the file. Appellant’s Brief at 6.
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    homicide file, hoping to procure evidence that the same person killed Farmer
    and Johnson, and that it could not have been Frey. The PCRA court granted
    the motion and the Commonwealth appealed. 
    Id.
     This Court accepted review
    under the collateral order doctrine and affirmed, relying upon the unusual
    event of a murder conviction without a victim’s body, combined with facts
    reasonably supporting Frey’s theory that an unknown party may have been
    involved in the Johnson and Farmer murders. 
    Id. at 611-14
    . The dissenting
    Judge noted the overwhelming body of evidence linking Frey to Johnson’s
    murder, including his confessions and several witnesses who testified that
    they heard Frey express his intent. 
    Id. at 614-18
     (Bowes, J. dissenting). The
    dissent concluded that the discovery request was based on mere speculation.
    The circumstances of the present case are far removed from those of
    Frey.    Here, the Commonwealth produced direct evidence, in the form of
    eyewitnesses, to Appellant’s drug transactions.      Police observed Appellant
    conducting drug transactions on several occasions, then obtained and
    executed search warrants that produced incriminating evidence. These are
    common circumstances underlying a drug prosecution, rather than a rare
    prosecution for murder without a victim’s body.       Furthermore, there is no
    newly discovered evidence in this case that requires further investigation.
    There is no reason to believe that the CI would have contradicted the police
    officer’s identification of Appellant. As such, Appellant’s request for discovery
    of the CI’s file is based on mere speculation, a fact he acknowledges in his
    -6-
    J-S24025-20
    brief. Appellant’s Brief at 6 (“Once [the CI’s file is] received, counsel can make
    the next necessary determination of whether or not this omission was
    prejudicial and possibly even file a no-merit letter.”).            Furthermore,
    Appellant’s brief is silent on the substance of any collateral claim he hoped to
    be able to raise.
    Based on the foregoing, we discern no abuse of discretion in the PCRA
    court’s denial of Appellant’s discovery request, nor do we discern any error in
    the court’s dismissal of Appellant’s petition without a hearing.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 11/20/20
    -7-
    

Document Info

Docket Number: 1244 EDA 2019

Filed Date: 11/20/2020

Precedential Status: Precedential

Modified Date: 11/20/2020