Com. v. Munro, J. ( 2022 )

J-S06036-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JAHMAL MUNRO :
:
Appellant : No. 599 EDA 2021
Appeal from the PCRA Order Entered February 25, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006850-2017
BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY KING, J.: FILED APRIL 20, 2022
Appellant, Jahmal Munro, appeals from the order entered in the
Philadelphia County Court of Common Pleas, which denied his first petition
filed pursuant to the Post-Conviction Relief Act (“PCRA”).1 We affirm.
The relevant facts and procedural history of this case are as follows.
On September 4, 2019, Appellant entered into a negotiated guilty plea to
persons not to possess firearms. The court sentenced Appellant to four to
eight years of incarceration, concurrent to another sentence Appellant was
serving in Delaware County. Appellant did not file a direct appeal.
On December 4, 2019, Appellant filed a timely pro se first PCRA
petition. The court appointed counsel who, on December 12, 2019, filed an
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1 42 Pa.C.S.A. §§ 9541-9546.
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amended petition alleging one ground for relief based on after-discovered
evidence. (Amended PCRA Petition, 6/16/20, at 3).
On February 25, 2021, the PCRA court conducted an evidentiary
hearing. The court summarized the testimony from the hearing as follows:
The evidence [Appellant] claimed as [after-]discovered,
was that the police officer in his case [Police Officer
Thomas D’Alesio] had been charged with misconduct, (N.T.
Hearing, 2/25/21, at 8), and that he was unaware of this
information at the time of his guilty plea as his lawyer had
not discussed this with him. (Id. at 9). [Appellant]
further contends that had he known this information, he
would not have pleaded guilty. (Id.)
Assistant District Attorney Alicia Straining testified that
discovery, which included a police misconduct disclosure
packet, was sent to trial counsel Deon Browning on
January 8, 2019, nine (9) months prior to [Appellant]
entering a negotiated guilty plea. (Id. at 23).
Trial counsel acknowledged receipt and review of discovery
containing the police misconduct disclosure packet. (Id. at
30-31). Trial counsel further testified that it is his pattern
of practice to discuss discovery with his clients. (Id. at
32). He further testified that he had multiple
conversations with [Appellant], but does not remember the
exact conversation. He however, clearly recalled, that
much of the discussions revolved around [Appellant’s]
criminal case in Delaware County and its relation to his
Philadelphia case and ability to have any sentence he may
receive in Philadelphia to run concurrently to his Delaware
County sentence, should he plead guilty. (Id. at 31-32).
(PCRA Court Opinion, 5/18/21, at 1-2) (record citation formatting altered,
some capitalization omitted). At the conclusion of the evidentiary hearing,
the PCRA court denied relief.
Appellant timely filed a notice of appeal on March 16, 2021. On March
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24, 2021, the court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant filed his
Rule 1925(b) statement on April 12, 2021.
Appellant raises two issues on appeal.
Whether the court erred in not granting relief on the PCRA
petition?
Whether the court erred in not granting relief of the PCRA
petition alleging Appellant was prejudiced by after
discovered evidence?
(Appellant’s Brief at 4).2
In his first issue, Appellant argues that he would not have pled guilty
had he known about the officer’s misconduct at the time of his plea, even if
the officer’s misconduct was unrelated to his case. Appellant asserts the
officer’s misconduct constitutes after-discovered evidence sufficient to afford
him relief. Appellant concludes the PCRA court erred in denying his petition,
and this Court must grant relief. We disagree.
We review a PCRA court’s order denying relief to determine whether
the court’s findings of fact are supported by the record, and whether its legal
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2 Appellant did not raise his second issue concerning prejudice in his Rule
1925(b) concise statement. (See Concise Statement, 4/12/21). Therefore,
he waived it on appeal. See Commonwealth v. Phillips, 141 A.3d 512,
522 (Pa.Super. 2016), appeal denied, 639 Pa. 591, 161 A.3d 796 (2016)
(stating: “Any issues not raised in a [Rule] 1925(b) statement will be
deemed waived”). Moreover, Appellant further waived this issue by not
developing it in the argument section of his brief. See Commonwealth v.
Martz, 232 A.3d 801, 811 (Pa.Super. 2020) (discussing waiver for failure to
develop meaningful argument in brief).
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conclusions are free from error. Commonwealth v. Conway, 14 A.3d 101(Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795 (2011). This
Court grants great deference to the findings of the PCRA court if the record
contains any support for those findings. Commonwealth v. Boyd, 923
A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74(2007). Further, a PCRA court’s credibility determinations should be given
great deference; we are bound by the credibility determinations of the PCRA
court if those determinations are supported by the record. Commonwealth
v. Johnson, 600 Pa. 329, 345, 966 A.2d 523, 532 (2009).
This Court has explained:
To warrant relief, after-discovered evidence must meet a
four-prong test: (1) the evidence could not have been
obtained before the conclusion of the trial by reasonable
diligence; (2) the evidence is not merely corroborative or
cumulative; (3) the evidence will not be used solely for
purposes of impeachment; and (4) the evidence is of such
a nature and character that a different outcome is likely.
At an evidentiary hearing, an appellant must show by a
preponderance of the evidence that each of these factors
has been met in order for a new trial to be warranted.
[Even if it appears] likely that a new trial is warranted...,
procedure demands that the [trial] court develop the
record and make that call in the first instance.
Commonwealth v. Rivera, 939 A.2d 355, 359 (Pa.Super. 2007), appeal
denied, 598 Pa. 774, 958 A.2d 1047 (2008) (internal citations omitted).
Instantly, the PCRA court explained its reasoning for denying PCRA
relief as follows:
[Appellant] alleges that he was unaware of the police
misconduct discovery packet whilst trial counsel states that
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he recalls receiving it and it is his pattern of practice to
discuss discovery with his clients. Although trial counsel
does not specifically recall discussing the misconduct
information, he clearly recalls that the majority of the
conversations with [Appellant] involved the correlation
between [Appellant’s] criminal cases in Delaware and
Philadelphia Counties. Based on the testimony, the PCRA
court believes that the police misconduct discovery was
properly passed to defense counsel and discussed with
[Appellant]. As such, th[e PCRA c]ourt has determined
that the police misconduct evidence is not [after-
discovered evidence] and therefore does not warrant relief.
(PCRA Court Opinion at 4).
The record supports the court’s determination that Appellant cannot
establish the first prong of the after-discovered evidence test. See Rivera,
supra. As the PCRA court explained, trial counsel testified that he received
the discovery packet which included the police misconduct report. We see
no reason to disrupt the court’s credibility determination.3 See Johnson,
supra. Therefore, the alleged after-discovered evidence was available to
Appellant prior to his guilty plea. Accordingly, we affirm the order denying
PCRA relief.
Order affirmed.
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3 We note that Appellant has not alleged a claim for relief based on
ineffective assistance of trial counsel.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/20/2022
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