Opinion
91 WDA 2023 J-S46027-23
01-17-2024
COMMONWEALTH OF PENNSYLVANIA v. DARON CLARK Appellant
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the PCRA Order Entered December 20, 2022 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0004579-2016
Benjamin D. Kohler, Esq.
BEFORE: DUBOW, J., MURRAY, J., and SULLIVAN, J.
MEMORANDUM
MURRAY, J.
Daron Clark (Appellant) appeals from the order denying his first petition filed under the Post Conviction Relief Act (PCRA). We affirm.
On January 27, 2016, the Commonwealth charged Appellant with one count each of criminal homicide, robbery, burglary, criminal conspiracy, and receiving stolen property. On May 14, 2018, the Commonwealth amended the charge of criminal homicide to third-degree murder, after which Appellant entered a negotiated guilty plea to all charges.
The Commonwealth summarized the factual basis of Appellant's plea: On January 21, 2016, a male was found shot to death inside of a house. N.T., 5/14/18, at 13-14. Afterwards, the victim's brother discovered several items stolen from the house, including two pistols. Id. at 14-15.
A witness informed police that on January 19, 2016, he and Appellant purchased marijuana from the victim. Id. at 15. After this purchase, Appellant told the witness of his plan to rob the victim. Id. Two days later, on January 21, 2016, the witness saw Appellant with items stolen from the victim's house. Id. at 15-16. Appellant stated that he and another individual had "robbed the victim the day before and shots were fired." Id. at 16. Police executed a search warrant on Appellant's residence and recovered items stolen from the victim. At the time of the search, police additionally saw Appellant and an individual named Damon Bledsoe fleeing the residence with the victim's two stolen pistols. Id.
The Honorable Mark V. Tranquilli, the presiding judge, accepted Appellant's guilty plea and imposed the negotiated aggregate sentence of 12½ to 25 years in prison. Id. at 4, 54-55. During sentencing, defense counsel stated, "This agreement was thoughtfully negotiated between myself and the district attorney's office and was thoughtfully considered by [Appellant]…." Id. at 21. No post-sentence motion or appeal followed.
At the same time, Appellant pled guilty to unrelated charges in a separate case and Judge Tranquilli imposed, in accordance with the plea agreement, a probationary sentence running concurrent with the sentence imposed in the instant case. N.T., 5/14/18, at 55-56. As the PCRA court noted, those charges are not at issue. See PCRA Court Notice, 11/30/22, at 5 n.3.
On November 16, 2021, represented by new counsel, Appellant filed a PCRA petition claiming his guilty plea was unlawfully induced by judicial bias on the part of Judge Tranquilli. Appellant, an African American, alleged:
8. Prior to tendering his plea, [Appellant] was advised that [Judge] Tranquilli was suspected to harbor bias against African Americans and criminal defendants generally.
9. At the time, [Appellant] could not substantiate said suspicion.
10. Accordingly, [Appellant] was unable to seek and obtain [Judge] Tranquilli's recusal.
11. Accordingly, [Appellant], fearful of proceeding to trial before and sentencing by a judge who[m] he suspected harbored bias against African Americans and criminal defendants generally, tendered a negotiated plea of guilty to a crime he did not commit with a negotiated term of imprisonment.
12. Long after [Appellant]'s plea, [Appellant] learned that there was an investigation into [Judge] Tranquilli's bias against African Americans and criminal defendants generally.
13. On November 19, 2020, the Court of Judicial Discipline issued an order memorializing that [Judge] Tranquilli had stipulated to a judicial-ethics complaint accusing him of conduct demonstrating such bias.
14. Had [Appellant] had knowledge of the facts and conduct set forth in the complaint, and [Judge] Tranquilli's admission to the same and their character, [Appellant] would have sought and obtained [Judge] Tranquilli's recusal, and would not have pled guilty, or would have sought and obtained a more favorable plea agreement.
15. [Appellant]'s plea in this regard was unlawfully induced by suspected, and actual, but not provable, judicial bias.PCRA Petition, 11/16/21, ¶¶ 8-15 (footnote added). Appellant conceded his claim is facially untimely. However, he asserts the November 19, 2020, order in Judge Tranquilli's disciplinary matter satisfied the newly-discovered fact exception to the PCRA's time bar. Id. ¶¶ 19-23.
On August 12, 2020, the Pennsylvania Judicial Conduct Board filed a complaint against Judge Tranquilli in the Pennsylvania Court of Judicial Discipline. See Complaint, In re: Judge Mark V. Tranquilli, 4 JD 2020, 8/12/20. On November 19, 2020, the court entered an order noting Judge Tranquilli's stipulation to the factual allegations in the complaint, and that he had resigned his judicial office. See Order, 4 JD 2020, 11/19/20. Appellant did not include these documents in the record, but he cites them as matters of public record. See Appellant's Brief at 22 n.7. The PCRA court took judicial notice of them. See PCRA Court Notice, 11/30/22, at 4.
Appellant's petition additionally claimed the Commonwealth violated Brady v. Maryland, 373 U.S. 93 (1963), by failing to disclose information that another individual, Cameron Knight (Knight), "had been charged with criminal offenses against the alleged victim … and his property." Id. ¶ 25; see id. ¶¶ 25-29. According to Appellant, this fact "would have provided [Appellant with] a potential alternative-perpetrator defense, which would have aided him in plea negotiations and/or at trial." Id. at 26. Appellant asserted this claim satisfies the governmental-interference and newly-discovered facts exceptions to the PCRA's time-bar. Id. ¶¶ 30-35. Specifically,
in part due to the Commonwealth's failure to disclose the material pertaining to Knight's offenses, [Appellant] has only recently learned of, and, indeed, has yet to learn all of the circumstances
of, those offenses, which he has been duly diligent in attempting to discover.Id. ¶ 33.
On November 30, 2022, the PCRA court issued Pa.R.Crim.P. 907 Notice of its intention to dismiss Appellant's petition without a hearing. Regarding his claim of judicial bias, the PCRA court concluded Appellant properly pled the time-bar exception for this claim to allow for review of the issue. PCRA Court Notice, 11/30/22, ¶ 6(a). Nevertheless, the PCRA court rejected Appellant's claim of judicial bias on its merits:
The Honorable Bruce R. Beemer oversaw Appellant's PCRA proceedings.
Here, [Appellant's] claim is predicated on the judicial discipline complaint against Judge Tranquilli involving unrelated cases and the fact that [Appellant] is African American.
[Appellant's] attempt to establish that he was subject to judicial bias by relying on a determination made in three unrelated cases, is simply insufficient to warrant relief.Id. ¶ 8(e)-(f). Upon its independent review of the record, the PCRA court found no evidence of judicial bias, "perceived or otherwise." Id. ¶ 8(h) (footnote omitted).
The PCRA court further rejected Appellant's claim of governmental interference based upon a Brady violation. Id. ¶ 6(b). The court determined Appellant "failed to state when he learned of the information which he claims triggered the time bar exception[;]" he "has therefore not established a time bar exception for the due process claim." Id. (citing 42 Pa.C.S.A. § 9545(b)(2) (requiring any petition invoking an exception to be filed within one year of the date the claim could have been presented)).
On December 20, 2022, Appellant responded to the PCRA court's Rule 907 notice, "acknowledg[ing] that he did not plead precisely when he learned about Knight's prosecution, but, rather, pled only that he 'recently' learned of it." Response, 12/20/22, at 3. Appellant requested leave to file an amended petition "to properly plead the date of discovery," but failed to identify the date on which he discovered Knight's prosecution. Id. That same day, the PCRA court denied Appellant leave to file an amended petition and entered its final order dismissing Appellant's petition. See PCRA Court Orders, 12/20/22.
Appellant filed a timely appeal. Appellant and the PCRA court have complied with Pa.R.A.P. 1925.
On April 3, 2023, this Court directed Appellant to show cause why this appeal should not be dismissed as untimely, as the notice of appeal was timestamped January 28, 2023. Appellant's counsel responded that the notice of appeal was filed on January 18, 2023; the timestamp appears to be a clerical error. This Court discharged its show-cause order but advised that the timeliness issue may be revisited by the merits panel. Upon review of the documents attached to Appellant's August 28, 2023, Motion to Supplement Record, we are satisfied that the notice of appeal was timely filed on January 18, 2023. The Commonwealth does not contest the appeal's timeliness. See Commonwealth Brief at 21 n.13.
Appellant initially filed a statement indicating he "does not presently raise any errors complained of on appeal, but instead intends to file an application for relief in the Superior Court seeking the appointment of counsel to vindicate his right to the effective assistance of [PCRA] counsel as contemplated by our Supreme Court's decision in Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021)." Statement in Lieu of Concise Statement, 2/13/23. We granted Appellant's Application for Remand for Appointment of Bradley Counsel. On remand, the PCRA court permitted PCRA counsel to withdraw and appointed appellate counsel. Appellate counsel thereafter filed a timely concise statement of matters complained of on appeal. Appellate counsel raised no issues of PCRA counsel's effectiveness.
Appellant presents two questions for our review:
[1.] Whether [Appellant]'s guilty plea was unlawfully induced by suspected judicial racial bias which was substantiated by newly-discovered facts of the November 19, 2020 Order of the Court of Judicial Discipline memorializing Judge Tranquilli's stipulation to the allegations of a judicial ethics complaint accusing Judge Tranquilli of demonstrating such bias?
[2.] Whether the Commonwealth violated Brady … and its progeny for failing to disclose [that] Cameron Knight had been charged with receiving stolen property [of the same victim on the same offense date as the instant matter,] which would have been relevant to defense strategy regarding the actor's identity[,] … where [Appellant]'s discovery of such information was delayed by government interference and which [Appellant] recently learned prior to [filing his PCRA petition]?Appellant's Brief at 3 (renumbered to exclude timeliness issue, see n.7 supra).
We review the dismissal of a PCRA petition to determine "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. Busanet, 54 A.3d 35, 45 (Pa. 2012). "Our scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the party who prevailed in the PCRA court proceeding." Id.
Before reaching the merits of Appellant's claims, we consider their timeliness. See Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014). A PCRA petition "shall be filed within one year of the date the judgment becomes final[.]" 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence becomes final "at the conclusion of direct review … or at the expiration of time for seeking the review." Id. § 9545(b)(3). "The timeliness of a PCRA petition is jurisdictional. If a PCRA petition is untimely, a court lacks jurisdiction." Commonwealth v. Reeves, 296 A.3d 1228, 1230-31 (Pa. Super. 2023).
Appellant concedes his petition is facially untimely. Appellant's Brief at 16, 25. His judgment of sentence became final in June 2018, when the time for filing a direct appeal expired. Appellant did not file his petition until November 16, 2021. "However, a petitioner may overcome the PCRA's time- bar if he pleads and proves one of the statutory exceptions set forth in 42 Pa.C.S.A. § 9545(b)." Id. at 1231. The exceptions are:
(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).
First, Appellant invokes the newly-discovered facts exception for his judicial bias claim. He argues that the claim is predicated on the Court of Judicial Discipline's November 19, 2020, order noting Judge Tranquilli's stipulation to the facts alleged in his disciplinary complaint. Appellant's Brief at 16.
The Commonwealth disputes whether this claim satisfies the newly-discovered facts exception. Commonwealth Brief at 15. The Commonwealth emphasizes our Supreme Court's holding that "the focus of this exception is on the newly discovered facts, not on a newly discovered or newly willing source for previously known facts." Id. at 15 (quoting Commonwealth v. Lopez, 249 A.3d 993, 999 (Pa. 2021) (emphasis in original)). The Commonwealth directs our attention to Appellant's petition, which states that a source advised him of Judge Tranquilli's bias prior to the entry of his plea, and he pled guilty in reliance on that source's information. Id. The Commonwealth asserts that the disciplinary order noting Judge Tranquilli's stipulation is not a new fact, but a new source for a previously known fact. Id. We agree.
Appellant failed to identify the source of the information that induced his plea. He downplays it as an "unsubstantiated" and "[un]provable" "suspicion." PCRA Petition, 11/15/21, ¶¶ 9, 15. However, taking his petition at face value, we must conclude that Appellant was aware of the "fact" of Judge Tranquilli's bias at the time of his plea. Consequently, Judge Tranquilli's later disciplinary matter is merely "a newly discovered or newly willing source" for that previously known fact. See Lopez, 249 A.3d at 999. As such, it does not satisfy the newly-discovered facts exception to the PCRA's time-bar.
An examination of the disciplinary complaint's substance strengthens this conclusion. Its factual allegations are limited to Judge Tranquilli's conduct in four specific cases. See Complaint, 4 JD 2020, 8/12/20. Three of the four instances occurred after Appellant's May 14, 2018, plea, and could not have impacted his decision to plead guilty. Id.
Even if Appellant had timely asserted this claim, we would agree with the PCRA court that it lacks merit. In Commonwealth v. Pratt, 301 A.3d 882 (Pa. Super. 2023) (unpublished memorandum at 6), an African-American PCRA petitioner invoked Judge Tranquilli's disciplinary matter as establishing a due-process violation. Id. (unpublished memorandum at 4. The petitioner argued he was denied due process "where the presiding trial judge at sentencing was not impartial, and the unreasonable sentence was the result of judicial bias." Id. In rejecting this claim, we noted "the core flaw in [the petitioner's] position is that [Judge] Tranquilli's bias in an unrelated case does not establish bias in this case." Id. at 6 n.2 (emphasis in original). The same reasoning applies here.
Pursuant to Pa.R.A.P. 126(b), unpublished non-precedential decisions of the Superior Court filed after May 1, 2019, may be cited for persuasive value.
In Pratt, this Court compared the appellant's sentencing challenge to the argument presented in Commonwealth v. Rollins, 738 A.2d 435 (Pa. 1999). In Rollins, the defendant claimed the existence of the then-district attorney's training tape instructed prosecutors to "manipulate the jury selection process in order to minimize the seating of African-American jurors[.]" Id. at 443 n.10. We concluded "the existence of the tape d[id] not demonstrate that there was discrimination in his case." Id. (emphasis in original).
The PCRA court determined the record in Appellant's case contained "no evidence of bias, perceived or otherwise." PCRA Court Opinion, 11/30/22, at 5. Our review confirms the PCRA court's determination. Appellant has never alleged that bias was evident from the record in his own case. He relied solely on the stipulation of facts in Judge Tranquilli's unrelated disciplinary matter. PCRA Petition, 11/16/21, ¶¶ 8-15. Such reliance is misplaced. The stipulated facts are limited to Judge Tranquilli's conduct in four specific cases and do not support Appellant's allegation that Judge Tranquilli harbored some overarching "bias against African Americans and criminal defendants generally" at the time Appellant pled guilty. Id. ¶ 8; see generally Complaint, 4 JD 2020, 8/12/20. Consequently, we agree that Appellant's "attempt to establish that he was subject to judicial bias by relying on a determination made in … unrelated cases is simply insufficient to warrant relief." PCRA Court Notice, 11/30/22, at 4. This issue warrants no relief.
Turning to the Brady claim, Appellant argues he properly pled the governmental-interference and newly-discovered facts exceptions to the PCRA's time-bar. Appellant's Brief at 26-28. His petition alleged that,
in part due to the Commonwealth's failure to disclose the material pertaining to Knight's offenses, [Appellant] has only recently learned of, and, indeed, has yet to learn all of the circumstances of, those offenses, which he has been duly diligent in attempting to discover.PCRA Petition, 11/16/21, ¶ 33. In his response to the PCRA court's Rule 907 notice, Appellant "acknowledge[d] that he did not plead precisely when he learned about Knight's prosecution, but, rather, pled only that he 'recently' learned of it." Response, 12/20/22, at 3.
To establish the governmental-interference exception under Section 9545(b)(1)(i), "the petitioner must plead and prove the failure to previously raise the claim was the result of interference by government officials, and the information could not have been obtained earlier with the exercise of due diligence." Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008). The newly-discovered facts exception under Section 9545(b)(1)(ii) "requires petitioner to allege and prove that there were facts that were unknown to him and that he could not have ascertained those facts by the exercise of due diligence." Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008) (internal citations, quotations, and emphasis omitted).
Appellant's allegation that he "recently" discovered Knight's charges does not establish that he filed the claim "within one year of the date the claim could have been presented." 42 Pa.C.S.A. § 9545(b)(2); see Commonwealth v. Davis, 86 A.3d 883, 892 (Pa. Super. 2014) (PCRA petition's Brady claim was untimely where petitioner pled he "recently" discovered withheld evidence without "specify[ing] how or when he discovered" it). Even if we were to construe "recently" as meaning within one year, or if Appellant had explicitly pled a date within one year, that alone would not render his claim timely. Appellant failed to plead how he discovered the new information regarding Knight. Further, he failed to include any facts from which the PCRA court could conclude that he had acted diligently in discovering this information. For these reasons, Appellant's Brady claim failed to satisfy the governmental-interference or newly-discovered facts exceptions to the PCRA's time-bar.Order affirmed.
Appellant further argues that the PCRA court improperly denied him leave to amend his petition to "properly plead the date of discovery" of the Brady evidence. Appellant's Brief at 26-27 (quoting Response, 12/20/22, at 3). Our review discloses Appellant failed to preserve this claim in his Pa.R.A.P. 1925 concise statement. Rule 1925(b) provides that the concise statement "shall concisely identify each error that the appellant intends to assert with sufficient detail to identify the issue to be raised for the judge." Pa.R.A.P. 1925(b)(ii). "Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived." Pa.R.A.P. 1925(b)(vii). Appellant's Pa.R.A.P. 1925 statement does not challenge the PCRA court's denial of leave to amend, and the PCRA court did not address this issue in its Rule 907 notice or its Pa.R.A.P. 1925(a) opinion. See PCRA Court Statement in Lieu of Opinion, 9/19/23. Accordingly, this issue is waived. Pa.R.A.P. 1925(b)(ii), (vii). Even if it were not waived, we would conclude the issue lacks merit. We review a PCRA court's denial of leave to amend a PCRA petition for an abuse of discretion. See Commonwealth v. Keaton, 45 A.3d 1050, 1060 n.3 (Pa. 2012). We cannot conclude that the PCRA court abused its discretion in denying leave to amend here. Appellant attributes the imprecise pleading of his Brady claim to his haste in getting his petition filed but fails to explain why he did not seek leave to amend for more than a year thereafter. See Appellant's Brief at 28. Additionally, his request for leave to amend failed to demonstrate that the proposed amendment would cure the underlying defect. He did not set forth the date he proposed to include, state how he discovered the new information, or offer any facts showing he had acted diligently. Response, 12/20/22, at 3. Even on appeal, Appellant still fails to identify when or how he discovered the information about Knight. See generally Appellant's Brief.
Judgment Entered.