Opinion
612 EDA 2021 J-S33029-21
12-10-2021
COMMONWEALTH OF PENNSYLVANIA v. RICHARD BROWN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered March 5, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0808071-2004
BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM
NICHOLS, J.
Appellant Richard Brown appeals from the order denying his first Post Conviction Relief Act (PCRA) petition without a hearing. Appellant argues that he is entitled to withdraw his guilty plea based on after-discovered evidence. We affirm on the basis of the PCRA court's opinion.
We briefly summarize the relevant facts and procedural history of this case. On October 23, 2003, Anthony Harris (the victim) was in his car when he was approached by Appellant's co-defendant Brian Prout. PCRA Ct. Op., 6/22/21, at 3. Prout pointed an AK-47 style rifle at the victim. Id. The victim attempted to flee on foot, but Prout shot the victim in the leg. Id. Prout, Vincent Smithwick, and another individual loaded Harris into a car and drove away from the area. Id. During the drive, the three men asked the victim 1 for money. Id. The three men took approximately $1,000, a watch, and a necklace from the victim. Id. The three men drove the victim to an area near the Schuylkill River where they met Appellant and two other men. Id.
Appellant told Smithwick "to put him down" or "put him to sleep," referring to the victim. Id. Smithwick got back into the car with the victim and, with several of the other men, drove to the vicinity of 1300 Schuylkill Avenue in Philadelphia where Smithwick shot victim in the head. Id. at 3-4. A witness saw four men dragging a body towards the Schuylkill River and called the police. Id. at 4. The Philadelphia Police Marine Unit recovered the victim's body from the Schuylkill River. Id.
The police later executed a search warrant at the Lincoln Greene Apartments, where police found co-defendant Prout and another individual. Id. During the search of the apartment, the police recovered Appellant's identification card and two firearms. Id. A fired cartridge casing that was recovered from 1300 Schuylkill Avenue was later matched to one of the firearms seized during the search of the apartment. Id.
A jury found Appellant guilty of first-degree murder, robbery, kidnapping, conspiracy, and carrying a firearm without a license. Id. at 1. The Honorable Renee Cardwell Hughes sentenced Appellant to a term of life imprisonment. Id. This Court affirmed Appellant's judgment of sentence, and our Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Brown, 2738 EDA 2005 (Pa. Super. filed Apr. 29, 2009) (unpublished mem.), appeal denied, 981 A.2d 217 (Pa. 2009). 2
Appellant subsequently filed a timely PCRA petition alleging ineffective assistance of trial counsel. Id. The Honorable Theresa Sarmina denied Appellant's petition. On August 12, 2016, this Court reversed Judge Sarmina's order and granted Appellant a new trial. Commonwealth v. Brown, 145 A.3d 196 (Pa. Super. 2016).
On June 14, 2019, Appellant entered a negotiated guilty plea to third-degree murder, robbery, kidnapping, and possession of an instrument of crime. PCRA Ct. Op. at 1-2. Pursuant to the negotiation, the Honorable Glenn B. Bronson (PCRA court) imposed an aggregate sentence of ten to twenty years' incarceration followed by twenty-five years' probation. Id. at 2.
18 Pa.C.S. §§ 2502(c), 3701(a)(1)(i), 2901(b), and 907(a), respectively.
Appellant filed a counseled, timely first PCRA petition on June 10, 2020, raising a claim of after-discovered evidence. In his petition, Appellant stated that the affidavit of probable cause supporting the search warrant for the Lincoln Green Apartments was based on Juan Henriquez's identification of Appellant from a photo array. PCRA Pet., 6/10/20, at 2-3. According to 3
A PCRA petition filed after a defendant has been granted a new trial is considered a first PCRA petition for timeliness purposes. See, e.g., Commonwealth v. Turner, 73 A.3d 1283, 1285 (Pa. Super. 2013) (stating when a PCRA petitioner is granted relief, a subsequent petition will be considered a first petition for timeliness purposes).
At the time the police interviewed Juan Henriquez in 2003, he was a minor. Am. PCRA Pet., 12/17/20, at 2. Appellant referred to Henriquez by his initials in his PCRA pleadings and in his appellate brief.
Appellant, the police questioned Henriquez in connection with a different homicide on April 23, 2003. Id. Appellant asserted that, following his guilty plea, he learned that the police fabricated and backdated that photo array and the witness's identification of Appellant because the photograph of him used in the photo array was not taken following a 1999 arrest, but rather a photograph taken on May 21, 2003. Id. at 6-7. Appellant further claimed that the Pennsylvania State Police do not have any record of Appellant being arrested in 1999. Id. at 6-7. Appellant contended that this new evidence established that the police obtained the search warrant using a falsified eyewitness identification of Appellant as a suspect in a separate murder investigation. Id. at 7-8. Appellant argued that if he had this information before he pleaded guilty, he instead would have filed a motion to suppress the evidence seized from the Lincoln Green Apartments pursuant to the search warrant. Id. at 8.
The Commonwealth filed a motion to dismiss Appellant's PCRA petition, arguing that Appellant failed to explain how he could not have discovered this information in the past fifteen years by exercising reasonable diligence. Commonwealth's Mot. to Dismiss, 11/19/20, at 8. The Commonwealth contended that the photo array at issue was known to Appellant because he litigated a motion to suppress in that other case involving Henriquez and the same photo array. Id. The Commonwealth further asserted that Appellant's criminal history report, attached as an exhibit to its motion, indicated that Appellant was arrested on November 11, 1999, and that the report referenced 4 the subject arrest photo. Id. at 9, 9 n.3; Ex. A. The Commonwealth lastly argued that Appellant could not establish that the suppression of the murder weapon would have changed the outcome of a new trial because eyewitness testimony from the first trial established that Appellant was the ringleader of the group that kidnapped and murdered the victim. Id. at 9-10.
Appellant filed an amended PCRA petition on December 17, 2020, which included an additional exhibit, but was otherwise identical to his June 10, 2020 petition.
On January 15, 2021, the PCRA court issued a Pa.R.Crim.P. 907 notice of intent to dismiss Appellant's petition without a hearing. Appellant did not file a response. The PCRA court dismissed Appellant's petition on March 5, 2021. Appellant timely appealed. Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.
Appellant raises the following issues for our review:
1. Did the PCRA court commit an abuse of discretion by ruling that Appellant failed to act with due diligence in bringing his claim?
2. Did the PCRA court commit an abuse of discretion by denying Appellant an evidentiary hearing and relief on his claim alleging that the proceedings would have been different had Appellant known at the time of his plea what he knows now?
3. Did the PCRA court commit an abuse of discretion by denying Appellant an evidentiary hearing because a material issue of fact exists as to whether the photo array in question was fabricated?
Appellant's Brief at 3 (formatting altered).
This Court has explained that 5
[O]ur standard of review from the denial of a PCRA petition is limited to examining whether the PCRA court's determination is supported by the evidence of record and whether it is free of legal error. The PCRA court's credibility determinations, when supported by the record, are binding on this Court; however, we apply a de novo standard of review to the PCRA court's legal conclusions.Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa. Super. 2019) (citations omitted and formatting altered).
Under the PCRA, a petitioner is eligible for relief if he can plead and prove by a preponderance of the evidence that his conviction resulted from "[t]he unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced." 42 Pa.C.S. § 9543(a)(2)(vi).
It is well settled that an after-discovered evidence claim requires a petitioner to establish that "(1) the evidence has been discovered after trial and it could not have been obtained at or prior to trial through reasonable diligence; (2) the evidence is not cumulative; (3) it is not being used solely to impeach credibility; and (4) it would likely compel a different verdict[]" if a 6 new trial were granted. Cox, 146 A.3d at 228 (citation and quotation marks omitted). "The test is conjunctive; the defendant 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." Commonwealth v. Padillas, 997 A.2d 356, 363 (Pa. Super. 2010) (citations omitted).
We note that in his brief, Appellant uses both the terms "newly discovered evidence" and "after-discovered evidence" to describe his claim for PCRA relief. A claim of newly discovered evidence is one of the exceptions to the PCRA's one year time-bar, see 42 Pa.C.S. § 9545(b)(1)(ii), while an after-discovered evidence claim is substantive claim for PCRA relief. See 42 Pa.C.S. § 9543(a)(2)(vi); see also Commonwealth v. Cox, 146 A.3d 221, 228-29 (Pa. 2016) (discussing confusion between the nomenclature and application of Sections 9545(b)(1)(ii) and 9543(a)(2)(vi)). Because Appellant's PCRA petition was timely filed and Appellant has presented a substantive claim for relief based on the photo array, which he claims to have discovered after pleading guilty, we refer to his claim as one involving after-discovered evidence.
In determining "whether the alleged after-discovered evidence is of such nature and character that it would likely compel a different verdict if a new trial is granted[, ] a court should consider the integrity of the alleged after-discovered evidence, the motive of those offering the evidence, and the overall strength of the evidence supporting the conviction." Id. at 365 (citations omitted).
Further, it is well settled that
[t]here is no absolute right to an evidentiary hearing on a PCRA petition, and if the PCRA court can determine from the record that no genuine issues of material fact exist, then a hearing is not necessary. To obtain reversal of a PCRA court's decision to dismiss a petition without a hearing, an appellant must show that he raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying a hearing.Commonwealth v. Maddrey, 205 A.3d 323, 328 (Pa. Super. 2019) (citations and quotation marks omitted), appeal denied, 218 A.3d 380 (Pa. 2019).
Following our review of the record, the parties' briefs, and the well-reasoned conclusions of the PCRA court, we affirm on the basis of the PCRA court's opinion. See PCRA Ct. Op. at 4-10. Specifically, we agree with the PCRA court's conclusion that the Appellant already knew about the subject 7 photo array prior to pleading guilty on June 14, 2019, because Appellant challenged Henriquez's identification using the same photo array at the 2007 suppression hearing in another one of Appellant's cases. See id. at 6-9; see also Cox, 146 A.3d at 228; Padillas, 997 A.2d at 363. We also agree with the PCRA court's conclusion that Appellant did not raise a genuine issue of material fact that would entitle him to relief if resolved in his favor because, even if the photo array was fabricated and backdated, Appellant would have known about these actions prior to pleading guilty on June 14, 2019. See PCRA Ct. Op. at 9-10. Therefore, the PCRA court did not err in denying Appellant's PCRA petition without an evidentiary hearing. See Maddrey, 205 A.3d at 328.
Order affirmed.
Judge Bowes joins the memorandum.
Judge McLaughlin concurs in the result.
Judgment Entered. 8