Com. v. Black, R. ( 2016 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 2224 EDA 2015
:
RICHARD BLACK :
Appeal from the Order, June 19, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0801921-2006
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND MUSMANNO, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 09, 2016
The Commonwealth of Pennsylvania (“Commonwealth”) appeals from
the order entered in the Court of Common Pleas of Philadelphia County that
granted the petition of Richard Black (“Black”) filed pursuant to the Post
Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 (“PCRA”) and ordered a
new trial.
The PCRA court set forth the following:
On January 7, 2011, [Black] entered into a
negotiated guilty plea to possession with intent to
manufacture or deliver (PWID) and persons not to
possess, use, manufacture, control, sell or transfer
firearms, and was sentenced to 2-5 years[’]
incarceration on each charge to run concurrently.
The plea was based upon evidence contained in the
PARS [arrest report], prepared by Philadelphia Police
Narcotics Field Unit Officer Brian Reynolds that, on
February 13, 2006, Philadelphia Police Officers Brian
Reynolds and Bogan received information from a
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confidential source that a black male named “Rich”
sold cocaine in the South Philadelphia area using his
cell phone [] to facilitate sales. The source also
stated that “Rich” drives a white Pontiac or a gold
Honda. During the evening hours of February 13,
2006, the source placed an order for cocaine with
“Rich” using the cell phone number and arranged to
meet at the Dunkin[’] Donuts at the corner of
16th Street and Washington Avenue in the city and
county of Philadelphia. The source was told that
“Rich” would be driving the white Pontiac. At
approximately 9:40 P.M., Officer Thurston observed
a Pontiac Grand Prix pull into the Dunkin[’] Donuts
parking lot. Officers Reynolds and Bogan observed a
male, later identified as [Black], exit the vehicle and
enter the Dunkin[’] Donuts. The PARS does not
indicate whether the confidential source identified
[Black] as “Rich.” Officers Reynolds, Brennan,
Sharkus and Bogan entered the Dunkin[’] Donuts
and approached [Black]. Officer Reynolds recovered
drugs, money and drug paraphernalia from one of
[Black’s] jacket pockets and a cell phone [] and
index cards from the other. [Black] was arrested
and transported for processing. Officer Reynolds
conducted a field test and determined that the drugs
recovered from [Black] were positive for cocaine and
cocaine base. Officer Reynolds then secured the
Grand Prix and obtained a search warrant. At
approximately 2:25 AM on February 14, 2006,
Officer Bogan executed the search warrant on the
vehicle. A bullet proof vest, firearm and ammunition
were recovered from the trunk. Officer Reynolds
was the only witness present at [Black]’s preliminary
hearing.
On September 9, 2010, a motion to suppress
and to identify the confidential informant was
litigated before the Honorable Linda Carpenter.
Officer Reynolds was the sole witness presented at
the hearing. Officer Reynolds testified that he and
Officer Bogan were with a confidential source and
had the source make a phone call to arrange delivery
of crack cocaine. The confidential source was not a
registered confidential informant and this was the
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first time Officer Reynolds had worked with him.
Officer Reynolds testified that, when the confidential
source made the call, through the phone, []
(Officer Reynolds) heard the male on the other end
of the call say that he would be arriving to the area
of Dunkin[’] Donuts on 1500 Washington Avenue in a
white Pontiac. Officers Reynolds and Bogan and
other un-named [sic] officers, along with the
confidential source proceeded to the designated
area. Officer Reynolds surveilled the areas
somewhere between 15 minutes and 2 hours. At
approximately 9:40 PM, Officer Reynolds observed
[Black] arrive in a white Pontiac Grand Prix and enter
the Dunkin[’] Donuts. Officer Reynolds testified that
he then entered the store with other officers and
approached [Black] as he stood at the counter.
Officer Reynolds conducted a pat down and
recovered illegal narcotics from [Black’s] right jacket
pocket. Also recovered from [Black’s] person
was [sic] new and unused pink packets, a used silver
razor, index cards, a cell phone and $1450. Based
upon that, Officer Reynolds obtained a search
warrant for the Pontiac. Recovered from the trunk
was [sic] a bullet proof vest, and a Glock
[.]40 caliber handgun with a laser mounted on it.
The weapon was loaded with nine live rounds in the
magazine. Officer Reynolds also testified that the
source was not a confidential informant, just a
person he had encountered in the 1700 block of
South Orianna Street. He did not have any contact
information for the source and was unable to retrieve
contact information because the file had been lost.
He also testified that he was the affiant on the
search warrant. Both motions were subsequently
denied. Thereafter, on January 7, 2011, [Black]
pleaded guilty to the charges and received the
negotiated sentence of 2-5 years[’] incarceration.
No direct appeal was taken.
In December, 2012, the Philadelphia District
Attorney’s Office advised the Philadelphia Police
Commissioner that it would no longer [] use the
testimony of certain officers from the Narcotics Field
Unit, including Officer Brian Reynolds, in further
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prosecutions because of credibility problems, and
began dismissing open cases involving those officers.
In early 2013, it was confirmed that the officers were
under investigation by the FBI and Police Internal
Affairs.[1] On February 19, 2013, [Black] filed a
pro se PCRA petition asserting that he was entitled to
relief because of the unavailability at the time of
exculpatory evidence that has subsequently become
available and would have changed the outcome of
the trial if it had been introduced. PCRA counsel was
appointed and, on May 15, 2014, counsel filed an
amended petition alleging newly discovered evidence
of corruption and misconduct in the prosecution of
criminal cases by Officer Reynolds and members of
the Narcotics Field Unit. This new evidence rendered
[Black’s] guilty plea involuntary. Office [sic]
Reynolds and five others were under federal
indictment for fabricating evidence, lying under oath
and other misconduct. After reviewing all the
evidence presented by the Commonwealth and PCRA
counsel and hearing argument at the January 9,
2015 listing, on the following court date, June 19,
2015, the Court granted [Black’s] petition for a new
trial. [The Commonwealth] then requested a status
listing to provide time to determine how they wished
to proceed and the case was listed for status on
August 7, 2015 without opposition. On July 6, 2015,
[the Commonwealth] filed a motion for
reconsideration of the Court’s determination that
[Black] was entitled to a new trial and requesting an
evidentiary hearing. The motion contended other
officers were involved in [Black’s] arrest and
highlighted (by bolding) the names of officers other
than Officer Reynolds contained in the PARS. [The
Commonwealth] did not request an expedited court
date or indicate witnesses who would be presented.
However, on July[] 16, 2015, [the Commonwealth]
filed the instant appeal effectively divesting the
Court of its jurisdiction to address the motion.
1
This court takes judicial notice of the fact that Officer Reynolds was
acquitted of corruption charges in the United States District Court for the
Eastern District of Pennsyvlania.
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PCRA court opinion, 10/13/15 at 1-4 (footnotes omitted).
The Commonwealth raises the following issue for this court’s review:
“Did the PCRA court err in granting [Black] a new trial on an untimely PCRA
petition without jurisdiction, where [Black’s] burden went unmet as the court
did not hold an evidentiary hearing?” (Commonwealth’s brief at 4.)
In PCRA appeals, our scope of review “is limited to the findings of the
PCRA court and the evidence on the record of the PCRA court’s hearing,
viewed in the light most favorable to the prevailing party.”
Commonwealth v. Sam, 952 A.2d 565, 573 (Pa. 2008) (internal quotation
omitted). Because most PCRA appeals involve questions of fact and law, we
employ a mixed standard of review. Commonwealth v. Pitts, 981 A.2d
875, 878 (Pa. 2009). We defer to the PCRA court’s factual findings and
credibility determinations supported by the record. Commonwealth v.
Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc). In contrast, we
review the PCRA court’s legal conclusions de novo. Id.“When reviewing the grant or denial of post-conviction relief, the
appellate court is limited to determining whether the lower court’s findings
are supported by the record and its order is otherwise free of legal error.
We grant great deference to findings of the PCRA court.” Commonwealth
v. Stark, 658 A.2d 816, 818 (Pa.Super. 1995) (citations omitted).
Pennsylvania law makes clear no court has
jurisdiction to hear an untimely PCRA petition.
Commonwealth v. Robinson, 575 Pa. 500, 508,
837 A.2d 1157, 1161 (2003). The most recent
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amendments to the PCRA, effective January 16,
1996, provide a PCRA petition, including a second or
subsequent petition, shall be filed within one year of
the date the underlying judgment becomes final.
42 Pa.C.S.A. § 9545(b)(1); Commonwealth v.
Bretz, 830 A.2d 1273, 1275 (Pa.Super. 2003);
Commonwealth v. Vega, 754 A.2d 714, 717
(Pa.Super. 2000). A judgment is deemed final “at
the conclusion of direct review, including
discretionary review in the Supreme Court of the
United States and the Supreme Court of
Pennsylvania, or at the expiration of time for seeking
the review.” 42 Pa.C.S.A. § 9545(b)(3).
Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super. 2010).
The three statutory exceptions to the timeliness
provisions in the PCRA allow for very limited
circumstances under which the late filing of a
petition will be excused. 42 Pa.C.S.A. § 9545(b)(1).
To invoke an exception, a petition must allege and
prove:
(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.
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42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). “As such, when a
PCRA petition is not filed within one year of the
expiration of direct review, or not eligible for one of
the three limited exceptions, or entitled to one of the
exceptions, but not filed within 60 days of the date
that the claim could have been first brought, the trial
court has no power to address the substantive merits
of a petitioner’s PCRA claims.” Commonwealth v.
Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783
(2000); 42 Pa.C.S.A. § 9545(b)(2).
Id. at 1079-1080.
Initially, the Commonwealth contends that the PCRA court erred when
it granted Black a new trial without holding a hearing on an untimely PCRA
petition where Black did not meet his burden of proving a time bar
exception.
As the Commonwealth points out, Black’s judgment of sentence
became final on February 7, 2011. Under Section 9545(b)(1) of the PCRA,
42 Pa.C.S.A. § 9545(b)(1), a petition must be filed within one year of the
date the judgment became final subject to certain exceptions. Black did not
file his petition until February 19, 2013, well beyond the one-year limit.
However, the PCRA court determined that Black’s untimeliness was excused
under the after-discovered evidence exception to the time bar. Under
Section 9545(b)(2) of the PCRA, 42 Pa.C.S.A. § 9545(b)(2), a petitioner has
60 days to file a petition from the date that the claim could have been
presented.
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In his amended petition which was filed on May 15, 2014, Black
asserts that while the Philadelphia County District Attorney’s Office notified
the City of Philadelphia Police Commissioner on December 3, 2012 that it
would not be using the testimony of Officer Reynolds any longer in the
prosecution of criminal cases based on its belief that his testimony was
incredible, this notification did not trigger the 60-day time limit because
Black could not have known about the notification even if he exercised due
diligence.
With respect to this issue, the PCRA court determined:
It is uncontroverted that [Black] could not have
ascertained the facts upon which his claim is based,
i.e., information about the corruption and
misconduct by the officer involved in the prosecution
of his case, through the exercise of due diligence.
[Black] plead [sic] guilty on January 7, 2011, well
before the time the District Attorney declined to use
the testimony of Officer Reynolds and other
Narcotics Field Unit officers and began dismissing
open cases involving the officers. The Court is also
satisfied that [Black] met the 60 day requirement
because his petition was filed during the time
information was still being gathered and the police
corruption matter was still evolving. Therefore,
[Black’s] petition met the after discovered evidence
exception to the PCRA time bar and the Court had
jurisdiction to address [Black’s] issues.
PCRA court opinion, 10/13/15 at 5-6.
This court agrees with the PCRA court that Black could not have known
about the situation involving Officer Reynolds at the time that he pled guilty
on January 7, 2011. Although the District Attorney sent the letter to the
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City of Philadelphia Police Commissioner on December 3, 2012, there is
nothing in the record that indicates that Black knew or could have known
about it at that time, even with the exercise of due diligence. The PCRA
court determined that Black complied with the 60-day requirement because
the petition was filed during the time that information with respect to the
alleged police corruption was still being gathered and the investigation was
evolving. This court determines that the PCRA court did not abuse its
discretion when it found that the petition complied with 42 Pa.C.S.A. §
9545(b)(2), assuming that the fact that Officer Reynolds was removed from
testifying in cases and was subsequently indicted constitutes after-
discovered evidence.
The Commonwealth next contends that Black failed to meet his burden
of proving the existence of after-discovered evidence that would entitle him
to a new trial. The Commonwealth argues that, at most, Black was entitled
to an evidentiary hearing.
To obtain relief based on after-discovered
evidence, [an] appellant must demonstrate that the
evidence: (1) could not have been obtained prior to
the conclusion of the trial by the exercise of
reasonable diligence; (2) is not merely corroborative
or cumulative; (3) will not be used solely to impeach
the credibility of a witness; and (4) would likely
result in a different verdict if a new trial were
granted.
Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008) (citations
omitted).
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“The test is conjunctive; the [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.” Commonwealth v. Padillas, 997
A.2d 356, 363 (Pa.Super. 2010) (citation omitted). When an appellate court
reviews the decision to grant or deny a new trial on the basis of
after-discovered evidence, the appellate court must determine whether the
PCRA court committed an abuse of discretion or error of law that controlled
the outcome of the case. Commonwealth v. Reese, 663 A.2d 206, 209
(Pa.Super. 1995).
For support, the Commonwealth relies on Commonwealth v. Castro,
93 A.3d 818 (Pa. 2014), where this court remanded for an evidentiary
hearing to determine if information contained in a newspaper article that the
arresting officer was under investigation for corruption and the falsification
of evidence in another case involving the same confidential informant
constituted after-discovered evidence. The Commonwealth appealed to the
Pennsylvania Supreme Court. Our supreme court reversed on the basis that
the motion did not address the potential evidence that Castro would use to
support his request for a new trial:
However, we hold a motion must, at the very
least, describe the evidence that will be presented at
the hearing. Simply relying on conclusory
accusations made by another, without more, is
insufficient to warrant a hearing. . . . The motion
says nothing about which, if any, of this potential
evidence appellee would rely on to support his
request for a new trial. Absent identification of the
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actual testimony, physical evidence, documentation
or other type of evidence to support the allegations
of Officer Cujdik’s wrongdoing, we cannot conclude
appellee had evidence to offer; to conclude otherwise
would be speculation.
Id. at 827.
The Commonwealth uses Castro to support its contention that, at the
very least, the matter should be remanded to the PCRA court for an
evidentiary hearing. The Commonwealth does not rely on Castro to argue
that Black is not entitled to any relief at all. The Commonwealth argues that
the PCRA court erred in awarding Black a new trial rather than conducting an
evidentiary hearing on the purported after-discovered evidence as this court
did in Castro before our supreme court reversed.
In his amended post-conviction petition with consolidated
memorandum of law, Black alleged:
10. Following [Black’s] guilty plea and sentencing
on January 7, 2011, Officer Reynolds came
under investigation concerning his
investigatory practices.
11. On December 3, 2012, the Philadelphia District
Attorney’s Office sent a letter to Police
Commissioner Charles Ramsey advising that it
would not be using the testimony of
Officer Reynolds in its prosecution of criminal
cases based upon its belief that his testimony
was incredible.
12. On March 2, 2013, the Honorable Diana Louis
Anhalt granted a new trial in the case of
Commonwealth v. Joseph Scott, CP-51-CR-
0000525-2012 based upon the District
Attorney’s letter to Police Commissioner
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Charles Ramsey. The defendant had entered a
plea of nolo contender [sic] to a drug offense
twelve day[s] prior to the District Attorney’s
letter. . . .
13. Numerous federal civil rights lawsuits have
been filed against Officer Reynolds and the
Philadelphia Police Department with regard to
Reynolds’ investigatory practices. . . .
14. On January 19, 2014, it was reported for the
first time in the Philadelphia Inquirer that a
federal grant [sic] jury had been convened to
determine whether federal charges were
warranted against Officer Reynolds and other
police officers. . . .
15. On January 19, 2014, it was also reported that
Officer Reynolds was removed from the
Narcotics Unit and given a low profile
departmental job. . . .
16. Since December 2012, numerous prosecutions
have been dismissed as a result of the
involvement of Officer Reynolds. . . .
17. Narcotics Officer Jeffrey Walker is cooperating
with federal authorities and is expected to
testify against Officer Reynolds. . . .
....
20. The information concerning Police Officer
Reynolds is not merely corroborative or
cumulative and will not be used solely to
impeach the credibility of a witness. The newly
discovered evidence in question attacks the
heart and soul of the Commonwealth’s case
against [Black].
21. Presentation of the newly-discovered evidence
would likely result in a different verdict if a
new trial were granted.
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22. In light of the allegations against
Officer Reynolds, his claim that there was a
confidential source is called into question.
23. In fact, at the motion to suppress,
Officer Reynolds could not recall any
information and did not have any paperwork
concerning the confidential source. . . .
24. Following the denial of [Black’s] motion to
suppress physical evidence, which may have
been based upon the false testimony of
Officer Reynolds, [Black] had no choice but to
enter a guilty plea.
25. To the extent that [Black] was forced to plead
guilty based upon the allegedly false testimony
presented at the hearing on the motion to
suppress, his guilty plea may not be
considered to be knowing, voluntary and
intelligent.
Amended Post Conviction Petition with Consolidated Memorandum of Law,
5/15/14 at 4-5 and 10-11, ¶¶ 10-17, 20-25 (citations omitted).
As required by Castro, Black asserts that he has clearly identified the
actual testimony, physical evidence, documentation, or other evidence that
would be produced at a hearing because there is a wealth of documentary
evidence with respect to the investigation of Officer Reynolds including
volumes and volumes of testimony from the grand jury proceedings and
federal court trial.
With respect to this issue, the PCRA court determined:
As indicated above, [Black] was sentenced on
January 7, 2011 well prior to the evidence of
Officer Reynolds’ participation in fabricating evidence
and committing misconduct in the prosecution of
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cases, the December 2012 letter indicating that the
District Attorney declined to use testimony from
Officer Reynolds because of credibility concerns, and
the ongoing investigations by the FBI and Internal
Affairs. This evidence was not cumulative or
corroborative of other evidence and would likely
result in a different verdict if a new trial were
granted. Additionally, had this information been
available at or prior to trial, it would likely have
changed the way trial counsel advised [Black] and
would have permitted trial counsel other avenues of
inquiry during the litigation of appellee’s motions.
[The Commonwealth] also complains that the
Court erred when it granted [Black’s] petition
without first conducting an evidentiary hearing.
There is no absolute right to an evidentiary hearing.
Where there is no genuine issue of material fact, no
evidentiary hearing is required. See
Commonwealth v. Springer, 961 A.2d 1262, 1264
(Pa.Super. 2008) (On appeal, we examine the issues
raised in light of the record “to determine whether
the PCRA court erred in concluding that there were
no genuine issues of material fact and in denying
relief without an evidentiary hearing.”). It should be
noted that [the Commonwealth] did not request an
evidentiary hearing prior to or at the June 19, 2015
listing where [Black’s] PCRA petition was granted.
(N.T. 06/19/15 pg. 4-5)[Footnote 5] [The
Commonwealth] made the first request for an
evidentiary hearing in its motion to reconsider filed
July 6, 2015. Moreover, while [the Commonwealth]
requested an evidentiary hearing in the motion, and
highlighted names of officers that appeared in the
PARS besides Officer Reynolds, no indication of who
would testify at the evidentiary hearing and/or what
the testimony would be was included. [The
Commonwealth] provided no evidence to refute the
information the Court had available to it.
Notwithstanding, appellant then filed the instant
appeal thereby transferring jurisdiction to the
Superior Court and precluding the Court’s ability to
rule on the motion to reconsider its decision.
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[Footnote 5] Because of the significant
number of cases under review, the
appellant and the Public Defender
engaged in a process whereby they
would evaluate cases and make
recommendations to the Court. In
[Black’s] case, [the Commonwealth]
argued against relief and the Defender
agreed. However, [Black] engaged
private counsel who argued for relief.
(N.T. 03/06/15 pg. 3-5) Despite the
difference of opinion between [the
Commonwealth] and private counsel, no
evidentiary hearing was requested.
PCRA court opinion, 10/13/15 at 6-7.
While Black could have identified the actual evidence he intends to
present with more specificity, he believes the evidence will indicate that
there was not a confidential informant who tipped off Officer Reynolds
concerning Black especially since Officer Reynolds could not recall any
information about the informant and did not have any paperwork concerning
the confidential informant at the motion to suppress. The trial court’s denial
of Black’s motion to suppress evidence could have been made in error based
upon the false testimony of Officer Reynolds. Had the trial court granted the
motion to suppress, Black may not have entered a guilty plea. If Black can
prove this theory, the after-discovered evidence would not just impeach the
credibility of Officer Reynolds but possibly could result in a different verdict if
a new trial were granted.
Given the record before this court, we believe the best course of action
is to remand to the PCRA court for an evidentiary hearing on this possible
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after-discovered evidence as in Castro. Although the PCRA court stated
that the Commonwealth only requested an evidentiary hearing in its motion
for reconsideration and then appealed to divest the PCRA court of
jurisdiction to rule on the motion for reconsideration, the Commonwealth
had no reason to request a hearing until Black prevailed before the PCRA
court. Further, the Commonwealth had to appeal in a timely manner and
could not wait for the PCRA court to rule on its motion before appealing.
Order vacated. This case is remanded to the PCRA court for an
evidentiary hearing on the proffered after-discovered evidence. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/2016
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