Commonwealth v. Hill , 202 A.3d 792 ( 2019 )

J-S78034-18
2019 Pa. Super. 12
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAWN HILL :
:
Appellant : No. 712 EDA 2018
Appeal from the PCRA Order January 25, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009017-2012
BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.
OPINION BY STEVENS, P.J.E.: FILED JANUARY 11, 2019
Appellant, Shawn Hill, appeals pro se from the order entered in the Court
of Common Pleas of Philadelphia County dismissing his second petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. 9541-9546,
as untimely filed. We affirm.
In our review of Appellant’s first PCRA appeal, we set forth the following
pertinent facts and procedural history.1
In April 2014, following a bench trial, Appellant was convicted of
murder in the first degree, two counts of attempted murder,
conspiracy, two counts of aggravated assault, two counts of
Possession of a Firearm by Prohibited Person, Firearms not to be
Carried Without a License, Carrying Firearms on a Public Street in
Philadelphia, three counts of Recklessly Endangering Another
____________________________________________
1 Of note, we include reference to the particular claims Appellant raised in his
direct appeal, first PCRA petition, and PCRA appeal, respectively, as they
provide insight into whether Appellant presently raises previously litigated
and/or waived issues.
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S78034-18
Person (“REAP”), and Possession of an Instrument of Crime
(“PIC”).
Appellant was subsequently sentenced to life imprisonment for
first-degree murder, followed by consecutive sentences of ten to
twenty years for each count of attempted murder. Appellant was
sentenced to ten to twenty years for conspiracy, four to eight
years for Possession of Firearm by a Prohibited Person, three to
six years for Firearms Not to be Carried Without a License, and six
to twelve months for REAP to run concurrently with his sentence
for attempted murder.
Appellant timely appealed the judgment of sentence. He
challenged the sufficiency and the weight of the evidence and
asserted that the Commonwealth violated Brady v. Maryland,
373 U.S. 83 (1963). Appellant contended that the Commonwealth
violated Brady by suppressing bullet fragments removed from the
victim's body. See Appellant's 1925(b) Statement, 5/28/14. This
Court affirmed the judgment of sentence on direct appeal.
Regarding his Brady claim, this Court concluded that Appellant
failed to prove that the Commonwealth suppressed evidence, or
that the purported missing evidence was prejudicial. See
Commonwealth v. Hill, 122 A.3d 1133 (Pa. Super. 2015)
(unpublished memorandum), appeal denied, 128 A.3d 1205
(2015).
On January 5, 2016, Appellant timely filed [his first] PCRA petition,
and counsel was appointed. In his petition, Appellant claimed to
have new evidence in support of his previously raised Brady
claim, specifically, a statement from Albert Einstein Medical Center
(“AEMC”), describing the hospital's policy of submitting all
recovered projectiles to the Philadelphia Police Department.
In July 2016, counsel submitted a no-merit letter pursuant to
Commonwealth v. Turner, 544 A.2d 927 (1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc). In September 2016, the PCRA court issued a Pa.R.Crim.P.
907 notice of its intent to dismiss Appellant's petition without a
hearing. On September 29, 2016, Appellant responded to the
court's Rule 907 notice, raising claims of ineffective assistance of
PCRA counsel. See Appellant's Response to 907 Notice at 2–8.
On the same day Appellant's 907 response was received, the court
issued an opinion and order, dismissing Appellant's petition and
granting appointed counsel's petition to withdraw.
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Appellant then filed [a] timely [PCRA] appeal. The PCRA court did
not direct Appellant's compliance with Pa.R.A.P. 1925(b).
Appellant timely filed a brief with this Court. In June 2017,
Appellant filed a Request for Permission to File Supplemental
Arguments Based on New Case Law. In July 2017, this Court
granted Appellant leave to file a supplemental brief.
Preliminarily, [this Court addressed] the issues Appellant
purport[ed] to raise in his supplemental brief. Appellant's
supplemental brief raise[d] the following claims:
I. Whether PCRA counsel was ineffective for unreasonably
narrowing its investigation to the Commonwealth's illegal
suppression of vital ballistic evidence without investigation
of lead detective (George Pirrone's) illegal withholding of
evidence from the Commonwealth?
II. Whether trial, appellate and PCRA counsel[']s performances
deprived appellant of his right to meaningful review where
counsel allowed the Commonwealth to fraudulently
misrepresent a material fact regarding the Commonwealth's
possession of Sakima Santos and Chasity Cannon's medical
records prior to trial?
III. Whether PCRA counsel was deficient in his performance
where he failed to ascertain evidence of detectives (James
Pitts) conviction in a civil judgment/verdict, and (Ronald
Dove's) guilty plea in a murder cover-up, both of which are
crucial impeachable evidence surrounding Marcella Ingrum
and Rory Hill's illegal arrests, extensive detention, and
illegally coerced inculpatory [sic] statements used by the
[c]ourt as definitive proof of [A]ppellant's guilty [sic]?
Appellant's Supplemental Brief at v.
[With respect to such supplemental claims, we determined
Appellant did not preserve them] in his original brief to this Court.
Further, this Court did not grant Appellant leave to raise new
issues in his supplemental brief. Order, 7/7/17. As such, these
issues [were] not properly before this Court, [we concluded], and
we decline[d] to review them.
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Turning to those issues properly preserved, Appellant raise[d] the
following issues for our review:
I. Whether the PCRA [c]ourt's final conclusion was deficient
where it inexplicably quoted nearly verbatim its 1925(a)
opinion issued on direct appeal without establishing
independent evidentiary support for its denial of relief based
on newly-discovered evidence?
II. Whether the PCRA [c]ourt's adverse conclusion on its on
[sic] court ordered DNA and fingerprint analysis – of which
was stipulated as an undisputed fact—survives a question of
law where an interjection of personal scientific theories
post-trial circumvented the stipulation and diminished the
materiality of [Appellant's] Brady claim?
III. Whether the PCRA [c]ourt's conclusion on [Appellant's]
Brady claim—now supported by newly discovered
evidence—survives a question of law where the recent
Dennis[4] decision qualifies the final conclusion reached in
this case as being contrary to, and an unreasonable
application of established Federal and State precedent
governing the constitutionality of illegal suppression of
exculpatory evidence, versus a determination centered
around a sufficiency of evidence evaluation?
Appellant's Brief at vii.
Commonwealth v. Hill, No. 3534 EDA 2016, 2017 WL 5046335, at *1–3
(Pa. Super. filed Nov. 3, 2017).
This Court rejected Appellant’s preserved claims purporting to identify
after-discovered evidence substantiating his Brady claim, as the evidence was
neither exculpatory nor materially different from the Brady claim rejected in
his direct appeal. Hill, supra at *3-4. Consequently, we affirmed the order
denying Appellant PCRA relief.
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Less than 30 days later, on November 30, 2017, Appellant filed pro se
the present PCRA petition, his second, asserting the existence of newly-
discovered facts of police corruption in highly publicized, unrelated legal
matters that would likely result in a different verdict if brought to light in his
case. Appellant’s Second PCRA Petition, filed 11/30/17. Specifically,
Appellant centered his claim on both a 2016 civil judgment entered against
Philadelphia Police Detectives George Pirrone and James Pitts for
manufacturing evidence against a criminal defendant and an April 2017 guilty
plea entered by Detective Ronald Dove for attempting to cover up a 2011
murder committed by his longtime love interest.
A presumption arises from such recent revelations, Appellant maintains
in his petition, that the detectives, who investigated the murder and
attempted murders with which Appellant was eventually charged, employed
similar coercive and deceptive practices in handling ballistics evidence and
obtaining statements from Appellant’s mother and sister implicating him as
the shooter:
This PCRA action revolves around the convictions of Philadelphia
Police Detectives for illegally withholding material evidence from
the Philadelphia District Attorney’s Office, lying to the D.A. Office
and other authorities, maliciously prosecuting innocent persons,
and illegally arresting innocent persons. The evidence is
presumptive to petitioner’s contention that the same illegal acts
by these detectives were committed in the present case.
…
The new evidence submitted in [Appellant’s] 2nd PCRA petition as
Exhibits C and D are “confirmed convictions of key detectives who
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played a vital role in the now questionable admissibility of
statements made by [Appellant’s] mother and sister under
questionable coercive conditions – statements [the PCRA court]
repeatedly rely on to deny [Appellant] relief. In addition, the
recent confirmation at Exhibit-C attached to [Appellant’s] 2nd
petition lends relevance to [Appellant’s] new clams of illegal
suppression of material evidence by Lead Detective George
Pirrone; Detective James Pitts is a coconspirator/codefendant of
Pirrone in a similar-type-case with similar-type-issues. See 2nd
PCRA Petition at Exhibit-A1. These convictions were discovered
on October 31, 2017, and November 5, 2017, via newspaper
articles.
Appellant’s Second PCRA Petition, at 3.2
On December 18, 2017, the PCRA court issued its notice to dismiss
pursuant to Pa.R.Crim.P. 907, after finding Appellant’s petition untimely and,
in the alternative, meritless. Appellant filed a response arguing that his
facially untimely second petition qualified under Section 9545(b)(1)(ii)’s
newly-discovered facts exception3 to the PCRA’s jurisdictional requirement
____________________________________________
2 Appellant’s second petition offers in support of his claims exhibits consisting
of, inter alia, newspaper articles and court decisions pertaining to other legal
matters filed against the detectives in their professional capacities. They
include: 4/21/16 article on civil judgments against George Pirrone and James
Pitts for manufacturing evidence against a homicide defendant; 11/5/13
article regarding allegations of aggressive interrogation tactics by Detective
Pitts; 11/5/17 article on settlement of malicious prosecution suit filed against
City of Philadelphia by wrongfully convicted man who gave false confession
while subject to Pitts’ coercive interrogation; 1/10/13 article on Detective
Dove’s suspension and pending dismissal from the police force for improper
investigatory conduct related to three murder cases; 1/23/15 article on
criminal charges filed against Dove for his attempted cover-up of an alleged
murder committed by his paramour; and 4/26/17 article on Dove’s guilty plea
to six counts of conspiracy and evidence tampering related to the attempted
cover-up.
3 See infra.
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that a petition be filed within one year of the date on which judgment of
sentence becomes final.
Moreover, to the extent the PCRA court concluded Appellant failed to
meet the PCRA’s requirement that a petitioner file a claimed exception within
60 days of the date the claim could have first been presented, see Section
9545(b)(2), Appellant responded he met the 60-day rule by filing his second
petition 27 days after the dismissal of his first petition. See Appellant’s
Response to Rule 907 Notice (citing to Commonwealth v. Lark, 746 A.2d
585, 588 (2000) (holding subsequent PCRA petition may not be filed until
resolution of review of present petition; if subsequent petition would be
patently untimely by such time, petitioner must plead timeliness exception
and file within 60 days of date previous petition was finally resolved)). The
PCRA court nevertheless dismissed Appellant’s second petition as untimely.
This timely appeal followed.
Appellant presents for our consideration numerous questions asking
whether the PCRA court erroneously found a lack of Section 9545(b)(2) due
diligence on his part, whether prior counsel ineffectively represented his
various interests during trial and direct appeal, and whether PCRA counsel
ineffectively failed to assail his judgment of sentence based on news reports
and civil judgments concerning the homicide detectives’ unlawful investigative
practices. See Appellant’s pro se brief at viii, 24-25.
We review an order denying collateral relief under the PCRA to
determine whether evidence of record supports the findings of the PCRA court
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and whether its legal conclusions are free from error. Commonwealth v.
Mitchell, 105 A.3d 1257, 1265 (Pa. 2014). “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.” Id. (quoting Commonwealth v. Roney, 79 A.3d 595, 603 (Pa.
2013)).
In this case, the PCRA court dismissed Appellant's petition without a
hearing. There is no absolute right to an evidentiary hearing. 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.” Id.
As a prefatory matter, we address the jurisdictional question of whether
the news articles and civil judgment Appellant presents as “newly-discovered
facts” gaining him an exception to what would otherwise be a jurisdictional
bar to his untimely second petition are, in fact, newly-discovered as that term
is properly understood. “The PCRA's time restrictions are jurisdictional in
nature. Thus, [i]f a PCRA petition is untimely, neither this Court nor the
[PCRA] court has jurisdiction over the petition. Without jurisdiction, we simply
do not have the legal authority to address the substantive claims.”
Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006) (first alteration
in original) (internal citations and quotation marks omitted).
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All PCRA petitions, “including a second or subsequent petition, shall be
filed within one year of the date the judgment becomes final.” 42 Pa.C.S.A. §
9545(b)(1). The one-year time limitation, however, can be overcome if a
petitioner (1) alleges and proves one of the three exceptions set forth in
Section 9545(b)(1)(i)-(iii)4 of the PCRA, and (2) files a petition raising this
exception within sixty days of the date the claim could have been presented.
42 Pa.C.S.A. § 9545(b)(2).
This Court has explained that Section 9545(b)(1)(ii), providing an
exception for newly-discovered facts,
“has two components that must be alleged and proved. Namely,
the PCRA petitioner must establish that: 1) the facts upon which
the claim is predicated were unknown to him and 2) could not
have been ascertained by the exercise of due diligence. If the
petitioner alleges and proves these two components, then the
PCRA court has jurisdiction over the claim under this subsection.”
____________________________________________
4 The exceptions to the timeliness requirement are:
(i) the failure to raise the claim previously was the result of
interference of 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), (ii), and (iii).
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Commonwealth v. Brown, 111 A.3d 171, 176-177 (Pa. Super. 2015)
(quoting Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007)
(emphasis in original)).
Furthermore, “[our courts] have previously rejected attempts to
circumvent the timeliness requirements of the PCRA by asserting prior
counsel's ineffectiveness for failing timely to raise a claim.” Commonwealth
v. Edmiston, 65 A.3d 339, 349 (Pa. 2013); see also Gamboa-Taylor, 754
A.2d 780, 785 (Pa. 2000) (“Fact” that current counsel discovered prior PCRA
counsel had failed to develop issue of trial counsel's ineffectiveness was not
newly-discovered facts qualifying for exception to PCRA time limitations);
Commonwealth v. Pursell, 749 A.2d 911, 915 (Pa. 2000) (holding that
claims of PCRA counsel's ineffectiveness do not escape PCRA one-year time
limitation merely because they are presented in terms of current counsel's
discovery of “fact” that previous attorney was ineffective).
Our review of the record reveals the newspaper articles and court cases
upon which Appellant now relies were matters of public knowledge and
concern dating back to January of 2013, when Detective Dove’s suspension
and pending dismissal for attempting to cover-up a murder committed by his
girlfriend made front-page news. By January of 2015, Philadelphia papers
reported that formal criminal charges had been filed against Detective Dove.
These stories broke more than one year before Appellant filed his first
PCRA petition in January of 2016. With Appellant’s first PCRA challenge still
in its early stages in April of 2016, newspapers reported that a highly
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publicized civil suit against Detectives Pirrone and Pitts had gone to the jury,
which found them civilly liable for manufacturing evidence to support the
charging, arrest, and prosecution of the civil plaintiff in his prior criminal
matter.5
At the time Appellant filed his first PCRA petition, he demonstrated his
awareness of the longstanding reports and court cases by making the very
same allegations of investigatory corruption against Detectives Pirrone, Pitts,
and Dove that he makes now in his second PCRA petition. For example, just
two weeks after filing his first PCRA petition, Appellant filed a pro se motion
for transcripts and additional discovery asserting his “mother [Marcella
Ingrum] was forced to identify him as a shooter when interrogated by
Detective [James Pitts] who is well known throughout the criminal justice
system for being overly aggressive when questioning witnesses and known for
forcing the accused to admit to crimes they did not commit.” Appellant’s
____________________________________________
5 On appeal, the Commonwealth Court of Pennsylvania reversed the order of
the Court of Common Pleas of Philadelphia County denying the detectives’
motion for judgment notwithstanding the jury’s verdict and remanded the
matter with instructions that the trial court enter judgment in favor of the
detectives/appellants. See Alleyne v. Pirrone, 180 A.3d 524 (Pa.Cmwlth.
2018). Specifically, the three-judge panel unanimously determined that civil
liability could not lie on claims of malicious prosecution and false arrest where
probable cause existed to support both the filing of criminal charges against
criminal defendant Alleyne and his arrest in the underlying criminal case.
Nevertheless, the Commonwealth Court reached this determination despite
acknowledging “serious holes and inconsistencies in the Police Department’s
investigation. While the improprieties by Appellants significantly hindered the
criminal case against Alleyne, they did not rise to the level of preventing any
reasonable person from believing Alleyne had committed a crime.” Id. at 544.
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Motion for Transcripts and Additional Discovery, 1/19/16, at 2. Also alleged
in the same filing was “[o]n July 5, 2011, [Appellant’s] sister [Rory Hill] also
was forced to identify [Appellant] as the shooter when questioned by Detective
[Ronald Dove] who himself is under indictment for illegally participating in the
cover-up of a murder.” Id.
On June 6, 2016, Appellant filed additional arguments in support of his
petition for post-conviction relief, wherein he asserted ineffective assistance
of prior counsel for allowing the Commonwealth to admit his mother’s and
sister’s incriminating statements “given to two detectives who at the time
[were] under investigation [either] for illegal tactics during investigations [or
for] covering up murders?” Appellant’s PCRA filing, 6/6/16, at 3, 4.
PCRA counsel acknowledged Appellant’s claims in his Turner/Finley
letter seeking permission to withdraw from representation:
[Appellant’s] seventh claim accuses prior counsel of failing to
attack the reliability of the contents of the statements given to
police by his mother and sister by alleging that the police who took
those statements have been accused of using ‘illegal tactics during
investigations and covering up murders.’ Present counsel’s review
of this issue failed to uncover any evidence establishing that the
detectives who interviewed [Appellant’s] mother and sister
fabricated the contents of their statements or covered up evidence
in the instant matter and [Appellant] has failed to present any. . .
. Moreover, a review of the record herein shows that both
[Appellant’s] mother and sister testified that the statements were
theirs albeit that they were not responsible for some of the
contents of those statements. In conclusion, a meritorious claim
cannot be raised with respect to this issue.
PCRA Counsel’s Turner/Finley Letter of No Merit, 7/5/16, at 14.
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Following the PCRA court’s issuance of its Rule 907 Notice to Dismiss
Appellant’s first PCRA petition without a hearing, Appellant responded by
alleging:
[PCRA] counsel has also missed a significant opportunity to
investigate and present an additional newly-discovered claim
supporting Petitioner’s Brady issue, via malicious misconduct by
the lead detective in this case [George Pirrone] and his assisting
detective [James Pitts]. . . . This federal decision handed down in
April 2016, two months before PCRA counsel requested
withdrawal, is significant and relevant evidence of Detectives
Pirrone and Pitts[’] illegal activities as argued in Appellant’s PCRA
Petition.
…
Pirrone’s illegal activities are presented within [Appellant’s] Brady
claim, which accuses Pirrone of constructive possession of the
bullets removed from Santos and Cannon via hospital protocol
(PCRA Petition at Exhibit-A), and documented proof that ‘two .380
shell casings were also illegally suppressed by Pirrone.’
…
[Appellant’s] case is indistinguishable from the civil action ruled
against Pirrone and Pitts – both detectives were found liable for
malicious prosecution and false arrest when they ‘purposefully
downplayed or overlooked (suppressed) Internal Affairs files
detailing the victim’s [a fellow officer of the Philadelphia Police
Department] previous stalking and harassing of the accused,
because those files could have suggested their colleague was at
fault for the accident.’
Appellant’s Response to 907 Notice to Dismiss, filed 9/29/16, at 22-23.
Appellant, therefore, asked the PCRA court to appoint new counsel who could
file an amended petition raising these additional claims. The court, however,
dismissed his petition and granted counsel’s motion to withdraw.
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In Appellant’s pro se appeal from the order denying his first PCRA
petition, he filed a “Brief for Appellant” raising three issues. Significantly,
none of the briefed issues asserted ineffective assistance of PCRA and prior
counsel for failing to contend the detectives’ unlawful investigative methods
necessarily undermined the reliability of ballistics and testimonial evidence
against Appellant.
Subsequently, however, Appellant filed a “Request for Permission to File
Supplemental Arguments Based on New Case Law[,]” which this Court
granted. Commonwealth v. Hill, 3534 EDA 2016 at *2 (Pa.Super. Nov. 3,
2017). Appellant submitted a supplemental brief raising three additional
issues asserting PCRA counsel’s ineffectiveness both for failing to investigate
Detective Pirrone’s alleged withholding of ballistics evidence in the present
case and for failing to ascertain Pirrone and Pitts’ adverse civil judgment and
Dove’s guilty plea and use them to impeach the reliability of his mother’s and
sister’s incriminating statements.
This Court, however, declined to review such claims, as Appellant
neither sought nor received permission to include them in his supplemental
brief. Therefore, we found the issues waived. Id.
Based on this record, we conclude the newspaper articles on Detective
Dove’s suspension and pending dismissal from the force and Detectives
Pirrone’s and Pitts’ adverse civil judgment that underlie Appellant’s present
claims of PCRA counsel’s ineffectiveness do not constitute “newly-discovered
facts” that would qualify Appellant’s pro se second petition for an exception to
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the PCRA’s jurisdictional time-bar. Appellant had discovered such “facts”
before the filing and during the pendency of his first PCRA petition, and he
presented them to the PCRA court in support of his first petition, albeit to no
avail.
Critically, moreover, Appellant had the opportunity in his first PCRA
appeal to present the alleged facts within an ineffective assistance of PCRA
counsel claim that he had preserved by raising it in his pro se response to the
PCRA court’s Rule 907 notice. See Commonwealth v. Smith, 121 A.3d
1049, 1056 (Pa.Super. 2015) (recognizing petitioner preserves right to raise
claim of ineffective assistance of PCRA counsel in appeal to Superior Court by
first raising such claim in response to PCRA court’s Rule 907 notice).
Inexplicably, however, he failed to reassert the claim among the issues he
properly briefed to this Court, such that we found it waived. Id. We cannot
conclude, therefore, that the same facts now incorporated in Appellant’s
second PCRA petition constitute “newly-discovered facts” qualifying him for an
exception to the PCRA time-bar.6
Finally, to the extent Appellant’s many ineffectiveness claims may
otherwise be read to assert that the ineffective assistance of prior counsel,
alone, may save his otherwise untimely petition for review, such an argument
is at odds with settled precedent. See Gamboa-Taylor, supra (holding
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6As Appellant has not satisfied his burden under Section 9545(b)(1)(ii), we
do not address whether the PCRA court erred in dismissing his petition under
Section 9545(b)(2).
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“conclusion that previous counsel was ineffective is not the type of [newly-
discovered fact] encompassed by the exception [at Section 9545(b)(1)(ii)”).
Accordingly, we discern no error with the PCRA court’s conclusion that it was
without jurisdiction to entertain Appellant’s facially untimely second PCRA
petition, although we rely upon different grounds in affirming its decision.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/11/19
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