Com. v. Bagley, T. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TARIK BAGLEY :
:
Appellant : No. 1580 EDA 2022
Appeal from the PCRA Order Entered May 26, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000553-2011
BEFORE: OLSON, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY NICHOLS, J.: FILED OCTOBER 17, 2023
Appellant Tarik Bagley appeals from the order denying his second Post
Conviction Relief Act1 (PCRA) petition as untimely. Appellant argues that the
PCRA court erred in denying his petition without a hearing and claims that he
properly asserted the newly-discovered fact exception to the PCRA time bar
which merited discovery concerning the ongoing Internal Affairs investigation
of misconduct by Detectives Gaul and Verrecchio. We affirm.
The underlying facts of this case are well known to the parties. See
Commonwealth v. Bagley, 878 EDA 2013, 2014 WL 10965804 (Pa. Super.
filed April 30, 2014) (unpublished mem.). Briefly, Appellant was convicted of
first-degree murder after a shooting in 2010. On March 11, 2013, the trial
court imposed an aggregate sentence of life imprisonment without the
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1 42 Pa.C.S. §§ 9541-9546.
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possibility of parole. After this Court affirmed Appellant’s judgment of
sentence on April 30, 2014, our Supreme Court denied further review on
August 24, 2014. See id., appeal denied, Commonwealth v. Bagley, 99
A.3d 75 (Pa. 2014). Appellant did not file a petition for writ of certiorari with
the Supreme Court of the United States.
The PCRA court set forth the remaining procedural history as follows:
On August 5, 2015, [Appellant] filed a timely pro se [PCRA]
petition. On November 15, 2015, [Appellant], through retained
counsel, filed an amended PCRA petition. On January 22, 2016,
the Commonwealth filed a motion to dismiss. After [the PCRA
court] dismissed the petition, the Pennsylvania Superior Court
affirmed the dismissal on May 16, 2017. [Commonwealth v.
Bagley, 2419 EDA 2016, 2017 WL 2130305 (Pa. Super. filed May
16, 2017) (unpublished mem.).]
On August 27, 2021, [Appellant], through counsel, filed the
instant PCRA petition, his second, alleging a pattern of police
misconduct by Detectives Thomas Gaul and John Verrecchio. On
September 17, 2021, [Appellant] filed a discovery motion, and the
Commonwealth disclosed the District Attorney and homicide files.
On October 14, 2021, the Commonwealth disclosed to [Appellant]
that Detectives Thomas Gaul and John Verrecchio were currently
being investigated for alleged police misconduct. On November
3, 2021, [Appellant] filed a supplemental discovery motion and a
motion for leave to supplement his petition and discovery motion
after he reviewed the homicide and the District Attorney case files.
On April 14, 2022, after [Appellant] elected not to supplement this
petition or motion, [the PCRA court] held oral argument. On April
26, 2022, [the PCRA court] issued a notice of intent to dismiss
pursuant to Pa.R.Crim.P. 907.
PCRA Ct. Op., 5/26/22, at 1-2 (formatting altered).
The PCRA court entered an order denying Appellant’s PCRA petition on
May 26, 2022. Appellant filed a timely notice of appeal. Although the PCRA
court did not order Appellant to file a Pa.R.A.P. 1925(b) statement.
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On appeal, Appellant raises the following issues for our review:
1. Did the [PCRA] court err in not holding a PCRA evidentiary
hearing, where there [were] serious Brady2 violations and
[after3] discovered evidence claims in the court below?
2. Where police misconduct of two detectives was at the heart of
the Brady and [after] discovered evidence claims, did the
[PCRA] court err in not permitting discovery of those
detectives’ Internal Affairs investigation?
Appellant’s Brief at 2.4, 5
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2 Brady v. Maryland, 373 U.S. 83 (1963).
3 We note that although Appellant refers to “newly discovered evidence” in his
statement of questions, his sole claim is that he met the after-discovered
evidence test, providing him a basis for relief under Section 9543(a)(2) of the
PCRA. Therefore, for the purposes of clarity, we have modified Appellant’s
statement of questions accordingly.
4 Despite identifying only two questions for appellate review, the argument
section of Appellant’s brief is divided into at least three sections. See
Pa.R.A.P. 2119(a) (stating that “[t]he argument shall be divided into as many
parts as there are questions to be argued”). We do not condone Appellant’s
failure to comply with the Rules of Appellate Procedure, but because the
noncompliance does not impede our review, we decline to find waiver on this
basis. See, e.g., Commonwealth v. Levy, 83 A.3d 457, 461 n.2 (Pa. Super.
2013) (declining to find waiver where the appellant’s failure to comply with
the Rules of Appellate Procedure did not impede this Court’s review).
5 On March 31, 2023, Appellant also filed a motion for extension of time,
wherein Appellant requested an additional thirty days to file a reply brief. On
April 4, 2023, this Court entered an order granting Appellant an extension of
time to file a reply brief and directing that Appellant’s reply brief was to be
filed on or before April 28, 2023. Order, 4/4/23. Appellant filed his reply brief
fourteen days late on May 12, 2023. Appellant has provided no explanation
for why he filed his reply brief fourteen days after the deadline established by
this Court. Accordingly, we shall not consider his reply brief when reaching a
decision on this appeal. See Commonwealth v. Ibrahim, 127 A.3d 819,
825 n.3 (Pa. Super. 2015) (declining to consider the Commonwealth’s reply
(Footnote Continued Next Page)
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In his first claim, Appellant argues that the PCRA court erred in denying
his PCRA petition without a hearing because there was after-discovered
evidence concerning police misconduct. Id. at 13. In support, Appellant
contends that the Commonwealth disclosed that Detectives Gaul and
Verrecchio were under investigation by the Philadelphia Police Department’s
Internal Affairs for coercing statements from witnesses. Id. at 18. Appellant
further asserts “that there is sufficient smoke which reflects the type of fire
akin to that which has been raging under Detectives Gaul and Verrecchio.”
Id. Appellant then lists several cases from the Court of Common Pleas of
Philadelphia County and the United States District Court for the Eastern
District of Pennsylvania in which alleged misconduct on the part of Detectives
Gaul and Verrecchio took place. See id. at 18-30. Appellant concludes that
this Court should remand the matter for the PCRA court to conduct an
evidentiary hearing. Id. at 31.
In reviewing an order denying a PCRA petition, our standard of review
is well settled:
[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.
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brief that was filed seven days late without explanation aside from “boilerplate
allegations”).
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Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa. Super. 2019)
(citations omitted and formatting altered).
The timeliness of a PCRA petition is a threshold jurisdictional question.
See Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014); see
also Commonwealth v. Ballance, 203 A.3d 1027, 1031 (Pa. Super. 2019)
(stating that “no court has jurisdiction to hear an untimely PCRA petition”).
“A PCRA petition, including a second or subsequent one, must be filed within
one year of the date the petitioner’s judgment of sentence became final,
unless he pleads and proves one of the three exceptions outlined in 42 Pa.C.S.
§ 9545(b)(1).” Commonwealth v. Jones, 54 A.3d 14, 16 (Pa. 2012)
(citation and footnote omitted). A judgment of sentence becomes final at the
conclusion of direct review, or at the expiration of time for seeking such
review. See id. at 17.
Courts may consider a PCRA petition filed more than one year after a
judgment of sentence becomes final if the petitioner pleads and proves one of
the following three statutory exceptions:
(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. § 9545(b)(1)(i)-(iii). A petitioner asserting one of these exceptions
must file a petition within one year of the date the claim could have first been
presented. See 42 Pa.C.S. § 9545(b)(2).6 It is the petitioner’s “burden to
allege and prove that one of the timeliness exceptions applies.”
Commonwealth v. Albrecht, 994 A.2d 1091, 1094 (Pa. 2010) (citations
omitted and some formatting altered).
In the instant case, this Court affirmed Appellant’s judgment of sentence
on April 30, 2014. Our Supreme Court denied Appellant’s petition for
allowance of appeal on August 26, 2014, and appellant did not file a petition
for a writ of certiorari with the Supreme Court of the United States. See
Bagley, 99 A.3d at 75. Therefore, Appellant’s judgment of sentence became
final ninety days later on November 24, 2014. See U.S. Sup. Ct. Rule 13; 42
Pa.C.S. § 9545(b)(1). Appellant’s instant PCRA petition, filed on August 27,
2021, is therefore facially untimely. Accordingly, Appellant bears the burden
of establishing that one of the timeliness exceptions applies. Albrecht, 994
A.2d at 1094.
To establish the newly-discovered fact exception to the PCRA time bar,
a petitioner must demonstrate that he did not know the facts upon which he
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6 On October 24, 2018, the General Assembly amended Section 9545(b)(2)
and extended the time for filing a petition from sixty days to one year from
the date the claim could have been presented. See 2018 Pa.Legis.Serv.Act
2018-146 (S.B. 915), effective December 24, 2018. The amendment applies
only to claims arising one year before the effective date of this section,
December 24, 2017, or thereafter.
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based his petition and could not have learned those facts earlier by the
exercise of due diligence. Commonwealth v. Brown, 111 A.3d 171, 176
(Pa. Super. 2015) (citations omitted). Due diligence requires that the
petitioner take reasonable steps to protect his own interests. Id. A petitioner
must explain why he could not have learned these “new facts” earlier with the
exercise of due diligence. Id. The focus of this exception is on newly
discovered facts, not on a newly discovered or newly willing source for
previously known facts. See Commonwealth v. Lopez, 249 A.3d 993, 1000
(Pa. 2021). Further, the newly-discovered fact exception at Section
9545(b)(1)(ii) does not require any merits analysis of the underlying after-
discovered evidence claim. Commonwealth v. Small, 238 A.3d 1267, 1286
(citation omitted) (Pa. 2020).
Our Supreme Court has repeatedly stated that “the newly-discovered
facts exception to the time limitations of the PCRA, as set forth in [Section]
9545(b)(1)(ii), is distinct from the after-discovered evidence basis for relief
delineated in 42 Pa.C.S. § 9543(a)(2).” Commonwealth v. Burton, 158
A.3d 618, 629 (Pa. 2017). It is well settled that a Brady claim may fall within
the governmental interference and newly-discovered fact exceptions to the
PCRA time bar. Commonwealth v. Natividad, 200 A.3d 11, 28 (Pa.
2019). With respect to the newly-discovered fact exception at Section
9545(b)(1)(ii), the petitioner must establish that “the facts upon which the
Brady claim is predicated were not previously known to the petitioner and
could not have been ascertained through due diligence.” Id. However, the
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Section 9545(b)(1)(ii) newly discovered fact exception does not have the
same requirements as a Brady claim, as it “does not require any merits
analysis of the underlying claim. Rather, the exception merely requires that
the ‘facts’ upon which such a claim is predicated must not have been known
to appellant, nor could they have been ascertained by due diligence.” Id.Here, in its Rule 907 notice, the PCRA court explained:
While you can establish the newly-discovered fact exception with
the Commonwealth’s October 14, 2021, disclosure that Detectives
Verrecchio and Gaul are currently subject to an ongoing Internal
Affairs investigation, you have failed to raise any issue of material
fact. Therefore, no hearing is required.
PCRA Ct. Rule 907 Notice, 4/26/22, at 2.
In its opinion accompanying its order denying Appellant’s PCRA petition,
the PCRA court reiterated that Appellant “satisfied the newly-discovered fact
exception [based on] the Commonwealth’s October 14, 2021 disclosure of the
ongoing investigation of Detectives Gaul and Verrechio.” PCRA Ct. Op. at 6;
see also 42 Pa.C.S. § 9545(b)(1)(ii). While the PCRA court concluded that
Appellant satisfied his burden to establish an exception to the PCRA’s
jurisdictional time bar, it found that he was nonetheless not entitled to relief
on the merits of his after-discovered evidence claim, as contemplated by
Section 9543(a)(2) of the PCRA. See PCRA Ct. Op. at 9-10; 42 Pa.C.S. §
9543(a)(2).
Based on our review of the record, we find that the PCRA court erred
when it concluded that Appellant met the newly-discovered fact exception to
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the PCRA’s jurisdictional time bar. See Sandusky, 203 A.3d at 1043; 42
Pa.C.S. § 9545(b)(1)(ii). As noted previously, the newly-discovered fact
timeliness exception at Section 9545(b)(1)(ii) “is distinct from the after-
discovered evidence basis for relief delineated in 42 Pa.C.S. § 9543(a)(2).”
Burton, 158 A.3d at 629.
Here, Appellant did not engage in a newly-discovered fact analysis
under Section 9545(b)(1)(ii) in either his PCRA petition 7 or in his brief. See
PCRA Pet., 8/27/21, at 29 (unpaginated) (reflecting Appellant’s claim that he
is entitled to a new trial based on the three-part test for a substantive after-
discovered evidence claim under Section 9543(a)(2)(vi)); see also
Appellant’s Brief at 31 (arguing that he is entitled to a new trial based on
Section 9543(a)(2)(vi), but failing to address the jurisdictional requirements
for the timeliness exception at Section 9545(b)(1)(ii)). To the extent
Appellant claims that he is entitled to relief based on Section 9543(a)(2)(vi),
we note that Section 9543(a)(2)(vi) is not an exception to the PCRA time
bar. See Burton, 158 A.3d at 628 (explaining that a Section 9543(a)(2)(vi)
after-discovered evidence claim, raised in a timely PCRA petition, is distinct
from the newly-discovered fact exception to the PCRA’s time limitations under
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7 We note that after the Commonwealth disclosed the information concerning
police misconduct, Appellant requested additional time to file a supplemental
PCRA petition. Appellant’s Unopposed Motion for Extension of Time,
12/22/21. The PCRA court granted Appellant’s petition and directed that any
supplemental PCRA petitions be filed by January 28, 2022. PCRA Ct. Order,
12/28/21. However, the record reflects that Appellant never filed a
supplemental PCRA petition.
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Section 9545(b)(1)(ii)). Accordingly, because Appellant failed to plead and
prove an exception to the PCRA time bar, we conclude that the PCRA court did
not have jurisdiction to address Appellant’s substantive claims. See id. at 629;
see also Albrecht, 994 A.2d at 1094 (stating that it is the petitioner’s
“burden to allege and prove that one of the timeliness exceptions applies”);
Ballance, 203 A.3d at 1031 (stating that “no court has jurisdiction to hear an
untimely PCRA petition”). Therefore, although we agree with the PCRA court
that Appellant is not entitled to relief, we do so for different
reasons.8 Accordingly, we affirm.
Order affirmed.9 Application for relief denied. Jurisdiction relinquished.
Judge Olson concurs in the result.
Judge McLaughlin concurs in the result.
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8 It is well settled that this Court may affirm the order from which an appeal
was taken for any reason that is supported by the record. Commonwealth
v. Charleston, 94 A.3d 1012, 1028 (Pa. Super. 2014).
9 On March 31, 2023, Appellant filed an application for relief requesting that
we remand this matter for the PCRA court to address Appellant’s after-
discovered fact claim. On April 4, 2023, this Court filed an order deferring
Appellant’s application to the merits panel. In light of our disposition and
conclusion that Appellant’s underlying PCRA petition was untimely, the PCRA
court was without jurisdiction to address Appellant’s PCRA petition. See
Ballance, 203 A.3d at 1031 (stating “no court has jurisdiction to hear an
untimely PCRA petition”). Accordingly, we DENY Appellant’s application for
relief.
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Date: 10/17/2023
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