Com. v. Ortiz, R. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RENE ORTIZ :
:
Appellant : No. 3049 EDA 2019
Appeal from the PCRA Order Entered September 19, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0110564-1991
BEFORE: BOWES, J., LAZARUS, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED JUNE 16, 2021
Rene Ortiz appeals the order dismissing his Post Conviction Relief Act
(“PCRA”) petition for untimeliness. See 42 Pa.C.S.A. §§ 9541-9546. He argues
his petition was timely under the new facts exception to the PCRA’s time-bar.
We affirm.
Ortiz was found guilty of second-degree murder, robbery, and
conspiracy, and the trial court imposed the mandatory life sentence for
second-degree murder in 1992. He and his associates were selling cocaine to
the victim, Harry Cronce, when they decided to rob him. PCRA Ct. Op.,
6/17/20, at 2. During the robbery, one of the other men, Hector Flores, fatally
stabbed the victim with an ice pick. During the ensuing investigation, Ortiz
made a statement to Detective John Rechner in which he admitted to acting
as a lookout during the robbery. After he was charged for his participation in
the killing, Ortiz filed a pre-trial motion to suppress the statement, claiming
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in part that Detective Rechner had coerced it. Ortiz alleged physical and
psychological coercion, inadequate Miranda warnings, lack of understanding
of the warnings, denial of his right to counsel, and an involuntary waiver of
his right to counsel and his right against self-incrimination. See Trial Court
Opinion, filed 3/31/92, at 2-3. Following a hearing, the court denied the
motion.
Following sentencing and the denial of post-verdict motions, Ortiz
appealed, and this Court affirmed the judgment of sentence on March 16,
1993. He did not seek review in the Pennsylvania Supreme Court. Ortiz
subsequently litigated two unsuccessful PCRA petitions, in 1994 and 2004.
Ortiz filed the instant petition, his third, pro se on August 23, 2012. He
filed several petitions to amend, which the PCRA court appears to have treated
as amended petitions, as well as documents captioned as amended and
supplemental petitions. In his later filings, he was represented by counsel.
None of these documents, however, explicitly attempts to plead the new facts
exception to the PCRA’s one-year filing requirement. See 42 Pa.C.S.A. §
9545(b)(1)(ii). Only his February 25, 2016 pro se petition to amend makes an
overt effort at pleading any time-bar exception, but the exception it references
is not the new facts exception. Rather, it cites Miller v. Alabama, 567 U.S.
460 (2012), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016), and
asserts the new constitutional right exception. See Petition to Amend Pursuant
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to the Post Conviction Relief Act, filed 2/25/16, at 4 (citing 42 Pa.C.S.A. §
9545(b)(1)(iii)).1
Substantively, Ortiz asserted an after-discovered evidence claim. See
42 Pa.C.S.A. § 9543(a)(2)(vi). He first raised the claim in his April 17, 2018,
Motion for Leave to File the Within Supplemental Grounds for PCRA Relief
(“Motion for Leave”). Ortiz alleged that in February 2018, he read a newspaper
article about an unrelated civil case in which, according to Ortiz, a federal
court determined that Philadelphia Police Detectives Manuel Santiago and
Martin Devlin had engaged in abusive interrogation tactics that lead to a
wrongful conviction. See Wright v. City of Phila., 229 F.Supp.3d 322 (E.D.
Pa. 2017) (denying motion to dismiss). Ortiz contended that Detectives
Santiago and Devlin had been involved in his case as well, and argued that
the complaint in Wright was proof that Detectives Devlin, Santiago, and
Rechner had all used abusive tactics while interrogating him and his
codefendants. Ortiz thereafter filed multiple supplemental pleadings to his
PCRA petition arguing that he had recently obtained supporting affidavits—
one signed by Ortiz, and another by a co-defendant, Joaquin Rodriguez, also
alleging police coercion—and a copy of Flores’s statement to the parole board,
which Ortiz claims exonerated him of participating in the crime. Ortiz argued
these documents were also after-discovered evidence.
____________________________________________
1 The PCRA court rejected Ortiz’s Miller/Montgomery claim because he was
18 years old at the time of the crime. Ortiz does not contest that ruling in this
appeal.
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Although Ortiz’s Motion for Leave makes a substantive after-discovered
evidence claim, it does not explicitly attempt to plead the new facts exception.
Its only mention of time requirements is the assertion that Ortiz was making
his after-discovered evidence claim “within 60 days of its discovery.” Motion
for Leave, filed 4/17/18, at 2 (unpaginated).
The PCRA court sent Ortiz a Pa.R.Crim.P. 907 notice in August 2019.
Ortiz responded, attaching a Philadelphia Inquirer article dated June 6, 2018,
about the Wright case. The article stated that new DNA evidence had
exonerated Anthony Wright upon his retrial and indicated that Detectives
Santiago and Devlin had coerced Wright to make a false statement. The article
stated that the City of Philadelphia had settled Wright’s civil case without an
admission of liability.
The PCRA court dismissed the amended petition. Ortiz filed a motion to
vacate the dismissal, this time attaching an October 2019 Philadelphia
Inquirer article entitled, “Philly DA’s Office reviewing murder convictions after
claims of coerced confessions by now-retired detectives.” Motion to Vacate
Dismissal of PCRA Petition, 10/4/19, at Ex. A. The article stated prosecutors
were investigating retired Detectives Devlin and Paul Worrell, and their
involvement in yet another case, Commonwealth v. Veasey. The PCRA court
dismissed Ortiz’s petition as untimely and without merit.
Ortiz appealed. The court ordered Ortiz to file a statement of matters
complained of on appeal. See Pa.R.A.P. 1925(b). Ortiz filed a statement,
raising that the court erred in denying the petition without a hearing, given
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the evidence of police misconduct in the cases of Wright, Veasey, and a third
case, Commonwealth v. Shaurn Thomas, and given the evidence he
proffered to support his after-acquired evidence claim.
Ortiz appealed, and raises the following issues:
1) Where [there is] new evidence of misconduct by the
Philadelphia Homicide Detectives involved in [Ortiz’s] case
which was similar to that alleged in [Ortiz’s] case; which
occurred during the same time period when [Ortiz] was
arrested; and which led to the grant of new trials in other cases
where this misconduct was uncovered, did the lower court err
in not holding a hearing to determine whether this misconduct
met all the elements of a newly discovered evidence claim and
should this Court remand the matter to the lower court?
2) Where there was more new evidence of misconduct, which led
to the grant of new trials based on misconduct committed by
the same detectives after [Ortiz] filed his appeal, does this
provide further basis for the grant of a remand?
Ortiz’s Br. at 2 (answers below omitted).
Ortiz improperly addresses both of his appellate issues in a single,
undivided argument section in his appellate brief. This is contrary to Pa.R.A.P.
2119(a), which requires that the argument be “divided into as many parts as
there are questions to be argued . . . .” We will not quash the appeal, despite
the violation, as we believe we have been able to understand Ortiz’s
arguments. If we have misunderstood, Ortiz has waived what he allegedly
intended to say.
We review the decision to deny PCRA relief to determine whether the
decision “is supported by evidence of record and whether it is free of legal
error.” Commonwealth v. Hart, 199 A.3d 475, 481 (Pa.Super. 2018)
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(quoting Commonwealth v. Pew, 189 A.3d 486, 488 (Pa.Super. 2018)).
Where the PCRA court declined to hold an evidentiary hearing, we consider
whether the petition presented any genuine issues of material fact that
warranted a hearing. Id. We review the court’s legal conclusions de novo. Id.Ortiz argues his petition was timely under the newly discovered facts
exception. He asserts that although a decision in the Wright civil suit was
filed in January 2017,2 and Ortiz did not present his after-discovered evidence
claim until April 2018, counsel had not entered his appearance at the time of
the Wright decision. Ortiz claims he did not inform counsel of the alleged
police misconduct in his case until February 2018, and counsel filed an
amended pleading within 60 days of learning of Ortiz’s allegations of
misconduct. Ortiz argues “the critical exculpatory material about, and patterns
of misconduct of, Detectives Devlin and Santiago, while known by Rene
Ortiz[,] was time-barred until the Anthony Wright case came to be known”
and that “to seek to attribute this lack of due diligence to counsel who had no
knowledge of a police misconduct claim until February, 2018, misrepresents
the role of counsel at that point.” Ortiz’s Br. at 17-18.
Ortiz also argues he made timely amendments to his petition as the
Veasey and Thomas cases, exposing similar police misconduct, became
publicized. Id. at 19 n.6. Ortiz further contends that there has since been
more evidence of the detectives’ misconduct in the cases of Commonwealth
____________________________________________
2 See Wright v. City of Philadelphia, 229 F. Supp. 3d 322, 327 (E.D. Pa.
2017).
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v. Walter Ogrod, and Andrew Swainson v. Lawrence Mahally, and that
he discovered this evidence after he appealed. Id. at 10.
In addition, Ortiz argues that as he became aware of the other cases
exposing misconduct, “it was then important to try to reinvestigate and obtain
a statement from Rodriguez and also include Rene Ortiz’s statement.” Id. at
13. Ortiz asserts that he did not learn until Rodriguez’s allegations against
Detective Rechner until February 2019, after Ortiz’s counsel contacted
Rodriguez, and thus his presentation of Rodriguez’s affidavit was timely.
Finally, Ortiz argues the presentation of his claim based on Flores’s statement
to the parole board was timely, as the “statement was not known until after
[Flores] was paroled.” Id.
A PCRA court lacks jurisdiction to grant relief on an untimely PCRA
petition. Commonwealth v. Anderson, 234 A.3d 735, 737 (Pa.Super.
2020). Where the petition is not filed within one year of the date on which the
judgment of sentence became final, the petitioner bears the burden of
pleading and proving an exception to the one-year time limitation. See 42
Pa.C.S.A. § 9545(b)(1).
The new facts exception requires that “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.” 42 Pa.C.S.A. § 9545(b)(1)(ii).
A petition claiming the exception must be presented within one year of the
date the claim could have been presented; claims arising prior to December
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24, 2018, were required to be presented within 60 days. 42 Pa.C.S.A. §
9545(b)(2).
The new facts exception focuses “on newly-discovered facts, not on
newly-discovered or newly-willing sources that corroborate previously known
facts or previously raised claims.” Commonwealth v. Maxwell, 232 A.3d
739, 745 (Pa.Super.), appeal denied, 242 A.3d 1290 (Pa. 2020). Therefore, a
new source to corroborate previous allegations of police misconduct generally
will not render a petition timely. See Commonwealth v. Hill, 202 A.3d 793,
799-800 (Pa.Super. 2019) (holding untimely PCRA claim based on newspaper
article about civil judgment against detective for improper investigative
techniques, where petitioner had previously made such allegations).
The trial court properly dismissed Ortiz’s petition as untimely. Ortiz did
not adequately plead the new facts exception in the PCRA court. Indeed, he
did not explicitly plead the new facts exception. To the extent a substantive
after-discovered evidence claim overlaps with the new facts exception, Ortiz’s
allegations are insufficient to meet the exception. He has not asserted facts
that were unknown to him. The substance of his claim is that he was subject
to police coercion that led him to sign a statement implicating himself in the
subject crime. See Ortiz’s Reply Br. at 7. But Ortiz made similar allegations in
his pre-trial motion to suppress, in which he argued that the court should
exclude his statement because he was subject to alleged physical and
psychological coercion. He has thus been aware of the “facts” of consequence
to his substantive claim since before his trial. He is not asserting new facts,
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but rather new sources of evidence of old facts. See Commonwealth v.
Lambert, 57 A.3d 645, 649 (Pa.Super. 2012) (finding PCRA petition untimely
where petitioner offered a new witness to attest to prosecutorial misconduct
and petitioner had previously asserted such misconduct).
Insofar as Ortiz asserts that his co-defendant, Rodriguez, experienced
similar coercion, he has not explained why the coercion to which Ortiz was
allegedly subject would not have reasonably caused him to believe that
Rodriguez gave his statement under similar conditions, and pursued that
question at the time of his motion to suppress. He thus has not carried his
burden to plead that he could not have reasonably known earlier about alleged
coercion of others. Cf. Commonwealth v. Medina, 92 A.3d 1210, 1218
(Pa.Super. 2014) (en banc) (PCRA petition timely where witnesses contacted
petitioner and claimed that police detective coerced their statements, and
petitioner previously had no reason to suspect the misconduct).
The PCRA court did not abuse its discretion in dismissing Ortiz’s petition
as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/16/2021
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