Com. v. McCloud, M. ( 2021 )

J-S25044-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MASTAFA MCCLOUD :
:
Appellant : No. 1809 EDA 2020
Appeal from the PCRA Order Entered May 9, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0203311-2005
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MASTAFA MCCLOUD :
:
Appellant : No. 1810 EDA 2020
Appeal from the PCRA Order Entered May 9, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0204541-2005
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MASTAFA MCCLOUD :
:
Appellant : No. 1811 EDA 2020
Appeal from the PCRA Order Entered May 9, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0203851-2005
J-S25044-21
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED AUGUST 31, 2021
Mastafa McCloud (McCloud) appeals from the order of the Court of
Common Pleas of Philadelphia County (PCRA court) dismissing his petition filed
under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541-9546. After
review, we affirm.
I.
On November 18, 2005, following a bench trial, McCloud was convicted
of attempted murder and related offenses for his role in an armed assault that
turned into a shoot-out with the police. The PCRA court summarized the facts
of the assault and shoot-out as follows:
On October 14, 2004, Charles Wesley (“Wesley”) and his
girlfriend, Sharee Norton (“Norton”), were walking down 33rd
street with Norton’s two young daughters when they encountered
[McCloud] and his six co-defendants Edmond Jackson, Ronald
Alston, Leroy Fair, Tyre Tucker, Khaliaf Alston, and Kyle Little.
Norton heard one of the men say, “There’s Charles.” Norton then
heard Wesley say “Oh shit, that’s them,” before he turned and ran
away. The men began shooting at Wesley as he ran up 33rd Street
toward Cumberland Street. Less than a block away from this
gunfire, Detectives Ronald Dove and James Waring were outside
2531 N. 33rd Street interviewing Gene Palmer in connection with
a previous attempt on Wesley’s life earlier that day. Police Officers
Thomas Hood and Edward Allen were parked nearby in an
unmarked Ford Taurus. The police officers observed Wesley and
Norton walk by them with two children on 33rd Street;
approximately 30 seconds later, they heard gunshots. They then
saw several males dressed in dark colors and one male in a white
t-shirt running up the street, firing guns. Officer Allen pushed Mr.
Palmer to the ground; Detective Dove shot at the gunmen four
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
-2-
J-S25044-21
times; Officer Hood used his radio to report the shooting and call
for backup. The police officers chased the gunmen as they ran up
33rd Street. Detective Dove testified at trial that the gunman in
the white t-shirt turned toward him with his arm raised; Detective
Dove shot at him and missed. Detective Dove identified the man
in the white-shirt as Edmond Jackson. When the officers
approached 34th Street, Rita Wesley (“Rita”), Wesley’s mother,
was standing outside her house and told them that the gunmen
were running northbound on 34th Street. Officer Hood ran to 34th
and Huntington Streets, saw the group of gunmen, and ordered
them to stop. Just then, a marked police officer turned the corner
and drove toward the group from the north, so they turned around
back toward Officer Hood and sat down on nearby steps. Officer
Hood arrested [McCloud] and recovered a fired shell casing that
fell from [McCloud’s] clothing…
On the same block, police discovered two automobiles with keys
already in the ignition. From inside [one of the vehicles], police
recovered a cell phone that said “McCloud” on it. Overall, the
police recovered 57 fired cartridge casings from the scene and
determined that 8 firearms (including Detective Dove’s) were fired
during the shoot-out.
PCRA Court Opinion (PCO), 10/25/19, at 2-3.
After being found guilty, McCloud was sentenced to an aggregate 13½
to 27 years’ imprisonment on May 16, 2006. On direct appeal, this Court
affirmed the judgment of sentence on November 14, 2008. See
Commonwealth v. McCloud, 964 A.2d 945 (Pa. Super. 2008) (unpublished
memorandum). Because he did not seek further review, the sentence became
final on December 14, 2008.
After his first PCRA petition did not succeed, McCloud filed his second
petition in August 2011, raising a single ineffective assistance of counsel claim.
Counsel was appointed and requested to withdraw by filing a no-merit letter,
and the PCRA court issued notice of its intent to dismiss under Pa.R.Crim.P.
-3-
J-S25044-21
907. In response, McCloud raised an after-discovered evidence claim under
42 Pa.C.S. § 9543(a)(2)(vi). His claim was based on a newspaper article
about Detective Ronald S. Dove (Detective Dove), who was involved in the
shoot-out and arrest of McCloud. According to the article, Detective Dove was
under investigation for helping cover up a murder committed by his girlfriend.
The PCRA court dismissed the petition and permitted counsel to
withdraw, later explaining in its Pa.R.A.P. 1925(a) opinion that McCloud could
not rely on a newspaper article about police misconduct that had no
connection to his case. We affirmed on appeal and our Supreme Court denied
further review. See Commonwealth v. McCloud, 158 A.3d 177 (Pa. Super.
2016) (unpublished memorandum), appeal denied, 165 A.3d 874 (Pa. 2017).
While the second petition was on appeal, Detective Dove was charged
with obstructing administration of law, tampering with and fabricating physical
evidence and related charges. He later entered into a negotiated plea
agreement in which he admitted to helping his girlfriend destroy evidence and
flee from authorities after she killed a former paramour. On April 25, 2017,
he was sentenced to 24 months’ county incarceration, with parole at 30 days,
plus 3 years of reporting probation.
Less than two months later, on June 21, 2017, McCloud filed this, his
third PCRA petition. Like he did in the prior petition, he raised an after-
discovered evidence claim based on Detective Dove’s misconduct, asserting
that his convictions showed a habit of falsifying and tampering with evidence
-4-
J-S25044-21
in matters in which he was personally involved. After issuing its Rule 907
notice and receiving no response, the PCRA court formally dismissed the
petition on May 9, 2019. McCloud appealed to this Court, but we quashed the
appeal because he failed to file a notice of appeal in each of his three separate
cases. See Commonwealth v. McCloud, 237 A.3d 433 (Pa. Super. filed May
5, 2020) (unpublished memorandum). McCloud sought to have his appellate
rights reinstated, and after that request was granted, filed separate notices of
appeal for his three cases,1 which we later consolidated. On appeal, he raises
this question for our review:
Did the PCRA court err in finding [McCloud’s] newly discovered
evidence, which established that [Detective] Dove had a habit of
illegally manipulating, tampering with and/or covering up
evidence in cases in which he had a personal interest in, lacked
merit?
McCloud’s Brief at 3.2
____________________________________________
1 McCloud stated that he was appealing from the PCRA court’s September 8,
2020 order reinstating his appellate rights. This prompted us to issue rules to
show cause why his appeal should not be quashed because he was not an
aggrieved party under Pa.R.A.P. 501. McCloud timely responded and clarified
that he was appealing from the dismissal of his third PCRA petition. We find
this explanation sufficient and decline to quash McCloud’s appeals.
2 In reviewing the denial of PCRA relief, our standard of review is limited to
whether the record supports the PCRA court’s factual determinations and
whether its decision is free of legal error. See Commonwealth v. Lopez,
249 A.3d 993, 998 (Pa. 2021) (citation omitted). Additionally, “[t]o 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 PCRA court otherwise
-5-
J-S25044-21
II.
A.
We first examine the timeliness of McCloud’s petition. Generally, the
PCRA’s time limitations implicate our jurisdiction and may not be disregarded.
See Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Any
PCRA petition, including a second or subsequent one, must be filed within one
year of the sentence becoming final, unless one these exceptions applies:
(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.
42 Pa.C.S. § 9545(b)(1)(i)-(iii). Additionally, at the time McCloud filed his
petition, a petitioner needed to file his claim within 60 days from the date that
he could have been presented with the exercise of reasonable (or due)
diligence. See 42 Pa.C.S. § 9545(b)(2).3
____________________________________________
abused its discretion.” Commonwealth v. Watkins, 108 A.3d 692, 735 (Pa.
2014).
3 On October 24, 2018, the General Assembly amended Section 9545(b)(2),
extending the time for filing a PCRA claim from 60 days to one year from the
-6-
J-S25044-21
Because his sentence became final in December 2008, McCloud’s
petition is facially untimely and he needed to plead and prove the applicability
of one of the timeliness exceptions. He asserted that his petition was timely
under both the governmental interference and newly discovered facts
exceptions. The PCRA court found that the latter exception applied because
McCloud filed his petition within 60 days of learning about Detective Dove’s
guilty plea and sentencing on April 26, 2017. See PCO at 7-8. We agree and
would note that the Commonwealth effectively concedes the timeliness of
McCloud’s petition by not addressing the issue in its brief. As a result, we turn
to the merits of McCloud’s claim.
B.
The PCRA recognizes claims of after-discovered evidence as substantive
grounds for relief as long as the conviction or sentence resulted from the
unavailability 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). To assert a meritorious claim of
after-discovered evidence, a PCRA petitioner must prove that (1) the evidence
has been discovered after trial and it could not have been obtained at or before
____________________________________________
date a 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 on or after the effective date of this section, December 24,
2017. The amendment does not apply to McCloud.
-7-
J-S25044-21
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. See Commonwealth v. Cox, 146 A.3d 221, 228 (Pa.
Super. 2016) (citation omitted).
The PCRA court concluded that McCloud could not establish the third
element, finding that any evidence about Detective Dove’s misconduct and
conviction would only help impeach his credibility at trial. See PCO at 9-10.
The PCRA court also emphasized that McCloud could not connect Detective
Dove’s misconduct to McCloud’s 2004 offenses.
…[McCloud] is unable to establish any nexus between his case and
Dove’s misconduct, which took place more than a decade after
[McCloud’s] trial. See Commonwealth v. Foreman, 55 A.3d
532 (Pa. Super. 2012) (holding that petitioner’s “new evidence”
regarding criminal charges against detective who testified in
criminal trial did not warrant PCRA relief where detective’s alleged
misconduct took place more than two years after Defendant’s
conviction). McCloud has failed to provide any evidence or proof
to support any of his claims regarding Dove’s involvement in the
shooting. There is zero evidence that Dove tampered with or
fabricated evidence in [McCloud’s] case. [McCloud] baldly claims
that Dove was a long-time friend of Wesley and [his mother, Rita
Wesley] but provides no proof. He also baldly claims that Rita was
a “long-time confidential informant” for the police, but provides
zero proof to support this allegation. [McCloud’s] claim that Rita
identified him as one of the gunmen only after Dove allegedly
interfered is belied by the record; Rita promptly identified
[McCloud] as one of the gunmen at the time of his arrest on the
day of the shooting, not weeks later as he clams. (N.T. 11/9/05,
p. 150). [McCloud] further claims that Dove had a personal
vendetta against him, claiming that Dove identified him as the
person who shot at him. This is also directly belied by the record;
the transcript shows that Dove identified Edmond Jackson, not
[McCloud], as the man in the white t-shirt who shot at him. (N.T.
11/15/05, p. 81). Since [McCloud’s] assertions regarding Dove’s
misconduct in his own case are based upon pure conjecture,
-8-
J-S25044-21
[McCloud] has failed to establish any nexus between his case and
Dove’s conviction more than a decade later…
PCO at 10-11.
We agree with this analysis as McCloud fails to connect Detective Dove’s
subsequent criminal misconduct in 2013 to his involvement in the 2004 shoot-
out that led to McCloud’s arrest. In Commonwealth v. Johnson, 179 A.3d
1105 (Pa. Super. 2018), this Court held that evidence of Detective Dove’s
misconduct is insufficient to satisfy the after-discovered evidence test where
the petitioner fails to show any nexus between his case and Detective Dove’s
misconduct. Id. at 1223.4 The same applies here where McCloud cannot
show any connection between his case and Detective Dove’s misconduct that
happened nearly a decade later.
McCloud argues that the evidence would not be used solely for purposes
of impeachment. In support, he asserts two theories for the evidence’s
admission for non-impeachment purposes. The first is to prove habit. Under
Pennsylvania Rule of Evidence 406, “[e]vidence of a person’s habit or an
organization’s routine practice may be admitted proving that on a particular
____________________________________________
4 This Court observed that “[n]umerous defendants in recent years similarly
and unsuccessfully have sought relief under the PCRA due to former Detective
Dove’s criminal misconduct.” Johnson, 179 A.3d at 1123 n.9. As we did in
Johnson, this Court has affirmed the PCRA court’s rejections of those claims.
See, e.g., Commonwealth v. Mason, 2021 WL 3056280 (Pa. Super. Jul 20,
2021) (unpublished memorandum); Commonwealth v. Walls, 2021 WL
2396227 (Pa. Super. June 10, 2021) (unpublished memorandum);
Commonwealth v. Fleetwood, 2020 WL 653871 (Pa. Super. November 6,
2020) (unpublished memorandum).
-9-
J-S25044-21
occasion the person or organization acted in accordance with the habit or
routine practice.” Pa.R.E. 406. “For evidence of habit to be admissible, the
habit must have occurred with sufficient regularity to make it probable that it
would be carried out in every instance or in most instances.”
Commonwealth v. Harris, 852 A.2d 1168, 1178 (Pa. 2004) (citation
omitted).
McCloud alleges that there were “at least four instances where Dove
fabricated and falsified evidence in criminal cases he had a personal interest
in[.]” McCloud’s Brief at 20. Besides the 2013 conviction, McCloud identifies
two other cases in which he alleges Detective Dove committed misconduct.
Besides none of these allegations being included in his original petition,
McCloud fails to show how these claims of misconduct in other cases have
been substantiated. Thus, the only substantiated evidence of Detective
Dove’s misconduct is his 2013 conviction that is unrelated to this case. Under
these circumstances, McCloud has not shown that Detective Dove’s
misconduct would be admissible under Rule 406.
The second basis for admission that McCloud asserts is Pennsylvania
Rule of Evidence 404(b), which provides that evidence of a crime, wrong or
other act may be admissible to prove a person’s “motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of
accident,” but “only if the probative value of the evidence outweighs its
potential for unfair prejudice.” Pa.R.E. 404(b)(2).
- 10 -
J-S25044-21
This Court recently rejected a similar argument about Detective Dove in
Commonwealth v. Murray, 248 A.3d 557 (Pa. Super. March 19, 2021),
although involving a separate crime. Finding Detective Dove’s misconduct
would not be admissible bad acts evidence in that case, we explained that
such evidence had limited probative value compared to its potential for
prejudice.
We find the trial court properly excluded evidence of Detective
Dove’s misconduct under Rule 404(b)(2). The Commonwealth
proved its case through, inter alia, thirteen police witnesses other
than Detective Dove. Neither the Commonwealth nor the
defendants asked Detective Dove to testify. Furthermore, the
execution of the search warrants at Appellant’s and Pone’s
residences took place in May 2013. Detective Dove’s crimes took
place approximately one year later in a completely unrelated
homicide investigation involving his girlfriend. There is no
evidence in the present case that Detective Dove was romantically
involved with the victim’s murderer or that he sought to conceal
inculpatory evidence, as he later did to protect his girlfriend in the
unrelated case. Under these circumstances, this evidence had
limited probative value (if any), and its potential for prejudice
outweighed its probative value.
Id. at 575.
The same applies here. Besides there being other witnesses to
McCloud’s involvement in the 2004 shoot-out, Detective Dove’s misconduct
happened long after in an unrelated matter. That being the case, whatever
probative value his misconduct would be outweighed by its potential for
prejudice. Thus, the evidence would not be admissible under Rule 404(b)(2).
Finally, McCloud argues that the PCRA court’s decision conflicts with this
Court’s decision in Commonwealth v. Williams, 215 A.3d 1019 (Pa. Super.
- 11 -
J-S25044-21
2019). There, we reversed a PCRA court that denied relief to a petitioner who
raised an after discovered evidence claim based on the Commonwealth’s only
police witness later being discovered to have engaged in misconduct that
predated the petitioner’s offenses but was not disclosed. Addressing whether
the new evidence would be used for non-impeachment purposes, we
emphasized that the officer was the only witness at the petitioner’s trial. Id.
at 1027. Additionally, to refute that officer’s testimony, the petitioner had
obtained affidavits from two former police officers that refuted the version of
events given at trial. Id. As a result, the after discovered evidence about the
officer’s misconduct would not be used merely as impeachment evidence at a
new trial. Id.First, while the police officer in Williams was the only witness at trial,
Detective Dove was not the only witness to implicate McCloud in the assault
and shoot-out. Indeed, there were several other witnesses who testified that
McCloud was one of the gunmen who tried to shoot and kill the intended
victim. While the police officer’s misconduct in Williams predated the
petitioner’s offense, Detective Dove’s misconducts postdates McCloud’s
offenses by nearly a decade. Furthermore, while the petitioner in Williams
had affidavits from other witnesses refuting the police officer’s testimony,
McCloud has no such evidence. We find McCloud’s reliance on Williams to be
misplaced. Since McCloud cannot show that the evidence would be used for
- 12 -
J-S25044-21
non-impeachment purposes, we conclude that the PCRA court did not err in
dismissing his petition.
Order affirmed.
President Judge Emeritus Judge Bender joins the memorandum.
Judge McLaughlin concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/31/2021
- 13 -