Com. v. Phillips, D. ( 2021 )

J-S25011-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAMIAN PHILLIPS :
:
Appellant : No. 2237 EDA 2020
Appeal from the PCRA Order Entered November 18, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-1100411-1994
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY BENDER, P.J.E.: Filed: October 7, 2021
Appellant, Damian Phillips, appeals from the post-conviction court’s
November 18, 2020 order denying, as untimely, his petition filed under the
Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful
review, we affirm.
The PCRA court set forth the pertinent facts and procedural history of
this case, as follows:
On February 28, 1994, Appellant and a second man, Antonio
Hudson (“Hudson”), committed an armed robbery at the San Jan
Chinese Restaurant. Appellant shot and killed Xiaohuang Wang,
Kim Wing Lam, and Xia Gan Lin during the robbery. On July 26,
1995, Appellant was convicted of three counts of first-degree
murder and robbery, as well as one count of criminal conspiracy
and one count of possessing an instrument of crime. On July 27,
1995, Appellant was sentenced to three consecutive terms of life
imprisonment for the murder convictions[,] and a consecutive
term of thirty-seven and one half to seventy-five years’
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* Retired Senior Judge assigned to the Superior Court.
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imprisonment for the remaining offenses. The Superior Court
affirmed the judgment of sentence on May 30, 1996, and on
November 1, 1996, the Pennsylvania Supreme Court denied
Appellant’s petition for allowance of appeal.
On March 8, 2019, Appellant filed the instant PCRA petition, his
seventh…, seeking an evidentiary hearing and vacation of his
convictions pursuant to 42 Pa.C.S. § 9543(a)(2)(i) and 42 Pa.C.S.
§ 9543(a)(2)(iv). Specifically, Appellant alleged that the
Commonwealth violated his constitutional right to due process by
failing to disclose information concerning unconstitutional
interrogation patterns and practices used by the Philadelphia
Homicide Unit, particularly by Detective Thomas Augustine
[(“Augustine”)]. According to the Appellant, this newly-
discovered evidence undercuts the confessions of accomplice
Hudson and witness Audrey Taylor (“Taylor”)[,] as well as the
ballistics evidence used against him. On May 20, 2019, Teri B.
Himebaugh, Esquire, entered her appearance on Appellant’s PCRA
[petition]. This matter was assigned to the Honorable Tracy
Brandeis-Roman on December 20, 2019. That same day, the
Commonwealth filed its Motion to Dismiss. Appellant, through
Attorney Himebaugh, filed a Response to the Commonwealth’s
Motion to Dismiss on January 12, 2020. Appellant filed
supplemental PCRA Petitions on March 13, 2020, and May 11,
2020.
Before this court could … review Appellant’s March 13, 2020[]
filings, the pandemic known as COVID[-]19 caused a shutdown of
the court system in Pennsylvania. As a result, this court was
unable to access any files or review Appellant’s supplemental
petitions for approximately two months’ until we returned on May
18, 2020. On May 22, 2020, Appellant filed another response to
the Commonwealth’s December 20, 2019[] Motion to Dismiss. On
June 2, 2020, Appellant filed another supplemental PCRA petition.
On June 23, 2020, the Commonwealth filed a supplemental
response to Appellant’s PCRA petition. On July 29, 2020,
Appellant filed another supplemental PCRA petition, to which the
Commonwealth filed a response on August 11, 2020.
On October 2, 2020, after reviewing all relevant filings, this court
filed a notice of dismissal under [Pa.R.Crim.P.] 907. On October
20, 2020, Appellant filed a pro se response to the notice of
dismissal. On November 18, 2020, this court filed an order
dismissing Appellant’s PCRA Petition. On November 25, 2020,
Appellant filed a notice of appeal to the Pennsylvania Superior
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Court. On January 21, 2021, this court issued an order pursuant
to Pa.R.A.P. 1925(b). On January 31, 2021, Appellant filed a
statement of matters complained [of] on appeal [pursuant to
Pa.R.A.P. 1925(b)].
PCRA Court Opinion (PCO), 2/23/21, at 1-3 (footnotes omitted). The PCRA
court filed its Rule 1925(a) opinion on February 23, 2021.
Herein, Appellant states one issue for our review: “Did the PCRA [c]ourt
mischaracterize what the ‘new’ evidence at issue is and in doing so, incorrectly
analyze its[] timeliness and merit?” Appellant’s Brief at 3.1
Preliminarily, we note that this Court’s standard of review regarding an
order denying a petition under the PCRA is whether the determination of the
PCRA court is supported by the evidence of record and is free of legal error.
Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin
by addressing the timeliness of Appellant’s petition, because the PCRA time
limitations implicate our jurisdiction and may not be altered or disregarded in
order to address the merits of a petition. See Commonwealth v. Bennett,
930 A.2d 1264, 1267 (Pa. 2007). Under the PCRA, any petition for post-
conviction relief, including a second or subsequent one, must be filed within
one year of the date the judgment of sentence becomes final, unless one of
the following exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:
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1 We note that Appellant’s counsel set forth this single issue in the Statement
of the Questions Involved section of Appellant’s brief and provided only two
sentences in her Summary of the Argument section. See Appellant’s Brief at
7. However, counsel divided the Argument section of Appellant’s brief into
multiple, distinct, and lengthy claims and sub-claims, none of which are set
forth in, nor fairly suggested by, the Statement of the Questions. We chastise
counsel for her deficient briefing in this regard.
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(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition alleges
and the petitioner proves that:
(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, any petition attempting to
invoke one of these exceptions must “be filed within one year of the date the
claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, as stated supra, our Supreme Court denied Appellant’s petition
for allowance of appeal from our decision affirming his judgment of sentence
on November 1, 1996. Appellant did not seek further review and, thus, his
judgment of sentence became final ninety days later, on January 30, 1997,
upon expiration of the time to file a petition for writ of certiorari with the
United States Supreme Court. See 42 Pa.C.S. § 9545(b)(3); U.S.Sup.Ct.R.
13. Consequently, Appellant’s present petition, filed in 2019, is facially
untimely and, for this Court to have jurisdiction to review the merits thereof,
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he must prove that he meets one of the exceptions to the timeliness
requirements set forth in 42 Pa.C.S. § 9545(b).
Instantly, Appellant argues that he meets the after-discovered evidence
exception of section 9545(b)(1)(ii), as well as the governmental interference
exception of section 9545(b)(1)(i). According to Appellant, the ‘new fact’ he
has discovered is that homicide detectives in Philadelphia utilized a “pattern
and practice” of “coercive interrogation techniques in order to fabricate false
evidence to implicate a pre-ordained suspect.” Appellant’s Brief at 8.
Appellant claims that the unconstitutional interrogation practices utilized by
detectives included targeting “weak” individuals; isolating witnesses and
suspects for lengthy periods of time; using threats, as well as verbal and
physical abuse; and manipulating, fabricating, and/or destroying evidence.
See id. at 9-10.
Appellant explains that “this unconstitutional interrogation pattern and
practice was identified for the very first time in the June 7, 2018[] ruling by
the Honorable Teresa Sarmina in Commonwealth v. Dwayne Thorpe[] (CP-
51-CR-0011433-2008.” Id. at 8-9. Appellant recognizes that the Thorpe
decision specifically relates to the actions of former Philadelphia homicide
detective James Pitts, who was not involved in Appellant’s case. Id. at 9 n.1.
Nevertheless, Appellant “avers that the unconstitutional pattern and practice
was at all times material [and] widespread throughout the Homicide Unit and
involved multiple other detectives, including but not limited to … Augustine
and [his partner,] Tomiano.” Id.
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Appellant argues that the Thorpe case, and the other, unrelated
criminal cases on which he relies,2 establish that Philadelphia homicide
detectives, including Augustine, “regularly participated in the newly identified
pattern and practice” of misconduct. Id. at 11. Regarding misconduct in his
case, Appellant claims that Augustine planted evidence to bolster the
credibility of Hudson’s confession, which implicated Appellant. Namely,
Hudson claimed that a total of four shots had been fired by Appellant during
the incident. Appellant maintains that, “to make the physical evidence fit with
Hudson’s confession[,]” Augustine planted a fourth fired cartridge casing
(FCC) at the scene of the murders. Id. at 17. Appellant points out that two
witnesses who lived above the restaurant claimed to have heard only three
shots, there were three victims who were each shot only once, and a fourth
bullet was never recovered. Id. at 17-18. Additionally, three of the FCCs
found at the scene were determined to have been fired by the same gun, while
the fourth FCC “had insufficient markings and could not be determined to have
come from the same firearm.” Id. at 18. According to Appellant, this evidence
supports his theory that Augustine planted the fourth FCC.
Appellant also provided to the PCRA court an affidavit from witness
Audrey Taylor, who claimed that unnamed detectives coerced her into stating
that her gun, the murder weapon, was missing four bullets after the shooting.
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2 The PCRA court lists the cases, in addition to Thorpe, on which Appellant
relies to argue that there existed a ‘pattern and practice’ of detectives’
misconduct in Philadelphia. See PCO at 10.
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Appellant further claims that detectives coerced him into falsely confessing by
threatening him and handcuffing him to a chair during his interrogation. Id.
at 27. Appellant insists that his coerced confession, and Taylor’s affidavit,
support that Augustine and other detectives in this case were manipulating
the evidence and using impermissible interrogation techniques, consistent
with their ‘pattern and practice’ of misconduct in other cases. According to
Appellant, his discovery of this previously unknown, widespread misconduct
by Philadelphia detectives constitutes a new fact that meets section
9545(b)(1)(ii). He also argues that the Commonwealth had an obligation to
disclose this misconduct, and its failure to do so amounts to governmental
interference that satisfies section 9545(b)(1)(i).
Even if Appellant could meet the timeliness exception of section
9545(b)(1)(ii) based on his discovery of the previously unknown fact that
Philadelphia Homicide detectives engaged in a ‘pattern and practice’ of
misconduct, we conclude that that fact is not the actual basis of Appellant’s
claim for relief. Instead, he is using this broader assertion of a ‘pattern and
practice’ of impropriety to argue that Augustine engaged in misconduct in
his case by allegedly planting a fourth FCC at the crime scene, and then
influencing other detectives to coerce Taylor into claiming that the murder
weapon was missing four bullets, all in an attempt to bolster Hudson’s
confession implicating Appellant. For the reasons that follow, we conclude
that Appellant knew, or could have discovered, the information supporting this
theory of impropriety by Augustine as early as 2016 and could have raised it
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in his prior PCRA petition. Thus, he cannot meet the due diligence requirement
of section 9545(b)(1)(ii). See Commonwealth v. Brown, 111 A.3d 171,
176 (Pa. Super. 2015) (“[A]s an initial jurisdictional threshold, [s]ection
9545(b)(1)(ii) requires a petitioner to allege and prove that there were facts
unknown to him and that he exercised due diligence in discovering those
facts.”).
First, on appeal from the denial of Appellant’s sixth petition, he asserted
that he had discovered misconduct by Augustine that is similar to that which
he raises herein. Specifically, he averred that he met “the newly-discovered
fact exception based on information that … Augustine … had ‘played a
significant role in the wrongful conviction of a Mr. Anthony Wright.’”
Commonwealth v. Phillips, No. 2160 EDA 2017, unpublished memorandum
at *9 (Pa. Super. filed Nov. 27, 2018) (citation omitted). Appellant “claim[ed]
that … Augustine fabricated evidence, falsified reports, coerced statements
from witnesses in Wright’s case and, therefore, the detective likely acted with
the same ‘malfeasance’ in Appellant’s case. Appellant contend[ed] that he did
not discover the facts of … Augustine’s misconduct in Wright’s case until
September 20, 2016, when ‘Wright initiated a [l]awsuit against the City of
Philadelphia[,] including … Augustine.’” Id. (citation omitted). This Court
deemed Appellant’s claim waived because he never presented it to the PCRA
court, despite that he had filed an amended petition and two responses to the
court’s Rule 907 notice after he purportedly became aware of the allegations
of misconduct by Augustine. Id.-8-
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From the claims asserted on appeal from the denial of Appellant’s sixth
PCRA petition, Appellant knew in 2016 that Augustine had engaged in
misconduct in Anthony Wright’s case. Indeed, Appellant admits herein that
the Wright case notified him that Augustine had “falsified evidence and reports
to fit Wright’s false confession and then provided the false information to other
detectives so that they could coerce other witnesses.” Appellant’s Brief at 12.
These are the same actions that Appellant accuses Augustine of committing
herein. Appellant also knew in 2016 that: (1) there was evidence suggesting
that only three shots had been fired, which contradicted Hudson’s confession;
(2) Appellant had been coerced and threatened into falsely confessing; and
(3) Taylor had told detectives that there were four bullets missing from the
murder weapon.
We fail to see why, with the totality of this information, Appellant could
not have obtained an affidavit from Taylor, further investigated cases
involving Augustine’s and other Philadelphia detectives’ misconduct, and
raised his claim of Augustine’s planting the fourth FCC in his sixth PCRA
petition. Notably, Appellant offers no explanation in this regard. Instead, he
seemingly suggests that he did not discover Augustine’s misconduct in the
Wright case until he read a “February 2018 … article about … Augustine’s
involvement in the Wright case … in the Philadelphia Daily News.” Id. at 34.
Based on the argument he raised on appeal from the denial of his sixth PCRA
petition, this assertion is clearly false.
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Moreover, Appellant’s discovery of the Thorpe case and the ‘pattern
and practice’ of misconduct by Philadelphia homicide detectives did not reveal
any new information pertinent to Appellant’s discovering that Augustine
allegedly placed the fourth FCC at the crime scene. Indeed, Appellant admits
that “[t]he Thorpe ruling related to [former detective] Pitts[’] participation in
the pattern and practice” of misconduct, not Augustine’s. Id. at 35.
Moreover, we reject Appellant’s claim that, “[p]rior to Thorpe[,] … [he] had
no reason to look for the pattern and practice[,] much less as it related to
detectives other than Pitts. Nor did he have any basis for contacting Taylor
and inquiring about the detectives’ behavior towards her.” Id. (emphasis in
original). As set forth, supra, Appellant had sufficient information in 2016
about Augustine’s misconduct in other cases, the evidence in this case, and
Appellant’s own allegedly coercive interrogation to trigger his contacting
Taylor and further investigating Augustine’s actions.
In sum, Appellant has failed to demonstrate that he could not have
raised, in his sixth PCRA petition, his claim that Augustine allegedly planted
the fourth FCC at the crime scene. Therefore, he has failed to demonstrate
that he acted with due diligence in raising this newly-discovered evidence
claim in his 2019 petition. He has also not established that the Commonwealth
interfered with his ability to raise this claim and, therefore, he cannot meet
the governmental-interference exception either. No relief is due.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/21
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