Com. v. Hogan, K. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
KAREEM HOGAN :
:
Appellant : No. 601 EDA 2021
Appeal from the PCRA Order Entered February 25, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003016-2012
BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 8, 2021
Kareem Hogan appeals from the order, entered in the Court of Common
Pleas of Philadelphia County, denying his petition filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful
review, we affirm.
A jury convicted Hogan on July 1, 2013, of several crimes, including
third-degree murder, for his role in the October 27, 2011 shooting death of
Joel Negron in Philadelphia. This Court has previously adopted the trial court’s
recitation of the underlying facts in this case:
On October 27, 2011, at approximately 6:30 p.m., in response to
a radio call, police officer Antonio Smith, upon arrival at Waterloo
and Westmoreland Streets in Philadelphia, saw [Negron] lying on
the sidewalk of Westmoreland Street. [] Officer Smith examined
[Negron’s] injuries, noting multiple bullet wounds. The officer did
not observe a weapon on or about [Negron]’s body. Within
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* Retired Senior Judge assigned to the Superior Court.
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minutes[,] an ambulance arrived and took [Negron] to [Temple
University H]ospital.
At 7:17 p.m., [Negron] died at Temple University Hospital.
D[octor] Edwin Lieberman, an Assistant Medical Examiner and []
expert in forensic pathology, concluded that [Negron] died of
[two] gunshot wounds to his back and [one to his] torso. []
Police Officer Robert Flade of the Crime Scene Unit . . . recovered
seven fired cartridge casings from the scene: five .25-caliber fired
cartridge casings and two .40-caliber fired cartridge casings.
According to Police Officer Raymond Andrejczak, an expert in
firearms identification, the five .25-caliber fired cartridge cases
recovered from the scene were fired from the same firearm. The
two .40-caliber fired cartridge casings were fired from a separate
firearm. The two projectiles recovered from [Negron]’s body by
the medical examiner’s office were both .25-caliber and fired from
the same firearm.
At trial, [several] witnesses in this case gave testimony that was
inconsistent with the statements they [initially] gave to police.
On November 25, 2011, Johnny Walker gave a statement to
police. Walker explained that he was walking in the area of Front
and Westmoreland Streets when he heard yelling and saw
[Hogan] and Brandon Sanabria. [Negron] and a friend were
walking from Waterloo and Westmoreland Streets towards Hope
Street. [Negron] said “there’s that bitch ass nigga right there.”
[Hogan] responded “oh, he is pulling.” [Hogan] and Sanabria
pulled out their guns and started shooting at [Negron, who] said
“that’s all your bitch ass nigga got?” [Negron] walked to Waterloo
and Westmoreland Street and then fell on the sidewalk. The day
after the murder, Sanabria showed Walker a silver gun and asked
if he wanted to buy it. Walker refused. Walker also told the police
that he always saw [Hogan] carrying a black .40-caliber firearm
on his hip.
At trial, Walker recanted, denying that [he] gave the answers in
his statement. [Walker testified that he was actually home during
the murder and that the only reason he signed the police
statement was because he was held at the Homicide Unit and was
told that if he signed it, he would be released. See N.T. Jury Trial,
6/25/13, at 158-90; id., 6/26/13, at 122-25, 130-34.]
On November 26, 2011, Fredrick Miller, [Hogan’s] stepfather,
gave a statement to police. In the statement, Miller explained
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that on the night of the murder, he was at home [on] Waterloo
Street when he heard about seven gunshots. [Hogan] and
Sanabria ran into the house and put guns on the floor. Miller told
[Hogan] and Sanabria to leave and they did. Monte Hogan,[1] []
put the guns in a bag in the corner. About two hours later,
Sanabria called and informed Monte Hogan that he was sending a
woman to retrieve the guns. A woman [nam]ed Goida [then]
arrived and took the guns to Sanabria’s house.
The next day, [Hogan] came to Miller’s house and told him that
he had been walking with Sanabria on Westmoreland Street when
he saw [Negron] walking with Edwin Laboy and Onehida
Rodriguez. [Negron] told [Hogan], “there goes those bitch niggas
from Waterloo.” [Negron] was trying to reach for a weapon, so
[Hogan] pulled out his .40-caliber and tried to shoot, but it
jammed. Sanabria then pulled out his .25-caliber firearm and shot
[Negron]. [Hogan] explained that the reason they were arguing
with [Negron] was that Yaniz Estrada had a conflict with people
from Mascher Street about selling PCP on Waterloo Street.
[Hogan] and Sanabria didn’t want Estrada selling PCP on the block
because they sold PCP on Mascher Street.
At trial, although Miller confirmed that himself, [Negron], and
Estrada sold PCP in the area of Waterloo and Westmoreland
Streets, he denied that [Hogan] and Sanabria ran into hi[s] home
with guns after the murder. Instead, he said that on the night of
the murder[,] after he heard gunshots[, Miller] saw a group of
people from Mascher and Mutter Streets yelling and running
around. [Miller testified that detectives smacked him when they
came to his home looking for Hogan and that he ultimately signed
the police statement because he wanted to go home. See N.T.
Jury Trial, 6/25/13, at 221-72.]
On November 26, 2011, Rafael Torres-Burgos gave a statement
to police describing that on the night of the murder[,] he was
walking down Westmoreland Street to pick up his girlfriend when
he heard arguing and yelling. Torres-Burgos heard about three
gunshots and saw [Hogan,] who was holding a gun[,] and
Sanabria[,] running from Waterloo Street towards Howard and
Hope Street.
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1 Monte Hogan is Hogan’s brother and Miller’s stepson. This Court will refer
to Monte Hogan using his full name to avoid confusion with the appellant.
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At trial, Torres-Burgos denied seeing [Hogan] and Sanabria shoot
[Negron]. Torres-Burgos testified that he was in his home when
he heard two or three gunshots. Torres-Burgos ran outside and
saw [Negron] laying on the ground and two people he did not
recognize running away. [Torres-Burgos admitted to circling and
signing Hogan’s photograph in a photo array, but stated that he
only did so because he recognized Hogan from the neighborhood.
See N.T. Jury Trial, 6/26/13, at 9-42.]
On November 27, 2011, Yaniz Estrada gave a statement to police.
In the statement, Estrada explained that about two or three days
before [Negron]’s murder[, Estrada] was on the 3300 block of
Waterloo Street when she was approached by [Hogan] and
Sanabria. [Hogan and Sanabria] asked Estrada if she was selling
drugs and told her that she needed to stop selling [at that
location]. Estrada told them she was not selling drugs and they
walked away. On the day of the murder, at about 5:00 p.m.,
Estrada arrived on the 3300 block of Waterloo Street. While she
was in the area[,] she [greeted Negron] and then went home.
At trial, Estrada confirmed that she was on the block on the day
of the murder and had [greeted Negron]. Estrada denied that two
days before the murder, [Hogan] and Sanabria had approached
her. [Estrada] also denied selling drugs at the time of the murder.
[Estrada recanted her police statement and alleged that the
detectives harassed her and handcuffed her to a chair. See N.T.
Jury Trial, 6/25/13, at 90-138, 141-42.]
On November 27, 2011, Edwin Laboy gave a statement to police.
Laboy stated that[,] on the night of the murder when it was just
starting to get dark, Laboy ran into [Negron] near Westmoreland
and Waterloo Streets. As [Laboy] was talking to [Negron, Hogan]
and Sanabria approached them. Laboy started to walk away and
heard four or five gunshots. Laboy saw [Hogan] and Sanabria run
away. Laboy explained that [Hogan] and his friends had been
selling PCP on the block and wanted rent money from Estrada,
who was working with Miller and [Negron].
At trial, Laboy confirmed that he had seen [Negron] near
Westmoreland and Waterloo Streets shortly before [Negron] was
murdered, but testified that he was on a different street when he
heard about four or five gunshots. Laboy walked back to
Westmoreland and Waterloo Streets and went to [Negron,] who
was shot and dying on the street. Laboy explained that a few days
before [Negron]’s murder, . . . there was an argument because
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[Negron], Miller, and Estrada wanted to sell PCP on the block but
[Hogan] did not want them to sell PCP without paying rent for it.
Commonwealth v. Hogan, 2723 EDA 2013 (Pa. Super. filed April 13, 2015)
(unpublished memorandum) (citing Trial Court Opinion, 10/29/13, at 2-6).
The PCRA court set forth the procedural history of this case as follows:
On January 6, 2012, [] Hogan[] was arrested and charged with
murder and related offenses [in connection with the shooting
death of Joel Negron]. On June 24, 2013, [Hogan] elected to be
tried by a jury. On July 1, 2013, the jury convicted [Hogan] of
third-degree murder, conspiracy, and carrying a firearm on a
public street in Philadelphia[.] On August 27, 2013, th[e trial]
court sentenced [Hogan] to [an aggregate term] of twenty-six to
fifty-two years[’] imprisonment.
[Hogan] appealed and on April 13, 2015, [this] Court affirmed his
judgment of sentence. On September 15, 2015, the Supreme
Court of Pennsylvania denied [Hogan’s] petition for allowance of
appeal.
On November 10, 2015, [Hogan] filed a timely pro se [PCRA]
petition, his first. On March 2, 2017, th[e PCRA] court dismissed
the petition. On November 28, 2017, th[is] Court affirmed th[e
order of the PCRA] court[.] On December 12, 2017, [Hogan] filed
a second counseled petition, which th[e PCRA] court dismissed on
March 29, 2018. On April 20, 2018, [Hogan] filed a notice of
appeal. On September 6, 2018, during the pendency of [the]
appeal [of his second PCRA petition] before th[is] Court, [Hogan]
filed a premature, subsequent pro se petition[,] his third overall.
On September 17, 2018, th[e PCRA] court received notice of the
subsequent petition, and on September 18, 2018, th[e] court
issued a notice of intent to dismiss pursuant to Pa.R.A.P. 907. In
the interim, on October 4, 2018, th[is] Court dismissed the appeal
of [Hogan’s] second PCRA for failure to file briefs. On October 25,
2018, th[e PCRA] court dismissed [Hogan’s] third petition. On
November 21, 2018, [Hogan] filed his fourth PCRA petition, which
th[e PCRA] court dismissed on January 17, 2019.
On April 1, 2019, [Hogan] filed the instant PCRA petition, his fifth.
On July 12, 2019, [Hogan] filed a motion for appointment of
counsel. On August 12, 2019, th[e PCRA] court appointed PCRA
counsel.2 On September 7, 2020, after th[e PCRA c]ourt granted
multiple continuances for defense investigation, [Hogan] filed an
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amended petition. On December 14, 2020, the Commonwealth
filed its response. On December 17, 2020, th[e PCRA] court
continued the matter for [Hogan] to provide the Commonwealth
with [signed certifications] in anticipation of an evidentiary
hearing. On January 14, 2021, after [Hogan] was unable to
secure [signed certifications], th[e PCRA] court issued a [Rule]
907 notice[, and Hogan] did not respond[.]
2 As a matter of policy, th[e PCRA] court generally appoints
counsel on subsequent PCRA petitions where the petitioner
raises allegations of misconduct by detectives who have
been removed from the Philadelphia Police Department.
However, th[e PCRA] court declined to appoint counsel on
[Hogan’s] third and fourth pro se petitions. Since the
December 12, 2017 petition was pending on appeal at the
time [Hogan] filed his September 6, 2018 petition, th[e
PCRA] court was without jurisdiction to review the petition,
rendering the appointment of any counsel frivolous.
Similarly, th[e PCRA] court did not believe that appointment
of counsel was warranted after receipt of the November 21,
2018 petition, as [Hogan’s] claim was limited to the
presentation of a newspaper article containing allegations of
misconduct filed against Detective [Phillip] Nordo.[2]
Because [Hogan] identified witnesses in his April 1, 2019
petition that could, in theory, provide testimony at an
evidentiary hearing, th[e PCRA] court duly appointed
counsel to help develop [Hogan’s] claims.
PCRA Court Opinion, 2/25/21, at 1-2 (footnote and unnecessary capitalization
omitted). The PCRA court dismissed Hogan’s petition on February 25, 2021,
two months after issuing the Rule 907 notice. Hogan and the PCRA court have
complied with Pa.R.A.P. 1925.
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2 The Commonwealth agrees that Detective Nordo is currently charged with
multiple counts of rape, sexual assault, and related charges allegedly
committed in the course of his duties as a Philadelphia homicide detective.
See Appellee’s Brief, at 2. Indeed, each of the witnesses Nordo interviewed
for Hogan’s case recanted their prior statements at trial and accused the
interviewing detectives of either making them say things that were false or
having them sign a statement they did not make. Id. at 2-3.
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On appeal, Hogan raises the following issue for our review: “Whether
the PCRA court erred when it dismissed [Hogan]’s [PCRA] petition . . . without
ordering an evidentiary hearing to determine if [Hogan]’s conviction was
tainted by [Detective Nordo’s] physical coercion of witnesses . . . to secure
false testimony implicating [Hogan] as [one of Negron’s] shooter[s]?” See
Appellant’s Brief, at 6.
The appellate standard of review for the denial of PCRA relief is well-
settled:
Our review of a PCRA court’s decision is limited to examining
whether the PCRA court’s findings of fact are supported by the
record, and whether its conclusions of law are free from legal
error. The scope of review is limited to the findings of the PCRA
court and the evidence of record, viewed in the light most
favorable to the prevailing party at the PCRA court level.
Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citations
omitted).
As an initial matter, we must address this Court’s jurisdiction to hear
Hogan’s instant PCRA petition. See Commonwealth v. Hernandez, 79 A.3d
649, 651 (Pa. Super. 2013). (“[The PCRA’s] time requirement is mandatory
and jurisdictional in nature, and the court may not ignore it in order to reach
the merits of the petition.”). Generally, a petition for relief under the PCRA
must be filed within one year of the date the judgment of sentence becomes
final, unless the petitioner alleges, and proves, an exception to the time for
filing the petition, as set forth at 42 Pa.C.S.A. §§ 9545(b)(1)(i), (ii), and (iii).
A PCRA petition invoking one of these statutory exceptions to the jurisdictional
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time-bar must be filed within sixty days from the date the petitioner’s claim
arises. See 42 Pa.C.S.A. § 9545(b)(2).3 Under the PCRA, a judgment of
sentence becomes final “at the conclusion of direct review, including
discretionary review in the Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration of time for seeking the
review.” 42 Pa.C.S.A. § 9545(b)(3). “When a PCRA [petition] is not filed
within one year of the expiration of direct review, or not eligible for one of the
exceptions, the [PCRA] court has no power to address the substantive merits
of a petitioner’s PCRA claims.” Commonwealth v. Shiloh, 170 A.3d 553,
557 (Pa. Super. 2017).
First, we note that Hogan’s instant PCRA petition, his fifth, is patently
untimely since it was filed several years after his judgment of sentence
became final. See 42 Pa.C.S.A. § 9545(b)(1). Because his petition is
untimely, Hogan must invoke an exception to the jurisdictional time-bar. See
Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000) (PCRA time limit
is jurisdictional; court may only review untimely petition if statutory exception
applies). Hogan relies on the newly-discovered fact exception, see 42
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3 On October 24, 2018, the General Assembly amended subsection 9545(b)(2)
to enlarge the time in which a petitioner may invoke a PCRA time-bar
exception from 60 days to one year from the date the claim arises. See Act
2018, Oct. 24, P.L. 894, No. 146, § 2, effective in 60 days [Dec. 24, 2018].
However, the amendment applies only to claims arising on December 24,
2017, or thereafter. Id. at § 3. Here, Hogan raises a due process challenge
based on Detective Nordo’s alleged misconduct during the investigation of
Hogan’s criminal case. Since Hogan was made aware of the alleged
misconduct at trial, in 2013, the 60-day deadline applies.
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Pa.C.S.A. § 9545(b)(1)(ii), and the governmental interference exception to
invoke the PCRA court’s authority to exercise jurisdiction. Id. at §
9545(b)(1)(i). In his appellate brief, Hogan explains that, upon reading a
news article that reported on newly-filed criminal charges that were lodged
against Detective Nordo, alleging police misconduct during his investigation
into a number of criminal cases, Hogan filed a motion for discovery in his own
case. Subsequently, due to the nature of the criminal charges filed against
Detective Nordo and his involvement in Hogan’s case, the Commonwealth
voluntarily turned over its case file to Hogan on December 18, 2019 and
December 20, 2019. Hogan then hired a private investigator to locate
witnesses in his own case who had had contact with Detective Nordo. Hogan
concedes that he was unsuccessful in securing the necessary signed
certifications from the witnesses who Detective Nordo interviewed4 in order
for the court to conduct Hogan’s requested evidentiary hearing. See 42
Pa.C.S.A. § 9545(d)(1). Nevertheless, Hogan suggests that “exceptional
circumstances” are present in this case such that the court should be required
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4 Hogan’s private investigator searched for Walker, Miller, Torres-Burgos,
Estrada, and Laboy, since all had been interviewed by Nordo. The investigator
did not locate Walker. See Appellant’s Brief, at 23. Hogan’s investigator
located Miller, who stated that Detective Nordo had hit him. Id. at 24. The
investigator also located Torres-Burgos, who stated that he did not recognize
Detective Nordo, but that his police interviewer for Hogan’s case used force
but did not hit him. Id. at 23-24. The investigator also spoke with Estrada
over the telephone, and she stated that Detective Nordo had utilized physical
force when interviewing her; however, Estrada mentioned that she didn’t want
to cooperate with Hogan. Id. at 23. Finally, the investigator discovered that
Edwin Laboy is deceased. Id. at 24.
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to issue subpoenas to the affected trial witnesses so that the court may hold
an evidentiary hearing on Hogan’s claims of police coercion. See Appellant’s
Brief, at 22, 26-27. Hogan additionally relies on the statutory definition of
after-discovered evidence to establish his eligibility for relief under the PCRA.5
See 42 Pa.C.S.A. § 9543(a)(2)(vi). After our review of the record, we
conclude that Hogan is not entitled to an evidentiary hearing since he has not
successfully pleaded an exception to the jurisdictional time-bar.
In order to overcome the PCRA’s jurisdictional hurdle, under the newly-
discovered facts exception, see 42 Pa.C.S.A. § 9545(b)(1)(ii), the petitioner
“must establish that: (1) the facts upon which the claim was predicated
were unknown[;] 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 [section
9545(b)(1)(ii)].” Commonwealth v. Brown, 111 A.3d 171, 177 (Pa. Super.
2015) (citing Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007))
(emphasis in original). Due diligence requires a petitioner to take reasonable
efforts to uncover facts that may support a claim for collateral relief.
Commonwealth v. Burton, 121 A.3d 1063, 1071 (Pa. Super. 2015) (en
banc). A petitioner must explain why he could not have learned the new
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5 For clarity, we note that newly-discovered facts, see 42 Pa.C.S.A. §
9545(b)(1)(ii), and after-discovered evidence, see 42 Pa.C.S.A. §
9543(a)(2)(vi), are separate and distinct. Commonwealth v. Burton, 158
A.3d 618, 629 (Pa. 2017); see also Commonwealth v. Cox, 146 A.3d 221,
227-30 (Pa. 2016) (appellant must invoke PCRA court’s jurisdiction prior to
review of eligibility for relief under subsection 9543(a)(2)(vi)).
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fact(s) earlier by exercising due diligence. Commonwealth v. Breakiron,
781 A.2d 94, 98 (Pa. 2001). Our Supreme Court has clarified that “the newly-
discovered facts exception is not focused on new[ly] discovered or newly
willing sources for ‘facts’ that were already known.” Commonwealth v.
Marshall, 947 A.2d 714, 721-22 (Pa. 2008) (emphasis omitted).
Here, Hogan characterizes the Commonwealth’s disclosure to him
regarding the charges filed against Detective Nordo for his alleged misconduct
in other cases as the “new fact” satisfying the exception to the time-bar for
his instant PCRA petition. Nevertheless, each of the witnesses that Hogan
identifies as having been unduly coerced by Detective Nordo already testified
at Hogan’s trial, in 2013, regarding his or her statements to police and the
investigation tactics police used when procuring those statements. Hogan
cannot explain why he could not have known of the fact of Detective Nordo’s
misconduct as early as 2013, given the witnesses’ trial testimony. See
Brown, supra. Indeed, Hogan could have learned of the now-complained-of
misconduct, at that time, by the exercise of due diligence. See Burton,
supra; Breakiron, supra. We conclude that each of Hogan’s proposed
witnesses at the evidentiary hearing would be a newly-willing6 source for the
previously known fact of Detective Nordo’s alleged misconduct during his
investigation of Hogan’s case. See Marshall, supra.
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6 We recognize that Hogan’s proposed witnesses are, in fact, the same
sources, and would, indeed, be newly willing if permitted to testify on the
subject.
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Additionally, regarding the governmental interference exception, 42
Pa.C.S.A. § 9545(b)(1)(i), Detective Nordo’s alleged misconduct, even if
proved, would not trigger the exception since Detective Nordo’s allegedly
assaultive and coercive acts would have occurred during pre-trial
investigation, or at trial, and would not have interfered with Hogan’s
presentation of his current claim at that proceeding. Id.; see also
Commonwealth v. Chimenti, 218 A.3d 963, 975 (Pa. Super. 2019) (“The
proper question with respect to [s]ection 9545(b)(1)(i)’s timeliness exception
is whether the government interfered with Appellant’s ability to present his
claim and whether Appellant was duly diligent in seeking the facts on which
his claims are based.”) (citation and quotation marks omitted). Indeed,
Hogan’s proposed witnesses already testified, at trial, regarding
Detective Nordo’s alleged misconduct and Hogan was not interfered with
or prevented from raising that claim at that time. See Chimenti, supra.
Since Hogan has failed to plead and prove any exception to the PCRA’s
time bar, we find that the PCRA court’s dismissal of his petition is supported
by the record. See Shiloh, supra; see also Koehler, supra.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/8/2021
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