Com. v. Anderson, M.

J-S45043-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL ANDERSON :
:
Appellant : No. 1895 EDA 2021
Appeal from the PCRA Order Entered August 12, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at CP-51-CR-0358761-1992
BEFORE: OLSON, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED MARCH 7, 2023
Michael Anderson (Appellant) appeals pro se from the order denying his
third petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”).1 We affirm.
In affirming Appellant’s judgement of sentence on direct appeal, this
Court described the facts underlying Appellant’s convictions:
At 9:30 p.m. on February 15, 1992, [A]ppellant, his codefendant
Robert Lindsay, and Courtney James entered a grocery store
located at 115 East Allegheny Street in Philadelphia, Pennsylvania.
While James positioned himself next to the clerk by the cash
register, the other two surrounded the second store employee[,
Jesus Amparo (Amparo),] by the door. Lindsay then put a gun to
[Amparo’s] neck and told him not to move. When [Amparo]
turned his head, Lindsay shot him in the neck, injuring, [but] not
killing him. Appellant then fired two shots at the other employee
____________________________________________
1 42 Pa.C.S.A. §§ 9541-9546.
J-S45043-22
behind the cash register. The employee ducked, and the shots
instead struck James in the head and back, killing him.
As [A]ppellant and Lindsay ran out of the store, one of the store
employees fired several shots at them as they fled. Despite this,
the two assailants escaped. Subsequently, on February 28, 1992,
[A]ppellant was arrested and charged with murder in the second
degree, two counts of robbery, conspiracy, aggravated assault,
simple assault, possession of an instrument of crime, and violation
of the uniform firearms act. Following a five day non-jury trial, on
March 8, 1993, [A]ppellant was found guilty of second degree
murder, criminal conspiracy, two counts of robbery, aggravated
assault, and possession of an instrument of crime. Post-verdict
motions were denied and on October 15, 1993, [A]ppellant was
sentenced to life imprisonment for second degree murder, ten to
twenty years imprisonment for each count of robbery, ten to
twenty years imprisonment for aggravated assault, and five to ten
years imprisonment for conspiracy, all sentences to be served
consecutively….
Commonwealth v. Anderson, 660 A.2d 649 (Pa. Super. 1995) (unpublished
memorandum at *1-2) (footnotes omitted).
The PCRA court subsequently explained:
On March 3, 1995, the Superior Court affirmed [Appellant’s]
judgment of sentence[,] and on August 21, 1995, the
Pennsylvania Supreme Court denied allocator. [See id., appeal
denied 664 A.2d 971 (Pa. 1995).]
… [Appellant] filed a PCRA petition, which was dismissed on
August 6, 2003. [Appellant] appealed and on June 22, 2005, the
Superior Court dismissed the appeal for failure to file briefs.
[Commonwealth v. Anderson, No. 2710 EDA 2003 (Pa. Super.
2003).] [Appellant] filed [a second] PCRA petition on August 13,
2012, which was dismissed by the [PCRA] court on October 3,
2018. [Appellant] did not file an appeal.
On December 4, 2018, [Appellant] filed the instant pro se
PCRA petition. [Appellant subsequently filed an amended petition
and submitted various pro se correspondence.] Pursuant to
Pa.R.Crim.P. 907, [Appellant] was served notice of [the PCRA
court’s] intention to dismiss his petition on June 17, 2021. A
-2-
J-S45043-22
Response to the [c]ourt’s 907 Notice was received on June 29,
2021. [The PCRA court] dismissed his petition as untimely without
exception on August 12, 2021. [Appellant] filed his Notice of
Appeal on September 10, 2021.
PCRA Court Opinion, 2/9/22, at 1-2 (footnotes omitted). Appellant and the
PCRA court complied with Pa.R.A.P. 1925.
Appellant presents the following issue for review:
Did the PCRA Court abuse its discretion in denying Appellant’s
Subsequent PCRA Petition and denied Appellant Due Process?
Appellant’s Brief at 3.
It is well-settled that we review the propriety of an order denying PCRA
relief “in the light most favorable to the prevailing party at the PCRA level.”
Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super. 2015) (quoting
Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (en banc)).
Our standard of review of an order denying PCRA relief “is whether the
determination of the PCRA court is supported by the evidence of record and is
free of legal error.” Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.
Super. 2012). We grant great deference to the PCRA court’s findings and will
not disturb them unless they have no support in the certified record.
Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014).
We must consider the timeliness of Appellant’s petition. A PCRA petition
must be filed within one year of the date the petitioner’s judgment of sentence
became final. 42 Pa.C.S.A. § 9545(b)(3). The one-year time limitation is
jurisdictional; a PCRA court may not address the substantive merits of an
-3-
J-S45043-22
untimely petition. Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super.
2014).
Appellant’s judgment of sentence became final on November 19, 1995
(90 days after the Pennsylvania Supreme Court denied Appellant’s petition for
allowance of appeal, and the time for filing a petition for review with the United
States Supreme Court expired). See 42 Pa.C.S.A. § 9545(b)(3) (“judgment
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”);
U.S.Sup.Ct.R. 13 (a petition for certiorari must be filed within 90 days after
entry of judgment). Thus, Appellant’s PCRA petition filed December 4, 2018,
is untimely.
The PCRA’s time bar can be overcome by a petitioner’s satisfaction of
an exception codified at 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Commonwealth
v. Spotz, 171 A.3d 675, 678 (Pa. 2017). The three exceptions are
government interference, newly discovered facts, and a newly recognized
constitutional right. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A petition invoking an
exception must be “filed within one year of the date the claim could have been
presented.” Id. § 9545(b)(2). The PCRA petitioner bears the burden of
pleading and proving an exception. Commonwealth v. Robinson, 139 A.3d
178, 186 (Pa. 2016).
-4-
J-S45043-22
Here, Appellant invokes the newly discovered facts exception codified at
Section 9545(b)(1)(ii).
The timeliness exception set forth in Section 9545(b)(1)(ii)
requires a petitioner to demonstrate he did not know the facts
upon which he based his petition and could not have learned those
facts earlier by the exercise of due diligence…. Additionally, the
focus of this exception “is on the newly discovered facts, not on a
newly discovered or newly willing source for previously known
facts.”
[A]s an initial jurisdictional threshold, Section
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. See 42
Pa.C.S.A. § 9545(b)(1)(ii). Once jurisdiction is established, a
PCRA petitioner can present a substantive after-discovered-
evidence claim. See 42 Pa.C.S.A. § 9543(a)(2)(vi) (explaining
that to be eligible for relief, petitioner must plead and prove by a
preponderance of evidence that the conviction or sentence
resulted from, inter alia, unavailability at the time of trial of
exculpatory evidence that has subsequently become available and
would have changed outcome of trial if it had been introduced)….
...
Thus, the “new facts” exception at Section 9545(b)(1)(ii) does not
require any merits analysis of an underlying after-discovered-
evidence claim.
Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015) (emphasis
added; some citations omitted).
Appellant claims he recently discovered that the police officers involved
in his case committed misconduct in other cases. Appellant’s Brief at 10.
Appellant asserts he discovered this misconduct from the civil settlements
entered in Gilyard v. Dusak, No. 16-2986, and Wright v. City of Phila., No.
16-5020. Appellant’s Brief at 10. Appellant insists, “if [he] had known about
-5-
J-S45043-22
this information sooner, he would have investigated and used it in support of
his innocence claim.” Id.Appellant additionally cites the police misconduct disclosure recently
shared by the Commonwealth, which we address below. Id. Appellant
argues:
[T]he information about the habitual patterns and practices of
working witnesses to make false identification and false
statements committed by detectives Dennis Dusak, Manuel
Santiago, Frank Jastrzembski, Martin Devlin, and David Baker, has
met the burden of the unknown facts exception[] under [42
Pa.C.S.A.] § 9545(b)(1)(ii).
Id. According to Appellant, the PCRA court misapplied our Supreme Court’s
analysis in Commonwealth v. Watts, 23 A.3d 980 (Pa. Super. 2011).
Appellant’s Brief at 10-11. Appellant distinguishes Watts, claiming the
patterns and practices of police misconduct, illustrated in the Gilyard and
Wright cases, support his claim of actual innocence. Id. at 11. Appellant
posits:
Det. Dusak was afforded qualified immunity because the law
which would have prevented him from concealing evidence of eye
witness’s criminal histories was not established in 1997 and 1998
at the time of Gilyard’s arrest and conviction.
However, the immunity does not negate Dusak’s
transgressions in prosecuting two innocent men, [] Gilyard and
Felder. And the clear fact of Dusak’s illicit conduct by intimidating
witness[es] and falsifying testimony to identify Gilyard and Felder.
And using flawed witnesses’ identification and techniques in order
to assert probable cause and obtain [an] arrest warrant. In
addition, omitting exculpatory and inconsistent eyewitness
account[s]. Regarding of the immunity, Det. Dusak is guilty as
sin.
-6-
J-S45043-22
Appellant’s Brief at 11 (some grammar corrected).
Appellant claims Detective Dusak “coerced [a witness,] Marcella
Smith[,] to make [a] false fabrication statement against Appellant following
his arrest.” Id. at 16 (capitalization altered). Appellant argues Detective
Dusak additionally provided Ms. Smith with details about the crime to bolster
her testimony. Id. Appellant contends that in his case, Detectives Dusak and
Santiago engaged in the same misconduct present in Gilyard and Wright:
Appellant claims:
The detectives coerced one of the victims in Appellant’s case to
identify him from a bogus photo array and use as evidence of
probable cause to obtain [an] arrest warrant for the instant
Appellant. Later on[,] the victim failed to identify Appellant and
the bogus identification was dismissed, but following [] Appellant’s
arrest, Det. Dusak coerced [Appellant’s] then girlfriend Marcella
Smith to give a false statement against him which was used to
hold Appellant over for trial.
Id. at 12.
Appellant cites this Court’s memorandum decision in Commonwealth
v. Phillips, No. 815 EDA 2020 (Pa. Super. Filed May 21, 2021) (unpublished
memorandum). Appellant’s Brief at 11. Appellant emphasizes that the PCRA
court in Phillips credited the petitioner’s claim of newly discovered facts. Id.
However, Appellant offers no further analysis regarding our decision in
Phillips, where we affirmed the PCRA court’s dismissal of the petitioner’s
second PCRA petition because it “was ultimately meritless.” See id.; see also
Phillips at *1.
-7-
J-S45043-22
Appellant’s claim that Detective Santiago used coercion to obtain
witness identification is not a newly discovered fact. See Appellant’s Brief at
14. Furthermore, the trial court banned the identification from the photo
array. See N.T. (Trial), 3/2/93, at 77-83, 88. Appellant thus failed to
demonstrate this fact was “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).
Likewise, Appellant’s reliance on our decision in Phillips affords no
relief. In Phillips, the PCRA court found the petitioner’s claim that
Philadelphia Police Detective James Pitts coerced a confession satisfied the
newly discovered facts exception. Commonwealth v. Phillips, No. 815 EDA
2020, at *1. The petitioner in Phillips claimed as a newly discovered fact, a
trial court’s recent finding that Detective Pitts coerced witnesses and
fabricated evidence. Id. at *2. The petitioner additionally claimed his trial
counsel rendered ineffective assistance by not raising the issue of Detective
Pitts’ coercion. Id. at *12. The PCRA court agreed that Detective Pitts’s
history of misconduct constituted a newly discovered fact, but concluded the
petitioner’s substantive claim based on the coercion “was ultimately
meritless.” Id. at *1. Citing our standard of review, this Court declined to
disturb the PCRA court’s finding and affirmed the denial of relief. Id. at *16.
This case is distinguishable from Phillips. Here, the PCRA court
rejected Appellant’s claim of newly discovered facts. The PCRA court
explained:
-8-
J-S45043-22
[Appellant] failed to demonstrate how [Detective] Dusak’s alleged
misconduct could not have been discovered previously with the
exercise of due diligence. Presumably, [Detective] Dusak’s
purported transgressions would have been known to [Appellant]
at the time of trial and therefore do not constitute “newly-
discovered” information. Furthermore, with respect to the cases
cited, Gilyard v. Dusak … and Wright v. City of Philadelph[,
Appellant] appeared to refer to the allegations in the
pleadings, rather than any judicial decision in the case.
Even assuming [Appellant] was attempting to rely on any such
decision, a judicial opinion does not qualify as a previously
unknown “fact” capable of triggering the timeliness exception set
forth in the PCRA. Commonwealth v. Watts, 23 A.3d 980 (Pa.
2011). Therefore, [Appellant] failed to meet his burden of
establishing the previously unknown fact exception.
PCRA Court Opinion, 2/9/22, at 3-4 (emphasis added). The record supports
the PCRA court’s analysis.
Appellant claims that witness Marcella Smith fabricated her testimony.
In the PCRA petition Appellant filed 20 years ago, Appellant blamed the
prosecutor for coaching Ms. Smith and eliciting fabricated testimony from her.
PCRA Petition, 9/10/02, at 6. The PCRA court rejected the claim. PCRA Court
Opinion, 9/22/03, at 3-4. Presently, Appellant fails to demonstrate how he
could not have known about the detective’s role in coercing Ms. Smith’s
testimony with the exercise of due diligence. See 42 Pa.C.S.A. §
9545(b)(1)(ii) (requiring petitioner to allege and prove the facts were
unknown to him and he exercised due diligence in discovering the facts).2
____________________________________________
2 See also Commonwealth v. Cox, 983 A.2d 666, 699 (Pa. 2009) (“This
Court had previously held that a PCRA petitioner cannot obtain post-conviction
review of previously litigated claims by alleging ineffective assistance of prior
(Footnote Continued Next Page)
-9-
J-S45043-22
Mindful of our standard of review, we will not disturb the PCRA court’s
determination. See Rizvi, 166 A.3d at 347.
Finally, we recognize that the Commonwealth has notified Appellant and
this Court about the detectives involved in Appellant’s case being cited for
misconduct and/or indicted for perjury or false statements in other cases. See
Commonwealth Brief at 10-11. This information does not negate the PCRA
court’s analysis and disposition. See PCRA Court Opinion, 2/9/22, at 3-4; see
also Commonwealth v. Kenney, 732 A.2d 1161, 1165 (Pa. 1999) (appellate
court may not consider issue as a factfinder). Upon review, we discern no
error or abuse of discretion by the PCRA court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/7/2023
____________________________________________
counsel and presenting new theories of relief on the same facts.” (citation
omitted)).
- 10 -