Com. v. Pernell, L.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
LAQUAN PERNELL :
:
Appellant : No. 3215 EDA 2018
Appeal from the PCRA Order Entered October 10, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-12715-2010
*****
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TAMIR LEE :
:
Appellant : No. 72 EDA 2019
Appeal from the PCRA Order Entered November 20, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003299-2011
BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 03, 2019
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Laquan Pernell and Tamir Lee (Appellants) each appeal from an order,1
entered in the Court of Common Pleas of Philadelphia County, denying their
petitions filed pursuant to the Post-Conviction Relief Act, 42 Pa.C.S.A. §§
9541-9546 (PCRA), without a hearing. After our review, we affirm.
On December 11, 2012, at a joint guilty plea hearing, Appellants each
entered guilty pleas to third-degree murder, conspiracy to commit murder,
and possession of an instrument of crime.2 The guilty pleas stemmed from
Appellants’ involvement in the 2010 murder of Aaron Lewis. The court
sentenced both Appellants to twenty-five to fifty years’ imprisonment.
Appellants filed post-sentence motions, each of which was denied by operation
of law. Neither filed a direct appeal.
On June 13, 2017, Pernell filed a counseled PCRA petition. The
Commonwealth filed a motion to dismiss and the PCRA court, after review,
issued notice of intent to dismiss pursuant to Pa.R.Crim.P. 907. Pernell did
not respond and the PCRA court dismissed the petition without a hearing.
On January 29, 2015, August 14, 2015 and December 2, 2015, Lee filed
pro se motions, each of which the court treated as PCRA petitions. See 42
Pa.C.S.A. § 9542 (“The action established in this subchapter shall be the sole
means of obtaining collateral relief and encompasses all other common law
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1 Pernell and Lee were scheduled to be tried together. They both entered
guilty pleas following jury selection, and both raise the same issue on appeal.
Pursuant to Pa.R.A.P. 513, we have consolidated these cases on appeal.
2 The guilty pleas were negotiated as to charges, and open as to sentencing.
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and statutory remedies for the same purpose that exist when this subchapter
takes effect, including habeas corpus and coram nobis.”); see also
Commonwealth v. Yarns, 731 A.2d 581, 586 (Pa. 1999) (“The PCRA
provides the sole means of obtaining collateral relief for claims that are
cognizable under the PCRA.”). The court appointed counsel for Lee and,
thereafter, counsel filed a no-merit letter pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1988) (en banc). The PCRA court issued notice of intent to
dismiss pursuant to Pa.R.Crim.P. 907, and Lee filed a response. The court,
after reviewing the record, denied relief and granted counsel’s petition to
withdraw. Lee filed a pro se appeal. This Court, finding the petition was
untimely and Lee had failed to plead and prove an exception to the
jurisdictional time bar, affirmed. Commonwealth v. Lee, 181 A.3d 1197(Pa. Super. 2017) (Table). Lee did not file a petition for allowance of appeal
in the Pennsylvania Supreme Court. While the appeal was pending in our
Court, Lee filed a counseled, second PCRA petition on June 21, 2017, raising
a previously litigated claim involving newly discovered facts concerning
Detective Ronald Dove. The PCRA court took no action until after this Court
decided the pending appeal. On August 22, 2018, the PCRA court issued
notice of intent to dismiss pursuant to Pa.R.Crim.P. 907. On November 20,
2018, the court denied Lee’s second PCRA petition.
Appellants timely appealed the orders dismissing their PCRA petitions.
They each raise the following issue:
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Did the trial court err, abuse its discretion, and/or make a mistake
of law when it denied Appellant[s’] [PCRA]petition for relief based
on newly[-]discovered evidence, on October 10, 2018 [with
respect to Pernell] and on November 20, 2018 [with respect to
Lee], without an evidentiary hearing, as impeachment[-]
evidence[-]only material, which is also barred as being untimely
filed, when the PCRA petition alleged misconduct in the habit and
routine practice of the Homicide Unit and Detective Ronald Dove?
Appellants’ Briefs, at 2.
Appellants point to the fact that on April 26, 2017, former Philadelphia
Homicide Detective Ronald Dove entered a guilty plea to various charges
involving obstruction of an investigation into the involvement of his girlfriend
in a September 2013 homicide. The Philadelphia Police Department had
dismissed Dove in November 2013 for misconduct, and he was arrested on
January 21, 2015. On April 26, 2017, Dove entered a guilty plea to various
charges, including unsworn falsification to authorities3 and hindering
apprehension or prosecution.4
Appellants argue that Dove’s misconduct and improprieties indicate that
the Homicide Unit routinely falsified evidence. Appellants argue that had trial
counsel known of this, he would not have permitted them to enter guilty pleas
and, had the court known, it would not have accepted Appellants’ pleas.
We review an order denying collateral relief under the PCRA to
determine whether evidence of record supports the findings of the PCRA court
and whether its legal conclusions are free from error. Commonwealth v.
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3 18 Pa.C.S.A. § 4910(1).
4 18 Pa.C.S.A. § 4904(a)(1).
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Mitchell, 105 A.3d 1257, 1265 (Pa. 2014). “The PCRA court’s credibility
determinations, when supported by the record, are binding on this Court;
however, we apply a de novo standard of review to the PCRA court’s legal
conclusions.” Id. (quoting Commonwealth v. Roney, 79 A.3d 595, 603 (Pa.
2013)).
In this case, the PCRA court dismissed Appellants’ petitions without a
hearing. There is no absolute right to an evidentiary hearing. See
Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008). On
appeal, we examine the issues raised in light of the record “to determine
whether the PCRA court erred in concluding that there were no genuine issues
of material fact and in denying relief without an evidentiary hearing.” Id.Here, Appellants do not dispute their petitions are patently untimely;5
they rely on the PCRA’s newly discovered fact exception, 42 Pa.C.S.A. §
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5 The three exceptions to the PCRA time bar are:
(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.
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9545(b)(1)(ii) to overcome the time bar, and argue their substantive after-
discovered evidence claim has merit. The PCRA provides an exception to the
one-year time bar where “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). The exception must be
pleaded within 60 days of the date the claim could have been presented. 42
Pa.C.S.A. § 9545(b)(2).6 Our Supreme Court has explained “the newly-
discovered facts exception to the time limitations of the PCRA, as set forth in
subsection 9545(b)(1)(ii), is distinct from the after-discovered evidence basis
for relief delineated in 42 Pa.C.S. § 9543(a)(2).” Commonwealth v. Burton,
158 A.3d 618, 629 (Pa. 2017).
To qualify for an exception to the PCRA’s time limitations under
subsection 9545(b)(1)(ii), a petitioner need only establish that the
facts upon which the claim is based were unknown to him and
could not have been ascertained by the exercise of due diligence.
However, where a petition is otherwise timely, to prevail on an
after-discovered evidence claim for relief under subsection
9543(a)(2)(vi), a petitioner must prove that (1) the exculpatory
evidence has been discovered after trial and could not have been
obtained at or prior to trial through reasonable diligence; (2) the
evidence is not cumulative; (3) it is not being used solely to
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42 Pa.C.S. § 9545(b)(1)(i)-(iii).
6As of December 24, 2018, Section 9545(b)(2) now provides that any PCRA
petition invoking a timeliness exception must be filed within one year of the
date the claim first could have been presented. See Act 2018, Oct. 24, P.L.
894, No. 146, § 2, effective in 60 days [Dec. 24, 2018]. This amendment
applies to claims arising on or after December 24, 2017. Because Pernell and
Lee filed their PCRA petitions prior to December 24, 2017, the amendment
does not apply here.
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impeach credibility; and (4) it would likely compel a different
verdict. Commonwealth v. D'Amato, 579 Pa. 490, 856 A.2d
806, 823 (Pa. 2004); see [Commonwealth v.] Cox, 146 A.3d
[221] 227–28 [(Pa. 2016)] (“Once jurisdiction has been properly
invoked (by establishing either that the petition was filed within
one year of the date judgment became final or by establishing one
of the three exceptions to the PCRA's time-bar), the relevant
inquiry becomes whether the claim is cognizable under [Section
9543] of the PCRA.”).
Burton, supra at 629.
Appellant Purnell filed his PCRA petition on June 13, 2017. Appellant
Lee filed his PCRA petition on June 21, 2017. The PCRA court stated that in
order to comply with the sixty-day window to seek PCRA relief based on the
newly discovered facts exception, Appellants would have had to have filed
their petitions within sixty days of January 22, 2015, the date that Dove was
arrested. The PCRA court found Appellants failed to exercise due diligence
and, therefore, their petitions were untimely. 42 Pa.C.S.A. § 9545(b)(2). The
PCRA court determined, however, that even had Appellants exercised due
diligence, their claims would fail.
We find Appellants timely filed their petitions within 60 days of the date
Dove entered his guilty plea. Even accepting that Appellants’ claims satisfy
the newly discovered facts exception, 42 Pa.C.S.A. § 9545(b)(1)(ii), we agree
with the PCRA court’s determination that Appellants have not raised a genuine
issue of material fact that would entitle him to PCRA relief on the basis of
after-discovered evidence.
Once jurisdiction has been properly invoked (by establishing
either that the petition was filed within one year of the date
judgment became final or by establishing one of the three
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exceptions to the PCRA’s time-bar), the relevant inquiry becomes
whether the claim is cognizable under the PCRA. Section 9543,
titled “[e]ligibility for relief,” governs this inquiry. Among other
requirements not pertinent to this appeal, section 9543 delineates
seven classes of allegations that are eligible for relief under the
PCRA. See 42 Pa.C.S.A. § 9543(a)(2). Of relevance here is the
“after-discovered evidence” provision, which states that a claim
alleging “the unavailability at the time of trial of exculpatory
evidence that has subsequently become available and would have
changed the outcome of the trial if it had been introduced” is
cognizable under the PCRA. 42 Pa.C.S.A. § 9543(a)(2)(vi).
Commonwealth v. Cox, 146 A.3d at 228. As stated above, to establish such
a claim, a petitioner must prove that “(1) the evidence has been discovered
after trial and it could not have been obtained at or prior to 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.” D'Amato, 856 A.2d at 823.7
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7 Appellants pleaded guilty rather than choosing to go to trial. Ordinarily, a
plea of guilty waives all defects and defenses except lack of jurisdiction,
legality of the sentence, and the validity of the plea. Commonwealth v.
Pantalion, 957 A.2d 1267, 1271 (Pa. Super. 2008) (citation omitted).
However, in Commonwealth v. Peoples, 319 A.2d 679 (Pa. 1974), the
Pennsylvania Supreme Court held that an after-discovered evidence claim is
available to a defendant who pleads guilty.
We are of the opinion that any after-discovered evidence which
would justify a new trial would also entitle a defendant to withdraw
his guilty plea. It would be incongruous to allow a defendant a
new trial on the basis of after-discovered evidence when he has
already had one trial, but to deny him a new trial on the basis of
such evidence merely because he had originally decided not to go
to trial, but plead guilty, perhaps because he did not have the
additional evidence.
Id. at 681.
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Here, Appellants rely on Dove’s crimen falsi convictions, in an unrelated
matter, that occurred five years after they entered their guilty pleas.8
Appellants allege that their guilty pleas were coerced by Dove and the other
detectives in the Homicide Unit, that Dove’s convictions buttress their claim
of widespread corruption in the Homicide Unit, and that this evidence is
relevant to establish “habit and custom,” in the Homicide Unit. See Pa.R.E.
406. Thus, Appellants claim, the convictions would not solely be used for
impeachment purposes. We disagree. Unless Appellants can establish a
sufficient nexus to their cases, Dove’s convictions can be used only for
impeachment purposes. See Commonwealth v. Johnson, 179 A.3d 1105,
1122-23 (Pa. Super. 2018).
Here, Dove took a written inculpatory statement from Lee. See N.T.
Preliminary Hearing, 3/22/11, at 6-7. Although Dove was the assigned
detective in Pernell’s case, Detective James Burns and Detective Angela
Gaines took Pernell’s statement. See N.T. Preliminary Hearing, 10/13/10, at
4-5, 14. If in fact Appellants were “coerced” to make statements, which is
the basis of their claims, they would have been aware of that fact at the time
of their pleas, well before Dove’s arrest or convictions. None of these
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8 Numerous defendants in recent years similarly and unsuccessfully have
sought relief under the PCRA due to former Detective Dove’s criminal
misconduct. As noted above, Dove entered a guilty plea on April 26, 2017.
We take judicial notice of the criminal docket at CP–51–CR–0001382–2015,
Commonwealth v. Ronald S. Dove, and the convictions reflected on
thereon.
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allegations is supported by the record, nor were they raised at the joint guilty
plea colloquy or in prior filings. Further, at the plea colloquy, Appellants
acknowledged the factual bases of their pleas, their roles in the murder, and
that no threats were made to induce their pleas. See N.T. Guilty Plea,
12/11/12, at 10, 13-20.
Finally, Dove’s criminal misconduct in protecting his girlfriend, which
occurred several years after Appellants’ guilty pleas, has no nexus to
Appellants’ particular cases. Dove’s subsequent misconduct and convictions
could not influenced Appellants’ prior decisions to plead guilty. Therefore,
Appellants cannot show that the proffered “evidence” of Detective Dove’s
convictions would compel a different result. Unless Appellants can show that
somehow Dove’s future obstruction in a personal matter affected the validity
of their earlier guilty pleas, Dove’s convictions could be used only for
impeachment purposes. See Johnson, supra (petitioner not entitled to relief
based on newly discovered evidence of subsequent criminal convictions of
detective). See also Commonwealth v. Foreman, 55 A.3d 532 (Pa. Super.
2012) (filing of criminal charges against detective in unrelated matter does
not meet after-discovered evidence test since such evidence would be used
solely to impeach the credibility of the detective).
Appellants were not entitled to a PCRA evidentiary hearing as they failed
to support their claims that Detective Dove manipulated or induced their
confessions or guilty pleas. Thus, because Dove’s convictions could be used
only for impeachment purposes, and the evidence of those convictions is not
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exculpatory and would not have altered the outcomes here, the PCRA court
properly denied relief. We find no error. Springer, supra.Orders affirmed.
Judge McLaughlin joins this Memorandum.
Judge Nichols did not participate in the consideration or decision of this
matter.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/3/19
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