Com. v. Gant, D.

J-A07026-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANIEL GANT :
:
Appellant : No. 2141 EDA 2021
Appeal from the PCRA Order Entered October 4, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0354603-1993
BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED MAY 24, 2023
Daniel Gant appeals from the order denying his Post Conviction Relief
Act (“PCRA”)1 petition. Gant contends his discovery of new evidence warrants
a new trial, and alleges that the Commonwealth violated Brady v. Maryland,
373 U.S. 83 (1963), by suppressing the evidence. We affirm.
In 1993, Gant and his cousin, Devere Gant (“Devere”), robbed Andrew
Lewis and Shawn Nelson on a Philadelphia city street. An off-duty police
officer, Anthony Haye, witnessed the robbery and intervened. A shootout
ensued, during which Lewis was shot and killed. Gant and Devere escaped in
a car driven by a third man. Gant was injured during the incident, and at the
hospital he told a police officer that he had been robbed of his money and
jewelry at the intersection of 13th Street and Carlisle Street. This roused the
____________________________________________
1 See 42 Pa.C.S.A. §§ 9541-9546.
J-A07026-23
suspicion of the police officer because that intersection does not exist, Gant
was wearing expensive jewelry and still had money with him. The police
brought the surviving victim, Nelson, to the hospital, who identified Gant as
one of the robbers. Nelson later also identified Devere and the getaway driver,
and Officer Haye identified Gant in a lineup. The police found Nelson’s jacket
inside Gant’s girlfriend’s home, and a ring belonging to Lewis inside the
getaway car. Ballistics evidence showed that three guns had been fired at the
scene and that Officer Haye’s gun had not fired the bullets that had killed
Lewis. See PCRA Court Opinion, filed 7/13/22, at 2-3.
The jury convicted Gant of first-degree murder, two counts of
aggravated assault, two counts of robbery, criminal conspiracy, and
possession of an instrument of crime. The court sentenced Gant to life
imprisonment. We affirmed, and the Supreme Court denied allowance of
appeal in 1996.2 Gant thereafter filed multiple unsuccessful PCRA petitions.3
Gant filed the instant pro se petition on February 15, 2018. He thereafter
retained counsel who filed an amended petition. Gant alleged that on
December 17, 2017, he discovered that Nelson’s real name is Wendell E.
Betancourt. He alleged that Betancourt had moved from New York to the
____________________________________________
2 See Commonwealth v. Gant, No. 111 Philadelphia 1995 (Pa.Super. filed
Feb. 7, 1996) (unpublished memorandum), appeal denied, 681 A.2d 176(Table) (Pa. filed July 24, 1996).
3See Commonwealth v. Gant, No. 1544 EDA 2005 (Pa.Super. filed July 17,
2006) (unpublished memorandum); Commonwealth v. Gant, No. 245 EDA
1999 (Pa.Super. filed July 24, 2000) (unpublished memorandum), appeal
denied, 766 A.2d 1244 (Table) (Pa., filed January 9, 2001).
-2-
J-A07026-23
Philadelphia area in the 1990’s, and adopted the alias of Shawn Nelson, and
began using a false birthday and social security number. Gant attached the
affidavit of his fiancé, explaining how she made the discovery when
researching a petition Nelson/Betancourt had filed in federal court. Gant
argued that this constituted after-discovered evidence that would have
undermined Nelson/Bentancourt’s testimony if introduced at trial. Gant also
raised a Brady claim based on the Commonwealth’s alleged suppression of
the evidence. Gant asserted his petition was timely under the newly-
discovered fact exception and the governmental interference exception, and
that he filed his petition within 60 days of his discovery of the new
fact/evidence. See 42 Pa.C.S.A. § 9545(b)(1)(i-ii), (b)(2). The PCRA court
dismissed the petition without a hearing.4
Gant appealed, and raises the following issues:
1. Should the [t]rial [c]ourt have granted [Gant’s] request for an
evidentiary hearing based on the newly discovered evidence
claim?
2. Should the [t]rial [c]ourt have granted [Gant’s] request for an
evidentiary hearing based on the Brady claim?
Gant’s Br. at 5 (suggested answers omitted, italics added).
Gant first argues that his discovery that Nelson/Betancourt used a false
name and social security number warrants the grant of a new trial. He asserts
that Nelson/Betancourt received favorable treatment from the Commonwealth
____________________________________________
4The court first issued notice of its intent to dismiss the petition, in compliance
with Pa.R.Crim.P. 907. Gant filed a timely response to the notice.
-3-
J-A07026-23
in exchange for his testimony in this case, by way of receiving several lenient
sentences for violating his probation. Id. at 13. Gant argues the evidence of
the false name and favorable treatment would have undermined
Nelson/Betancourt’s testimony, and there is a substantial likelihood that this
would have changed the verdict, as there was no physical evidence linking
him to the crime scene, and Officer Haye did not identify him until he was
already in custody. Id. at 15.
Gant also argues that the Commonwealth violated Brady by failing to
disclose Nelson/Betancourt’s real name. He contends he could have used
Nelson/Betancourt’s use of an alias as impeachment evidence, asserting “the
Commonwealth knew . . . or should have known” Nelson/Betancourt was using
an assumed identity. Id. at 13, 17. Like his first issue, Gant argues the
suppression of this information prejudiced him, because aside from
Nelson/Betancourt’s testimony, he alleges, the evidence linking him to the
crime was tenuous. Id. at 17-18.
We review a PCRA court’s determinations to ensure they are supported
by the record and free of legal error. Commonwealth v. Mitchell, 105 A.3d
1257, 1265 (Pa. 2014). We will not disturb the PCRA court’s credibility
findings, when supported by the record, but apply a de novo standard of
review to the PCRA court’s legal conclusions. Id.As a jurisdictional prerequisite to review, a PCRA petition must be
timely. Commonwealth v. Anderson, 234 A.3d 735, 737 (Pa.Super. 2020).
A PCRA petition must be filed within one year of the date that the judgment
-4-
J-A07026-23
of sentence becomes final or plead and prove one of the following three
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.A. § 9545(b)(1). A petitioner claiming an exception based on a claim
arising before December 24, 2017, must also plead and prove that he filed
the petition within 60 days of the first date he could have presented his claim.
Id. at (b)(2) (amended effective Dec. 24, 2018).5
The PCRA court held that the petition was “arguably” timely under the
second exception, as Nelson/Betancourt’s name was previously unknown to
Gant, and he could not have ascertained it earlier. PCRA Ct. Op. at 5. The
Commonwealth concedes the applicability of this exception. Commonwealth’s
Br. at 10. We find no reason to disturb the PCRA court’s conclusions that
Nelson/Betancourt’s real name was previously unknown to Gant, he could not
have ascertained it earlier by the exercise of due diligence, and he promptly
____________________________________________
5 For claims arising on or after December 24, 2017, the petitioner must file
the petition within one year of when the claim could have first been presented.
42 Pa.C.S.A. § 9545(b)(2).
-5-
J-A07026-23
presented his claim once he made his discovery. See 42 Pa.C.S.A. §
9545(b)(1)(ii).
However, to the extent that Gant’s arguments involve bald allegations
that Nelson/Betancourt received favorable treatment by the Commonwealth
in exchange for his testimony, his claims are untimely. Gant does not state
the date on which he discovered that Nelson/Betancourt received sentences
of probation for his violations of probation or assert that he could not have
discovered this information sooner through the exercise of due diligence. Nor
is his petition timely under the first exception, as his allegations do not
substantiate a claim of governmental interference. See 42 Pa.C.S.A. §
9545(b)(1)(i). Nelson/Betancourt’s criminal history was publicly available,
listed under the name “Nelson,” and was thoroughly discussed during cross-
examination. See PCRA Ct. Op. at 5, 7. The court also instructed the jury that
it could consider that Nelson/Betancourt had a potential motive to testify
favorably for the Commonwealth, due to his open violations of probation. See
id. at 5-6. The “fact” of any favorable treatment for Nelson/Betancourt was
neither new nor suppressed.
Turning to the merits of Gant’s claims related to Nelson/Betancourt’s
true name, the court found that the claim failed because the evidence would
have been used only to impeach Nelson/Betancourt’s credibility. The court
also found that it would not likely have resulted in a different verdict, given
Officer Haye’s corroborating testimony and the ballistics evidence, and the
fact that Nelson/Betancourt had been impeached with a lengthy criminal
-6-
J-A07026-23
history, including possession of illegal drugs and firearms.6 Id. The court also
concluded that the Brady claim was meritless, because Gant had not provided
proof that the Commonwealth knew and suppressed Nelson’s real name, and
the evidence was not exculpatory nor material, given the other evidence. Id.
at 6-7.
We find no error in the PCRA court’s analysis. The PCRA provides relief
when a conviction results from “[t]he 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.” 42 Pa.C.S.A. §
9543(a)(2)(vi). However, “to successfully prove an after-discovered evidence
claim under Section 9543(a)(2)(vi), the petitioner must show 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.’” Commonwealth v. Payne, 210 A.3d
____________________________________________6 As the PCRA Court explained,
At [Gant’s] trial, the Commonwealth discussed Nelson’s criminal
background on direct examination. This allowed three different
defense attorneys to examine Nelson’s background and criminal
history. The jury was made aware that Nelson was currently on
probation in New York for a gun possession charge, that he also
was on probation in Pennsylvania for two related drug convictions
and he was scheduled to go on trial in New Jersey for another drug
case. The jury was well aware this witness was a person that
possessed illegal drugs and firearms.
PCRA Ct. Op. at 5.
-7-
J-A07026-23
299, 302 (Pa.Super. 2019) (en banc) (quoting Commonwealth v. Cox, 146
A.3d 221, 228 (Pa. 2016)).
Here, Gant’s new evidence claim fails under the third prong of this test,
because the evidence would be offered solely to impeach Nelson/Betancourt’s
testimony. It also fails under the fourth prong — a likelihood of compelling a
not-guilty verdict — given that Gant already cross-examined
Nelson/Betancourt regarding his criminal history. The impeachment effect of
Gant’s use of an alias would have been minimal in comparison to
Nelson/Betancourt’s other dishonest activity. Moreover, Nelson/Betancourt’s
testimony was corroborated by Officer Haye, as well as the stolen items and
ballistics evidence.
The PCRA also affords relief for Brady claims. See 42 Pa.C.S.A. §
9543(a)(2)(i) (providing relief when a conviction results from “[a] violation of
of the Constitution of this Commonwealth or the Constitution or laws of the
United States which, in the circumstances of the particular case, so
undermined the truth-determining process that no reliable adjudication of
guilt or innocence could have taken place”); Commonwealth v. Haskins, 60
A.3d 538, 547 (Pa.Super. 2012). However, “[t]o establish a Brady violation,
a defendant must show that: (1) the evidence was suppressed by the state,
either willfully or inadvertently; (2) the evidence at issue is favorable to the
defendant; and (3) the evidence was material, meaning that prejudice must
have ensued.” Commonwealth v. McGill, 832 A.2d 1014, 1019 (Pa. 2003).
-8-
J-A07026-23
The prejudice must be such as to undermine confidence in the outcome of the
proceeding. Id. at 1020.
Here, while the information that Nelson/Betancourt was operating under
an assumed identity could have added to Gant’s impeachment of him, it is not
the sort of information that undermines our confidence in the verdict, as it is
insignificant in comparison with Nelson/Betancourt’s other criminal history,
which the jury heard. Moreover, as the PCRA court observed, Gant has failed
to show that the Commonwealth suppressed this information. His mere
allegation that the Commonwealth “should have known” Nelson/Betancourt’s
true name does not pass muster.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/24/2023
-9-