J-S61024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    SHAWN R. HILL                              :
                                               :   No. 3534 EDA 2016
                       Appellant

                Appeal from the PCRA Order September 29, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0009017-2012


BEFORE:      LAZARUS, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY RANSOM, J.:                                FILED NOVEMBER 03, 2017

       Appellant, Shawn R. Hill, appeals from the order entered September 29,

2016, denying his petition for collateral relief filed under the Post-Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

       In April 2014, following a bench trial, Appellant was convicted of murder

in the first degree, two counts of attempted murder, conspiracy, two counts

of aggravated assault, two counts of Possession of a Firearm by Prohibited

Person, Firearms not to be Carried Without a License, Carrying Firearms on a

Public Street in Philadelphia, three counts of Recklessly Endangering Another

Person (“REAP”), and Possession of an Instrument of Crime (“PIC”).1



____________________________________________


118 Pa.C.S. §§ 2502(a), 901, 903, 2702(a), 6105(a)(1), 6106(a)(1), 6108,
2705, 907(a), respectively.

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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      Appellant was subsequently sentenced to life imprisonment for first-

degree murder, followed by consecutive sentences of ten to twenty years for

each count of attempted murder. Appellant was sentenced to ten to twenty

years for conspiracy, four to eight years for Possession of Firearm by a

Prohibited Person, three to six years for Firearms Not to be Carried Without a

License, and six to twelve months for REAP to run concurrently with his

sentence for attempted murder. Appellant timely appealed the judgment of

sentence. He challenged the sufficiency and the weight of the evidence and

asserted that the Commonwealth violated Brady v. Maryland, 373 U.S. 83

(1963). Appellant contended that the Commonwealth violated Brady by

suppressing bullet fragments removed from the victim’s body.              See

Appellant’s 1925(b) Statement, 5/28/14. This Court affirmed the judgment

of sentence on direct appeal. Regarding his Brady claim, this Court concluded

that Appellant failed to prove that the Commonwealth suppressed evidence,

or that the purported missing evidence was prejudicial. See Commonwealth

v. Hill, 122 A.3d 1133 (Pa. Super. 2015) (unpublished memorandum), appeal

denied, 128 A.3d 1205 (2015).

      On January 5, 2016, Appellant timely filed a PCRA petition, and counsel

was appointed. In his petition, Appellant claimed to have new evidence in

support of his previously raised Brady claim, specifically, a statement from

Albert Einstein Medical Center (“AEMC”), describing the hospital’s policy of

submitting all recovered projectiles to the Philadelphia Police Department.




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       In July 2016, counsel submitted a no-merit letter pursuant to

Commonwealth v. Turner, 544 A.2d 927 (1988), and Commonwealth v.

Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). In September 2016, the

PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s

petition without a hearing. On September 29, 2016, Appellant responded to

the court’s Rule 907 notice, raising claims of ineffective assistance of PCRA

counsel.2 See Appellant’s Response to 907 Notice at 2-8. On the same day

Appellant’s 907 response was received, the court issued an opinion and order,

dismissing Appellant’s petition and granting appointed counsel’s petition to

withdraw.

       Appellant then filed the instant, timely appeal. The PCRA court did not

direct Appellant’s compliance with Pa.R.A.P. 1925(b).

       Appellant timely filed a brief with this Court. In June 2017, Appellant

filed a Request for Permission to File Supplemental Arguments Based on New

Case Law.       In July 2017, this Court granted Appellant leave to file a

supplemental brief.       Preliminarily, we must address the issues Appellant




____________________________________________


2 Appellant’s response to the Rule 907 notice was docketed on September, 29,
2016. However, Appellant delivered his response to the prison mailroom on
September 19, 2016. See Appellant’s 10/6/16 letter to the trial court.
Therefore, applying the prisoner mailbox rule, Appellant’s response is timely.
See Commonwealth v. Crawford, 17 A.3d 1279, 1281(Pa. Super. 2011),
(“[W]e deem a pro se document filed on the date it is placed in the hands of
prison authorities for mailing.”) (citing Commonwealth v. Patterson, 931
A.2d 710, 714 (Pa. Super. 2007)).

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purports to raise in his supplemental brief.     Appellant’s supplemental brief

raises the following claims:

       I.     Whether PCRA counsel was ineffective for unreasonably
              narrowing its investigation to the Commonwealth’s illegal
              suppression of vital ballistic evidence without investigation
              lead detective (George Pirrone’s) illegal withholding of
              evidence from the Commonwealth?

       II.    Whether trial, appellate and PCRA counsel[‘]s performances
              deprived appellant of his right to meaningful review where
              counsel allowed the Commonwealth to fraudulently
              misrepresent a material fact regarding the Commonwealth’s
              possession of Sakima Santos and Chasity Cannon’s medical
              records prior to trial?

       III.   Whether PCRA counsel was deficient in his performance
              where he failed to ascertain evidence of detectives (James
              Pitts) conviction in a civil judgment/verdict, and (Ronald
              Dove’s) guilty plea in a murder cover-up, both of which are
              crucial impeachable evidence surrounding Marcella Ingrum
              and Rory Hill’s illegal arrests, extensive detention, and
              illegally coerced inculpatory [sic] statements used by the
              [c]ourt as definitive proof of [A]ppellant’s guilty [sic]?

Appellant’s Supplemental Brief at v.

       Appellant did not preserve claims of PCRA counsel’s ineffectiveness in

his original brief to this Court. Further, this Court did not grant Appellant

leave to raise new issues in his supplemental brief. Order, 7/7/17. As such,

these issues are not properly before this Court, and we decline to review

them.3

____________________________________________


3 We note, however, that in his supplemental brief Appellant appears to
conflate the newly discovered fact exception to the PCRA timeliness
requirement with the substantive PCRA claim of after-discovered evidence.



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        Turning to those issues properly preserved, Appellant raises the

following issues for our review:

        I.     Whether the PCRA [c]ourt’s final conclusion was deficient
               where it inexplicably quoted nearly verbatim its 1925(a)
               opinion issued on direct appeal without establishing
               independent evidentiary support for its denial of relief based
               on newly-discovered evidence?

        II.    Whether the PCRA [c]ourt’s adverse conclusion on its on
               [sic] court ordered DNA and fingerprint analysis – of which
               was stipulated as an undisputed fact - - survives a question
               of law where an interjection of personal scientific theories
               post-trial circumvented the stipulation and diminished the
               materiality of [Appellant’s] Brady claim?

        III.   Whether the PCRA [c]ourt’s conclusion on [Appellant’s]
               Brady claim - - now supported by newly discovered
               evidence - survives a question of law where the recent
               Dennis[4] decision qualifies the final conclusion reached in
               this case as being contrary to, and an unreasonable
               application of established Federal and State precedent
               governing the constitutionality of illegal suppression of
               exculpatory evidence, versus a determination centered
               around a sufficiency of evidence evaluation?

Appellant’s Brief at vii.


____________________________________________


Compare 42 Pa.C.S. §9545(b)(1)(ii), with 42 Pa.C.S. §9543(a)(2)(vi); see
also Commonwealth v. Bennet, 930 A.2d 1264, 1270-72 (Pa. 2007)
(comparing the new facts timeliness exception and the after-discovered
evidence claim). In doing so, Appellant relies on Commonwealth v. Burton,
158 A.3d 618 (Pa. 2017). Appellant’s PCRA is timely filed. Accordingly,
Burton is inapposite. Id. at 638 (“Specifically, we hold that the presumption
that information which is of public record cannot be deemed “unknown” for
purposes of subsection 9545(b)(1)(ii) does not apply to pro se prisoner
petitioners.” (emphasis in original)).

4   Dennis v. Secretary, Pa. Dep’t. of Corr., 834 F.3d 263 (3d Cir. 2016).


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      The 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 afford the court’s factual findings deference

unless there is no support for them in the certified record. Commonwealth

v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v.

Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)).

      Appellant’s issues all center around an assertion that he has after-

discovered evidence to support his Brady claim. Appellant’s Brief at 9-10.

Essentially, Appellant alleges that the Commonwealth failed to disclose, prior

to trial, that doctors removed bullet fragments from the bodies of two victims.

Id. at 9. According to Appellant, DNA and/or fingerprint evidence could be

extracted from these fragments, providing him with exculpatory evidence. Id.

Appellant asserts that he has discovered new evidence to support this claim.

According to Appellant, he has obtained an affidavit from a private investigator

describing AEMC’s policy requiring all surgeons to submit recovered projectiles

to the Philadelphia Police Department. See Appellant’s Brief at 27, Exhibit C.

Appellant concludes that this new evidence would likely compel a different

verdict in his case.

      A petitioner may prevail on an after-discovered evidence claim for relief

if the petitioner proves:

      (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

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      not being used solely to impeach credibility; and (4) it would likely
      compel a different verdict.

Burton, 158 A.3d at 629. (citation omitted).

      Here, Appellant’s after-discovered evidence is not exculpatory. Rather,

it is merely a statement of AEMC’s policy, and as such, Appellant could easily

have obtained this policy prior to trial through reasonable diligence. Further,

Appellant’s suggestion that exculpatory evidence could be extracted from

these fragments is equally meritless. This Court has previously recognized

that ballistics evidence involved in this incident was never linked to Appellant.

Hill, 122 A.3d 1133, *3-4.        Finally, Appellant’s murder conviction was

premised upon a theory of conspiracy liability.     Id.   Thus, whether or not

Appellant was “the shooter” or otherwise handled the bullet fragments

extracted from the victims was not determinative of his guilt. To the contrary,

Appellant was convicted based upon multiple eye-witness accounts. Id. For

these reasons, the statement of AEMC policy would not compel a different

verdict, and, therefore, the PCRA court did not err in denying Appellant relief.

      Moreover, we agree with the trial court’s observation that Appellant’s

after-discovered evidence claim is an attempt to relitigate his failed Brady

claim. See Trial Court Opinion at 7. This is not permissible under the PCRA.

See Commonwealth v. Jones, 811 A.2d 994, 1000 (Pa. 2002) (“It is well-

settled, however, that a PCRA petitioner cannot obtain review of claims that

were previously litigated by presenting new theories of relief, including

allegations of ineffectiveness.”); see also 42 Pa.C.S. §§ 9543(a)(3), 9544.



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     This Court rejected Appellant’s Brady claim on direct appeal:

     [A]s no ballistics evidence offered at trial incriminated Appellant,
     the missing evidence was not material, because no testing on the
     bullets removed from the victims could have exculpated Appellant
     or impeached the Commonwealth’s evidence against him. Finally,
     as the Commonwealth notes, Appellant was convicted of
     conspiracy to commit first-degree murder, and therefore was
     responsible for the shootings even if it was his co-conspirator’s
     gun that fired the bullets recovered from the bodies of the victims.

Commonwealth v. Hill, 122 A.3d 1133, *5. Accordingly, Appellant’s claim

was addressed on direct appeal and is now precluded from post-conviction

review.

    We affirm. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/3/2017




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