J-S50041-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RICKY ROUSE                                :
                                               :
                       Appellant               :   No. 709 WDA 2019

              Appeal from the PCRA Order Entered April 15, 2019
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0004190-2009


BEFORE:      LAZARUS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                            FILED NOVEMBER 8, 2019

        Appellant, Ricky Rouse, appeals pro se from the order of the Court of

Common Pleas of Allegheny County (trial court) that dismissed his fourth

petition filed under the Post Conviction Relief Act (PCRA)1 without a hearing.

We affirm.

        In 2010, Appellant was convicted by a jury of first degree murder,

carrying a firearm without a license, and conspiracy for the 2009 shooting

death of Antoine Cooper (the victim). The victim was shot on February 24,

2009, at approximately 4:30 in the afternoon in Northview Heights, a

neighborhood in the North Side of the city of Pittsburgh. Commonwealth v.

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*   Retired Senior Judge assigned to the Superior Court.
1   42 Pa.C.S. §§ 9541–9546.
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Rouse, 1026 WDA 2011 at 1 (Pa. Super. filed August 6, 2012) (unpublished

memorandum). The Commonwealth’s theory of the case was that Appellant

shot the victim in retaliation for an earlier shooting. Id. at 1-2.

      At trial, Gary Vavrek, a UPS employee who was making a delivery at the

time of the shooting near the block of Hawkins Street where the victim was

shot, testified that he heard three or four rapid-fire gunshots that sounded

like they came from Hawkins Street and saw two men running from Hawkins

Street, getting into a vehicle in the middle of the street behind his UPS truck,

and fleeing the scene. N.T. Trial, 9/30/10, at 80-88, 94-96. Vavrek testified

one of the two men had a semi-automatic pistol in his hand and that the man

with the gun entered the passenger side of the vehicle. Id. at 90-93. Vavrek

identified Appellant as the man who was holding the gun. Id. at 93-94, 110.

Vavrek wrote down the license plate number, Pennsylvania plate YST7432, as

the vehicle passed his truck when it drove away. Id. at 95-96.        The vehicle

was recovered by the police on February 25, 2009 and tested for fingerprints,

and Appellant’s fingerprint was found on outside of the front passenger door

of the vehicle. N.T. Trial, 10/1/10, at 309-11, 320-25, 344-48.

      Following his convictions, Appellant was sentenced to life in prison on

December 21, 2010.      On August 6, 2012, this Court affirmed Appellant’s

judgment of sentence and the Supreme Court denied Appellant’s petition for

allowance of appeal on February 13, 2013. Commonwealth v. Rouse, 60

A.3d 559 (Pa. Super. 2012) (unpublished memorandum), appeal denied, 63


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A.3d 776 (Pa. 2013). Appellant filed a timely first PCRA petition on January

28, 2014, which the trial court denied without a hearing. This Court affirmed

the denial of that PCRA petition on September 19, 2016, and the Pennsylvania

Supreme     Court    denied   allowance   of   appeal   on   March   29,   2017.

Commonwealth v. Rouse, 158 A.3d 182 (Pa. Super. 2016) (unpublished

memorandum), appeal denied, 169 A.3d 30 (Pa. 2017). On March 9, 2015,

Appellant filed a second PCRA petition, which he subsequently voluntarily

dismissed. On April 29, 2017, Appellant filed a third PCRA petition that the

trial court dismissed without a hearing. Appellant appealed the dismissal of

his third PCRA and this Court affirmed the dismissal of that petition on August

21, 2018.   Commonwealth v. Rouse, 195 A.3d 1014 (Pa. Super. 2018)

(unpublished memorandum).

      On October 5, 2018, Appellant filed the instant fourth PCRA petition. In

this PCRA petition, Appellant sought relief based on criminal charges that were

filed on January 26, 2018 against former homicide detective Margaret

Sherwood, who worked on the investigation of the shooting and testified at

Appellant’s trial.    Fourth PCRA Petition at 3, 8-25.           Following the

Commonwealth’s answer to the PCRA petition, the trial court, on February 6,

2019, issued an order giving notice pursuant to Pa.R.Crim.P. 907 of its intent

to dismiss Appellant’s amended PCRA petition without a hearing on the ground

that the criminal charges against Detective Sherwood would not support a new

trial because they were solely impeachment evidence and would not have


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changed the result of the trial. Trial Court Order, 2/6/19. This Rule 907 notice

gave Appellant until April 1, 2019 to submit a response. On April 15, 2019,

the trial court dismissed the PCRA petition. This timely appeal followed.

      Appellant raises the following two issues for our review:

      I. Whether the PCRA court erred in denying appellant’s PCRA
      petition, alleging after-discovered evidence that impacted the
      admissibility of an eyewitness’ identification.

      II. Whether the PCRA court erred in denying appellant’s PCRA
      petition, without an evidentiary hearing raising genuine issues.

Appellant’s Brief at 4. Our review of the denial of a PCRA petition is limited to

determining whether the record supports the PCRA court’s ruling and whether

its decision is free of legal error.   Commonwealth v. Williams, 196 A.3d

1021, 1026-27 (Pa. 2018); Commonwealth v. G.Y., 63 A.3d 259, 265 (Pa.

Super. 2013).

      Initially, we must address whether the PCRA petition at issue in this

appeal was timely filed. The PCRA provides that “[a]ny petition under this

subchapter, including a second or subsequent petition, shall be filed within

one year of the date the judgment becomes final.” 42 Pa.C.S. § 9545(b)(1).

Appellant’s judgment of sentence became final on May 14, 2013, upon the

expiration of the ninety day period to seek review with the United States

Supreme Court after the denied of his petition for allowance of appeal. 42

Pa.C.S. § 9545(b)(3). The instant 2018 PCRA petition was not filed within

that one-year period, which expired on May 14, 2014.




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       A PCRA petition may be filed beyond the one-year time period, however,

if the convicted defendant pleads and proves one of the following three

exceptions:

       (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. § 9545(b)(1). A petition invoking such an exception must be filed

“within one year of the date the claim could have been presented.” 42 Pa.C.S.

§ 9545(b)(2).2




____________________________________________


2At the time that Appellant filed this PCRA petition in October 2018, Section
9545(b)(2) required that a PCRA petition invoking an exception “be filed within
60 days of the date the claim could have been presented.” 42 Pa.C.S. §
9545(b)(2) (in effect January 16, 1996 to December 23, 2018). While
Appellant’s PCRA petition was pending, Section 9545(b)(2) was amended to
provide that “[a]ny petition invoking an exception provided in paragraph (1)
shall be filed within one year of the date the claim could have been presented.”
42 Pa.C.S. § 9545(b)(2); Act of October 24, 2018, P.L. 894, No. 146, § 2.
The Act amending Section 9545(b)(2) provided that the one-year period
applies to claims arising on or after December 24, 2017. Act of October 24,
2018, P.L. 894, No. 146, §§ 3, 4. Because Appellant’s PCRA petition is based
on criminal charges filed in 2018, after December 24, 2017, the one-year
period applies here.


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      Appellant asserted in his PCRA petition that the petition was timely

under the exception in Section 9545(b)(1)(ii) for newly discovered facts.

PCRA Petition at 4-8, 10-12, 27.      We agree that Appellant satisfied the

requirements of Section 9545(b)(1)(ii). Appellant’s PCRA petition was based

on new facts, the criminal charges against Detective Sherwood and the

misconduct that the criminal charges brought to light, and those facts were

unknown to Appellant and not reasonably ascertainable by him until the

criminal charges were filed in January 2018. The PCRA petition was filed on

October 5, 2018, less than one year later, and was therefore timely filed.

      The trial court, however, correctly concluded that the PCRA petition did

not set forth a sufficient ground for relief and that no hearing was required.

      Relief may be granted under the PCRA based on “[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. § 9543(a)(2)(vi).     To prevail on such an after-

discovered evidence claim, the convicted defendant must prove that (1) the

new evidence could not have been obtained at or prior to trial through

reasonable diligence; (2) the new evidence is not merely corroborative or

cumulative of evidence that was admitted at trial; (3) the new evidence is not

being used solely to impeach the credibility of a witness; and (4) the new

evidence would likely result in a different verdict. Commonwealth v. Small,

189 A.3d 961, 972 (Pa. 2018); Commonwealth v. Johnson, 179 A.3d 1105,


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1123 (Pa. Super. 2018).    All four of these requirements must be proved; if

the defendant fails to establish any one of these, the after-discovered

evidence claim fails. Small, 189 A.3d at 972; Commonwealth v. Padillas,

997 A.2d 356, 363 (Pa. Super. 2010).

      The criminal charges against Detective Sherwood cannot satisfy these

requirements. Detective Sherwood testified at Appellant’s trial that she

communicated with Vavrek and was involved in the photo array in which

Vavrek identified Appellant as the person whom he saw fleeing the scene with

a gun. N.T. Trial, 10/1/10, at 402-10, 415. The criminal charges on which

Appellant based the PCRA petition, however, did not relate to Appellant’s case,

were for conduct that occurred long after Detective Sherwood’s investigation

and testimony in Appellant’s case, and the trial record demonstrated that the

conduct alleged in the criminal charges did not occur in Appellant’s case.

      The criminal charges against Detective Sherwood alleged that she made

false statements in two unrelated murder investigations in 2014 and 2015,

years after Appellant’s trial and conviction. The false statements with which

Detective Sherwood was charged concerned whether eyewitnesses to the

murder had identified a particular individual and whether individuals who knew

a suspect had identified him in photographs from the shooting. Grand Jury

Presentment at 1, 3-17.

      Here, there is no evidence that any false statements concerning witness

identification occurred. Vavrek testified that he identified Appellant from the


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photo array that he was shown and he identified Appellant at trial. N.T. Trial,

9/30/10, at 93-94, 106-07, 110.          Moreover, Vavrek was cross-examined

concerning his viewing of the photo array containing Appellant and his

identification of Appellant and there was no evidence that any misconduct

occurred in the showing of the photo array to him. Id. at 122-24, 128.

      Evidence of a police witness’s subsequent misconduct in other unrelated

cases does not satisfy the requirements for a new trial based on after-

discovered evidence.        Johnson, 179 A.3d at 1122-13 (affirming denial of

PCRA after-discovered evidence claim based on criminal convictions of police

detective who testified at defendant’s trial and was involved in questioning a

witness who identified the defendant, where convictions occurred years after

defendant’s trial     and    arose   out of conduct    in an     unrelated case);

Commonwealth v. Foreman, 55 A.3d 532, 534-35, 537 (Pa. Super. 2012)

(affirming denial of PCRA after-discovered evidence claim based on criminal

charges against police detective who testified at defendant’s trial, where

charges arose out of conduct in an unrelated case that occurred more than

two years after defendant’s trial); see also Commonwealth v. Griffin, 137

A.3d 605, 610 (Pa. Super. 2016) (reversing grant of new trial based on after-

discovered evidence of misconduct of police officer who testified at

defendant’s   trial   where    alleged   misconduct   was   in   unrelated   case);

Commonwealth v. Brown, 134 A.3d 1097, 1108-09 (Pa. Super. 2016)




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(rejecting after-discovered evidence claim based on interrogating police

detectives’ misconduct in unrelated cases).

       Because the criminal charges do not relate any conduct or facts in

Appellant’s case, they would at most be relevant only to impeach Detective

Sherwood’s credibility.      Johnson, 179 A.3d at 1123; Brown, 134 A.3d at

1109; Foreman, 55 A.3d at 537. Evidence that is relevant only to impeach

the credibility of a witness who testified at trial does not satisfy these

requirements and is not sufficient to support the granting of a new trial or

PCRA relief based on after-discovered evidence. Johnson, 179 A.3d at 1123;

Griffin, 137 A.3d at 610; Commonwealth v. Trinidad, 96 A.3d 1031, 1037

(Pa. Super. 2014).3

       Moreover, even if Appellant’s claim did not fail on that ground, he cannot

satisfy the requirement that the new evidence would likely result in a different

verdict. The charges against Detective Sherwood had nothing to do with the

evidence against Appellant at his trial.         See Johnson, 179 A.3d at 1123

(evidence of police detective’s conviction would not lead to different verdict



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3 In Small, our Supreme Court recognized that the absolute requirement that
the after-discovered evidence not be solely for impeachment has been
criticized. 189 A.3d at 976 n.12. The Supreme Court, however, did not
overrule its prior precedents in Small and has continued to apply the four-
part after-discovered evidence test. Williams, 196 A.3d at 1031 n.9; Small,
189 A.3d at 972. Moreover, the situation here, impeachment of a witness by
unrelated misconduct, does not raise the concerns on which the criticism of
the absolute requirement has been based. Foreman, 55 A.3d at 538-39
(Wecht, J., concurring).

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because “there is no evidence the former detective did anything inappropriate

in the instant matter”); Foreman, 55 A.3d at 537-38 (evidence of police

detective’s misconduct would not lead to different verdict because no nexus

was shown between defendant’s case and the misconduct that occurred two

years later).   In addition, Detective Sherwood was a minor witness at

Appellant’s trial. She was not involved in processing the shooting scene or

any of the physical evidence, was not a witness to any events on the day of

the shooting and never spoke to Appellant; rather, she was called to testify

concerning the reasons for including another person in photo arrays and the

arrest of Appellant’s co-defendant.   N.T. Trial, 10/1/10, at 394-401, 413.

Even if her testimony were rejected by a jury, it would not affect Vavrek’s

credibility and would not negate Vavrek’s identification of Appellant or

Appellant’s fingerprint on the getaway vehicle. See Johnson, 179 A.3d at

1123 (evidence of police detective’s conviction would not lead to different

verdict because he was a minor witness who merely corroborated another

detective’s testimony).

      Appellant’s contention that the trial court erred in failing to hold an

evidentiary hearing likewise fails. A convicted defendant does not have an

absolute right to an evidentiary hearing on a PCRA petition. Commonwealth

v. Hill, 202 A.3d 792, 797 (Pa. Super. 2019); Commonwealth v. Jones,

942 A.2d 903, 906 (Pa. Super. 2008). The purpose of a hearing on a PCRA

petition is to allow the defendant to prove the factual claims set forth in his


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petition, not to give the defendant an opportunity to discover additional

evidence. Griffin, 137 A.3d at 610.      An evidentiary hearing on an after-

discovered evidence claim “is not meant to function as a fishing expedition for

any possible evidence that may support some speculative claim.” Id. (quoting

Commonwealth v. Castro, 93 A.3d 818 (Pa. 2014)).

      Where there are no genuine issues of material fact that must be resolved

to rule on the claim set forth in a PCRA petition, the court is not required to

hold a hearing. Commonwealth v. Maddrey, 205 A.3d 323, 328 (Pa. Super.

2019); Jones, 942 A.2d at 906. Here, there were no genuine issues of fact.

The criminal charges showed only misconduct by one witness in unrelated

cases several years after trial that were insufficient as a matter of law even if

proven at a hearing. No hearing was therefore required. Johnson, 179 A.3d

at 1123; Brown, 134 A.3d at 1109.

      For the foregoing reasons, we conclude that Appellant was not entitled

to relief on his claim of after-discovered evidence and that the trial court did

not err in ruling on the PCRA petition without a hearing. Accordingly, we affirm

the trial court’s order dismissing Appellant’s PCRA petition.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/8/2019




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