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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                         OF PENNSYLVANIA
                             Appellee

                        v.

    KEITH MAZZUCCA

                             Appellant                   No. 3237 EDA 2018


             Appeal from the PCRA Order Entered October 10, 2018
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0004285-2008


BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                          FILED NOVEMBER 19, 2019

        Appellant, Keith Mazzucca, appeals from the October 10, 2018 order

dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-46. We affirm.

        The record reflects that, on May 6, 2009, Appellant entered a negotiated

plea of guilty to third-degree murder, unlawful possession of a firearm, and

possession of an instrument of crime.1 The trial court imposed an aggregate

25 to 50 years of incarceration.           Appellant did not file a direct appeal.

Appellant filed a timely first PCRA petition on April 26, 2012 and the PCRA



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*   Former Justice specially assigned to the Superior Court.

1    18 Pa.C.S.A. §§ 2502(c), 6108, and 907, respectively.
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court denied relief on October 10, 2013. Appellant did not appeal from that

order.

       Appellant filed the instant, counseled petition, his second, on June 21,

2017. The petition is facially untimely,2 and on August 22, 2018, the PCRA

court issued its Pa.R.Crim.P. 907 notice of intent to dismiss without a hearing.

Appellant did not respond, and the PCRA court entered the order on appeal on

October10, 2018. This timely appeal followed.

       Appellant’s present petition is based on after-discovered evidence, and

he argues that it is timely on that basis.3 Specifically, Appellant claims that

the 2017 conviction of Detective Ronald Dove—for withholding information

and tampering with evidence in the investigation of Detective Dove’s

girlfriend—entitles Appellant to relief because Detective Dove was involved in

obtaining Appellant’s confession.

       “Our review of a PCRA court’s decision is limited to examining whether

the PCRA court's findings of fact are supported by the record, and whether its

conclusions of law are free from legal error.” Commonwealth v. Mason,


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2 The PCRA requires that any petition filed thereunder be filed within one year
of the date on which the judgment of sentence becomes final. 42 Pa.C.S.A.
§ 9545(b)(1).   Appellant does not dispute that his petition his facially
untimely.

3 The PCRA provides an exception to the one-year deadline 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).


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130 A.3d 601, 617 (Pa. 2015). In order to establish that his petition was

timely pursuant to § 9545(b)(1)(ii), Appellant must establish that it is based

on an unknown fact that he could not have discovered any earlier through due

diligence. 42 Pa.C.S.A. § 9545(b)(1)(ii); Commonwealth v. Smallwood,

155 A.3d 1054, 1060 (Pa. Super. 2017), appeal dismissed, 185 A.3d 963

(Pa. 2018). Appellant must also establish that he filed his petition within 60

days of the first day on which he could have presented the claim of newly

discovered evidence. 42 Pa.C.S.A. § 9545(b)(2).4

       Detective Dove pled guilty on April 25, 2017 to charges arising from

illegal acts he committed while working as a detective in the homicide unit.

Appellant filed the instant petition on June 21, 2017, within sixty days of

Detective Dove’s plea. Appellant’s petition fails, however, to allege that he

could not have learned of the improprieties any sooner than the date of

Detective Dove’s guilty plea.           “A petitioner fails to satisfy the 60–day

requirement of Section 9545(b) if he or she fails to explain why, with the

exercise of due diligence, the claim could not have been filed earlier.”

Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008).                    Here,

Appellant’s petition ignores the issue of due diligence. Likewise, his brief on

appeal ignores the issue even though the PCRA court found that Appellant



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4  Section 9545(b)(2) has been amended, effective December 24, 2018, to
permit the petition to be filed within one year of the first date on which the
claim could have been presented.

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failed to allege or establish his exercise of due diligence.     Given the clear

holding in Marshall, we conclude that Appellant’s failure to explain his

exercise of due diligence rendered his petition untimely.

      Furthermore, Appellant could not obtain relief even if his petition were

timely.   To obtain a new trial based on after discovered evidence, the

petitioner must establish that the evidence: “(1) could not have been obtained

prior to trial by exercising reasonable diligence; (2) is not merely corroborative

or cumulative; (3) will not be used solely to impeach a witness’s credibility;

and (4) would likely result in a different verdict.” Commonwealth v. Castro,

93 A.3d 818, 821 (Pa. 2014).

      Where, as here, the claim is based on the improprieties of an

investigating police officer, the petitioner must demonstrate a nexus between

the improprieties and the petitioner’s claim for relief. In Commonwealth v.

Foreman, 55 A.3d 532 (Pa. Super. 2012), for example, the petitioner claimed

he was entitled to relief because a detective who investigated him was facing

charges for false swearing, obstructing administration of law, and other

offenses in the discharge of his police duties. Id. at 535. The petitioner’s

conviction rested primarily on the testimony of the charged police detective.

This Court affirmed the denial of relief, noting that the detective’s subsequent

charges would serve only as impeachment evidence.                  Id. at 537.

Furthermore, we reasoned that the petitioner “failed to show any nexus




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between his case and [the detective’s] alleged[5] misconduct in an incident,

which occurred more than two years after [the petitioner’s] conviction.” Id.

at 537-38.     In other words, the petitioner failed to show that the after-

discovered evidence would have been likely to produce a different verdict.

       Similarly, in Commonwealth v. Soto, 983 A.2d 212 (Pa. Super. 2009),

appeal denied, 17 A.3d 1253 (Pa. 2011), the petitioners alleged that a police

department chemist had been pilfering confiscated pain pills for her own use.

Id. at 213.      We affirmed the denial of collateral relief, inasmuch as the

chemist’s misconduct postdated the petitioner’s crimes by several years. Id.

at 214.    Petitioners’ convictions involved cocaine, heroin, and marijuana,

whereas the chemist’s pilfering involved painkillers such as OxyContin,

Percocet, and Vicodin. Id. Furthermore, “in each case […] there either was

a drug analysis by other chemists as well, a field test performed by the

arresting officers, or other evidence that corroborated the drug transaction.”

Id. at 215.

       Instantly, Detective Dove’s arrest, which happened on January 22, 2015

(PCRA Court Opinion, 12/4/18, at 2), postdated Appellant’s October 24, 2007

crime by more than seven years. Furthermore, Appellant’s case is far weaker

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5 We observe that Foreman illustrates that it is not premature for a petitioner
to seek relief prior to the conviction of an allegedly corrupt police officer. This
further reinforces our conclusion that Appellant should have explained why he
could not have learned of the charges against Detective Dove any earlier than
the date of his guilty plea.



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than that of the petitioner in Foreman, because Appellant’s conviction did not

rest primarily Detective Dove’s testimony. Appellant argues that Detective

Dove and others coerced his confession6 and used the confession to obtain a

warrant to search Appellant’s home.            Appellant’s Brief at 6.   The record

confirms only that Detective Dove obtained a signed waiver of rights form

from Appellant the night before his confession. N.T. Guilty Plea, 5/6/09, at

13-15.7 Appellant’s confession was recorded by two other offices the following

day. Id. Given the minimal involvement of Detective Dove in Appellant’s

confession, we conclude, in accord with Foreman, that Appellant has failed

to establish any nexus between his conviction and Detective Dove’s

subsequent misconduct.

       Apparently in hope of avoiding this conclusion, Appellant asserts that

other members of the homicide unit (none of whom he alleges were involved

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6 Any claim as to the coercive tactics clearly is untimely as Appellant was
aware of the circumstances of his confession as soon as he gave it.

7 At the guilty plea hearing, the Commonwealth offered for the record a copy
of Appellant’s waiver of rights form and his confession. N.T. Guilty Plea,
5/6/09, at 13-16. These documents appear in the certified record as exhibits,
but they are not numbered or lettered. These exhibits confirm that Appellant
executed a waiver of rights with Detective Dove on January 17, 2008, which
he completed at 10:59 a.m. Guilty Plea Exhibits, Waiver of Rights Form,
1/17/08, at 1. Appellant once again waived his rights and offered his
confession to Detectives Howard Peterman and James Burns on January 18,
2018. Guilty Plea Exhibits, Appellant’s Confession, 1/18/08, at 1. We observe
that Appellant stated he was well treated while at the homicide unit and that
he told Detective Dove on January 17, 2008 that he wanted some time to
think before making a statement. Id.



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in his case) have been convicted of various forms of official misconduct and

that these convictions are evidence of the homicide unit’s routine practice of

corruption that would be admissible in a new trial pursuant to Pa.R.E. 406.8

Appellant’s Brief at 10. Appellant argues, on this basis, that the proffered

after-discovered evidence would not be used merely for impeachment

purposes. We discern two problems with Appellant’s response. First, as with

the criminal charges against Detective Dove, Appellant fails to explain why he

could not have learned of this evidence any earlier through the exercise of due

diligence. Thus, his petition is untimely as to any misconduct committed by

any member of the homicide unit.               Second, even if we accept Appellant’s

argument that he would not offer habit and routine practice evidence merely

for impeachment purposes, he could not obtain a new trial. Appellant does

not claim that any convicted former officer, other than Detective Dove, worked

on Appellant’s case. Thus, he cannot establish a nexus, and he has failed to




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8   Rule 406 provides:

       Evidence of a person’s habit or an organization's routine practice
       may be admitted to prove that on a particular occasion the person
       or organization acted in accordance with the habit or routine
       practice. The court may admit this evidence regardless of whether
       it is corroborated or there was an eyewitness.

Pa.R.E. 406.




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establish the likelihood of a different verdict,9 as per our analysis in Foreman

and Soto.10

       For all of the foregoing reasons, we discern no error in the order

dismissing Appellant’s PCRA petition.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/19/19




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9 In addition to the lack of a nexus between Detective Dove’s misconduct and
Appellant’s conviction, we observe that police recovered the murder weapon
from Appellant’s person during the execution of a search warrant for his home,
and that the Commonwealth intended to introduce the testimony of the person
who was with Appellant at the time of his arrest, and to whom Appellant
confessed committing the murder. N.T. Guilty Plea, 5/6/09, at 12-13, 16-17.

10 In his petition, Appellant cited Commonwealth v. Jackson, 2257 EDA
2014 (Pa. Super. September 14, 2015), in which this Court remanded for a
hearing on a PCRA petition involving Detective Dove. In that case, Detective
Dove testified that the petitioner shot at him. The petitioner was convicted of
one count of attempted murder based on Detective Dove’s testimony. For
that reason, we concluded the petitioner’s petition warranted an evidentiary
hearing. Id., unpublished memorandum, at 25-28. Jackson, which is not
binding in any event, is inapposite because none of Appellant’s convictions
depended on Detective Dove’s testimony.

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