J-S19019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    EDWARD N. DANIELS                          :
                                               :
                      Appellant                :   No. 2525 EDA 2017

                    Appeal from the PCRA Order July 11, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0012194-2009,
                             CP-51-CR-0012199-2009


BEFORE:        SHOGAN, J., NICHOLS, J., and PLATT, J.*

MEMORANDUM BY NICHOLS, J.:                                  FILED JULY 19, 2018

        Appellant Edwards N. Daniels appeals pro se from the order dismissing

as untimely his second petition filed under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546.               Appellant claims that he meets the

newly-discovered facts exception under 42 Pa.C.S. § 9545(b)(1)(ii) and that

he is entitled to relief as to his after-discovered evidence claim. We affirm.

        This Court previously set forth the facts of this case as follows:

        During daylight hours on June 27, 2009, at the Piazza Navona
        apartments, located in [the] Northern Liberties section of
        Philadelphia, [Appellant] and co-defendants entered the building
        with semi-automatic weapons with the intention to carry out a
        robbery.    Each floor of the apartment building contained
        surveillance cameras, which captured practically every move of
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S19019-18


     [Appellant] and his co-defendants, Keith Epps and Antonio
     Wright, and the murders of Rian Thal and Timothy Gilmore. Rian
     Thal was a party promoter, but was also involved in the selling
     of powder cocaine. She was specifically targeted because word
     had gotten out that she was to receive a shipment of
     approximately one half million dollars’ worth of powder cocaine,
     which amounted to eleven or twelve kilos of powder cocaine,
     which was being transported from Texas to Philadelphia.[3] The
     two drug couriers, Timothy Gilmore and Edward Emerson,
     transported the drugs by way of a tractor-trailer to Philadelphia.

     On the Friday before the murders, Leon Woodard was moving
     the cocaine into Ms. Thal’s apartment on the seventh floor of the
     Piazza Navona. Accompanying Mr. Woodard was a man named
     Vernon Williams who Ms. Thal did not permit into her apartment
     because she did not trust him. At trial, Mr. Woodard testified
     that Mr. Williams left his cell phone in Mr. Woodard’s vehicle.
     After the murders occurred, Mr. Woodard saw text messages
     between Mr. Williams and Mr. Wright that indicated Mr. Woodard
     was being set up.[6] Unbeknownst to Ms. Thal or Mr. Woodard,
     Mr. Williams contacted co-defendant, Mr. Epps, about the
     shipment of cocaine and the drug money tied to its purchase and
     a plan was hatched to steal it.

     Mr. Epps then contacted a friend named Katoya Jones, who lived
     in the building, and asked her to help him enter the apartment in
     exchange for a cut of the profits should the robbery scheme
     succeed.[7] [At] [a]pproximately 3:30 a.m., that Saturday, the
     27th, the day of the murders, Mr. Epps called Ms. Jones to let
     him and his friend, Robert Keith, into the building. This
     attempted burglary failed because Mr. Epps and Mr. Keith
     entered the wrong apartment.

     Instead of taking that as a sign that the scheme would go awry,
     the next afternoon, at about 2:00 p.m., Mr. Epps called Ms.
     Jones again to tell her to allow a friend of his into the building
     within the next hour. Mr. Epps had planned the robbery with
     three men, Donnell Murchison, Langdon Scott, and [Appellant].
     Around 3:00 p.m., Ms. Jones opened the locked door for Mr.
     Murchison; Mr. Murchison then opened the door for Mr. Epps and
     Mr. Scott. Mr. Scott was under the impression that he was
     buying $4,500 worth of powder cocaine.

     According to the testimony of Mr. Scott, once all three men were
     in the elevator,[9] Mr. Murchison informed Mr. Scott that when he


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     went to buy the drugs from Mr. Gilmore and Ms. Thal, Mr.
     Murchison and [Appellant] were going to rob them. At that
     point, Mr. Scott decided not to go through with the buy and all
     three of them left the apartment building to report back to Mr.
     Epps, who was sitting in a white van outside of the apartment
     building. While Mr. Murchison waited outside of the van, Mr.
     Scott and [Appellant] entered the van to talk with Mr. Epps.

     A friend of Mr. Epps, Caesar Holloway, told him that he would
     take Mr. Scott home and get a replacement, who turned out to
     be co-defendant Wright.        Around 5:00 p.m., Mr. Wright,
     [Appellant], and Mr. Murchison entered the Piazza Navona and
     proceeded to the seventh floor to wait for Ms. Thal and Mr.
     Gilmore to return. Mr. Wright and Mr. Daniels went to one end
     of the hallway while Mr. Murchison went to the other in order to
     box in the victims. Mr. Epps called Mr. Murchison as the two
     entered the apartment building. As Ms. Thal and Mr. Gilmore
     exited the elevator, [Appellant] and his co-defendants pulled out
     guns and announced a robbery. When Mr. Gilmore resisted, Mr.
     Wright shot him. Mr. Murchison then shot Ms. Thal behind the
     head killing her instantly. As the three men exited the building,
     Mr. Murchison noticed that Mr. Gilmore was still alive and shot
     him twice in the head killing him. All of the men then entered
     Mr. Epps’ van, and fled the scene without the money or the
     drugs. Police later discovered four kilos of cocaine and over
     $100,000 in Ms. Thal’s apartment.

     Later that evening police identified Ms. Jones as a person of
     interest because she was observed on a surveillance video
     opening the doors for Mr. Murchison twice. Initially, Ms. Jones
     lied to police about being involved in the incident and was freed.
     However, police picked her up again once police reviewed
     another surveillance video, which showed her letting Mr. Keith
     into the building. Upon being taken into custody, Ms. Jones gave
     a statement to the detectives and later pleaded guilty to two
     counts of third-degree murder, one count of conspiracy, two
     counts of robbery in the first-degree, and one count of burglary.

     Police used Ms. Jones’ cell phone records and learned that she
     and Mr. Epps had been in contact with one another. After police
     obtained Mr. Epps’ cell phone records, the detectives found
     numerous phone calls to the individuals involved: [Appellant],
     Mr. Wright, Mr. Scott, Mr. Murchison, Mr. Holloway, and Ms.
     Jones. According to Detective Ron Dove of the Homicide Unit,
     on the day of the murders, June 27th of 2009, Mr. Holloway and

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     Mr. Epps communicated with each other 53 times, Mr. Williams
     and Mr. Epps 34 times, Mr. Keith and Mr. Epps spoke 52 times,
     Ms. Jones and Mr. Epps spoke to each other 29 times, Mr. Scott
     and Mr. Epps communicated with each other 11 times, Mr.
     Wright and Mr. Epps spoke with each other 4 times, and 36
     communications were made between Mr. Murchison and Mr.
     Epps.[10] The detective was unable to find any calls placed
     between Mr. Epps and [Appellant]. The investigation continued
     and ballistic tests revealed that the bullets in Mr. Gilmore and
     Ms. Thal’s heads belonged to the weapon used by Mr. Murchison.
     Detectives also arrested Mr. Wright, and he confessed to being
     involved in the conspiracy to commit the robbery and shooting
     Mr. Gilmore multiple times. He did not mention anyone else
     involved in the murders.

     During trial, surveillance tapes shown to Mr. Scott allowed him
     to identify Mr. Murchison and [Appellant] as the men with whom
     he entered the building. After giving testimony at a preliminary
     hearing, Mr. Scott was stabbed numerous times in prison.[11]

     In addition thereto, at trial Mr. Woodard identified Mr. Wright in
     a surveillance video; Ms. Jones identified Mr. Wright, as well as,
     Mr. Epps and Mr. Halloway as being part of the criminal
     conspiracy. Testimony from Mr. Murchison was stricken from
     the record after he refused to undergo cross-examination.[12]

     [Appellant]’s probation officer, Akaga Campbell, testified and
     identified [Appellant] as one of the men depicted on the
     surveillance video and still photographs from the video. She
     based her opinion on [Appellant]’s recognizable facial features
     and choice of clothing. During cross-examination she testified
     that from February of 2009, until his arrest on July 10, 2009,
     she saw the [Appellant] four to six times a month.
        [3] Rian Thal’s business partner, Leon Woodard, was
        responsible for setting up the deal with a Texas dealer,
        Kevin Harks, a/k/a Big Bank Hank, who was interested in
        breaking into the Philadelphia market to sell Mexican
        cocaine. . . .
        [6]Cell phone records confirmed that Mr. Wright sent a text
        message to Mr. Williams saying, “Yo, dawg, we need this.
        This is a big one. We can’t let this one get by us.”
        [7]The building required both a key and security code to
        enter.

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        [9]The three men entered the building once before, but
        after Mr. Murchison asked Mr. Scott if he had the money
        on him to buy the cocaine, Mr. Scott said he did not have
        the money on him. All three men left the building so that
        Mr. Scott could retrieve the money.
        [10]The phone calls mentioned above were obtained from
        Mr. Epps’ phone number[.] Special Agent William Shute of
        the FBI was able to determine using cell tower sites and
        video surveillance tapes, that Mr. Epps made and received
        57 phone calls while in the Piazza Navona on the day of
        the murders.
        [11]Mr. Scott’s stabbing occurred the day he was moved to
        the cell block holding [Appellant]. Prior to the testimony,
        the individuals were involved in a fistfight.
        [12]. . . Commonwealth read in statements [Mr. Murchison]
        gave to detectives, which implicated [Appellant] and co-
        defendants as those men that took part in the robbery-
        turned-murder. . . .

Commonwealth v. Daniels, 188 EDA 2012, 2013 WL 11253764, at *1-3

(Pa. Super. filed Sept. 27, 2013) (unpublished mem.) (some alterations

omitted; some alterations added).

     On December 1, 2011, following several days of trial, a jury convicted

Appellant of two counts of each of second-degree murder, robbery — serious

bodily injury, and conspiracy to commit second-degree murder.      Appellant

was also convicted of one count of carrying a firearm in public in

Philadelphia. On that same day, the trial court sentenced Appellant to two

consecutive terms of life imprisonment for the second-degree murder

convictions. The trial court also imposed concurrent terms of ten to twenty

years’ incarceration for the conspiracy convictions, and a concurrent term of

two and a half to five years’ incarceration for the firearm conviction.   The


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robbery conviction merged with the murder conviction for sentencing

purposes.

      Appellant did not file a post-sentence motion. On December 19, 2011,

Appellant filed a timely notice of appeal. On appeal, Appellant argued that

the trial court erred in not granting his motion for a mistrial and in admitting

the identification testimony of his probation officer. See Daniels, 2013 WL

11253764, at *4. Appellant also argued that there was insufficient evidence

to convict Appellant of two counts of conspiracy.     Id. This Court affirmed

Appellant’s convictions but vacated one count of conspiracy as the evidence

demonstrated only one single continuing conspiracy. Id. at *8. We did not

remand for resentencing, however, as vacatur of one of the concurrent

conspiracy sentences did not affect the overall sentencing scheme.          Id.

Appellant filed a petition for allowance of appeal, which the Pennsylvania

Supreme Court denied on February 19, 2014.

      On April 14, 2014, the PCRA court docketed Appellant’s first pro se

PCRA petition.    The court appointed counsel who filed an amended PCRA

petition on May 25, 2015.     On January 19, 2016, the PCRA court filed a

notice of intent to dismiss Appellant’s petition pursuant to Pa.R.Crim.P. 907.

On February 16, 2016, the court dismissed Appellant’s petition without a

hearing.    Appellant timely appealed and, on October 20, 2016, this Court

affirmed.    Appellant filed a petition for allowance of appeal, which the

Pennsylvania Supreme Court denied on March 13, 2017.




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      On June 2, 2017, the trial court docketed the instant pro se PCRA

petition, his second. In his petition, Appellant argued that on May 3, 2017

he received evidence that Detective Ronald Dove pled guilty to charges

arising from his assistance in helping someone flee after that person

committed murder. PCRA Pet., 6/2/17, at 4. Appellant further argued that

Detectives James Pitts and Ohmarr Jenkins had been involved in several

murder cases in which they coerced suspects to make statements. Id.

      On June 16, 2017, the PCRA court filed a notice of intent to dismiss

Appellant’s second PCRA petition without a hearing pursuant to Pa.R.Crim.P.

907, stating that the petition was untimely and did not invoke a time-bar

exception. See Pa.R.Crim.P. 907 Notice, 6/16/17.

      On July 3, 2017, Appellant filed a response to the court’s Rule 907

notice.   In Appellant’s response, he stated that he invoked the newly-

discovered facts exception to the PCRA time bar alleging as newly-

discovered facts the guilty plea and allegations of misconduct of Detectives

Dove, Jenkins, and Pitts. See Resp. to Notice of Intent to Dismiss, 7/3/17,

at 1-2. He claimed that under Commonwealth v. Burton, 158 A.3d 618

(Pa. 2017), the presumption of knowledge as to information in public records

does not apply to him. Resp. to Notice of Intent to Dismiss, 7/3/17, at 2.

      On July 11, 2017, the PCRA court dismissed his petition.      Appellant

timely appealed.    The PCRA court did not order a Pa.R.A.P. 1925(b)

statement of matters complained of on appeal but filed a Rule 1925(a)

opinion on August 15, 2017.

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      In its Rule 1925(a) opinion, the PCRA court explained that Appellant

did not meet the newly-discovered facts exception because the information

regarding Detective Dove was available in 2013 and the information

regarding Detectives Pitts and Jenkins was available in 2016, both well

before Appellant filed the instant PCRA.    PRCA Ct. Op., 8/15/17, at 6-7.

Thus, the PCRA court found that Appellant had not exercised due diligence.

Id. at 7. Further, the PCRA court explained that even if Appellant had raised

his issues in a timely manner, he would not be entitled to relief as to his

after-discovered evidence claim. Id.

      During the pendency of this appeal, Appellant filed pro se application

for remand which this Court received on January 10, 2018.          Appellant

claimed he received additional new evidence regarding Detective Pitts.

      Appellant raises the following issues on appeal:

      1. Whether [Appellant] sufficiently pled an exception to the
         time-bar to excuse the filing of his PCRA [p]etition after the
         date his judgment became final[.]

      2. Whether [Appellant] can demonstrate that he is entitled to
         relief on the basis of newly-discovered evidence[.]

Appellant’s Brief at 4.

      Our standard of review from the dismissal of a PCRA petition is limited

to “whether the record supports the PCRA court’s determination and whether

the PCRA court’s decision is free of legal error.”       Commonwealth v.

Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citation omitted).




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      It is well-settled that “the timeliness of a PCRA petition is a

jurisdictional requisite.”   Commonwealth v. Brown, 111 A.3d 171, 175

(Pa. Super. 2015), appeal denied, 125 A.3d 1197 (Pa. 2015) (citation

omitted). A PCRA petition “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).     A judgment is final “at the conclusion of direct review,

including discretionary review in the Supreme Court of the United States and

the Supreme Court of Pennsylvania, or at the expiration of time for seeking

the review.” 42 Pa.C.S. § 9545(b)(3).

      Courts may consider a PCRA petition filed more than one year after a

judgment of sentence became final only if the petitioner pleads and proves

one of the following three statutory 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.




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42 Pa.C.S. § 9545(b)(1)(i)-(iii).1

       Because Appellant failed to file the instant PCRA petition within one

year of his conviction becoming final,2 he must satisfy one of the exceptions

to the PCRA time bar.         Appellant claims that he meets newly-discovered

facts exception. See 42 Pa.C.S. § 9545(b)(1)(ii).

I.     Newly-Discovered Facts Exception

       Appellant argues that he meets the newly-discovered facts exception

because he learned of: (1) a guilty plea of one of the detectives involved in

his case, Detective Dove; and (2) newspaper articles involving two other

detectives involved in his case, Detectives Jenkins and Pitts.    Appellant’s

Brief at 10-11.

       To successfully raise the newly-discovered facts exception to the PCRA

time bar, a petitioner must show that: (1) “the facts upon which the claim

was predicated were unknown” and (2) the facts “could not have been

ascertained by the exercise of due diligence.” 42 Pa.C.S. § 9545(b)(1)(ii).

In determining whether a petitioner has acted with due diligence, we have

explained that “[d]ue diligence ‘does not require perfect vigilance and

punctilious care, but merely a showing the party has put forth reasonable
____________________________________________


1 Moreover, a petitioner must file his petition within sixty days of the date
the claim could have been presented. See 42 Pa.C.S. § 9545(b)(2).

2 There is no dispute here that Appellant’s conviction became final in 2014
and that Appellant’s current PCRA petition, filed on June 2, 2017, was
facially untimely.



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effort’     to   obtain   the   information    upon   which   a   claim   is   based.”

Commonwealth v. Cox, 146 A.3d 221, 230 (Pa. 2016) (citation omitted).

Moreover, our Supreme Court in Burton held “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.”3                Burton,

158 A.3d at 638.

          Further, this “new-facts” exception does not require us to analyze the

merits of the case or the “underlying after-discovered evidence claim.”

Brown, 111 A.3d at 177. “Once jurisdiction has been established, a PCRA

petitioner can present a substantive after-discovered-evidence claim.”             Id.

at 176 (citation omitted).

    A. Detective Dove

          Appellant claims that Detective Dove “pled guilty to several charges

related to assistance he provide[d] to help someone flee from arrest after

they committed a murder on April 26, 2017.”               Appellant’s Brief at 10.

____________________________________________


3 In so holding, the Burton Court discussed the amicus brief filed by the
Pennsylvania Exonorees, which explained that “the Pennsylvania Department
of Corrections’ . . . policies do not provide for inmate access to the internet
or internet-based tools for legal research, either directly or through prison
staff.” Burton, 158 A.3d at 636. The amicus brief further explained that
“prison law libraries have limited resources, consisting primarily of case law
and statutes, and that the available materials do not include public case
dockets or pleadings.” Id. Finally, the amicus brief provided that “obtaining
information from outside of prison also is difficult because inmates often
cannot afford to pay for the necessary phone calls, stationery, envelopes,
postage, and copying fees.” Id.



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Appellant claims that Detective Dove was an “integral part of the

investigation in his case.”   Id.   He contends that once he “heard about

Dove’s conviction, he contacted someone who had internet access to copy it

and mail it to him.” Id. This information, he claims, was mailed to him on

May 3, 2017.     Id.   He claims that he could not have ascertained the

information regarding Detective Dove earlier, through the exercise of due

diligence, because he did not have internet access. Id. at 11.

     Here, Appellant filed the instant petition on June 2, 2017, thirty-seven

days after Detective Dove’s guilty plea on April 26, 2017.       Although the

Commonwealth and the PCRA court state that Detective Dove was first

accused of improprieties in 2013, the new fact Appellant is alleging is the

guilty plea. See PCRA Pet., 6/2/17, at 4. While Appellant did not provide

when he learned of Detective Dove’s guilty plea, he still filed his PCRA

petition within sixty days of when his claim could have been presented. See

42 Pa.C.S. § 9545(b)(2). Thus, Appellant established that Detective Dove’s

guilty plea was unknown to him and could not have been ascertained earlier

with the exercise of due diligence. See 42 Pa.C.S. § 9545(b)(1)(ii).

  B. Detectives Jenkins and Pitts

     Appellant claims that Detectives Jenkins and Pitts “were involved in, at

least, three cases in which witnesses, or suspects, were coerced to make

statements.” Appellant’s Brief at 11. He argues that these detectives were

involved in “taking statements from codefendants in his case.”         Id.   He

contends that while the articles are dated November 6, 2013, and

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September 9, 2016, he “does not have access to Philadelphia local news

broadcasts or regular access to Philadelphia newspapers,” and could not

have obtained this information earlier.            Id.   He further contends that he

learned of these articles while discussing his case with another inmate. Id.

       Here, Appellant did not provide when he learned of the information

regarding these two detectives.            Appellant merely states that he “was

informed about the articles when discussing his case with another inmate”

and that he “heard rumors about the allegations.” Id. at 11, 13. Going by

the only dates Appellant provided — November 6, 2013 and September 9,

2016 – Appellant’s claim is well past the sixty days of when he could have

presented this claim.       See 42 Pa.C.S. § 9545(b)(2).         Even assuming that

newspaper articles are facts for purposes of the newly-discovered facts

exception, Appellant has not established that he exercised due diligence in

discovering the articles after he learned of their existence.4 See 42 Pa.C.S.

§ 9545(b)(1)(ii); Cox, 146 A.3d at 230.
____________________________________________


4 On January 10, 2018, this Court received Appellant’s pro se application for
remand, in which Appellant claimed he received additional new evidence
regarding Detective Pitts. Appellant asserted that on November 3, 2017, in
Commonwealth v. Dwayne Thorpe, a PCRA court granted relief, in part,
on the petitioner’s claim that “[a]fter-discovered evidence established
Detective Pitts’ habitually coercive conduct towards witnesses in custodial
interrogations[.]” App. for Remand, 1/10/18, Ex. A. He asserted that on
November 7, 2017, an attorney informed of the ruling in Thorpe and
recommended that he file a PCRA petition based on Thorpe. Id. Ex. B. He
further asserts that he has obtained copies of the transcripts of the hearing
in Thorpe and that the transcripts provide “additional evidence to
substantiate his claim of newly-discovered evidence.” Id. at 2.
(Footnote Continued Next Page)


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      Accordingly, we conclude that Appellant successfully invoked the

newly-discovered facts exception only as to Detective Dove.

II.   After-Discovered Evidence Claim

      Appellant claims that he is entitled to relief as for his after-discovered

evidence claim regarding Detective Dove.          He argues that Detective Dove

pled guilty on April 26, 2017 and, thus, Appellant could have not learned of

this new fact earlier through the exercise of due diligence. Appellant’s Brief

at 15. He claims the evidence will not be merely cumulative or corroborative

of other evidence presented at trial because “[t]here was no substantial

information presented at trial to undermine the detective[’]s credibility and

reliability of [his] investigation.”     Id. Appellant contends that he will not

present this evidence for impeachment purposes, rather, to undermine the

reliability of the investigation.    Id. at 16. Finally, Appellant contends, the

evidence will likely return a different verdict if a new trial were granted

because the evidence against him is not overwhelming given that only two

witnesses implicated him in the crime. Id.


(Footnote Continued) _______________________

However, as stated above, the timeliness requirements of the PCRA are
jurisdictional in nature and require the petitioner to plead and prove an
exception to the PCRA time bar. Brown, 111 A.3d at 175. Nevertheless,
the matters alleged in Appellant’s application for remand arose while this
appeal was pending.       Under these circumstances, we deny Appellant’s
application for remand without prejudice to the opportunity to file a PCRA
petition seeking relief from the PCRA time bar within sixty days of the
resolution of this appeal. See Commonwealth v. Lark, 746 A.2d 585, 588
(Pa. 2000).



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      The Pennsylvania Supreme Court has explained that for a petitioner to

obtain relief, he or she must establish 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. Washington, 927 A.2d 586, 595-96

(Pa. 2007).

      Here, the PCRA court’s Rule 1925(a) opinion, it explained that even if

Appellant had raised his issues in a timely manner, he would not be entitled

to relief as to his after-discovered evidence claim. PCRA Ct. Op., 8/15/17, at

6-7. First, the court stated, the accusations against the detective is “years

old,” thus, Appellant did not act diligently.   Id. at 7.   Second, Appellant

“failed to provide any indication that the [Detective Dove] altered evidence

or committed any wrongdoing in the instant matter.” Id. Third, the court

reasoned that Appellant had not indicated how, other than impeachment, he

would use the information.    Id. at 8.    Fourth, the court stated, Appellant

“cannot show that the information set forth in his PCRA petition would have

let to a different outcome as the Commonwealth presented overwhelming

evidence of [Appellant]’s guilt.”   Id.   “There is not reasonable probability

that the information [Appellant] here provided could undermine confidence

in his conviction. Id.

      While Appellant established that he could not have obtained the

information regarding Detective Dove’s guilty plea earlier through the

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exercise   of   due   diligence,    his   after-discovered   evidence   claim   fails

nonetheless.    Appellant states that the evidence would not be cumulative

because there was no evidence presented at trial directed at undermining

Detective Dove’s credibility.      Appellant’s Brief at 15.    However, Appellant

cannot offer the after-discovered evidence solely to impeach a witness’s

credibility. See Washington, 927 A.2d at 96. Further, the evidence would

not likely compel a different verdict. Detective Dove’s testimony at trial was

that he was not part of the “original group of detectives handling the

investigation.” N.T., 11/21/11, at 27. He explained that he was limited to

analyzing phone records.           Id.    More specifically, he testified that he

“received a number that was suggested that it was [Appellant’s] number,”

but he was “unable to verify that that was [Appellant’s] number.” Id. at 70.

Therefore, Detective Dove presented no testimony against Appellant, and a

new trial would with evidence regarding Detective Dove’s guilty plea would

not compel a different verdict in Appellant’s case. See Washington, 927

A.2d at 596.

      Accordingly, we conclude that Appellant’s substantive after-discovered

evidence as to Detective Dove claim lacks merit.

      Order affirmed. Application for remand denied without prejudice.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/19/18




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