J-S20040-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 3005 EDA 2019

             Appeal from the PCRA Order Entered October 17, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0012199-2009


BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                          FILED AUGUST 07, 2020

        Edward N. Daniels appeals the order denying as untimely his petition for

relief filed under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.

Daniels alleges his petition is timely under the newly discovered facts

exception,1 and that the PCRA court abused its discretion in denying his

motion for recusal. We affirm.

        We have previously summarized the underlying facts as follows:

        On June 27, 2009, [Daniels], along with Donnell Murchison and
        Antonio Wright, entered the Piazza Navona Apartments in the
        Northern Liberties section of Philadelphia. All three men waited in
        the hallway of the seventh floor. As Rian Thal, who was allegedly
        expecting a shipment of $500,000 worth of powder cocaine from
        Texas, and her associate, Timothy Gilmore, were exiting the
        elevator, [Daniels], Wright, and Murchison pulled out their guns
        and announced a robbery. Gilmore resisted, and Wright shot him.
        Murchison then shot Thal in the back of the head. Upon noticing
        that Gilmore was still alive, Wright shot Gilmore twice more, also
____________________________________________


1   See 42 Pa.C.S.A. § 9545(b)(1)(ii).
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       in the head. Both victims died at the scene. [Daniels], Wright, and
       Murchison fled without obtaining the targeted drugs.

Commonwealth v. Daniels, No. 539 EDA 2016, 2016 WL 6124110, at *1

(Pa.Super. Oct. 20, 2016) (unpublished memorandum).

       The Commonwealth charged Daniels with the second-degree murder of

Timothy Gilmore, robbery, and conspiracy.2 A jury found Daniels guilty, and

the court sentenced Daniels to life without parole for his second-degree

murder conviction. We affirmed the judgment of sentence.3 The Pennsylvania

Supreme Court denied Daniel’s petition for allowance of appeal on February

19, 2014.

       Daniels filed his first PCRA petition in April 2014. The PCRA court

appointed counsel and ultimately denied relief. This Court affirmed, and the

Pennsylvania Supreme Court denied review.

       Daniels filed a second PCRA petition, pro se, in June 2017. Daniels

alleged he had discovered news articles reporting misconduct by Philadelphia

Police Detectives Ronald S. Dove, Ohmarr Jenkins, and James Pitts. In the

petition, Daniels requested “any available documentary evidence concerning

the claim made regarding [the detectives].” PCRA pet., 6/2/17, at 5, ¶ 36.
____________________________________________


2The Commonwealth charged Daniels with the second-degree murder of Rian
Thal, robbery, conspiracy, and carrying firearms in public in Philadelphia on a
separate docket number. See companion case, Commonwealth v. Daniels,
No. 35 EDA 2019.

3 We determined that the evidence supported one count of conspiracy, and
therefore vacated the conspiracy conviction in Daniels’ other case. See note
2, supra.



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The    PCRA     court   dismissed      the     petition,   and   this   court   affirmed.

Commonwealth v. Daniels, No. 2525 EDA 2017, 2018 WL 3469857 at *1

(Pa.Super. July 19, 2018) (unpublished memorandum). As to the allegations

against Detective Pitts, we concluded that the petition was untimely because

the 2013 and 2016 news articles that Daniels claimed as “newly discovered

facts” pre-dated Daniels’ 2017 petition by more than 60 days.4

       Daniels filed the instant PCRA petition, his third, pro se on August 28,

2018. Daniels asserted that on November 7, 2017, an attorney notified him

of the Philadelphia Court of Common Pleas’ decision in Commonwealth v.

Thorpe, No. CP-51-CR-0011433-2008 (Phila. Cty. filed Nov. 3, 2017). Daniels

claimed that in Thorpe, the PCRA court granted relief after finding that

Detective James Pitts had engaged in coercive conduct when interviewing

witnesses in that case and other cases. Daniels stated that sometime after the

attorney informed him of Thorpe, he obtained the transcripts of and exhibits

from the evidentiary hearing in Thorpe. Daniels asserted that ten witnesses

at that hearing “testified about the conduct of Detective James Pitts, which

established that he routinely threat[en]s, coerces, and abuses people to obtain

statements.” PCRA Pet. 8/28/18, at 5 ¶ 34.




____________________________________________


4The current version of the statute allows petitioners one year to file a petition
based on newly discovered facts. See 42 Pa.C.S.A. § 9545(b)(2).



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       Daniels alleged that Detective Pitts interviewed five people in connection

with the investigation of Daniels’ case.5 Daniels claimed the Commonwealth

____________________________________________


5 Daniels’ allegations regarding Detective Pitts’ involvement in his case are, in
full, as follows:

       (a) Robert Keith was brought in, and interrogated, by Detective
       Pitts on July 9, 2009. Keith implicated Epps, Murchison and Jones.

       (b) Nicholas Davitt was interrogated by Detective Pitts on June
       27, 2009. Davitt said he observed 3 black males driving around
       the apartment building, going inside it, and a female that seemed
       to be listening and observing people, after the police arrived.

       (c) Edward Emerson was interrogated by Detective Pitts on
       September 29, 2009. Emerson was inside Rian Thal’s apartment
       when the shooting happened, but he did not see it. Emerson was
       from Houston and came to Philadelphia in the truck with Timothy
       Gilmore, who was killed along with Thal.

       (d) Langdon Scott was interrogated by Detectives Pitts and
       Jenkins on July 24, 2009. Scott was originally a suspect and plead
       guilty to lesser charges. He testified at the trial and implicated
       Daniels. Scott identified Caesar Holloway and Donnell Murchison.

       (e) Katoya Jones gave 4 statements. She was interrogated by
       Detective Pitts three times, the second two times she was
       interrogated by Pitts along with Detective Jenkins. N.T. 11/15/11,
       [Daniels’ trial] pp. 68, 77, 87.

       . . . Jones testified that she was held at the police station for two
       days and interrogated on and off, sometimes 15 to 30 minutes in
       between questioning, sometimes up to two hours. N.T. 11/15/11,
       [Daniels’ trial] pp. 85-86. She testified that changes were made
       to her statement that were not in her handwriting. N.T. 11/15/11,
       [Daniels’ trial] pp. 178-179. Jones also testified that the
       detectives gave her the names of streets and, at least, one
       person’s name in her statement. Id. at 180-181. These
       characteristics are consistent with Detective Pitts pattern of
       conduct in obtaining statements.



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was aware of Detective Pitts’ pattern of abuse before Daniels’ 2011 trial, and

violated Brady v. Maryland, 373 U.S. 83 (1963), by withholding this

information from Daniels. Daniels argued the evidence from the Thorpe

hearing qualified under the PCRA as both after-discovered evidence and

evidence of a constitutional violation. See 42 Pa.C.S.A. § 9543(a)(2)(i), (vi).

       Daniels claimed his petition was timely under the newly discovered facts

exception because he allegedly discovered the Thorpe decision and obtained

the transcripts from that case during the appeal of his second PCRA petition.

He alleged that he filed the instant petition within 60 days of the conclusion

of his previous appeal. See Daniels, 2018 WL 3469857, at *6 n.4 (noting

Daniels obtained and raised the Thorpe transcripts while his case was on

appeal, and dismissing those claims without prejudice to raise them in a

subsequent PCRA petition subject to the PCRA’s timeliness requirements).

       Daniels also filed a Motion for Recusal. Daniels claimed that he had

requested permission to conduct discovery in connection with his second

petition, and that the PCRA court judge, who had also presided over his trial

and   previous     PCRA    petitions,    had   denied   the   request   and   “almost

immediately” dismissed the petition as time-barred. Daniels claimed the judge

had done so as “a result of bias and partiality,” because the judge had presided
____________________________________________


        . . . Daniels was also physically and verbally abused by Detective
       Pitts when interrogated about this case.

PCRA Pet. at 9-10, ¶¶ 45-47. We note that Emerson, Scott, and Jones testified
for the Commonwealth at Daniels’ trial; Keith and Davitt did not.



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over another case, Commonwealth v. Mclaughlin,6 “in which Detective

Pitts’ pattern of conduct in obtaining statements was an issue.” Mot. for

Recusal, 9/12/18, at ¶ 5, 7.

       The PCRA court dismissed Daniels’ petition and denied Daniels’ motion

for recusal. The PCRA court found Daniels’ petition was untimely because

Daniels could have discovered the underlying facts through the exercise of

due diligence.7 The PCRA court also concluded that had the petition been

timely, Daniels would not be due relief, because the evidence does not relate

to misconduct by Detective Pitts in connection with his case; the Thorpe

decision does not qualify as after-discovered evidence, as it would only be

used to impeach Detective Pitts’ credibility; and the Commonwealth presented

overwhelming evidence of Daniels’ guilt. The court denied Daniels’ recusal

motion, finding that it could fairly and objectively rule on the PCRA matter,

and that the court’s denial of Daniels’ discovery motion in a previous PCRA

petition did not warrant recusal.




____________________________________________


6   See CP-51-CR-0010456-2008.

7 The PCRA court’s Rule 907 notice of its intent to dismiss the petition
erroneously stated it was dismissing the petition because it lacked merit,
whereas the court’s Rule 1925(a) opinion states it dismissed the petition
because it was untimely. However, Daniels does not argue this caused him
prejudice, and because the petition is untimely, the court’s failure to comply
with Rule 907 is not reversible error. Commonwealth v. Lawson, 90 A.3d
1, 5 (Pa.Super. 2014).



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       Daniels appealed,8 and raises the following:

       1. Whether [Daniels] presented newly discovered facts and
       exercised due diligence sufficient to satisfy an exception to the
       time-bar[.]

       2. Whether [Daniels] would have been entitled to relief on the
       claim that the Commonwealth violated Brady v. Maryland[.]

       3. Whether [Daniels] would have been entitled to relief on the
       claim of newly discovered evidence[.]

       4. Whether the PCRA Court abused its discretion by denying
       [Daniels’] Motion for Recusal[.]

Daniels’ Br. at 4 (answers below omitted, italics added).

                         Timeliness of the PCRA Petition

       When the PCRA court denies relief, we review to “determine whether

the PCRA court’s order is supported by the record and free of legal error.”

Commonwealth v. Anderson, --- A.3d ----, 2020 WL 3261489, at *2

(Pa.Super. June 17, 2020) (quoting Commonwealth v. Smith, 181 A.3d

1168, 1174 (Pa.Super. 2018)).




____________________________________________


8 Daniels filed his notice of appeal two months after the court dismissed his
PCRA petition. His notice asserted that the PCRA court did not mail him the
final order dismissing his petition until November 26, 2018, and he did not
receive it until December 7, 2018. Daniels attached, as an exhibit, an envelope
sent to him from the Philadelphia Court of Common Pleas, bearing a postmark
of November 26, 2018, and stamped as received by the prison on December
7, 2018. Although this Court may not extend the deadline for filing an appeal,
we decline to quash where the appellant’s appeal was untimely due to a
breakdown in the trial court’s operations. See Commonwealth v.
Stansbury, 219 A.3d 157, 160 (Pa.Super. 2019), reargument denied (Nov.
12, 2019). Under the instant circumstances, we will not quash.

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      Timeliness is a jurisdictional threshold to PCRA relief. Id. Daniels’

judgment of sentence became final in 2014, when the Pennsylvania Supreme

Court denied review, and the time in which to appeal to the Supreme Court of

the United States expired. See 42 Pa.C.S.A. § 9545(b)(3). As Daniels did not

file his petition until more than one year after that date, Daniels’ petition is

timely only if he has pleaded and proven that one of the enumerated

exceptions to the one-year time-bar applies. See 42 Pa.C.S.A. § 9545(b)(1)(i-

iii). Daniels claims his petition is timely under the “newly discovered facts”

exception, which requires proof that “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).

The focus of the exception is “on [the] newly discovered facts, not on a newly

discovered     or   newly   willing   source   for   previously   known   facts.”

Commonwealth v. Johnson, 863 A.2d 423, 427 (Pa. 2004), abrogated on

different grounds as recognized by Commonwealth v. Bennett, 930

A.2d 1264 (Pa. 2007); see, e.g., Commonwealth v. Abu-Jamal, 941 A.2d

1263, 1267 (Pa. 2008) (holding affidavit alleging fabricated testimony was not

newly discovered fact, but merely new “conduit” for a previously raised claim

of perjury).

      Daniels bases his claim on his receipt of the transcripts of the June 2017

evidentiary hearing in Thorpe. Daniels argues he acquired the transcripts of

the Thorpe hearing in late 2017 and filed his petition within 60 days after this

Court disposed of the appeal of his previous petition. Daniels claims the

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evidence presented at the Thorpe hearing constituted new facts proving that

Detective Pitts engaged in coercive interrogation tactics that affected the

outcome of his own case. Daniels claimed he could not have obtained the

testimony or records presented at the Thorpe hearing earlier, or compile such

evidence himself, as Thorpe did, without the assistance of counsel.

      Daniels failed to meet the newly discovered facts exception because the

“facts” he asserts are not “new.” In his second PCRA petition, Daniels claimed

that Detective Pitts had a history of abusive and coercive interrogation

techniques, which had corrupted the integrity of other criminal cases, and

called into question the validity of his conviction. Daniels recycles that claim

in his present petition, but merely identifies a new source for the same “facts,”

the transcript of the Thorpe hearing. See Commonwealth v. Hill, 202 A.3d

793, 799-800 (Pa.Super. 2019) (holding PCRA petition, based in part on

newspaper article of 2016 civil judgment against Detective Pitts, untimely

where petitioner had raised allegations of Detective Pitts’ investigatory

corruption in previous petition); see also Commonwealth v. Ambrose, No.

1464 EDA 2018, 2019 WL 3307523, at *4 (Pa. Super. Ct. July 23, 2019)

(holding transcript from PCRA hearing in Thorpe was not newly discovered

fact where petitioner had raised allegations of Detective Pitts’ misconduct in




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other cases in earlier PCRA petition, and was not evidence of misconduct in

the instant case).9

       In addition, the “fact” a petitioner claims to have newly discovered must

bear   some     logical   connection     to    a   plausible   claim   for   relief.   See

Commonwealth v. Robinson, 185 A.3d 1055, 1062 (Pa.Super.) (en banc),

appeal denied, 192 A.3d 1105 (Pa. 2018). In Commonwealth v. Brown, 134

A.3d 1097, 1109 (Pa.Super. 2016), we held that a new trial was not warranted

where the only evidence offered against Detective Pitts was not specific to the

case at bar. Likewise, here, the evidence from the Thorpe hearing is not

evidence of Detective Pitts’ misconduct in the instant case and therefore does

not provide a factual basis for any claim Daniels could make.




____________________________________________


9 Even if we considered the substantive content of the Thorpe hearing as
newly discovered facts within the context of the timeliness exception, Daniels
has not proven that he could not have uncovered the same content earlier
through the exercise of due diligence. As the PCRA court stated,
       [T]he evidence underlying [the Thorpe] decision [was] not [new
       facts], as evidenced by the fact that [it was] set forth in the
       Thorpe case, wherein Thorpe filed his PCRA petitions raising the
       allegations against Detective Pitts on May 8, 2015. [Daniels],
       thus, could have discovered the facts underlying his current PCRA
       petition had he exercised due diligence[. . . .] Notably, [Daniels]
       failed in his most recent PCRA petition to set forth any argument
       as to why he could not have discovered the allegations against
       Detective Pitts sooner. This alone rendered his filing untimely
       filed.
PCRA Ct. Op., 1/30/19, at 7.



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                              Denial of the Recusal Motion

       Daniels argues the PCRA court abused its discretion in denying his

motion for recusal, and did not decide the motion based on whether there was

an objective appearance of impropriety. Daniels argues there was at least the

appearance of impropriety because: (1) the evidence he obtained from the

Thorpe hearing shows that the PCRA court judge presided over another case

in which Detective Pitts’ pattern of misconduct was at issue; and (2) that same

judge had dismissed Daniels’ second PCRA petition, which may have

uncovered this evidence earlier, “almost immediate[ly],” 10 without allowing

Daniels to conduct discovery or amend his petition. Daniels’ Br. at 24.

       When considering a motion for recusal, a judge must determine

“whether his or her continued involvement in the case creates an appearance

of impropriety and/or would tend to undermine public confidence in the

judiciary.” Commonwealth v. Rominger, 199 A.3d 964, 976 (Pa.Super.

2018) (quoting Commonwealth v. Druce, 848 A.2d 104, 108 (Pa. 2004)),

reargument denied (Feb. 4, 2019), appeal denied, 217 A.3d 217 (Pa. 2019).

We presume “judges of this Commonwealth are ‘honorable, fair and

competent,’” and the moving party “bears the burden of producing evidence

establishing bias, prejudice, or unfairness necessitating recusal.” Id. (quoting




____________________________________________


10 Daniels filed his second PCRA petition on June 2, 2017, and the court issued
its notice of dismissal on June 16, 2017, and dismissed the petition on July
11, 2017.

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Druce, 848 A.2d at 108). We will not disturb the denial of a recusal motion

absent an abuse of discretion. Id. (quoting Druce, 848 A.2d at 108).

     Daniels hinges his claim on the appearance of impropriety arising from

the fact that the PCRA judge dismissed his previous PCRA petition, allegedly

preventing him from discovering that the PCRA judge had presided over

another case in which Detective Pitts’ behavior was called into question.

However, Daniels has made no assertion that the judge – rather than

Detective Pitts – was found to have acted improperly in that other case. There

is therefore no reason to believe that the judge would have wanted to prevent

Daniels from learning about that case. We thus fail to see how the judge’s

dismissal of the second petition made the judge’s presiding over the present

petition appear improper.

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/20




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