Com. v. Ambrose, J.

• Court: Superior Court of Pennsylvania
• Decided: September 21, 2023
• Docket: 2473 EDA 2022
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JARON AMBROSE : : Appellant : No. 2473 EDA 2022

Appeal from the PCRA Order Entered September 15, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008198-2011

BEFORE: BENDER, P.J.E., LAZARUS, J., and SULLIVAN, J.

MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 21, 2023

Jaron Ambrose appeals from the order, entered in the Court of Common

Pleas of Philadelphia County, dismissing his serial petition filed pursuant to

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Upon

our review, we affirm.

Ambrose was convicted of first-degree murder and related charges

stemming from an incident that occurred on July 1, 2010, in which he

approached a group of people sitting on a porch on Marvine Street in

Philadelphia and shot two of them, wounding one fatally. The third person

present on the porch, Shaquita Morton, witnessed the shooting. Later that

afternoon, Morton provided a description of the shooter to the police. Morton

told police he had on a white t-shirt, brown Adidas sweatpants with an orange

stripe on the side, and tan Timberland boots. She stated that his hair was

“low cut” and he had “light skin.” N.T. Trial, 12/4/12, at 133. She described J-S30025-23

him as “five-foot-eight, maybe six feet” with a “muscular buil[d]” and stated

that he was “[b]etween 18 and 25” years old. Id. at 134.

Later that same evening, a vigil was held for the victim on Morton’s

block, which she attended. During the vigil, Morton was approached by the

victim’s cousin and shown a picture from Facebook. Morton was asked “is this

[the shooter]?” to which her reaction1 was “Oh, my God. Yes.” Id. at 146.

Morton testified that she was certain that the individual in the Facebook photo

was the shooter. See id. at 147. Morton did not, however, contact the police

to tell them she had seen a photograph of the shooter, as she “wanted to be

done with this” and thought she had given the police “all they needed to

know.” Id. at 148-49.

The police subsequently learned that Morton had identified the gunman

from a photograph at the vigil and contacted her for a further interview, which

Morton attended voluntarily. While there, police presented Morton with a

photographic array consisting of Ambrose’s photograph and seven other

people. Morton identified Ambrose in the array and also confirmed her

identification of the Facebook photo as Ambrose.

Shikeda Johnson also testified at trial. She stated that she was present

at the vigil on the evening of the shooting and saw Morton there, but that she

was “drunk and high” and, thus, did not really remember anything. N.T. Trial,

12/5/12, at 28-29. Johnson testified that she later gave a statement to two ____________________________________________

1 Morton could not recall whether she actually said those words out loud. See N.T. Trial, 12/4/12, at 146-47.

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detectives, one of whom was former detective James Pitts, who was

subsequently fired from the force for misconduct. Johnson claimed that the

detectives pressured her into speaking with them and told her that if she did

not sign the statement they had prepared, “they were going to take [her]

daughter and lock [Johnson] up.” Id. at 35. The statement Johnson signed,

purportedly under duress, stated, in relevant part:

[Johnson:] We were all out on Marvine because there was a vigil out there. I know there was a lot of people out there talking about who killed [the victim]. Someone said the name of the guy that shot [the victim]. I recognized the name when they said it then but I really don’t remember it now. Anyway, my friend Chuck was out there, too. When they said the name, Chuck was like, [“]Wait a minute.[”] He seemed shocked by the name and wanted to see if it was the guy he knew. So he asked if somebody could get on Facebook. We went over to [Morton’s] steps. And she was there with Robin and maybe some other people. And I asked if someone could let Chuck pull up the photo. When Chuck got on, he pulled up a photo and [Morton’s] eyes got real wide. And she was like[, “]That’s him. That’s him.[”] She said that she never would forget his face.

Id. at 45-46 (emphasis added).

Then-detective Pitts testified at trial regarding, inter alia, his interactions

with Johnson. He stated that Johnson “didn’t want to be involved,” as she

was “fearful for her safety, her child’s safety.” N.T. Trial, 12/6/12, at 26. Pitts

testified that Johnson ultimately agreed to give a written statement, which he

recorded, “verbatim,” and she signed. Id. at 27, 32. Pitts did not interview

Morton, nor was he involved in presenting her with the photographic array in

which she identified Ambrose as the shooter.

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On December 7, 2012, a jury convicted Ambrose of first-degree murder

and related offenses. That same day, the court sentenced Ambrose to life

imprisonment, plus concurrent sentences for the remaining convictions. This

Court affirmed Ambrose’s judgment of sentence on December 4, 2013, see

Commonwealth v. Ambrose, 93 A.3d 500 (Pa. Super. 2013) (Table), and

he did not seek allowance of appeal in the Pennsylvania Supreme Court.

On January 31, 2014, Ambrose filed his first pro se PCRA petition.

Court-appointed counsel filed an amended petition raising, inter alia, an after-

discovered-evidence claim based on a newspaper article that former detective

Pitts had engaged in misconduct in other cases. The PCRA court denied relief

and this Court affirmed. With regard to Ambrose’s after-discovered-evidence

claim concerning Pitts, the Court concluded that, because Johnson had

testified at trial as to Pitts’ alleged misconduct during her interview, Ambrose

failed to establish “why any testimony regarding possible police misconduct

could not have been obtained before the conclusion of trial by the exercise of

reasonable diligence.” Id., 2227 EDA 2015, at *6 (Pa. Super. filed 8/3/17)

(unpublished memorandum decision). The Supreme Court rejected Ambrose’s

petition for allowance of appeal. See id., 174 A.3d 569 (Pa. 2017) (Table).

Ambrose filed a second, counseled PCRA petition on December 29,

2017. In that petition, Ambrose sought relief based on what he asserted was

newly-discovered evidence regarding Pitts’ “habitual pattern, practice, and

routine of coercing witnesses into signing false statements.” Id., 1464 EDA

2018, at *3 (Pa. Super. filed 7/23/19) (unpublished memorandum decision).

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The PCRA court dismissed the petition as untimely, and Ambrose appealed to

this Court. On appeal, we rejected Ambrose’s attempt to circumvent the PCRA

time-bar pursuant to the newly-discovered-facts exception, holding that

“[b]ecause Ambrose raised this claim in a prior PCRA petition, he cannot

establish that the ‘fact’ upon which he based his 2017 PCRA petition was

[previously] unknown to him.” Id. at *4. Accordingly, we affirmed the PCRA

court’s dismissal of his petition, and our Supreme Court denied discretionary

review. See id., 227 A.3d 870 (Pa. 2020) (Table).

Ambrose, acting pro se, filed this, his third PCRA petition, on May 16,

2022. After the PCRA court issued Pa.R.Crim.P. 907 notice of its intent to

dismiss, current counsel entered his appearance and filed a response

requesting leave to file an amended petition, which the court granted. In the

amended petition, counsel argued that Ambrose was entitled the benefit of

the newly-discovered-fact and governmental-interference exceptions to the

jurisdictional PCRA time bar, as well as substantive relief in the form of a new

trial, as a result of a Brady2 violation by the Commonwealth. Specifically,

counsel asserted that the Commonwealth failed to disclose two instances of

sustained Internal Affairs (“IA”) findings against former detective Pitts. This

information was provided to Ambrose by a fellow inmate, Derrill Cunningham,3

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2 Brady v. Maryland, 373 U.S. 83 (1963).

3 In PCRA proceedings initiated by Cunningham, the Commonwealth conceded

that his constitutional rights under Brady had been violated because it had (Footnote Continued Next Page)

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in March 2022, and Ambrose filed his pro se petition two months later, in May

2022.

On August 11, 2022, the PCRA court issued Rule 907 notice of intent to

dismiss. The court concluded that: (1) Ambrose’s claim did not satisfy the

newly-discovered-fact exception, as he had long been aware of Pitts’

propensity for witness intimidation and had previously sought PCRA relief on

that basis; (2) Ambrose failed to satisfy the governmental interference

exception, as he presented no evidence that the government interfered with

his ability to access the information and had never requested the information;

(3) Ambrose failed to establish due diligence, as he had been aware of Pitts’

misconduct since Johnson testified at trial; and (4) even if Ambrose’s claim

could be considered timely, he failed to demonstrate how evidence of Pitts’

misconduct was material to his guilt, given that it would not have undermined

Morton’s identification testimony. See Rule 907 Notice, 8/11/22, at 2-4.

Ambrose did not file a response to the Rule 907 notice and, on

September 15, 2022, the PCRA court dismissed the petition. Ambrose filed a

timely notice of appeal, followed by a court-ordered Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. He raises the following claims

for our review:

failed to disclose material misconduct committed by Pitts in Cunningham’s case and in other matters. See Amended PCRA Petition, 8/4/22, at Exhibit A (Commonwealth’s Answer to Cunningham’s Second Amended PCRA Petition).

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1. Did the PCRA court err in finding that the governmental interference exception to the time[ ]bar in the form of a Brady violation did not apply to [Ambrose’s] amended petition?

2. Did the PCRA court further err when it dismissed [Ambrose’s] amended PCRA petition on the basis that he had no established that he would be entitled to substantive relief because materiality had not been established?

Brief of Appellant, at 2 (unnecessary capitalization omitted).

Before we reach the merits of Ambrose’s claims, we must address

whether this PCRA petition was timely filed. It is well-established that “the

PCRA’s timeliness requirements are jurisdictional in nature and must be

strictly construed; courts may not address the merits of the issues raised in a

petition if it is not timely filed.” Commonwealth v. Walters, 135 A.3d 589,

591 (Pa. Super. 2016) (citations omitted). Generally, a PCRA petition

“including a second or subsequent petition, shall be filed within one year of

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

A judgment of sentence becomes final at the conclusion of direct review or the

expiration of the time for seeking the review. See id. at § 9545(b)(3).

However, Pennsylvania courts may consider the merits of an untimely

PCRA petition if the petitioner explicitly pleads and proves one of the three

exceptions enumerated in section 9545(b)(1), which are: (1) the petitioner’s

inability to raise a claim as a result of governmental interference; (2) the

discovery of previously unknown facts or evidence that would have supported

a claim; or (3) a newly-recognized constitutional right that has been held to

apply retroactively by the Supreme Court of the United States or the Supreme

Court of Pennsylvania. See id. at § 9545(b)(1)(i)-(iii). A petition invoking

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an exception under section 9545(b)(1) must be filed within one year of the

date the claim could have been presented. See id. at § 9545(b)(2).

Here, Ambrose’s judgment of sentence became final on January 3, 2014,

when the thirty-day period for seeking discretionary review in our Supreme

Court expired. See 42 Pa.C.S.A. § 9545(b)(3). Thus, Ambrose had until

January 3, 2015, to file a timely PCRA petition. Ambrose’s instant petition,

filed on May 16, 2022, is facially untimely and, thus, Ambrose must satisfy

one of the PCRA timeliness exceptions to establish jurisdiction.

Ambrose attempts to invoke the governmental interference exception,

asserting that the Commonwealth’s failed to disclose the Brady material

regarding Pitts. Ambrose claims that he learned of this information in March

2022 and filed his petition raising the claim within one year, on May 16, 2022.

He argues that:

[T]he [PCRA] court’s position that the government never interfered with [Ambrose’s] access to former detective Pitts’ Internal Affairs files is directly undermined by its next sentence that “[a] petitioner is not entitled to a police officer’s [IA] file, since it is a part of the officer’s personnel file. Commonwealth v. McFalls, 251 A.3d 1286, 1291 (Pa. Super. 2021) [] (citing Commonwealth v. Meja-Arias, 734 A.2d 870 (Pa. Super. 1999).” [PCRA Court Opinion, 9/15/22, at 6.]

Indeed, it is true that criminal defendants are not entitled to police officers’ IA files. Consequently, criminal defendants, like [Ambrose], have no ability to “access this information.” Thus, the [PCRA] court’s observation that [Ambrose] “never requested” this information is a red herring. What good would it have done for [Ambrose], at the time of his trial in 2012, to request or subpoena these files? None, because he is not entitled to them. Consequently, the only way for [Ambrose] to receive former

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detective Pitts’ IA files would have been for the Commonwealth to furnish them to the defense. This has never been done.

Brief of Appellant, at 14-15.

Our Supreme Court has provided that, in order to establish a Brady

violation:

a defendant must show that: (1) evidence was suppressed by the state, either willfully or inadvertently; (2) the evidence was favorable to the defendant, either because it was exculpatory or because it could have been used for impeachment; and (3) the evidence was material, in that its omission resulted in prejudice to the defendant. However, the mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish materiality in the constitutional sense. Rather, evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Commonwealth v. Willis, 46 A.3d 648, 656 (Pa. 2012) (internal citations

and quotation marks omitted). “[T]o be entitled to a new trial for failure to

disclose evidence affecting a witness’ credibility, the defendant must

demonstrate that the reliability of the witness may well be determinative of

his guilt or innocence.” Commonwealth v. Dennis, 17 A.3d 297, 308-09

(Pa. Super. 2011).

Although a Brady violation may fall within the governmental interference exception, the petitioner must plead and prove the failure to previously raise the claim was the result of interference by government officials, and the information could not have been obtained earlier with the exercise of due diligence. Section 9545(b)(1)(ii)’s exception requires the facts upon which the Brady claim is predicated were not previously known to the petitioner and could not have been ascertained through due diligence. In [Commonwealth v.] Bennett, [930 A.2d 1264 (Pa. 2007),] we clarified that § 9454(b)(1)(ii)’s exception does not

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contain the same requirements as a Brady claim, noting “we made clear the exception set forth in subsection (b)(1)(ii) does not require any merits analysis of the underlying claim. Rather, the exception merely requires that the ‘facts’ upon which such a claim is predicated must not have been known to appellant, nor could they have been ascertained by due diligence.” Bennett, [930 A.2d] at 1271.

Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008) (some

citations omitted).

Here, even assuming, arguendo, that Ambrose satisfied the

governmental interference exception to the PCRA time bar, he would be

unable to establish a substantive Brady violation, as he cannot demonstrate

the materiality of the evidence, i.e., that its omission resulted in prejudice to

him. Willis, supra. Ambrose claims that “the evidence implicating

[Ambrose] was weak, at best,” Morton’s “identification of [Ambrose] was

highly suspect,” and “Johnson’s recantation of the details [in the statement

purportedly coerced by Pitts] pertaining to Morton’s ‘eyes [getting] wide’ and

her saying that she’d ‘never forget that face’ was a crucial point.” Brief of

Appellant, at 22. These claims are unsupported by the record. As the PCRA

court correctly noted, Johnson’s testimony was “limited to what happened at

the vigil after the murder occurred. Other witnesses testified about what

happened at the vigil, including [] Morton. Even if the jury believed []

Johnson’s recantation, her testimony did not negate the circumstances of []

Morton’s identification of [Ambrose’s] Facebook photograph at the vigil.”

PCRA Court Opinion, 9/15/22, at 8.

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Our review of the record further confirms the court’s conclusions that,

contrary to being “highly suspect,” Brief of Appellant, at 22, Morton’s

identification was based on an “ample opportunity, in close proximity, to

observe [Ambrose].” PCRA Court Opinion, 6/26/15, at 8. Rather than giving

a “vague” description, Brief of Appellant, at 3, Morton provided a highly

detailed description of the shooter, in which she correctly described his

clothing, approximate height and weight, complexion, age, build, and

hairstyle. See N.T. Trial, 12/4/12, at 132-34. Morton testified at trial that

she was “certain” that the individual in the Facebook photograph she saw on

the night of the vigil was the same person who shot the victim and stated that

her reaction to being shown the image was: “Oh, my God. Yes.” Id. at 146-

47. Morton never wavered in her identification of Ambrose, and she identified

him on no fewer than five separate occasions: (1) at the vigil on the day of

the shooting, see id. at 146; (2) six months after the shooting, on January

24, 2011, when shown a photo array4 by police, see id. at 153; (3) later on

January 24, 2011, when shown a Facebook photo of Ambrose by police, see

id. at 156; (4) at Ambrose’s preliminary hearing, see id. at 158, and (5) at

trial. See id. at 120.

4 Ambrose claims that the photo array shown to Morton was “suggestive” because, while Ambrose was wearing “civilian clothes, . . . every other subject wore a white t-shirt[.]” Brief of Appellant, at 4. This assertion is belied by the record. At trial, the jury was shown the photo array; of the seven other individuals pictured in the array, two were described for the record as wearing white shirts, three as wearing black shirts, one as wearing no shirt, and one as wearing a light blue shirt. See N.T. Trial, 12/6/12, at 52-53.

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In the face of Morton’s clear, unwavering, and accurate identification of

Ambrose, the purportedly false statement attributed to Johnson in the

statement taken by former detective Pitts—that Morton’s “eyes got wide”

when she saw the Facebook photo at the vigil and she stated she would “never

forget [Ambrose’s] face”—simply cannot be deemed material to Ambrose’s

guilt. Indeed, Morton’s own testimony as to her reaction upon first seeing the

Facebook photo of Ambrose—“Oh my God. Yes.”—conveys the same level of

certainty as the statement attributed to her in Johnson’s allegedly false

statement.

In light of the foregoing, Ambrose is unable to demonstrate that the

omission of evidence pertaining to misconduct engaged in by former detective

Pitts prejudiced him. Ambrose’s conviction was based on Morton’s eyewitness

identification testimony. Accordingly, evidence tending to undermine the

credibility of Pitts—who neither interviewed Morton nor showed her the photo

array—would not have made a difference in the outcome of trial. Likewise,

even if Ambrose could have conclusively demonstrated that Johnson’s

statement had been coerced by Pitts, there is no reasonable probability that

the result of the proceedings would have been different. Accordingly, we

affirm the order of the PCRA court.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/21/2023

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