J-S66010-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : HOSEA BOYD : : Appellant : No. 3230 EDA 2017
Appeal from the PCRA Order September 28, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000258-2012
BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 19, 2018
Appellant, Hosea Boyd, appeals from the order entered in the
Philadelphia County Court of Common Pleas, which denied his first petition
brought pursuant to the Post-Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A.
§§ 9541-9546. We affirm.
The relevant facts and procedural history of this case are as follows. On
February 8, 2013, Appellant entered a negotiated guilty plea to possession
with intent to distribute a controlled substance and conspiracy. The court
sentenced Appellant that same day to an aggregate term of 2 to 4 years’
imprisonment, plus 5 years of probation, in accordance with the plea
agreement. Appellant did not file a direct appeal.
On April 22, 2014, Appellant filed a pro se PCRA petition. Appellant
stated he had just learned, sometime after February 23, 2014, that Officer J-S66010-18
Jeffrey Walker, who was part of the narcotics team that arrested Appellant,
had “planted” narcotics in other cases. The PCRA court appointed counsel on
September 30, 2015. Counsel filed an amended petition on October 5, 2015,
which alleged Appellant did not knowingly and voluntarily enter his guilty plea
because he was unaware of the investigation of Officer Walker at the time of
Appellant’s plea. The PCRA court did not issue notice pursuant to Pa.R.Crim.P.
907 or hold an evidentiary hearing. On September 28, 2017, the PCRA court
denied relief. Appellant timely filed a notice of appeal on October 3, 2017,
and a voluntary concise statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925(b) on December 8, 2017.
Appellant raises the following issue for our review:
DID THE [PCRA] COURT ERR IN FAILING TO GRANT PCRA RELIEF WITHOUT PERMITTING DISCOVERY AND WITHOUT HOLDING AN EVIDENTIARY HEARING?
(Appellant’s Brief at 7).
Preliminarily, the issuance of Rule 907 notice is mandatory if the PCRA
court does not hold an evidentiary hearing. Commonwealth v. Guthrie, 749
A.2d 502 (Pa.Super. 2000). Nevertheless, the failure to challenge on appeal
the absence of Rule 907 notice constitutes waiver. Commonwealth v.
Taylor, 65 A.3d 462 (Pa.Super. 2013). Here, Appellant did not challenge on
appeal the lack of Rule 907 notice, so any related concern is waived. See id.
Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s determination
-2- J-S66010-18
and whether its decision is free of legal error. Commonwealth v. Conway,
14 A.3d 101, 109 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795
(2011). This Court grants great deference to the findings of the PCRA court if
the record contains any support for those findings. Commonwealth v. Boyd,
923 A.2d 513, 515 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d
74 (2007). We give no such deference, however, to the court’s legal
conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super.
2012). Further, a petitioner is not entitled to a PCRA hearing as a matter of
right; the PCRA court can decline to hold a hearing if there is no genuine issue
concerning any material fact, the petitioner is not entitled to PCRA relief, and
no purpose would be served by any further proceedings. Commonwealth v.
Wah, 42 A.3d 335, 338 (Pa.Super. 2012); Pa.R.Crim.P. 907.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Sean F.
Kennedy, we conclude Appellant’s issue merits no relief. The trial court
opinion comprehensively discusses and properly disposes of the question
presented. (See PCRA Court Opinion, filed April 11, 2018, at 4-22) (finding:
Appellant pled and proved he met after-discovered facts exception to PCRA
time-bar, where Appellant, as pro se imprisoned petitioner, was entitled to
benefit of Commonwealth v. Burton, 638 Pa. 687, 158 A.3d 618 (2017),
and he filed his pro se PCRA petition within 60 days of Officer Walker’s guilty
plea; nevertheless, evidence Appellant sought in PCRA discovery request was
-3- J-S66010-18
not exculpatory; further, Commonwealth was not required to disclose
potential impeachment evidence before negotiating plea agreement with
Appellant; Appellant waived right to review Commonwealth’s evidence against
him by entering guilty plea; Appellant did not demonstrate Commonwealth
suppressed evidence of Officer Walker’s arrest; moreover, Appellant made no
specific assertions of wrongdoing by Officer Walker in Appellant’s own case;
Officer Walker’s arrest would have qualified only as impeachment evidence,
which does not warrant “after-discovered evidence” relief under PCRA;
Appellant failed to assert any genuine issue of material fact regarding his
ineffective assistance of counsel and after-discovered evidence claims,
therefore, PCRA court properly dismissed Appellant’s PCRA petition without
evidentiary hearing). The record supports the PCRA court’s decision.
Accordingly, we affirm on the basis of the PCRA court opinion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 12/19/18
-4- _;zL.-;;J C/ I/ r=
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FILED j ,. I ,. IN THE COURT OF COMMON PLEAS PHILADELPHIA COUNTY 2018 APR 11 PM 3: o� FIRST JUDICIAL DISTRICT OF PENNSYLVANIAOfflCE OF J!JfJfCI.\I RECORDS CRIMINAL DIVISION t.R!MIW,L 01\'ISIOM .flRSJ ,JUOlpi/\L DISTRICT /)�· J··£r��1� ''(t V/\NL� COMMONWEALTH OF PENNSYLVANIA CP-Sl-CR-258-2012 vs. r·- .. ·-- . .. . . ·- .. CP-51·CR.CJ000258-2012 Comm. v. Boyd, Hosea Opinion
HOSEA BOYD IIIIII I Ill 111111111111111 .... 8094386041 OPINION
KENNEDY, SEAN F., J. April 11, 2018
Hosea Boyd C'the Appellant") appeals from a judgment of sentence entered in the
Philadelphia County Court of Common Pleas, following his negotiated guilty plea for Possession
with Intent to Deliver (35 Pa.C.S. § 780-113(a)(30)) and Conspiracy to Possess with Intent to
Deliver (18 Pa.C.S. § 903(c)). The relevant facts and procedural history follow.
FACTS
On September 9, 2011, after three previous days of surveillance, officers from the
Narcotics Field Unit of the Philadelphia Police Department returned to a home located at 622
South 52nd Street in the City and County of Philadelphia. N.T. 2/8/2013 at 14. Officers met with
a confidential informant who was provided with $20 of pre-recorded buy money and directed to
622 South 52nd Street. Id at 15. On September 9, 20.11, at approximately 2:00 p.m., Officer
Simmons observed the confidential informant approach 622 South 52nd Street and encounter a
female seated in a chair at the front of the garage; the woman was later identified as Lori L.S. Id
at 15. The confidential informant and Lori went into the garage for several minutes until they reemerged. Id. The confidential informant returned to back-up officers and turned over two clear
Ziploc packets each containing a chunky, off-white substance believed to be cocaine base. Id.
Upon exiting the garage, Lori had a brief conversation with the Appellant. N.T. 2/8/2013
at 15. Lori and the Appellant then entered the garage. Id. The purchased items handed over to the
officers did test positive for cocaine. Id. Officers continued their investigation, and at
approximately 2:05 p.m., officers executed Warrant Number 159108 for the property at 622
South 52nd Street that had previously been applied for. Id. Officers arrested Lori L.S. who was
seated inside and confiscated $107 in United States currency, including the $20 of pre-recorded
buy money, a cellular phone, a green smock, and a probation appointment card. Id at 16.
As officers approached 622 South 52nd Street, Officer Williams observed the Appellant
discard one small, white bottle into a white 1999 Mercury Grand Marquis bearing Pennsylvania
tags. N.T. 2/8/2013 at 16. Officer WiJliams detained the Appellant and retrieved the bottle. The
bottle discarded by the Appellant was found to contain 13 clear Ziploc packets each containing a
chunky, off-white substance believed to be cocaine base. Officer Williams also confiscated $419
in United States currency from the Appellant and a set of car keys found to operate the white
1999 Mercury Grand Marquis. Id at 16-1 7. Further investigation revealed the car belonged to the
Appellant. An inventory search of the Appellant's Grand Marquis was conducted, during which
time Officer Simmons observed a small jar containing a green, leafy, seedy substance believed to
be marijuana in the rear passenger seat. Id at 17. Fearing destruction of evidence, Officer
Simmons halted his search of the vehicle, had the vehicle secured and transported to Narcotics
Headquarters pending the application of a search and seizure warrant. Id.
On September 9, 2011, at approximately 9:45 p.m., a search and seizure warrant was
executed upon the white 1999 Mercury Grand Marquis belonging to the Appellant. N.T.
2 2/8/2013 at 17. During this search, officers confiscated one purple cube containing a green weed
substance believed to be marijuana, one purple and gold bag containing four clear Ziploc packets
which each contained 12 smaller clear Ziploc packets. Id at 17-18. There were 48 total of these
packets. Id at 18. Officers also recovered three new, clear plastic bags and one registration card
in the name of the Appellant, Hosea Boyd. Id. The weight of the 48 packets was 5.351 grams.
All narcotics that were recovered did test positive for cocaineand marijuana. Id.
PROCEDURAL HISTORY
On September 9, 2011, Hosea Boyd was arrested and charged with Criminal Conspiracy
and Possession with Intent to Deliver in the City and County of Philadelphia. In January 2012,
the charges were held over for court. On February 8, 2013, Appellant entered into a negotiated
guilty plea for the charges of Possession with Intent to Deliver and Criminal Conspiracy. On that
same date, Appellant was sentenced and received a concurrent sentence of2- 4 years'
confinement followed by a consecutive sentence of 5 years' probation. The Appellant did not file
a direct appeal. On April 22, 2014, Appellant filed his first petition for relief under the Post-
Conviction Relief Act. On October 5, 2015, the Appellant filed an Amended PCRA petition for
relief under the assistance of counsel. On March 30, 2016, the Commonwealth filed a Motion to
Dismiss the PCRA petition. On September 28, 2017, the Appellant's PCRA petition was denied
by the court. On October 3, 2017, a Notice of Appeal was filed to the Superior Court of
Pennsylvania. On December 8, 2017, the Appellant filed a 1925(b) Statement of Matters
Complained on Appeal.
3 MATTERS COMPLAINED ON APPEAL
The Appellant's 1925(b) asserts:
1. The Court erred in failing to grant PCRA relief for the fo11owing reasons: a. At the time of his plea, the Appellant was not aware that Jeffrey Walker, who was part of the narcotics unit that arrested the Appellant, was under investigation at the time for corruption, including planting cocaine on drug defendants. He was arrested about a month after the Appellant's plea and has since pied guilty and been sentenced. b. Appellant was denied his rights to due process and effective assistance of counsel, under the laws and Constitutions of the United States and Pennsylvania, as he would not have pied guilty if he had known about the criminal activity of Officer Walker. As such, his plea was not knowing and voluntary. c. The District Attorney had a duty to tum over evidence of their investigation of Officer Walker's criminal activity to the defense. d. If Appellant's attorney knew of the investigation, he would have been ineffective for failing to inform the Appellant and failing to specifically request discovery on the issue.
2. The Court erred in failing to grant an evidentiary hearing to determine the officer's credibility as a witness, counsel's knowledge of the investigation at the time of the plea, review the information that the prosecutor had relating to Officer Walker and how it would have helped the Appe11ant's trial, how it would have affected his decision to plea and the date when the Appellant learned of Officer Walker's criminal activity.
3. The Court erred in failing to grant discovery into the investigation by the prosecutor into Officer Walker' and to tum over to the defense all documents related to said investigation.
4. Discovery was justified as the documents and other information which relate to the arrest of Officer Walker are likely to contain information which, if available to the defense at the time of trial might have changed the outcome and therefore-would have also affected his decision to plead.
DISCUSSION
Hosea Boyd has petitioned for relief under the Post-Conviction Relief Act. In reviewing
the propriety of an order granting or denying PCRA relief, an appellate court is limited to
ascertaining whether the record supports the determination of the PCRA court and whether the
ruling is free from legal error. Commonwealth v. Jonhson, 966 A.2d 523, 532 (Pa. 2009). The
4 appellate courts pay great deference to the findings of the PCRA court, "but its legal
determinations are subject to plenary review." Id. Also, the scope of our review is limited to the
findings of the PCRA court and the evidence of record, viewed in the light most favorable to the
prevailing party at the trial level. Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).
Furthermore, to be entitled to relief under the PCRA, the petitioner must plead and prove by a
preponderance of the evidence that the conviction or sentence arose from one or more errors
enumerated in section 9543(a)(2). These errors include a constitutional violation or
ineffectiveness of counsel which "so undermined the truth-determining process that no reliable 42 adjudication of guilt or innocence could have taken place." Pa.C.S.A. § 9543(a)(2). For reasons
that follow, the Appellant's claims fail to demonstrate that any alleged constitutional violations
undermined the truth-determining process. Further, the record supports the determination of the
PCRA court that Appellant received effective assistance of counsel and was not entitled to an
evidentiary hearing. Therefore, the PCRA court properly dismissed Appellant's petition for relief
under the PCRA.
I. Ineffective Assistance of Counsel Claim -The trial court properly found Appellant received effective assistance of counsel. Appellant first asserts that if his trial counsel was aware of the investigation into Officer
Walker then counsel would have been constitutionally ineffective for failing to inform the
Appellant and failing to request discovery on the issue. Appellant posits that due to the
ineffective assistance of counsel, his plea was not made voluntarily or knowingly.
To succeed on a claim of ineffective assistance of counsel, a PCRA petitioner must
satisfy the performance and prejudice test set forth in Strickland v. Washington, 466 U.S. 668,
687 ( 1984). In Pennsylvania, our Supreme Court has applied the Strickland test by looking to
three elements. The petitioner-must establish that: (1) the underlying claim has arguable merit;
5 (2) no reasonable basis existed for counsel's actions or failure to act; and (3) the petitioner
suffered prejudice as a result of counsel's error such that there is a reasonable probability that the
result of the proceeding would have been different absent such an error. Commonwealth v.
Pierce, 527 A.2d 973, 975 (Pa. 1987); Strickland v. Washington, 466 U.S. 668 (1984)
(explaining that, to establish an ineffective assistance claim, a defendant must show that
counsel's performance was deficient and that such deficiencies prejudiced the defense). See also
Commonwealth v. Williams, 936 A.2d 12, 19 (Pa. 2007) ("rt is settled that the test for
counsel ineffectiveness is the same under both the Pennsylvania and Federal Constitutions: it is
the performance and prejudice test set forth in Strickland v. Washington ... "). Counsel is
presumed to have rendered effective assistance. Commonwealth v. Sepulveda, 55 A.3d 1108,
1117 (Pa. 20 l 2). Finally, both the United States Supreme Court and the Pennsylvania Supreme
Court have made clear that a court is not required to analyze the elements of an ineffectiveness
claim in any particular order of priority; instead, if a claim fails under any necessary element of
the Pierce test, the court may proceed to that element first. Id at 1117-18. Additionally, counsel
cannot be deemed ineffective for failing to raise a meritless claim. Commonwealth v. Jones, 912
A.2d 268, 278 (Pa. 2006).
The Appellant asserts the failure to request discovery by plea counsel was patently
ineffective. However, courts do not presume prejudice from the absence of discovery.
Commonwealth v. Manhart, 503 A.2d 986, 990 (Pa. Super. 1986) (defendant must show
prejudice arising from counsel's failure to request discovery). To demonstrate prejudice due to
ineffective assistance of counsel, the defendant must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would have been
different. Commonwealth v. King, 51 AJd 607 (Pa. 2012). Appellant has failed to demonstrate a
6 reasonable probability that the outcome of the proceedings would have concluded with a
different result.
Additionally, the Pennsylvania appellate courts have held that the right of a criminal
defendant to effective assistance of counsel:
... [E]xtends to the plea process, as well as during trial. However, [a]llegations of ineffectiveness in connection with the entry of a guilty plea will serve as a basis for relief only if the ineffectiveness caused the defendant to enter an involuntary or unknowing plea. Where the defendant enters his plea on the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases.
The law does not require that the defendant be pleased with the outcome of his decision to enter a plea of guilty: All that is required is that his decision to plead guilty be knowingly, voluntarily, and intelligently made. Moreover, with regard to the prejudice prong, where an appellant has entered a guilty plea, the appellant must demonstrate it is reasonably probable that, but for counsel's errors, he would not have pleaded guilty and would have gone to tria1.
Commonwealth v. Timchak, 69 A.3d 765, 769-70 (Pa. Super. 2013). Therefore, allegations of
ineffectiveness "in connection with the entry of a guilty plea will serve as a basis for relief only
if the infectiveness caused the defendant to enter an involuntary or unknowing plea."
Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002). Where the defendant enters
his plea on the advice of counsel, the "voluntariness of the plea depends on whether counsel's
advice was within the range of competence demanded of attorneys in criminal cases." Id.
Presently, Appellant's claim for ineffective assistance of counsel rests on the premise that if plea
counsel had known of the criminal investigation of Officer Walker, then he was ineffective for
not informing the Appellant or requesting discovery on the issue, and therefore induced an
involuntary plea.
In assessing the voluntariness of a guilty plea, the law does not require that appellant be
pleased with the outcome of his decision to enter a plea of guilty; all that is required is that
7 appellant's decision to plead guilty be knowingly, voluntarily, and intelligently made.
Commonwealth v. Yager, 685 A.2d 1000, 1004 (Pa. Super. 1996). A person who elects to plea
guilty is "bound by the statements he makes in open court while under oath and he may not later
assert grounds for withdrawing the plea which contradict the statements he made at his plea
colloquy." Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super. 2003). Additionally,
regarding pre-plea discovery, the prosecution is not required to disclose potential impeachment
evidence prior to entering into a plea agreement with a defendant. United States v. Ruiz, 536 U.S.
622 (2002).
The Appellant questions the voluntariness of his guilty plea. Specifically, Appellant
asserts that because he was denied effective assistance of counsel and ifhe had known about
Officer Walker's criminal activity, then he would not have pied guilty. However, examination of
the record indicated that he understood the consequences of his plea. The Pennsylvania Supreme
Court ruled in Starr that a trial court should only allow the withdrawal of a guilty plea after
sentencing to correct a manifest injustice to the defendant. See Commonwealth v. Starr, 301 A.2d
592 (Pa. 1973). The question that arises is whether a defendant has met the requirements of Starr
in assessing whether the after-discovered evidence would have entitled him to a second trial if he
had gone to trial originally instead of pleading guilty. Here, there was no manifest injustice and
the after-discovered would not have entitled Appellant to a second trial had he gone to trial
originally instead of pleading guilty.
Instantly, the Appellant entered a guilty plea that is a hallmark for knowing and voluntary
pleas. As is standard practice within the Court of Common Pleas of Philadelphia County, the
Appellant first read and signed a written guilty plea colloquy that explains Appellant's rights at
trial, the right to a jury trial or by judge, his pre-trial rights, satisfaction with his counsel, and his
8 appellate rights. Further, a full guilty plea coJloquy was conducted on the record with the
Appellant. The trial court reproduces the relevant portions of the colloquy below:
The Court: And for the record, you read the guilty plea colloquy to him? Defense Counsel: In detail and plainly. As I said, he has no problem comprehending.
The Court: And this is the document that counsel went over with you in detail. Appellant: Yes. The Court: Did he explain it to you? Appellant: Yes. The Court: And did you understand what he explained? Appellant: Yes. The Court: Is that your signature? Appellant: Yes. The Court: Did you freely and voluntarily sign the document? Appellant: Yes, I did. The Court: According to the document that you read, signed, and discussed with counsel you've agreed to plead guilty to the crimes of possession with intent to deliver, conspiracy, which carries a maximum jail time of 20 years, and fines of up to $25,000. Do you understand that? Appellant: Yes. The Court: Do you understand, Mr. Boyd, that you're not required to plead guilty before me today and you have an absolute right to a judge or jury trial? Appellant: Yes. The Court: If you chose to go with a jury trial you have the ability, with the assistance of your attorney, to choose members from your community to serve as jurors on your case. At the conclusion of your case those jurors would have to render a verdict of guilty or not guilty, but your verdict has to be unanimous, which means all 12jurors would have to agree on the verdict. Do you understand that? Appellant: Yes. The Court: Do youunderstand that by pleading guilty today you're giving up your right to a judge or jury trial? Appellant: Yes. The Court: Do you understand that you are presumed innocent and the District Attorney would have to prove beyond a reasonable doubt if you went to trial? Appellant: Yes. The Court: Do you understand that by pleading guilty you're giving up your right to see, hear, or challenge any evidence the District Attorney has against you? Appellant: Yes.
The Court: When I tell you at the end of our conversation that I've accepted your plea it means that I've made a judicial finding that your plea is proper, which means that it is very unlikely that your plea will ever be reversed. So as a practical
9 matter, what I am telling you is once you plead guilty that is the end of your case. All we have to do is for me to sentence you and you to serve the sentence. Do you understand? Appellant: Yes. The Court: So, Mr. Boyd, as you sit before this Court today, this is your last opportunity to tell the Court that you did not commit the crime that you are accused of. Do you understand that? Appellant: Yes.
The Court: Mr. Boyd, did anybody force or threaten you to plead guilty? Appellant: No. The Court: Did anybody make any promises to you in exchange for pleading guilty? Appellant: No. The Court: Are you satisfied with the advice of your attorney? Appellant: Yes. The Court: Do you [have] any questions at this time for your attorney, the District Attorney, or the Court? Appellant: No. The Court: Do you understand that by pleading guilty today you're giving up your right to defend your case? Appellant: Yes. The Court: I'm satisfied the defendant's decision to plead guilty is knowing, intelligent, and voluntary and I will accept it.
N.T. 2/8/2013 at 7-13. Additionally, defense counsel made Appellant aware that a motion to
suppress evidence could have been litigated under Commonwealth v. McCrae; however,
Appellant was informed that this would have been the primary defense in his case and was
unlikely to succeed. Id at 14. This statement on the record by plea counsel further demonstrates
that the outcome of the proceedings would likely have been the same. Given that the primary
defense strategy would have likely failed, plea counsel's advice was within the range of
competence demanded of attorneys in criminal cases. Commonwealth v. Hickman, 799 A.2d 13 6,
141 (Pa. Super. 2002).
During his plea colloquy, after being informed of the charges against him, and the facts
as alleged by the Commonwealth to support the charges, Appellant affirmatively indicated that
he was guilty of the charges. N. T. 2/8/2013 at 18-19. Appellant denied he was forced to plead
10 guilty and he was satisfied with plea counsel. Id at 12. Additionally, Appellant completed the
written guilty plea colloquy in which he affirmatively acknowledged that he was waiving his
right to present any possible trial defenses and he had adequate time to consult with his attorney.
Id at 5-8.
The guilty plea was made knowingly and voluntarily; therefore, the assertion of
ineffective assistance of counsel by plea counsel must fail. First, the prosecution was not
required to disclose any impeachment evidence prior to the guilty plea. United States v. Ruiz, 536
U.S. 622 (2002). Secondly, the Appellant acknowledged during his plea colloquy that by
pleading guilty, he gave up the right to "see, hear, or challenge any evidence the District
Attorney ha[d]" against Appellant. N.T. 2/8/2013 at 9. Thirdly, the Appellant's argument that
plea counsel was ineffective for failing to inform the Appellant of the investigation and failure to
request discovery on the issue hinges exclusively upon "[ijf Appellant's attorney knew of the
investigation." Def. l 925(b). The Appellant fails to make any offer of proof beyond mere
conjecture that counsel could have known about Officer Walker's criminal investigation.
Appe1Iant makes no argument specific to how the information related to Officer Walker's
criminal investigation, if known by defense counsel, the result would have been different. Since
this claim is not explained, developed, or supported by the record factually or legally, Appellant
is not entitled to relief with respect to it. See Commonwealth v. Spatz, 47 A.3d 63, 108 n.34 (Pa.
2012). Therefore, given that Appellant has failed to present a claim with any arguable merit, and
fails to demonstrate the result of the proceedings would have been different but for counsel's
conduct, the trial court properly found Appellant's guilty plea to be knowing and voluntary and
Appellant's claim to be without merit.
11 II. After Discovered Facts Claim -The trial court properly found that the arrest of Officer Jeffrey Walker after Appellant's guilty plea did not warrant relief. Hosea Boyd appears to challenge the decision of the PCRA court on three different fronts
in matters relating to discovery: (1) that the District Attorney had a duty to tum over evidence of
that office's investigation into the activity of Officer Walker; (2) the PCRA erred in its failure to
grant an evidentiary hearing; and (3) the PCRA court erred in its failure to grant discovery. For
reasons that follow, each of these claims is without merit.
The PCRA court will briefly visit the requirements of relief sought under an otherwise
time-barred petition. The timeliness of a post-conviction petition is jurisdictional. See
Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). Generally, a petition for
relief under the PCRA must be filed within one year of the date ofjudgment is final unless the
petition alleges and the petitioner proves one of the following three exceptions to the time
limitations set forth in Section 9545(b)(1) of the statute:
(i) the failure to raise the claim previously was the result of interference of 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.
A PCRA petition invoking one of these statutory exceptions must "be filed within 60 days of the
date the claims could have been presented." Hernandez, 79 A.3d at 651-52; see 42 Pa.C.S.A. §
9545(b)(2). Asserted exceptions to the time restrictions in the PCRA must be included in the
petition and may not be raised for the first time on appeal. Commonwealth v. Burton, 936 A.2d
521, 525 (Pa. Super. 2007).
12 Here, Appellant's judgment of sentence became final on March 8, 2013, when the 30-day
period for filing a direct appeal expired. See Commonwealth v, Brown, 943 A.2d 264, 268 (Pa.
2008). Thus, generally, Appellant would have had to file a PCRA petition by March 8, 2014.
This petition, filed April 22, 2014, was therefore patently untimely unless Appellant pleaded and
proved one of the three statutory exceptions to the PCRA'sjurisdictional time-bar within "60
days of the date the claim could have been presented." Hernandez, 79 A.3d at 651-62; see 42
Pa.C.S.A. § 9545(b)(2).
Appellant relies on the second of the three exceptions - 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 "after discovered facts" exception).
To satisfy this exception, the petitioner must allege and prove that: (I) the "facts upon which the
claim was predicated were unknown," and (2) those facts "could not have been ascertained by
the exercise of due diligence." Commonwealth v. Bennett, 930 A.2d 1264, I 272 (Pa. 2007).
Ordinarily, the arrest of a person is deemed a "public record" and extinguishes claims that facts
were previously "unknown," in application to time limitations under§ 9545. However, our
Supreme Court has recently held that the:
presumption that information which is of public record cannot be deemed 'unknown' for purposes of subsection 9545(b)(i)(ii) does not apply to prose prisoner petitioners ... the application of the public record presumption to prose prisoners is contrary to the plain language of9545(b)(l)(ii) and was imposed without any apparent consideration of a pro se prisoner's actual access to information of public record.
Commonwealth v. Burton, 158 A.3d 618, 638 (Pa. 2017). On May 21, 2013, Officer Jeffrey
Walker was arrested on charges of robbery and theft. See United States v. Liciarde/lo, No. 2:14-
cr-00412-ER (E.D. Pa.). Officer Walker pleaded guilty on February 24, 2014. See US. v.
Walker, No. 2: 13-cr-331-ER-l (E.D. Pa. filed June 20, 2013). The first prose PCRA petition was filed on April 22, 2014 and the amended petition was filed October 5, 2015. The counseled
amended PCRA petition relied on: (]) Officer Walker's May 21, 2013 arrest, and (2) his
subsequent guilty plea on February 24, 2014. As to Officer Walker's arrest in 2013, the petition
was clearly not filed within 60 days as required 42 Pa.C.S.A. § 9545(b)(2). Although the petition
was filed within 60 days of Officer Walker's February 24, 2014 guilty plea, the plea itself does
not present any new facts applicable to the case, but was simply a new source of information
about Officer Walker's illegal actions, which were a matter of public knowledge. However, the
merits of the claim need not be assessed to determine qualification as an exception to the time
limitations under subsection 9545(b)(l)(ii). Given the Appellant was imprisoned and filed his
first prose petition under the PCRA within 60 days of Officer Walker's guilty plea, the PCRA
court accepts the petition as meeting the "after discovered facts" exception to the time limitations
of the PCRA.
a. Failure to Grant Discovery
Having met the necessary threshold to successfully qualify for an exception to the time
limitations of the Post-Conviction Relief Act> the PCRA court first turns to the question of
whether the PCRA court erred in failing to grant discovery into the investigation by the
prosecutor of Officer Walker and the alleged obligation to tum over to the defense all documents
related to said investigation. No discovery "shall be permitted at any stage of the proceedings,
except upon leave of court after a showing of exceptional circumstances." Pa.R.Crim.P.
902(e)(l). Neither the Post-Conviction Relief Act nor the Pennsylvania Rules of Criminal
Procedure define the term "exceptional circumstances." Commonwealth v. Frey, 41 A.3d 605,
611 (Pa. Super. 2012). The Pennsylvania Superior Court, however, has held that the "trial court,
in its discretion" determines whether a case is exceptional and-warrants discovery. Id. Therefore,
14 the appellate courts "will not disturb a court's determination regarding the existence of
exceptional circumstances unless the court has abused its discretion." Id.
There is nothing in the record to suggest the decision by the PCRA court in denying leave
for discovery was the result of bias, ill-will, partiality, prejudice, manifest unreasonableness, or
misapplication of the 1aw. The PCRA court cannot conclude that any evidence alleged to exist
would be exculpatory. Exculpatory evidence is that which tend to establish a criminal
defendant's innocence. The evidence sought under the after-discovered facts exception pleaded
by the Appellant suggests such evidence would be used only for impeachment purposes. There is
support in the record during Appellant's guilty plea colloquy that the basis for his guilty plea
surrounds evidence collected by two Philadelphia police officers who remain unscathed from
accusations of misconduct. N.T. 2/8/2013 at 14-18. The PCRA court did not believe any further
discovery was prudent given that Appellant's guilty plea: (l) was drawn from facts not related to
Officer Walker;·(2) was made knowingly and voluntarily; (3) there was no reasonable
probability resu1t of the proceeding would have been different; (4) there was no specific
allegations of misconduct by Officer Wa1ker; and (5) Appellant had effective assistance of
counsel in making the decision to plead guilty. Therefore, the PCRA court did not abuse its
discretion in finding no exceptional circumstances present sufficient to grant leave for discovery.
b. Alleged Discovery Violations
The Appel1ant next incorrectly argues the trial court erred in finding that the
Commonwealth potentially withheld excu]patory evidence in violation of his Fourteenth
Amendment right to due process as set forth in Brady v. Maryland, 373 U.S. 83 (1963) and its
Pennsylvania progeny. The Appellant further asserts that without such evidence the defense
would be without the ability to fully cross-examine Commonwealth witnesses, present possibly
15 exculpatory evidence, and defend himself at trial. Under Brady, the failure by the
Commonwealth to divulge exculpatory evidence is a violation of a defendant's Fourteenth
Amendment due process rights. "[T]o establish a Brady violation, a defendant is required to
demonstrate that exculpatory evidence or impeaching evidence, favorable to the defense, was
suppressed by the prosecution, to the prejudice of the defendant." Commonwealth v. Gibson, 95 l
A.2d 1110, 1126 (Pa. 2008). The burden of proof is on the defendant to demonstrate that the
Commonwealth withheld or suppressed evidence. See Commonwealth v. Porter, 728 A.2d 890,
898 (Pa. 1999).
To satisfy the prejudice inquiry, the evidence suppressed must have been material to guilt
or punishment. See Gibson, 951 A.2d at 1126-27. The United States Supreme Court has held that
materiality extends to evidence affecting the credibility of witnesses, rather than merely to purely
exculpatory evidence. See Giglio v. United States, 405 U.S. i SO, 154 ( 1972). The Pennsylvania
Supreme Court has gone further and held the protections of Brady extend to the defendant's
ability to investigate alternative defense theories and to formulate trial strategy. Commonwealth
v. Green, 640 A.2d 1242, 1245 (Pa. 1994). Favorable evidence is "material, and constitutional
error results from its suppression by the government, if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding would have been
different." Kyles v. Whirley, 514 U.S. 419, 433-34 (1995).
As to Brady claims advanced under the PCRA, a defendant must demonstrate that the
alleged Brady violation "so undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place." See Commonwealth v. Copenhefer,
719 A.2d 242, J.lr'1 (Pa. 1998). The United States Supreme Court has held that the "mere
possibility that an item of undisclosed information might have helped the defense, or might have
16 affected the outcome of the trial, does not establish 'materiality' in th� constitutional sense."
United States v. A�ars ,427U.S. q1, lll'l-'liC <1.'Frlc).
However, in the instant case, Appellant elected not to bring his case to trial. Rather,
Appellant entered a guilty plea to two charges. The prosecution is not required to disclose
potential impeachment evidence prior to entering into a plea agreement with a defendant. United
States v. Ruiz, 536 U.S. 622 (2002). The trial court does not believe that any information
withheld by the prosecution was subject to disclosure under Brady. Even though the prosecutor
was not obligated to share this information prior to his guilty plea, the information related to
Officer Walker's arrest does not rise to the threshold that the withholding of information so
undermined the truth-determining process that no reliable adjudication of guilt or innocence
could have taken place. Further, there is no evidence that Appellant was prejudiced by any
failure of the prosecution to disclose the investigation into Officer Walker. The Appellant waived
his right to review the District Attorney's evidence against him through his guilty plea.
Additionally, Appellant has failed to demonstrate that the evidence of Officer Walker's arrest
was suppressed by the Commonwealth. The facts to which Appellant pied guilty were drawn
from evidence collected by Officers Williams and Simons. The facts drawn from these two
officers support the conclusion that the truth-determining process was reliable and that Appellant
was not prejudiced.
c. Evidcntiary Hearing or Relief
The PCRA court last turns to the issue of whether an evidentiary hearing or any relief is
due. Specifically, the Petitioner asserts that the PCRA court erred in failing to grant an
evidentiary hearing to determine the officer's credibility as a witness, counsel's knowledge of the
investigation at the time of the plea, review the information that the prosecutor had relating to
17 Officer Walker and how it would have he]ped _the Appellant's trial, how it would have affected
his decision to plea and the date when the Appellant learned of Officer Walker's criminal
activity. The Appellant has sought an evidentiary hearing on the matter, or in the alternative a
new trial. AppeJlant has failed to demonstrate he is entitled to any form of relief under the
PCRA.
The Pennsylvania Rules of Criminal Procedure provide that a petition for relief under the
Post-Conviction Relief Act may be dismissed without a hearing. Specifically, Rule 907 of the
Rules of Criminal Procedure state in relevant part:
Rule 907. Disposition Without Hearing
Except as provided in Ru1e 909 for death penalty cases,
(1) the judge shall promptly review the petition, any answer by the attorney for the Commonwealth, and other matters of record relating to the defendant's claim(s). If the judge is satisfied from this review that there are no genuine issues concerning any material fact and that the defendant is not entitled to post- conviction collateral relief, and no purpose would be served by any further proceedings, the judge shall give notice to the parties of the intention to dismiss the petition and shall state in the notice the reasons for the dismissal. The defendant may respond to the proposed dismissal within 20 days of the date of the notice. The judge thereafter shall order the petition dismissed, grant leave to file an amended petition, or direct that the proceedings continue.
(2) A petition for post-conviction collateral relief may be granted without a hearing when the petition and answer show that there is no genuine issue concerning any material fact and that the defendant is entitled to relief as a matter of law.
Pa.R.Crim.P. 907. Appellant states that this Court should have held an evidentiary hearing before
dismissing Appellant's PCRA petition. This claim is without merit. With respect to ineffective
assistance of counsel claims, an evidentiary hearing is not required if it is clear that "the
allegation lacks arguable merit; an objectively reasonable basis designed to effectuate appellant's
interests existed for counsel's motions or inactions; or appellant was not prejudiced by the
18 alleged error by counsel, then an evidentiary hearing is unnecessary." Commonwealth v.
Clemmons, 479 A.2d 955, 957 (Pa. 1984). Accordingly, the court can deny a petition without a
hearing if it determines the claims raised are without merit and would not entitle the appellant to
post-conviction collateral relief. Commonwealth v. Granberry, 644 A.2d 204 (Pa.Super.1994);
Pa. R.Crim. P. 907.
The Appellant sought review under the after-discovered facts exception to the PCRA
under§ 954S(b)(2). To warrant relief, after-discovered facts must meet a four-prong test: (1) the
evidence could not have been obtained before the conclusion of the trial by due diligence; (2) the
evidence is not merely corroborative or cumulative; (3) the evidence will not be used solely for
purposes of impeachment; and (4) the evidence is of such a nature and character that a different
outcome is likely. Commonwealth v, Dennis, 715 A.2d 404 (Pa. 1998)�
Here, Appellant's assertion that Officer Walker's arrest and guilty plea call into question
the validity of his own guilty plea does not satisfy the third prong of the after-discovered facts
test. A defendant seeking a new trial must demonstrate he will not use the alleged after-
discovered evidence solely "to impeach a witness's credibility." See Commonwealth v. Alphonso
Griffin, 13 7 A.3d 605, 610 (Pa. Super. 2016). The arrest and conviction of Officer Walker had no
discemable impact on AppelJant's own present case. See Commonwealth v. Foreman, 55 A.3d
532 (Pa. Super. 2012) (filing of criminal charges against detective in an um-elated matter does
not meet the after-discovered evidence test since such evidence would be used solely to impeach
the credibility of the detective). In Appellant's case, the after-discovered evidence of
Officer Walker's criminal investigation would only be used to impeach the witness's credibility,
This causes Appellant's after-discovered facts claim to fail the third- or materiality- prong of
the four-prong test to warrant relief under the after-discovered exception. Additionally, the
19 present after-discovered facts fail to qualify as having such a nature and character that a different
outcome is likely. There was sufficient evidence outside any connection to Officer Walker that
would have supported a knowing and voluntary guilty plea. Thus, Appellant's claim also fails the
fourth required prong of the test.
Instantly, there was no testimony or evidence proffered by Officer Walker in Appellant's
case. The charges filed against Officer Walker may cause a reasonable jury to question any
evidence offered by Walker; however, without any evidence connected to Walker- since there
was none - the Commonwealth would still have likely prevailed. Appellant has not pied, nor
demonstrated, how Walker's convictions, let alone his remote connection to Appellant's case,
would lead to a different result. Most importantly, the Appellant has failed to make any specific
assertions of wrongdoing by Officer Walker in his case. The case of Officer Walker does not
entitle Appellant to a fishing expedition for discovery or collateral relief merely because the
officer had a tangential connection to the arrest. The PCRA court does not believe, without
further supporting details, that the sheer invocation of the words "Officer Walker" entitle
Appellant, or any defendant, to be held to a lesser standard.
Here, the case against the Appellant surrounded evidence collected by Officer Williams
and not Officer Walker. The case was built upon observation of the Appellant by Officer
Williams discarding a bottle containing 13 clear Ziploc packets containing an off-white chunky
substance believed to be cocaine into a 1999 white Mercury Marquis registered to the Appellant.
N.T. 2/8/2013 at 16. Officer Williams detained the Appellant and retrieved the bottle from the
vehicle; at this time, Officer Williams also recovered from the Appellant $419 in United States
currency, and a set of keys that operated the 1999 Mercury Marquis registered in his name. Id
16-17. Officer Simmons began a further investigation of the vehicle and halted his search upon
20 observing a small jar containing a leafy substance believed to be marijuana in the rear passenger
seat. Id. The vehicle was secured and transported to Narcotics Headquarters at which point a
search warrant was secured. Upon execution of the search warrant upon the 1999 Mercury
Marquis registered to the Appellant, officers recovered one purple cube containing marijuana,
one purple and gold bag that contained four clear Ziploc bags which each held 12 smaller Ziploc
bags - for a total of 48 packets - of marijuana that weighed 5.351 grams. Id at 17-18.
Remembering that a defendant is "bound by the statements he makes in open court while under
oath and he may not later assert grounds for withdrawing the plea which contradict the
statements he made at his plea colloquy," Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa.
Super. 2003), the Appellant pied guilty to evidence recovered from Officers Williams and
Simmons.
Without any direct claim that Officer Walker somehow manipulated evidence within
Appellant's case, any information related to Officer Walker's investigation would be used solely
for impeachment purposes. There would have been no discernable impact upon Appellant's case
because there were two other controlled buys involving officers untainted by any allegations of
misconduct and Walker was not in the immediate vicinity during the Appellant's arrest to
suggest any untoward conduct may have transpired at Walker's behest. See Foreman, 55 A.3d
532. The PCRA court had the benefit of petitions from the Appellant, a response by the
Commonwealth, and its own thorough independent review of the record. Appellant has failed to
assert any genuine issue of material fact as it relates to the ineffective assistance of counsel or the
after-discovered evidence of Officer Walker's arrest and conviction. Therefore, the Appellant
was not entitled to an evidentiary hearing and the PCRA properly dismissed Appellant's petition
without hearing.
21 CONCLUSION
The PCRA court properly found that Appellant received effective assistance of counsel
during his plea negotiations and guilty plea. The Appellant was counseled and was advised of
potential defenses. Appellant subsequently entered a knowing and voluntary guilty plea after
being advised in writing and on the record the impact of a guilty plea. Further, the PCRA court
properly found that Appellant was not entitled to an evidentiary hearing because he failed to
raise any genuine issues of material fact in his petition for relief. The record supports the
determination of the PCRA court. Therefore, the PCRA court asks that the decision of the court
be affirmed on appeal.
SEAN F. KENNEDY, J.