Com. v. Gant, D.

• Court: Superior Court of Pennsylvania
• Decided: May 24, 2023
• Docket: 2141 EDA 2021
• Status: Unpublished

Opinion

J-A07026-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DANIEL GANT : : Appellant : No. 2141 EDA 2021

Appeal from the PCRA Order Entered October 4, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0354603-1993

BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED MAY 24, 2023

Daniel Gant appeals from the order denying his Post Conviction Relief

Act (“PCRA”)1 petition. Gant contends his discovery of new evidence warrants

a new trial, and alleges that the Commonwealth violated Brady v. Maryland,

373 U.S. 83 (1963), by suppressing the evidence. We affirm.

In 1993, Gant and his cousin, Devere Gant (“Devere”), robbed Andrew

Lewis and Shawn Nelson on a Philadelphia city street. An off-duty police

officer, Anthony Haye, witnessed the robbery and intervened. A shootout

ensued, during which Lewis was shot and killed. Gant and Devere escaped in

a car driven by a third man. Gant was injured during the incident, and at the

hospital he told a police officer that he had been robbed of his money and

jewelry at the intersection of 13th Street and Carlisle Street. This roused the

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1 See 42 Pa.C.S.A. §§ 9541-9546. J-A07026-23

suspicion of the police officer because that intersection does not exist, Gant

was wearing expensive jewelry and still had money with him. The police

brought the surviving victim, Nelson, to the hospital, who identified Gant as

one of the robbers. Nelson later also identified Devere and the getaway driver,

and Officer Haye identified Gant in a lineup. The police found Nelson’s jacket

inside Gant’s girlfriend’s home, and a ring belonging to Lewis inside the

getaway car. Ballistics evidence showed that three guns had been fired at the

scene and that Officer Haye’s gun had not fired the bullets that had killed

Lewis. See PCRA Court Opinion, filed 7/13/22, at 2-3.

The jury convicted Gant of first-degree murder, two counts of

aggravated assault, two counts of robbery, criminal conspiracy, and

possession of an instrument of crime. The court sentenced Gant to life

imprisonment. We affirmed, and the Supreme Court denied allowance of

appeal in 1996.2 Gant thereafter filed multiple unsuccessful PCRA petitions.3

Gant filed the instant pro se petition on February 15, 2018. He thereafter

retained counsel who filed an amended petition. Gant alleged that on

December 17, 2017, he discovered that Nelson’s real name is Wendell E.

Betancourt. He alleged that Betancourt had moved from New York to the ____________________________________________

2 See Commonwealth v. Gant, No. 111 Philadelphia 1995 (Pa.Super. filed Feb. 7, 1996) (unpublished memorandum), appeal denied, 681 A.2d 176 (Table) (Pa. filed July 24, 1996).

3See Commonwealth v. Gant, No. 1544 EDA 2005 (Pa.Super. filed July 17, 2006) (unpublished memorandum); Commonwealth v. Gant, No. 245 EDA 1999 (Pa.Super. filed July 24, 2000) (unpublished memorandum), appeal denied, 766 A.2d 1244 (Table) (Pa., filed January 9, 2001).

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Philadelphia area in the 1990’s, and adopted the alias of Shawn Nelson, and

began using a false birthday and social security number. Gant attached the

affidavit of his fiancé, explaining how she made the discovery when

researching a petition Nelson/Betancourt had filed in federal court. Gant

argued that this constituted after-discovered evidence that would have

undermined Nelson/Bentancourt’s testimony if introduced at trial. Gant also

raised a Brady claim based on the Commonwealth’s alleged suppression of

the evidence. Gant asserted his petition was timely under the newly-

discovered fact exception and the governmental interference exception, and

that he filed his petition within 60 days of his discovery of the new

fact/evidence. See 42 Pa.C.S.A. § 9545(b)(1)(i-ii), (b)(2). The PCRA court

dismissed the petition without a hearing.4

Gant appealed, and raises the following issues:

1. Should the [t]rial [c]ourt have granted [Gant’s] request for an evidentiary hearing based on the newly discovered evidence claim?

2. Should the [t]rial [c]ourt have granted [Gant’s] request for an evidentiary hearing based on the Brady claim?

Gant’s Br. at 5 (suggested answers omitted, italics added).

Gant first argues that his discovery that Nelson/Betancourt used a false

name and social security number warrants the grant of a new trial. He asserts

that Nelson/Betancourt received favorable treatment from the Commonwealth

4The court first issued notice of its intent to dismiss the petition, in compliance with Pa.R.Crim.P. 907. Gant filed a timely response to the notice.

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in exchange for his testimony in this case, by way of receiving several lenient

sentences for violating his probation. Id. at 13. Gant argues the evidence of

the false name and favorable treatment would have undermined

Nelson/Betancourt’s testimony, and there is a substantial likelihood that this

would have changed the verdict, as there was no physical evidence linking

him to the crime scene, and Officer Haye did not identify him until he was

already in custody. Id. at 15.

Gant also argues that the Commonwealth violated Brady by failing to

disclose Nelson/Betancourt’s real name. He contends he could have used

Nelson/Betancourt’s use of an alias as impeachment evidence, asserting “the

Commonwealth knew . . . or should have known” Nelson/Betancourt was using

an assumed identity. Id. at 13, 17. Like his first issue, Gant argues the

suppression of this information prejudiced him, because aside from

Nelson/Betancourt’s testimony, he alleges, the evidence linking him to the

crime was tenuous. Id. at 17-18.

We review a PCRA court’s determinations to ensure they are supported

by the record and free of legal error. Commonwealth v. Mitchell, 105 A.3d

1257, 1265 (Pa. 2014). We will not disturb the PCRA court’s credibility

findings, when supported by the record, but apply a de novo standard of

review to the PCRA court’s legal conclusions. Id.

As a jurisdictional prerequisite to review, a PCRA petition must be

timely. Commonwealth v. Anderson, 234 A.3d 735, 737 (Pa.Super. 2020).

A PCRA petition must be filed within one year of the date that the judgment

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of sentence becomes final or plead and prove one of the following three

exceptions applies:

(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.

42 Pa.C.S.A. § 9545(b)(1). A petitioner claiming an exception based on a claim

arising before December 24, 2017, must also plead and prove that he filed

the petition within 60 days of the first date he could have presented his claim.

Id. at (b)(2) (amended effective Dec. 24, 2018).5

The PCRA court held that the petition was “arguably” timely under the

second exception, as Nelson/Betancourt’s name was previously unknown to

Gant, and he could not have ascertained it earlier. PCRA Ct. Op. at 5. The

Commonwealth concedes the applicability of this exception. Commonwealth’s

Br. at 10. We find no reason to disturb the PCRA court’s conclusions that

Nelson/Betancourt’s real name was previously unknown to Gant, he could not

have ascertained it earlier by the exercise of due diligence, and he promptly

5 For claims arising on or after December 24, 2017, the petitioner must file the petition within one year of when the claim could have first been presented. 42 Pa.C.S.A. § 9545(b)(2).

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presented his claim once he made his discovery. See 42 Pa.C.S.A. §

9545(b)(1)(ii).

However, to the extent that Gant’s arguments involve bald allegations

that Nelson/Betancourt received favorable treatment by the Commonwealth

in exchange for his testimony, his claims are untimely. Gant does not state

the date on which he discovered that Nelson/Betancourt received sentences

of probation for his violations of probation or assert that he could not have

discovered this information sooner through the exercise of due diligence. Nor

is his petition timely under the first exception, as his allegations do not

substantiate a claim of governmental interference. See 42 Pa.C.S.A. §

9545(b)(1)(i). Nelson/Betancourt’s criminal history was publicly available,

listed under the name “Nelson,” and was thoroughly discussed during cross-

examination. See PCRA Ct. Op. at 5, 7. The court also instructed the jury that

it could consider that Nelson/Betancourt had a potential motive to testify

favorably for the Commonwealth, due to his open violations of probation. See

id. at 5-6. The “fact” of any favorable treatment for Nelson/Betancourt was

neither new nor suppressed.

Turning to the merits of Gant’s claims related to Nelson/Betancourt’s

true name, the court found that the claim failed because the evidence would

have been used only to impeach Nelson/Betancourt’s credibility. The court

also found that it would not likely have resulted in a different verdict, given

Officer Haye’s corroborating testimony and the ballistics evidence, and the

fact that Nelson/Betancourt had been impeached with a lengthy criminal

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history, including possession of illegal drugs and firearms.6 Id. The court also

concluded that the Brady claim was meritless, because Gant had not provided

proof that the Commonwealth knew and suppressed Nelson’s real name, and

the evidence was not exculpatory nor material, given the other evidence. Id.

at 6-7.

We find no error in the PCRA court’s analysis. The PCRA provides relief

when a conviction results from “[t]he unavailability at the time of trial of

exculpatory evidence that has subsequently become available and would have

changed the outcome of the trial if it had been introduced.” 42 Pa.C.S.A. §

9543(a)(2)(vi). However, “to successfully prove an after-discovered evidence

claim under Section 9543(a)(2)(vi), the petitioner must show 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. Payne, 210 A.3d

6 As the PCRA Court explained,

At [Gant’s] trial, the Commonwealth discussed Nelson’s criminal background on direct examination. This allowed three different defense attorneys to examine Nelson’s background and criminal history. The jury was made aware that Nelson was currently on probation in New York for a gun possession charge, that he also was on probation in Pennsylvania for two related drug convictions and he was scheduled to go on trial in New Jersey for another drug case. The jury was well aware this witness was a person that possessed illegal drugs and firearms.

PCRA Ct. Op. at 5.

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299, 302 (Pa.Super. 2019) (en banc) (quoting Commonwealth v. Cox, 146

A.3d 221, 228 (Pa. 2016)).

Here, Gant’s new evidence claim fails under the third prong of this test,

because the evidence would be offered solely to impeach Nelson/Betancourt’s

testimony. It also fails under the fourth prong — a likelihood of compelling a

not-guilty verdict — given that Gant already cross-examined

Nelson/Betancourt regarding his criminal history. The impeachment effect of

Gant’s use of an alias would have been minimal in comparison to

Nelson/Betancourt’s other dishonest activity. Moreover, Nelson/Betancourt’s

testimony was corroborated by Officer Haye, as well as the stolen items and

ballistics evidence.

The PCRA also affords relief for Brady claims. See 42 Pa.C.S.A. §

9543(a)(2)(i) (providing relief when a conviction results from “[a] violation of

of the Constitution of this Commonwealth or the Constitution or laws of the

United States which, in the circumstances of the particular case, so

undermined the truth-determining process that no reliable adjudication of

guilt or innocence could have taken place”); Commonwealth v. Haskins, 60

A.3d 538, 547 (Pa.Super. 2012). However, “[t]o establish a Brady violation,

a defendant must show that: (1) the evidence was suppressed by the state,

either willfully or inadvertently; (2) the evidence at issue is favorable to the

defendant; and (3) the evidence was material, meaning that prejudice must

have ensued.” Commonwealth v. McGill, 832 A.2d 1014, 1019 (Pa. 2003).

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The prejudice must be such as to undermine confidence in the outcome of the

proceeding. Id. at 1020.

Here, while the information that Nelson/Betancourt was operating under

an assumed identity could have added to Gant’s impeachment of him, it is not

the sort of information that undermines our confidence in the verdict, as it is

insignificant in comparison with Nelson/Betancourt’s other criminal history,

which the jury heard. Moreover, as the PCRA court observed, Gant has failed

to show that the Commonwealth suppressed this information. His mere

allegation that the Commonwealth “should have known” Nelson/Betancourt’s

true name does not pass muster.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/24/2023

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