Com. v. Green, K.

• Court: Superior Court of Pennsylvania
• Decided: June 23, 2026
• Docket: 3058 EDA 2025
• Status: Unpublished
• Author: Stevens

Opinion

J-S15037-26

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KEVIN D GREEN : : Appellant : No. 3058 EDA 2025

Appeal from the PCRA Order Entered November 6, 2025 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0228241-1994

BEFORE: OLSON, J., MURRAY, J., and STEVENS, P.J.E. *

MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 23, 2026

Appellant, Kevin Green, appeals pro se from the order entered

November 6, 2025, in the Court of Common Pleas of Philadelphia County,

dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S.A. §§ 9541-46. After review, we affirm. 1

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* Former Justice specially assigned to the Superior Court. 1 We note with extreme displeasure that the Philadelphia District Attorney’s

Office failed to file an Appellee’s brief. The Commonwealth sought three extensions of time to file a brief. The Commonwealth’s brief was initially due on February 18, 2026. On February 17, 2026, the Commonwealth filed its first application for an extension. The application was granted and the Commonwealth was given until March 6, 2026. The order stated that no further extensions would be granted. On April 17, 2026, the Commonwealth sought another extension of time. Due to the circumstances described in the application, this Court granted the Commonwealth an additional fourteen-day extension but stressed that no further extensions would be granted. The Appellee’s brief was due on May 7, 2026. On May 7, 2026, the Commonwealth filed an application for a third extension of time, seeking an additional thirty (Footnote Continued Next Page) J-S15037-26

The relevant facts and procedural history, as gleaned from the record,

are as follows: Appellant was arrested on January 27, 1994, for the murder of

Lashawn Whaley which occurred on April 28, 1993. Appellant proceeded to a

jury trial and was convicted of conspiracy to commit first-degree murder on

February 13, 1995. Appellant filed a petition for allowance of appeal to this

Court and the Pennsylvania Supreme Court. Appellant’s petition was denied

on April 16, 1996.

After previously filing untimely PCRA petitions, Appellant filed the

instant petition on August 30, 2022. He filed an amended petition on March

16, 2023. The court filed a Notice of Dismissal on October 2, 2025. Appellant

filed a response to the dismissal on October 20, 2025. The trial court entered

an order dismissing the petition as untimely on November 6, 2025,

accompanied by a memorandum opinion. Appellant filed a timely notice of

appeal on November 17, 2025. The trial court appears to not have ordered

Appellant to file a statement pursuant to Pa.R.A.P. 1925(b) as no order is

docketed or in the record. Appellant did not file a Rule 1925(b) statement, and

days. This Court denied that application by order entered May 19, 2026. At the time of writing this memorandum, the Commonwealth has still not filed a brief. “An appellee is required to file a brief that at minimum must contain a summary of argument and the complete argument for appellee.” Commonwealth v. Pappas, 845 A.2d 829, 835 (Pa. Super. 2004) (internal quotation marks and citation omitted). In Pappas, the panel referred to the Commonwealth’s failure to file a proper Appellee’s brief as “unacceptable.” Id. We echo that opinion and once again remind the Commonwealth of its obligation to file an advocate's brief in future appeals.

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the trial court did not file a Rule 1925(a) opinion. We rely on the trial court’s

November 6, 2025, opinion. This appeal follows.

Appellant raises the following issues, verbatim, for our review:

1. Did the Appellant plead and prove newly discovered facts pursuant to 42 Pa.C.S. § 9545(b)(1)(ii) while illustrating due diligence?

2. Did the PCRA court illustrate the appearance of judicial impropriety when failing to grant evidentiary hearing and failing to acknowledge Brady [v. Maryland (373 U.S. 83)] violations?

3. Did the PCRA court deprive Appellant of due process rights for failing to grant motion to compel discovery pursuant to exceptional circumstances?

Appellant’s Br. at 5 (unnecessary capitalization omitted).

When examining a post-conviction court’s grant or denial of relief, this

Court’s review is limited to determining whether the PCRA court’s findings are

supported by the record, and its order is otherwise free of legal error.

Commonwealth v. Patterson, 690 A.2d 250 (Pa. Super. 1997). The findings

of the PCRA court will not be disturbed unless they lack support from the

record. Commonwealth v. McClucas, 548 A.2d 573 (Pa. Super. 1988).

Before addressing Appellant’s issue on appeal, we must determine

whether his PCRA petition was timely filed and, if not, whether he has satisfied

an exception to the PCRA time bar. Any PCRA petition “shall be filed within a

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

judgment of sentence becomes final “at the conclusion of direct review,

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

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

review.” Id. at 9545(b)(3). The PCRA’s timeliness requirements are

jurisdictional in nature, and a court may not address the merits of the issues

raised if the PCRA petition was not timely filed. Commonwealth v. Albrecht,

994 A.2d 1091, 1093 (Pa. 2010).

Instantly, Appellant’s judgment of sentence became final, for purposes

of the PCRA, on July 16, 1996. See 42 Pa.C.S.A. § 9545(b)(1)-(3); Tr. Ct. Op.

at 1. Consequently, Appellant’s instant PCRA petition, filed on August 30,

2022, is patently untimely. However, Pennsylvania courts may consider an

untimely petition if the petitioner can explicitly plead and prove one of the

three exceptions set forth at 42 Pa.C.S.A. §§ 9545(b)(1)(i)-(iii). Those three

exceptions are as follows:

(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.

The PCRA petitioner bears the burden of proving the applicability of one of the

exceptions. Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017).

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Here, our review of Appellant’s PCRA petition, filed August 30, 2022,

purports to raise the governmental interference exception. See Petition,

8/30/22, at ¶ 9 (“I intent [sic] to prove my claims are late due to governmental

interference[.]”). However, the gist of Appellant’s argument indicates that he

is attempting to plead a newly discovered fact. See id. at ¶ 12 (“The above

facts were unknown to [Appellant], and did not become available to him until

October 11 & 17, 2021[.]”).

Appellant’s newly-discovered “fact” is that the Philadelphia homicide

detectives involved in his case, Detectives Martin Devlin, Paul Worrell, Edward

Rocks, and Manuel Santiago, engaged in a pattern of gross police misconduct

resulting in his wrongful conviction, and that the prosecution failed to disclose

this misconduct to the defense. See Amended Petition, 3/16/2023, at 2, 4.

In support of this fact, Appellant provides, inter alia, an October 2021

Philadelphia Inquirer article of wrongful convictions in several unrelated cases

caused by the misconduct of Detectives Devlin and Santiago. See Petition,

8/30/22, Exhibit A. He also attached to his petition an October 2021

Philadelphia Inquirer article in which Appellant was interviewed by a journalist

about his experience with the detectives when being interrogated in his own

case. The article makes allegations of misconduct by the detectives in

Appellant’s and his co-defendant’s cases, which were tried separately. See

Petition, 8/30/22, Exhibit B. Appellant also attached a partial transcript from

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his trial in 1995, several witness statements, and the verdict sheet from his

1995 federal gun trial. See id. at Exhibits C-G.

Incumbent on a PCRA petitioner attempting to plead and prove the

newly-discovered fact timeliness exception is the obligation to

demonstrate he did not know the facts upon which he based his petition and could not have learned those facts earlier by the exercise of due diligence. . . . Additionally, the focus of this exception is on the newly discovered facts, not on a newly discovered or newly willing source for previously known facts.

As an initial jurisdictional threshold, Section 9545(b)(1)(ii) requires a petitioner to allege and prove that there were facts unknown to him and that he exercised due diligence in discovering those facts. See 42 Pa.C.S.A. § 9545(b)(1)(ii). Once jurisdiction is established, a PCRA petitioner can present a substantive after- discovered-evidence claim. See 42 Pa.C.S.A. § 9543(a)(2)(vi) . . ..

Commonwealth v. Reeves, 296 A.3d 1228, 1232 (Pa. Super. 2023)

(brackets omitted).

For purposes of the newly-discovered facts exception, Appellant is

correct that pro se, incarcerated petitioners are not presumed to know what

is of public record. See Commonwealth v. Burton, 158 A.3d 618, 638 (Pa.

2017). Significantly, however, it is well-established that “newspaper articles

referencing misconduct [by police] in matters unrelated to [the petitioner] do

not constitute newly-discovered facts.” Reeves, at 296 A.3d at 1233

(emphasis added).

Here, in dismissing Appellant’s PCRA petition, the trial court reasoned

as follows:

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First, with respect to the news article submitted by Petitioner referencing Police Misconduct in several unrelated cases, the Article fails to provide any support for Petitioner’s claimed “fact” of Police misconduct occurring in Petitioner’s case. According to Commonwealth v. Reeves, 296 A.3d 1228, 1233 (Pa. Super. 2023), “[N]ewspaper articles referencing police misconduct. . .in matters unrelated to [Petitioner] do not constitute newly discovered facts.”; see also Commonwealth v. Hill, 303 A.3d 757, WL 4557059 at 5-6 (Pa. Super. 2023) citing Commonwealth v. Trivigno, 262 A.3d 472, WL 3465926 at *4 (Pa. Super. 2021), (“[Where, although the newspaper article reports instances of alleged misconduct by the subject detective in his investigation of other criminal cases, the newspaper article . . . does not specifically cite any admissions or conclusive findings of wrongdoing by the detective that may be linked to [Petitioner’s] case. . . [.] Therefore, [Petitioner] failed to demonstrate that the newspaper article contained a fact that triggered the newly- discovered facts exception set forth at 42 Pa.C.S.A. § 9545(b)(1)(ii)).” Thus, the Article depicting Police misconduct in cases unrelated to Petitioner’s which Petitioner submitted, were not substantiation of Petitioner’s purported fact that Philadelphia Police Detectives involved in Petitioner’s case-engaged in Police misconduct in Petitioner’s case and therefore failed as newly- discovered facts under subsection 9545(b)(1)(ii).

Tr. Ct. Op. at 3-4 (unpaginated) (emphasis in original).

We agree and find that the PCRA court’s findings are supported by the

record. Patterson, supra. Additionally, we find that the witness statements

attached to Appellant’s August 30, 2022, petition, even if they were not

hearsay, fail to raise claims relevant to his own case and instead focus on

Appellant’s co-defendant who was tried separately from Appellant.

Accordingly, since the article and statements presented no evidence of

misconduct in his own case, Appellant cannot establish a newly-discovered

fact and the PCRA court did not err in concluding such based on newspaper

articles of police misconduct in unrelated cases.

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Appellant’s second article cites the interview with Appellant detailing his

own experience during his interrogation with the detectives. However, this

information would have been known to him since he was a participant in his

own interrogation. Indeed, Appellant seems to indicate in his brief that he had

raised this issue at the time of his trial. He states, “Appellant previously made

the trial court aware of his personal experiences of physical abuse in which is

supported by the record, and the trial court presumed Homicide Detectives

and Appellant’s case to be free from any of Appellant’s allegations of the

physical abuse/excessive force being a means to coerce a statement against

his co-defendant.” Appellant’s Br. at 11.

In finding the second article to not raise a newly-discovered fact, the

trial court reasoned:

[t]he article describing the purported coercion fails to show that this information was previously unknown to Petitioner. Petitioner, who was present at his own interrogation has been aware of the alleged fact of Detective Devlin’s alleged attempted coercion of Petitioner’s statement as early as the time of his interrogation. Therefore, Petitioner failed to establish that his alleged fact was unknown to him prior to filing the instant Petition in 2022 and therefore was not a previously unknown fact for purposes of subsection 9545(b)(1)(ii). As Petitioner was aware of his purported facts years before the filing of this Petition, his failure to file his Petition as mandated by 42 Pa.C.S.A. §9545(b)(2), namely, bringing his claim within one year2 of the date when ____________________________________________

2 We observe that section 9545(b)(2) was amended on October 24, 2018, effective in 60 days (i.e., December 24, 2018), extending the time for filing from 60 days of the date the claim could have been first presented, to one year. The amendment applies to claims arising on December 24, 2017, or thereafter. See Act 2018, Oct. 24, P.L. 894, N. 146, § 3. The claim that the (Footnote Continued Next Page)

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Petitioner became aware that Detective Devlin allegedly tried to force a statement from him implicating his Co-Defendant, is fatal to his attempt to invoke an exception and Petitioner’s attempt to resurrect this claim by appending Newspaper Articles containing his interview Petitioner believe[s] support[s] the same fact(s) was unavailing.

Tr. Ct. Op. at 4-5 (unpaginated) (emphasis in original).

Again, we agree. Since the article presented no new evidence of

misconduct that would have been unknown to petitioner and did not

specifically cite any admissions or conclusive findings of wrongdoing by the

detectives in Appellant’s case, the article cannot establish a newly-discovered

fact and the PCRA court did not err in concluding such.

Next, Appellant contends that the cases evidencing the detectives’

misconduct being withheld from him was a Brady violation, as he has no other

way of “obtaining the files on Detectives in this instant case revealing

misconduct.” Id. at 10. Appellant argues in his brief that the detectives

involved in his case were found to have fabricated evidence and coerced

testimony in several other unrelated cases, and that while the evidence is

favorable to Appellant, the Commonwealth did not disclose these facts.

Appellant’s Br. at 9. Relevantly, however, “[t]he withheld evidence must have

been in the exclusive control of the prosecution at the time of trial.”

detectives used coercive or abusive tactics could have been raised as early as Appellant’s interrogation, and, therefore, even if the claim could arguably constitute a “newly-discovered fact,” it would have had to have been raised within the original 60-day limit.

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Commonwealth v. Haskins, 60 A.3d 538, 547 (Pa. Super. 2012) (emphasis

added). No Brady violation occurs when the defendant knew, or with

reasonable diligence, could have discovered the evidence in question, or if the

evidence was available to the defense from another source. Id.

Here, three of the cases that Appellant cites as evidence of the

detectives’ misconduct in his brief occurred in 2017, 2019, and 2022. Id. at

9, 12. Aside from the fact that these cases are completely unrelated to

Appellant’s trial, they occurred decades after his trial, and thus, could not have

been in the possession of the Commonwealth at the time of his trial.

Additionally, Appellant states, “[b]efore petitioner’s trial, multiple allegations

of coercion, fabrication and suppression involving these detectives had already

surfaced.” Appellant’s Br. at 11. Appellant goes on to cite a 1992 case,

Commonwealth v. Veasy, CP-51-CR-641521-1992, for support. However,

Appellant does not indicate why or how the defense could not have known

about this case if exercising due diligence at the time of his trial which occurred

several years later. Accordingly, Appellant failed to show that he acted with

due diligence and failed to prove any exception under 42 Pa.C.S.A. §§

9545(b)(1)(i)-(iii).

Finally, it is well settled that “[t]here is no absolute right to an

evidentiary hearing on a PCRA petition, and if the PCRA court can determine

from the record that no genuine issues of material fact exist, then a hearing

is not necessary.” Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super.

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2008). “[T]o obtain reversal of a PCRA court’s decision to dismiss a petition

without a hearing, an appellant must show that he raised a genuine issue of

fact which, if resolved in his favor, would have entitled him to relief, or that

the court otherwise abused its discretion in denying a hearing.”

Commonwealth v. Hanible, 30 A.3d 426, 452 (Pa. 2011).

Following our review of the record, we agree with the PCRA court’s

conclusion that an evidentiary hearing was unwarranted because Appellant

cannot credibly claim that he raised a genuine issue of fact which, if resolved

in his favor, would have entitled him to relief. Appellant baldly speculates as

to what may be in the detectives’ alleged “files” and further merely speculates

that the Commonwealth had access to “a history of the homicide detectives’

misconduct” prior to his trial. Appellant’s Br. at 10, 14. Therefore, no relief is

due.

Order Affirmed.

Date: 6/23/2026

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