J-S47039-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : NAEEM JONES : : Appellant : No. 9 EDA 2024
Appeal from the PCRA Order Entered December 4, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006591-2007
BEFORE: KUNSELMAN, J., SULLIVAN, J., and BECK, J.
MEMORANDUM BY BECK, J.: FILED MARCH 20, 2025
Naeem Jones (“Jones”) appeals pro se from the order entered by the
Philadelphia County Court of Common Pleas dismissing his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”). 1 Because Jones filed an
untimely PCRA and failed to establish an exception to the statutory time bar,
we affirm.
In August 2008, a jury convicted Jones of first-degree murder and
possessing instruments of crime. Jones’ convictions stemmed from the death
of Steven Bartley (“Bartley”), who died after sustaining nine to twelve gunshot
wounds fired from two semi-automatic weapons outside Big Fella’s Sports Bar
on February 20, 2006. On the night of the shooting, Jones and his friends had
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1 42 Pa.C.S. §§ 9541-9546. J-S47039-24
argued with Bartley and Bartley’s friend Terrance Speller (“Speller”). One of
the arguments started after James Frager (“Frager”) encountered Speller
attacking Kamira Woods (“Woods”) in the men’s bathroom of Big Fella’s.
Woods and Jones used to be involved until Woods ended the relationship due
to Jones’ abuse. According to Frager, he saw Jones and others arguing with
Speller and Bartley about the incident with Woods. The argument moved to
the sidewalk outside the bar. As Frager got into his car, he heard gunshots
and observed Jones and others standing over Bartley immediately afterwards.
Woods gave two statements to police. In her February 21, 2006
statement, she did not refer to Jones. In her November 3, 2006 statement,
Woods overcame her fears about Jones’ history of violence and implicated him
in Bartley’s murder. Woods told police that she observed Jones point and
shoot a gun at Bartley multiple times.
In early November 2006, Jones’s friend Vincent Dickerson (“Dickerson”)
gave a statement to police wherein he stated that Jones had confessed to him
that he had shot a man at the bar that night. Police arrested Jones shortly
thereafter.
At the August 2008 jury trial, Woods was not cooperative at times,
prompting the trial court to warn Woods that it would find her in contempt of
court if she did not answer questions. N.T., 8/21/2008, at 42-50. Woods
testified that she did not see Jones outside of the bar and did not otherwise
recall much from the incident. See id. at 8. She remembered giving
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statements to police in 2006 but testified that she did not remember anything
that she told police because she was using embalming fluid multiple times a
day at that point, which made her lose her memory and “[ate] up her brain.”
Id. at 65-66. At one point, when the prosecutor read the statements that
Woods provided to police, Woods pointed to factual differences between her
statements and stated, “The detectives made this whole thing up and had me
sign some shit that I didn’t even read.” Id. at 62.
When the prosecutor presented Dickerson’s police statement to him on
the stand, he testified that police fabricated his statement. N.T., 8/22/2008,
at 183 (testifying that an unspecified officer “wrote [the statement] up and
made me sign it.”). Detective Dove did not testify at trial, but other police
officers testified about obtaining the statements from Woods and Dickerson
and denied that the statements were coerced.
Ultimately, the jury found Jones guilty of first-degree murder and
possessing an instrument of crime, and the trial court sentenced Jones to life
in prison without parole. This Court affirmed Jones’ judgment of sentence,
and our Supreme Court declined further review. Commonwealth v. Jones,
3389 EDA 2010 (Pa. Super. Nov. 15, 2011) (non-precedential decision),
appeal denied, 42 A.3d 291 (Pa. 2012).
Jones pro se filed a timely PCRA petition on December 21, 2012.
Following the appointment of counsel and a hearing, the PCRA court dismissed
the petition in 2016, and Jones’ appeal was unsuccessful. See
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Commonwealth v. Jones, 1432 EDA 2016, 2017 WL 1405999 (Pa. Super.
Apr. 19, 2017) (non-precedential decision), appeal denied, 174 A.3d 568
(Pa. 2017).
Jones filed the instant PCRA petition pro se on September 25, 2023,
claiming that he was entitled to relief on the merits based upon after-
discovered evidence and the Commonwealth’s failure to comply with Brady
v. Maryland, 373 U.S. 83 (1963).2 See PCRA Petition, 9/25/2023, at 2.
Although he filed the petition more than a year after the date of final
judgment, he contended that he could satisfy the newly-discovered fact
exception to the PCRA’s time bar. See id. at 3 (invoking 42 Pa.C.S.
§ 9545(b)(2)). Specifically, Jones averred that on September 3, 2023, he
learned that the Philadelphia Police Department had sanctioned Detective
Dove, the lead detective in his case, with a two-day suspension for sending
“threatening and harassing text messages.” PCRA Petition, 9/25/2023, at 3-
4. Jones averred that he learned this information from a casual conversation
with another inmate, Dominic Peoples. Id. at 4. Jones indicated that Peoples’
lawyer had sent him documentation of the misconduct, and he attached the
2 Jones’ petition alleges that his conviction was based upon two separate substantive grounds for relief. See 42 Pa.C.S. § 9543 (a)(2)(i) (“A violation 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.”), (vi) (“The 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.”).
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documentation to his petition as Exhibit B. Id. The exhibit consisted of a
two-page document entitled “PHILADELPHIA POLICE DEPARTMENT
MISCONDUCT DISCLOSURE.” Id. at Exhibit B. Portions of the disclosure are
redacted, but the remainder indicate that a staff inspector in the internal
affairs division sustained allegations that on February 5 and 11, 2008,
Detective Dove sent “several harassing text messages” to a person to whom
Detective Dove believed was romantically involved with his wife and was
responsible for the dissolution of his marriage. Id. Detective Dove admitted
to the misconduct and served a two-day suspension. Id. The date of the
internal hearing was September 3, 2008, shortly after the conclusion of Jones’
trial but before he was sentenced. Id. Jones asserted that two unnamed
witnesses at his trial had accused Detective Dove of coercing their statements
to police through threats. Id. at 3.3
The PCRA court issued notice of its intent to dismiss the petition without
a hearing pursuant to Pennsylvania Rule of Criminal Procedure 907(1),
explaining that the petition was untimely filed, and, alternatively, lacked
3 We note that Jones’ petition relies solely upon the 2008 misconduct finding and sanction. It neither relied upon Detective Dove’s subsequent misconduct that resulted in his conviction for multiple criminal offenses and the termination of his employment, see Commonwealth v. Johnson, 179 A.3d 1105, 1122 n.9 (Pa. Super. 2018), nor any of the other misconducts or incidents involving Detective Dove that Jones improperly attempts to bring to our attention via attachments to his appellate brief. See Commonwealth v. Bishop, 266 A.3d 56, 67 (Pa. Super. 2021) (noting that this Court cannot consider arguments or evidence on appeal that was not presented to the PCRA court in the first instance).
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merit. Rule 907 Notice, 10/26/2023, at 1. Regarding the timeliness of the
petition, the PCRA court noted the passage of time between Detective Dove’s
2008 sanction and Jones’ 2023 discovery of the sanction and decided, without
further analysis, that Jones “made no effort to obtain the information
throughout the years.” Id. at 2-3. Because Jones did not exercise due
diligence in discovering the information, the PCRA court concluded that Jones
failed to establish the newly-discovered facts exception to the PCRA’s
jurisdictional time bar. Id.
In his response, Jones argued that he could not have ascertained the
fact of Detective Dove’s internal misconduct earlier because the
Commonwealth had exclusive possession of Detective Dove’s personnel file,
and he had no reason to know that the evidence existed until 2023. Response
to 907 Notice, 11/15/2023, at 2-3. According to Jones, although the
Commonwealth disclosed the 2008 suspension in 2020 to Peoples’ counsel in
an unrelated matter, Jones had no reason to know about Detective Dove’s
internal misconduct until Peoples mentioned it to him when they were
incarcerated together in 2023. Id. at 2. Further, Jones insisted that he
exercised diligence, including by requesting all Brady materials from the
Conviction Integrity Unit of the district attorney’s office in 2019, but the
Commonwealth kept the information concealed. Id. at 3.
Jones’ response also elaborated upon his claims. He identified Woods
and Dickerson as the two witnesses referred to in his petition who accused
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Detective Dove of coercing them to sign false statements. Id. at 4. According
to Jones, Woods testified that Detective Dove forced her to sign a statement
that she did not read, and Dickerson testified that Detective Dove threatened
to send Dickerson back to jail if he did not sign the false statement while
holding Dickerson’s probation file in his hands. Id. (citing N.T., 8/22/2008,
at 62-66 and N.T., 8/21/2008, at 183-212).4 Jones asserted that, if he had
known about Detective Dove’s “history of threatening people,” he could have
called Detective Dove as a witness at his trial and impeached him, which would
have bolstered the testimony of Woods and Dickerson and caused the jury to
believe that Detective Dove coerced their false statements through threats.
Id. The PCRA court dismissed Jones’s PCRA petition on December 14, 2023.
Jones timely filed a notice of appeal. The PCRA court did not order Jones to
file a concise statement of matters complained of on appeal but issued an
opinion pursuant to Pa.R.A.P. 1925(a).
As Jones recognizes, the threshold issue that we must determine is
whether he timely filed his PCRA petition, or meets a timeliness exception, as
the timeliness requirement is “mandatory and jurisdictional in nature.”
Commonwealth v. Brown, 141 A.3d 491, 499 (Pa. Super. 2016). If a PCRA
is untimely filed, and no exception applies, neither the trial court nor the
4 We observe that Jones’ recounting of the testimony is not quite accurate. Neither witness identified Detective Dove by name and Woods referred only to her drug use, not threats, when testifying that she did not give the statement the police had her sign.
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appellate courts have jurisdiction over the petition. See Commonwealth v.
Reid, 235 A.3d 1124, 1143 (Pa. 2020). “As the timeliness of a PCRA petition
is a question of law, our standard of review is de novo and our scope of review
is plenary.” Commonwealth v. Callahan, 101 A.3d 118, 121 (Pa. Super.
2014) (citation omitted).
All PCRA petitions, including second or subsequent petitions, must be
filed within one year of the date when the judgment of sentence becomes
final. 42 Pa.C.S. § 9545(b)(1). The petitioner can only overcome this
jurisdictional time bar by pleading and proving one of three statutory
exceptions to the general timeliness requirement codified at 42 Pa.C.S.
§ 9545(b)(1)(i)–(iii). Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa.
2017). Additionally, a PCRA petition relying upon these statutory exceptions
must be “filed within one year of the date the claim could have been
presented.” 42 Pa.C.S. § 9545(b)(2). The petitioner bears the burden to
allege and prove that one of the timeliness exceptions applies.
Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999).
Jones does not dispute that his petition is patently untimely, having
been filed over a decade after his sentence became final. 5 Jones’ petition
5 Jones’ judgment of sentence became final in 2012, ninety days after our Supreme Court denied his petition for allowance of appeal and the time for filing a writ of certiorari to the United States Supreme Court expired. See 42 Pa.C.S. § 9545(b)(3) (providing that a judgment becomes final for purposes of the PCRA at the conclusion of direct review or at the expiration of time for (Footnote Continued Next Page)
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relies instead upon the newly discovered facts exception to the one-year time
bar. PCRA Petition, 9/25/2023, at 3.6 This exception “renders a petition
timely when the petitioner establishes 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.’” Commonwealth v. Small,
238 A.3d 1267, 1271 (Pa. 2020) (quoting 42 Pa.C.S. § 9545(b)(1)(ii)).
Whether facts are unknown to the petition and whether the petitioner could
have discovered the facts with due diligence is “a circumstance-dependent
analysis of the petitioner’s knowledge, not that of the public at large.” Id. at
1283. Further, whether a petitioner has satisfied the newly discovered facts
exception in section 9545(b)(1)(ii) is “analytically distinct” from the merits of
a substantive after-discovered evidence claim in section 9543(a)(2)(vi).
Commonwealth v. Robinson, 185 A.3d 1055, 1059 (Pa. Super. 2018) (en
banc) (citing Commonwealth v. Bennett, 930 A.2d 1264, 1270-72 (Pa.
2007)). As such, the newly discovered facts exception “does not necessitate
seeking direct review); Sup. Ct. R. 13(1) (establishing the deadline for filing a writ of certiorari seeking review of a state court judgment as ninety days after a state court of last resort entered an order denying discretionary review).
6 Jones references an additional time bar exception in his brief—the government interference exception—but he invoked only the newly discovered evidence exception in his petition. Thus, we cannot consider other time bar exceptions. See Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007) (“[E]xceptions to the [PCRA] time bar must be pled in the petition and may not be raised for the first time on appeal.”).
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proof of the elements of a claim of after-discovered evidence.” Small, 238
A.3d at 1286.
“Due diligence demands that the petitioner take reasonable steps to
protect his own interests.” Commonwealth v. Williams, 324 A.3d 569, 576
(Pa. Super. 2024) (citation omitted). “A petitioner must explain why he could
not have learned the new fact(s) earlier with the exercise of due diligence.
This rule is strictly enforced.” Commonwealth v. Brown, 111 A.3d 171, 176
(Pa. Super. 2015) (citations omitted). However, when examining due
diligence, we bear in mind that it “does not require perfect vigilance and
punctilious care, but merely a showing the party has put forth reasonable
effort to obtain the information upon which a claim is based.”
Commonwealth v. Cox, 146 A.3d 221, 230 (Pa. 2016) (quotation marks and
citation omitted).
On appeal, Jones argues that he could not have ascertained the
information about Detective Dove’s sanction earlier even with due diligence
because the information was in the Commonwealth’s possession and the
Commonwealth failed to comply with its duty under Brady to provide
documentation of Detective Dove’s sanction to Jones. Jones’ Brief at 12-13.
Nevertheless, Jones insists that he did attempt to obtain Brady material from
the Commonwealth. Id. at 12.
In its Rule 1925 opinion, the PCRA court maintained its conclusion that
Jones did not exercise due diligence. The PCRA court stated that Jones
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provided no proof that the Commonwealth released the 2008 misconduct to
Peoples in 2020, and even if that was true, that “another defendant had
possession of this information since that time” establishes that Jones also
could have discovered the same fact by making a reasonable effort to discover
it. PCRA Court Opinion, 12/4/2023, at 6. Thus, the PCRA court concluded
that Jones “did not provide any explanation as to why he could not have
discovered this information earlier by making a reasonable effort to discover
it,” and ruled that Jones’ petition was untimely. PCRA Court Opinion,
12/4/2023, at 7.
We disagree with the PCRA court’s rationale because it is inconsistent
with Small. Small instructs that the plain language of the statute requires
the PCRA court to analyze the petitioner’s knowledge and circumstances, not
the knowledge of the public. See Small, 238 A.3d at 1283. Simply because
another inmate was able to obtain documentation of Detective Dove’s
misconduct says nothing about whether Jones exercised due diligence in
obtaining the same documentation. Nor does the mere passage of time by
itself establish that Jones was not diligent.
However, Jones’ primary argument concerning due diligence also misses
the mark. Jones claims that because the Commonwealth bore the burden of
providing information to him under Brady, it was not up to him to seek out
the information. Jones’ Brief at 12-13. But to invoke the PCRA court’s
jurisdiction to examine the Brady claim in the first place under the newly
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discovered facts exception, Jones must show that he has been duly diligent in
gathering facts to support his claim for post-conviction collateral relief.
Jones’ contention that the Commonwealth controls the disclosure of
information such as misconduct in a police officer’s personnel file is well taken.
See Jones’ Brief at 12-13; Response to Rule 907 Notice at 3. In some cases,
not looking for discovery of police misconduct until it turns up out of the blue
may be reasonable and satisfactorily prove that the petitioner could not have
learned about the fact earlier with the exercise of due diligence. See, e.g.,
Commonwealth v. Medina, 92 A.3d 1210 (Pa. Super. 2014) (en banc)
(holding that Medina did not fail to exercise due diligence by not proactively
approaching an eyewitness who later recanted his trial testimony; due
diligence does not require a petitioner to engage in a “fishing expedition” to
ascertain why an eyewitness lied when the petitioner had no reason to suspect
that the witness might change his story or that police coerced witness’
statement). In this case, though, because Jones claims that Woods and
Dickerson testified at trial that police threatened and coerced their
statements, Jones had reason to investigate Detective Dove’s conduct further.
See, e.g., Robinson, 185 A.3d at 1064 (holding that because counsel’s
ineffectiveness based upon his drug-addicted state would have been “obvious”
to petitioner at the time of his plea, petitioner “bore the duty to seek out the
facts that would support any such claim”).
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Therefore, it was incumbent upon Jones to provide information
concerning the reasonable efforts he expended to obtain facts to support his
claim. See Brown, 111 A.3d at 176. Recognizing this, Jones alternatively
contends that he did expend reasonable efforts in an attempt to obtain the
information because his PCRA counsel requested Brady material from the
Commonwealth in 2015 and 2019.7 Jones’ Brief at 12; see Response to Rule
907 Notice (referencing and attaching counsel’s Brady request in his response
to the PCRA court’s notice of intent to dismiss his petition without a hearing).
Neither the PCRA court nor the Commonwealth expressly discuss Jones’
proffered effort or explain why it was not sufficient. Without any other
information in the record indicating that Jones knew or should have known
about an internal sanction for misconduct that was housed in Detective Dove’s
personnel file, it is difficult to envision what additional reasonable efforts Jones
could have expended to obtain documentation of the misconduct that Jones
did not know existed until a chance conversation with Peoples. See Cox, 146
A.3d 221 at 230 (noting that due diligence requires “a reasonable effort,” not
“perfect vigilance and punctilious care”). Thus, we disagree with the PCRA
7 In his brief, Jones expounds upon his due diligence, adding that he filed a public records request seeking information regarding the officers on his case in 2023. Because Jones did not describe this effort to the PCRA court, we cannot consider this information. See Pa.R.A.P.302(a) (“Issues not raised in the trial court are waived and cannot be raised for the first time on appeal.”).
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court’s conclusion that Jones did not plead and prove facts to establish the
due diligence portion of the newly-discovered facts exception.
Nevertheless, we agree with the PCRA court’s conclusion that Jones did
not meet his burden to pled and prove this exception to the jurisdictional time-
bar. See Commonwealth v. Parker, 249 A.3d 590, 595 (Pa. Super. 2021)
(“[A]s an appellate court, we may affirm on any legal basis supported by the
certified record.”). Jones’ attempt to invoke the newly-discovered fact
exception to the jurisdictional time bar fails because he did not plead and
prove that “the facts upon which the claim is predicated were unknown to the
petitioner.” 42 Pa.C.S. § 9545(b)(1)(ii). Further, although “we need not find
a ‘direct connection’ between the newly-discovered facts and the claims
asserted by a petitioner, the statutory language requires there be some
relationship between the two.” Commonwealth v. Shannon, 184 A.3d
1010, 1017 (Pa. Super. 2018).
Here, the predicating fact that Jones says he discovered is Detective
Dove’s suspension for sending “threatening and harassing text messages.”
PCRA Petition, 9/25/2023, at 3-4; see also Response to 907 Notice at 1. The
crux of Jones’ constitutional error and after-discovered evidence claims is that
had Jones been aware of Detective Dove’s “history of threatening people” at
the time of trial, he could have impeached the police witnesses or used a trial
strategy that would have caused the jury to believe that Detective Dove “did
exactly what [Woods and Dickerson] said he did: threatened them into
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signing false statements against Jones.” Response to Rule 907 Notice at
4-5 (emphasis in original). While Jones’ constitutional error and after-
discovered evidence claims appear to be predicated upon the newly-
discovered fact for jurisdictional purposes, this is only so because Jones
overstates the nature of his discovery. Jones repeatedly refers to the
misconduct as involving text messages that were threatening and relies upon
the attached misconduct form to establish this newly discovered fact. Yet the
misconduct form does not refer to threats at all. Thus, regardless of his
allegations, Jones did not actually discover that Detective Dove had previously
engaged in threatening behavior. Instead, what he discovered was that
Detective Dove sent harassing text messages to the person who he
suspected was romantically involved with his wife and that this behavior
warranted a two-day suspension. Because Jones’ claimed newly-discovered
fact is not actually what he claims it to be, he has not established “the
existence of a previously unknown fact that would allow him to avoid the strict
one year time-bar.” See Cox, 146 A.3d at 229 n.11. Therefore, we affirm
the dismissal of Jones’ untimely petition based upon the lack of jurisdiction,
albeit for reasons that differ from the PCRA court’s analysis. See Shannon,
184 A.3d at 1017 (finding appellant did not meet newly-discovered fact
timeliness exception where he fails to establish any connection between the
alleged facts and his case).
Order affirmed.
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Date: 3/20/2025
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