Com. v. Ortiz, R.

• Court: Superior Court of Pennsylvania
• Decided: June 16, 2021
• Docket: 3049 EDA 2019
• Status: Unpublished

Opinion

J-S05038-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RENE ORTIZ : : Appellant : No. 3049 EDA 2019

Appeal from the PCRA Order Entered September 19, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0110564-1991

BEFORE: BOWES, J., LAZARUS, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED JUNE 16, 2021

Rene Ortiz appeals the order dismissing his Post Conviction Relief Act

(“PCRA”) petition for untimeliness. See 42 Pa.C.S.A. §§ 9541-9546. He argues

his petition was timely under the new facts exception to the PCRA’s time-bar.

We affirm.

Ortiz was found guilty of second-degree murder, robbery, and

conspiracy, and the trial court imposed the mandatory life sentence for

second-degree murder in 1992. He and his associates were selling cocaine to

the victim, Harry Cronce, when they decided to rob him. PCRA Ct. Op.,

6/17/20, at 2. During the robbery, one of the other men, Hector Flores, fatally

stabbed the victim with an ice pick. During the ensuing investigation, Ortiz

made a statement to Detective John Rechner in which he admitted to acting

as a lookout during the robbery. After he was charged for his participation in

the killing, Ortiz filed a pre-trial motion to suppress the statement, claiming J-S05038-21

in part that Detective Rechner had coerced it. Ortiz alleged physical and

psychological coercion, inadequate Miranda warnings, lack of understanding

of the warnings, denial of his right to counsel, and an involuntary waiver of

his right to counsel and his right against self-incrimination. See Trial Court

Opinion, filed 3/31/92, at 2-3. Following a hearing, the court denied the

motion.

Following sentencing and the denial of post-verdict motions, Ortiz

appealed, and this Court affirmed the judgment of sentence on March 16,

1993. He did not seek review in the Pennsylvania Supreme Court. Ortiz

subsequently litigated two unsuccessful PCRA petitions, in 1994 and 2004.

Ortiz filed the instant petition, his third, pro se on August 23, 2012. He

filed several petitions to amend, which the PCRA court appears to have treated

as amended petitions, as well as documents captioned as amended and

supplemental petitions. In his later filings, he was represented by counsel.

None of these documents, however, explicitly attempts to plead the new facts

exception to the PCRA’s one-year filing requirement. See 42 Pa.C.S.A. §

9545(b)(1)(ii). Only his February 25, 2016 pro se petition to amend makes an

overt effort at pleading any time-bar exception, but the exception it references

is not the new facts exception. Rather, it cites Miller v. Alabama, 567 U.S.

460 (2012), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016), and

asserts the new constitutional right exception. See Petition to Amend Pursuant

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to the Post Conviction Relief Act, filed 2/25/16, at 4 (citing 42 Pa.C.S.A. §

9545(b)(1)(iii)).1

Substantively, Ortiz asserted an after-discovered evidence claim. See

42 Pa.C.S.A. § 9543(a)(2)(vi). He first raised the claim in his April 17, 2018,

Motion for Leave to File the Within Supplemental Grounds for PCRA Relief

(“Motion for Leave”). Ortiz alleged that in February 2018, he read a newspaper

article about an unrelated civil case in which, according to Ortiz, a federal

court determined that Philadelphia Police Detectives Manuel Santiago and

Martin Devlin had engaged in abusive interrogation tactics that lead to a

wrongful conviction. See Wright v. City of Phila., 229 F.Supp.3d 322 (E.D.

Pa. 2017) (denying motion to dismiss). Ortiz contended that Detectives

Santiago and Devlin had been involved in his case as well, and argued that

the complaint in Wright was proof that Detectives Devlin, Santiago, and

Rechner had all used abusive tactics while interrogating him and his

codefendants. Ortiz thereafter filed multiple supplemental pleadings to his

PCRA petition arguing that he had recently obtained supporting affidavits—

one signed by Ortiz, and another by a co-defendant, Joaquin Rodriguez, also

alleging police coercion—and a copy of Flores’s statement to the parole board,

which Ortiz claims exonerated him of participating in the crime. Ortiz argued

these documents were also after-discovered evidence.

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1 The PCRA court rejected Ortiz’s Miller/Montgomery claim because he was

18 years old at the time of the crime. Ortiz does not contest that ruling in this appeal.

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Although Ortiz’s Motion for Leave makes a substantive after-discovered

evidence claim, it does not explicitly attempt to plead the new facts exception.

Its only mention of time requirements is the assertion that Ortiz was making

his after-discovered evidence claim “within 60 days of its discovery.” Motion

for Leave, filed 4/17/18, at 2 (unpaginated).

The PCRA court sent Ortiz a Pa.R.Crim.P. 907 notice in August 2019.

Ortiz responded, attaching a Philadelphia Inquirer article dated June 6, 2018,

about the Wright case. The article stated that new DNA evidence had

exonerated Anthony Wright upon his retrial and indicated that Detectives

Santiago and Devlin had coerced Wright to make a false statement. The article

stated that the City of Philadelphia had settled Wright’s civil case without an

admission of liability.

The PCRA court dismissed the amended petition. Ortiz filed a motion to

vacate the dismissal, this time attaching an October 2019 Philadelphia

Inquirer article entitled, “Philly DA’s Office reviewing murder convictions after

claims of coerced confessions by now-retired detectives.” Motion to Vacate

Dismissal of PCRA Petition, 10/4/19, at Ex. A. The article stated prosecutors

were investigating retired Detectives Devlin and Paul Worrell, and their

involvement in yet another case, Commonwealth v. Veasey. The PCRA court

dismissed Ortiz’s petition as untimely and without merit.

Ortiz appealed. The court ordered Ortiz to file a statement of matters

complained of on appeal. See Pa.R.A.P. 1925(b). Ortiz filed a statement,

raising that the court erred in denying the petition without a hearing, given

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the evidence of police misconduct in the cases of Wright, Veasey, and a third

case, Commonwealth v. Shaurn Thomas, and given the evidence he

proffered to support his after-acquired evidence claim.

Ortiz appealed, and raises the following issues:

1) Where [there is] new evidence of misconduct by the Philadelphia Homicide Detectives involved in [Ortiz’s] case which was similar to that alleged in [Ortiz’s] case; which occurred during the same time period when [Ortiz] was arrested; and which led to the grant of new trials in other cases where this misconduct was uncovered, did the lower court err in not holding a hearing to determine whether this misconduct met all the elements of a newly discovered evidence claim and should this Court remand the matter to the lower court?

2) Where there was more new evidence of misconduct, which led to the grant of new trials based on misconduct committed by the same detectives after [Ortiz] filed his appeal, does this provide further basis for the grant of a remand?

Ortiz’s Br. at 2 (answers below omitted).

Ortiz improperly addresses both of his appellate issues in a single,

undivided argument section in his appellate brief. This is contrary to Pa.R.A.P.

2119(a), which requires that the argument be “divided into as many parts as

there are questions to be argued . . . .” We will not quash the appeal, despite

the violation, as we believe we have been able to understand Ortiz’s

arguments. If we have misunderstood, Ortiz has waived what he allegedly

intended to say.

We review the decision to deny PCRA relief to determine whether the

decision “is supported by evidence of record and whether it is free of legal

error.” Commonwealth v. Hart, 199 A.3d 475, 481 (Pa.Super. 2018)

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(quoting Commonwealth v. Pew, 189 A.3d 486, 488 (Pa.Super. 2018)).

Where the PCRA court declined to hold an evidentiary hearing, we consider

whether the petition presented any genuine issues of material fact that

warranted a hearing. Id. We review the court’s legal conclusions de novo. Id.

Ortiz argues his petition was timely under the newly discovered facts

exception. He asserts that although a decision in the Wright civil suit was

filed in January 2017,2 and Ortiz did not present his after-discovered evidence

claim until April 2018, counsel had not entered his appearance at the time of

the Wright decision. Ortiz claims he did not inform counsel of the alleged

police misconduct in his case until February 2018, and counsel filed an

amended pleading within 60 days of learning of Ortiz’s allegations of

misconduct. Ortiz argues “the critical exculpatory material about, and patterns

of misconduct of, Detectives Devlin and Santiago, while known by Rene

Ortiz[,] was time-barred until the Anthony Wright case came to be known”

and that “to seek to attribute this lack of due diligence to counsel who had no

knowledge of a police misconduct claim until February, 2018, misrepresents

the role of counsel at that point.” Ortiz’s Br. at 17-18.

Ortiz also argues he made timely amendments to his petition as the

Veasey and Thomas cases, exposing similar police misconduct, became

publicized. Id. at 19 n.6. Ortiz further contends that there has since been

more evidence of the detectives’ misconduct in the cases of Commonwealth ____________________________________________

2 See Wright v. City of Philadelphia, 229 F. Supp. 3d 322, 327 (E.D. Pa.

2017).

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v. Walter Ogrod, and Andrew Swainson v. Lawrence Mahally, and that

he discovered this evidence after he appealed. Id. at 10.

In addition, Ortiz argues that as he became aware of the other cases

exposing misconduct, “it was then important to try to reinvestigate and obtain

a statement from Rodriguez and also include Rene Ortiz’s statement.” Id. at

13. Ortiz asserts that he did not learn until Rodriguez’s allegations against

Detective Rechner until February 2019, after Ortiz’s counsel contacted

Rodriguez, and thus his presentation of Rodriguez’s affidavit was timely.

Finally, Ortiz argues the presentation of his claim based on Flores’s statement

to the parole board was timely, as the “statement was not known until after

[Flores] was paroled.” Id.

A PCRA court lacks jurisdiction to grant relief on an untimely PCRA

petition. Commonwealth v. Anderson, 234 A.3d 735, 737 (Pa.Super.

2020). Where the petition is not filed within one year of the date on which the

judgment of sentence became final, the petitioner bears the burden of

pleading and proving an exception to the one-year time limitation. See 42

Pa.C.S.A. § 9545(b)(1).

The new facts exception requires 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).

A petition claiming the exception must be presented within one year of the

date the claim could have been presented; claims arising prior to December

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24, 2018, were required to be presented within 60 days. 42 Pa.C.S.A. §

9545(b)(2).

The new facts exception focuses “on newly-discovered facts, not on

newly-discovered or newly-willing sources that corroborate previously known

facts or previously raised claims.” Commonwealth v. Maxwell, 232 A.3d

739, 745 (Pa.Super.), appeal denied, 242 A.3d 1290 (Pa. 2020). Therefore, a

new source to corroborate previous allegations of police misconduct generally

will not render a petition timely. See Commonwealth v. Hill, 202 A.3d 793,

799-800 (Pa.Super. 2019) (holding untimely PCRA claim based on newspaper

article about civil judgment against detective for improper investigative

techniques, where petitioner had previously made such allegations).

The trial court properly dismissed Ortiz’s petition as untimely. Ortiz did

not adequately plead the new facts exception in the PCRA court. Indeed, he

did not explicitly plead the new facts exception. To the extent a substantive

after-discovered evidence claim overlaps with the new facts exception, Ortiz’s

allegations are insufficient to meet the exception. He has not asserted facts

that were unknown to him. The substance of his claim is that he was subject

to police coercion that led him to sign a statement implicating himself in the

subject crime. See Ortiz’s Reply Br. at 7. But Ortiz made similar allegations in

his pre-trial motion to suppress, in which he argued that the court should

exclude his statement because he was subject to alleged physical and

psychological coercion. He has thus been aware of the “facts” of consequence

to his substantive claim since before his trial. He is not asserting new facts,

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but rather new sources of evidence of old facts. See Commonwealth v.

Lambert, 57 A.3d 645, 649 (Pa.Super. 2012) (finding PCRA petition untimely

where petitioner offered a new witness to attest to prosecutorial misconduct

and petitioner had previously asserted such misconduct).

Insofar as Ortiz asserts that his co-defendant, Rodriguez, experienced

similar coercion, he has not explained why the coercion to which Ortiz was

allegedly subject would not have reasonably caused him to believe that

Rodriguez gave his statement under similar conditions, and pursued that

question at the time of his motion to suppress. He thus has not carried his

burden to plead that he could not have reasonably known earlier about alleged

coercion of others. Cf. Commonwealth v. Medina, 92 A.3d 1210, 1218

(Pa.Super. 2014) (en banc) (PCRA petition timely where witnesses contacted

petitioner and claimed that police detective coerced their statements, and

petitioner previously had no reason to suspect the misconduct).

The PCRA court did not abuse its discretion in dismissing Ortiz’s petition

as untimely.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/16/2021

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