Com. v. Spivey, D.

• Court: Superior Court of Pennsylvania
• Decided: June 18, 2026
• Docket: 2290 EDA 2025
• Status: Unpublished
• Author: Panella

Opinion

J-S17002-26

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DERRICK E. SPIVEY : : Appellant : No. 2290 EDA 2025

Appeal from the PCRA Order Entered August 21, 2025 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003401-2009

BEFORE: PANELLA, P.J.E., STABILE, J., and FORD ELLIOTT, P.J.E. *

MEMORANDUM BY PANELLA, P.J.E.: FILED JUNE 18, 2026

Derrick E. Spivey appeals from the order dismissing his petition filed

pursuant to the Post-Conviction Relief Act (“PCRA”). 1 Spivey argues the PCRA

court erred in dismissing his PCRA petition as untimely filed. After careful

review, we affirm.

Based upon the claim presented and our decision, we provide the

following brief factual and procedural history obtained from the certified

record.

On February 20, 2008, Marvin Hudson was shot and killed. During the

investigation of the shooting, Detective James Pitts interviewed two

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S.A. §§ 9541-9546. J-S17002-26

eyewitnesses: Karefe Cover and Rahman Isaac. Both identified Spivey as the

shooter. Spivey was arrested and charged with Hudson’s murder.

At Spivey’s preliminary hearing held on March 18, 2009, Isaac testified

that the only reason he identified Spivey as the shooter was because Detective

Pitts assaulted him and coerced him into the identification. The charges were

bound over for trial. Spivey proceeded to trial and was convicted of first-

degree murder, conspiracy to commit first-degree murder, and two counts of

attempt to commit murder. 2 The trial court sentenced Spivey to life

imprisonment without the possibility of parole. Spivey appealed to this Court,

which affirmed his judgment of sentence. See Commonwealth v. Spivey,

55 A.3d 122 (Pa. Super. filed July 2, 2012) (unpublished memorandum). On

December 19, 2012, the Supreme Court of Pennsylvania denied his petition

for allowance of appeal. Commonwealth v. Spivey, 377 EAL 2012 (Pa. filed

Dec. 19, 2012).

On December 13, 2013, Spivey filed a timely counseled PCRA petition.

The PCRA court dismissed his PCRA petition and Spivey appealed. This Court

affirmed in part, reversed in part, and remanded for a hearing on one of

Spivey’s claims. See Commonwealth v. Spivey, 3105 EDA 2015 (Pa. Super.

filed Nov. 1, 2016) (unpublished memorandum). On August 1, 2017, following

a hearing on the remanded claim, the PCRA court granted Spivey’s PCRA

2 18 Pa.C.S.A. §§ 2502(a), 903, 901.

-2- J-S17002-26

petition and ordered a new trial. The Commonwealth did not appeal that

decision.

On January 1, 2018, Spivey, through counsel, filed a motion seeking an

order requiring the Commonwealth to turn over evidence regarding

investigations and lawsuits against Detective James Pitts for assaulting

witnesses into giving false statements, since he participated in interviewing

witnesses in this case. Spivey believed this evidence was Brady3 material and

alleged the Commonwealth was required to provide it to the defense. After a

hearing, the court granted in part and denied in part Spivey’s request.

On April 26, 2019, Spivey pled guilty to a negotiated guilty plea

agreement consisting of a plea to third-degree murder and persons not to

possess firearms.4 The trial court sentenced Spivey that day to the agreed-

upon sentence of eleven to twenty-two years of incarceration for third-degree

murder and a concurrent term of five to ten years of incarceration for persons

not to possess firearms. Spivey did not file an appeal to this Court.

On August 19, 2024, Spivey filed a pro se PCRA petition. The court

appointed counsel, who filed an amended petition arguing the Commonwealth

violated Brady by failing to provide impeachment material regarding

Detective Pitts, who was accused of significant misconduct during his career

3 Brady v. Maryland, 373 U.S. 83 (1963).

4 18 Pa.C.S.A. §§ 2502(c), 6105(a), respectively.

-3- J-S17002-26

as a law enforcement officer, culminating in his conviction in 2024 for perjury

and obstructing administration of law, among other charges.

On July 22, 2025, the PCRA court issued a notice of intent to dismiss

the petition pursuant to Pa.R.Crim.P. 907. Spivey filed a response. The PCRA

court dismissed Spivey’s PCRA petition on August 21, 2025. Spivey filed a

notice of appeal. The court did not order a Rule 1925(b) statement and relied

upon its opinion and order dismissing Spivey’s PCRA petition for the reasons

supporting its decision. See Pa.R.A.P. 1925(a), (b).

Spivey raises three questions for our review, all focusing on whether the

Commonwealth violated the mandates of Brady. See Appellant’s Brief, at viii.

However, before we can address Spivey’s claims, we must first determine if

we have jurisdiction to hear his Brady claims.

A PCRA petition must be filed within one year of the petitioner’s judgment of sentence becoming final. A judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of the time for seeking the review. The timeliness of a PCRA petition is jurisdictional. If a PCRA petition is untimely, a court lacks jurisdiction. Without jurisdiction, we simply do not have the legal authority to address the substantive claims.

Commonwealth v. Reeves, 296 A.3d 1228, 1230-31 (Pa. Super. 2023)

(quotation marks and citations omitted).

A court has jurisdiction to review a facially untimely PCRA petition if the petition alleges, and the petitioner proves[,] one of the following exceptions:

(i) the failure to raise the claim previously was the result of interference by government officials with the

-4- J-S17002-26

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.

Commonwealth v. Mickeals, 335 A.3d 13, 20 (Pa. Super. 2025) (quoting

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii)). Further, a PCRA petition alleging a

timeliness exception must be filed within one year of when the claim could

have been presented. See 42 Pa.C.S.A. § 9545(b)(2).

Finally, we note:

This Court examines PCRA appeals viewed in the light most favorable to the prevailing party. The petitioner bears the burden to prove, by a preponderance of the evidence, that he or she is eligible for PCRA relief. … [Q]uestions regarding the scope of the statutory exceptions to the PCRA’s jurisdictional time-bar raise questions of law; accordingly, our standard of review is de novo. As a general proposition, an appellate court reviews the PCRA court’s findings to see if they are supported by the record and free from legal error.

Mickeals, 335 A.3d at 20 (quotation marks and citations omitted; some

formatting altered).

Spivey recognizes that his PCRA petition is untimely and alleges he met

the newly discovered fact and government interference exceptions to the

PCRA time-bar. See Appellant’s Brief, at 16, 21, 23. Spivey asserts Detective

-5- J-S17002-26

Pitts’ conviction in 2024 is a newly discovered fact of the detective’s “systemic

misconduct.” Id. at 16-17. He further argues “the newly discovered fact here

is not just the underlying misconduct but also the Commonwealth’s long

suppression of impeachment evidence.” Id. at 17. We disagree.

This Court has addressed the newly discovered fact exception as follows:

To invoke the newly-discovered fact time-bar exception the petitioner must establish that (1) the facts upon which the claim was predicated were unknown and (2) they could not have been ascertained by the exercise of due diligence. The facts must be newly-discovered not merely newly-discovered or newly-willing sources that corroborate previously known facts or previously raised claims. Due diligence demands that the petitioner take reasonable steps to protect his own interests; a petitioner must explain why he could not have learned the new facts earlier with the exercise of due diligence.

Mickeals, 335 A.3d at 21 (quotation marks and citations omitted).

In Mickeals, this Court found that a detective’s conviction in an

unrelated case cannot establish a newly discovered fact where the petitioner

had previously known of the detective’s misconduct in his own case. See id.

at 23-24. “The testimony at [the detective’s] trial about his misconduct

towards witnesses and defendants was at best, newly-uncovered information

pertinent to previously known facts. Such new sources of previously known

facts do not satisfy the newly-discovered fact exception.” Id. at 24.

Notably, Spivey “cites no new information in his case.” Commonwealth

v. Reeves, 296 A.3d 1228, 1233 (Pa. Super. 2023) (emphasis omitted).

Spivey knew about the alleged misconduct by Detective Pitts in his case as

early as 2009, when, during his preliminary hearing, a witness recanted his

-6- J-S17002-26

statement and testified he only identified Spivey as the shooter because

Detective Pitts assaulted him. See Motion for the Commonwealth to Produce

Brady Information, 1/17/18, at 4.

Detective Pitts’ conviction is therefore not a newly discovered fact. It is,

at most, a newly-uncovered source that supports a previously known fact.

Spivey has not met the newly discovered fact exception.

Next, Spivey claims he meets the government interference exception

because “the Commonwealth … failed to disclose Detective Pitts’ misconduct,

the records were non-public, and a right to know request was unavailable.”

Appellant’s Brief, at 21-22. Further, Spivey asserts the Commonwealth

claimed it did not possess any Brady material relative to Detective Pitts’

misconduct in response to his pre-plea motion seeking a court order regarding

Detective Pitts’ misconduct history, and that denial compounded the

government interference. See id. at 22-23. We disagree.

To establish a claim of government interference, the petitioner must

prove that “the failure to raise the claim previously was the result of

interference by government officials[.]” 42 Pa.C.S.A. § 9545(b)(1)(i). “[T]he

test is if [the petitioner] was precluded from raising a challenge but for the

-7- J-S17002-26

governmental interference.” Commonwealth v. Johnson, 319 A.3d 35, *4

(Pa. Super. 2024) (unpublished memorandum). 5

Notably, Spivey had previously raised his Brady claim regarding

Detective Pitts’ misconduct. In 2018, after Spivey was granted a new trial and

before he pled guilty, he filed a “Motion for the Commonwealth to Produce

Brady Information.” Within that motion, Spivey discussed Detective Pitts’

history of misconduct, calling him “a thug with a badge.” Motion for the

Commonwealth to Produce Brady Information, 1/17/18, at 5. Spivey

acknowledged that he knew about the lawsuits filed against Detective Pitts

and requested the court to order the Commonwealth to turn over “all Brady

information, including lawsuits, pertaining to beatings of defendants and

witnesses by Detective James Pitts[.]” Id. at 6.

The court held a hearing on Spivey’s motion on February 13, 2018. The

court allowed Spivey’s counsel to explain why he believed he was entitled to

all the lawsuits pertaining to Detective Pitts and what exactly he was

requesting from the Commonwealth. See N.T. Hearing, 2/13/18, at 6-25, 38-

40. The Commonwealth did not deny the existence of the civil lawsuits against

Detective Pitts. The Commonwealth asserted it did not have those lawsuits in

its possession, as they were in the possession of the city solicitor’s office and

5 Unpublished, non-precedential decisions filed after May 1, 2019, may be cited for their persuasive value. See Pa.R.A.P. 126(b). We find Johnson persuasive in the instant matter as it involved a similar claim regarding Detective Pitts’ misconduct.

-8- J-S17002-26

Spivey had the same access to that information as it did. See id. at 26-27.

The Commonwealth further did not deny that an internal affairs investigation

was pending, but they did not have the records regarding that investigation

and, again, Spivey had the same ability to subpoena that information as it did.

See id. at 32.

The court did not make its decision that day. All parties returned to court

on April 26, 2018. Spivey’s counsel conceded that some of the information

requested he would be able to seek through a subpoena, without the

Commonwealth obtaining it for him. See N.T. Hearing, 4/26/18, at 2-3. The

court then ruled upon the motion and ordered some of the requested evidence

must be obtained by the Commonwealth and turned over to Spivey. See id.

at 17-18, 21-22. There is nothing in the record suggesting that the

Commonwealth failed to comply with this order. Spivey pled guilty a year

later, with full knowledge of the misconduct alleged against Detective Pitts,

including the one witness in his case that testified at his preliminary hearing

in 2009 that he only identified Spivey as the shooter because Detective Pitts

assaulted him.

Spivey was therefore never prevented from raising his Brady claims

prior to his re-trial and did, in fact, raise the claims over a year before he pled

guilty. He received some relief on the claims he raised as the court ordered

the Commonwealth to go through certain files involving Detective Pitts and

turn over that information. Spivey had this information prior to pleading guilty.

-9- J-S17002-26

He was also well aware that one of the eyewitnesses who identified him

claimed Detective Pitts coerced him into providing the identification. Despite

this, Spivey made a knowing, voluntary, and intelligent decision to plead guilty

to a negotiated plea deal. Consequently, Spivey failed to establish the

government interference exception.

Because Spivey has not established a timeliness exception to the PCRA

time-bar, neither the PCRA court nor this Court has jurisdiction to hear his

claims. Thus, we affirm the order of the PCRA court.

Order affirmed.

Date: 6/18/2026

- 10 -