Com. v. Waring, M.

• Court: Superior Court of Pennsylvania
• Decided: January 13, 2025
• Docket: 3164 EDA 2023
• Status: Unpublished

Opinion

J-S41029-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MACEO EMERSON WARING : : Appellant : No. 3164 EDA 2023

Appeal from the PCRA Order Entered November 15, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000373-2013

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MACEO EMERSON WARING : : Appellant : No. 3165 EDA 2023

Appeal from the PCRA Order Entered November 15, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000379-2013

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MACEO EMERSON WARING : : Appellant : No. 3166 EDA 2023

Appeal from the PCRA Order Entered November 15, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000380-2013

BEFORE: MURRAY, J., KING, J., and SULLIVAN, J. J-S41029-24

MEMORANDUM BY KING, J.: FILED JANUARY 13, 2025

Appellant, Maceo Emerson Waring, appeals pro se from the order

entered in the Philadelphia County Court of Common Pleas, which denied as

untimely his petition filed pursuant to the Post Conviction Relief Act (“PCRA”). 1

We affirm.

The relevant facts and procedural history of this case are as follows. On

December 16, 2014, a jury convicted Appellant of first-degree murder,

carrying a firearm without a license, possessing instruments of crime, and two

counts of aggravated assault of a police officer. That same day, the court

imposed an aggregate sentence of life imprisonment without parole, as well

as two consecutive terms of 10 to 20 years’ imprisonment. This Court affirmed

his judgment of sentence on October 18, 2016, and Appellant did not seek

further direct review. See Commonwealth v. Waring, No. 978 EDA 2015

(Pa.Super. filed Oct. 18, 2016) (unpublished memorandum).

Between 2017 and 2020, Appellant unsuccessfully litigated a first,

timely PCRA petition. See Commonwealth v. Waring, Nos. 1386 EDA 2019,

1387 EDA 2019, 1388 EDA 2019 (Pa.Super. filed Oct. 6, 2020) (unpublished

memorandum). Subsequently, on December 8, 2021, Appellant received a

police misconduct disclosure and accompanying letter from the Philadelphia

District Attorney’s Office, detailing Detective Ronald Dove’s history of

misconduct. Specifically, in 2017, Detective Dove pled guilty to various

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1 42 Pa.C.S.A. §§ 9541-9546.

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charges related to the investigation of a homicide in 2013. Detective Dove

had questioned two witnesses in Appellant’s case.

On November 9, 2022, Appellant filed the instant PCRA petition, arguing

that Detective Dove’s misconduct constituted after-discovered evidence and

evidence of a Brady2 violation. On October 4, 2023, the PCRA court sent

Appellant Pa.R.Crim.P. 907 notice that the petition would be dismissed without

a hearing, as it was untimely. Appellant filed a pro se response on October

19, 2023. On November 15, 2023, the PCRA court formally dismissed

Appellant’s petition.

On November 27, 2023, Appellant timely filed separate notices of appeal

at each underlying criminal docket. The PCRA court did not order Appellant

to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal, and

Appellant did not file one. On July 3, 2024, this Court consolidated Appellant’s

appeals sua sponte.

On appeal, Appellant raises the following issue for our review:

1. Did the PCRA court err in concluding that Appellant’s claims were untimely and did not meet any exception to the PCRA’s time bar?

(Appellant’s Brief at 4).

The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008), cert.

2 Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)

(holding prosecution’s suppression of evidence favorable to accused, when requested, constitutes due process violation).

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denied, 556 U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d 277 (2009).

Pennsylvania law makes clear that no court has jurisdiction to hear an

untimely PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 837

A.2d 1157 (2003). The PCRA requires a petition, including a second or

subsequent petition, to be filed within one year of the date the underlying

judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). “[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 time for seeking the review.” 42 Pa.C.S.A. §

9545(b)(3).

To obtain merits review of a PCRA petition filed more than one year after

the judgment of sentence became final, the petitioner must allege and prove:

(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)(i)-(iii). Additionally, a PCRA petitioner must file his

petition within one year of the date the claim could have been presented. 42

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Pa.C.S.A. § 9545(b)(2).

To meet the “newly-discovered facts” timeliness exception set forth in

Section 9545(b)(1)(ii), a petitioner must 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.” Commonwealth v. Brown, 111

A.3d 171, 176 (Pa.Super. 2015). “Due diligence demands the petitioner to

take reasonable steps to protect [his] own interests. … A petitioner must

explain why [he] could not have learned the new fact earlier with the exercise

of due diligence. This rule is strictly enforced.” Commonwealth v. Shiloh,

170 A.3d 553, 558 (Pa.Super. 2017).

“The proper question with respect to [the government interference]

timeliness exception is whether the government interfered with Appellant’s

ability to present his claim and whether Appellant was duly diligent in seeking

the facts on which his claims are based.” Commonwealth v. Chimenti, 218

A.3d 963, 975 (Pa.Super. 2019), appeal denied, 658 Pa. 538, 229 A.3d 565

(2020) (internal citation omitted). Where a petitioner’s allegation of

governmental interference is based on an alleged Brady violation, “the proper

questions with respect to timeliness in this case are whether the government

interfered with Appellant’s access to the [allegedly withheld evidence], and

whether Appellant was duly diligent in seeking [that evidence].”

Commonwealth v. Stokes, 598 Pa. 574, 581, 959 A.2d 306, 310 (2008).

To obtain relief on a substantive claim of after-discovered evidence

under the PCRA once jurisdiction is established, a petitioner must

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demonstrate: (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. Washington, 592 Pa. 698, 927 A.2d 586 (2007). “To establish a Brady

violation, a defendant must demonstrate that: (1) the evidence was

suppressed by the Commonwealth, either willfully or inadvertently; (2) the

evidence was favorable to the defendant; and (3) the evidence was material,

in that its omission resulted in prejudice to the defendant.” Commonwealth

v. Haskins, 60 A.3d 538, 545 (Pa.Super. 2012).

Instantly, Appellant’s judgment of sentence became final on November

17, 2016, at the expiration of his time to file a petition for allowance of appeal

in the Pennsylvania Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3);

Pa.R.A.P. 1113(a). Appellant had one year from that date to timely file a PCRA

petition. See 42 Pa.C.S.A. § 9545(b)(1). Thus, Appellant’s current PCRA

petition filed on November 9, 2022 is facially untimely.

Appellant now attempts to invoke the governmental interference and

newly-discovered facts exceptions to the PCRA’s time bar. Specifically,

Appellant asserts that Detective Dove’s misconduct included obtaining false

witness statements in criminal investigations. Appellant claims he could not

have learned of Detective Dove’s misconduct prior to his receipt of the

misconduct disclosure. Appellant further insists that the Commonwealth

actively suppressed evidence of Detective Dove’s misconduct. Appellant

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maintains that he was not required to demonstrate in his PCRA petition that

Detective Dove had coerced witnesses in his own case and he should have

been given an evidentiary hearing to develop his claims.

Nevertheless, Appellant has failed to show that he acted with due

diligence in discovering Detective Dove’s misconduct. The exhibits attached

to Appellant’s PCRA petition establish, through publicly available criminal

dockets, that Detective Dove was charged in connection with his misconduct

in 2015 and sentenced in 2017. Notably, Appellant litigated a first PCRA

petition in 2017, and he was represented by counsel throughout those

proceedings in the PCRA court, until he ultimately chose to proceed pro se in

2019 for his appeal following the denial of PCRA relief. Thus, Appellant fails

to explain why he could not have discovered Detective Dove’s misconduct

sooner with the exercise of due diligence. See Brown, supra. See also

Commonwealth v. Keener, No. 1165 WDA 2021 (Pa.Super. filed June 30,

2022) (unpublished memorandum),3 appeal denied, ___ Pa. ___, 288 A.3d

489 (2022) (stating that although there is no longer “public record

presumption” pursuant to which court may find that information available to

public is not fact that was previously “unknown” to petitioner, petitioner is still

obligated to exercise due diligence to discover facts upon which claim is

predicated). Likewise, beyond a bald claim of governmental interference,

Appellant has not articulated a specific claim that the government interfered ____________________________________________

3 See Pa.R.A.P. 126(b) (stating we may rely on unpublished decisions of this

Court filed after May 1, 2019 for their persuasive value).

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with his access to the information regarding Detective Dove. See Stokes,

supra; Chimenti, supra. Consequently, Appellant has not satisfied his

proffered time-bar exceptions.

Moreover, even if Appellant could establish jurisdiction, his claims would

fail on the merits. Recently, in Commonwealth v. Rahman, Nos. 2932 EDA

2022, 2935 EDA 2022, 2937 EDA 2022, 2938 EDA 2022, and 2939 EDA 2022,

2023 WL 8244825 (Pa.Super. filed Nov. 22, 2023) (unpublished

memorandum), this Court rejected an appellant’s claims under Brady based

on police misconduct where the appellant failed to demonstrate that evidence

of police misconduct in “wholly unrelated cases was material to [the

a]ppellant’s case or the PCRA proceedings, such that its omission resulted in

prejudice to [the a]ppellant.” Rahman, supra at *5. See also Haskins,

supra. This Court explained that the appellant likewise “failed to establish a

nexus between his convictions and the misconduct of [the detectives] in other,

unrelated cases.” Rahman, supra at *6. This Court further held that the

appellant’s claims would also be unable to satisfy the after-discovered

evidence test, where the purpose of the misconduct report would be solely to

impeach the detective’s credibility. See id. See also Washington, supra.

Here, despite Appellant’s bald assertions that the witnesses in his case

were coerced to falsely identify him, Appellant makes no specific assertions

regarding the facts in his case, nor has he articulated what evidence he would

present at an evidentiary hearing on remand beyond his generalized

assertions of Detective Dove’s misconduct in other cases. Thus, Appellant

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cannot establish that Detective Dove’s misconduct in “wholly unrelated cases

was material to Appellant’s case or the PCRA proceedings, such that its

omission resulted in prejudice to Appellant.” See Rahman, supra at *5.

Likewise, to the extent Appellant would use Detective Dove’s misconduct

solely for the purposes of impeachment, he is unable to satisfy the after-

discovered evidence test on this basis. See id. Accordingly, we affirm the

order denying PCRA relief.

Order affirmed.

Date: 1/13/2025

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