Commonwealth v. Frey

41 A.3d 605, 2012 Pa. Super. 66, 2012 WL 927033, 2012 Pa. Super. LEXIS 105

• Court: Superior Court of Pennsylvania
• Decided: March 20, 2012
• Docket: 852 MDA 2011
• Status: Published

Opinions

OPINION BY

COLVILLE, J.:

The Commonwealth appeals the order granting Duane Frey’s request for discovery in connection with his petition filed under the Post Conviction Relief Act (“PCRA”). We affirm the order.

Facts

On May 25, 2002, Hopethan Johnson bought a motorcycle. At some point, he left the motorcycle in a garage belonging to a man named Stacey Farmer.

On May 26, 2002, at roughly 10:30 a.m., Johnson left a certain residence in order to meet friends. He did not reach the meeting place.

Also on May 26, 2002, at roughly 11:30 a.m., a neighbor of Stacey Farmer reported to police that she had heard approximately five gunshots in the woods behind Farmer’s home. Upon investigating, police found nothing unusual, but did notice a truck registered to Frey in Farmer’s driveway.

In June 2002, police received an anonymous tip that a murder had happened near Farmer’s residence. During the ensuing investigation, police found shotgun wads in the woods behind Farmer’s house. Also found near Farmer’s home was a garbage bag containing, inter alia, Johnson’s cell phone. Police found shotgun shells in Frey’s house and car. Additionally, police located Johnson’s motorcycle hidden under a pile of items near Frey’s place of employment. Embedded in parts of the motorcycle were shotgun pellets.

Although Johnson’s body had not yet been found, Frey was eventually arrested in connection with Johnson’s death. Frey later admitted to the killing.

There are at least some indications in the record that police also suspected Farmer was connected, directly or indirectly, to Johnson’s death. It appears police charged him with, inter alia, tampering with evidence in connection with the homicide. The allegations against Farmer seem to have included the claim that he had lied to police by giving false or incomplete information in one way or another as to what he knew about Johnson’s demise. It also appears police believed Farmer had helped Frey hide Johnson’s motorcycle.

While Frey was in custody for Johnson’s murder, Farmer was found shot dead in his driveway. At some point, police questioned Frey in connection with Farmer’s death. Frey denied involvement. Although the reasons are not entirely clear to us, it seems that Farmer’s manner of death was not determined to be a homicide until 2010.

There are indications in the record that, prior to the homicides in question, Johnson, Farmer and Frey had all been connected by drug activity. More particularly, it may be that Johnson sold drugs from Farmer’s residence and Frey bought drugs from Johnson.

In 2003, Frey was convicted and sentenced for Johnson’s murder and related charges. This Court affirmed his judgment of sentence. Commonwealth v. Frey, 872 A.2d 1270 (Pa.Super.2005). On December 30, 2005, the Pennsylvania Supreme Court denied his petition for allowance of appeal. Commonwealth v. Frey, 586 Pa. 722, 890 A.2d 1056 (2005). It does not appear that Frey petitioned the U.S. Supreme Court for a writ of certiorari.

Sometime in 2008, certain skeletal remains were found near the Susquehanna River. Also in 2008, the Commonwealth obtained a forensic report relating to the skeleton. Thereafter, apparently in 2010, the Commonwealth secured DNA testing that identified the remains as being those of Johnson.

On or after May 27, 2010, the Commonwealth mailed Frey and his counsel a letter indicating Johnson’s skeletal remains had been discovered. It appears the Commonwealth provided Frey a copy of the 2008 forensic report on or about June 8, 2010.

On or about July 30, 2010, Frey filed for relief under the PCRA.¹ His petition essentially sought a new trial based on after-discovered evidence — specifically, Johnson’s remains and the forensic report relating thereto. Part of Frey’s allegations was that the forensic report indicated Johnson’s death may have occurred between six months and several years prior to the report. Frey essentially contended this new evidence cast doubt on the question of whether Johnson was killed in 2002, as the Commonwealth had maintained during Frey’s trial.

Additionally, Frey alleged that the forensic report contained information indicating there were multiple sizes of shotgun pellets found in Johnson’s skeleton. It was Frey’s position that the information concerning the pellet sizes could reasonably suggest the existence of multiple shooters, thereby casting doubt on the Commonwealth’s theory that Frey had been the only principal killer.

On or about October 29, 2010, Frey supplemented his PCRA petition, alleging that police first determined in 2010 that Farmer’s death was a homicide. Subsequently, in PCRA proceedings convened by the eourt, Frey essentially took the position that Johnson’s killer or an accomplice thereto may have killed Farmer, perhaps because the common killer feared Farmer was going to reveal facts which he knew about Johnson’s death.

In March 2011, Frey filed a motion for discovery. More particularly, he sought discovery of police and ballistic reports, eyewitness statements, photographs, and autopsy reports regarding the death of Stacey Farmer. Frey contended the requested information could demonstrate similarities between the murders of Farmer and Johnson, possibly evidencing a common shooter. Because Frey was incarcerated at the time of Farmer’s death and, therefore, could not have shot Farmer, Frey’s position was that proving a shooter common to both Farmer and Johnson could cast doubt on the Commonwealth’s claim that Frey shot Johnson.²

The PCRA court granted Frey’s discovery request. The Commonwealth later filed this timely appeal.

Jurisdiction: Appealability of Order

The first issue is whether the order before us is appealable. We do not have jurisdiction over non-appealable orders. Commonwealth v. Scarborough, 9 A.3d 206, 210 (Pa.Super.2010). Orders are appealable if they are final, interlocutory and appealable by right or permission, or collateral. Id. For the reasons that follow, we find the order in this case is collateral and, therefore, appealable.

We have discussed collateral orders as follows:

A collateral order is one having all of the following characteristics: (1) it is separable from the main cause of action-that is, it may be addressed without analyzing the ultimate issue in the underlying case; (2) the right in question is too important to be denied review; and (3) the question presented is such that the claim will be irreparably lost if appellate review is postponed until final resolution of the case. With respect to the second of the aforesaid characteristics, it is not enough that the issue at hand be important only to the litigants. Rather, the issue must involve rights deeply embedded in public policy going beyond the specific litigation before the court.

Id. at 211 (internal citations omitted).

We note that discovery issues often may be addressed without analyzing the underlying ultimate issue in a criminal case. Id. at 213.

The order at hand is a discovery order. Moreover, this particular discovery order is, in fact, separable from the main cause of action. That is, the question of whether Frey is entitled, under the PCRA, to discovery of the Farmer investigative documents can be addressed without analyzing the ultimate issue of whether Frey is entitled to a new trial under the PCRA.

Also, the question of whether the Commonwealth must disclose the requested materials relating to the Farmer investigation is too important to be denied review at this juncture. The question is crucial to the parties in this particular case because it appears Frey’s substantive PCRA claims that he was wrongly convicted of shooting Johnson may be affected greatly by information in the Farmer file. Moreover, we are satisfied the issue of whether the Commonwealth must disclose material related to an ongoing murder investigation implicates rights deeply embedded in public policies. Those policy concerns touch upon the public’s interest in effective investigation of crimes while seeing that claims of wrongful convictions, such as in this case, are adjudicated fairly.

Additionally, if appellate review is postponed, the Commonwealth will need to disclose the material now. Any later ruling that the discovery was wrongly ordered, if there would be such a ruling, would not repair the loss of the Commonwealth’s interest against disclosure.

In light of our foregoing discussion, we find the order before us meets the criteria of a collateral order. Accordingly, the order is properly appealable.

Jurisdiction: Timeliness of PCRA Petition

The next issue is whether Frey’s PCRA petition was timely. The PCRA court simply had no jurisdiction over his petition if it was late. Commonwealth v. Wrecks, 931 A.2d 717, 720 (Pa.Super.2007). Of course, the discovery order does not itself grant substantive PCRA relief. Nevertheless, that order arises because of the court’s exercise of jurisdiction over Frey’s PCRA petition. See 42 Pa.C.S.A. § 9545(d)(2); Pa.R.Crim.P. 902(E)(1). Thus, if Frey’s petition was untimely, the PCRA court lacked jurisdiction to issue the discovery order in question.

For PCRA purposes, a judgment of sentence becomes final at the end of direct review, including discretionary review in the Pennsylvania Court and the U.S. Supreme Court, or at the expiration of the time limit for seeking that review. 42 Pa.C.S.A. § 9545(b)(3). After the Pennsylvania Supreme Court denies a petition for allowance of appeal, the petitioner has ninety days to seek discretionary review by the U.S. Supreme Court. U.S.Sup. Ct.R. 13.

Once a petitioner’s judgment of sentence becomes final, the petitioner has only one year in which to file a PCRA petition unless the petitioner pleads and proves a statutory exception to the normal one-year filing deadline. 42 Pa.C.S.A. § 9545(b)(1). One such exception arises where the petitioner’s underlying PCRA claim is based on previously unknown facts that could not have been obtained earlier through the exercise of due diligence. Id. § 9545(b)(1)(h). This statutory exception, like any exception under Section 9545(b)(1), must be invoked within sixty days of when it first could have been raised. 42 Pa.C.S.A. § 9545(b)(2).

Frey’s judgment of sentence became final in 2006, after his deadline passed for petitioning the U.S. Supreme Court for a writ of certiorari. His instant PCRA petition, having been filed more than one year after the finality of his judgment, was facially late. However, for the following reasons, we are satisfied that Frey successfully invoked a time-of-filing exception under 42 Pa.C.S.A. § 9545(b)(1)(h), (2).

Frey’s claim for substantive relief is based on the Commonwealth’s forensic report and Johnson’s skeletal remains. He has pled and demonstrated that those facts were previously unknown to him and could not have been earlier ascertained by the exercise of due diligence. Although the Commonwealth apparently secured the remains and a forensic report in 2008, the Commonwealth did not advise Frey about the discovery of the remains until late May 2010, and did not provide him with the forensic report until June 2010. Frey filed his PCRA petition within sixty days of receiving the Commonwealth’s report. We are satisfied his petition was therefore timely.³

Before leaving this issue, however, we point out the following. To the limited extent that the Commonwealth attempts to argue the petition was late, the Commonwealth wrongly focuses on the merits of Frey’s underlying after-discovered evidence claim. An after-discovered evidence claim and the timeliness exception based on previously unknown facts are distinct. Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264, 1270-72 (2007). The issues are analyzed differently. Id. Thus, the relative merit of Frey’s underlying PCRA claim is not the issue when determining whether his PCRA petition was timely. Rather, the question of whether he met the time-of-filing exception is evaluated pursuant to the statutory requirements of 42 Pa.C.S.A. § 9545(b)(l)(ii), (2). As we have explained, Frey satisfied those requirements in the PCRA court.

Discovery Order: Abuse of Discretion?

The Commonwealth argues the PCRA court abused its discretion by ordering discovery. More specifically, the Commonwealth contends the court erred in finding exceptional circumstances warranting its order. For the following reasons, the Commonwealth’s position fails.

In PCRA proceedings, discovery is only permitted upon leave of court after a showing of exceptional circumstances. 42 Pa.C.S.A. § 9545(d)(2); Pa.R.Crim.P. 902(E)(1). The PCRA and the criminal rules do not define the term “exceptional circumstances.” Rather, it is for the trial court, in its discretion, to determine whether a case is exceptional and discovery is therefore warranted. Commonwealth v. Dickerson, 900 A.2d 407, 412 (Pa.Super.2006).

We will not disturb a court’s determination regarding the existence of exceptional circumstances unless the court abused its discretion. Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585, 591 (2000). An abuse of discretion is not a mere error in judgment. Commonwealth v. Riley, 19 A.3d 1146, 1149 (Pa.Super.2011). Instead, it is a decision based on bias, ill will, partiality, prejudice, manifest unreasonableness, or misapplication of law. Id. Moreover, we recall that the appellant has the duty to convince us an abuse occurred. Commonwealth v. Bennett, 19 A.3d 541, 543 (Pa.Super.2011).

Here, Frey’s 2003 conviction followed the somewhat uncommon situation, though not an altogether unique one, where a murder trial was held when the decedent’s body had not yet been found. Years later, when that body was discovered, the Commonwealth’s own report revealed forensic evidence that could arguably suggest multiple persons were involved in the shooting death. The Commonwealth does not maintain that the existence of multiple shooters was part of its initial prosecution theory or that such a theory was supported by discovery materials to which Frey had access during his trial. The forensic report at issue here did not exist until 2008, after the remains were discovered; the report was not given to Frey until 2010.

With the backdrop of these somewhat unusual facts, the record before us indicates Frey, Johnson and Farmer were involved together in nefarious activities, most likely drug-related, that may well have been connected to both Johnson’s and Farmer’s homicides. Police arrested Frey for killing Johnson. Police suspected Farmer was directly or indirectly involved in Johnson’s death. The Johnson and Farmer homicides occurred close in time and at very nearly the same location. Police testimony offered during a hearing related to Frey’s PCRA discovery request revealed that some of the same witnesses questioned in connection with Johnson’s death were also questioned with respect to Farmer’s demise. All of these facts, taken together, reasonably support the belief that the two homicides may well have been connected.

We understand that the Commonwealth offered PCRA testimony from a police officer who opined that the two homicides were unrelated. However, the PCRA court was not obligated to accept that testimony and, in fact, disagreed with it. More particularly, the court specifically concluded, “it is certainly possible that an unknown accomplice to the Johnson murder subsequently killed Farmer based upon the belief that Farmer was going to cooperate with the police in the Johnson investigation.” PCRA Court Opinion, 06/30/11, at 3. Based on the multitude of facts before it, the court determined “the facts of both homicides indicate that they may have been related, and that an unknown third party may have been involved in both.” Id. at 4. These conclusions by the court are supported by the facts of record we have already discussed.

Even still, the Commonwealth points out that the PCRA court expressed some skepticism about whether the various theories underlying Frey’s PCRA petition {e.g., that some unknown person who killed Farmer might have been the person, or one of the persons, who killed Johnson) will ultimately prove to be true. Nevertheless, the court’s expression of skepticism was accompanied by the court’s rational analysis and conclusion that it was “certainly possible” that an unknown person who was involved in the Johnson murder later killed Farmer. Id. This possibility, in the context of • the somewhat uncommon ease facts discussed supra, led the court to conclude that this matter was an exceptional one.

Of course, mere speculation that exculpatory evidence might exist does not constitute an exceptional circumstance warranting discovery. Dickerson, 900 A.2d at 412. The PCRA court recognized this legal principle. PCRA Court Opinion, 06/30/11, at 3. However, once again, the court reasoned that the facts in this case suggested a particular link—ie., a common killer or an accomplice thereto—between the two homicides. It is not manifestly unreasonable to conclude that witness statements and/or other evidence contained in the Farmer investigative file would thus be relevant to the facts of the Johnson murder.

The Commonwealth, nonetheless, characterizes Frey’s discovery request as a “fishing expedition.” Appellant’s Brief at 16. This characterization is unjustified. The fact that Frey does not know for certain what the Farmer investigation file contains does not mean he is improperly “fishing.” Parties frequently do not know with certainty the contents of requested materials. Indeed, this lack of knowledge is often the main reason, though not the only possible reason, that discovery requests are made in criminal cases.

Frey made particular requests for specific documents relating to the investigation of Farmer’s death based on the reasonable theory that those documents may well contain evidence tending to show a killer common to Farmer and Johnson. Moreover, facts of record do show a link between the cases and do reasonably support the belief that the Farmer investigative documents may contain the kind of evidence Frey seeks. Moreover, evidence of a common killer may arguably support one or more of Frey’s PCRA theories. Thus, this ease does not involve a baseless or speculative request properly described as a “fishing expedition.”

We note also that the Commonwealth again spends effort attempting to show that Frey does not deserve relief on his underlying after-discovered evidence claim. While we understand it is important to recognize the substance and contours of the underlying claim when considering the propriety of a discovery request, the question before us is not whether Frey is entitled to substantive relief. Instead, the question on this appeal is whether the PCRA court abused its discretion when deciding to order discovery.

In summary, the record and the PCRA court’s opinion demonstrate the court considered the appropriate law, evaluated the facts, and determined that this case involves exceptional circumstances — namely, the somewhat unusual case history, the reasonable possibility of a common killer and the reasonable belief that the Farmer investigative documents may reveal evidence supporting one or more of Frey’s PCRA theories. In light of these exceptional circumstances, the court ordered discovery of the Farmer documents. The Commonwealth simply has not established that bias, partiality, prejudice, or ill will guided the PCRA court’s determination that this case is exceptional and that discovery is in order. Similarly, the Commonwealth has not persuaded us the court’s ruling was manifestly unreasonable or was a misapplication of the law. Consequently, we are not convinced the court abused its discretion. As such, the Commonwealth has not shown it is entitled to relief.

Finally, the Commonwealth contends that releasing information regarding the Farmer homicide would be detrimental to the ongoing investigation in that case. Indeed, this contention is part of what led us to conclude the order on appeal had sufficient public importance so as to render the order collateral and appealable. In its brief, the Commonwealth sets forth some legal principles relating to discovery. In terms of factual analysis, however, the Commonwealth merely points to the opinion offered by an investigating detective that the two subject homicides were unrelated and that releasing information would be a detriment to the Farmer investigation. That opinion consisted of a cursory statement with little, if any, supporting facts other than the officer’s assertion that search warrants on the Farmer case had been sealed.

In short, the Commonwealth’s brief presents no developed factual discussion as to how detriment might result. We fully understand that, if revealing facts would be harmful, the Commonwealth might find it difficult to offer details or, at least, difficult to offer any significant amount thereof. However, the Commonwealth does not offer even a general explanation other than urging us to accept the detective’s unsupported opinion, an opinion rejected by the PCRA court.

It would be improper for this Court to act as counsel for a party. Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa.Super.2007). That is, we must not write a party’s brief and develop the analysis necessary to support the party’s position. Id. There might well be arguments in support of the Commonwealth’s theory that would warrant a vacation or reversal of the PCRA court’s order, but it would be inappropriate for us to craft them, regardless of how important the Commonwealth’s issue might be.

Based on our foregoing discussion, the Commonwealth has not demonstrated that it is entitled to relief. As such, we affirm the PCRA court’s order.

Order affirmed.

Judge BOWES files a Dissenting Opinion.

1 . This PCRA request was Frey’s second. His first PCRA petition, filed in 2006, was denied. This Court was affirmed the denial. Commonwealth v. Frey, 998 A.2d 1024 (Pa.Super.2010). The Pennsylvania Supreme Court then denied Frey’s petition for allowance of appeal. Commonwealth v. Frey, 608 Pa. 616, 8 A.3d 341 (2010).

2 . Frey's PCRA allegations were somewhat fluid and were not phrased with absolute thoroughness or clarity. Even still, it seems evident that, underlying his position were these notions: if the person who shot Farmer also shot Johnson, that person could not have been Frey because Frey was incarcerated when Farmer was shot. Alternatively, if multiple people, perhaps two, were involved in shooting Johnson, and if Farmer was one of the two, and if the other was common to both shootings, then that remaining person was, again, not Frey because he was in custody when Farmer was shot.

3 . We realize the Commonwealth maintains Frey killed Johnson and knew where his remains were. Frey’s position is that he was wrongly convicted and that he did not know the location of the remains. Of course, even if Frey did kill Johnson, that guilt does not necessarily mean he knew where the remains were ultimately deposited because, as the record suggests, multiple persons may have been involved in Johnson's death. In any event, were we to follow the Commonwealth's argument, we would effectively deny Frey the right to invoke the statutory exception at issue merely because he was convicted of the killing. The PCRA was plainly not designed to deny convicted persons the right to invoke it or its various sections.