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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
SHAWN R. HILL :
: No. 3534 EDA 2016
Appellant
Appeal from the PCRA Order September 29, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009017-2012
BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY RANSOM, J.: FILED NOVEMBER 03, 2017
Appellant, Shawn R. Hill, appeals from the order entered September 29,
2016, denying his petition for collateral relief filed under the Post-Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
In April 2014, following a bench trial, Appellant was convicted of murder
in the first degree, two counts of attempted murder, conspiracy, two counts
of aggravated assault, two counts of Possession of a Firearm by Prohibited
Person, Firearms not to be Carried Without a License, Carrying Firearms on a
Public Street in Philadelphia, three counts of Recklessly Endangering Another
Person (“REAP”), and Possession of an Instrument of Crime (“PIC”).1
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118 Pa.C.S. §§ 2502(a), 901, 903, 2702(a), 6105(a)(1), 6106(a)(1), 6108,
2705, 907(a), respectively.
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* Retired Senior Judge assigned to the Superior Court.
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Appellant was subsequently sentenced to life imprisonment for first-
degree murder, followed by consecutive sentences of ten to twenty years for
each count of attempted murder. Appellant was sentenced to ten to twenty
years for conspiracy, four to eight years for Possession of Firearm by a
Prohibited Person, three to six years for Firearms Not to be Carried Without a
License, and six to twelve months for REAP to run concurrently with his
sentence for attempted murder. Appellant timely appealed the judgment of
sentence. He challenged the sufficiency and the weight of the evidence and
asserted that the Commonwealth violated Brady v. Maryland, 373 U.S. 83
(1963). Appellant contended that the Commonwealth violated Brady by
suppressing bullet fragments removed from the victim’s body. See
Appellant’s 1925(b) Statement, 5/28/14. This Court affirmed the judgment
of sentence on direct appeal. Regarding his Brady claim, this Court concluded
that Appellant failed to prove that the Commonwealth suppressed evidence,
or that the purported missing evidence was prejudicial. See Commonwealth
v. Hill, 122 A.3d 1133 (Pa. Super. 2015) (unpublished memorandum), appeal
denied, 128 A.3d 1205 (2015).
On January 5, 2016, Appellant timely filed a PCRA petition, and counsel
was appointed. In his petition, Appellant claimed to have new evidence in
support of his previously raised Brady claim, specifically, a statement from
Albert Einstein Medical Center (“AEMC”), describing the hospital’s policy of
submitting all recovered projectiles to the Philadelphia Police Department.
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In July 2016, counsel submitted a no-merit letter pursuant to
Commonwealth v. Turner, 544 A.2d 927 (1988), and Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). In September 2016, the
PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s
petition without a hearing. On September 29, 2016, Appellant responded to
the court’s Rule 907 notice, raising claims of ineffective assistance of PCRA
counsel.2 See Appellant’s Response to 907 Notice at 2-8. On the same day
Appellant’s 907 response was received, the court issued an opinion and order,
dismissing Appellant’s petition and granting appointed counsel’s petition to
withdraw.
Appellant then filed the instant, timely appeal. The PCRA court did not
direct Appellant’s compliance with Pa.R.A.P. 1925(b).
Appellant timely filed a brief with this Court. In June 2017, Appellant
filed a Request for Permission to File Supplemental Arguments Based on New
Case Law. In July 2017, this Court granted Appellant leave to file a
supplemental brief. Preliminarily, we must address the issues Appellant
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2 Appellant’s response to the Rule 907 notice was docketed on September, 29,
2016. However, Appellant delivered his response to the prison mailroom on
September 19, 2016. See Appellant’s 10/6/16 letter to the trial court.
Therefore, applying the prisoner mailbox rule, Appellant’s response is timely.
See Commonwealth v. Crawford, 17 A.3d 1279, 1281(Pa. Super. 2011),
(“[W]e deem a pro se document filed on the date it is placed in the hands of
prison authorities for mailing.”) (citing Commonwealth v. Patterson, 931
A.2d 710, 714 (Pa. Super. 2007)).
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purports to raise in his supplemental brief. Appellant’s supplemental brief
raises the following claims:
I. Whether PCRA counsel was ineffective for unreasonably
narrowing its investigation to the Commonwealth’s illegal
suppression of vital ballistic evidence without investigation
lead detective (George Pirrone’s) illegal withholding of
evidence from the Commonwealth?
II. Whether trial, appellate and PCRA counsel[‘]s performances
deprived appellant of his right to meaningful review where
counsel allowed the Commonwealth to fraudulently
misrepresent a material fact regarding the Commonwealth’s
possession of Sakima Santos and Chasity Cannon’s medical
records prior to trial?
III. Whether PCRA counsel was deficient in his performance
where he failed to ascertain evidence of detectives (James
Pitts) conviction in a civil judgment/verdict, and (Ronald
Dove’s) guilty plea in a murder cover-up, both of which are
crucial impeachable evidence surrounding Marcella Ingrum
and Rory Hill’s illegal arrests, extensive detention, and
illegally coerced inculpatory [sic] statements used by the
[c]ourt as definitive proof of [A]ppellant’s guilty [sic]?
Appellant’s Supplemental Brief at v.
Appellant did not preserve claims of PCRA counsel’s ineffectiveness in
his original brief to this Court. Further, this Court did not grant Appellant
leave to raise new issues in his supplemental brief. Order, 7/7/17. As such,
these issues are not properly before this Court, and we decline to review
them.3
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3 We note, however, that in his supplemental brief Appellant appears to
conflate the newly discovered fact exception to the PCRA timeliness
requirement with the substantive PCRA claim of after-discovered evidence.
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Turning to those issues properly preserved, Appellant raises the
following issues for our review:
I. Whether the PCRA [c]ourt’s final conclusion was deficient
where it inexplicably quoted nearly verbatim its 1925(a)
opinion issued on direct appeal without establishing
independent evidentiary support for its denial of relief based
on newly-discovered evidence?
II. Whether the PCRA [c]ourt’s adverse conclusion on its on
[sic] court ordered DNA and fingerprint analysis – of which
was stipulated as an undisputed fact - - survives a question
of law where an interjection of personal scientific theories
post-trial circumvented the stipulation and diminished the
materiality of [Appellant’s] Brady claim?
III. Whether the PCRA [c]ourt’s conclusion on [Appellant’s]
Brady claim - - now supported by newly discovered
evidence - survives a question of law where the recent
Dennis[4] decision qualifies the final conclusion reached in
this case as being contrary to, and an unreasonable
application of established Federal and State precedent
governing the constitutionality of illegal suppression of
exculpatory evidence, versus a determination centered
around a sufficiency of evidence evaluation?
Appellant’s Brief at vii.
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Compare 42 Pa.C.S. §9545(b)(1)(ii), with 42 Pa.C.S. §9543(a)(2)(vi); see
also Commonwealth v. Bennet, 930 A.2d 1264, 1270-72 (Pa. 2007)
(comparing the new facts timeliness exception and the after-discovered
evidence claim). In doing so, Appellant relies on Commonwealth v. Burton,
158 A.3d 618 (Pa. 2017). Appellant’s PCRA is timely filed. Accordingly,
Burton is inapposite. Id. at 638 (“Specifically, we hold that the presumption
that information which is of public record cannot be deemed “unknown” for
purposes of subsection 9545(b)(1)(ii) does not apply to pro se prisoner
petitioners.” (emphasis in original)).
4 Dennis v. Secretary, Pa. Dep’t. of Corr., 834 F.3d 263 (3d Cir. 2016).
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The standard of review regarding an order denying a petition under the
PCRA is whether the determination of the PCRA court is supported by the
evidence of record and is free of legal error. Commonwealth v. Ragan, 923
A.2d 1169, 1170 (Pa. 2007). We afford the court’s factual findings deference
unless there is no support for them in the certified record. Commonwealth
v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v.
Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)).
Appellant’s issues all center around an assertion that he has after-
discovered evidence to support his Brady claim. Appellant’s Brief at 9-10.
Essentially, Appellant alleges that the Commonwealth failed to disclose, prior
to trial, that doctors removed bullet fragments from the bodies of two victims.
Id. at 9. According to Appellant, DNA and/or fingerprint evidence could be
extracted from these fragments, providing him with exculpatory evidence. Id.
Appellant asserts that he has discovered new evidence to support this claim.
According to Appellant, he has obtained an affidavit from a private investigator
describing AEMC’s policy requiring all surgeons to submit recovered projectiles
to the Philadelphia Police Department. See Appellant’s Brief at 27, Exhibit C.
Appellant concludes that this new evidence would likely compel a different
verdict in his case.
A petitioner may prevail on an after-discovered evidence claim for relief
if the petitioner proves:
(1) the exculpatory evidence has been discovered after trial and
could not have been obtained at or prior to trial through
reasonable diligence; (2) the evidence is not cumulative; (3) it is
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not being used solely to impeach credibility; and (4) it would likely
compel a different verdict.
Burton, 158 A.3d at 629. (citation omitted).
Here, Appellant’s after-discovered evidence is not exculpatory. Rather,
it is merely a statement of AEMC’s policy, and as such, Appellant could easily
have obtained this policy prior to trial through reasonable diligence. Further,
Appellant’s suggestion that exculpatory evidence could be extracted from
these fragments is equally meritless. This Court has previously recognized
that ballistics evidence involved in this incident was never linked to Appellant.
Hill, 122 A.3d 1133, *3-4. Finally, Appellant’s murder conviction was
premised upon a theory of conspiracy liability. Id. Thus, whether or not
Appellant was “the shooter” or otherwise handled the bullet fragments
extracted from the victims was not determinative of his guilt. To the contrary,
Appellant was convicted based upon multiple eye-witness accounts. Id. For
these reasons, the statement of AEMC policy would not compel a different
verdict, and, therefore, the PCRA court did not err in denying Appellant relief.
Moreover, we agree with the trial court’s observation that Appellant’s
after-discovered evidence claim is an attempt to relitigate his failed Brady
claim. See Trial Court Opinion at 7. This is not permissible under the PCRA.
See Commonwealth v. Jones, 811 A.2d 994, 1000 (Pa. 2002) (“It is well-
settled, however, that a PCRA petitioner cannot obtain review of claims that
were previously litigated by presenting new theories of relief, including
allegations of ineffectiveness.”); see also 42 Pa.C.S. §§ 9543(a)(3), 9544.
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This Court rejected Appellant’s Brady claim on direct appeal:
[A]s no ballistics evidence offered at trial incriminated Appellant,
the missing evidence was not material, because no testing on the
bullets removed from the victims could have exculpated Appellant
or impeached the Commonwealth’s evidence against him. Finally,
as the Commonwealth notes, Appellant was convicted of
conspiracy to commit first-degree murder, and therefore was
responsible for the shootings even if it was his co-conspirator’s
gun that fired the bullets recovered from the bodies of the victims.
Commonwealth v. Hill, 122 A.3d 1133, *5. Accordingly, Appellant’s claim
was addressed on direct appeal and is now precluded from post-conviction
review.
We affirm. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/3/2017
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