J-S06037-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES GREEN :
:
Appellant : No. 92 EDA 2020
Appeal from the PCRA Order Entered November 22, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0105281-1998
BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: Filed: March 25, 2021
James Green (Green) appeals from the order entered in the Court of
Common Pleas of Philadelphia County (PCRA court) dismissing without a
hearing his third petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. The Commonwealth asks that this case be
remanded for an evidentiary hearing because, after the PCRA court dismissed
Green’s petition, a document was found in its files that was not disclosed to
Green at the original hearing or in the PCRA proceeding. We vacate the PCRA
court’s order and we remand for an evidentiary hearing. We deny the
Commonwealth’s motion as moot.
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* Retired Senior Judge assigned to the Superior Court.
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I.
A.
This case arises from the December 20, 1996 shooting death of Ronald
Spearman (Spearman). At approximately 5:00 p.m., four men, including
Green and Twain Bryant (Bryant), confronted Spearman and Robert Willis
(Willis) while they walked with Willis’ ten-year-old son on Regent Street in
Philadelphia. Green shot his automatic firearm at Spearman at close range,
striking him in the back of the head and killing him. Before police arrived,
Green had fled the scene.
Almost one year later, on December 5, 1997, Police arrested Green for
Spearman’s homicide. During his interview with detectives, Green admitted
to shooting Spearman but claimed that he acted in self-defense. Green also
maintained that Spearman had threatened him and Bryant with a gun earlier
in the afternoon on the day of the shooting.
At Green’s October 1999 jury trial, Willis testified as a witness for the
Commonwealth and stated that he did not anticipate any violence as he
walked with his son and Spearman up the street towards Spearman’s mother’s
home. (See N.T. Trial, 10/21/99, at 69-72). Willis noticed a few men
standing in the doorway of a house as they walked past, but Spearman did
not acknowledge them. (See id. at 71, 74). Willis heard footsteps approach
them from behind and turned around quickly to face a group of men, including
Green and Bryant, and noticed that Green had already drawn his gun. (See
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id. at 74-76). Bryant asked Spearman: “What was that shit you was saying,”
and told Green to “shoot his ass.” (Id. at 77). Green then shot in the direction
of Spearman and Willis’ son, striking and killing Spearman. (See id. at 78).
The men fled and Willis saw a gun laying on the ground next to Spearman.
(See id. at 80-81). Willis continued past Spearman to check on his son around
the corner. (See id. at 81-82). When he returned to Spearman’s body, the
firearm was gone. (See id. at 81-82, 95-96).
Willis further testified that he was presently incarcerated for an
unrelated 1983 murder and that police uncovered his involvement in that
homicide as a result of their investigation in this case. (See id. at 84-85).
On direct examination, Willis testified regarding his cooperation with the
Commonwealth in connection with Green’s trial:
Q: Any deal been made with you and the District Attorney’s Office
to testify about this?
A: No.
Q: Was there any deals discussed with you at all on the 20th of
December, 1996?
A: No.
Q: Was there anything discussed about your murder case at that
time on that date?
A: No.
(Id. at 85-86).
On cross-examination, defense counsel elicited the following testimony:
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Q: . . . you said you gave a statement about an hour [after the
shooting] to the police, hour and a half, whatever it was, later; is
that correct?
A: Yes.
Q: And you told them the truth, right?
A: No, I didn’t.
Q: You told them the truth, didn’t you?
A: No.
Q: Well, what did you lie about?
A: About who the people─ who the shooters were.
Q: Okay. What, were you protecting them?
A: Yes.
Q: Why?
A: ‘Cause I was afraid of ‘em.
Q: You were afraid of ‘em?
A: Yes.
Q: . . . Why aren’t you afraid of em’ now?
A: ‘Cause I’m in jail, I guess.
Q: Well, you are gonna get out soon, aren’t you?
* * *
A: I don’t know if I am gonna get out.
Q: Well, they offered you a deal. Didn’t they offer you probation
on your murder case?
A: I never heard nothing like that in my life.
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Q: Never offered you a deal?
A: No, they didn’t.
Q: Oh. Your lawyer hasn’t had conversations with the District
Attorney about─
A: My lawyer doesn’t even talk to me at all.
(Id. at 88-89).
Detective James Burke, who interviewed Green following his arrest, read
his statement into the record at trial. (See N.T. Trial, 10/22/99, at 23-24).
Green claimed that on the day of the shooting, at about 12:45 p.m., there
was a prior confrontation during which Spearman threatened him and Bryant
with a gun. (See id. at 31-32). When Spearman walked up the street later
that day with Willis and a young boy, Bryant asked him why he pulled a gun
earlier. (See. id. at 33). According to Green, Spearman “had a gun in his
right hand and he was shooting at [him]” from a distance of eight feet. (Id.
at 33). Green maintained that Spearman fired three shots before he returned
fire with the gun he had retrieved from his aunt’s house at around 4:00 p.m.
that day. (See id. at 33-34). Green averred that he took the gun from where
he typically stored it because he “was scared for [his] life.” (Id. at 34).
Officer William McKenzie testified that the evidence recovered at the
scene of the shooting was fired from three different firearms, and that there
might have been five guns involved in the shooting. (See R239a–R240a,
R246a.). The .380s were fired from one gun, the 9MMs from another, and the
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.22 from a third. (See R.234a–R235a, R237a.). He could not determine the
source of the bullet recovered from the street or from Spearman’s head, but
he believed the latter was fired from a 9MM, .38 special, or a .380. (See
R237a, 240a–R242a, R246a–R247a).
At the conclusion of trial, the jury found Green guilty of first-degree
murder, criminal conspiracy and possession of an instrument of a crime.1 On
May 9, 2000, the trial court sentenced Green to an aggregate term of life
imprisonment. This Court affirmed Green’s judgment of sentence on July 30,
2001, and he did not file a petition for allowance of appeal with our Supreme
Court. Green unsuccessfully litigated a timely first PCRA petition and filed a
second PCRA petition, which he later withdrew.
B.
On February 17, 2016, Green, acting pro se, filed the instant PCRA
petition. Counsel subsequently filed an amended petition. In that petition,
Green maintains the Commonwealth violated Brady v. Maryland, 373 U.S.
83 (1963),2 by failing to disclose that it had entered a plea agreement with
Willis prior to his trial, pursuant to which it exercised leniency towards Willis
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1 18 Pa.C.S. §§ 2502, 903 and 907.
2 The United States Supreme Court held in Brady that the prosecution’s
suppression of evidence favorable to the defendant violates due process of
law if the evidence is material to his guilt or to the punishment imposed. See
Brady, supra at 87.
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in the 1983 murder case3 in exchange for his testimony at the trials of Green
and Bryant.
In support, Green points to Willis’ testimony at Bryant’s April 2001 trial:
Q: At the time you testified [in Green’s case] did you have a deal
with the Commonwealth?
A: I can’t remember if we had a deal then or afterwards.
Q: Did you plead guilty to a charge of murder after the trial of
James Green?
A: I can’t remember. I think it was after. Was it after?
Q: At that time─
A: No. It was before. I think it was before.
Q: At that time you pled guilty, did you agree to testify in the case
of the Commonwealth versus Twain Bryant in exchange for your
leniency on your trial; is that correct?
A: Yes.
* * *
Q: In exchange for your testimony in the case of Commonwealth
versus Twain Bryant, at the preliminary hearing and trial, you
agreed to testify in exchange for your testimony you were
requesting leniency from the court and the Commonwealth; is that
correct?
A: That’s correct.
Q: In a murder trial; am I correct?
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3 Willis was sentenced to a term of eight years’ probation in connection with
his guilty plea in the 1983 murder case on May 21, 2001. (See
Commonwealth’s Brief, at 3).
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A: Yes.
(PCRA Petition, 2/17/16 at Exhibit A, N.T. Bryant Trial, 4/24/01, at 4-5).4
Green explained that he did not file a PCRA petition raising this claim
earlier because he previously lacked evidence of Willis’ agreement with the
Commonwealth and that he only recently obtained a copy of the notes of
testimony from Bryant’s trial. (See Amended PCRA Petition, 1/02/18, at 13-
14). In light of the fact that his PCRA petition was facially untimely,5 Green
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4Bryant was acquitted of the charges against him arising from the Spearman
homicide on April 25, 2001. (See PCRA Court Opinion, 5/19/20, at 2 n.2).
5 A PCRA petition is timely if it is filed within one year of the date the judgment
of sentence becomes final. See 42 Pa.C.S. § 9545(b)(1); see also
Commonwealth v. Albrecht, 994 A.2d 1091, 1094 (Pa. 2010). A judgment
of sentence 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. See 42 Pa.C.S. § 9545(b)(3). Because Green’s judgment of sentence
became final on August 30, 2001, his petition filed on February 17, 2016, was
facially untimely.
A PCRA petition can still be maintained if the petition successfully alleges and
proves one or more of the following:
(i) the failure to raise this claim previously was the result of
interference by government officials with 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
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pled that it could still proceed because his claim fell within both the
governmental interference exception and the newly-discovered fact exception
to the PCRA’s time-bar.
The Commonwealth initially moved to dismiss Green’s PCRA petition.
On October 22, 2019, the PCRA court issued notice of its intent to dismiss the
petition without a hearing. See Pa.R.Crim.P. 907(1). On November 22, 2019,
the PCRA court dismissed Green’s petition as untimely because it did not fall
within either the governmental interference exception or the newly-discovered
fact exception to untimeliness. The PCRA court held that the governmental
interference exception did not apply because Green had not shown due
diligence in discovering this claim because, presumptively, he had access to
the Bryant transcripts in April 2001 while he did not bring his claim until 2017.
It also held that Green could not avail himself of the newly-discovered fact
exception because the undisclosed plea deal would be used to solely impeach
Willis’ credibility.
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of Pennsylvania after the time period provided in this section and
has been held by that court to apply retroactively.
If an exception applies, a petition must be filed within sixty days of the date
the claim could have been presented. See id. at § 9545(b)(2) (sixty-day filing
deadline applicable when Green filed his PCRA petition before it was extended
to one year).
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Green timely appealed. The PCRA court did not order Green to file a
Rule 1925 statement; it filed an opinion on May 19, 2020. See Pa.R.A.P.
1925(a)-(b).
C.
On January 15, 2021, the Commonwealth filed an application with this
Court seeking remand to the PCRA court for an evidentiary hearing.
Precipitating this filing was new defense counsel’s request to review the
Commonwealth’s trial files for Green and Bryant in the Spearman murder case
and in Willis’ unrelated 1983 homicide case. Review of Willis’ file by the
Commonwealth revealed a document potentially evidencing that Willis did
have an agreement for a reduced sentence before he testified at Green’s trial.
The Trial Disposition Sheet reads:
[Willis] was present and a lookout in a murder in 1983. [Willis]
rearrested in 1998. Shooter confessed to murder. [Willis] 17
years old at the time. [Willis] AGREE to testify in two murder trials
as an eyewitness pursuant to a written Memorandum of
Agreement. [Willis] testified truthfully in Twain Bryant and
Eugene (Junior) Green murder cases.
(Homicide Unit Trial Disposition Sheet for Willis, undated; Commonwealth’s
Brief, Appendix X).6 This document indicates that Willis pled guilty to third-
degree murder in the 1983 homicide case. It lists as the reason for the
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6 Green’s nickname was “Junior.” (See N.T. Trial, 10/22/99, at 29).
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deviation from the sentencing guidelines for Willis’ term of probation as “Memo
of Agreement in Two other murder cases-successfully.” (Id.).
In its appellate brief, the Commonwealth renews its request for this
Court to remand Green’s case to the PCRA court for additional fact-finding as
to whether Willis had a cooperation agreement with the Commonwealth in
place at the time he testified at Green’s trial; whether this information was
disclosed to trial counsel; and whether the information was material and any
failure to disclose it prejudicial. (See Commonwealth’s Brief, at 7, 9).7
II.
Before addressing whether we should grant the Commonwealth’s
request, we will consider whether the PCRA court erred in holding that Green’s
petition did not fall within any of the exceptions. Green contends that the
PCRA court erred in finding that he did not establish that he fell within any of
the timeliness exceptions and by not holding an evidentiary hearing because
there is a material issue of fact as to whether Willis was given favorable
treatment in exchange for his testimony at his criminal trial.
Green notes that on November 15, 1999 – less than one month after he
testified against Appellant – Willis entered a negotiated plea with the
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7 The standard of review of an order dismissing a PCRA petition is whether the
court’s determination is supported by the evidence of record and is free of
legal error. See Commonwealth v. Williams, 2021 WL 235988, at *4 (Pa.
Super. filed Jan. 25, 2021).
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Commonwealth on his open murder case in which he pled guilty to third-
degree murder and the Commonwealth agreed to recommend an eight-year
probationary sentence on that charge. (See R415a–R416a.). Green contends
that there was no dispute that the Commonwealth’s recommendation hinged,
at least in part, on Willis’s cooperation against Bryant, whom the
Commonwealth was planning to recharge in connection with Spearman’s
shooting death. The dispute is over whether his testimony against Green was
part of that deal.
We begin by observing that a PCRA petitioner is not automatically
entitled to an evidentiary hearing and we review a PCRA court’s decision
dismissing a petition without a hearing for an abuse of discretion. See
Williams, supra at *4. A PCRA court may decline to hold a hearing if the
petitioner’s claim is patently frivolous and has no support either in the record
or other evidence. See id. A reviewing court must examine the issues raised
in the PCRA petition in light of the record to determine whether the PCRA court
erred in concluding there were no genuine issues of material fact in
controversy and in denying relief without holding an evidentiary hearing. See
id.
Green contends that he fell within the governmental interference and
newly-discovered fact exceptions to timeliness. “[A] properly plead[ed]
Brady claim may fall within the governmental interference exception,”
Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa. 2001), so long as the
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petitioner “plead[s] and prov[e]s the failure to previously raise the claim was
the result of interference by government officials, and the information could
not have been discovered earlier with the exercise of due diligence,”
Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008). A
petitioner satisfies the newly-discovered fact exception through pleading and
proving that there were facts that were unknown to him and that he exercised
due diligence. See Commonwealth v. Bennett, 930 A.2d 1264, 1274 (Pa.
2007).
In this case, the PCRA court relied on the public record presumption8 in
concluding Green failed to file his claim within sixty days of the date he could
have first presented it. (See PCRA Ct. Op., at 6). The court reasoned that
Green had not shown due diligence because he had access to the substance
of Willis’ testimony at Bryant’s trial, as it was immediately available to the
general public and Green was represented by counsel at that time.9 (See id.).
However, on October 1, 2020, five months after the PCRA court filed its
Rule 1925(a) opinion, our Supreme Court decided Commonwealth v. Small,
238 A.3d 1267 (Pa. 2020). In Small, the Court disavowed the public record
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8 This presumption provides that information available to the public is not
“unknown” to a PCRA petitioner who is represented by counsel. See e.g.,
Commonwealth v. Burton, 158 A.3d 618, 624-25, 719 (Pa. 2017).
9 Green points out, unlike the newly-discovered fact exception, the
governmental interference exception does not refer to diligence. Compare
42 Pa.C.S. § 9545(b)(1)(i) with 42 Pa.C.S. § 9545(b)(1)(ii).
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presumption regardless of a petitioner’s pro se status and overruled any
earlier decisions that relied upon and applied that presumption to reject a
petitioner’s claim. See id. at 1286.
In this case, Willis’ testimony was central to the Commonwealth’s case
against Green since Willis provided testimony in direct contradiction to Green’s
claim that he acted in self-defense in shooting Spearman. The PCRA court
dismissed Green’s petition without a hearing based on the public record
presumption that he should have known of Willis’ testimony in 2001. Because
Small did away with the public record presumption, not to mention the
Commonwealth’s belated discovery of information suggesting a plea deal,
remand for an evidentiary hearing is necessary to examine the underlying
material issues of fact as to the timing and extent of Willis’ cooperation with
the Commonwealth in exchange for which he received a probationary sentence
for his 1983 third-degree murder conviction, and to determine whether the
timeliness exceptions at §§ 9545(b)(1)(i) and/or (ii) apply in this case. See
Pa.R.Crim.P. 908(A)(2) (PCRA court shall order hearing to resolve material
issues of fact). The Commonwealth’s motion to remand because of the after-
discovered undisclosed document is denied as moot.
Order vacated. Case remanded for further proceedings consistent with
this Memorandum. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/25/21
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