J-S04012-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LAWRENCE PICKENS :
:
Appellant : No. 694 EDA 2021
Appeal from the PCRA Order Entered April 1, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002510-2016
BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 1, 2022
Appellant, Lawrence Pickens, appeals from the post-conviction court’s
April 1, 2021 order denying, as untimely, his petition filed under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review,
we affirm.
The PCRA court set forth a detailed summary of the facts of Appellant’s
case, which we need not reproduce herein. See PCRA Court Opinion (PCO),
4/1/21, at 2-4 (citation omitted). We only note that Appellant was convicted
of first-degree murder, and related offenses, based on evidence that he shot
and killed Moses McMillan during a street fight involving multiple individuals.
Principal to the Commonwealth’s case was a statement provided by the
mother of Appellant’s child, Ra’Shonda Mack. Mack was present during the
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S04012-22
fight, and she later told investigators that she saw Appellant there with a gun,
and that he had confessed to her that he shot McMillan. See Appellant’s Brief
at 3.
Pertinent to the issues Appellant raises herein, Mack gave her statement
implicating Appellant during an interview conducted by two detectives,
including Philadelphia Police Detective James Pitts. Notably, Detective Pitts
did not testify at Appellant’s trial, and in Mack’s testimony, she recanted the
statement she had provided to the detectives. Specifically, Mack testified that
“she never identified [Appellant] as [the] shooter, or described him as
possessing a weapon, explaining that at the time of her interview, she was
17, under pressure, [and] had detectives all over [her]….” PCO at 8 (citing
N.T. Trial, 4/25/17, at 124). Notwithstanding Mack’s recantation, four other
individuals present at the fight identified Appellant at trial as the shooter.
Based on this evidence, the jury convicted him of first-degree murder,
possessing an instrument of crime, and carrying a firearm without a license.
Appellant was sentenced on April 26, 2017, to an aggregate term of life
imprisonment, without the possibility of parole. He appealed, and this Court
affirmed his judgment of sentence on April 22, 2019. See Commonwealth
v. Pickens, 216 A.3d 407 (Pa. Super. 2019) (unpublished memorandum).
Appellant did not petition for allowance of appeal with our Supreme Court.
Thus, his judgment of sentence became final on May 22, 2019.
On September 8, 2020, Appellant filed a pro se PCRA petition. He
subsequently retained private counsel, who filed an amended petition on his
-2-
J-S04012-22
behalf. Therein, Appellant alleged that he had discovered new evidence that
Detective Pitts had been found to have engaged in a pattern or practice of
coercive interrogation tactics in other cases, namely Commonwealth v.
Thorpe, No. CP-51-CR-0011433-2008 (Phila. Cty. filed Nov. 3, 2017) (PCRA
court’s granting relief after finding that Detective Pitts had engaged in coercive
conduct when interviewing witnesses in that case and other cases). Appellant
further claimed that Detective Pitts’ conduct in the Thorpe case supported
the veracity of a statement that Appellant had obtained (via a private
investigator) from Mack on October 26, 2020. Specifically, during a telephone
call, Mack allegedly told Appellant’s private investigator that Detective Pitts
had been “disrespectful and threatened [her] several times” during her
interview. Amended Petition, 2/4/21, at Exhibit B p. 3 (unnumbered). Mack
elaborated that Detective Pitts had threatened that she would not graduate
high school and that he would take her daughter away from her. Id. Mack
stated that she was only 17 at the time of her interview, and that her parents
were not present. Id. at Exhibit B pg. 4 (unnumbered). She claimed that,
based on Detective Pitts’ threats, she signed the statement implicating
Appellant. Mack explained that the statement she signed was not true, and
that she “testified to that during [Appellant’s] trial.” Id. Appellant’s
investigator stated that he had twice tried to contact Mack for the purpose of
getting her to sign her October 26, 2020 statement, but he was unable to do
so. Id. at Exhibit B pg. 2 (unnumbered).
-3-
J-S04012-22
On March 8, 2021, the PCRA court issued a Pa.R.Crim.P. 907 notice of
its intent to dismiss Appellant’s petition without a hearing. Appellant filed a
response, but on April 1, 2021, the court issued an order dismissing his
petition. Appellant filed a timely notice of appeal. The PCRA court did not
order him to file a Pa.R.A.P. 1925(b) concise statement of errors complained
of on appeal, but it filed a Rule 1925(a) opinion on April 7, 2021. Herein,
Appellant states two issues for our review:
1. Did the PCRA court abuse its discretion in dismissing Appellant’s
claim without an evidentiary hearing where he properly pled and
proved he was entitled to relief based on newly and after-
discovered evidence of Mack’s statement?
2. Did the PCRA court abuse its discretion in dismissing Appellant’s
claim without an evidentiary hearing where he properly pled and
proved he was entitled to relief based on newly and after
discovered evidence of Detective Pitts[’] habit, pattern, and
practice of coercing false statements?
Appellant’s Brief at 2.
This Court’s 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 must begin by addressing the
timeliness of Appellant’s petition, because the PCRA time limitations implicate
our jurisdiction and may not be altered or disregarded in order to address the
merits of a petition. See Commonwealth v. Bennett, 930 A.2d 1264, 1267
(Pa. 2007). Under the PCRA, any petition for post-conviction relief, including
a second or subsequent one, must be filed within one year of the date the
-4-
J-S04012-22
judgment of sentence becomes final, unless one of the following exceptions
set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition alleges
and the petitioner proves that:
(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. § 9545(b)(1)(i)-(iii). Additionally, section 9545(b)(2) required that
any petition attempting to invoke one of these exceptions “be filed within one
year of the date the claim could have been presented.” 42 Pa.C.S. §
9545(b)(2).
Here, Appellant’s judgment of sentence became final on May 22, 2019,
and thus, he had until May 22, 2020, to file a timely petition. Consequently,
his petition filed on September 8, 2020, is facially untimely and, for this Court
to have jurisdiction to review the merits thereof, Appellant must prove that
-5-
J-S04012-22
he meets one of the exceptions to the timeliness requirements set forth in 42
Pa.C.S. § 9545(b).
Instantly, Appellant argues that he meets the after-discovered facts
exception of section 9545(b)(1)(ii) based on Mack’s October 26, 2020
statement to his investigator, and the Thorpe case outlining Detective Pitts’
pattern of coercive interrogation tactics. In rejecting these claims, the PCRA
court first explained why Appellant’s discovery of Mack’s October 26, 2020
statement does not meet the after-discovered facts exception:
[Appellant] contends that Mack’s proposed testimony meets the
exception on the grounds that her recollection, that [Detective]
Pitts’ coerced her into providing a statement, was unknown to him
prior to October 26, 2020, when she provided a statement to
[Appellant’s] private investigator…. This [c]ourt is unconvinced.
As discussed in detail infra, Mack sought to convince the jury that
her statement was a product of coercion at trial, describing how
investigators were “all over [her]” during her interview. Without
analyzing the merits of the instant claim, this statement
constituted a sufficient allegation of coercion to alert [Appellant]
to investigate further. While due diligence does not require that
a petitioner actually uncover the evidence that he seeks, he must
at a minimum attempt to secure the evidence once its existence
becomes known to him. However, [Appellant] makes no
averment detailing the actions he took to secure Mack’s statement
between her testimony on April 25, 2017[,] and when his
investigator [spoke] with her on October 26, 2020. Without more,
[Appellant] cannot demonstrate that he acted with due diligence
in securing this newly[-]discovered fact. Accordingly, the instant
petition is untimely with respect to this claim.
PCO at 6.
The PCRA court next rejected Appellant’s attempt to rely on the Thorpe
case to meet a timeliness exception. Specifically, the court stressed that
Appellant never stated when he became aware of the Thorpe decision
-6-
J-S04012-22
detailing Detective Pitts’ misconduct in that and other cases. Thus, the court
found that Appellant had not demonstrated that he met the one-year
requirement of section 9545(b)(2). See PCO at 6-7.
We discern no error or abuse of discretion in the PCRA court’s decision.
Regarding Mack’s statement, her trial testimony should have prompted
Appellant to further investigate whether her statement had been coerced. To
the extent that Appellant now suggests he had no reason to further investigate
whether Mack’s statement was coerced until Detective Pitts’ misconduct in
other cases was revealed by the Thorpe decision, that case became public
record on November 3, 2017. While we may not presume that public
information can be discovered by an incarcerated, pro se prisoner, see
Commonwealth v. Burton, 158 A.3d 618, 638 (Pa. 2017), Thorpe was
issued just seven months after Mack testified at Appellant’s trial that
detectives had been ‘all over her’ during her interview. At that time, Appellant
was counseled, as his direct appeal was pending, and he remained
represented until his direct appeal concluded on April 22, 2019. Appellant
does not explain why he (or his counsel) could not have discovered Thorpe,
and obtained Mack’s statement detailing Detective Pitts’ purported threats and
coercive conduct during her interview, sooner than October 26, 2020.
Consequently, we discern no error in the court’s dismissing his untimely
petition.
-7-
J-S04012-22
Nevertheless, we would also agree with the PCRA court’s alternative
conclusion that the ‘new evidence’ of Mack’s statement and Detective Pitts’
misconduct in other cases does not warrant a new trial. It is well-settled that,
[t]o be granted a new trial based on the basis of after-
discovered evidence:
[A] [d]efendant must demonstrate that the evidence: (1)
could not have been obtained prior to the conclusion of the
trial by the exercise of reasonable diligence; (2) is not
merely corroborative or cumulative; (3) will not be used
solely to impeach the credibility of a witness; and (4) would
likely result in a different verdict if a new trial were granted.
Commonwealth v. Padillas, 997 A.2d 356, 363 (Pa. Super. 2010) (some
brackets and citations omitted).
Here, the PCRA court concluded that Appellant failed to prove these four
factors. It explained:
Mack’s proposed testimony, even if believed, is unlikely to compel
a different verdict. Four additional witnesses — Michael McMillian
[sic], Yasmene Johnson, Roshaanda Tolbert, and Taleia Travers —
each identified [Appellant] as the shooter…. Their testimony, even
without Mack’s identification, was sufficient to convict [Appellant].
In his [Rule] 907 Response, [Appellant] attempts to counter this
rationale by arguing that each of the above witnesses were
unreliable in their own right and could not sufficiently compel a
guilty verdict. Specifically, [Appellant] alleges that McMillan
misidentified the murder weapon as a .9mm pistol instead of a
revolver and failed to describe [Appellant’s] tattoos, Tolbert
misidentified the murder weapon as black as opposed to silver…,
and Travers had a prior crimen falsi arrest for theft and
conspiracy[,] which potentially influenced her trial testimony.
These inconsistencies were explored at trial, and did not prevent
the jury from reaching a guilty verdict.
Mack recanted her testimony at trial, and her instant allegations
against Detective Pitts merely serve to bolster that recantation.
On direct examination, Mack testified that she never identified
-8-
J-S04012-22
[Appellant] as [the] shooter, or described him as possessing a
weapon, explaining that at the time of her interview she “was 17,
under pressure, [and] had detectives all over me and they said
that.” N.T.[,] 4/25/2017[,] at 124. While her description of the
detectives’ behavior is not as detailed as the one provided to
[Appellant’s] investigator[], it was sufficient to explain her
recantation, and permit the jury to doubt the veracity of her
original identification.
Finally, since Mack recanted her testimony at trial, and described
police officers as “all over her” at the time of her interview, her
testimony should have sufficiently alerted [Appellant] that she
sought to justify her recantation based on an allegation of
misconduct. Had [Appellant] acted diligently in interviewing Mack
after this revelation, he would have secured her statement well
before October 26, 2020. For those reasons, [Appellant] fails
demonstrate that he is entitled to relief based on after[-
]discovered evidence, and his claim fails.
PCO at 8-9 (footnote omitted).
The PCRA court also concluded that Appellant was not entitled to a new
trial to present evidence about Detective Pitts’ misconduct in other cases, as
it “would only be presented to impeach the credibility of Mack’s statement to
police.” Id. at 9. As the court observes, Mack’s recantation testimony at trial
gave the jury ample reason to reject [her] statement and her
recollection of [Appellant’s] confession and his possession of the
firearm. Nonetheless, the jury elected to convict [Appellant] after
considering all of the evidence presented before it, including
evidence from four additional witnesses that identified [Appellant]
as the shooter. [Appellant] fails to present a sufficient argument
demonstrating that, even if [new evidence] could establish
[Detective] Pitts’ pattern and practice [of] obtaining false
statements through coercion, that the outcome of [a new] trial
would be any different.
Id. at 9-10.
For the reasons stated by the PCRA court, we would agree that Appellant
has not demonstrated he is entitled to the relief of a new trial, even if his
-9-
J-S04012-22
petition had met a timeliness exception. Accordingly, we affirm the court’s
order dismissing his petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/1/2022
- 10 -