Com. v. Holman, A.

J-S31015-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDRE HOLMAN :
:
Appellant : No. 2490 EDA 2021

Appeal from the PCRA Order Entered October 27, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003694-2013

BEFORE: BOWES, J., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.: FILED OCTOBER 06, 2022

Andre Holman appeals from the October 27, 2021 order dismissing his

petition for relief pursuant to the Post-Conviction Relief Act (“PCRA”) as

untimely. We affirm.

The factual and procedural history of this case was well-summarized by

this Court in a prior memorandum, as follows:

This case stems from the murder of taxi cab driver Sebastian
Nunez-Suarez (“Nunez-Suarez”) on the 4900 block of Bingham
Street in Philadelphia, Pennsylvania [on the night of July 16, 2012.
The [following is a summary of the] testimony of Jonathan
Vasquez (“Vasquez”), who participated in the robbery of Nunez-
Suarez[.]

. . . . Vasquez stated that on the night of July 16, 2012, he was
sitting on a friend’s porch when Christopher Conway (“Conway”)
approached him with another person he had never seen before.
[The person accompanying Conway was Appellant.] Vasquez
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* Former Justice specially assigned to the Superior Court.
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testified that he did not consider Conway a friend, but knew him
from the neighborhood, and that Conway told him to put on a shirt
and shoes [and] to come with them. Vasquez testified that he
was told that they were going to rob a taxi driver. He stated that
they went to [Fifth] Street and Luzerne, got inside a taxi cab, with
Appellant sitting directly behind the driver, Vasquez in the
middle[,] and Conway behind the passenger seat. Vasquez
testified that Conway told the driver to go to D and Louden Street,
which is near a park. At some point, the cab stopped, and Vasquez
stated that Appellant said, “[G]ive me your money.” Vasquez
testified that the cab driver pulled out a machete, which he started
swinging, and then Appellant shot the taxi driver.

....

On September 26, 2012, the Homicide Fugitive Unit brought
Appellant into the Homicide Division of the Philadelphia Police
Department. After approximately four and [one-half] hours of
questioning, Appellant signed a written statement in which he
confessed to killing Nunez-Suarez.

Commonwealth v. Holman, 134 A.3d 488 (Pa.Super. 2015) (unpublished

memorandum at 1) (“Holman I”). Appellant was charged with first-degree

murder, robbery, conspiracy, and possessing an instrument of crime (“PIC”).

Prior to trial, Appellant filed a motion to suppress his confession.

Specifically, Appellant averred that his admissions to police were signed under

duress after officers threatened to arrest his then-pregnant girlfriend, Denise

Simmons, for harboring a fugitive. See N.T. Suppression Hearing, 3/4/14, at

5-7; 10. Philadelphia Police Detective John Harkins, who participated in

Appellant’s interrogation, testified that he and his fellow officers did not

threaten Appellant. Id. at 34-35. Ultimately, the trial court denied Appellant’s

motion on its merits. See Order, 3/4/14. As noted above, Appellant’s co-

conspirator, Vasquez, identified Appellant as the shooter at multiple junctures

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during Appellant’s trial. See N.T. Trial II, 3/7/14, at 71-72, 76, 101-09.

Vasquez also provided a statement to detectives implicating Appellant, which

was entered into the record.1 Id. at 87. Finally, the Commonwealth adduced

Appellant’s confession, which was read into the record. Id. at 185-87.

Since it is relevant to our disposition, we note that Appellant was

interviewed by Detective Harkins and then-Detective Ronald Dove. Vasquez’s

police interview was conducted by Detective Harkins and Detective James

Pitts.2 Only Detective Harkins testified at Appellant’s trial. Id. at 160-210.

Prior to trial, it came to light that Mr. Dove had been fired from the Philadelphia

Police Department for reasons not related to this case. The Commonwealth

submitted a motion in limine to preclude mention of Mr. Dove’s termination,

which was granted by the trial court.

Ultimately, a jury found Appellant guilty of the aforementioned crimes.

On March 11, 2014, the trial court sentenced Appellant to life imprisonment

without the possibility of parole (“LWOP”) as to the first-degree murder charge

and concurrent terms of ten to twenty years of incarceration each as to the

robbery and conspiracy convictions. No further penalty was imposed for his

PIC conviction. Appellant filed a timely direct appeal arguing, inter alia, that

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1 Conway did not testify, or provide a statement, at Appellant’s trial.

2 We note that Detective James Pitts’s employment status with the
Philadelphia Police is unclear from the certified record. To avoid confusion,
we refer to him as “Detective Pitts” throughout this writing on second mention.

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his confession had been coerced by the interviewing detectives. On November

12, 2015, this Court affirmed his judgment of sentence and, inter alia, rejected

his arguments concerning suppression. Holman I, supra at 5, 8. Appellant

did not seek allowance of appeal in our Supreme Court.

On December 15, 2015, Appellant filed a timely pro se PCRA petition.

Counsel was appointed and, subsequently, elected to file a no-merit letter

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). The

PCRA court dismissed Appellant’s petition and permitted counsel to withdraw.

This Court affirmed and our Supreme Court denied allowance of appeal. See

Commonwealth v. Holman, 181 A.3d 1283 (Pa.Super. 2017) (unpublished

memorandum at 3), appeal denied, 194 A.3d 558 (Pa. 2018).

On December 14, 2018, Appellant filed a pro se PCRA petition, which is

the subject of the instant appeal. In that petition, Appellant raised allegations

of trial counsel’s ineffectiveness.3 Six months later, privately retained PCRA

counsel entered his appearance. See Entry of Appearance, 5/29/19, at 1.

Thereafter, an amended petition was filed without leave of court. See

Amended PCRA Petition, 2/18/20, at ¶¶ 1-105. In this filing, Appellant alleged

Detective Pitts and Mr. Dove “had a long-standing history, pattern, custom or

practice of unlawfully coercing witnesses and suspects to sign false statements

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3 Appellant has abandoned any claims of ineffectiveness on appeal in this
Court. Consequently, we will not address these issues further in this writing.

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and confessions, . . . that the Commonwealth never disclosed to [Appellant]

or his attorney.” Id. at ¶ 16. Thus, Appellant averred the Commonwealth

had suppressed evidence of this alleged misconduct in violation of Brady v.

Maryland, 373 U.S. 83 (1963).

In support of this claim, Appellant attached an undated affidavit from

Conway attesting that he was coerced into giving a statement inculpating

Appellant by “physical abuse” and threats that criminal charges would be filed

against Conway’s girlfriend. Id. at ¶ 18; see also id. at Exhibit B (describing

abuse and intimidation during interrogation by Detective Pitts and Mr. Dove).

Appellant characterized this affidavit as “newly discovered evidence” for PCRA

timeliness purposes. Id. at ¶¶ 35-37; see also 42 Pa.C.S. § 9545(b)(1)(ii).

Thereafter, Appellant submitted a supplemental PCRA petition that

included a June 3, 2020 affidavit from Vasquez, wherein he recanted his

statements to police and his testimony at Appellant’s trial due to allegations

of coercion.4 See Supplemental PCRA Petition, 8/3/20, at Exhibit A (stating

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4 Appellant did not seek leave of the PCRA court prior to amending and
supplementing his petition. Cf. Pa.R.Crim.P. 905(A); see also
Commonwealth v. Baumhammers, 92 A.3d 708, 730 (Pa. 2014) (“[L]eave
to amend must be sought and obtained, and, hence, amendments are not
‘self-authorizing.’”). Nonetheless, the record reflects that the PCRA court
accepted these amendments and considered them in rendering its ruling. See
PCRA Court Opinion, 3/16/22, at 1. Therefore, we will consider Appellant’s
petition as amended. See Commonwealth v. Boyd, 835 A.2d 812, 816
(Pa.Super. 2003) (“[B]y permitting Appellant to file a supplement, and in
considering the supplement, the PCRA court effectively allowed Appellant to
amend his petition to include those issues presented in the supplement.”).

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Vasquez’s confession was elicited by threatening behavior). Appellant averred

this evidence, also, was newly discovered for timeliness purposes.

The Commonwealth filed a response asserting that Appellant’s petition

was untimely. On April 15, 2021, the PCRA court filed notice of its intent to

dismiss Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907

on the basis of untimeliness. Appellant filed a number of responses largely

reiterating his previous claims and presenting evidence of alleged police

misconduct that took place in unrelated criminal cases. On October 27, 2021,

the PCRA court entered an order dismissing Appellant’s petition. Appellant

filed a timely, pro se appeal.5 The PCRA court did not direct Appellant to file

a concise statement of errors pursuant to Pa.R.A.P. 1925(b), and he did not

file one. The PCRA court submitted a Rule 1925(a) opinion explaining its

reasoning in dismissing Appellant’s serial PCRA petition. See PCRA Court

Opinion, 3/15/22, at 1-12. The case is now ripe for disposition.

Appellant has raised the following issues for our consideration:

1.) Whether the PCRA court erred in denying Appellant’s PCRA
petition as untimely where Appellant’s claims of newly-discovered
facts which was within the timeliness exception under 42 Pa.C.S.
§ 9545[(b)(1)(ii)], gives support to establish a pattern, practice,
____________________________________________

5 PCRA counsel did not withdraw his entry of appearance in the PCRA court
but has not filed anything on Appellant’s behalf since an appeal was taken in
this case. Appellant has not advanced any claims regarding ineffectiveness.
As a second or subsequent PCRA petitioner, Appellant is not entitled to
representation by counsel in pursuing the instant appeal. See
Commonwealth v. Vega, 754 A.2d 714, 719 (Pa.Super. 2000) (“[A]lthough
a first-time PCRA petitioner is entitled to appointment of counsel, there is no
such entitlement on second or subsequent petitions.” (cleaned up)).

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and custom of coercion amongst the detectives involved in
Appellant’s case?

2.) Whether the PCRA court erred in denying Appellant’s [PCRA]
petition as untimely where Appellant showed a clear violation of
Brady by the Commonwealth withholding and inadvertently
suppressing of exculpatory evidence?

3.) Whether the PCRA court erred in denying Appellant’s petition
as untimely and meritless where Appellant’s newly-discovered
evidence of recantation was within the time exception of the plain
language of 42 Pa.C.S. § 9543(a)(2)(vi), and also supported by
the newly discovered facts presented?

4.) Did the PCRA court err in denying Appellant’s PCRA petition
as meritless where Appellant presented a valid claim of a
constitutional violation under [Article I, § 8 of the Pennsylvania
Constitution and the Fourth Amendment to] the United States
Constitution?

Appellant’s brief at vi (cleaned up; issues reordered for ease of disposition).

In the instant matter, “[t]his Court is limited to determining whether the

evidence of record supports the conclusions of the PCRA court and whether

the ruling is free of legal error.” Commonwealth v. Diaz, 183 A.3d 417, 421

(Pa.Super. 2018). However, we must assess the timeliness of this PCRA

petition prior to addressing its merits. See Commonwealth v. Lawson, 90

A.3d 1, 4 (Pa.Super. 2014) (“The timeliness of a PCRA petition is a

jurisdictional threshold and may not be disregarded in order to reach the

merits of the claims raised in a PCRA petition that is untimely.”).

It is well-established that a PCRA petition, including a second or

subsequent petition, must be filed within one year of the date that the

petitioner’s judgment becomes final. See 42 Pa.C.S. § 9545(b)(1). A

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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. § 9545(b)(3).

Appellant’s judgment of sentence became final on December 14, 2015,

when his time to request review in our Supreme Court expired.6 The instant

petition filed on December 14, 2018, was, therefore, untimely by exactly two

years. Notwithstanding such untimeliness, a petitioner can establish the

jurisdiction of the PCRA court by pleading and proving one of the three

exceptions to the time bar. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any PCRA

submission invoking one of these exceptions was required to be filed “within

one year of the date the claim could have been presented.” 42 Pa.C.S.

§ 9545(b)(2). Appellant has invoked the second such exception, which

requires a PCRA petitioner to allege and prove that “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[.]” 42 Pa.C.S. § 9545(b)(1)(ii).

Our Supreme Court has provided the following guidance on assessing

the applicability of this particular statutory provision:

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6 Appellant’s time in which to appeal to our Supreme Court expired on
Saturday, December 12, 2015. Pursuant to 1 Pa.C.S. § 1908, whenever the
“last day” of “any period of time referred to in any statute” falls on a weekend,
“such date shall be omitted from the computation.” Thus, Appellant’s time to
appeal was extended to the following Monday, December 14, 2015.

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[T]he exception set forth in subsection (b)(1)(ii) does not require
any merits analysis of the underlying claim. Rather, “the
exception merely requires that the ‘facts’ upon which such a claim
is predicated must not have been known to appellant, nor could
they have been ascertained by due diligence.” Commonwealth
v. Lambert, 884 A.2d 848, 852 (Pa. 2005). Therefore, our
opinion in Lambert indicated that the plain language of
subsection (b)(1)(ii) is not so narrow as to limit itself to only
claims involving “after-discovered evidence.” Rather, subsection
(b)(1)(ii) has two components, which must be alleged and proved.
Namely, the petitioner must establish that: (1) “the facts upon
which the claim was predicated were unknown,” and (2) “could
not have been ascertained by the exercise of due diligence.” 42
Pa.C.S. § 9545(b)(1)(ii). If the petitioner alleges and proves
these two components, then the PCRA court has jurisdiction over
the claim under this subsection.

Commonwealth v. Bennett, 930 A.2d 1264, 1271–72 (Pa. 2007) (cleaned

up; emphases in original). In this context, “due diligence” means the

petitioner must take reasonable steps to protect his own interests and explain

why he could not have learned the new facts earlier. Commonwealth v.

Hart, 199 A.3d 475, 481 (Pa.Super. 2018).

The newly-discovered facts relied upon by Appellant consists of the

recantations of Vasquez and Conway, “in which both have brought forth claims

of coercion by the detectives involved in questioning them[.]” Appellant’s

brief at ix. Appellant asserts that “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[.]” Appellant’s brief at 4-9. The PCRA court

concluded Appellant did not establish that he acted with the requisite due

diligence. See PCRA Court Opinion, 3/15/22, at 8. We agree.

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Aside from baldly arguing that due diligence could not have led to the

discovery of recantation testimony from Vasquez and Conway, Appellant’s

actual arguments are thin. See Amended PCRA Petition, 2/18/20, at ¶ 81

(“[T]he new facts were discovered after [Appellant’s] trial and could not have

been obtained at or prior to trial through reasonable diligence. Much of this

has become only very recently known to [Appellant] and primarily through

[c]ounsel.”); Response to Commonwealth’s Motion to Dismiss, 2/9/21, at 10

(same). These self-serving averments are insufficient to meet Appellant’s

burden to establish that the information he relies upon could not have been

ascertained sooner by the exercise of due diligence. See Commonwealth v.

Brensinger, 218 A.3d 440, 449 (Pa.Super. 2019) (“The due diligence inquiry

is fact-sensitive and dependent upon the circumstances presented. A

petitioner must explain why he could not have obtained the new fact(s) earlier

with the exercise of due diligence.” (cleaned up)).

As discussed above, the record reveals that Appellant was fully aware

of the abuse allegations against Mr. Dove since he sought suppression of his

statements to police on such a basis prior to trial. To the extent that Appellant

is attempting to relitigate the suppression motion denied during his trial, he

cannot proffer old information via a new source in order to gain the benefit of

§ 9545(b)(1)(ii). See Commonwealth v. Brown, 111 A.3d 171, 176

(Pa.Super. 2015) (“[T]he focus of this exception is on the newly discovered

facts, not on a newly discovered or newly willing source for previously known

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facts.”). Furthermore, Appellant was also aware that Mr. Dove had been

terminated from his employment with the Philadelphia Police Department in

connection with separate misconduct allegations. These events undercut

Appellant’s claims that he was completely unaware of a pattern of abuse

perpetrated by members of the Philadelphia Police Department who were

involved in his case. The PCRA court did not credit Appellant’s allegations on

this basis. See PCRA Court Opinion, 3/15/22, at 8 (concluding the allegedly

“news” adduced by Appellant were already known to him).

Critically, Appellant has also failed to state when he claims to have

learned this allegedly new information. Furthermore, there is no discussion

of what efforts he made to contact Vasquez and Conway in order to obtain

supporting affidavits. Thus, we can only speculate as to what actions

Appellant took during the three years of inactivity prior to the filing of the

instant PCRA petition. Moreover, this lack of explanation and dates have

hamstrung Appellant’s ability to demonstrate compliance with 42 Pa.C.S. §

9545(b)(2) (providing that any timeliness exception must be raised “within

one year of the date the claim could have been presented”). Based on the

foregoing, we find that Appellant has failed to establish that he acted with due

diligence. See Brown, supra at 178 (holding criminal defendant failed to

establish he acted with due diligence where he declined to explain what efforts

he had undertaken between his trial and the filing of his PCRA petition).

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Based on the foregoing, we discern no error of law or abuse of discretion

in the holding of the PCRA court that Appellant’s petition was untimely. Since

we lack jurisdiction over untimely PCRA petitions, we do not reach the merits

of Appellant’s claims for relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/6/2022

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