Commonwealth v. Lopez

249 A.3d 993

COMMONWEALTH of Pennsylvania, Appellee

v.George Ivan LOPEZ, Appellant

No. 787 CAP

Supreme Court of Pennsylvania.

Submitted: December 23, 2020

Decided: April 29, 2021

George Ivan Lopez, for Appellant.

Hugh J. Burns Jr., Esq., Ronald Eisenberg, Esq., Heather F. Gallagher, Esq., Office of the Attorney General of Pennsylvania, for Appellee.

BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

JUSTICE DONOHUE

In this serial capital post-conviction appeal, George Ivan Lopez ("Lopez") challenges the order of the Court of Common Pleas of Lehigh County dismissing as untimely his petition for relief filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541 - 9546 ("PCRA"). In the current PCRA petition, Lopez claims that at his trial, the prosecution had entered into a plea deal with an important witness in exchange for testimony against him that was substantially better than what the prosecutor and the witness told the jury. Lopez requests that this Court vacate the PCRA court's dismissal and remand the case for an evidentiary hearing. We agree with the PCRA court's conclusion that it did not have jurisdiction over this claim. Specifically, we conclude that Lopez failed to demonstrate that the facts upon which the current claim is predicated were previously unknown to him so as to satisfy the newly-discovered evidence timeliness exception in section 9545(b)(1)(ii).

On direct appeal, we described the factual background underlying Lopez's convictions in detail. Commonwealth v. Lopez , 559 Pa. 131, 739 A.2d 485, 489–93 (1999). Relevant to this appeal, Lopez and his associates – Edwin Romero, George Barbosa, and (Lopez's nephew) Miguel Moreno – lured architect and landlord David Bolasky to an upstairs apartment in an Allentown apartment building. After taking Bolasky upstairs, Moreno went to a downstairs apartment and distracted the occupants so they would not hear or interrupt the crimes occurring above them. During that time, Lopez, Romero and Barbosa beat, robbed, and strangled Bolasky to death.

In his opening statement at a joint trial for Lopez and Romero, the prosecutor stated that "in exchange for [providing critical] information, the Commonwealth agreed not to pursue the death penalty against Miguel Moreno. That's a deal with the devil. The prosecutor has lived up to its side of it. We're not pursuing the death penalty against Miguel Moreno." Id . at 39–40. In his subsequent testimony regarding the group's plan to lure, rob and kill Bolasky, Moreno indicated in exchange for testifying against Lopez, the Commonwealth had agreed not to pursue the death penalty against him. N.T., 3/11/1996, at 39. On cross-examination, Moreno testified that he did not have a specific deal with the prosecution:

Q. What's your deal?

A. I ain't got no deal. Just that no death penalty.

Q. Did the District Attorney promise you you would get life imprisonment?

A. Yes.

Q. And that's gonna be your sentence?

A. I figure yes.

N.T., 3/12/1996, at 57.

The jury convicted Lopez and Romero of first-degree murder, 18 Pa.C.S. § 1102, and related offenses. At the penalty phase, the jury found two aggravating circumstances and no mitigating circumstances, and returned a sentence of death for Lopez. On April 17, 1996, the trial court imposed a sentence of death. On July 19, 1996, Moreno pled guilty to third-degree murder and was sentenced to a term of twenty to forty years of incarceration. Commonwealth v. Moreno , No. 1995/2012, at 56–57 (sentencing transcript).

This Court affirmed the judgment of sentence on October 1, 1999, Commonwealth v. Lopez , 559 Pa. 131, 739 A.2d 485 (1999), and the United States Supreme Court denied certiorari on May 30, 2000, Lopez v. Pennsylvania , 530 U.S. 1206, 120 S.Ct. 2203, 147 L.Ed.2d 237 (2000). On August 23, 2000, Lopez filed his first PCRA petition, raising issues not relevant to the present appeal. This Court affirmed the PCRA court's dismissal of that petition in 2004. Commonwealth v. Lopez , 578 Pa. 545, 854 A.2d 465 (2004).

On April 27, 2005, Lopez filed a federal habeas petition (hereinafter, the "Habeas Petition"), raising for the first time a claim regarding the nature of Moreno's plea deal. Lopez asserted that contrary to what the jury had been told, an agreement existed between the Commonwealth and Moreno for Moreno to receive a substantially reduced sentence in exchange for his trial testimony. Lopez's Memorandum of Law in Support of Petition for a Writ of Habeas Corpus, 6/12/2015, at 86. He contended that Moreno "in reality ... received a sentence of 20–40 years" despite that Moreno "testified that he was to receive a life sentence in exchange for his testimony[.]" Id . Lopez argued that the Commonwealth concealed the alleged plea agreement from the defense and thus violated Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Giglio v. United States , 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)¹ by failing to disclose important impeachment evidence. Lopez's Memorandum of Law in Support of Petition for a Writ of Habeas Corpus, 6/12/2015, at 86–87.

Shortly thereafter, on May 9, 2005, Lopez filed his second PCRA petition (hereinafter, the "Second PCRA Petition"), raising, inter alia, a claim substantially identical to the one just asserted in his Habeas Petition, namely that an undisclosed agreement existed between the Commonwealth and Moreno for a substantially reduced sentence in exchange for Moreno's trial testimony. Second PCRA Petition, 5/9/2005, at 116. In support of this claim, Lopez cited to a 2000 evidentiary hearing in connection with co-defendant Romero's PCRA petition. Id . at 117 – 18. At that hearing, Moreno was questioned about his sentence of twenty to forty years of incarceration. Lopez emphasized the following exchange between Moreno and Romero's PCRA counsel:

Q. ... [T]hat [testimony against Lopez and Romero] was in return for the 20 and 40 year sentence that you received; correct?

A. Well, not really.

Q. You didn't have a deal?

A. Yes, I did.

Q. What was the deal?

A. No.

Id . Lopez interpreted Moreno's testimony as indicating that the actual plea deal was a "specific deal" for a "substantial reduction from the life sentence that Moreno testified at trial he believed he would have received." Id . at 118. He went on to argue that the "incredibly lenient nature of this deal" gave "Moreno every incentive to color his testimony at trial in a manner favorable to the prosecution." Id . Again mirroring the allegations in his Habeas Petition, Lopez argued that "[c]ross-examination as to the favorable nature of his deal would have been essential for appropriate impeachment," but that [b]ecause the information was not turned over to the defense ... this powerful impeachment could not be used." Id .

This claim was one of more than twenty ineffective assistance of counsel claims set forth by Lopez in the Second PCRA Petition. Lopez argued that all of these claims resulted from his trial counsel's ongoing disciplinary proceedings, about which he (Lopez) was unaware, and which created a clear conflict of interest, as trial counsel did not prepare or investigate adequately in an attempt both to obtain significant counsel fees before a possible suspension of his law license and to obtain a favorable reference from the local prosecutor's office. Id. at 4–5. The PCRA court dismissed the Second PCRA Petition as untimely and this Court affirmed, ruling that trial counsel's disciplinary records had been publicly available for years, including at the time when his first PCRA petition had been prepared. Commonwealth v. Lopez , 616 Pa. 570, 51 A.3d 195, 197 (2012) (per curiam), overruled by Commonwealth v. Small , ––– Pa. ––––, 238 A.3d 1267 (2020) (in which the Court eradicated the "public records exception" in Commonwealth v. Burton , 638 Pa. 687, 158 A.3d 618 (2017), with respect to facts unknown to the petitioner).

Lopez subsequently filed two additional PCRA petitions, neither of which raised claims regarding the Moreno plea deal. This Court affirmed both dismissals.

Commonwealth v. Lopez , 639 Pa. 427, 161 A.3d 171 (2017) ; Commonwealth v. Lopez , 649 Pa. 427, 196 A.3d 603 (2018).

On November 18, 2019, Lopez filed his fifth PCRA petition (hereinafter, the "Fifth PCRA Petition"). As in his Habeas Petition and Second PCRA Petition, Lopez again asserts that there had been an agreement between the Commonwealth and Moreno for a substantially reduced sentence in exchange for Moreno's testimony. Specifically, Lopez alleged that Moreno "had an [a]greement and deal to testify against [Lopez]" better than the life sentence to which Moreno testified at trial. Fifth PCRA petition, 11/18/2019, at 3. In support, Lopez indicated that he learned in September 2019 that Moreno had testified, in 2003, that there was an agreement for him to testify in exchange for a substantially reduced sentence. Id . at 3, 7–8. He attached to the Fifth PCRA Petition a petition for writ of habeas corpus filed by Moreno in the Eastern District of Pennsylvania on February 28, 2003, in which Moreno had asserted that he "was advised by trial counsel ... that he ... would only receive a total of 8½ to 15 years of imprisonment on all counts of the indictment." Moreno's Federal Habeas Petition, 2/23/2003, at 7. Lopez reiterated that the alleged plea deal was concealed from him, in violation of the principles espoused in Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Giglio v. United States , 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Fifth PCRA Petition, 11/18/2019, at 4. Finally, he claimed that his current PCRA petition, although facially untimely, met the requirements of the newly-discovered facts exception to the one-year PCRA time bar, as he did not learn about Moreno's 2003 habeas petition until 2019 and filed the Fifth PCRA Petition expeditiously thereafter. Id.

The PCRA court issued a notice of intent to dismiss the PCRA petition pursuant to Pennsylvania Rule of...