Commonwealth v. Ware, 1134 EDA 2021

279 A.3d 1276 (Table)

COMMONWEALTH of Pennsylvania

v.Andre WARE, Appellant

Commonwealth of Pennsylvania

v.Andre Ware, Appellant

No. 1134 EDA 2021

No. 1135 EDA 2021

Superior Court of Pennsylvania.

Filed May 24, 2022

Reargument Denied August 3, 2022

MEMORANDUM BY STABILE, J.:

Appellant, Andre Ware, appeals from the May 10, 2021 orders entered in the Court of Common Pleas of Philadelphia County, denying his petition for collateral relief filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541 - 9546. Appellant contends the PCRA court erred in several respects, including dismissal of various Brady¹ claims, and improperly dismissed his PCRA petition without an evidentiary hearing. Following review, we affirm.

On direct appeal, this Court summarized the underlying facts as follows:

On April 20, 2011, Rahfee Yates ("Yates"), Shalik Fogle ("Fogle"), and [fourteen-year-old B.D. ("B.D.")] were sitting outside of a barbershop located at 1839 South Sixth Street in Philadelphia. Yates and Fogle knew one another, but neither was familiar with [B.D.]. At around 1:45 p.m., two men approached the barbershop wearing hoods and holding guns and began shooting Yates several times at close range. The two men also hit [B.D.] with their gunfire. [B.D.] was close enough to the two men to touch them. While [B.D.] survived his injuries, Yates died from the injuries that he sustained from his gunshot wounds.

Fogle escaped the incident unharmed. When police questioned him immediately after the shooting, he stated that he was unable to identify the two individuals who shot Yates and [B.D.]. However, a few weeks later on April 27, 2011, police arrested Fogle on unrelated drug charges. At that time, Fogle volunteered information about Yates's murder, identifying Ware as one of the individuals who shot Yates and [B.D.]. On April 28, 2011, [B.D.] identified Ware in a photo array.

On June 15, 2011, police were investigating a parked vehicle when they viewed Ware and another individual exit the parked vehicle and throw two handguns into a small passageway. After a physical struggle, police arrested Ware and charged him with the shootings. Police recovered both handguns, but neither of the guns recovered matched the ballistics evidence from Yates's murder.

Ware's jury trial began on March 18, 2013. On March 22, 2013, the jury found Ware guilty of [first-degree murder, conspiracy, possessing instruments of crime, recklessly endangering another person, carrying a firearm without a license, and resisting arrest]. The trial court sentenced Ware to life imprisonment without the possibility of parole. On March 26, 2013, Ware filed a postsentence motion that the trial court denied on April 1, 2013.

Commonwealth v. Ware , 1273 EDA 2013, unpublished memorandum at 1-3 (Pa. Super. filed April 8, 2014) (references to notes of testimony and footnote omitted). Following our April 8, 2014 affirmance of his judgment of sentence, Appellant filed a petition for allowance of appeal with our Supreme Court. The Supreme Court denied his petition on November 18, 2014.

Appellant filed a first, timely PCRA petition on July 17, 2015. The PCRA court dismissed the petition on October 17, 2016; this Court affirmed on November 2, 2017; and our Supreme Court denied his petition for allowance of appeal on June 26, 2018.

Appellant's instant petition was filed on July 24, 2020. Counsel filed corrected and supplemental petitions, details of which will be set forth when Appellant's particular claims are addressed herein. The Commonwealth responded and Appellant replied to the Commonwealth's submissions. At the conclusion of a hearing on March 25, 2021, the PCRA court issued a Rule 907 Notice of its intent to dismiss the petition without a hearing. On April 27, 2021, Appellant filed a supplemental petition and, on May 5, 2021, he filed a response to the Rule 907 Notice. The court conducted an additional hearing on May 6, 2021. On May 10, 2021, the PCRA court entered an Order and Opinion dismissing Appellant's petition. This timely appeal followed.²

Appellant asks this Court to consider eight issues, which we have reordered for ease of discussion as follows:

1. Was Appellant denied a fair trial where the Commonwealth failed to disclose that Detective Philip Nordo, in numerous cases, had sexually assaulted, intimidated, threatened, bribed, and coerced witnesses into giving false statements, in violation of the Fourteenth Amendment[ ] to the United States Constitution and Article I, §§ 1 and 26 of the Pennsylvania Constitution ?

2. Was Appellant denied a fair trial where the Commonwealth suppressed evidence that in a comparable plain view seizure, Officer Angel Ortiz falsified police reports, mishandled evidence, and conspired with another officer to defraud the court by knowingly submitting a materially false affidavit of probable cause, and where counsel was ineffective for failing to uncover and utilize this evidence, in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article 1, §§ 1, 9 and 26 of the Pennsylvania Constitution ?

3. Was Appellant denied a fair trial where the Commonwealth failed to disclose it coached B.D.’s alleged hospital-bed identification of Appellant, including suggesting the perpetrator was in the "top row" of the photo array, in violation of the Fourteenth Amendment to the United States Constitution and Article I, §§ 1 and 26 of the Pennsylvania Constitution ?

4. Was Appellant denied a fair trial where the Commonwealth failed to disclose a witness statement from Tamira Stallworth who told police "she saw the entire shooting" and that the perpetrator wore a "black mask," and further remained silent when Officer John Thomas testified falsely that Stallworth claimed not to have seen the shooting, in violation of the Fourteenth Amendment to the United States Constitution and Article 1, §§ 1 and 26 of the Pennsylvania Constitution ?

5. Was Appellant denied a fair trial where the Commonwealth failed to disclose that Shalik Fogle first identified Andrew Ware, Appellant's brother, and not Appellant, as the perpetrator, in violation of the Fourteenth Amendment to the United States Constitution and Article 1, §§ 1 and 26 of the Pennsylvania Constitution ?

6. Was Appellant denied a fair trial where the Commonwealth failed to disclose that Shalik Fogle was an FBI informant in violation of the Fourteenth Amendment to the United States Constitution and Article 1, §§ 1 and 26 of the Pennsylvania Constitution ?

7. Must the matter be remanded because the lower court erred and abused its discretion in denying a hearing, notwithstanding the Commonwealth agreed to a hearing as to at least one claim, and further erred by failing to give the required notice of intent to dismiss as to [Issues 5 and 6]?

8. Is Appellant entitled to relief because of the cumulative effect of the errors committed at trial?

Appellant's Brief at 1-2.

"On appeal from the denial of PCRA relief, our standard of review is whether the findings of the PCRA court are supported by the record and free of legal error." Commonwealth v. Abu-Jamal , 833 A.2d 719, 723 (Pa. 2003) (citation omitted). "We view the findings of the PCRA court and the evidence of record in a light most favorable to the prevailing party." Commonwealth v. Mason , 130 A.3d 601, 617 (Pa. 2015) (citation omitted).

To prevail on a claim of ineffective assistance of counsel, a petitioner must plead and prove: (1) that the underlying issue is of arguable merit; (2) that counsel had no reasonable strategic basis for the action or inaction; and (3) that counsel's error prejudiced the petitioner, such that the outcome of the underlying proceeding would have been different but for counsel's error. Commonwealth v. Spotz , 84 A.3d 294, 311-12 (Pa. 2014). We presume that counsel was effective, and the petitioner bears the burden of proving otherwise. Id. at 311. A petitioner's failure to prove any of the three prongs is fatal to the petition. Id.

Before considering the merits of Appellant's issues, we first address the timeliness of his petition, recognizing that neither this Court nor the PCRA court has jurisdiction to consider the merits of an untimely PCRA petition. See Commonwealth v. Spotz , 171 A.3d 675, 678 (Pa. 2017). To be timely, a PCRA petition, including a second or subsequent petition, must be filed within one year of the date the judgment of sentence becomes final. See 42 Pa.C.S.A. § 9545(b)(1). As stated above, our Supreme Court denied Appellant's petition for allowance of appeal on direct appeal on November 18, 2014. He did not seek certiorari in the United States Supreme Court. Therefore, his judgment of sentence was final ninety days later, on February 16, 2015. See Trial Court Opinion, 5/10/21, at 5. Consequently, Appellant had until February 16, 2016 to file a timely petition. The instant petition, his second, was filed on July 24, 2020, nearly four and a half years after the time for filing a petition expired. Appellant's petition is facially untimely. Id.

The PCRA court recognized that claims in otherwise untimely PCRA petitions may be considered if the petitioner alleges and proves one of the three exceptions identified in 42 Pa.C.S.A. § 9545(b)(1)(i-iii) —i.e. , governmental interference, a newly-discovered fact, or a new constitutional right—in a petition filed within one year of the time the claim first could have been presented. Here the claims raised in Appellant's first four issues on appeal were asserted in his July 24 and November 4, 2020 petitions. Appellant contends these issues fall under the governmental interference and newly-discovered facts exceptions. The claims raised in his fifth and sixth issues on appeal were asserted in an April 27, 2021 supplemental petition. Plaintiff contends these issues also fall under the governmental interference and newly-discovered fact exceptions.

In its opinion, the PCRA court acknowledged that the Commonwealth voluntarily provided exculpatory...