Com. v. Harvey, A.



                                               :        PENNSYLVANIA
                v.                             :
    ANDRE HARVEY                               :
                       Appellant               :   No. 1473 EDA 2019

              Appeal from the PCRA Order Entered April 15, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0703051-1983


MEMORANDUM BY DUBOW, J.:                              FILED OCTOBER 28, 2020

        Appellant, Andre Harvey, appeals from the April 15, 2019 Order that

dismissed as untimely his fifth Petition filed pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.          Because Appellant fails to

plead and prove an exception to the PCRA time-bar, we affirm the PCRA court’s



        A previous panel of this Court summarized the underlying facts as


        Appellant, Russell Williams, and Howard White shot and killed Fred
        Rainey on October 27, 1982. The victim suffered four gunshot
        wounds. Four eyewitnesses testified to the events, two of whom
        identified Appellant, including Charles Atwell. Mr. Atwell also
        testified that Appellant and Williams attempted to shoot him two
        weeks after the incident. Mr. Atwell's involvement has been

*   Former Justice specially assigned to the Superior Court.

     the subject of Appellant's direct appeal, and all of his PCRA

     Mr. Atwell was arrested and charged with aggravated assault on
     an unrelated matter on May 17, 1983. The prosecuting
     attorney on that matter was Assistant District Attorney
     John Flannery [(“ADA Flannery”)], who also testified at
     Appellant's trial, and signed a criminal complaint for
     Appellant in this matter.

     While in custody, Mr. Atwell provided a statement that identified
     Appellant and his co-defendants as the shooters. Ultimately, the
     charges against Mr. Atwell were nolle prossed on December 12,
     1983, before Appellant's trial.

     [Appellant and his two] co-defendants proceeded to a jury trial on
     March 28, 1984. The court declared a mistrial after Mr. Atwell
     indicated that the men were drug dealers. A second trial began on
     April 23, 1984. The evidence established that the three men drove
     to the corner of 27th and Oxford Street, Philadelphia, in a blue
     Gremlin, argued with the victim, and shot the victim.

Commonwealth v. Harvey, No. 2217 EDA 2013, unpublished memorandum

at *1 (Pa. Super. filed Sept. 12, 2014) (paragraph breaks and emphasis


     On May 8, 1984, a jury found Appellant guilty of Murder of the First

Degree and related charges. On February 3, 1987, after denying Post-Verdict

Motions, the court sentenced Appellant to an aggregate sentence of life

imprisonment without the possibility of parole.

     On August 31, 1987, this Court affirmed Appellant’s Judgment of

Sentence, and our Supreme Court denied allowance of appeal on September

12, 1990. See Commonwealth v. Harvey, 

534 A.2d 130

(Pa. Super. 1987),

appeal denied, 

584 A.2d 313

(Pa. 1990). Appellant did not seek further review

of his Judgment of Sentence, which, thus, became final on December 11,


1990. See 42 Pa.C.S. § 9545(b)(3); U.S.Sup.Ct.R. 13 (petition for writ of

certiorari must be filed within 90 days of final judgment).

      Prior PCRA Petitions

      Appellant subsequently filed four PCRA Petitions, none of which

garnered relief. Relevant here, Appellant asserted in his second PCRA Petition

that the Commonwealth arranged for Mr. Atwell to have conjugal visits with

his girlfriend in exchange for false testimony against Appellant.       After an

evidentiary   hearing,   the   PCRA   court   dismissed   the   Petition.   See

Commonwealth v. Harvey, 

760 A.2d 427

(Pa. Super. 2000), appeal denied,

764 A.2d 49

(Pa. 2000).

      In Appellant’s fourth PCRA Petition, filed pro se on June 13, 2011, and

amended by counsel on March 2, 2012, Appellant claimed that he learned in

April 2011 that ADA Flannery, who prosecuted Mr. Atwell’s case, was the

affiant on the criminal Complaint filed against Appellant on June 7, 1983.

According to Appellant, this “newly discovered” fact indicated that ADA

Flannery perjured himself at Appellant’s trial when ADA Flannery testified that

(1) the Commonwealth did not give Mr. Atwell special consideration for his

testimony against Appellant; and (2) he had no other contact with Mr. Atwell’s

case other than representing the Commonwealth at the final listing when Mr.

Atwell’s case was nolle prossed. Amended PCRA Petition, 3/2/12, at ¶¶ 12,

13. The PCRA Court filed a Pa.R.Crim.P. 907 Notice and dismissed the Petition

after consideration of Appellant’s response, concluding that because Mr.

Atwell’s criminal Complaint had been in the public record since June 1983,


Appellant failed to plead and prove a permitted exception to the PCRA time-

bar. See Commonwealth v. Harvey, 

107 A.3d 224

(Pa. Super. 2014),

appeal denied, 

109 A.3d 678

(Pa. 2015).

       Fifth PCRA Petition

       On October 26, 2015, Appellant filed the instant pro se PCRA Petition,

once again seeking collateral relief because ADA Flannery signed Mr. Atwell’s

criminal complaint. PCRA Pet., 10/26/15, at ¶ 2, 14. Appellant averred that

the PCRA court had jurisdiction to entertain his untimely Petition based on a

newly decided Pennsylvania Superior Court Case, Commonwealth v.


121 A.3d 1063

(Pa. Super. 2015) (en banc),1 which held that pro se

prisoners filing an untimely PCRA petition cannot be presumed to have access

to information in the public domain.

Id. Appellant averred that

the PCRA

court erred in dismissing his fourth PCRA Petition due to this “change in the


Id. On October 18,

2016, the PCRA court filed a Rule 907 Notice to Dismiss

Appellant’s Petition without a hearing. On November 7, 2016, Appellant filed

a counseled Response and, after the court granted several extensions for

further investigation, Appellant filed a counseled Amended PCRA Petition on

February 9, 2017, and a Supplemental PCRA Petition on August 7, 2017.

       Amended Petition

1Our Supreme Court later affirmed this case.       See Commonwealth v.

158 A.3d 618

(Pa. 2017).


       In the Amended Petition, Appellant averred that additional witnesses

came forward to support the claim that Appellant had pleaded in his second

PCRA Petition, i.e., that Mr. Atwell received conjugal visits while in custody in

exchange for false testimony against Appellant.       Amended PCRA Petition,

2/9/17, at 12-13. In support, Appellant attached statements from Emanuel

Claitt and Robert Mickens, each declaring that, in exchange for conjugal visits

during their incarcerations, they testified falsely against an unrelated

defendant in an unrelated 1985 murder trial.2

Id. at

Exhibits A, B.

       Appellant also attached a signed statement from Craig Jackson stating

that, around the time of Appellant’s trial, Mr. Atwell told him that Detective

Gerrard gave Mr. Atwell a deal and allowed him to see his girlfriend twice a


Id. at

Exhibit D. Mr. Jackson also asserted that he had overheard a

conversation between his friend, Marlon Banks, and Appellant’s trial counsel,

Barry Denker, Esq., where Attorney Denker told Mr. Banks he had a conflict

of interest in representing Appellant.

Id. Supplemental Petition In

the Supplemental Petition, Appellant averred additional information

to support the claim he had raised in his fourth PCRA Petition, i.e., that ADA


2 Mr. Claitt stated that ADA Barbara Christie and Detectives Gerrard and
Gilbert—the same Detectives in Appellant’s case—arranged for him to have
conjugal visits with his four girlfriends while Mr. Mickens stated that ADA
Christie, Detective Cimino, and Detective McNeshy arranged for him to have
conjugal visits with his girlfriend at the time. Amended PCRA Petition, 2/9/17,
at Exhibits A, B.


Flannery had committed perjury at Appellant’s trial.      In support, Appellant

attached signed statements from Appellant’s childhood friend James Mitchell.

Mr. Mitchell, who was Mr. Atwell’s victim and the complaining witness,

asserted in his signed statement that he had made a deal with Mr. Atwell’s

family not to testify against Mr. Atwell in exchange for Mr. Atwell not testifying

against Appellant. See Supplemental Petition, 8/7/17, Exhibit E. (stating:

“[Mr. Atwell] was supposed to get off and [Appellant] was supposed to get off,

but that is not what happened.”). Mr. Mitchell also averred that an ADA and

Mr. Atwell’s attorney advised Mr. Mitchell to sign an affidavit recanting his

preliminary hearing testimony.

Id. Evidentiary Hearing On

April 15, 2019, the PCRA court held an evidentiary hearing at which

Mr. Mitchell testified for Appellant. The Commonwealth presented testimony

from Robert Jovanov, Esq., an attorney with the Defender Association of

Philadelphia, and John Flannery, Esq., former ADA in the Philadelphia District

Attorney’s Office.

      In sum, Mr. Mitchell testified that Mr. Atwell shot him in 1983, but Mr.

Atwell’s family members told him that if he would withdraw the charges

against Mr. Atwell, Mr. Atwell would refuse to testify as a witness against

Appellant.   Mr. Mitchell further testified that (1) his own family members

wanted him to drop the charges out of fear of retaliation; (2) he informed an

ADA that he wanted to drop the charges; (3) an ADA and Mr. Atwell’s attorney

told him to sign an affidavit; (4) he signed an affidavit but did not remember


who prepared it; and (5) he could not remember the name of the ADA.         N.T.

Hearing, 4/15/19, at 7-53.

      Attorney Jovanov testified that he has been an attorney with the

Defender Association of Philadelphia since 1974. He confirmed that his name

was on an investigative report interviewing Mr. Mitchell in 1983, but stated

that he had no independent recollection of the case. He also testified that

during the course of his career he never collaborated with the District

Attorney’s office to have a witness recant their testimony.

Id. at

      Attorney Flannery testified that he was an ADA from approximately

1977-1989 and he was in the charging unit in June 1983, where he would

work twelve-hour shifts charging hundreds of cases a day. He testified that

for murder cases his bosses would review the affidavit of probable cause and

instruct him whether to sign the complaint; and he “would not have known”

who the witnesses were in any given case in which he signed the complaint.

Id. at 

      Attorney Flannery also testified that he was the ADA that handled Mr.

Atwell’s case during the December 12, 1983 listing when the case was nolle

prossed but that he had not handled the case at any previous listings.
 Id. at

84. Attorney Flannery explained that markings on Mr. Atwell’s file indicated

that the court had listed the case as “must be tried,” the complaining witness

failed to appear despite the Commonwealth’s attempts to contact him, and

the court forced the Commonwealth to nolle prosse Mr. Atwell’s case.
 Id. at


85-86. Finally, Attorney Flannery testified that over the course of his career

he never asked a witness to recant testimony as part of a deal.
 Id. at 

      At the end of the hearing, the PCRA court found that “there is no basis

under the law to even establish the timeliness let alone the substantive

nature” of Appellant’s PCRA Petition.
 Id. at 
128. The court, thus, dismissed

the Petition as untimely.

      Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

Statement. The PCRA court declined to file a Rule 1925(a) Opinion.


      Appellant raises the following issues on appeal:

      I.     Did the [c]ourt below err in concluding that [Appellant]
             failed to demonstrate a timeliness exception under [42
             Pa.C.S. § 9545(b)(1)(iii)]?

      II.    Did the [c]ourt below err in concluding that Petitioner failed
             to demonstrate a timeliness exception under [42 Pa.C.S. §

      III.   Did the [c]ourt below err in rejecting [Mr.] Mitchell’s
             testimony and crediting former [ADA] Flannery’s testimony
             based on the court’s personal experiences in the District
             Attorney’s office?

      IV.    Did the [c]ourt below [err] in restricting the scope of the
             evidentiary hearing and discovery?

Appellant’s Br. at 2-3.


      We review the denial of a PCRA petition to determine whether the record

supports the PCRA court’s findings and whether its order is otherwise free of

legal error. Commonwealth v. Fears, 
86 A.3d 795
, 803 (Pa. 2014). This


Court grants great deference to the findings of the PCRA court if they are

supported by the record. Commonwealth v. Boyd, 
923 A.2d 513
, 515 (Pa.

Super. 2007).      We give no such deference, however, to the court’s legal

conclusions.     Commonwealth v. Ford, 
44 A.3d 1190
, 1194 (Pa. Super.


       In order to obtain relief under the PCRA, a petition must be timely filed.

See 42 Pa.C.S. § 9545 (providing jurisdictional requirements for the timely

filing of a petition for post-conviction relief). A petition must be filed within

one year from the date the judgment of sentence became final. 42 Pa.C.S. §

9545(b)(1). Appellant’s Petition, filed approximately twenty-five years after

his Judgment of Sentence became final, is facially untimely.

       Pennsylvania courts may consider an untimely PCRA petition, however,

if an appellant pleads and proves one of the three exceptions to the time-bar

set forth in Section 9545(b)(1). Any petition invoking a timeliness exception

must be filed within 60 days the claim could have been presented.3 42 Pa.C.S

§ 9545(b)(2). Instantly, Appellant attempts to invoke the newly discovered

fact and newly recognized constitutional right exceptions to the PCRA time-

 Id. at 
(b)(1)(ii), (iii). His attempts fail.

       Section 9545(b)(1)(ii) – Newly Discovered Facts Exception


3 See 42 Pa.C.S § 9545(b)(2). Effective December 24, 2018, Section
9545(b)(2) now provides that, for claims arising on December 24, 2017, or
after, “[a]ny petition invoking an exception . . . shall be filed within one year
of the date the claim could have been presented.”


        With the affidavits of Mr. Claitt, Mr. Mickens, Mr. Jackson, and Mr.

Mitchell, Appellant attempts to invoke the timeliness exception under Section

9545(b)(1)(ii). To satisfy this exception, a petitioner must plead and prove

“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 held that this exception

“does    not   require   any    merits    analysis   of   the   underlying   claim.”

Commonwealth v. Bennett, 
930 A.2d 1264
, 1271 (Pa. 2007). Rather the

exception merely requires the petitioner to plead and prove two elements:

“1) the facts upon which the claim was predicated were unknown and 2)

could not have been ascertained by the exercise of due diligence.”
 Id. at

1272 (internal quotation marks omitted, emphasis in original), citing 42

Pa.C.S. § 9545(b)(1)(ii).

        Due diligence requires a petitioner to make reasonable efforts to

uncover facts that may support a claim for collateral relief. 
Burton, 121 A.3d

at 1071
. Moreover, a petitioner must explain why he could not have learned

the new facts earlier by exercising due diligence.              Commonwealth v.

781 A.2d 94
, 98 (Pa. 2001).

        Notably, a petitioner does not satisfy the Section 9545(b)(1)(ii) time-

bar exception where he merely alleges a newly discovered or newly willing

source for previously known facts. Commonwealth v. Marshall, 
947 A.2d

, 721–22 (Pa. 2008). Our Supreme Court has explained, “[t]he fact [an]

                                         - 10 -

appellant discovered yet another conduit for the same perjury claim does not

transform his latest source into evidence falling within the ambit of §

9545(b)(1)(ii).” Commonwealth v. Abu-Jamal, 
941 A.2d 1263
, 1269 (Pa.

2008). Finally, a claim based on inadmissible hearsay does not implicate the

newly discovered fact exception to the PCRA time-bar.

       Mr. Claitt, Mr. 
Mickens, and Mr. Jackson’s statements, offered to support

Appellant’s claim that the Commonwealth engaged in a pattern of behavior of

arranging conjugal visits in exchange for false testimony, fail to overcome the

time-bar. Rather, they are newly willing sources for previously known “facts”

that were litigated and dismissed by the PCRA court in proceedings addressing

Appellant’s second PCRA petition.

       Mr. Mitchell’s sworn statement and testimony, purporting to support

Appellant’s claim that former ADA Flannery lied during Appellant’s trial when

he testified that the Commonwealth did not give Mr. Atwell “a deal” to testify

falsely against Appellant, does not even mention former ADA Flannery.4 In

fact, this evidence supports a conclusion that Mr. Atwell’s family, rather than

the Commonwealth, were involved in brokering a deal for Mr. Atwell.


4 We further note that Appellant’s purpose in presenting Mitchell’s statement
was, in fact, to provide evidence of “another conduit for the same perjury
claim” that he raised in his fourth PCRA Petition. 
Abu-Jamal, 941 A.2d at

                                          - 11 -

Accordingly, the trial court did not abuse its discretion in concluding that this

claim fails to meet the timeliness exception to the PCRA’s time-bar.

       Finally, Mr. Jackson’s claim that he overheard a conversation where

Attorney Denker stated that he had a conflict of interest representing

Appellant is inadmissible hearsay5 that fails to overcome the PCRA time-bar.

       Section 9545(b)(1)(iii) – Newly Recognized Constitutional Right

       Appellant also argues that the Burton decision establishes an exception

to the PCRA time-bar under Section 9545(b)(1)(iii). Appellant’s Br. at 19-20.

However, this Court held in Commonwealth v. Kretchmar, 
189 A.3d 459

464 (Pa. Super. 2018), that Burton did not create a newly recognized

“constitutional right” that the Supreme Court of the United States or the

Supreme Court of Pennsylvania has held “to apply retroactively” as required

by the Section 9545(b)(1)(iii) time-bar exception.6 Accordingly, Appellant’s

attempt to use Burton to overcome the PCRA time-bar fails.


       The PCRA court properly dismissed Appellant’s Petition. Appellant has

not pleaded and proved the applicability of any of the PCRA’s timeliness


5“Hearsay is an out-of-court statement offered to prove the truth of the
matter asserted.” Commonwealth v. Puksar, 
740 A.2d 219
, 225 (Pa. 1999).

6 In addition, our Supreme Court has unequivocally held that “subsequent
decisional law does not amount to a new ‘fact’ under section 9545(b)(1)(ii) of
the PCRA.” Commonwealth v. Watts, 
23 A.3d 980
, 987 (Pa. 2011).

                                          - 12 -

exceptions and, therefore, we are without jurisdiction to consider the merits

of this appeal.   We, thus, affirm the denial of PCRA relief.

      Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Date: 10/28/2020

                                     - 13 -
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