NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
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
BEFORE: DUBOW, J., MURRAY, J., and STEVENS, P.J.E.*
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
FACTUAL AND PROCEDURAL HISTORY
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Commonwealth v. Harvey, No. 2217 EDA 2013, unpublished memorandum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,
(Pa. Super. 1987),
(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,
(Pa. Super. 2000), appeal denied,
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,
(Pa. Super. 2014),
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.
(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
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.
1Our Supreme Court later affirmed this case. See Commonwealth v.
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
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
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
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.
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.
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.
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.
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.
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.
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.
ISSUES RAISED ON APPEAL
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
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,
, 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,
, 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-
(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,
, 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.”
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.
. Moreover, a petitioner must explain why he could not have learned
the new facts earlier by exercising due diligence. Commonwealth v.
, 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,
, 721–22 (Pa. 2008). Our Supreme Court has explained, “[t]he fact [an]
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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,
, 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.
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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,
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,
, 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,
, 987 (Pa. 2011).
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exceptions and, therefore, we are without jurisdiction to consider the merits
of this appeal. We, thus, affirm the denial of PCRA relief.
Joseph D. Seletyn, Esq.
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