v.
Matthews, J.
J-A10041-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAMAR MATTHEWS : : Appellant : No. 397 EDA 2023
Appeal from the PCRA Order Entered July 22, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003979-2014
BEFORE: PANELLA, P.J.E., BECK, J., and COLINS, J. *
MEMORANDUM BY COLINS, J.: FILED DECEMBER 20, 2024
Appellant, Jamar Matthews, appeals from the order of the Court of Common Pleas of Philadelphia County that dismissed his untimely second petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §
9541, et seq. A jury found him guilty of attempted murder, criminal conspiracy to commit murder, aggravated assault, possession of a firearm by a prohibited person, carrying a firearm without a license, carrying a firearm on public streets or public property in Philadelphia, and possessing an instrument of crime.[1] Appellant claims, inter alia, that he was entitled to relief
based on impeachment evidence that was withheld from him by the Commonwealth. ____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 901/2502, 903/2502, 2702, 6105, 6106, 6108, and 907, respectively.
J-A10041-24
On direct review, we adopted the following summary of the facts for this case: [O]n November 29, 2013, at approximately 9:45 p.m., [Philadelphia Police Officer Milord Celce] received a radio call for a shooting and person with a gun at 2603 West Harold Street in Philadelphia. Officer Celce, who was approximately four (4) blocks away at the time, promptly arrived at the above location, where he observed bullet holes in the windows and encountered the complainant, Enoch Carter. Based on his conversation with Mr. Carter, they proceeded to 2642 North 26th Street—literally just around the corner, not even 30 seconds later—where they met Highway Patrol Officer Reid, and knocked on the door. Appellant, who was in a wheelchair, answered the door; his cohort, Co- Defendant Karie Dozier (hereinafter “Dozier”), was seated on a couch directly facing the front door of the residence. As soon as Mr. Carter saw Dozier, he yelled and pointed to him, [t]hat’s the guy. Officer Celce placed Dozier on the floor to detain him. He lifted the cushion where Dozier was sitting and recovered a handgun; Dozier was sitting on the gun. Officer Celce escorted Dozier outside, where he was positively identified by Mr. Carter, and took him into custody. Mr. Carter also was transported to Central Detectives for an interview, during which Officer Celce learned of [a]ppellant’s involvement; he then went back to the residence and placed [a]ppellant under arrest at 12:15 a.m. … Mr. Carter testified that, prior to the shooting, he had lived around the corner from [a]ppellant for approximately one and one-half (1½) years and was friends with him. Mr. Carter used to hang out with [a]ppellant frequently, and also helped him with chores such as laundry and grocery shopping. Several weeks before the shooting, on October 17, 2013, [a]ppellant was driving a van (with handicapped hand controls) in which Mr. Carter and a female friend of [a]ppellant were riding as passengers. Approaching a red light, [a]ppellant mistook the accelerator for the brakes, and crashed into a building, injuring Mr. Carter and the female. Appellant was arrested at the scene for his involvement in the crash. Mr. Carter was transported to the
[*2]J-A10041-24
hospital via ambulance for treatment and subsequently required physical therapy for his injuries. Several weeks later, Mr. Carter commenced a personal injury lawsuit against [a]ppellant, which [a]ppellant took to heart. Appellant thereafter had several different individuals approach Mr. Carter to persuade him to “drop” the lawsuit, including a younger gentleman earlier on the day of the shooting, who proposed a fistfight in front of [a]ppellant’s residence. Mr. Carter declined the proposal and went home.
Later that evening, at approximately 9:40 p.m., Co-Defendant Dozier knocked on Mr. Carter’s door. Mr. Carter stuck his head out of his second-story window to see who it was. Dozier asked him why he had a beef with [a]ppellant; Mr. Carter explained that he did not have a problem with [a]ppellant, it was [a]ppellant who had a problem with him due to the lawsuit. After speaking with Dozier for five (5) to seven (7) minutes, [a]ppellant approached on his wheelchair and parked it next to Dozier. Dozier then asked [a]ppellant, “what do you want me to do[?]” at which point [a]ppellant said[,] “go ahead[.]” Right on cue, Dozier retrieved a black handgun, pointed it at Mr. Carter and opened fire. Mr. Carter saw the flash from the gun, and a bullet went through his window; he fell back into the home. As he was falling, Dozier fired several more shots at him. Fortunately, none of the bullets struck Mr. Carter, who immediately dialed 911 to summon police. During the call, he provided a physical description of Dozier and reported [a]ppellant’s involvement. A few minutes later, he accompanied police to [a]ppellant’s residence, where Dozier and the handgun were taken into custody following Mr. Carter’s positive identification.
… [Ballistics expert and] Philadelphia Police Officer Jesus Cruz testified that he test-fired the handgun that Dozier was sitting on and compared the fired cartridge casing (“FCC”) with the five (5) FCCs recovered in front of Mr. Carter’s residence. Based on his analysis, which was peer-reviewed, he concluded to a reasonable degree of scientific certainty that each of the five (5) FCCs recovered at the scene was, in fact, fired from Dozier’s handgun.
… Philadelphia Police Detective Michael Repici … testified that, on November 29, 2013, he was assigned to investigate this matter. At approximately 11:35 p.m., he interviewed Mr. Carter at Central Detectives. When Mr. Carter described [a]ppellant’s involvement, Detective Repici asked Officer Celce—who was present—if he
[*3]J-A10041-24
knew where this guy is? Officer Celce responded, [y]eah he’s still back there, at which point Detective Repici directed him to arrest [a]ppellant. Officer Celce embarked on this quest a few minutes prior to 12:00 a.m.
Detective Repici then went to the crime scene, 2603 Harold Street, which was being held, or secured, by fellow officers. There, he recovered under property receipt four (4) FCCs on the pavement and one (1) FCC in the street, all in close proximity to each other in front of Mr. Carter’s residence. He also took photographs of all the evidence, which he described as the photos [that] were displayed to the jury. Detective Repici then proceeded to 2642 North 26th Street, where he took photographs of the couch and black handgun, the latter of which he recovered under property receipt.
Finally, the Commonwealth introduced via stipulation: (a) certificates of non-licensure with respect to both [a]ppellant and Dozier, establishing that neither male was licensed to carry a firearm and thus not permitted to carry a firearm in Pennsylvania; (b) authenticity of prison phone call records between [a]ppellant and Dozier, in which they discuss methods to prevent the case from going forward—which recordings were played for, and their transcripts displayed to, the jury.
Commonwealth v. Matthews, 2016 WL 4978355, *1-2 (Pa. Super., filed
Sept. 16. 2016) (unpublished memorandum), citing Trial Court Opinion, 12/24/15, 2-5 (citations to notes of testimony, footnotes, and some internal quotation marks omitted).
Following a three-day trial that commenced on April 21, 2015, in which
he was tried alongside co-defendant Dozier, a jury found Appellant guilty of the above-referenced offenses. After the completion of a pre-sentence investigation report, the trial court sentenced him to thirteen to twenty-six years’ imprisonment on June 26, 2015. Following the denial of timely filed post-sentence motions for judgment of acquittal and reconsideration of
[*4]J-A10041-24
sentence, Appellant appealed. Upon reviewing challenges to the admission of a statement by co-defendant Dozier, the sufficiency of the evidence, and the discretionary aspects of the sentence, Matthews, 2016 WL 4978355, at *3- 5, we affirmed. Commonwealth v. Matthews, 158 A.3d 180 (Pa. Super. 2016) (table) (2468 EDA 2015). On March 15, 2017, our Supreme Court denied Appellant’s petition for allowance of appeal. Commonwealth v. Matthews, 169 A.3d 11 (Pa. Super. 2017) (table) (462 EAL 2016). On July 20, 2017, Appellant timely filed a pro se PCRA petition.[2] Counsel was appointed and filed a Turner/Finley3 no-merit letter along with a petition to withdraw from representation. On September 25, 2017, the PCRA court sent Appellant notice of its intent to dismiss the post-conviction petition without a hearing pursuant to Pa.R.Crim.P. 907. Appellant did not respond directly to the PCRA court’s Rule 907 notice, but rather, filed a motion for extension of time, a motion for transcripts, and a petition for leave to amend his PCRA petition. On October 30, 2017, the PCRA court entered an order dismissing the petition and permitting counsel to withdraw. Appellant ____________________________________________ 2 Appellant claimed in the petition that trial counsel provided ineffective assistance by: (1) failing to seek suppression of the firearm recovered during an illegal search; (2) failing to raise a claim of prosecutorial misconduct when the Commonwealth supposedly presented perjured testimony from the responding and investigating police officers; (3) failing to object to the introduction of his co-defendant’s statement as improperly implicating him in the crime, and failing to request a curative instruction; and (4) failing to object to improper comments by the prosecutor during closing argument. PCRA Petition, 7/20/17, § 6(a). 3 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
[*5]J-A10041-24
appealed pro se. On March 7, 2019, we affirmed the dismissal. Commonwealth v. Matthews, 215 A.3d 625 (Pa. Super. 2019) (table) (3922 EDA 2017). On October 30, 2019, our Supreme Court denied Appellant’s petition for allowance of appeal. Commonwealth v. Matthews, 218 A.3d 1204 (Pa. 2019) (table) (218 EAL 2019). On July 28, 2021, Appellant filed pro se his second PCRA petition that is the focus of this appeal. In it, he alleged the existence of previously unknown facts including a “[p]olice misconduct report affecting one of the key witnesses[’] reports and testimony not disclosed before trial.” Pro Se Second PCRA Petition, 7/28/21, § 5(ii). He alleged that “[t]he Commonwealth was in possession of exculpatory evidence in regards to Officer Celce[’s] untruthful tendencies.” Id. at § 6(A). Based on that allegation, he referred to the existence of “cumulative errors, prosecut[orial] misconduct[,] and ineffective assistance of trial counsel.” Id. Appellant appended to the petition what the PCRA court refers to as a “police misconduct disclosure packet” (referred to by the PCRA court as the “PMD report”) made by the Philadelphia Police Department with regard to Officer Celce. PCRA Court Opinion, 8/24/23, 5. In its opinion, the PCRA court notes: According to the Commonwealth, the PMD report concluded that “police internal investigation documents reveal that Officer Celce was credibly accused of assaulting a woman and lying to the investigating authority, as well as lying to investigators concerning allegations that he had engaged in animal cruelty. He was also determined to have violated departmental policy concerning social media.”
[*6]J-A10041-24
Id. Appellant also appended to his petition a list of Assistant District Attorneys, including the prosecutor from his trial, who were allegedly fired by Philadelphia District Attorney’s Office. Along with the petition, Appellant filed a motion requesting the appointment of counsel and a motion for discovery, requesting “reports and misconduct history” for the trial prosecutor and Detective Repici. Pro Se Motion for Discovery, 7/28/21, 1. On March 4, 2022, the Commonwealth filed a motion to dismiss the petition. Regarding the PMD report, the Commonwealth noted, The only instance of misconduct that was investigated and concluded prior to [Appellant’s] trial, and thus able to be disclosed prior to trial, was the instance where Officer Celce assaulted a woman and lied to investigators concerning that assault. The other two reports of misconduct occurred after [Appellant’s] trial and could not be disclosed at that time. Commonwealth’s Motion to Dismiss, 3/4/22, 7 (footnote omitted). Assuming the available misconduct report about Officer Celce had been disclosed in a timely manner, the Commonwealth reasoned that it would not have affected the outcome of Appellant’s criminal matter. It asserted that Appellant’s motion to suppress the recovered firearm would have failed under “multiple legal theories … even absent Officer Celce’s testimony that he saw the weapon in plain sight upon the arrest of co-defendant Dozier and the warrant later obtained by Detective Repici.” Id. at 7-8. It also alleged that the report would not have affected the convictions for attempted murder, aggravated assault, and conspiracy because those convictions were “established independently
[*7]J-A10041-24
from Officer Celce’s testimony through the testimony of victim Enoch Carter and the ballistics evidence obtained at the scene of the shooting.” Id. at 8. Appellant filed a response to the Commonwealth’s motion, arguing, inter alia, that the material from the PMD report would have been useful for impeachment of Officer Celce and that impeachment would have led to the suppression of the recovered firearm. Appellant’s Response to Motion Dismiss, 4/4/22, 2-4. On April 22, 2022, the PCRA court issued notice of its intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907 because the issues raised by Appellant lacked merit. The court found that, while the PMD report “may have qualified as Brady[4] material,” Appellant was unable to establish that he was prejudiced by the “failed disclosure.” Rule 907 Notice, 4/22/22, ¶ 1. As for the lack of demonstrated prejudice, the court noted: [T]he firearm was recovered in [Appellant’s] home upon the lawful arrest of co-defendant Dozier. A search of the person arrested, as well as the area within his immediate control is permissible, and as the Superior Court noted in [Appellant’s] direct appeal, there was sufficient evidence to establish that [Appellant] conspired with co-defendant Dozier to attempt to murder the complaining witness (Commonwealth v. Matthews, 2468 EDA 2015). Inasmuch as the complaining witness made an immediate, positive identification of Dozier as the shooter, and the firearm was seized from the couch he was sitting on, it was seized in the course of a lawful arrest. The credibility of Officer Celce, therefore, would have made no impact on the recovery of the gun in this case. Further, the officers held the scene for court approval of a search warrant, which would have been granted based upon ____________________________________________ 4 Brady v. Maryland, 373 U.S. 83 (1963).
[*8]J-A10041-24 the complaining witness’ information alone and the gun would have been inevitably discovered.
… Insofar as the impact of the PMD report on the trial, [Appellant] was not arrested immediately. The complaining witness, Mr. Carter identified [Appellant] for the first time during his interview with Detective Rep[i]ci at the district office. Officer Celce was then instructed by Detective Repici to return to the house to arrest [Appellant]. Officer Celce did not provide any information that led to [Appellant’s] arrest; he was following the direction of his superior officer. [Appellant] cannot point to any prejudice he suffered as a result of the unknown PMD report at the time of trial because Officer Celce’s involvement in [Appellant’s] arrest was minimal and he acted solely upon the by [sic] Detective Repici.
Id. at ¶¶ 2-3. The court also noted that the PMD report itself could not have constituted after-discovered evidence because it only would have been used solely for impeachment purposes and would not have compelled a different result “either at the suppression motion [hearing] or the trial.” Id. at ¶ 4.
The court lastly noted that his claim of prosecutorial misconduct, that alluded to the firing of the trial prosecutor, failed for lack of development. Id. at 5.
After Appellant did not respond to the Rule 907 notice, the PCRA court dismissed the petition on July 22, 2022. This appeal followed.
Appellant presents the following questions for our review: J-A10041-24 on [O]fficer [C]elce’s untruthful reports and testimony denying a fair trial[?]
[*9]