J

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NON
- PRECEDENTIAL DECISION
- SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MARVIN AVILES

Appellant :
:
:
:
:
:
:
:
: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1746 EDA 2023 Appeal from the PCRA Order Entered June 1, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 0011913

- 2007

BEFORE: BOWES, J., KING, J., and BENDER, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 06, 2024
Appellant, Marvin Aviles, appeals from the post

- conviction court’s June
1, 2023 order denying his petition under the Post Conviction Relief Act (PCRA),
42 Pa.C.S. §§ 9541

- 9546. After careful review, we affirm.
The facts of Appellant’s underlying convictions are not germane to our
disposition of his instant appeal. The PCRA court summarized the pertinent
procedural history of his case, as follows:
On February 26, 2008, following a jury trial before this [c]ourt , [Appellant] was convicted of aggravated assault (18 Pa.C.S. § 2702(a)) and possession of an instrument of crime (18 Pa.C.S. § 907(a)) ( “ PIC ” ). On April 25, 2008, the [c]ourt imposed a sentence of seven to twenty years [’] incarceration on the charge of aggravated assault and a concurrent sentence of one to two years [’] incarceration on the charge of PIC. [Appellant] filed a post

- sentence motion, which the [c]ourt denied on May 12, 2008. [Ap pellant] was represented at trial and through post

- sentence motions by Richard Giuliani, Esquire.
On August 10, 2008, [Appellant] filed a petition seeking relief under the PCRA. Elayne Bryn, Esquire, was appointed toJ

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represent [Appellant]

. On March 30, 2009, counsel filed an amended PCRA petition on [Appellant’s] behalf and alleged that trial counsel had been ineffective in failing to file a direct appeal as requested by [Appellant]

. On March 31, 2009, the [c]ourt granted the PCRA petition by agreement of counsel and issued an order reinstating [Appellant’s] direct appeal rights [] nunc pro tunc

. After [Appellant] filed a direct appeal nunc pro tun c , the Superior Court affirmed the judgment of sentence on April 15, 20 10. [ See Commonwealth v. Aviles , 998 A.2d 1009 (Pa. Super. 2010) (unpublished memorandum).] The Supreme Court denied allocatur on August 31, 2010. [ See Commonwealth v. Aviles , 4 A.3d 157 (Pa. 2010).]
On June 2, 2022, [Attorney] Giuliani, trial counsel, re

- entered his appearance on behalf of [Appellant]

. [Attorney] Giuliani filed a PCRA petition on behalf of [Appellant] on July 29, 2022. On February 3, 2023, the Commonwealth responded to [Appellant’s] petition. On April 14, 2023, the [c]ourt issued notice pursuant to Pa.R.Crim.P . 907 of its intent to dismiss [Appellant’s] petition without an evidentiary hearing ( “ 907 Notice ” ). The [c]ourt dismissed [Appellant’s] PCRA petition on June 1, 2023. PCRA Court Opinion (PCO), 8/17/23, at 1

- 2 (footnote omitted).
Appellant filed a timely notice of appeal, and he timely complied with

t he PCRA court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. The court filed its Rule 1925(a) opinion on August
17, 2023. Herein, Appellant states one issue for our review:

Did the [PCRA c]ourt err by failing to grant an evidentiary hearing to determine whether a new trial should be granted to Appellant based on subsequent prosecution and conviction of former detective Philip Nordo for assaulting and intimidating witnesses in his official capacity when he was one of two detectives who interviewed and obtained a statement from the victim who identified Appellant as the individual who shot him? Appellant’s Brief at 3.
This Court’s standard of review regarding an order denying a petition
under the PCRA is whether the determination of the PCRA court is supportedJ

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by the evidence of record and is free of legal error. Commonwealth v.
Ragan , 923 A.2d 1169, 1170 (Pa. 2007).
Although neither party, nor the PCRA court, mention the timeliness of
Appellant’s petition, w e must begin by addressing that issue , because the
PCRA time limitations implicate our jurisdiction and may not be disregarded in
order to address the merits of a petition. See Commonwealth v. Bennett , 930 A.2d 1264, 1267 (Pa. 2007). Under the PCRA, any petition for post

conviction relief, including a second or subsequent one, must be filed within
one year of the date the judgment of sentence becomes final, unless one of
the following exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)

- (iii) applies:
(b) Time for filing petition.

-- (1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that: (i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States; (ii) 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; or (iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.J

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42 Pa.C.S. § 9545(b)(1)(i)

- (iii). Additionally, section 9545(b)(2) require s that
any petition attempting to invoke one of these exceptions “be filed within one

year of the date the claim could have been presented.” 42 Pa.C.S. §
9545(b)(2).
Here, Appellant’s judgment of sentence became final in 2010 , after our
Supreme Court denied his petition for permission to appeal and the time
expired for him to file an appeal with the United States Supreme Court. See
42 Pa.C.S. § 9545(b)(3) (stating that a judgment of sentence becomes final
at the conclusion of direct review or the expiration of the time for seeking that
review); Commonwealth v. Owens , 718 A.2d 330, 331 (Pa. Super. 1998)
(directing that under the PCRA, petitioner’s judgment of sentence becomes
final ninety days after our Supreme Court rejects his or her petition for
allowance of appeal since petitioner had ninety additional days to seek review

with the United States Supreme Court). Consequently, Appellant’s present
petition , filed in 2022 , is patently untimely and, for this Court to have
jurisdiction to review the merits thereof, Appellant must prove that he meets
one of the exceptions to the timeliness requi rements set forth in 42 Pa.C.S. §
9545(b).
Instantly, in Appellant’s PCRA petition, he averred , in pertinent part, th e
following:

3.

... [Appellant] was charged with shooting Stephen Hopkins on March 12, 2007, at 2908 N. Hancock Street in Philadelphia, Pennsylvania.J

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4.

... Hopkins gave a statement to detectives on April 20, 2007, after being shown a photo array which included

... [Appellant ’s ] photograph.

... Hopkins identified

... [Appellant] as the individual who shot him and signed the statement.

5. One of the detectives who took the statement from

... Hopkins
was [former Philadelphia Police] Detective Philip Nordo. In addition,

... Nordo prepared the photo array which included [Appellant] and showed it to

... Hopkins.

6.

... [Appellant] was subsequently arrested and charged as previously stated. At ... [Appellant’s] Preliminary Hearing on September 28, 2007,

... Hopkins testified that

... [Appellant] was not the individual who shot him and that he had been “ coerced ” by detectives into identifying [Appellant] as the shooter. 7. The statement given by

... Hopkins was subsequently admitted into evidence and [Appellant] was held for court on all charges.

8. [Appellant] went to trial before a jury beginning on February 25, 2008. Again, when he testified at [Appellant’s] trial,

... Hopkins denied that [Appellant] was the individual who shot him. He was impeached, again, with his statement which was introduced as substantive evidence. 9. There was no other evidence admitted at trial identifying [Appellant] as the individual who shot ... Hopkins

.

*** 15. On February 19, 2019,

... Nordo was arrested and charged with numerous sexual offenses. It was alleged that

... Nordo used his office and authority as a Philadelphia Police detective to attempt to assault witnesses and incarcerated defendants while
on duty. 16. After a trial by jury,

... Nordo was convicted on June 23, 2022, of a number of offenses under CP

- 51

- CR

- 0001856

- 2019 and CP

51

- CR

- 0004070

- 2021. Sentencing for

... Nordo is currently scheduled for September 2, 2022.

17.

... [Appellant] avers that the grounds for relief are as follows:

a.

... Nordo’s arrest, prosecution and conviction for offenses which he committed while on duty constitutes “ newly discovered evidence ” which would affect his credibility as a witness and would bolster the complainant’s testimony thatJ

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- he was “ coerced ” by detectives to identify ... [Appellant] as the individual who shot him. 18 The allegations set forth above have not been previously litigated

. These claims have not been waived, as they are being raised at the earliest opportunity in the proceedings and there is
no [s] tate procedural default barring [f] ederal habeas corpus relief.

PCRA Petition, 7/29/22, at 1

- 3.
On appeal, Appellant reiterates his claim that former

- detective Nordo’s

2022 conviction s in unrelated matters constitutes after

- discovered evidence

.
He focuses his argument on contending that the PCRA court should have
conducted an evidentiary hearing in this case to explore Hopkins ’ allegations

that he was coerced by detectives into identifying Appellant. Appellant insists

that “[t]he fact that ... Hopkins [was allegedly] mistreat [ed] at the hands of

former

- detective Nordo years before Nordo was ever char ged and arrested,
and for the exact conduct that led to Nordo’s investigation and prosecution[,]

cannot be deemed a mere coincidence. ” Appellant’s Brief at 10. 1 Appellant
concludes that his “claims cannot be alleged to be a mere ‘fishing expedition’”
and that the court’s failure to conduct an evidentiary hearing constituted an

abuse of discretion. Id.
Preliminarily , we presume Appellant is attempting to satisfy the after

discovered

- fact exception of section 9545(b)(1)(ii) , a lthough he fails to

mention th is exception, let alone specifically discuss the requirements of

_________________ __________ ______ ____ _______

1 Notably, Appellant does not elaborate on how Hopkins’ allegations of coercion by Nordo involved the ‘exact conduct’ for which Nordo was convicted, when in Appellant’s petition, he claimed Nordo had been accused of committing sexual offenses against witnes ses and incarcerated defendants.J

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meeting it

. Nevertheless, we conclude that the averments set forth in his
petition are sufficient to demonstrate the applicability of section
9545(b)(1)(ii) . As this Court has explained: “ The timeliness exception set

forth in [s]e ction 9545(b)(1)(ii) requires a petitioner to demonstrate he did

not know the facts upon which he based his petition and could not have

learned those facts earlier by the exercise of due diligence. ” Com monwealth

v. Brown , 111 A.3d 171, 176 ( Pa. Super. 2015) (citation omitted). Here,
Appellant asserted in his petition that he discovered the ‘new fact’ that Nordo

had been convicted of various offenses in June of 202 2. Appellant filed his
petition in July of that same year . Thus, Appellant exhibit ed due diligence in
asserting this new ly

- discovered fact. Accordingly, we will assess the merits

of his claim

. In doing so, we are mindful that:

To warrant relief, after

- discovered evidence must meet a four

prong test: (1) the evidence could not have been obtained before the conclusion of the trial by reasonable diligence; (2) the evidence is not merely corroborative or cumulative; (3) the evidence will not be used solely for purposes of impeachment; and (4) the evidence is of such a nature and character that a different outcome is likely.

Commonwealth v. Rivera , 939 A.2d 355, 359 (Pa. Super. 2007) (internal

citation omitted). Additionally, a s the PCRA court aptly observed:
“It is well settled that [t]here is no absolute right to an evidentiary hearing on a PCRA petition, and if the PCRA court can determine from the record that no genuine issues of material fact exist, then a hearing is not necessary.” Commonwealth v. Maddrey , 205 A.3d 323, 328 (Pa. Super. 2019) (internal quotations omitted). Further, where a defendant seeks the reversal of a PCRA court’sJ

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decision to dismiss a defendant’s petition without a hearing, [the] defendant must show “he raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying a hearing.” Id.

... (quoting Commonwealth v. Hanible , 30 A.3d 426, 452 (Pa. 2011)).

PCO at 4.
Instantly , t he PCRA court explained its decision to deny Appellant’s
petition without a hearing, as follows :
Here, the [c]ourt properly denied [Appellant’s] request for an evidentiary hearing because the proffered evidence of Nordo’s misconduct in unrelated cases would not likely result in a different verdict if a new trial were granted. Nordo was not a witness at [Appellant’s] trial. Therefore, evidence offered to impeach Nordo’s credibility would have no probative value. [Appellant] maintains, however, that because Nordo’s misconduct involved the coercion of witnesses, it would have been relevant to impeach t he credibility of Stephen Hopkins, the victim, who was interviewed by Nordo and claimed that he had been coerced. See PCRA Petition at ¶ 17(a). It is true that Nordo interviewed Hopkins at the time that Hopkins identified [Appellant] as his assailant. N.T. [,] 2/26/08 [,] at 27

- 28. It is also true that at [Appellant’s] preliminary hearing, Hopkins claimed that he was coerced by detectives during that interview to pick [Appellant] out of a photospread. N.T. [,] 9/28/07 [,] at 17

- 18. [ 2 ] However, [Philadelphia Police] Detective [Francis] Graf was also present at that interview and testified at trial, as well as at the preliminary hearing, that there was no improper conduct during the interview by either Graf or Nordo. [ Id. ] at 21

- 22; N.T. [,] 2/26/08 [,] at 21

- 28. [Appellant] has not

_________________ __________ ______ ____ _______

2 We note that the transcript of the preliminary hearing is not contained in the certified record transmitted to this Court for review. “[T] he duty to ensure the certified record contains all the facts and documents necessary for our review lies with the appellant

. ” Com monwealth v. Rush , 959 A.2d 945, 949 ( Pa. Super. 2008 ) (citation omitted).J

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alleged, nor proffered any evidence to show, any history of misconduct on the part of Detective Graf. Moreover, while Hopkins denied at trial that [Appellant] was the shooter, he also recanted his contention that the detectives coerced him to identify [Appellant]. N.T. [,] 2/25/08 [,] at 45, 84

- 87. [ 3 ] Hopkins explicitly denied that he was coerced and testified that the detectives “just agreed with me that it was him. That’s all.” Id. at 87. Hopkins maintained throughout his trial testimony that he truly believed that [Appellant] was his assailant at the time that Hopkins selected [Appellant’s] photograph from the photospread. Id. at 84, 87. In addition, Hopkins’ identification of [Appellant] from the photospread was strongly corroborated by his multiple consistent descriptions of the shooter. When the Superior Court rejected [Appellant’s] direct appeal claim based on the weight of the evidence, it described this identification evidence as follows: Within five minutes of the shooting, at a house wherein the victim had sought assistance, the victim, who was bleeding but conscious, gave a description of the shooter that included his age, ethnicity , height, and dress; the victim also described the type of gun used to shoot him and the location of the attack. N.T. [,] 2/25/08 [,] at 47

- 48; [N.T.,] 2/26/08 [,] at 9

- 12, 21

- 28. The victim gave consistent descriptions of the shooter in two subsequent interviews, an informal interview at the hospital on March 1 2, 2007, and a formal interview at the police station on April 20, 2007. Id. At the formal interview, the victim identified a picture of [Appellant] from a photo array; and he stated that he had seen [Appellant] on the street earlier on the night of the attack.

Co mmonwealth v. Aviles , 1159 EDA 2009, [unpublished memorandum] at 3

- 4 ( [Pa.] Super. ... [filed] Ap r[.] 15, 2010) (footnote omitted). Moreover, as to Hopkins’ recantation of his identification of [Appellant], the Superior Court noted that “the

_________________ __________ ______ ____ _______

3 Specifically, when asked , “Do you know why you circled [Appellant’s] photograph on April 20, 2007? ” , Hopkins replied, “ I circled it because he was

-- he looked like him in the photograph. I was hyped up and he looked like the person. ” N.T., 2/25/08, at 84. Hopkins further confirmed that, at the time he identified Appellant as the person who shot him, he believed it to be true. Id.J

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victim’s recantation testimony was entirely inconsistent,” given that Hopkins tried to both “avoid inculpating [Appellant] and avoid disavowing his former inculpatory statements,” and that [Hopkins] “specifically reaffirmed his prior description of the shooter, which closely matched [Appellant].” Id. at 4

- 5. This led the Superior Court to credit this [c] ourt’s conclusion that Hopkins “was simply unwilling to inculpate, in open court, an alleged gang member who was willing to shoot him in the neck for $800.” Id. at 6. Accordingly, the proffered after

- discovered evidence of Nordo’s misconduct in unrelated cases would not likely have resulted in a different verdict at [Appellant’s] trial. T herefore, the [c] ourt did not err in dismissing [Appellant’s] PCRA claim without a hearing. No relief is due.

PCO at 4

- 6 (some internal citations omitted)

. On appeal, Appellant challenges the PCRA court’s decision, insist ing that

“the fact that Detective Graf testified that no

... coercion occurred cannot ...
end the inquir y[,]” and a hearing is warranted to determine “the length of
time Detective Graf was partners with former detective Nordo, whether he
knew of any alleged misconduct of Nordo at any time or whether he offered
any information at any time regarding Nordo’s il legal activities

. ” Appellant’s

Brief at 10.

However, Appellant ignores that the PCRA court’s decision was not solely
premised on the fact that Detective Graf testified that Hopkins’ identification
procedure was proper . Instead, the court also relied on the fact that Hopkins
ultimately denied that his identification was coerced by the detectives . The

court also stressed that Hopkins’ identification was strongly corroborated by
other, consistent descriptions of the shooter, which matched Appellant.
Herein, Appellant does not offer any counter to those aspects of the court’sJ

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decision. G iven our review of the record , and the rationale expressed by the
PCRA court, we agree that Appellant has failed to demonstrate that Nordo’s
alleged misconduct in an unrelated matter, committed years after Nordo
participated in the instant investigation, would likely result in a different
outcome if Appellant were afforded a new trial. Consequently, the court did
not abuse its discretion in denying Appellant’s petition without an evidentiary
hearing.

Order affirmed.



### Date: 6/6/2024