J-S17042-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MARVIN AVILES 

Appellant

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 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. 

[Appellant] 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 to 
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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 tunc, the

Superior Court affirmed the judgment of sentence on April 15, 

2010. [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Super. 2010) (unpublished memorandum).]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 

the 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 supported 
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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, we 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 postconviction 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. 
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42 Pa.C.S. § 9545(b)(1)(i)-(iii). Additionally, section 9545(b)(2) requires 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 requirements set forth in 42 Pa.C.S. § 

9545(b). 

Instantly, in Appellant’s PCRA petition, he averred, in pertinent part, the 

following:

3. ... [Appellant] was charged with shooting Stephen Hopkins on 

March 12, 2007, at 2908 N. Hancock Street in Philadelphia, 

Pennsylvania.
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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 CP51-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 that 
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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 convictions 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 charged 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 afterdiscovered-fact exception of section 9545(b)(1)(ii), although he fails to 

mention this exception, let alone specifically discuss the requirements of 

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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 witnesses and incarcerated defendants.
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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]ection 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.” Commonwealth

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 2022. Appellant filed his

petition in July of that same year. Thus, Appellant exhibited due diligence in 

asserting this newly-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 fourprong 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, as 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’s 
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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, the 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 

the 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 

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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.” Commonwealth v. Rush, 959 A.2d 945, 949 

(Pa. Super. 2008) (citation omitted). 
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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 12, 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.

Commonwealth v. Aviles, 1159 EDA 2009, [unpublished 

memorandum] at 3-4 ([Pa.] Super. ... [filed] Apr[.] 15, 2010) 

(footnote omitted). Moreover, as to Hopkins’ recantation of his 

identification of [Appellant], the Superior Court noted that “the 

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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.
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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. Therefore, 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, insisting that 

“the fact that Detective Graf testified that no ... coercion occurred cannot ... 

end the inquiry[,]” 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 illegal 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’s 
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decision. Given 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