J-S33005-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ANDRE HARVEY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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

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 

dismissal. 

FACTUAL AND PROCEDURAL HISTORY

A previous panel of this Court summarized the underlying facts as 

follows:

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 

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* Former Justice specially assigned to the Superior Court.
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the subject of Appellant's direct appeal, and all of his PCRA 

petitions[.]

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 

added).

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, 
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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, 
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Appellant failed to plead and prove a permitted exception to the PCRA timebar. 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. 

Burton, 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 

law.” 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 

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

Burton, 158 A.3d 618 (Pa. 2017). 
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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 

month. 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 

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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. 
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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 
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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 72-75.

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 78-82. 

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 
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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 89.

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.

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. § 

9545(b)(1)(ii)]?

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.

LEGAL ANALYSIS

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 
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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. 

2012).

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

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

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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.” 
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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.

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

Notably, a petitioner does not satisfy the Section 9545(b)(1)(ii) timebar exception where he merely alleges a newly discovered or newly willing

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

714, 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, 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. Id.

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.

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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. 

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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 

1269. 
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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 hearsay5that fails to overcome the PCRA time-bar.

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

Exception

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. 

CONCLUSION

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

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

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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).
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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.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/28/2020