J-S45044-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

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JULIUS BALLOW,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 3158 EDA 2016

Appeal from the PCRA Order September 9, 2016,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0808251-2005 

BEFORE: GANTMAN, P.J., PANELLA, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 21, 2017

Julius Ballow (Appellant) appeals from the order dismissing his petition 

filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-

9546. We affirm.

The PCRA court summarized the facts and procedural history as 

follows.

On July 17, 2009, Appellant was sentenced to an 

aggregate sentence of 78 to 192 months [of] incarceration after 

being found guilty of possession with intent to deliver a 

controlled substance and possession of drug paraphernalia by 

the Honorable Christopher Wogan and a jury. Post[-]sentence 

motions were denied[,] and the judgment of sentence was 

affirmed by the Superior Court on November 15, 2010. 

[Commonwealth v. Ballow, 22 A.3d 1069 (Pa. Super. 2010) 

(unpublished memorandum)]. Appellant did not file a petition 

for allowance of appeal to the Pennsylvania Supreme Court[,] 

and his judgment of sentence became final on or about February 

 

* Retired Senior Judge assigned to the Superior Court.
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15, 2011. On April 10, 2014, Appellant filed the instant first 

PCRA petition, and PCRA counsel was appointed.[1] On October 

1, 2014, counsel filed an amended petition claiming that 

Appellant was entitled to a new trial based upon the afterdiscovered evidence that police officer Michael E. Spicer, who 

testified as an expert in the field of narcotics and narcotics 

packaging at Appellant’s trial, was one of several officers from 

the Narcotics Field Unit indicted and charged with misconduct 

and corruption. Officer Spicer was not involved in Appellant’s 

arrest. On May 18, 2016, the Commonwealth filed a motion to 

dismiss asserting that Appellant failed to plead and prove his 

entitlement to relief, and that evidence of the indictment of 

Officer Spicer, even if found to be admissible at trial, does not 

meet the criteria for after-discovered evidence as it would be 

used solely to impeach the officer’s credibility. The [PCRA court] 

reviewed the submissions of counsel and the controlling law and 

determined that Appellant was not entitled to relief on his claim. 

On September 9, 2016, following proper notice, Appellant’s 

petition was formally dismissed. This [timely-filed] appeal 

followed.[2]

PCRA Court Opinion, 12/30/2016, at 1-2 (certain capitalization altered and 

footnote omitted). 

On appeal, Appellant asks us to decide whether the PCRA court erred 

by not holding an evidentiary hearing based upon Appellant raising issues of 

material fact in his petition. Appellant’s Brief at 7.

The PCRA court has the discretion to dismiss a petition without a 

hearing when the court is satisfied that there are no genuine 

issues concerning any material fact, the defendant is not entitled 

to post-conviction collateral relief, and no legitimate purpose 

would be served by further proceedings. To obtain reversal of a 

PCRA court’s decision to dismiss a petition without a hearing, an 

appellant must show that he raised a genuine issue of fact 

which, if resolved in his favor, would have entitled him to relief, 

 

1 The record does not reveal what date counsel was appointed. 

2 Both Appellant and the PCRA court complied with Pa.R.A.P. 1925. 
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or that the court otherwise abused its discretion in denying a 

hearing.

Commonwealth v. Roney, 79 A.3d 595, 604–05 (Pa. 2013) (citations and 

quotations marks omitted).

Assuming arguendo that Appellant’s PCRA petition was timely-filed,3

Appellant has not raised a genuine issue of material fact that would entitle 

 

3

 The timeliness of Appellant’s petition is questionable. Generally, a 

petition for relief under the PCRA must be filed within one year of the date 

the judgment of sentence is final unless the petition alleges, and the 

petitioner proves, that a timeliness exception is met, and raises that claim 

within 60 days of the date on which it became available. 42 Pa.C.S. § 

9545(b)(1), (2). Neither the PCRA nor this Court has jurisdiction unless the 

petition is timely-filed or meets an exception. Commonwealth v. 

Robinson, 12 A.3d 477, 479 (Pa. Super. 2011). 

Appellant filed his petition over three years after his judgment of 

sentence became final. Thus, his petition is facially untimely, and the PCRA

court had no jurisdiction to entertain it unless he pled and offered to prove 

one or more of the three statutory exceptions to the time-bar. 42 Pa.C.S. 

§ 9545(b)(1). Appellant alleged the filing of his petition was timely, based 

on the newly-discovered-fact exception to the PCRA time-bar. Amended 

PCRA Petition, 10/1/2014, at ¶7. Specifically, he avers that his discovery of 

Officer Spicer’s corruption is a newly-discovered fact, and he filed his 

petition within 60 days of discovering that fact. Id. 

The PCRA court determined that Appellant did not meet his burden in 

pleading the requisite elements of the PCRA exception for newly-discovered 

facts. To meet the requirements of section 9545(b)(1)(ii), the petitioner 

must first allege and offer to prove that there were facts unknown to him 

and that he exercised due diligence in discovering those facts. 

Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015). 

Additionally, to fit within the newly-discovered-fact exception to the PCRA 

time bar, Appellant’s petition identifying that new fact needed to be filed 

“within 60 days of the date the claim could have been presented.” 42 Pa.C.S 

§ 9545(b)(2). As the PCRA court observed, Appellant baldly asserts that he 

brought his claim within sixty days of learning about Officer Spicer’s alleged 

corruption, but he does not indicate in the petition when or how he became 

aware of Officer Spicer’s alleged corruption or indictment. Since Appellant 
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him to PCRA relief on the basis of after-discovered evidence. To obtain relief 

on an after-discovered evidence claim, a petitioner must establish that: “(1) 

the evidence has been discovered after trial and it could not have been 

obtained at or prior to trial through reasonable diligence; (2) the evidence is 

not cumulative; (3) it is not being used solely to impeach credibility; and (4) 

it would likely compel a different verdict.” Commonwealth v. Washington, 

927 A.2d 586, 595–96 (Pa. 2007).

Appellant’s claim fails for several reasons. Appellant’s amended 

petition relies upon Officer Spicer’s arrest for charges of corruption. 

Amended Petition, 10/1/2014, at ¶ 7(2). However, a mere charge cannot 

serve as admissible evidence because it does not equate to proof of Officer 

Spicer committing a crime.4 Commonwealth v. Jackson, 158 A.3d 64 (Pa. 

2016) (per curiam) (reinstating PCRA court's order denying collateral relief 

without a hearing because purported after-discovered evidence consisted of 

only criminal charges against a witness, not convictions, citing 

Commonwealth v. Taylor, 381 A.2d 418, 419 (Pa. 1977) (“[t]he veracity 

of a witness may not be impeached by evidence of prior arrests which have 

not led to convictions”)); see also Commonwealth v. Griffin, 137 A.3d 

 

does not specify when he learned about Officer Spicer’s alleged corruption in 

his amended petition, he fails to establish that he filed his amended petition 

within 60 days of the date the claim could have been presented. 

4

Indeed, according to the Commonwealth, by the time it filed its motion to 

dismiss Appellant’s amended PCRA petition, a federal jury had acquitted 

Officer Spicer. 
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605, 609 (Pa. Super. 2016) (holding that an indictment is not evidence of an 

accused’s guilt because it is a mere accusation). 

Second, we agree with the PCRA court that Appellant would be using 

the allegations about Officer Spicer solely to attack Officer Spicer’s credibility 

for impeachment purposes, failing the third prong of the test. 

Notwithstanding Appellant’s protestations to the contrary in his brief, 

Appellant admits as much in his petition, averring that “the honesty and 

credibility of this corrupt police officer was not revealed to the jury and 

cannot be trustworthy.” Amended PCRA Petition, 10/1/2014, at ¶5. 

Finally, the allegations against Officer Spicer do not have a nexus to 

Appellant’s case. Appellant does not allege that his case was identified in 

the indictment, and the acts alleged in the indictment did not occur until 

after Appellant’s arrest. See PCRA Court Opinion, 12/30/2016, at 4. As the 

PCRA court points out, Officer Spicer was not involved in Appellant’s arrest; 

his “expert opinion that the drugs, money and packaging confiscated from 

[A]ppellant demonstrated that the drugs were intended for sale rather than 

personal use[] was based upon the evidence presented to him by the 

arresting officer.” Id. at 5. Therefore, we agree with the court’s conclusion 

that even if the jury knew about Officer Spicer’s alleged misconduct in 

unrelated matters, it would be unlikely for the jury to render a different 

verdict. 
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Based on the foregoing, we hold that the PCRA court did not abuse its 

discretion in dismissing Appellant’s petition without a hearing.

Order affirmed.

Judge Panella joins.

PJ Gantman concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/21/2017