J-S37035-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

NUTTA VERDIER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 944 EDA 2021

Appeal from the PCRA Order Entered May 6, 2021

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0008626-2010

BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 11, 2022

Appellant Nutta Verdier appeals from the Order entered in entered in 

the Court of Common Pleas of Philadelphia County on May 6, 2021, denying 

his second petition filed pursuant to the Post Conviction Relief Act (PCRA).1 

Following a careful review, we affirm. 

This Court previously set forth the relevant facts and procedural history 

herein as follows: 

On October 12, 2012, a jury convicted [Appellant] of ThirdDegree Murder, Attempted Murder, Conspiracy, Aggravated 

Assault, Firearms Not to be Carried Without a License, and 

Possession of an Instrument of a Crime. [Appellant’s] conviction 

stems from his role in a shoot-out involving three co-conspirators 

on a Philadelphia street, during which a bystander was shot and 

killed and another injured. The trial court sentenced [Appellant]

to an aggregate term of not less than nineteen and one-half nor 

more than sixty years of imprisonment. Following reinstatement 

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S.A. §§ 9541-9546. 
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of his direct appeal rights nunc pro tunc, we affirmed the judgment 

of sentence on September 11, 2017. [Appellant] did not seek 

further review in our Supreme Court.

[Appellant], acting pro se, filed the instant, timely PCRA 

petition on November 8, 2017, and appointed counsel 

subsequently filed an amended petition. [Appellant] claimed a 

right to relief based on after-discovered evidence in the form of 

affidavits prepared by his co-conspirator turned Commonwealth

witness Jacque Warren[2] and his brother, Sharif Warren. At trial, 

Jacque Warren testified that [Appellant], along with his coconspirators, shot at a rival and the bystander was killed in the 

crossfire. However, in his affidavit, dated May 27, 2015, Jacque 

Warren recants this testimony and avers that [Appellant] was not 

present when the shooting took place. (See J. Warren Affidavit, 

5/27/15). Sharif Warren's statement similarly avers that when he 

visited his brother in prison in 2011, Jacque conceded that 

[Appellant] was innocent and was not present at the scene of the 

shooting. (See S. Warren Statement, 8/05/13). Sharif's 

statement is dated August 5, 2013.

After issuing notice of its intent to do so, the PCRA court 

entered an order and opinion dismissing [Appellant’s] petition. He 

then filed this appeal arguing that the PCRA court erred in denying 

relief on his claim of after-discovered evidence based on Jacque 

Warren's recantation statements and that the PCRA Court 

improperly denied his PCRA counsel's request for a continuance

Commonwealth v. Verdier, 2019 WL 1450358, at *1 (Pa.Super. Apr. 1, 

2019) (unpublished memorandum) (footnotes omitted), appeal denied, 217 

A.3d 212 (Pa. 2019). 

____________________________________________

2

In its appellate brief, the Commonwealth indicates it had recently learned 

that Jacque Warren was killed on January 10, 2021. See Commonwealth’s 

Brief at 25. Following a motion of the Philadelphia Defender Association, the 

trial court formally abated Warren’s criminal case in its Order dated April 21, 

2021. See Id. at Exhibit B. As a result, Appellant would be unable to obtain 

Warren’s live testimony at a PCRA hearing to corroborate his unsworn 

declaration that he and his brother committed the shooting of which Appellant 

and his co-defendants were convicted. 
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On March 16, 2021, Appellant filed the instant PCRA petition, his second, 

pro se. On March 26, 2021, the PCRA court issued its Notice of Intent to 

Dismiss pursuant to Pa.R.Crim.P. 907. On April 7, 2021, Appellant filed a 

counseled, amended petition, and on May 6, 2021, the PCRA court dismissed 

the petition without a hearing. 

In his brief, Appellant presents the following claims for our review: 

I. Did the PCRA [c]ourt err when it found that the newly disclosed 

letter dated September 17, 2012 wherein Bowe[3] advised the 

Commonwealth that Judge Minehart indicated that he would look 

favorably at Warren's resentencing if he were to cooperate in the 

Appellant and his co-defendant's trial was not timely filed under 

42 Pa.C.S.A §9545(b)(1)(ii)(newly discovered evidence) and/or 

42 Pa.C.S.A §9545(b)(1)(i) (governmental interference) and/or 

lacked merit?

II. Did the PCRA [c]ourt err when it found that the claim related 

to the newly disclosed history of misconduct committed by Det. 

James Crone, Det. Joseph McDermott and Police Officer Thomas 

Fitzpatrick was not timely filed under 42 Pa.C.S.A §9545(b)(1)(ii)

(newly discovered evidence) and/or 42 Pa.C.S.A §9545(b)(1)(i) 

(governmental interference) and/or lacked merit?

III. Did the PCRA [c]ourt err in not authorizing/ordering the

discovery requested by the Appellant pertaining to additional 

referenced but undisclosed history of misconduct by detectives 

and officers who investigated this case.

IV. Did the PCRA [c]ourt err in not conducting an evidentiary

hearing on either/both of the above claims?

____________________________________________

3 Apparently, a reference to Jacque Warren’s trial counsel, William Bowe. 
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Brief for Appellant at 3-4. As these issues are interrelated, we will address 

them together.4 

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4 Both Appellant and the Commonwealth represent in their respective briefs

that co-defendant Eric Cooper filed his initial PCRA petition asserting claims 

similar to those Appellant previously advanced, and the information on which 

Appellant relies herein was produced as part of Cooper’s proceeding and 

provided to Appellant. Specifically, the Commonwealth stresses that:

Cooper’s petition was assigned to Judge O’Keefe, however 

rather than Judge McDermott. And whereas Judge McDermott 

dismissed [Appellant’s] first petition without a hearing, Judge 

O’Keefe has granted a hearing on Cooper’s identical 

recantation/coercion claim based on the Warren Brothers’ 

certifications. [Appellant’s] claims in his second PCRA petition 

now under this Court’s review arise out of discovery supplied to 

both co-defendants in advance of Cooper’s evidentiary hearing 

before Judge O’Keefe. 

Commonwealth’s Brief at 19-20. 

Recognizing this procedural posture, the Commonwealth states it would 

agree to a PCRA hearing on the recantation/coercion claim, without waiving 

any applicable defenses and while opposing further proceedings on Appellant’s

claims, inter alia, that an undisclosed cooperation agreement existed between 

the Commonwealth and Jacque Warren. Id. at 20. 

In addition, Appellant references a pending federal petition for writ of 

habeas corpus petition which Appellant filed on April 14, 2020, and for which 

the federal court granted a stay pending the instant PCRA litigation. 

Appellant’s Brief at 19 n. 8. 

However, 

It is well established that a court may not ordinarily take judicial

notice in one case of the records of another case, whether in 

another court or its own, even though the contents of those 

records may be known to the court. Steel v. Levy, supra; R.K.O. 

Dist. Corp. v. Shook, 108 Pa.Super. 383, 387, 164 A. 855; 

Walter v. Baldwin, 126 Pa.Super. 589, 596, 193 A. 146. Naffah 

v. City Deposit Bank et al., 339 Pa. 157, 160, 13 A.2d 63, 64 

(1940). This is especially so “when the facts are not admitted”. 

Steel v. Levy, 282 Pa. 338, 342, 127 A. 766 (1925). Thus, a court 

is admonished not to take judicial notice of the record of another 

case, if not pleaded. Chorba v. Davlisa Enterprises, Inc., 303 

(Footnote Continued Next Page)
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Before we reach the merits of Appellant’s aforementioned issues, we 

first must determine whether we have jurisdiction to do so. Pursuant to 42 

Pa.C.S.A. § 9545(b)(1), any PCRA petition must be filed within one year of 

the date the judgment becomes final unless Appellant alleges and proves that 

the petition falls within three enumerated exceptions, specifically:

(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.

42 Pa.C.S.A § 9545(b)(1)(i)-(iii). 

In addition, 

(2) Any petition invoking an exception provided in 

paragraph (1) shall be filed within one year of the date the claim 

could have been presented.

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Pa.Super. 497, 450 A.2d 36 (1982). Accord Coccia v. Coccia,

285 Pa.Super. 259, 427 A.2d 212 (1981).

Woolard v. Burton, 498 A.2d 445, 448 (Pa.Super. 1985). 
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(3) For purposes of this subchapter, a judgment becomes 

final at the conclusion of direct review, including discretionary 

review in the Supreme Court of the United States and the 

Supreme Court of Pennsylvania, or at the expiration of time for 

seeking the review. 

42 Pa.C.S.A § 9545(b)(2), (3). 

The PCRA time restrictions are jurisdictional in nature. Thus, 

“Pennsylvania courts may not entertain untimely PCRA petitions.” 

Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011). Indeed, the 

jurisdictional nature of the PCRA time-limits are such that they implicate a 

court's power to adjudicate a controversy. Commonwealth v. Fahy, 737 

A.2d 214, 222 (Pa. 1999). 

Moreover, 

... a PCRA petitioner is not automatically entitled to an 

evidentiary hearing. We review the PCRA court's decision 

dismissing a petition without a hearing for an abuse of discretion.

[T]he right to an evidentiary hearing on a postconviction 

petition is not absolute. It is within the PCRA court's discretion to 

decline to hold a hearing if the petitioner's claim is patently 

frivolous and has no support either in the record or other evidence. 

It is the responsibility of the reviewing court on appeal to examine 

each issue raised in the PCRA petition in light of the record 

certified before it in order to determine if the PCRA court erred in 

its determination that there were no genuine issues of material 

fact in controversy and in denying relief without conducting an 

evidentiary hearing.

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super. 2014) (citations 

omitted and brackets in original).

Appellant’s judgment of sentence became final on October 11, 2017, 

thirty days after the period of time in which he had to file a petition for 
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allowance of appeal with the Pennsylvania Supreme Court expired. Pa.R.A.P. 

1113(a). As such, Appellant had until October 11, 2018, in which to file a 

timely PCRA petition. The instant petition, filed on March 16, 2020, is facially 

untimely; thus, Appellant was required to plead and prove one of the aboveenumerated exceptions to the PCRA time bar. 

Appellant initially maintains in his appellate brief that the PCRA court 

erred in dismissing his claims of “new evidence/facts” and governmental 

interference without a hearing. Appellant’s Brief at 14-15, 28. Throughout 

the brief, Appellant at times refers to both newly disclosed evidence and facts. 

Id. at 14-16. In addition, the PCRA court finds that Appellant’s claim of police 

misconduct meets “the newly discovered facts exception” to the PCRA time 

bar but later addresses the merits of what it terms his “timely claim of after 

discovered evidence.” PCRA court Opinion, filed 5/6/21, at 8-9. In doing so, 

both Appellant and the PCRA court conflate the newly-discovered fact 

exception with an after-discovered evidence claim. Compare 42 Pa.C.S.A. § 

9545(b)(1)(ii) with 42 Pa.C.S.A. § 9543(a)(2)(vi); see Commonwealth v. 

Brown, 111 A.3d 171, 178 (Pa.Super. 2015), appeal denied, ––– Pa. ––––, 

125 A.3d 1197 (2015). Nevertheless, we find Appellant’s attempt to invoke 

either exception to the PCRA time bar herein fails. 

It is possible for a petitioner to plead and prove the newly-discovered 

fact exception, which gives the PCRA court jurisdiction and permits it to 
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consider the petition on the merits, and then ultimately fail on the merits of 

an after-discovered evidence claim. The newly-discovered fact exception:

has two components, which must be alleged and proved. Namely, 

the petitioner must establish that: 1) the facts upon which the 

claim was predicated were unknown and 2) could not have been 

ascertained by the exercise of due diligence. If the petitioner 

alleges and proves these two components, then the PCRA court 

has jurisdiction over the claim under this subsection.

***

 On the other hand:

To obtain relief based on after-discovered evidence, [a petitioner] 

must demonstrate that the evidence: (1) could not have been 

obtained prior to the conclusion of the trial by the exercise of 

reasonable diligence; (2) is not merely corroborative or 

cumulative; (3) will not be used solely to impeach the credibility 

of a witness; and (4) would likely result in a different verdict if a 

new trial were granted.

Commonwealth v. Brown, 141 A.3d 491 n. 8 (Pa.Super. 2016) (citations

omitted).

The PCRA court determined information regarding the alleged police 

misconduct concerned new evidence/facts which were not discoverable with 

Appellant’s exercise of reasonable diligence. To the contrary, the court further 

found his claim regarding Warren’s testimony does not. PCRA court Opinion, 

filed 5/6/21, at 7-9. In doing so, the trial court thoroughly reasoned as 

follows: 

. . . The facts underlying the allegations of misconduct against the 

detectives and police officer were unknown to [Appellant] prior to

receiving them through his requests because this is not the type 

of information that can be uncovered through regular due 

diligence. Thus, this [c]ourt has jurisdiction to reach the merits of
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[Appellant’s] claim.

The physical letter from Attorney Bowe to ADA Watson 

Stokes was unknown to [Appellant] until he received it on January 

27, 2021, but its contents were known to him. The possibility of 

Warren receiving lenient treatment because of his testimony at 

[Appellant’s] trial was known to [Appellant] at the time of his trial 

and formed the basis for his direct appeal and first PCRA petition. 

Because he cannot show that this letter reveals any new 

information that was not available at his trial, his claim fails for 

want of jurisdiction.

Addressing the merits of [Appellant’s] timely claim of afterdiscovered evidence, to obtain relief on after-discovered evidence, 

a petitioner must show that the evidence: (1) could not have been 

obtained prior to the conclusion of trial by the exercise of 

reasonable diligence; (2) is not merely corroborative or 

cumulative; (3) would not be used solely to impeach the credibility

of a witness; and, (4) would likely result in a different verdict if a 

new trial were granted. Commonwealth v. Williams, 215 A.3d 

1019, 124 (Pa.Super. 2019) (citing Commonwealth v. Pagan, 950 

A.2d 270, 292 (Pa. 2008)). For a petitioner to prove a Brady[5] 

violation, they must show: (1) the prosecution was in possession 

of favorable evidence to the petitioner, either exculpatory or 

impeaching; (2) the prosecution suppressed that evidence; and, 

(3) the petitioner was prejudiced by this suppression. 

Commonwealth v. Donoughe, 243 A.3d 980 (Pa. Super. 2020).

****

[Appellant] alleges that the Commonwealth violated his due 

process rights by failing to disclose instances of police misconduct. 

[Appellant] supplies evidence indicating the misconduct of 

Detectives Crone and McDermott, as well as Police Officer 

Fitzgerald. On November 25, 2013, Detective Crone received an 

official reprimand for failing to report a violent domestic dispute. 

Additionally, on August 29, 2018 the Philadelphia Inquirer 

reported that Detective Crone was under internal investigation for 

writing racially charged memo to an African-American colleague. 

[Appellant] avers that Detective Crone is also under investigation 

____________________________________________

5 Brady v. Maryland, 373 U.S. 83 (1963) (holding a defendant must establish 

the prosecution withheld evidence favorable to the defense and that but for 

the suppression there is a reasonable probability that the verdict would have 

differed). 
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for misconduct related to Commonwealth v. Tyheed Brown, (CP51 -CR-0002593- 2018) and requests that the Commonwealth 

provide the findings of the internal investigation into Detective 

Crone's letter and his involvement in that matter.

Detective McDermott, then a patrol officer, was 

reprimanded on July 18, 1993, after verbally and physically 

abusing a prisoner during transport and failing to report that he 

used his blackjack. [Appellant] provided the Misconduct Disclosure 

he received through his Right to Know requests, which was almost 

entirely redacted except for the conclusion, finding Detective

McDermott guilty of misconduct. [Appellant] further avers that 

Detective McDermott is no longer employed by the Philadelphia 

Police and that his misconduct in Commonwealth v. Warren

Wooden (CP-51 -CR-0010810-2010) is being investigated, and 

requests the Commonwealth pass this information to him.

On April 1, 1997, Officer Fitzgerald had been reprimanded 

for falsely describing the way other police officers removed an 

unnamed paralyzed individual from an Emergency Patrol Wagon. 

This occurred after another officer pistol-whipped that individual, 

causing a cut to his ear. While in the Emergency Patrol Wagon, 

that individual fell forward and hit his head, causing him to be 

permanently paralyzed from the neck down.

[Appellant] cannot succeed on his claims of Brady violations. 

[Appellant] fails to relate claims investigators' misconduct in other 

matters to his underlying conviction. Other than bald assertions 

that their misconduct in other matters implicates their 

involvement in this matter, [Appellant] has not established that 

any of these instances are relevant to his case. [Appellant] would 

only be able to use this information to impeach the testimony of 

Detectives Crone and McDermott and Police Officer Fitzpatrick, 

and this information has limited value as impeachment evidence. 

The misconduct of Detective Crone occurred after his involvement 

and could not be introduced in this matter and did not implicate 

his investigation procedures as a detective. The misconduct of 

Detective McDermott and Police Officer Fitzpatrick are both

equally archaic and irrelevant, and do not implicate their 

investigation of the Petitioner's matter.

Moreover, [Appellant] would not have been unable to 

impeach Detective McDermott and Police Officer Fitzgerald [sic] 

with this information because both incidents occurred over ten

years before [Appellant’s] trial. See Pa.R.E. 609(b) (prohibiting 

use crimen falsi convictions over ten years old unless their 

probative value substantially outweighs their prejudicial effect).

Detective McDermott's misconduct pertained to his behavior as a 
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patrol officer and occurred nearly nineteen years before the 

Petitioner's trial while Police Officer Fitzpatrick's misconduct

occurred nearly fifteen years previously. Because [Appellant]

cannot show that these instances are relevant in any way to his 

matter or that he would have been able to even introduce them 

at trial, he his [sic] entitled to neither an evidentiary hearing nor 

relief on this claim.

Addressing [Appellant’s] discovery claims: it is axiomatic 

that in PCRA proceedings discovery is only permitted upon leave 

of court after a showing of exceptional circumstances. 42 Pa.C.S. 

§ 9545(d)(2); Pa.R.Crim.P. 902(E)(1). Exceptional circumstances 

are not defined, and the Superior Court has consistently 

reaffirmed that it is in the discretion of the trial court to determine 

whether a case is exception [sic] and discovery is warranted. 

Commonwealth v. Frey, 41 A.3d 605, 611 (Pa.Super. 2012). A 

“mere speculation” that exculpatory evidence exists does not

establish exceptional circumstances. Id. (citing Commonwealth 

v. Dickerson, 900 A.2d 407, 412 (Pa. Super. 2006)).

[Appellant] has not established exceptional circumstances 

in this matter because he has not established that the past 

behavior of police is in anyway [sic] relevant to his underlying

conviction. Because granting discovery would be tantamount to 

granting a license for a fishing expedition, his request for 

discovery is denied.

Even though [Appellant’s] remaining after-discovered 

evidence claim with respect to the testimony of Warren is 

untimely, this [c]ourt shall briefly address its merits for the benefit 

of any future proceeding. A petitioner seeking relief under the 

PC.RA must also show that their claims are not previously 

litigated. 42 Pa.C.S. § 9544. A claim is previously litigated if the

highest appellate court in which the petitioner could have had 

review as a matter of right has ruled on the merits of the issue. 

Commonwealth v. Reid, 235 A.3d 1124, 1144 (Pa. 2020). While

the letter from Warren's attorney to ADA Watson Stokes is new, 

[Appellant] has raised the issue of Warren's testimony on direct 

appeal and in his previous PCRA petition and the Superior Court 

of Pennsylvania has affirmed this Court's dismissal of those claims 

each time.

On October 4, 2012, Warren testified that he did not know 

that [Appellant], codefendant Cooper, or “GoGo” were armed. 

before Cobb drew his firearm. N.T. 10/4/12 at 137; 139-140. 

Court was adjourned without Warren being able to complete his

testimony. The trial court ordered Warren not to speak to anyone 

about the case until his testimony resumed on October 9, 2012. 
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On that day, in a conference with ADA Watson Stokes, 

[Appellant’s] and codefendant's defense counsels [sic], and 

Attorney Bowe, Attorney Bowe informed the [c]ourt that ADA

Watson Stokes contacted him over the weekend and informed him 

that she was not pleased with Warren's testimony because she 

believed it contradicted his previous statement to police. Warren

was cross-examined by the defense, outside the presence of the 

jury, on what he was told over the weekend. Warren testified that 

he had spoken to his mother and Attorney Bowe, in violation of 

the [c]ourt’s sequestration order, but nothing that was said would 

change his testimony. Both counsel for [Appellant] and codefendant moved for a mistrial. Warren's testimony resumed on

October 9, 2012, and on re-direct examination, contradicted his 

previous statement that he knew his colleagues had firearms 

before they got into the van because he had seen the weapons. 

N.T. 10/9/2012 101-102.

Warren's turnabout prompted both defense attorneys to 

argue, at sidebar, that his change of testimony made relevant the 

entirety of the conversation between ADA Watson Stokes and

Attorney Bowe and renewed their motion for a mistrial, which was 

denied. Instead, the trial court accepted the following stipulation:

Over the weekend, the District Attorney spoke to the 

witness’ lawyer and told him that she was dissatisfied 

with the witness’ testimony because he testified that he 

didn't see anyone get in the van with a gun, whereas 

during trial preparation and in a pretrial interview he had 

stated that all three men had guns when they got in the 

van. The witness’s attorney then communicated this to 

the witness and indicated to him that this might affect 

future proceedings before Judge Minehart [the 

resentencing judge].

N.T. 10/9/2012 at 146. When [Appellant’s] counsel crossexamined Warren, he once again changed his testimony, and 

explained that he did not know that his colleagues were armed 

before they got in the car. Id. at 151.

On direct appeal, [Appellant] challenged the trial court's 

failure to grant a mistrial after conversations between the 

prosecution and Warren's attorney came to light. Judge Temin 

denied the motion for a mistrial, finding that a new trial would not 

be the appropriate remedy because Warren would still be in the 

same position. Judge Temin stated: “I'm sure that he already 

knows that his sentence depended on whether or not he ... 

‘cooperated’ with the Commonwealth. And ... ‘cooperated’ means 

to testify in a certain way. I'm sure he knows that. He's not stupid. 
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And that's what every witness ... who is a cooperatingcodefendant [knows]. So, I don't think that he knows any more 

now after having spoken to Mr. Bowe [than] when [defense 

counsel was] cross-examining him."” N.T. 10/9/2012 33-34. On 

September 11, 2017, the Superior Court of Pennsylvania, affirmed 

this Court's dismissal of [Appellant’s] claim that Judge Temin 

erred in not granting a mistrial, finding that in any future 

proceeding, the risk of Warren losing out on any favorable 

resentencing would be an ever-present-specter shadowing his 

testimony. To that end, Judge Temin informed jurors that they 

may view Warren's testimony as an attempt to “curry favor” with 

the Commonwealth. N.T. 10/10/2012 at 164.

Additionally, in [Appellant’s] previous PCRA petition, he 

argued that his trial counsel was ineffective for failing to object to 

the Commonwealth's failure to disclose its agreement of

understanding with Warren. As discussed in this Court's April 19, 

2018 Order and Opinion Dismissing the Petitioner's claim, the 

Petitioner fails to establish that the Commonwealth and Warren 

had any agreement. Id. at *10-11. The letter from Attorney Bowe 

indicates that Judge Minehart might “look favorably” upon 

Warren's cooperation at his resentencing hearing, a fact which 

was known and analyzed at length during his testimony. The letter 

does not indicate that there was a definite agreement between the 

Commonwealth and Warren, and merely indicates the possibility 

of a more favorable sentence should he cooperate with the 

Commonwealth. Ultimately, the decision on how to resentence 

Warren rested solely in the purview of Judge Minehart, whose

decision was not reduced to a contractual certainty. 12 Ultimately, 

On October 26, 2012, Judge Minehart resentenced Warren to 

twelve and a half to twenty-years imprisonment on the charge of 

Third-Degree Murder, and imposed a consecutive ten years of 

reporting probation for Conspiracy. 13

[Appellant’s] assertion that the letter from Attorney Bowe 

to ADA Watson Stokes is not previously litigated is belied by the 

record. The unusual facts surrounding this matter have been 

litigated ad nauseam and this instant attempt to relitigate matters 

fails, just as before.

_____

12 The Superior Court specifically addressed lack of an explicit 

agreement between Warren and the Commonwealth:
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Our Review of the transcripts has not revealed an explicit 

admission that Warren had an agreement with the 

Commonwealth. Warren himself repeatedly denied that

he had any form of deal with the Commonwealth, while 

admitting that he was hoping that his sentence would be 

reduced. N.T. 10/9/12 57-58. Given the arguments of 

the parties and statements of the trial court in the 

transcript before us, it is clear that Warren was, to some 

extent, cooperating with the district attorney's office and 

he had some expectation that his previously vacated 

sentence could be reduced upon resentencing if he 

curried favor with the district attorney.

Commonwealth v. Verdier, 2910 EDA 2016, at n. 6 (Pa. Super. 

Decided September 11, 2017) (unpublished memorandum).

13 Judge Minehart originally imposed consecutive sentences of 

imprisonment of twelve and a half to twenty-five years for ThirdDegree Murder, five to ten years for each count of Aggravated 

Assault, and a concurrent sentence of ten to twenty years 

imprisonment for Conspiracy, for at total sentence of thirty-two 

and a half to sixty-five years imprisonment. At the resentencing,

Judge Minehart imposed no further penalty on the Aggravated 

Assault charges.

PCRA Court Opinion, filed 5/6/21, at 8-16. 

Upon our review of the record, we find no abuse of discretion. Appellant 

indicates only that Detectives Crone and McDermott and Officer Fitzpatrick 

“worked on his case,” and a review of the record reveals they were among 

numerous Philadelphia Police Officers associated with the investigation.

Importantly, Detective Crone was involved in a domestic disturbance which 

occurred after Appellant’s arrest and bore no relation to Appellant’s trial. The 

offensive letter he admitted to writing was not addressed to a named 

individual and was penned after Appellant’s trial. 
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Detective McDermott’s reprimand stemmed from his verbal and physical 

abuse of a suspect over fifteen years prior to Appellant’s arrest, and his 

hearing was held on July 18, 1993. Also, Officer Fitzpatrick’s discipline record 

revealed he had been driving a van transporting a prisoner on April 1, 1997, 

fifteen years prior to Appellant’s trial, who was assaulted and seriously injured 

by other officers riding therein. 

Although the behavior which led to the disciplinary actions taken against 

these police officers is certainly troubling, these records alone cannot support

a successful claim of after-discovered evidence under Section 

9454(b)(1)(a)(vi) or, in the alternative, of Brady violation herein, for 

Appellant has failed to show a nexus between them and his convictions. 

Appellant simply presents a summary of the officers’ behavior and resultant 

discipline and stresses that this information became known to him only as a 

result of the recent disclosure in conjunction with co-defendant’s PCRA 

petition. Appellant’s Brief at 18-23. 

Appellant thereafter baldly alleges the disciplinary records “could have” 

been used to call the entire investigation of the murder of which he had been 

convicted into doubt and lead to a different verdict. Id. at 24-26. He similarly 

attempts to invoke the “newly disclosed facts/evidence exception” to the PCRA 

time bar by baldly claiming the Jacque Warren’s letter reveals previously 

unknown information that Warren knew the trial court would “look favorably” 

on his cooperation in this case. Id. at 28-29. Therefore, we find that, for the 
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reasons supplied by the PCRA court, the record conclusively establishes that 

defendant's proffered “after-discovered evidence/facts” could not entitle him 

to relief. 

In his third issue, Appellant maintains the PCRA court erred and abused 

its discretion in denying his discovery request for information regarding 

alleged pending investigations by the Conviction Integrity Unit of the District 

Attorney’s Office relating to Detectives Crone and McDermott. Regarding 

discovery in PCRA proceedings, Rule 902(E) of the Pennsylvania Rules of 

Criminal Procedure provides:

(E) Requests for Discovery

(1) Except as provided in paragraph (E)(2), no discovery shall be 

permitted at any stage of the proceedings, except upon leave of 

court after a showing of exceptional circumstances.

(2) On the first counseled petition in a death penalty case, no 

discovery shall be permitted at any stage of the proceedings, 

except upon leave of court after a showing of good cause.

Pa.R.Crim.P. 902(E). As this is not a death penalty case, Appellant was 

required to demonstrate exceptional circumstances in support of his discovery

request. 

As the PCRA court acknowledged, the PCRA and the applicable rules do 

not define “exceptional circumstances” that would support discovery on 

collateral review, but rather it is within the province of the PCRA court to 

determine, in its discretion, whether a case is exceptional and discovery is 

warranted. This Court will not reverse the PCRA court’s determination absent 
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an abuse of discretion. Commonwealth v. Frey, 41 A.3d 605, 611 

(Pa.Super. 2012). 

“Mere speculation” that exculpatory evidence may exist does not 

establish that exceptional circumstances exist. Commonwealth v. 

Dickerson, 900 A.2d 407, 412 (Pa.Super. 2006); Commonwealth v. 

Hanible, 30 A.3d 426, 452 (Pa. 2011) (holding that a showing of good cause 

under Rule 902(E)(2) “requires more than just a generic demand for 

potentially exculpatory evidence”). 

Herein, Appellant supports his claim that he is entitled to discovery with 

speculation and bald allegations that he might discover exculpatory evidence

pertaining to ongoing proceedings relating to the officers. Thus, we find the 

PCRA court did not abuse its discretion in its determination that Appellant did 

not show exceptional circumstances to warrant production of the discovery he 

requested.

Finally, when deciding the PCRA court’s alleged error in not granting 

defendant an evidentiary hearing, we are mindful that “[i]t 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 decision to 

dismiss a defendant's petition without a hearing, defendant must show “he 
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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.” Maddrey, 205 A.3d at 328 (quoting Commonwealth v. 

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

For the reasons set forth above, we find the trial court did not abuse its 

discretion in dismissing Appellant’s second petition without an evidentiary 

hearing.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/11/2022