Commonwealth v. Ortiz, 2086 MDA 2018

CourtSuperior Court of Pennsylvania
Writing for the CourtOLSON, J.
Decision Date11 January 2022
PartiesCOMMONWEALTH OF PENNSYLVANIA v. MELVIN ORTIZ Appellant
Docket NumberJ-A25019-20,2086 MDA 2018

COMMONWEALTH OF PENNSYLVANIA
v.

MELVIN ORTIZ Appellant

No. 2086 MDA 2018

J-A25019-20

Superior Court of Pennsylvania

January 11, 2022


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered June 21, 2018 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0001050-1998

BEFORE: BOWES, J., OLSON, J., and KING, J.

MEMORANDUM

OLSON, J.

Appellant, Melvin Ortiz, appeals from the June 21, 2018 judgment of sentence, as made final by the denial of Appellant's post-sentence motion on November 26, 2018.[1] We affirm Appellant's judgment of sentence but vacate the order denying Appellant's post-sentence motion, in part, and remand this case for further proceedings in accordance with this memorandum.[2]

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The record demonstrates that on May 28, 1999, a jury convicted Appellant of second-degree murder, robbery, aggravated assault (death or serious bodily injury caused), recklessly endangering another person, possession of an instrument of crime, criminal attempt to commit theft by unlawful taking, and criminal conspiracy.[3] Appellant's convictions arose from the shooting death of a victim during an attempted robbery of a restaurant in Reading, Pennsylvania on December 23, 1997. At the time of the incident, Appellant was 17 years old. On June 15, 1999, the trial court sentenced Appellant to life imprisonment without parole for second-degree murder, as well as 10 to 20 years' incarceration for conspiracy to commit robbery and 2½ to 5 years' incarceration for possession of an instrument of crime. The trial court imposed the latter two sentences consecutive to Appellant's life sentence.[4] In total, Appellant's aggregate sentence was life imprisonment

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followed by 22½ to 45 years' imprisonment. This Court affirmed Appellant's judgment of sentence, and Appellant did not seek discretionary review with our Supreme Court. See Commonwealth v. Ortiz, 1145 MDA 1999 (Pa. Super. Filed June 13, 2000) (unpublished memorandum).

Between May 2001, and October 2012, Appellant filed five PCRA petitions, as well as a petition for writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania. Ultimately, Appellant was denied relief on each petition. On February 8, 2016, Appellant filed his sixth PCRA petition, alleging,

I am eligible for relief because I was 17 years of age at the time of the offense and imposition of a sentence of mandatory life in prison [without parole] is a violation of the Eighth Amendment's prohibition against cruel and unusual punishment and Article I, Section 13 of the [Pennsylvania] Constitution as interpreted by Miller v. Alabama [567 U.S. 460 (2012)]. On January 25, 2016, the United States Supreme Court[, in Montgomery v. Louisiana, 136 S.Ct. 718 (2016), ] held [that the] Miller decision [was] retroactive to collateral review. In addition, I am eligible for relief based on the Commonwealth's suppression of information material to [my] defense in violation of Brady v. Maryland, 373 U.S. 83 [] (1963) and Smith v. Cain, [565 U.S. 73 (2012).]

Appellant's PCRA Petition, 2/8/16, at ¶6. Appellant's PCRA petition set forth two grounds for relief. See Appellant's Memorandum of Law Supporting PCRA Petition, 2/8/16, at unnumbered pages 19-22. Appellant's first ground for relief requested resentencing based upon the claim that Appellant's current

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sentence of mandatory life imprisonment without parole violated the Fifth, Eighth, and Fourteenth Amendments of the United States Constitution pursuant to Miller, supra, which was held to apply retroactively in Montgomery, supra. Appellant's Memorandum of Law Supporting PCRA Petition, 2/8/16, at unnumbered pages 19-20. Appellant's second ground for relief sought a new trial on the basis that the Commonwealth's nondisclosure of certain material violated Appellant's due process rights under the Fifth, Sixth, and Fourteenth Amendments pursuant to Brady, supra, and Giglio v. United States, 405 U.S. 150 (1972). Appellant's Memorandum of Law Supporting PCRA Petition, 2/8/16, at unnumbered pages 20-22.

On February 18, 2016, the PCRA court granted Appellant's petition, in part, pursuant to Miller, supra, and Montgomery, supra.[5] As to Appellant's Brady claim, the PCRA court ordered the Commonwealth to file an answer to Appellant's request for a new trial within 30 days. See PCRA Court Order, 2/18/16. In the meantime, the trial court stayed Appellant's resentencing pending our Supreme Court's decision in Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017) ("Batts II").

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On April 12, 2018, the PCRA court denied Appellant's petition as to the Brady claim. See PCRA Court Order, 4/12/18. On June 21, 2018, the trial court resentenced Appellant to a term of 35 years to life imprisonment for his conviction of second-degree murder.[6] The trial court also resentenced

Appellant to 2½ to 5 years' incarceration for possession of an instrument of crime and 10 to 20 years' incarceration for conspiracy to commit robbery. The latter two sentences were to run concurrent to Appellant's sentence for second-degree murder.[7] Appellant's newly-imposed aggregate sentence was now 35 years to life imprisonment.

On June 29, 2018, [8] Appellant filed a post-sentence motion pursuant to Pennsylvania Rule of Criminal Procedure 720 requesting a new trial based upon after-discovered evidence or, in the alternative, a modification of his sentence on the grounds that, inter alia, the trial court miscalculated his prior record score and his sentence was excessive. Appellant's Post-Sentence Motion, 6/29/18, at 17-27. On October 11, 2018, the trial court granted Appellant's motion to extend the disposition period in which to decide the

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post-sentence motion and ordered that the time for decision be extended thirty days. See Trial Court Order, 10/11/18. Ultimately, the trial court denied Appellant's post-sentence motion on November 26, 2018. On

December 20, 2018, Appellant filed a notice of appeal. The trial court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Appellant timely complied. The trial court subsequently filed its Rule 1925(a) opinion on December 9, 2019.

Appellant raises the following issues for our review:

[1.] Whether the [trial] court erred in denying [Appellant's] post-sentence motion?
A. Whether the [trial] court erred in denying [Appellant's] motion for [a] new trial based on after[-]discovered evidence?
B. Whether the [trial] court erred in denying [Appellant's] motion to modify [his] sentence?
[2.] Whether the [PCRA] court erred in denying [Appellant's] claim presented in his [sixth] PCRA petition that the Commonwealth violated Brady[, supra, ] and Giglio[, supra, ] when it withheld the full extent of John Caltagirone's criminal record during the trial and failed to correct Caltagirone's trial testimony that most of his contact with law enforcement had been as a victim and whether the appeal of this issue is timely where no [Pennsylvania Rule of Criminal Procedure] 907 notice was issued [before] this claim was denied?

Appellant's Brief at 3 (extraneous capitalization omitted).

Before we address the merits of Appellant's contentions, we recount the relevant procedural developments that preceded this appeal, as these events

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shape the course and scope of our review. In June 1999, Appellant was sentenced to an aggregate term of life imprisonment followed by 22½ to 45 years' incarceration for second-degree murder and related offenses, which were committed when Appellant was 17 years of age. Fast-forward nearly two decades, five unsuccessful PCRA petitions, and one unsuccessful petition for writ of habeas corpus, and Appellant filed his sixth PCRA petition on February 8, 2016. In his sixth PCRA petition, Appellant raised a claim alleging that his sentence of mandatory life imprisonment without parole was illegal pursuant to Miller, supra, and Montgomery, supra, because he was 17 years old when the crimes were committed. Appellant also claimed that the Commonwealth violated his constitutional rights pursuant to Brady, supra, and its progeny, by failing to disclose certain material. Ultimately, the PCRA court granted Appellant relief pursuant to Miller, supra, and Montgomery, supra, but denied his Brady claim. Appellant did not appeal the PCRA court's April 12, 2018 order denying his Brady claim.[9]

While Appellant awaited resentencing, a recanting witness, as more fully discussed infra, executed an affidavit on April 24, 2018, in which she recanted her trial testimony and, for the first time, identified the shooter as someone

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other than Appellant. Appellant first raised this after-discovered evidence, namely the recanting witness's affidavit, during his resentencing hearing on June 21, 2018. At the resentencing hearing, counsel for Appellant asked the trial court, prior to imposing Appellant's new sentence, to consider the "circumstances of the homicide offense, including the extent of [Appellant's] participation in [committing the offense.]" N.T., 6/21/18, at 21. Counsel submitted the recanting witness's affidavit as after-discovered evidence of Appellant's innocence in the shooting death of the victim. Id. at 22. Counsel also attempted, unsuccessfully, to present the testimony of the recanting witness at the resentencing hearing. Id. at 24. The Commonwealth asserted that recantation of the witness' trial testimony was the subject of Appellant's second and fourth PCRA petitions, which were ultimately denied. Id. at 25. The Commonwealth argued that Appellant's introduction of the recanting witness's affidavit and the attempt to have the recanting witness testify at the resentencing hearing was an effort to "open [the] door to a second bite at the apple [of the] PCRA...

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