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Commonwealth of Pennsylvania v Frey

Case No. 852 MDA 2011 (PA Superior Ct., Mar. 20, 2012)

The Commonwealth appeals the order granting Duane Frey’s request for discovery in connection with his petition filed under the Post Conviction Relief Act (“PCRA”). We affirm the order.

Facts



On May 25, 2002, Hopethan Johnson bought a motorcycle. At some point, he left the motorcycle in a garage belonging to a man named Stacey Farmer.

On May 26, 2002, at roughly 10:30 a.m., Johnson left a certain residence in order to meet friends. He did not reach the meeting place.

Also on May 26, 2002, at roughly 11:30 a.m., a neighbor of Stacey Farmer reported to police that she had heard approximately five gunshots in the woods behind Farmer’s home. Upon investigating, police found nothing unusual, but did notice a truck registered to Frey in Farmer’s driveway.

In June 2002, police received an anonymous tip that a murder had happened near Farmer’s residence. During the ensuing investigation, police found shotgun wads in the woods behind Farmer’s house. Also found near Farmer’s home was a garbage bag containing, inter alia, Johnson’s cell phone. Police found shotgun shells in Frey’s house and car. Additionally, police located Johnson’s motorcycle hidden under a pile of items near Frey’s place of employment. Embedded in parts of the motorcycle were shotgun pellets.
 

 

Judge(s): Robert E. Colville
Jurisdiction: Pennsylvania Superior Court
Court of Appeals Judge(s)
Mary Bowes
Robert Colville
James Fitzgerald, III

 

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falling far short of the ‘good cause’ requirement of rule 902(e)(2).” id.; court denies a petition for allowance of appeal, the petitioner has ninety n r.” id. at 178. again what i did with it,” and that “nobody would ever know where it was.” ____________________________________________ ____________________________________________ new trial that appellee was granted discovery; specifically, he was granted specifically, johnson’s remains and the forensic report relating thereto. part in the court of common pleas of york county law. id. moreover, we recall that the appellant has the duty to convince us unusual, but did notice a truck registered to frey in farmer’s driveway. frey’s pcra allegations were somewhat fluid and were not phrased with the commonwealth appeals the order granting duane frey’s request j-s71030-11 a collateral order is one having all of the following killed johnson and would have compelled a not guilty matter on the following basis: death. jurisdiction: appealability of order 1 filing exception is evaluated pursuant to the statutory requirements of 42 there are at least some indications in the record that police also supreme court has upheld a refusal to grant discovery in the pcra setting. the criteria of a collateral order. accordingly, the order is properly farmer’s death was a homicide would likely compel a different verdict in this - 5 - determined “the facts of both homicides indicate that they may have been access to his homicide file, which was sought due to the fact that it might j-s71030-11 with the backdrop of these somewhat unusual facts, the record before of the somewhat uncommon case facts discussed supra, led the court to however, the commonwealth does not offer even a general explanation conversation occurred, appellee left farmer’s house and returned later that us indicates frey, johnson and farmer were involved together in nefarious dissenting opinion by bowes, j.: johnson [from appellee’s girlfriend] it is likely that a jury a death penalty case, no discovery shall be permitted at any stage of the farmer’s statement to ms. strausbaugh was admitted into evidence as an activities, most likely drug-related, that may well have been connected to - 7 - may have occurred between six months and several years prior to the was stacey farmer’s girlfriend in may 2002 and was living at his home. and at very nearly the same location. police testimony offered during a his once a petitioner’s judgment of sentence becomes final, the petitioner the u.s. supreme court, or at the expiration of the time limit for seeking reason, though not the only possible reason, that discovery requests are such was timely under 42 pa.c.s. § 9545 (b)(1) because it was filed within appellant - 8 - - 9 - 2012 pa super 66 we realize the commonwealth maintains frey killed johnson and knew no money or no crack.” id. at 340. after appellee looked through commonwealth of pennsylvania, in the superior court of in june 2002, police received an anonymous tip that a murder had we understand that the commonwealth offered pcra testimony from late, the commonwealth wrongly focuses on the merits of frey’s underlying questioned with respect to farmer’s demise. all of these facts, taken hearing related to frey’s pcra discovery request revealed that some of the unreasonable or was a misapplication of the law. consequently, we are not j-s71030-11 emanating from a wooded area behind farmer’s house. the neighbor coroner stated that the date of death was anywhere between six months to commonwealth v. frey, 998 a.2d 1024 (pa.super. 2010) (unpublished - 11 - not have been earlier ascertained by the exercise of due diligence. although charges arose from the may 26, 2002 death of hopethan johnson, who sold made in criminal cases. based upon after-discovered evidence alleging the following. on june 2, question, which was the sunday of memorial day weekend, stacey farmer’s unusual case history, the reasonable possibility of a common killer and the appellee confessed to police that he had murdered johnson. him.” id. at 195. appellee also said that, “he had a shotgun behind the they are final, interlocutory and appealable by right or permission, or back to the same location and killed farmer. j-s71030-11 not shown it is entitled to relief. documents. the commonwealth simply has not established that bias, that review. 42 pa.c.s.a. § 9545(b)(3). after the pennsylvania supreme in my view, appellee has utterly failed to establish good cause for reasoned that the facts in this case suggested a particular link—i.e., a in jail awaiting trial, farmer was shot in the head and killed. opinion rejected by the pcra court. certiorari. told appellee that he should give it to johnson’s family. in response, farmer’s home was a garbage bag containing, inter alia, johnson’s cell also shot johnson, that person could not have been frey because frey was id. at 211 (internal citations omitted). donald hopple, jr., heard appellee make a second confession. specifically, johnson’s death. the johnson and farmer homicides occurred close in time day. at that time, appellee started “looking for any of [johnson’s] stuff. he discovery shall be permitted at any stage of the proceedings, except upon investigation of farmer’s death based on the reasonable theory that those evidence existed was conjectural. it stated, “as with the previous claim, information in the farmer file. moreover, we are satisfied the issue of pleads and proves a statutory exception to the normal one-year filing 36. this would have led to reasonable doubt that defendant j-s71030-11 finally, the commonwealth contends that releasing information ____________________________________________ duane lee frey, identical language, and was interpreted consistently. see commonwealth demand for potentially exculpatory evidence.” id. at 484 (quoting remains until late may 2010, and did not provide him with the forensic report facts timeliness exception based on previously unknown facts are distinct. commonwealth v. frey, 872 a.2d 1270 (pa. super. 2005). on december would have concluded that the deaths of farmer and the woods behind farmer’s home. upon investigating, police found nothing cause why this information, if it existed, would have been exculpatory to 30. defendant could not have been responsible for farmer’s j-s71030-11 reasoned that the individual that killed johnson also came appellee posited that the autopsy provided exculpatory evidence that frey made particular requests for specific documents relating to the the commonwealth argues the pcra court abused its discretion by conclude the order on appeal had sufficient public importance so as to johnson in 2000. he recalled that prior to the memorial day weekend of id. § 9545(b)(1)(ii). this statutory exception, like any exception under the question of whether frey is entitled, under the pcra, to discovery of the ordering discovery. more specifically, the commonwealth contends the court connection with farmer’s death. frey denied involvement. although the (b)(1)(ii) and (b)(2).” in this petition, appellee claimed that he discovered j-s71030-11 [the defendant] has not made a showing of good cause as he is unaware - 3 - the commonwealth, nonetheless, characterizes frey’s discovery has only one year in which to file a pcra petition unless the petitioner other evidence contained in the farmer investigative file would thus be nothing unusual. at that time, police did see a truck registered to appellee after this - 15 - new trial based upon after-discovered evidence under 42 pa.c.s. § 9545 j-s71030-11 frey’s pcra petition (e.g., that some unknown person who killed farmer 902 (e)(1). our supreme court has had numerous opportunities to interpret over frey’s pcra petition. see 42 pa.c.s.a. § 9545(d)(2); pa.r.crim.p. report. frey essentially contended this new evidence cast doubt on the dickerson, 900 a.2d at 412. the pcra court recognized this legal principle. pa.c.s.a. § 9545(b)(1)(ii), (2). as we have explained, frey satisfied those in appellee’s truck and residence. both a twelve gauge and a twenty gauge judge bowes files a dissenting opinion. revealing facts would be harmful, the commonwealth might find it difficult to were we to follow the commonwealth’s argument, we would effectively deny report relating to the skeleton. thereafter, apparently in 2010, the the credulity of commonwealth witnesses, and might have proven another shotgun were discovered in appellee’s home after the murder. requested materials relating to the farmer investigation is too important to jurisdiction: timeliness of pcra petition appellee “just freaked out, just started saying don’t ever f g ask me deadline. 42 pa.c.s.a. § 9545(b)(1). one such exception arises where the johnson’s motorcycle, embedded with shotgun pellets, was found behind denied review, appellee filed a timely pcra petition, counsel was appointed, timely.3 before: bowes, colville* have been connected. ** johnson. police suspected farmer was directly or indirectly involved in 2010, appellee discovered through a news outlet that a body was recovered expressed some skepticism about whether the various theories underlying reveal possible trial court errors or exculpatory evidence was speculative. information in one way or another as to what he knew about johnson’s those of johnson. of direct review, including discretionary review in the pennsylvania court and until june 2010. frey filed his pcra petition within sixty days of receiving hence, i respectfully dissent. analysis, however, the commonwealth merely points to the opinion offered however, the pcra court was not obligated to accept that testimony and, in also, the question of whether the commonwealth must disclose the therefore could not have murdered johnson in 2002. second, two sizes of of course, mere speculation that exculpatory evidence might exist information might reveal potentially exculpatory evidence. j-s71030-11 specifically, appellee told police that he owed johnson money and that he documents may well contain evidence tending to show a killer common to suspected farmer was connected, directly or indirectly, to johnson’s death. court’s order. perhaps two, were involved in shooting johnson, and if farmer was one of evidence claim. while we understand it is important to recognize the sought discovery of police and ballistic reports, eyewitness statements, essentially took the position that johnson’s killer or an accomplice thereto i believe that appellee’s discovery request, wherein he sought to request as a “fishing expedition.” appellant’s brief at 16. this we have discussed collateral orders as follows: out,” and told strausbaugh that appellee shot johnson and that “he [, deaths of farmer and johnson and that the same person shot both men. exceptional circumstances, the court ordered discovery of the farmer pcra theories. thus, this case does not involve a baseless or speculative on may 25, 2002, hopethan johnson bought a motorcycle. at some reasonable belief that the farmer investigative documents may reveal johnson were related. evidence that could arguably suggest multiple persons were involved in the - 6 - was convicted of the killing. the pcra was plainly not designed to deny demonstrated that he was entitled to a new trial and that the motion for got his helmet and there was a jacket laying there and he got that.” id. at farmer was murdered, the jury was unable to hear situation, though not an altogether unique one, where a murder trial was (pa. super. 2006). darin stump testified similarly. he was appellee’s friend and met j-s71030-11 access to ballistic reports and his homicide file. the supreme court related charges. this court affirmed his judgment of sentence. , jj. commonwealth has not persuaded us the court’s ruling was manifestly criminal division at no.: cp-67-cr-0005052-2002 frey the right to invoke the statutory exception at issue merely because he pcra court opinion, 06/30/11, at 3. however, once again, the court - 2 - received on june 8, 2010. appellee contended that the autopsy results 29. at the time of farmer’s death, defendant was in custody. as in this case, are adjudicated fairly. ** discovery in the pcra context is governed by pa.r.crim.p. 902, which - 7 - between the murders of farmer and johnson, possibly evidencing a common 196. in the pcra context, a lesser standard than exceptional circumstances, is that appellee bought. appellee told stump that, “he was going to get the appealable. 30, 2005, the pennsylvania supreme court denied his petition for allowance the commonwealth also established the following. on the day of the other than urging us to accept the detective’s unsupported opinion, an this rule in the death penalty context, which is covered by pa.r.crim.p. 902 those policy concerns touch upon the public’s interest in effective evidence supporting one or more of frey’s pcra theories. in light of these although johnson’s body had not yet been found, frey was eventually shooter common to both farmer and johnson could cast doubt on the johnson’s car “to pittsburgh to get rid of it.” id. at 347. a couple of days does not satisfy the requirements of rule 902(e)(2)”); commonwealth v. together, reasonably support the belief that the two homicides may well additionally, if appellate review is postponed, the commonwealth will included the claim that he had lied to police by giving false or incomplete excited utterance, and, on direct appeal, we affirmed the trial court’s ruling testimony concerning farmer’s death. requested materials. indeed, this lack of knowledge is often the main 42 pa.c.s.a. § 9545(b)(1)(ii), (2). because the jury heard testimony that farmer killed regarding the farmer homicide would be detrimental to the ongoing johnson. appellee confessed to police to killing johnson with a shotgun. this particular case because it appears frey’s substantive pcra claims that are satisfied that frey successfully invoked a time-of-filing exception under pennsylvania appellee and thus, the different sized pellets found in the skeletal remains to show that frey does not deserve relief on his underlying after-discovered and fitzgerald** retired senior judge assigned to the superior court. the johnson murder later killed farmer. id. this possibility, in the context detective hopple overheard appellee admit to his mother that he killed and, on appeal, we affirmed. commonwealth v. frey, 872 a.2d 1270 farmer. v. was a critical fact. third, appellee noted that there was evidence that relevant to the facts of the johnson murder. residence in order to meet friends. he did not reach the meeting place. that the information was necessary for him to show similarities between the predecessor to pa.r.crim.p. 902 was pa.r.crim.p. 1502, which contained happier.” id. strausbaugh also overheard appellee tell farmer that he took j-s71030-11 recovered from the odometer and speedometer of johnson’s motorcycle and not present based upon unsubstantiated allegations that the requested and frey bought drugs from johnson. johnson, believed that johnson and holloway had cheated him financially, unwarranted when the defendant presents a conjectural and unsubstantiated reported the matter to police, who went to farmer’s house and found question of whether johnson was killed in 2002, as the commonwealth had following reasons, the commonwealth’s position fails. in the present case, appellee has leveled unsubstantiated allegations pa.r.crim.p. 902(e)(1). the pcra and the criminal rules do not define the the aforesaid characteristics, it is not enough that the issue at commonwealth secured dna testing that identified the remains as being pellets were found on either side of the body. appellee noted that there was super. 2011). an abuse occurred. commonwealth v. bennett, 19 a.3d 541, 543 (pa. - 9 - j-s71030-11 investigation of crimes while seeing that claims of wrongful convictions, such nevertheless, that order arises because of the court’s exercise of jurisdiction 13. appellee no. 852 mda 2011 request properly described as a “fishing expedition.” we will not disturb a court’s determination regarding the existence of id. at 348-49. shooting death. the commonwealth does not maintain that the existence of jurisdiction to issue the discovery order in question. j-s71030-11 out.” n.t. trial, 4/21-25/03, at 156. on april 23, 2003, a jury convicted appellee of first degree murder, alleging that police first determined in 2010 that farmer’s death was a demonstrated that those facts were previously unknown to him and could need to disclose the material now. any later ruling that the discovery was pennsylvania j-s71030-11 individual guilty of the crime. again, the court denied the defendant access convicted persons the right to invoke it or its various sections. on july 20, 2010, appellee filed a counseled motion for a new trial a disparity in the evidence about what size shotgun he used to murder commonwealth’s claim that frey shot johnson.2 farmer and johnson. moreover, facts of record do show a link between the johnson was overcharging him for drugs and wanted to kill him. first, just he was wrongly convicted of shooting johnson may be affected greatly by 2002, appellee was “upset with some of the dealings that [appellee and that is, it may be addressed without analyzing the ultimate issue that body was discovered, the commonwealth’s own report revealed forensic commonwealth of pennsylvania, in the superior court of photographs, and autopsy reports regarding the death of stacey farmer. 33. had the jury heard this evidence, it is likely that they based on our foregoing discussion, the commonwealth has not until final resolution of the case. with respect to the second of where his remains were. frey’s position is that he was wrongly convicted characteristics: (1) it is separable from the main cause of action- more particularly, it may be that johnson sold drugs from farmer’s residence petition essentially sought a new trial based on after-discovered evidence— v. petition was timely. rather, the question of whether he met the time-of- no evidence of trauma that would accompany a fall from a moving course, the discovery order does not itself grant substantive pcra relief. bridges, 886 a.2d 1127 (pa. 2005) (unsubstantiated position that a discovery order is, in fact, separable from the main cause of action. that is, it was in connection with this second, october 29, 2010 motion for a multiple shooters was part of its initial prosecution theory or that such a information. the court agreed that the defendant was not permitted access by an investigating detective that the two subject homicides were unrelated commonwealth v. hardy, 918 a.2d 766, 771 (pa. super. 2007). that is, demonstrated that it is entitled to relief. as such, we affirm the pcra to the ballistics report, the defendant argued that it might have been we note that discovery issues often may be addressed without this case is exceptional and that discovery is in order. similarly, the here, frey’s 2003 conviction followed the somewhat uncommon appeal from the order entered april 4, 2011, even still, the commonwealth points out that the pcra court of his judgment, was facially late. however, for the following reasons, we is certainly possible that an unknown accomplice to the johnson murder happened near farmer’s residence. during the ensuing investigation, police on march 25, 2008, and in 2010, it was identified as johnson’s remains discussion as to how detriment might result. we fully understand that, if j-s71030-11 days to seek discretionary review by the u.s. supreme court. u.s.sup.ct.r. murder, johnson borrowed stephanie summer’s car in order to ride a allegation that the requested material might prove him innocent. in whether the commonwealth must disclose material related to an ongoing farmer investigative documents can be addressed without analyzing the specific litigation before the court. v. williams, 732 a.2d 1167 (pa. 1999). scarborough, 9 a.3d 206, 210 (pa. super. 2010). orders are appealable if appellee’s place of employment, and police observed appellee’s truck parked on may 26, 2002, at roughly 10:30 a.m., johnson left a certain of the commonwealth’s theory that would warrant a vacation or reversal of frey’s judgment of sentence became final in 2006, after his deadline j-s71030-11 body and destroying a car used to transport it. the evidence viewed in the held when the decedent’s body had not yet been found. years later, when “leaned down to her and told her that he did it, that he killed him.” id. at 339. appellee said, “that he had shot him for nothing because he didn’t find frey’s claim for substantive relief is based on the commonwealth’s - 11 - - 16 - memorandum). an area behind farmer’s house. twelve gauge shotgun shells were located sometime in 2008, certain skeletal remains were found near the commonwealth v. collins, supra, the pcra court denied the defendant’s at the murder scene immediately after johnson was killed. also on may 26, 2002, at roughly 11:30 a.m., a neighbor of stacey j-s71030-11 it appears the commonwealth provided frey a copy of the 2008 forensic contain evidence exculpatory to him, information that could have impeached on the farmer case had been sealed. the commonwealth apparently secured the remains and a forensic report in farmer reported to police that she had heard approximately five gunshots in - 5 - 06/30/11, at 3. based on the multitude of facts before it, the court seat” of his car, and that “he was going to shoot [johnson] with it.” id. at * immediately after johnson left the area, appellee told snyder, “i’d like to kill and that he did not know the location of the remains. of course, even if arson, receiving stolen property, and tampering with evidence. these commonwealth witness holly strausbaugh testified as follows. she after the remains were discovered; the report was not given to frey until 32. because investigators only recently determined that our supreme court affirmed, noting the “pcra discovery request was the detective hopple observed an interaction between appellee and his mother the order at hand is a discovery order. moreover, this particular not appear that frey petitioned the u.s. supreme court for a writ of for discovery in connection with his petition filed under the post conviction while frey was in custody for johnson’s murder, farmer was found was not determined to be a homicide until 2010. pellets. (e)(2). that portion of the rule indicates, “on the first counseled petition in the two, and if the other was common to both shootings, then that - 10 - arrested in connection with johnson’s death. frey later admitted to the the supreme court cases are marked by a uniform position: discovery is frey did kill johnson, that guilt does not necessarily mean he knew where it appears police charged him with, inter alia, tampering with evidence in be denied review at this juncture. the question is crucial to the parties in multiple persons may have been involved in johnson’s death. in any event, documents may contain the kind of evidence frey seeks. moreover, j-s71030-11 subsequently killed farmer based upon the belief that farmer was going to murderer is identical to the man who murdered johnson. not only does maintained during frey’s trial. leave of court after a showing of exceptional circumstances.” pa.r.crim.p. question, johnson, farmer and frey had all been connected by drug activity. convinced the court abused its discretion. as such, the commonwealth has in farmer’s driveway. after appellee was arrested for johnson’s murder and whether the pcra court abused its discretion when deciding to order johnson was killed on his motorcycle but the skeletal remains demonstrated in the courtroom. appellee’s mother hugged appellee and told him not to also sold appellee drugs. holloway reported that appellee was irate with in this respect. commonwealth v. frey, 872 a.2d 1270 (pa.super. 2005) on august 30, 2010, that farmer’s death was a homicide and the fact that connection with the homicide. the allegations against farmer seem to have may have killed farmer, perhaps because the common killer feared farmer before: bowes, colville* ____________________________________________ record we have already discussed. characterization is unjustified. the fact that frey does not know for certain we must not write a party’s brief and develop the analysis necessary to a recent example is commonwealth v. hanible, 30 a.3d 426 (pa. in the court of common pleas of york county johnson. there was physical evidence linking appellee to the crime. 35. in the alternative, had the jury known that farmer, too, render the order collateral and appealable. in its brief, the commonwealth , jj. was denied. this court was affirmed the denial. commonwealth v. frey, in the underlying case; (2) the right in question is too important in summary, the record and the pcra court’s opinion demonstrate the not provided a sufficient amount of drugs for the money that he was paying court considered the appropriate law, evaluated the facts, and determined fire. police also found johnson’s motorcycle hidden under tarps behind motorcycle. underlying his position were these notions: if the person who shot farmer anyone saw johnson. ms. summer’s car was later discovered destroyed by him.” hanible, supra at 484. investigation. that opinion consisted of a cursory statement with little, if both johnson’s and farmer’s homicides. police arrested frey for killing 2 the claim will be irreparably lost if appellate review is postponed homicide. subsequently, in pcra proceedings convened by the court, frey have been raised. 42 pa.c.s.a. § 9545(b)(2). the commonwealth’s evidence established that appellee believed that therefore warranted. commonwealth v. dickerson, 900 a.2d 407, 412 observed that a “showing of good cause requires more than just a generic limited extent that the commonwealth attempts to argue the petition was about one-half hour after the murder, stacey farmer “was like all freaked retired senior judge assigned to the superior court. j-s71030-11 j-s71030-11 johnson’s jacket, he found some crack and that “seemed to make him a little absolute thoroughness or clarity. even still, it seems evident that, j-s71030-11 see also commonwealth v. carson, 913 a.2d 220 261 (pa. 2006) what the farmer investigation file contains does not mean he is improperly requirements in the pcra court. 34. because defendant could not have killed farmer, and - 12 - to the ballistics report because he “failed to make any showing of good common killer or an accomplice thereto—between the two homicides. it is to the file because the defendant’s position that any of the delineated 513. johnson or that johnson was charging him too much money for the drugs the pcra court’s order, but it would be inappropriate for us to craft them, 902(e)(1). thus, if frey’s petition was untimely, the pcra court lacked passed for petitioning the u.s. supreme court for a writ of certiorari. his and said that he planned to “get a shotgun and start taking mother f s discovery order: abuse of discretion? petitioner’s underlying pcra claim is based on previously unknown facts that sets forth some legal principles relating to discovery. in terms of factual j-s71030-11 and the pcra court conducted an evidentiary hearing. pcra relief was farmer was shot. after the shooting, strausbaugh, appellee, and farmer were in appellee’s the commonwealth’s interest against disclosure. supplemental motion for new trial based upon after-discovered evidence point, he left the motorcycle in a garage belonging to a man named stacey commonwealth witness was a paid informant and drug trafficker did not commonwealth v. lark, 746 a.2d 585, 591 (pa. 2000). an abuse of of frey’s allegations was that the forensic report indicated johnson’s death made incriminatory remarks to farmer’s girlfriend following the murder. criminal division at no(s): cp-67-cr-0005052-2002 term “exceptional circumstances.” rather, it is for the trial court, in its ill will, partiality, prejudice, manifest unreasonableness, or misapplication of commonwealth v. wrecks, 931 a.2d 717, 720 (pa. super. 2007). of for his killing johnson. former justice specially assigned to the superior court. section 9545(b)(1), must be invoked within sixty days of when it first could 1 chad snyder knew farmer, appellee, and johnson in 2002. on one exceptional circumstances applicable in this case. his position that farmer’s theory was supported by discovery materials to which frey had access in 2003, frey was convicted and sentenced for johnson’s murder and exceptional circumstances unless the court abused its discretion. commonwealth v. collins, 957 a.2d 237, 272 (pa. 2008)). with respect hanible is merely the latest in a series of decisions wherein the appellee no. 852 mda 2011 counsel a letter indicating johnson’s skeletal remains had been discovered. related, and that an unknown third party may have been involved in both.” j-s71030-11 discretion, to determine whether a case is exceptional and discovery is duane lee frey, the first issue is whether the order before us is appealable. we do not place of employment. embedded in parts of the motorcycle were shotgun light most favorable to the commonwealth was as follows. on the date in farmer,] was out in the back yard and he saw it.” id. at 333.1 take the blame for a murder that he did not commit. at that point, appellee * the supreme court similarly dismissed the defendant’s request for then, on october 29, 2010, appellee filed a “supplemental motion for 2011). therein, the defendant claimed that he should have been granted demise. it also appears police believed farmer had helped frey hide - 10 - denied, and, on appeal, we affirmed and rejected seven allegations of error. in pcra proceedings, discovery is only permitted upon leave of court - 4 - prior to the murder, appellee had conversations with david holloway, who johnson’s motorcycle. that this case involves exceptional circumstances—namely, the somewhat j-s71030-11 states in relevant part that “(1) except as provided in paragraph (e)(2), no the pellet sizes could reasonably suggest the existence of multiple shooters, substance and contours of the underlying claim when considering the would likely compel a different verdict in the following respects. first, the j-s71030-11 and that releasing information would be a detriment to the farmer have jurisdiction over non-appealable orders. commonwealth v. a.3d 341 (pa. 2010). not manifestly unreasonable to conclude that witness statements and/or verdict. same witnesses questioned in connection with johnson’s death were also underlying pcra claim is not the issue when determining whether his pcra - 4 - any basis for his position that the report might reveal exculpatory same sort of generic plea for hypothetical evidence that we have rejected as 2012 pa super 66 johnson’s skeleton. it was frey’s position that the information concerning motorcycle that he stored in stacey farmer’s garage. that was the last time therefore, could not have shot farmer, frey’s position was that proving a is entitled to substantive relief. instead, the question on this appeal is discovery of farmer’s murder file, much less the higher standard of thereby casting doubt on the commonwealth’s theory that frey had been conclude that this matter was an exceptional one. farmer’s killer still remains in the community. might have been the person, or one of the persons, who killed johnson) will j-s71030-11 - 6 - incarcerated when farmer was shot. alternatively, if multiple people, involve rights deeply embedded in public policy going beyond the during his trial. the forensic report at issue here did not exist until 2008, appellee’s place of employment. there were twelve gauge shotgun pellets fact, disagreed with it. more particularly, the court specifically concluded, “it discovery. based on this evidence, appellee was found guilty of the above- opinion by colville, j.: filed: march 20, 2012 exculpatory to him. in response, the commonwealth noted that the reasons are not entirely clear to us, it seems that farmer’s manner of death evidence of a common killer may arguably support one or more of frey’s propriety of a discovery request, the question before us is not whether frey this pcra request was frey’s second. his first pcra petition, filed in 2006, erred in finding exceptional circumstances warranting its order. for the collateral and, therefore, appealable. appellant on or about july 30, 2010, frey filed for relief under the pcra.1 access to farmer’s murder investigation file based on the above allegation a.3d 1146, 1149 (pa. super. 2011). instead, it is a decision based on bias, - 2 - 2010. whether exculpatory information even exists.” id. (footnote omitted). our supreme court has consistently concluded that good cause for discovery police located johnson’s motorcycle hidden under a pile of items near frey’s investigation in that case. indeed, this contention is part of what led us to “fishing.” parties frequently do not know with certainty the contents of was going to reveal facts which he knew about johnson’s death. analyzing the underlying ultimate issue in a criminal case. id. at 213. for pcra purposes, a judgment of sentence becomes final at the end of appeal. commonwealth v. frey, 890 a.2d 1056 (pa. 2005). it does and fitzgerald** murder investigation implicates rights deeply embedded in public policies. appeal from the order entered of april 4, 2011 was afraid of johnson because johnson had pointed a gun at him and his could have inferred that farmer’s killing was in retaliation cooperate with the police in the johnson investigation.” pcra court opinion, - 8 - (unpublished memorandum). after-discovered evidence claim. an after-discovered evidence claim and the it would be improper for this court to act as counsel for a party. sixty days of appellee’s receipt of the autopsy. on or about october 29, 2010, frey supplemented his pcra petition, before leaving this issue, however, we point out the following. to the 998 a.2d 1024 (pa. super. 2010). the pennsylvania supreme court then the next issue is whether frey’s pcra petition was timely. the pcra susquehanna river. also in 2008, the commonwealth obtained a forensic j-s71030-11 forensic report and johnson’s skeletal remains. he has pled and partiality, prejudice, or ill will guided the pcra court’s determination that uncover what he purported would be exculpatory evidence, was baseless; former justice specially assigned to the superior court. after a showing of exceptional circumstances. 42 pa.c.s.a. § 9545(d)(2); shot dead in his driveway. at some point, police questioned frey in discretion is not a mere error in judgment. commonwealth v. riley, 19 described crimes. on may 19, 2003, he was sentenced to life imprisonment, issues are analyzed differently. id. thus, the relative merit of frey’s hand be important only to the litigants. rather, the issue must killing. - 13 - ____________________________________________ 3 material was completely speculative and that the defendant did not provide court simply had no jurisdiction over his petition if it was late. shooter. because frey was incarcerated at the time of farmer’s death and, does not constitute an exceptional circumstance warranting discovery. information indicating there were multiple sizes of shotgun pellets found in report on or about june 8, 2010. support the party’s position. id. there might well be arguments in support discovery request of his homicide file because his position that it might collateral. id. for the reasons that follow, we find the order in this case is wrongly ordered, if there would be such a ruling, would not repair the loss of johnson] had between them.” id. at 176. appellee felt either that he was (pa.super. 2005) (unpublished memorandum). after our supreme court ultimate issue of whether frey is entitled to a new trial under the pcra. regardless of how important the commonwealth’s issue might be. borders on the absurd. appellee told three of his friends he wanted to kill id. at 4. these conclusions by the court are supported by the facts of appellee refused to tell police where johnson’s body was located. detective offer details or, at least, difficult to offer any significant amount thereof. farmer told his girlfriend that he saw appellee killed johnson. appellee also in short, the commonwealth’s brief presents no developed factual in light of our foregoing discussion, we find the order before us meets - 14 - neighbor heard two gunshots and, after a pause, three more gunshot blasts later filed this timely appeal. gauge shotgun while johnson was in stacey farmer’s backyard. however, through dna testing. appellee asked for a copy of the autopsy, which he remaining person was, again, not frey because he was in custody when crack cocaine to appellee, and appellee’s subsequent actions of hiding the hence, i dissent. occasion, appellee and snyder purchased drugs from johnson, and ____________________________________________ instant pcra petition, having been filed more than one year after the finality the only principal killer. phone. police found shotgun shells in frey’s house and car. additionally, appellee fail to offer a scintilla of support for this conjecture, the claim to be denied review; and (3) the question presented is such that had been murdered they could have easily and correctly commonwealth v. bennett, 930 a.2d 1264, 1270-72 (pa. 2007). the in march 2011, frey filed a motion for discovery. more particularly, he the remains were ultimately deposited because, as the record suggests, relief act (“pcra”). we affirm the order. that the investigatory files of stacey farmer might reveal that farmer’s under 42 pa.c.s. § 9545 (b)(1)(ii) and (b)(2), 10/29/10, at ¶¶ 29-36. truck together when farmer asked appellee what he did with the body and several years prior to the 2008 discovery of the remains and appellee warrant discovery because there was no factual basis for the position). the could not have been obtained earlier through the exercise of due diligence. the pcra court granted frey’s discovery request. the commonwealth 2008, the commonwealth did not advise frey about the discovery of the order affirmed. proceedings, except upon leave of court after a showing of good cause.” there are indications in the record that, prior to the homicides in girlfriend. appellee informed police that he shot johnson with a twenty 31. as the police had ruled farmer’s death a homicide, (“speculation that requested documents will uncover exculpatory evidence on or after may 27, 2010, the commonwealth mailed frey and his frey contended the requested information could demonstrate similarities ultimately prove to be true. nevertheless, the court’s expression of that it was “certainly possible” that an unknown person who was involved in murderer and johnson’s murderer might be the same person is untenable. any, supporting facts other than the officer’s assertion that search warrants additionally, frey alleged that the forensic report contained a police officer who opined that the two homicides were unrelated. defendant’s position that the ballistics report could provide exonerating denied frey’s petition for allowance of appeal. commonwealth v. frey, 8 cases and do reasonably support the belief that the farmer investigative found shotgun wads in the woods behind farmer’s house. also found near we note also that the commonwealth again spends effort attempting the commonwealth’s report. we are satisfied his petition was therefore - 3 - skepticism was accompanied by the court’s rational analysis and conclusion


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