J-S06023-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TYSHEEM CROCKER
Appellant No. 346 MDA 2013
Appeal from the PCRA Order January 22, 2013
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0000186-1998
BEFORE: LAZARUS, J., OTT, J., and JENKINS, J.
MEMORANDUM BY OTT, J.: FILED AUGUST 01, 2014
Tysheem Crocker appeals from the order entered January 22, 2013, in
the Court of Common Pleas of York County, that denied his fourth petition
for relief pursuant to the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et
seq. In 1999, a jury convicted Crocker of murder in the first degree and
conspiracy, and the trial court sentenced him to an aggregate term of life
imprisonment. In this appeal, Crocker contends the PCRA court erred in
rejecting the recantation evidence of Commonwealth witness, Danny Steele,
as not credible. Based upon the following, we affirm, albeit on the basis that
1
the petition is untimely.
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1
See Commonwealth v. Fisher, 870 A.2d 864, 870 n.11 (Pa. 2005)
(appellate court may affirm the decision of the PCRA court if there is any
basis on the record to support the PCRA
court relies on a different basis in its decision to affirm).
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The background of this case has been summarized by this Court in
previous decisions:
[Crocker] and Melvin Bethune were members of a gang in the
1997, following a dispute between the two groups, [Crocker] and
Bethune traveled from York to New York to recruit manpower in
order to retaliate against members of The Gods. The motivation
for the retaliation was that members of The Gods had assaulted
Bethune earlier that day.
[Crocker] and Bethune returned from New York with three
Super 8 Motel in York to plan the assault. The men decided they
- head of The Gods and
whomever was with him. They planned to attack The Gods at its
usual hangout on Maple Street.
[Crocker] and the others left the motel and drove to Maple
Street. They parked their car and entered a home on Maple
Street where they had stored guns. They retrieved their guns
and proceeded to a corner where they had been advised
members of The Gods were playing dice. Do-Work was playing
dice along with a number of people including Raymond Clark
[Crocker] and his co-conspirators approached. [Crocker]
drew a gun on Do-
Trial, 1/11/99, at 54. [Crocker] attempted to fire his gun at Do-
Work, but it jammed. Immediately thereafter, other members of
The Cream Team began firing at the people playing dice. The
Steele, Corleone, and another unnamed co-conspirator
chased Clark. Corleone shot Clark twice, fatally wounding him.
Do-Work escaped. [Crocker], Steele, and Bethune were all
identified by witnesses as having been involved in the shootings
and were arrested. Steele agreed to testify for the
Commonwealth in return for unspecified consideration in the
criminal proceedings against him. Bethune went to trial with
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degree murder and conspiracy.
Commonwealth v. Crocker, 750 A.2d 366 [483 MDA 1999] (Pa. Super.
1999) (unpublished memorandum, at 1-3), appeal denied, 761 A.2d 548
(Pa. 2000).
At trial, [Crocker] testified in his own defense as follows.
He has been friends with Steele and his co-defendant, Bethune,
5, 1997, The Gods surrounded a house where the Cream Team
was staying. [Crocker] ran out of the back of the house
because The Gods were carrying guns. Later, Bethune stated
that he had been attacked from behind, and that he did not see
who did it. [Crocker] stated that he had an idea who it was,
and that he was going to talk to Do-Work to get rid of the
problem. He and Bethune drove to New York City, went
shopping for approximately one hour on Canal Street, and
arrived back in York at approximately 10:00 or 10:30 that
night. In total, [Crocker] spent between six and eight hours on
the road to do one hour of shopping.
When [Crocker] arrived back in York, Steele told him that
Steele was having problems with Do-Work. Steele was very
[Crocker] stated that he could talk to Do-Work without guns.
Nevertheless, he retrieved a gun from the house and
approached Do-Work. Do-Work walked toward [Crocker], and
they met on a corner. [Crocker] did not see anyone else during
his conversation with Do-Work. A few words were exchanged
between [Crocker] and Do-Work, but [Crocker] did not draw a
gun. [Crocker] heard gunshots from an unknown source, ran
away, and left the gun near a fence. At first, [Crocker] stated
that he knew the gun was broken as he approached Do-Work,
but later he testified that he did not know the gun was broken
until after he ran away from the gunshots. At one point,
stated that he simply knew the gun was broken. He did not go
to a motel before this incident took place. He did, however, go
to a motel after midnight on the night of the shooting.
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Commonwealth v. Crocker, 809 A.2d 954 [1392 MDA 2001] (Pa. Super.
2002) (unpublished memorandum) (record citations omitted).
Following the imposition of sentence, Crocker perfected a direct
appeal. This Court affirmed the judgment of sentence, and the Pennsylvania
Supreme Court denied his petition for allowance of appeal. Commonwealth
v. Crocker, supra, 750 A.2d 366 [483 MDA 1999] (Pa. Super. 1999),
appeal denied, 761 A.2d 548 (Pa. 2000).
On September 14, 2000, Crocker filed a pro se PCRA petition. Counsel
was appointed, and an evidentiary hearing was held. On March 2, 2001,
o file an
appeal nunc pro tunc. However, counsel once again did not file the appeal,
and Crocker then filed a successful second PCRA petition, resulting in the
appointment of new counsel, and the perfection of the appeal. This Court
affirmed the PCRA cour
for allowance of appeal to the Pennsylvania Supreme Court.
Commonwealth v. Crocker, supra, 809 A.2d 954 [1392 MDA 2001] (Pa.
Super. 2002) (unpublished memorandum).
On May 15, 2003, Crocker filed his third PCRA petition. On June 11,
2003, the PCRA court found that the petition was untimely and dismissed it
without a hearing. On May 11, 2004, this Court affirmed the dismissal of
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Commonwealth v.
Crocker, 855 A.2d 129 [1104 MDA 2003] (Pa. Super. 2004) (unpublished
memorandum), appeal denied, 868 A.2d 1197 (Pa. 2005).
In the meantime, Crocker timely filed a petition for writ of habeas
corpus in the United States District Court for the Middle District of
Pennsylvania on September 29, 2003. On May 24, 2004, the District Court
stayed his habeas corpus petition to allow Crocker to exhaust state court
review of his claims. On December 9, 2008, the District Court denied
habeas corpus. Crocker v. Klem, Civ. No. 3:CV-03-
and a panel of the United States Court of Appeals for the Third Circuit issued
a non-precedential opinion affirming the District Court. Crocker v. Klem,
450 Fed. Appx. 136 (3d Cir. Pa. 2011).
Crocker filed this fourth PCRA petition on August 20, 2012, alleging
after-discovered evidence, namely, the recantation evidence of
Comm
put a gun to Do-
was invented by the district attorneys, who pressured him to give false
testimony. See
12, 2012 Affidavit). Counsel was appointed, and that appointment was later
vacated to allow present counsel to enter his appearance. Following a
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recantation testimony was not credible, and denied PCRA relief. This appeal
followed.2
Our standard of review is well settled:
On appeal from the denial of PCRA relief, our standard and scope
of review is limited to determining whether the PCRA
findings are supported by the record and without legal error.
Commonwealth v. Breakiron, 566 Pa. 323, 781 A.2d 94, 97
n.4 (Pa. 2001). A second or subsequent request for PCRA relief
will not be entertained unless the petitioner presents a strong
prima facie showing that a miscarriage of justice may have
occurred. Commonwealth v. Carpenter, 555 Pa. 434, 725
A.2d 154, 160 (Pa. 1999). The timeliness requirements
are jurisdictional in nature and must be strictly construed; courts
may not address the merits of the issues raised in a petition if it
is not timely filed. See, e.g., Commonwealth v. Beasley, 559
Pa. 604, 741 A.2d 1258, 1261 (Pa. 1999); Commonwealth v.
Fahy, 558 Pa. 313, 737 A.2d 214, 222 (Pa. 1999);
Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638, 641
one of the timeliness exceptions applies. See Beasley, at 1261.
Commonwealth v. Abu Jamal, 941 A.2d 1263, 1267 1268 (Pa. 2008),
cert. denied, 555 U.S. 916 (2008).
Preliminary to our review, we must address the threshold issue of
, as the timeliness
of the PCRA petition is jurisdictional. Commonwealth v. Taylor, 67 A.3d
1245, 1248 (Pa. 2013), cert. denied, ___ U.S. ___ (June 2, 2014). We need
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2
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
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not recite the PCRA timeliness standards applicable to this case,3 but simply
note that for this fourth PCRA petition to be considered timely, and thus
confer jurisdiction, Crocker must plead and prove one of the statutory
4
Commonwe
facts exception. See 42 Pa.C.S. § 9545(b)(ii). This exception requires a
predicated were unknown to the petitioner and could not have been
Id. Furthermore, a PCRA
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3
PCRA appeal:
about December 5, 2000, after the Supreme Court denied
to seek certiorari with the United States Supreme Court expired.
Commonwealth v. Owens, 718 A.2d 330, 331 (Pa. Super.
1998). Thus, in order to be timely, a PCRA petition would have
to have been filed by December 5, 2001.
Commonwealth v. Crocker, 855 A.2d 129 [1104 MDA 2003] (Pa. Super.
2004) (unpublished memorandum), appeal denied, 868 A.2d 1197 (Pa.
2005).
4
facts, and newly recognized constitutional right. 42 Pa.C.S. § 9545(b)(1)(i),
(ii), and (iii).
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9545(b)(2). To evaluat
a discussion of the recantation evidence of Danny Steele proffered by
Crocker is necessary.
for lenient treatment in his own case. Steele testified that he, Crocker, and
several other co-conspirators met at a motel on the evening of the incident
to discuss the murder of Do-Work. N.T., 1/11 15/99, at 251 259. Steele
also stated that Crocker, after exchanging words with Do-Work, put a gun to
Do- Id. at 265.
In his first PCRA petition, Crocker sought PCRA relief based upon
Crocker and others had met at a motel to plan the armed confrontation.
hearing that followed:
In rather roundabout fashion, Steele stated at the PCRA hearing
that some of his trial testimony was true but that other elements
were embellished to show that [Crocker] had the specific intent
to kill. N.T., 3/2/2001, at 46-67. According to Steele, his own
counsel indicated that these embellishments would help him to
receive a more lenient sentence on his own conspiracy charge.
Id. at 46-56. For example, Steele testified that during the
meeting at the motel, he did not believe that [Crocker] and his
associates were going to commit murder; rather, he thought
they would simply talk out the problem with The Gods. Id. at 50.
Commonwealth v. Crocker, 809 A.2d 954 [1392 MDA 2001] (Pa. Super.
2002) (unpublished memorandum, at 16 17) (record citations omitted).
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Id. at 17.
In his present PCRA petition, filed on August 20, 2012, Crocker
attached the affidavit of Steele, dated July 12, 2012, which states, in
relevant part, verbatim:
I never seen Tysheem Crooker put a gun to do-work head and
pull the trigger. that was all made up by the D.A. Thomas Kelly
and BILL GRAFF, to make my testimony look better than it would
have if I gave truthfull testimony.
Affidavit).5
that Crocker filed his petition within 60 days of learning of the new evidence,
as required by
provided in paragraph (1) shall be filed within 60 days of the date the claim
See
2, ¶4.
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5
habeas corpus [o]ther
corroborating evidence, including the fact that Crocker was armed,
pointed his gun at Do- led the trigger (at which
point the firing mechanism jammed), shows that the jury had
sufficient evidence to convict Crocker regardless of when he rented
the motel room. Crocker v. Klem, 450 Fed. Appx. 136 (3d Cir. 2011)
(non-precedential memorandum) (emphasis supplied).
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At the March 2001 PCRA hearing, Steele was asked on cross
Id. In light of
could
Pa.C.S. § 9545(b)(ii).
that he knew that Crocker never put a gun to Do-
examination of Steele, the following exchange occurred between
Q. But do you recall, however, testifying at the 2001 PCRA
hearing before this Honorable Judge, is that correct?
A. Yes, I do remember that.
Q. And at the time that you testified before this Judge at that
2001 PCRA hearing, did you know with substantial certainty that
the testimony that you gave in 1999, the fact that Tysheem
Crocker had a gun, pulled it out, put it to Do-Works head, pulled
the trigger and it jammed, that testimony was false?
A. Yes, I knew that.
****
Q. And at the time that you testified, did you also know that the
testimony you gave at the 1999 trial, that Tysheem Crocker had
a gun, pulled it out, put it to Do-Works head, pulled the trigger
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and it jammed, that that testimony, too was not true, that it was
false?
A. Yes. Yes. Yes.
N.T., 1/22/2013, at 58, 60.
Steele was then questioned why he did not provide his present
recantation testimony at the 2001 PCRA hearing:
Q: And you at that time never offered that information to the
Court when you were testifying before this Judge in 2001, is that
correct?
I don't even think I was asked it, that
question. I think it was more focused on the hotel pre-plan of
plotting the murder, to prove that we did have the knowledge
that we was going to kill Can-Do, so I was at that time focused
on telling the Courts that we did not pre-plan to kill anyone, and
that was what the whole case was about at the time, at that
hearing, was asked if it was asked, that I would have stated it.
I just follow the rules of what the hearing was about.
Id. at 60 61.
In this case, nothing prevented Crocker from questioning Steele at the
2001 PCRA hearing regarding his trial testimony that Crocker put a gun to
Do- er before another man shot the victim.
recantation as satisfying the unknown facts
exception, 42 Pa.C.S. § 9545(b)(1)(ii), and the 60-day requirement of 42
Pa.C.S. § 9545(b)(2). See Commonwealth v. Edminston, 65 A.3d 339,
350 (Pa. 2013), cert. denied, 134 S. Ct. 639 (U.S. 2013) (finding PCRA claim
untimely where appellant did not address why he was unable to obtain
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certain statements and present them at first PCRA hearing);
Commonwealth v. Kubis, 808 A.2d 196, 201 (Pa. Super. 2002), appeal
denied, 813 A.2d 839 (Pa. 2002) (Section 9545(b)(1)(ii) not satisfied where
the petitioner was aware of identity of individual during trial and could have
earlier discovered favorable testimony by exercising due diligence). See
also Commonwealth v. Lambert, 57 A.3d 645 (Pa. Super. 2012), appeal
denied, 67 A.3d 795 (Pa. 2013) (explaining focus of Section 9545(b)(1)(ii) is
on newly discovered facts, not on newly willing source for previously known
In any event, assuming the petition could even be considered timely,
this Court would not disturb the conclusion of the PCRA court. Regarding
claims of recantation under the PCRA, this Court has explained:
Section 9543(a)(2)(vi) of the PCRA provides for post-conviction
relief when a petitioner can prove a claim of newly discovered
must establish by a preponderance of the evidence that: (1) the
evidence has been discovered after the trial and it could not
have been obtained at or prior to trial through reasonable
diligence; (2) such evidence is not cumulative; (3) the evidence
is not being used solely to impeach credibility; and (4) such
Our Supreme Court has summarized appellate consideration of a
claim involving recanted testimony as follows:
The well-established rule is that an appellate court may
not interfere with the denial or granting of a new trial
where the sole ground is the alleged recantation of state
witnesses unless there has been a clear abuse of
is exceedingly
unreliable, and it is the duty of the court to deny a new
trial where it is not satisfied that such testimony is true.
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There is no less reliable form of proof, especially when it
involves an admission of perjury.
Commonwealth v. Loner, 836 A.2d 125, 135 (Pa. Super. 2003), appeal
denied, 852 A.2d 311 (Pa. 2004) (citations omitted).
Here, the PCRA court explained its conclusion as follows:
We do not find the testimony of Danny Steele to be credible. We
find the testimony of Judge Kelley and Bill Graff to be credible.
now come back several years later and added something, which
conveniently just happens to be the main stumbling block to
not credible either, and we specifically disbelieve it, and
therefore the
N.T., 1/22/2013, at 131.
abuse of discretion. The PCRA court considered its prior credibility
new testimony in which he
consideration. Id.
preliminary testimony of the intended victim, Do-Work, (2) the
-in
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Id. at 3 4.
The PCRA court rejected these arguments, explaining: (1) it did not find Do-
- testimony
[C]ommonwealth improved during the course of trial [to be] enough by itself
to conclude that Steele testified correctly in the PCRA hearing that his
Id. at 4.
The PCRA court provided a cogent explanation why it did not find
ted no abuse of
conclude that his after discovered evidence claim fails on the merits. See
Commonwealth v. Loner, supra
[upon a claim of after
untimely and does not meet any exception to the PCRA timeliness
requirements. We therefore affirm the order of the PCRA court denying
PCRA relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/1/2014
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