J-S52023-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TIMOTHY DAVIS,
Appellant No. 2789 EDA 2013
Appeal from the PCRA Order entered August 29, 2013,
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at No(s): CP-51-CR-1209481-1999
BEFORE: GANTMAN, P.J., ALLEN and FITZGERALD*, JJ.
MEMORANDUM BY ALLEN, J.: FILED AUGUST 20, 2014
pro se from the order denying his
serial petition for post-conviction relief filed pursuant to the Post Conviction
-46. We affirm.
The PCRA court summarized the pertinent procedural history as
follows:
On June 9, 2000, a jury convicted [Appellant] of
attempted murder (3 counts), aggravated assault (3
counts), possession of an instrument of crime (2 counts)
and criminal conspiracy. On October 4, 2000, this court
sentenced [Appellant to] a total aggregate sentence of 35
-70 years [of imprisonment].
reinstated nunc pro tunc.] [Appellant] thereafter filed an
appeal in the Superior Court, which affirmed his judgment
of sentence on November 12, 2005. [Commonwealth v.
*Former Justice specially assigned to the Superior Court.
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Davis, 890 A.2d 1096 (Pa. Super. 2005) (unpublished
memorandum)]. On May 9, 2006, the Pennsylvania
wance
of Appeal. [Commonwealth v. Davis, 898 A.2d 1069
(Pa. 2006)].
On June 26, 2006, [Appellant] filed a pro se PCRA
petition the first to deal with the merits of his case. [The
PCRA court appointed counsel. PCRA counsel subsequently
filed a brief pursuant to [Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550
A.2d 213 (Pa. Super. 1988) (en banc)], stating that the
pro se petition were without
merit and/or had been previously litigated. Counsel also
concluded that there were no additional issues which could
be raised in an amended PCRA petition. On March 20
2007, [after having previously issued Pa.R.Crim.P. 907
notice,] this court dismissed the petition without a hearing,
holding that the petition had no merit. The court also
permitted [PCRA counsel] to withdraw.
[Appellant] acting pro se
dismissal. On February 7, 2008, the Superior Court
dismissed the appeal because [Appellant] failed to file an
appellate brief. Commonwealth v. Davis, No. 1094 EDA
2007. [Appellant] then sought review in the Pennsylvania
Supreme Court. On August 19, 2008, the Supreme Court
denied the Petition for review. [Commonwealth v.
Davis, 955 A.2d 349 (Pa. 2008)].
On May 14, 2010, [Appellant] filed his second pro se
PCRA petition. On January 3, 2011, after consulting with
counsel, [Appellant] withdrew his PCRA petition.
On August 20, 2012, [Appellant] filed the instant pro se
PCRA petition. In his petition, [Appellant] claims that he is
evidence. In support of this claim, [Appellant] attached to
his petition an affidavit from Woodrow Lawson in which
Lawson recants his trial testimony. [Appellant] argued
witness, Shawn Price, warrant a new trial because the
verdict would have been different had they testified
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On August 29, 2013, [after issuing Pa.R.Crim.P. 907
notice, and] after thoroughly reviewing the trial record and
the pleadings and witness affidavits provided by
[Appellant], this court dismissed the instant PCRA petition,
holding the petition was untimely.
PCRA Court Opinion, 11/12/13, at 1-3 (footnotes omitted). This timely
appeal followed. The PCRA court did not require Pa.R.A.P. 1925(b)
compliance.
Appellant raises the following issues:
I. Did the [PCRA court] err in holding that the recantation
evidence/testimony of Woodrow Lawson did not meet the
timeliness exception as set forth under 42 Pa.C.S.A. §
9545(b)(1)(ii)(2) [sic]?
II. Do the interest[s] of justice require a remand for the
but also to consider the previous recantation of Shawn
Price?
petition under the PCRA is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.
Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA
findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,
1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold a
hearing on the petition i
claim is patently frivolous and is without a trace of support in either the
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record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011
(Pa. Super. 2001). Because this is a serial petition for post-conviction relief,
subsequent post-conviction request for relief will not be entertained unless a
strong prima facie showing is offered to demonstrate that a miscarriage of
justice may hav Commonwealth v. Burkhardt, 833 A.2d 233,
236 (Pa. Super. 2003) (en banc
prima facie showing if he demonstrates that either the proceedings which
resulted in his conviction were so unfair that a miscarriage of justice
occurred which no civilized society could tolerate, or that he was innocent of
Id.
Our review of the record reveals that, although the PCRA court stated
in its dismissal order that it was doing so because the petition was untimely,
-
evidence claim on its merits:
-discovered
evidence claim satisfied the timely filing exceptions of
after-discovered evidence claims on their respective merits
and in light of the evidence as a whole.
PCRA Court Opinion, 11/12/13, at 5-6. Because the record supports the
n that Appellant had established an exception to
-discovered evidence claim did not warrant post-conviction
relief.
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A petitioner is eligible for relief under the PCRA if he can establish the
subsequently become available and would have changed the outcome of the
has explained the test to be applied to such a claim as follows:
To obtain relief based on after-discovered evidence, an
appellant must demonstrate that the evidence: (1) could
not have been obtained prior to the conclusion of the trial
by the exercise of reasonable due 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. Foreman, 55 A.3d 532, 537 (Pa. Super. 2012) (citation
preponderance of the evidence that each of these factors has been met in
Id.
decision to grant or deny a new trial on the basis of after-discovered
evidence, an appellate court is to determine whether the PCRA court
committed an abuse of discretion or error of law that controlled the outcome
Id.
usly unreliable, particularly
Commonwealth v.
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Johnson, 966 A.2d 523, 541 (Pa. 2009) (citation omitted)). Thus, when
evidence is such that there is a reasonable probability that the jury would
have credited it and rendered a more favorable verd Johnson, 966
A.2d at 542.
follows:
5. My trial testimony was not a true account of what had
6. I changed my testimony against [Appellant] because
my Step-Son Jermaine was also shot and following the
testimony I gave at the Preliminary Hearing I was put
under a lot of pressure from my family to make sure
everyone was convicted including [Appellant].
7. Prior to testifying against [Appellant] I was prepped
and coerced by the trial prosecutor who told me that in
order for him [sic]1 to make his [sic] case stick I needed to
say that [Appellant] was also shooting a gun during the
gun battle.
9. I am coming forward now with these statements in the
sole effort of correcting a terrible mistake that was made
on my behalf when I falsely implicated [Appellant] in the
gun battle that led to me and my Step-Son being shot and
injured. I feel terrible that I am, to a large degree,
responsible for sending an innocent person to prison.
***
My conscious is calling me to face reality. I use to
abuse drugs. I am suffering nightmares because of this
____________________________________________
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incident, and my desire for revenge. My angar [sic] and
confusion allowed me to be influenced by the police and
others to say [Appellant] had two guns. The fact is, I
assumed he had been shooting. The truth is he never did
any shooting. At the time the shots rang out, he had not
pulled any weapons. I never saw [Appellant] do any
shooting. In fact he looked shocked and actually moving
away from the other two shooters. I realize now that my
testifying that he had two guns was a desire to punish
anyone that appeared to be part of the group. I regret
what I have done.
PCRA Petition, 8/20/12, Exhibit A, Affidavit, 7/6/12, at 1-2.
follows:
Affiant swears that the District Attorney intimidated, and
forced him to lie on the stand at trial or I would be sent
back to jail for withholding evidence. I was also asked to
point directly at [Appellant] and [was told] to say that
Bruce Burdine shot at Myself [sic], and I would go home
after I said and did what I was forced and threatened to
do[.]
Affiant concludes his his [sic] affidavit by stating that I am
committed a wrong by lying for the District Attorney, [in
Bruce Burdine and [Appellant].
PCRA Petition, 5/4/10, Exhibit A, Affidavit, 3/18/10, at 1-2.
After reviewing the recantation affidavits of both Mr. Lawson and Mr.
Price, the PCRA court determined that Appellant did not meet his burden of
verd Foreman, 55 A.3d at 537. The PCRA
court explained:
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Here, the evidence and testimony present[ed] at
that, on November 24, 1998, [Appellant] and his cohorts,
Bruce Burdine and Darnell Branch, were involved in a gun
battle on the streets of Philadelphia during which
[Appellant] and/or his accomplices shot three people
([Shawn] Price, Woodrow Lawson and four year-old
[J]ermaine Lipscomb) and endangered numerous
bystanders, including children. After the shooting,
[Shawn] Price and Woodrow Lawson both gave police
detectives a detailed description of the shooters[.] They
also positively identified [Appellant] as one of the shooters
after viewing more than 200 photos at police
headquarters. On June 30, 1999, the police arrested
Burdine. [Appellant], who was present when Burdine was
taken into custody, escaped. He was apprehended two
months later.
At trial, Lawson, [Shawn] Price and Rosalie Waring, who
was standing across the street with several children when
the shooting took place, all positively identified [Appellant]
as one of the shooters. Based upon this evidence, the jury
found both [Appellant] and Burdine guilty as charged.
their testimony
via affidavit. Even if these witnesses had testified at trial
in a manner consistent with their recent recantations, it
First, Rosalie Waring, who the jury found to be credible,
positively identified [Appellant] as one of the shooters.
She was standing across the street when the shooting
occurred. Second, there was ample evidence suggesting
to evade the police and remained at large even after his
accomplices had been arrested. Third, both Price and
Lawson gave detailed accounts of the shooting to police
and [a] description of the shooter to police. Price and
than 200 shown to them by police at headquarters.
the photo identification to impeach any inconsistent trial
testimony. The credible evidence and testimony presented
by the Commonwealth was overwhelming and clearly
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The proposed recantation testimony would not have
compelled a different verdict.
Finally, it is important to note that this court, though
heard all of the evidence and testimony presented by the
the opportunity to [] listen to the trial testimony of both
Price and Lawson and observed their demeanor during the
proceedings. The court also observed the jurors response
was credible. It was also consistent with the statements
they had provided to police detectives and with the
testimony of the other Commonwealth witness(es).
Even if Price and Lawson had testified at trial consistent
with their recantations, it is highly unlikely that any juror
would have accepted that testimony as true given their
prior positive and detailed statements to police and Rosalie
cannot meet the burden imposed by Commonwealth v.
Johnson, 966 A.2d 523 (Pa. 2009) and Commonwealth
v. Abu-Jamal, 553 Pa. 485, 517, 720 A.2d 79, 94 (1998).
PCRA Court Opinion, 11/12/13, at 6-7 (footnoted omitted).
Appellant has failed to meet the burden necessary to obtain post-conviction
relief on an after-discovered evidence claim. See e.g., Commonwealth v.
Abu-Jamal, 720 A.2d 79, 104-
claims that the proposed testimony of newly discovered witnesses
established a basis for the grant of a new trial). Although not discussed by
the PCRA court, Appellant has not adequately established how these
proposed recantations would have done more than impeach their own, as
See Foreman,
supra tions, it did
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not err in failing to grant an evidentiary hearing prior to dismissing
See, e.g., Commonwealth v. Bond, 819 A.2d
-defendant
recanted his statement
that the jury convicted Appellant of criminal conspiracy. Thus, generally,
Appellant, as a member of the conspiracy, is criminally responsible for the
acts of his co-conspirators that were committed in furtherance of the
conspiracy. See generally, Commonwealth v. Galindes, 786 A.2d 1004
(Pa. Super. 2001).
In sum, for all of the reasons stated above, the PCRA court did not err
order denying post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/20/2014
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