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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DANIEL CARTER,
Appellant No. 2446 EDA 2013
Appeal from the PCRA Order entered July 26, 2013,
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at No(s): CP-51-CR-1213321-1992
BEFORE: ALLEN, JENKINS, and MUSMANNO, JJ.
MEMORANDUM BY ALLEN, J.: FILED NOVEMBER 07, 2014
Daniel Carter (“Appellant”) appeals from the order denying his second
petition for relief under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A.
sections 9541-46. We affirm the PCRA court’s order denying post-conviction
relief.
The pertinent facts are as follows:
On July 3, 1992, at approximately 1:30 a.m.,
[Appellant] and one Jamal Jones arrived at the home of
Daniel Witherspoon at 711 Mercy Street in Philadelphia.
Appellant requested to speak with Shawn “Ali” Bain, who
was Witherspoon’s step-son and resided with him.
Appellant asked Bain if he could borrow his twelve gauge
sawed-off shotgun. Bain agreed and retrieved the
shotgun, loaded with three shells, from his bedroom.
Appellant and [Jones] left with the shotgun and met one
Wayne “Hawk” Witherspoon. The three men proceeded to
a playground, approximately one and one-half blocks from
[Daniel] Witherspoon’s house. Once inside the
playground, [Appellant] approached the victim, Darryl
Chinn, who was sitting on a park bench facing the
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basketball court. Appellant fired a single, fatal shot into
Chinn’s groin and pelvis from approximately two yards
away.
***
On October 31, 1992, [Appellant] was arrested and
charged with the murder of Darryl Chinn.
Commonwealth v. Carter, 661 A.2d 390, 391-92 (Pa. Super. 1995).
At the conclusion of a two-day bench trial, the trial court found
Appellant guilty of first-degree murder, possession of an instrument of
crime, and criminal conspiracy. Subsequently, the trial court sentenced
Appellant to life in prison for his murder conviction, and a suspended
sentence on the remaining convictions. Appellant filed a timely appeal to
this Court. On June 6, 1995, a divided panel affirmed Appellant’s judgment
of sentence. Carter, supra. On April 9, 1996, our Supreme Court denied
Appellant’s petition for allowance of appeal. Commonwealth v. Carter,
675 A.2d 1242 (Pa. 1996).
On July 7, 1997, Appellant filed a pro se PCRA petition. The PCRA
court appointed counsel, and PCRA counsel filed an amended petition. The
PCRA court held two days of evidentiary hearings. By opinion and order
dated January 5, 1999, the PCRA court denied relief. Appellant filed a timely
appeal to this Court. In an unpublished memorandum filed on March 7,
2000, we adopted the PCRA court’s opinion as our own in affirming its denial
of post-conviction relief. Commonwealth v. Carter, 757 A.2d 990 (Pa.
Super. 2000) (unpublished memorandum). On July 5, 2000, our Supreme
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Court denied Appellant’s petition for allowance of appeal. Commonwealth
v. Carter, 785 A.2d 87 (Pa. 2000).
On September 21, 2010, Appellant filed a second PCRA petition. The
PCRA court appointed counsel, and PCRA counsel filed an amended petition.
While acknowledging that his serial petition was untimely, Appellant asserted
that he filed it within sixty days of obtaining the new evidence. The PCRA
court summarized the claim within the amended petition as follows:
In this Amended Petition, [Appellant] claimed that on
July 20, 2010, a woman named Raynell Allen wrote
[Appellant] a letter in which she informed him that her
then-boyfriend [Jamal Jones], had confessed to her on the
night of the shooting at issue in this case that he, and not
[Appellant,] committed the murder of which [Appellant]
was convicted. [Jamal Jones] passed away on December
22, 2005.
PCRA Court Opinion, 11/7/13, at 2 (footnote and citations omitted).
The PCRA court then explained the subsequent procedural history as
follows:
On November 16, 2012, Judge Temin ordered that an
evidentiary hearing be held on [Appellant’s] after-
discovered evidence claim. Due to Judge Temin’s
retirement from the bench, this PCRA was then re-
assigned to the [PCRA court]. On July 26, 2013, following
an evidentiary hearing and supplemental pleadings by both
parties, the Court entered an order dismissing
[Appellant’s] PCRA petition. [PCRA counsel] subsequently
withdrew from representation, and [Appellant] requested
permission to proceed pro se. The PCRA court held a
Grazier hearing and permitted [Appellant] to represent
himself.
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PCRA Court Opinion, 11/7/13, at 2 (footnote omitted). This timely pro se
appeal followed. Both Appellant and the PCRA court have complied with
Pa.R.A.P. 1925.
Appellant raises the following issues on appeal:
I. For the reasons given, [d]id the [PCRA court] err in
holding that the proffered testimony of [Ms.] Allen did not
constitute legally sufficient after-discovered evidence?
II. Did the [PCRA court] err in denying [Appellant’s] claim
of ineffective assistance of [PCRA] counsel, given counsel’s
complete and utter failure to investigate and provide the
testimonial evidence for several relevant witnesses?
III. Do the interests of justice require a remand for the
purpose of taking the respective testimonies of [prior
counsel] and Wayne Witherspoon?
Appellant’s Brief at 4.
This Court’s standard of review regarding a PCRA court’s order is
whether the determination of the PCRA court is supported by the evidence of
record and is free of legal error. Commonwealth v. Reaves, 923 A.2d
1119, 1124 (Pa. 2007). The PCRA court’s findings will not be disturbed
unless there is no support for the findings in the certified record.
Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).
Moreover, “[a] second or any subsequent post-conviction request for relief
will not be entertained unless a strong prime facie showing is offered to
demonstrate that a miscarriage of justice may have occurred.”
Commonwealth v. Burkhardt, 833 A.2d 233, 236 (Pa. Super. 2003) (en
banc) (citations omitted). “A petitioner makes a prime facie showing if he
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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 the crimes for which he
was charged.” Id.
Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
becomes final unless the petition alleges, and the petitioner proves, an
exception to the time for filing the petition. Commonwealth v. Gamboa-
Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under
these exceptions, the petitioner must plead and prove that “(1) there has
been interference by government officials in the presentation of the claim; or
(2) there exists after-discovered facts or evidence; or (3) a new
constitutional right has been recognized.” Commonwealth v. Fowler, 930
A.2d 586, 591 (Pa. Super. 2007) (citations omitted). A PCRA petition
invoking one of these statutory exceptions must “be filed within sixty days of
the date the claim first could have been presented.” Id. See also 42
Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to the time restrictions of the
PCRA must be pled in the petition, and may not be raised for the first time
on appeal. Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super.
2007); see also Pa.R.A.P. 302(a) (“Issues not raised before the lower court
are waived and cannot be raised for the first time on appeal.”).
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As noted above, Appellant acknowledges that his serial PCRA petition
is untimely, but asserts that he timely filed the petition once he obtained
new evidence. When considering a PCRA petitioner’s claim that he or she
has established an exception to the PCRA’s time bar under section
9545(b)(1)(ii), the petitioner must establish only that the facts upon which
the claim was predicated were unknown to him, and that he could not have
ascertained the facts earlier despite the exercise of due diligence.
Commonwealth v. Bennett, 930 A.2d 1264, 1270-72 (Pa. 2007). The
determination of timeliness does not require a merits analysis.
Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008).
A petitioner is eligible for relief under the PCRA if he can establish the
“unavailability at the time of trial of exculpatory evidence that has
subsequently become available and would have changed the outcome of the
trial if it had been introduced.” 42 Pa.C.S.A. § 9543(a)(2)(vi). This Court
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
omitted). “The test is conjunctive; the appellant must show by a
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preponderance of the evidence that each of these factors has been met in
order for a new trial to be warranted.” Id. Moreover, “when reviewing the
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
of the case.” Id.
In rejecting Appellant’s claim, the PCRA court explained:
Here, the Court concluded that the “after-discovered
evidence” presented by [Appellant] at the PCRA
evidentiary hearing clearly would not result in a different
verdict if a new trial were granted. This conclusion was
premised upon two findings.
First, the proffered after-discovered evidence was
utterly and completely incredible, and therefore, was not
likely to have any effect on the outcome of the trial.
[Appellant’s] after-discovered evidence consisted solely of
the testimony of Raynell Allen. According to Ms. Allen’s
testimony at the evidentiary hearing, she has known
[Appellant] for twenty years. Ms. Allen testified that,
years after the murder of [the victim], she ran into
[Appellant’s] daughter, who informed Ms. Allen that
[Appellant] was in prison for murder. Ms. Allen testified
that thereafter, she wrote [Appellant] a letter in which she
informed [Appellant] that she knew that he did not kill [the
victim]. Ms. Allen testified that on the night that [the
victim] was murdered, she was in her home at 607 Mercy
Street, across the street from the playground in which the
murder occurred, when she heard a gunshot. Ms. Allen
testified that shortly after she heard the shot, her
boyfriend, [Jones], entered her apartment and asked her
to go and look in the playground because he had shot
someone. According to Ms. Allen, Mr. [Jones] wanted her
to go outside to the playground and check to see if the
man was dead. Ms. Allen stated that she went into the
playground and saw a man lying under a bench and blood
on the ground. Ms. Allen testified that, following the
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incident, she never asked Mr. [Jones] about what
happened, and he never told her anything else about the
shooting. Ms. Allen testified that she was afraid to come
forward with this information, and that after that night,
she never spoke to anyone about what had happened, and
that she never gave an interview to the police.
The PCRA court found Ms. Allen’s testimony to be
incredible for several reasons. First, Ms. Allen did not
come forward with this information until more than 18
years after the murder, and more than six years after Mr.
[Jones] had passed away and therefore could no longer be
prosecuted for the crime. Moreover, at the evidentiary
hearing, Ms. Allen testified that she had never spoken to
the police or given a statement regarding the murder.
However, the evidence at the hearing established that,
contrary to this testimony, Ms. Allen had given to the
police a signed statement on the day of [the victim’s]
murder in which she told the police a completely different
story than the story she told at the evidentiary hearing. In
particular, Ms. Allen told the police that she was walking to
a swimming pool to see a friend named Ramy when she
happened upon [the victim], who was moaning and
bleeding heavily. Nowhere in her statement to the police,
given on the very day of the killing, did she ever mention
Mr. [Jones,] or even hint at the sequence of events that
she described at the evidentiary hearing approximately 21
years later. The Court found her testimony to be
demonstratively unbelievable and incapable of influencing
the decision of a reasonable factfinder.
Second, Ms. Allen’s testimony, even if true, would not
have established that [Appellant] was not guilty of
conspiracy and first-degree murder. As described above,
the evidence at the trial established that [Appellant],
together with Mr. [Jones], secured the shotgun that was
used to murder [the victim], and that both [Appellant] and
Mr. [Jones], along with Mr. Witherspoon, confronted [the
victim] in the playground. Therefore, even if, as
[Appellant] now claims, Mr. [Jones] pulled the trigger and
shot [the victim,] [Appellant] would still be guilty of first-
degree murder as either a co-conspirator or accomplice of
the shooter.
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PCRA Court Opinion, 11/7/13, at 7-9 (footnote and citations omitted).
Our review of the record supports the PCRA court’s conclusion that
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, 104-05 (Pa. 1998) (rejecting the petitioner’s
claims that the proposed testimony of newly discovered witnesses
established a basis for the grant of a new trial).
Appellant’s remaining claims involve his assertion that PCRA counsel
was ineffective in his presentation of Appellant’s “after-discovered” evidence
claim. See Appellant’s Brief at 38-39. Unfortunately for Appellant, and as
recognized by the PCRA court, Appellant inappropriately has raised this claim
for the first time on appeal. See Commonwealth v. Ford, 44 A.3d 1190,
1200 (Pa. Super. 2012) (noting that a majority of the Pennsylvania Supreme
Court agrees that issues of PCRA counsel ineffectiveness must be raised in a
serial PCRA petition or in response to a Pa.R.Crim.P. 907 notice of dismissal
before the PCRA court). Appellant has therefore failed to preserve his
remaining claims.
In sum, the record supports the PCRA court’s conclusion that Appellant
failed to establish his claim of after-discovered evidence, and his claims of
ineffectiveness of PCRA counsel are not preserved. We thus affirm the PCRA
court’s order denying Appellant post-conviction relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/7/2014
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