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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JEROME M. WALKER,
Appellant No. 1984 WDA 2013
Appeal from the PCRA Order Entered November 12, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0015481-2007
BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 21, 2014
Appellant, Jerome M. Walker, appeals from the November 12, 2013
order denying his petition for relief filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
Appellant was sentenced to six to twelve years’ imprisonment after he
was convicted, following a nonjury trial, of involuntary deviate sexual
intercourse (IDSI), sexual assault, indecent assault, simple assault, and
criminal conspiracy. Appellant’s convictions stemmed from his participation
in the sexual assault of a female victim, T.W. At trial, T.W. testified that at
approximately 9:00 or 10:00 p.m. on September 25, 2007, she left a
friend’s house and was walking home when she was struck from behind with
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*
Retired Senior Judge assigned to the Superior Court.
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“a ‘bat or metal pipe or something.’” PCRA Court Opinion (PCO), 5/16/14, at
3-4 (citing N.T. Trial, 9/16/09, at 23). T.W. fell to the ground and was
attacked by three men who groped her breasts, buttocks, and in between
her legs. Id. at 4. T.W. identified Appellant as one of her attackers, and
testified that during the assault, Appellant “pulled her head back and placed
his penis in her mouth.” Id. T.W. bit down and, at the same time, a
spotlight in the area came on, causing Appellant and his cohorts to flee. Id.
Appellant was later apprehended and, when interviewed by police, he stated
that “[h]e and his boys were all over that bitch, and she deserved what she
got[.]” Id. at 6. Appellant followed that comment with the statement, “I’m
just funning with all you[.]” Id.
Following his conviction and sentencing, Appellant filed a direct appeal.
This Court affirmed his judgment of sentence on July 26, 2011, and our
Supreme Court denied his subsequent petition for allowance of appeal on
January 18, 2012. Commonwealth v. Walker, 32 A.3d 282 (Pa. Super.
2011) (unpublished memorandum), appeal denied, 37 A.3d 1195 (Pa.
2012). On March 12, 2012, Appellant filed a timely pro se PCRA petition and
counsel was appointed. Pertinent to the instant appeal, Appellant claimed in
his petition that he “was entitled to a new trial based on after-discovered
evidence in that an alibi witness, [Daric Anderson,] who was unavailable at
trial, became available….” PCO at 3.
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A PCRA hearing was conducted on September 27, 2013, at which
Appellant called Anderson to the stand. The PCRA court summarized the
relevant portions of Anderson’s testimony as follows:
Anderson testified that on the night of the sexual assault [of
T.W.], he and [Appellant] were in his apartment watching
television, going outside occasionally to smoke cigarettes. He
stated that between 10:00 p.m. and 10:30 p.m., he went into
the apartment and when he returned outside, [he] observed
[Appellant], an individual by the name of Antoine Dean, an
unidentified man and an unidentified woman arguing.
[Anderson] stated that the police were present at that time and
he spoke with them. He said that Dean then left their company
but [Anderson] and [Appellant] stayed together the rest of the
night. He said that the police returned the next day, accused
him and [Appellant] of committing a rape, and arrested
[Appellant].
PCO at 6-7 (citations to the record omitted).
Ultimately, the PCRA court issued an order denying Appellant’s
petition. Appellant filed a timely notice of appeal, and presents one
question for our review:
I. Whether Appellant proved, by a preponderance of the
evidence, the four factors set forth in Commonwealth v.
D’Amato, 579 Pa. 490, 856 A.2d 806 (Pa. 2004), controlling
post-conviction relief for claims of after-discovered witnesses?
Appellant’s Brief at 4.
Our standard of review regarding an order denying post-conviction
relief under the PCRA is whether the determination of the court is supported
by the evidence of record and is free of legal error. Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). This Court grants great deference
to the findings of the PCRA court, and we will not disturb those findings
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merely because the record could support a contrary holding.
Commonwealth v. Touw, 781 A.2d 1250, 1252 (Pa. Super. 2001). 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).
The PCRA provides post-conviction relief for petitioners who prove that
their conviction resulted from “[t]he 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.
§ 9543(a)(2)(vi). As Appellant acknowledges, in D’Amato our Supreme
Court set forth the following test for proving an after-discovered evidence
claim under section 9543(a)(2)(vi):
To obtain relief based upon newly-discovered evidence under the
PCRA, a petitioner must establish that: (1) the evidence has
been discovered after trial and it could not have been obtained
at or prior to trial through reasonable diligence; (2) the evidence
is not cumulative; (3) it is not being used solely to impeach
credibility; and (4) it would likely compel a different verdict.
D'Amato, 856 A.2d at 823-24 (citations omitted).
In this case, the PCRA court concluded that Appellant failed to satisfy
the fourth prong of the above-stated test.1 Specifically, the court found that
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1
The PCRA court also determined that Anderson’s testimony could have
been presented at trial had Appellant exercised reasonable diligence. We
need not address the court’s assessment in this regard because, for the
reasons stated infra, we ascertain no error in the court’s conclusion that
(Footnote Continued Next Page)
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Anderson’s alibi testimony was not credible and would not likely have
compelled a different verdict. The court explained:
Anderson was not a credible witness at the PCRA hearing.
Moreover, the “alibi” he would have provided was profoundly
weak. It actually placed [Appellant] approximately one block
from where the [assault of T.W.] occurred at the time it
occurred. The apartment where Anderson claimed he and
[Appellant] were, between 10:00 and 10:30 [on] the night of
September 2[5], 2007, was, according to the trial testimony of
Carnegie Police Officer Scott Schmeltz, approximately one block
from where the victim was assaulted. [Moreover,] [Anderson’s]
testimony as to the time he and [Appellant] encountered the
police, … was contrary to the trial testimony of the police officer
who responded to that disturbance. Officer [] Schmeltz stated
that he was dispatched to 432 Broadway at 11:45 [p.m.], where
he encountered [Appellant], Anderson and another male.
Anderson claimed at the PCRA hearing that the police [officer]
came there between 10:00 and 10:30 [p.m.] In addition,
Anderson’s testimony placing [Appellant] with him when the
assault occurred was contradicted by the victim who positively
identified [Appellant] as one of her assailants. Finally,
[Appellant’s] own inculpatory statement contradicted Anderson’s
claim that he and [Appellant] were together and somewhere
other than where the victim was attacked.
PCO at 8-9.
Clearly, the PCRA court heard and considered Anderson’s alibi
testimony, deemed it incredible, and concluded that it would not likely have
compelled a different verdict had it been presented at Appellant’s trial.
Because the record supports the PCRA court’s credibility determination, we
must defer to it on appeal. See Commonwealth v. Fiore, 780 A.2d 704,
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(Footnote Continued)
Appellant failed to satisfy the fourth prong of the after-discovered evidence
test.
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704, 712 (Pa. Super. 2001) (“Where the record supports the credibility
determination of the post-conviction court, the reviewing court is to defer to
that determination.”). Accordingly, the court did not err in denying
Appellant’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/2014
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