J-S71023-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LESTER EILAND
Appellant No. 674 MDA 2014
Appeal from the PCRA Order April 8, 2014
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0002630-2000
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and FITZGERALD, J.*
MEMORANDUM BY PANELLA, J. FILED JANUARY 16, 2015
Appellant, Lester Eiland, appeals from the order entered by the
Honorable Andrew H. Dowling, Court of Common Pleas of Dauphin County,
which denied his petition pursuant to the Post Conviction Relief Act. After
careful review, we affirm.
This Court has previously summarized the factual and procedural
history behind Eiland’s convictions as follows:
Angel DeJesus (Mr. DeJesus) was killed in the early morning of
July 5, 2000, in his taxicab at the intersection of Kittatinny and
Hummel Streets in Harrisburg. Jennifer McDonald (Ms.
McDonald) went to a store around 4:30 a.m., shortly before the
murder. She observed Appellant and his co-defendants, Kariem
Eley (Eley) and Edward Mitchell (Mitchell), standing at the
intersection of Kittatinny and Hummel Streets. As Ms. McDonald
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S71023-14
was walking home about a minute and half later, she saw Mr.
DeJesus’s cab pass her traveling toward the intersection. When
she heard a loud noise, she looked back and saw the cab
stopped at the intersection with its brake lights on. Five or ten
minutes after arriving home, Ms. McDonald heard police sirens.
Guadalupe Fonseca was standing in front of his house at the
time of the incident and observed three African-American men
standing near Mr. DeJesus’s cab. He saw one of the men enter
the cab and heard two gunshots. After the shots, the man got
out of the cab and joined the other two men at the right side of
the cab. Mr. Fonseca heard a third shot and saw the men
departing to the north on Hummel Street. Rufus Hudson saw
Appellant and his co-defendants at the intersection before the
shooting and witnessed them running across Hummel Street
toward an abandoned house after Mr. DeJesus was shot.
Another taxicab driver in the area, Francisco Ramirez-Torres
(Ramirez-Torres), was informed of the incident by a passenger
named Elijio Contreras. Ramirez-Torres drove to the scene and
called the police. Police officers found Mr. DeJesus alive but
bleeding from the head. Two shell casings were found on the
floor of the cab. A police officer found a third casing inside an
air vent in the car. Mr. DeJesus died at the hospital following
surgery. The evidence indicated that he had been shot three
times in the head and neck, at least once from a distance of less
than a foot, with a .25 caliber handgun. Although Mr. DeJesus
was known to carry a pouch to hold his money while he was
working, it was not found on his person or in the cab, nor was
any money found.
Appellant and his co-defendants were arrested and held for trial.
Two mistrials occurred before a third jury convicted Appellant on
August 10, 2001, … of second-degree murder, conspiracy to
commit robbery and robbery. Appellant was acquitted of
conspiracy to commit murder. Appellant was sentenced to life in
prison without the possibility of parole for second-degree
murder. He was also sentenced to consecutive terms of
incarceration of seven to twenty years for robbery and four to
twelve years for criminal conspiracy.
-2-
J-S71023-14
Commonwealth v. Eiland, No. 2005 MDA 2007, unpublished memorandum
at 1-2 (Pa. Super. filed September 19, 2007) (footnotes omitted) (citation
omitted).
On direct appeal, this Court affirmed Eiland’s convictions, but vacated
and remanded for re-sentencing, concluding that the consecutive sentence
for robbery violated the double jeopardy clause of the Constitution of the
United States. On August 5, 2004, the trial court re-sentenced Eiland to life
in prison without possibility of parole plus a consecutive term of four to ten
years in prison for the conspiracy conviction. The conviction for robbery was
found to have merged with the murder conviction for purposes of
sentencing. Eiland did not file a direct appeal from this judgment of
sentence.
On August 4, 2005, Eiland filed his first PCRA petition, which the PCRA
court ultimately dismissed on May 18, 2006. On that same date, Eiland filed
a second PCRA petition, which the PCRA court dismissed on September 20,
2007. Eiland appealed, and this Court affirmed the dismissal of Eiland’s
petition on Septmeber 19, 2009. The Supreme Court of Pennsylvania
subsequently denied Eiland’s petition for allowance of review.
On November 16, 2011, Eiland filed the current PCRA petition, his
third, alleging after-discovered evidence. The evidence at issue was the
recantation of trial testimony by eyewitness Rufus Hudson. A hearing was
held on this petition in August of 2013, and both parties filed briefs with the
-3-
J-S71023-14
PCRA court. On April 8, 2014, the PCRA court entered an order dismissing
Eiland’s petition, and this timely appeal followed.
“On appeal from the denial of PCRA relief, our standard and scope of
review is limited to determining whether the PCRA court’s findings are
supported by the record and without legal error.” Commonwealth v.
Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied,
Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013). “[Our] scope of review
is limited to the findings of the PCRA court and the evidence of record,
viewed in the light most favorable to the prevailing party at the PCRA court
level.” Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation
omitted). “[T]his Court applies a de novo standard of review to the PCRA
court’s legal conclusions.” Commonwealth v. Spotz, 18 A.3d 244, 259
(Pa. 2011) (citation omitted).
Before we may address the merits of a PCRA petition, we must first
consider the petition’s timeliness because it implicates the jurisdiction of
both this Court and the PCRA court. See Commonwealth v. Williams, 35
A.3d 44, 52 (Pa. Super. 2011) (citation omitted), appeal denied, 50 A.3d
121 (Pa. 2012). A PCRA petition must be filed within one year of the date
that the judgment of sentence becomes final. See 42 PA.CONS.STAT.ANN. §
9545(b)(1). “The PCRA timeliness requirements are jurisdictional in nature
and, accordingly, a court cannot hear untimely PCRA petitions.”
Commonwealth v. Flanagan, 854 A.2d 489, 509 (Pa. 2004). As the PCRA
-4-
J-S71023-14
petition at issue here was not timely, “the courts have no jurisdiction to
grant [him] relief unless he can plead and prove that one of the exceptions
to the time bar provided in 42 [PA.CONS.STAT.ANN.] § 9545(b)(1)(i)-(iii)
applies.” Commonwealth v. Pursell, 749 A.2d 911, 914-915 (Pa. 2000).
See also Commonwealth v. Wilson, 824 A.2d 331, 335 (Pa. Super. 2003)
(en banc) (“Since Appellant’s PCRA petition is untimely, our review focuses
on whether Appellant has pled and proven that one of the three limited
exceptions to the timeliness requirements of the PCRA apply.”).
Section 9545 provides, in relevant part, as follows.
(b) Time for filing petition.—
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition alleges
and the petitioner proves that:
(i) the failure to raise the claim previously was the
result of interference by government officials with
the presentation of the claim in violation of the
Constitution or laws of this Commonwealth or the
Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were
unknown to the petitioner and could not have been
ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that
was recognized by the Supreme Court of the United
States or the Supreme Court of Pennsylvania after
the time period provided in this section and has been
held by that court to apply retroactively.
(2) Any petition invoking an exception provided in
paragraph (1) shall be filed within 60 days of the date the
claim could have been presented.
-5-
J-S71023-14
…
42 Pa.Cons.Stat.Ann. § 9545(b).
No party to this appeal, or the PCRA court, addresses the issue of the
application of the timeliness requirement. Eiland’s third petition for PCRA
relief, filed on November 16, 2011, asserted that he received the unsworn
declaration of Rufus Hudson recanting his trial testimony on September 22,
2011. This timeline satisfies the 60-day requirement set forth by the
statute.
The other requirement under the statute is that the evidence could not
have been ascertained by the exercise of due diligence. The PCRA court
implicitly found this condition satisfied. In the absence of obvious error and
Commonwealth argument to the contrary, we conclude that this condition
has been met. We therefore conclude that Eiland has satisfied the
jurisdictional requirements of the PCRA.1
____________________________________________
1
As this Court recently noted in Commonwealth v. Davis, 86 A.3d 883
(Pa. Super. 2014),
an after-discovered evidence claim and the timeliness exception
based on previously unknown facts are distinct, and the issues
are analyzed differently. Commonwealth v. Bennett, 593 Pa.
382, 930 A.2d 1264, 1270-72 (2007). Thus, the relative merit of
Appellant's underlying PCRA claims is not the issue when
determining whether his PCRA petition satisfies the after-
discovered fact exception. Rather, the question of whether he
(Footnote Continued Next Page)
-6-
J-S71023-14
On appeal, Eiland contends that the PCRA court erred in dismissing his
petition. Specifically, Eiland argues that the PCRA court erred in finding that
Hudson’s recantation testimony was not credible. To establish the right to
relief due to after-discovered evidence, Eiland 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) the evidence is not being used solely to impeach credibility;
and (4) the evidence would likely compel a different verdict. See
Commonwealth v. D'Amato, 856 A.2d 806, 823 (Pa. 2004).
Our review of a claim involving recanted testimony is 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 discretion.... Recanting testimony 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.
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). As the
PCRA court is provided a unique opportunity to observe the witness’s
manner and demeanor during an evidentiary hearing, “a prerequisite to such
_______________________
(Footnote Continued)
met that exception is evaluated pursuant to the statutory
requirements of 42 Pa.C.S.A. § 9545(b)(1)(ii) and (b)(2).
Id., at 891 n.7. Thus, this determination is analytically distinct from the
assessment of reasonable diligence employed when addressing the merits of
an after-discovered evidence claim.
-7-
J-S71023-14
relief is that ‘the evidence upon which the relief is sought must be credible to
the trial court.’” Id. (citation omitted).
The first three prongs of the after-discovered evidence test are not at
issue in this appeal. At issue is the PCRA court’s finding that “Mr. Hudson’s
recantation testimony is not credible, not truly exculpatory and would not
have likely led to a different verdict.” Trial Court Opinion, 4/8/14, at *4.
In addressing the fourth prong, the PCRA court first found the
recantation testimony not credible. The PCRA court found the reasons given
by Hudson for his alleged previous perjury unbelievable. In his affidavit,
Hudson claimed that he was young and had a poor understanding of the
legal system. However, at the time of trial, Hudson was 24 years old, had
extensive contact with the juvenile and criminal justice system, and had
been incarcerated pending resolution of a charge of attempted homicide.
See N.T., PCRA Hearing, 8/29/13, at 35-38. As a result, the PCRA court
found that at the time of trial, Hudson had a strong understanding of the
consequences of his testimony. We can find no reason to conclude that this
finding was a clear abuse of discretion.
Furthermore, the PCRA court concluded that even if it had found this
testimony credible, the recantation testimony would not have compelled a
different result at trial. Another witness at the trial placed Eiland near the
scene of the crime shortly after the murder. See N.T., Jury Trial, 8/6-
8/10/01, at 283. The Commonwealth also presented testimony that Eiland
-8-
J-S71023-14
had admitted to the murder while in jail. See id., at 420-421. Thus, we
cannot conclude that the PCRA court clearly abused its discretion in this
manner, either. As a result, we conclude that Eiland’s sole issue on appeal
merits no relief.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/16/2015
-9-