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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
LOUIS VAN REESE
Appellant No. 772 WDA 2015
Appeal from the PCRA Order entered May 14, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0005061-2002
CP-02-CR-0005062-2002
BEFORE: PANELLA, J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 06, 2016
Louis Van Reese appeals from the order denying his serial petition for
post-conviction relief filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.
The pertinent facts and procedural history have been summarized as
follows:
Ms. Talavia Ledbetter testified that on December 10,
2001, she, Kevin Crosby, and Lindsay [Loker] drove to the
Club Classic. Once inside, a man approached Ms. [Loker]
and started pulling on [her]. The witness then identified
[Appellant] as the man in the club who had approached
her friend. She then testified that as she and her party
were leaving, [Appellant] again pulled on Ms. [Loker]. Mr.
Crosby intervened and words were exchanged. Ms.
Ledbetter grabbed [Appellant] and threw him to the
ground. However, before Ms. Ledbetter and her party
[could] leave, she claimed that she re-entered the bar to
retrieve Mr. Crosby’s hat. When she returned, they left the
parking lot and were on Verona Road when she heard
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shots and saw a white car, driven by [Appellant], following
them. [Appellant] fired into the Ledbetter car and the
driver, Kevin Crosby[,] was shot. The car then wrecked
and Ms. Ledbetter suffered a ruptured uterus, bladder and
spleen. She also had both ankles and her tibia broken. On
cross-examination, she admitted drinking and that
[Appellant] appeared to have been drinking. She also
admitted to having filed a Civil Action against [Appellant]
and the bar.
Lindsay [Loker] similarly testified that she was with Ms.
Ledbetter and [Ms. Ledbetter’s] boyfriend [Kevin Crosby]
at Club Classic on December 11, 2001. She stated that
[Appellant] grabbed her as she was exiting the ladies
restroom. After describing how [Appellant] looked that
night and what he was wearing, she identified him for the
jury. Ms. [Loker] then testified that twenty minutes after
the incident at the restroom [Appellant] stumbled into her
and attempted to talk to her. [As] she and her friends left
the club [Appellant] grabbed her. Ms. [Loker] related how
Mr. Crosby intervened and how Ms. Ledbetter grabbed
[Appellant]. She also said she recalled [Appellant] stating,
“bitch, I’ll fuck you up” and reached for his waist band,
although she admitted that she never saw a gun.
After the incident in the parking lot, Ms. [Loker] stated
that the victims got into Crosby’s car and drove away. Ms.
[Loker] noticed they were being followed by a white car,
which looked similar to the one she had seen [Appellant]
standing near, looking for his keys a short time earlier at
the night club. She then explained that she heard one
shot, turned and actually saw the second shot being fired
at the car, but could not identify the shooter.
[Ms. Loker] then testified she remembered “coming to
on Washington Boulevard and flagging down a police car.”
City of Pittsburgh Police Officer Paul Kirby testified that he
found Ms. [Loker] and the others at 2:27 a.m.
[Ms. Loker testified] that the whole incident from
leaving the bar until she flagged down the police car may
have taken ten minutes. She went on to explain that she
told the officer about the incident at the bar and how the
car from which the shots were fired looked like the car
[Appellant] got into. She also explained she suffered a
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compression fracture of the spine and a radial [fracture] of
her right wrist.
Mr. Kevin Crosby testified similarly that they were
drinking at Club Classic when Ms. [Loker] was accosted by
[Appellant]. He then testified to the incident in Club
Classic’s parking lot and how after getting on Allegheny
River Boulevard, Lindsay “looks out the back window and I
think she said somebody is following us.” Crosby testified
that “I looked up and into the rear view mirror and a car
comes zooming in back behind me before he cut out the
lights. I could see into the car it was [Appellant], and I
heard four (4) shots.” One bullet lodged in Mr. Crosby’s
head, and he also broke his left leg and two ribs.
***
[T]he defense called Darrell Holloway, Terrell Bush and
Cheyenne Allen, who all testified they witnessed
[Appellant] pull out [of the Club Classic parking lot] in the
opposite direction from the Crosby car. [Appellant] also
took the stand and admitted to drinking at Club Classic
and having an encounter with Ms. [Loker] and Mr. Crosby.
However, he stated he started to come towards
Wilkinsburg when he decided to go to the Original (hot dog
shop) in Oakland. He testified that he was not driving up
Washington Boulevard on Fifth Avenue, but rather turned
on Fifth Avenue from Penn Avenue when Officer [David]
Meade saw him. While he admitted to fleeing and eluding
the police and to drunk driving, he denied any knowledge
of the shooting.
Commonwealth v. Reese, 929 A.2d 248 (Pa. Super. 2007), unpublished
memorandum at 1-4 (citation omitted).
Based upon the above, the jury, on December 15, 2004, convicted
Appellant of three counts of criminal attempt to commit homicide, three
counts of aggravated assault, two counts of driving under the influence, and
one count of fleeing or eluding police. On April 6, 2005, Appellant was
sentenced to an aggregate term of twenty-five to sixty years of
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imprisonment. Appellant filed a timely post-sentence motion. That same
day, the trial court entered an order purporting to vacate Appellant’s
judgment of sentence “pending hearing on motion for new trial and
modification of sentencing.” On September 12, 2005, the clerk of courts
entered an order denying the post-sentence motion by operation of law.
Appellant filed a timely appeal to this Court, and, on May 8, 2007, we
rejected Appellant’s sufficiency challenge and affirmed his judgment of
sentence. See Reese, supra. Appellant did not file a petition for allowance
of appeal. On May 29, 2008, Appellant filed a counselled PCRA petition, and
PCRA counsel filed an amended PCRA petition on June 3, 2009. Following an
evidentiary hearing, the PCRA court dismissed Appellant’s first PCRA petition
on June 30, 2009. Appellant filed a timely appeal, and, on February 10,
2011, we affirmed the order denying post-conviction relief. See
Commonwealth v. Reese, 24 A.3d 452 (Pa. Super. 2011) (unpublished
memorandum). On August 2, 2011, our Supreme Court denied Appellant’s
petition for allowance of appeal. See Commonwealth v. Reese, 26 A.3d
483 (Pa. 2011).
On November 7, 2011, Appellant filed a counseled “Defendant’s Motion
for Imposition of Sentence,” wherein he contended that he had not been
lawfully sentenced because his original sentence had been vacated and
never re-imposed. On April 4, 2012, the trial court denied Appellant’s
motion. Appellant filed a timely appeal to this Court. Treating the motion as
a request for habeas corpus relief outside the parameters of the PCRA, this
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Court concluded that the trial court’s order vacating Appellant’s sentence
was a legal nullity. We therefore affirmed the order denying Appellant’s
motion. See Commonwealth v. Reese, 96 A.3d 1083 (Pa. Super. 2014)
(unpublished memorandum). On August 7, 2014, our Supreme Court denied
Appellant’s petition for allowance of appeal. See Commonwealth v. Reese,
97 A.3d 744 (Pa. 2014).
On September 22, 2014, Appellant filed a “Motion to Resume PCRA
Proceedings,” in which he sought to continue seeking relief via a pro se
PCRA petition he had filed during the pendency of his latest appeal. The
PCRA court appointed present counsel. PCRA counsel filed an amended PCRA
petition on November 12, 2014, in which Appellant raised a newly
discovered evidence claim regarding Commonwealth witness Talavia
Ledbetter. The Commonwealth filed an answer, and the PCRA court held an
evidentiary hearing on April 22, 2015. By order entered on May 14, 2015,
the PCRA court denied Appellant’s petition. This timely appeal follows.
Appellant raises the following issue:
1. Did the [PCRA] court err in denying Appellant’s PCRA
petition since [Talavia] Ledbetter provided newly
discovered evidence, in an affidavit and at the 4/22/15
PCRA hearing, recanting her trial testimony that
identified Appellant as the shooter, since she never
observed the identity of the shooter, the identity of the
shooter was told to her by others, her mind was
compromised by prescribed medications due to her
serious injuries, and she was coerced by the
Commonwealth to testify at Appellant’s trial, despite the
fact that she had no personal knowledge of the identity
of the shooter. If the jury had heard this testimony, it
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would likely not have convicted Appellant of attempted
homicide and related crimes?
Appellant’s Brief at 3 (excess capitalization omitted).
This Court’s standard of review regarding an order dismissing a
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. See
Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA
court’s findings will not be disturbed unless there is no support for the
findings in the certified record. See Commonwealth v. Carr, 768 A.2d
1164, 1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold
a hearing on the petition if the PCRA court determines that petitioner’s claim
is patently frivolous and is without a trace of support either in the record or
from other evidence. See Commonwealth v. Jordan, 772 A.2d 1011, 1104
(Pa. Super. 2001).
Because this is Appellant’s second petition for post-conviction relief, he
must meet a more stringent standard. “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 demonstrates that either the proceedings which resulted
in his conviction were so unfair that a miscarriage of justice occurred which
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no civilized society could tolerate, or that he was innocent of the crimes for
which he was charged.” Id. (citations omitted).
The timeliness of a post-conviction petition is jurisdictional. See
Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).
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
is final unless the petition alleges, and the petitioner proves an exception to
the timeliness requirement. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A PCRA
petition invoking one of these statutory exceptions must “be filed within 60
days of the date the claims could have been presented.” Hernandez, 79
A.3d 651-52 (citations omitted). See also 42 Pa.C.S.A. § 9545(b)(2).
Finally, exceptions to the PCRA’s time bar must be pled in the petition and
may not be raised for the first time on appeal. See Commonwealth v.
Burton, 936 A.2d 521, 525 (Pa. Super. 2007). See also Pa.R.A.P. 302(a).
Appellant’s judgment of sentence became final on June 8, 2007, when
the thirty-day time period for filing a petition for allowance of appeal with
our Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3). Thus, Appellant
had until June 8, 2008, to file a timely PCRA petition. As Appellant filed the
instant petition in 2013, it is patently untimely unless he has satisfied his
burden of pleading and proving that one of the enumerated exceptions
applies.
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Within his brief, Appellant does not acknowledge that his latest petition
is untimely and makes no mention of the PCRA’s time bar exceptions.
Instead, although arguing “newly-discovered evidence,” Appellant cites a
case from this Court that conflates eligibility for the PCRA’s time bar
exceptions with the eligibility for relief, via a timely PCRA petition, based
upon “after-discovered evidence” pursuant to 42 Pa.C.S.A. § 9543(a)(vi).
See Appellant’s Brief at 17 (citing Commonwealth v. Holmes, 925 A.2d
507 (Pa. Super. 2006)). Each of these sections of the PCRA requires
different analyses.
When considering a PCRA’s petitioner’s claim that he or she has
established an exception to the PCRA’s time bar under § 9545(b)(1)(ii), the
petitioner must establish only that the facts upon which the claim are
predicated were unknown to him, and that he could not have ascertained the
facts earlier despite the exercise of due diligence. See Commonwealth v.
Bennett, 930 A.2d 1264, 1270-1272 (Pa. 2007). The determination of
timeliness does not require a merits analysis. See Commonwealth v. Abu-
Jamal, 941 A.2d 1263, 1268 (Pa. 2008).
Here, Appellant does not demonstrate the exercise of due diligence.
Although he asserts he filed his latest PCRA petition within sixty days of the
discovery of Ms. Ledbetter’s purported recantation, see Appellant’s Brief at
18, he offers no explanation as to why, with the exercise of due diligence,
this information could not have been discovered earlier. We could affirm the
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PCRA court’s order denying post-conviction relief on this basis alone. See
Commonwealth v. Doty, 48 A.3d 451, 456 (Pa. Super. 2012) (explaining
that this Court can affirm the PCRA court’s denial of post-conviction relief on
any basis).
Nevertheless, even if the PCRA court had found Appellant met the
timeliness exception for newly-discovered evidence, we would agree with the
PCRA court’s ultimate conclusion that Appellant did not demonstrate he is
entitled to post-conviction relief based upon Ms. Ledbetter’s affidavits or
testimony at the evidentiary hearing.
A petitioner is eligible for relief under the PCRA if he or she 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 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
preponderance of the evidence that each of these factors has been met in
order for a new trial to be warranted.” Id. (citation omitted). Moreover,
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“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. (citation omitted).
In concluding that Appellant failed to meet this burden, the PCRA court
noted that Ms. Ledbetter’s trial testimony identifying Appellant as the
shooter was corroborated by the identification testimony of Mr. Crosby, as
well as an inference from Ms. Loker’s testimony that Appellant was the
occupant of the vehicle from which the shots were fired. Thus, Ms.
Ledbetter’s recantation of her trial testimony would not have likely resulted
in a different verdict if a new trial was granted.
Moreover, the PCRA court did not find her recantation testimony to be
credible. We cannot disturb this determination. See Commonwealth v.
D’Amato, 856 A.2d 806, 825-826 (Pa. 2004) (explaining that the PCRA
court as fact-finder is in a superior position to make the initial assessment of
the importance of the recanting witness’s testimony to the outcome of the
case). Nevertheless, the PCRA court’s credibility determination is supported
by our review of the evidentiary hearing—Ms. Ledbetter was inconsistent
with her testimony regarding when she stopped taking the drugs that
purportedly compromised her ability to remember the shooting incident. In
addition, we note that no medical evidence was introduced at the hearing to
support Ledbetter’s time line regarding the treatment for her injuries. See
N.T., 4/22/15, at 5-29.
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In sum, for all of the above reasons, the PCRA court correctly
determined that Appellant was ineligible for relief. We therefore affirm the
PCRA court’s order denying Appellant’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/6/2016
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