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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JEFFREY DAWKINS
Appellant No. 2680 EDA 2015
Appeal from the PCRA Order August 3, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-807922-2005
BEFORE: BOWES, J., MOULTON, J., and MUSMANNO, J.
MEMORANDUM BY MOULTON, J.: FILED NOVEMBER 15, 2016
Jeffrey Dawkins appeals from the August 3, 2015 order of the Court of
Common Pleas of Philadelphia County denying his second amended petition
filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-
9545. We affirm.
On December 18, 2006, a jury convicted Dawkins and his co-
defendant, Jason Perez, of first-degree murder, criminal conspiracy, carrying
a firearm without a license, and possessing instruments of crime. 1 The
convictions stemmed from the shooting death of Bryan Green at a bar in
Philadelphia on March 28, 2004.
The PCRA court set forth the procedural history of this case as follows:
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1
18 Pa.C.S. §§ 2502(a), 903, 6106, and 907(a), respectively.
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On [December 18, 2006], this Court sentenced
[Dawkins] to the mandatory term of life imprisonment.
[Dawkins] did not file post-sentence motions, but filed a
timely notice of appeal to the Superior Court on December
29, 2006. On August 6, 2008, the Superior Court affirmed
[Dawkins’] judgment of sentence and, on April 1, 2009,
our Supreme Court denied [Dawkins’] petition for
allowance of appeal.
On April 27, 2009, [Dawkins] filed a pro se petition
pursuant to the [PCRA]. Counsel was appointed and, on
September 24, 2009, filed an amended petition. On
January 21, 2010, the Commonwealth filed a motion to
dismiss. After reviewing the pleadings and conducting an
independent examination of the record, on February 17,
2010, this Court sent [Dawkins] notice of its intent to deny
and dismiss his petition without a hearing pursuant to
Pa.R.Crim.P. 907 (907 Notice). Consistent with its 907
Notice, on March 26, 2010, this Court denied and
dismissed [Dawkins’] PCRA petition. [Dawkins] filed a
timely notice of appeal. On April 25, 2011, the Superior
Court affirmed this Court’s denial and dismissal of
[Dawkins’] petition and, on October 17, 2011, our
Supreme Court denied [his] petition for allowance of
appeal.
On October 5, 2012, [Dawkins] filed a second,
untimely pro se PCRA petition, and on June 19, 2013, [he]
filed a supplemental amended petition. On January 30,
2014, retained counsel, Teri Himebaugh, Esquire, entered
her appearance in [Dawkins’] case. PCRA counsel then
filed a supplemental memorandum of law on August 5,
2014, and a second supplemental PCRA petition on
November 26, 2014. On December 19, 2014, the
Commonwealth agreed to a hearing on [Dawkins’] claims
of newly-discovered evidence, in which Perez joined.
Thereafter, on February 19 2015, Marissa Boyers
Bluestine, Esquire, entered her appearance in [Dawkins’]
case, and proceeded to represent [Dawkins] pro bono,
along with retained PCRA counsel, Teri Himebaugh,
Esquire.
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PCRA Ct. 1925(a) Opinion, 12/18/15, at 1-3 (footnotes and citations
omitted) (“1925(a) Op.”).
In his second amended PCRA petition, Dawkins asserted a claim of
after-discovered evidence based on the affidavits of four alleged
eyewitnesses to the March 28, 2004 murder: Chamar Brown, Donald
Williams, Brian Perry, and Damien Evans. In the affidavits, each eyewitness
disavowed his prior trial testimony or written statement identifying Dawkins
as the victim’s killer. Dawkins asserted that the witnesses’ prior testimony
and statements were the result of police coercion.
The PCRA court held a three-day evidentiary hearing on Dawkins’
PCRA petition on March 9, March 10, and July 1, 2015.2 At the hearing,
Dawkins presented the testimony of Brown, Williams, Perry, and Evans.
Dawkins also testified on his own behalf. The Commonwealth presented the
testimony of several police officers and detectives involved in the underlying
homicide investigation.
On August 3, 2015, the PCRA court dismissed Dawkins’ PCRA petition.
The PCRA court concluded that although Dawkins had proven an exception
to the PCRA’s one-year time-bar, Dawkins had failed to prove the merits of
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2
On March 13, 2015, Dawkins and co-defendant Perez also filed a
joint petition for post-conviction DNA testing. After an evidentiary hearing,
the PCRA court denied the petition, concluding “that nothing existed on
which DNA testing could be attempted.” 1925(a) Op. at 3. Dawkins does
not challenge that ruling on appeal.
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his after-discovered-evidence claim. See PCRA Order, 8/3/15, at 1; 1925(a)
Op. at 9.3 Dawkins timely appealed to this Court.
Our review of an order denying PCRA relief is limited to determining
“whether the decision of the PCRA court is supported by the evidence of
record and is free of legal error.” Commonwealth v. Melendez–Negron,
123 A.3d 1087, 1090 (Pa.Super. 2015). We will not disturb the PCRA court’s
factual findings “unless there is no support for [those] findings in the
certified record.” Id.
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3
“[T]he timeliness of a PCRA petition is a jurisdictional requisite.”
Commonwealth v. Brown, 111 A.3d 171, 175 (Pa.Super.), app. denied,
125 A.3d 1197 (Pa. 2015). A petitioner must file a PCRA petition, including
a second or subsequent petition, within one year of the date his or her
judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). Here, the
Pennsylvania Supreme Court denied Dawkins’ petition for allowance of
appeal on April 1, 2009. Dawkins did not seek review with the United States
Supreme Court, so his judgment of sentence became final 90 days later, on
July 1, 2009. See 42 Pa.C.S. § 9545(b)(3); U.S. S. Ct. R. 13. Dawkins had
one year from that date, or until July 1, 2010, to file a timely PCRA petition.
Thus, the instant PCRA petition, filed on October 5, 2012, was facially
untimely.
In his petition, Dawkins asserted the “new-facts” exception to the one-
year time-bar. See Commonwealth v. Bennett, 930 A.2d 1264, 1270-72
(Pa. 2007); Brown, 111 A.3d at 176-77. To invoke this exception, the
petitioner must prove that “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.” 42 Pa.C.S. § 9545(b)(1)(ii). The petitioner also
must file the petition within 60 days of the date the claim first could have
been presented. 42 Pa.C.S. § 9545(b)(2). Here, the PCRA court found that
Dawkins satisfied the new-facts exception and, thus, that it had jurisdiction
to consider the merits of Dawkins’ after-discovered-evidence claim. 1925(a)
Op. at 9.
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On appeal, Dawkins makes two related claims – one concerning the
conduct of the PCRA hearing and one concerning the merits of his petition.
As to the hearing, Dawkins asserts that the PCRA court erred in “engraft[ing]
a merit-based analysis to its jurisdictional analysis when it handled [the]
PCRA evidentiary hearing” and in making “merit-based credibility”
determinations. Dawkins’ Br. at 29, 31. Dawkins contends that as a result,
the PCRA court “denied [him] a full and fair hearing” and, in particular,
“denied [his] ability to develop his timely-pled claims of police coercion and
intimidation.” Id. at 33-34. Although Dawkins is correct that, at times
during the three-day hearing, the trial court did not properly separate the
two inquires – whether Dawkins had established an exception to the PCRA
time-bar and, if so, whether he was entitled to relief – Dawkins’ claim fails.
In Brown, this Court explained the interplay between the new-facts
exception to the PCRA time-bar and an after-discovered-evidence claim as
follows:
[A] facially untimely PCRA petitioner attempting to raise a
substantive after-discovered-evidence claim [under Section
9543(a)(2)(vi)] must first establish jurisdiction by pleading
and proving an exception to the PCRA time-bar. . . . [T]he
“new facts” exception set forth at Section 9545(b)(1)(ii)
does not require any merits analysis of an underlying
after-discovered-evidence claim. Rather, to establish
jurisdiction under Section 9545(b)(1)(ii), a petitioner must
allege and prove (a) the existence of facts that were
unknown to him and (b) his exercise of due diligence in
discovering those facts.
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111 A.3d at 179. “Once jurisdiction is established, a PCRA petitioner can
present a substantive after-discovered-evidence claim [under Section
9543(a)(2)(vi)].” Id. at 176. Recently, our Supreme Court further clarified
the distinction between these two inquiries, stating:
The distinction between the use of the terms “facts” in
section 9545(b)(1)(ii) and “evidence” in section
9543(a)(2)(vi) underscores their separate functions. . . .
The function of a section 9545(b)(1)(ii) analysis is that of a
gatekeeper. Its inquiry, therefore, is limited to considering
only the existence of a previously unknown fact that would
allow a petitioner to avoid the strict one year time-bar. In
contrast, the purpose of an inquiry under section
9543(a)(2)(vi) is to ensure that the claim presented is
cognizable under the PCRA, and so it requires a more
thorough analysis. As such, the matter upon which the
claim is based is assessed in terms of its evidentiary merit,
by considering the purpose for which it would be used and
its potential impact on the outcome of trial. Through
consideration of these factors, section 9543 assists the
goal of the PCRA to provide relief to the wrongfully
convicted by ferreting out colorable claims of wrongful
convictions.
Commonwealth v. Cox, 146 A.3d 221, 229 n.11 (Pa. 2016).
Here, it appears that in discussing the scope of the proceedings with
counsel, the PCRA court did not clearly distinguish the timeliness inquiry
under Section 9545(b)(1)(ii) from the after-discovered-evidence inquiry
under Section 9543(a)(2)(vi). See N.T., 3/10/15, at 51-61. The PCRA court
also sustained the Commonwealth’s objections to defense counsel’s inquiries
about aspects of the police investigation not directly related to the testimony
of the four witnesses, apparently on the ground that the PCRA court needed
to address timeliness first. See id. at 62-66. Dawkins asserts that if the
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PCRA court had overruled the Commonwealth’s objections to that line of
questioning, the record would have established that Dawkins’ newly
discovered evidence, had it been presented to the jury, would have changed
the outcome of his trial. This claim fails for two reasons.
First, Dawkins did not raise this evidentiary issue in his Pennsylvania
Rule of Appellate Procedure 1925(b) statement. It is well settled that “[a]ny
issues not raised in a [Rule] 1925(b) statement will be deemed waived.’”
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998); see
Commonwealth v. Riggle, 119 A.3d 1058, 1070 (Pa.Super. 2015).
Therefore, Dawkins has waived this claim.
Second, even if Dawkins had properly preserved this claim, the PCRA
court’s conclusion that none of the four witnesses was credible precludes
relief. It is well settled that “recantation evidence ‘is notoriously unreliable,
particularly where the witness claims to have committed perjury.’”
Commonwealth v. D'Amato, 856 A.2d 806, 825 (Pa. 2004) (citation
omitted). As Dawkins acknowledges, see Dawkins’ Br. at 40, our Supreme
Court has stated that “[t]he trial court has the responsibility of judging the
credibility of the recantation [and] [u]nless the trial court is satisfied that the
recantation is true, it should deny a new trial.” Commonwealth v. Henry,
706 A.2d 313, 321 (Pa. 1997) (internal citation omitted).4
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4
We recognize that Brown and Evans did not testify at Dawkins’ trial,
so their PCRA testimony is not true recantation evidence. See
(Footnote Continued Next Page)
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After observing the testimony of the four witnesses, the PCRA court
found their testimony incredible. In its opinion, the PCRA court explained in
careful detail its reasons for disbelieving each of the four witnesses. See
1925(a) Op. at 12-32. We are bound by the PCRA court’s credibility
determinations when they are supported by the record. Commonwealth v.
Abu-Jamal, 720 A.2d 79, 99 (Pa. 1998). Because Dawkins’ sole basis for
claiming a right to a new trial was the after-discovered recantation
testimony, once the PCRA court discredited that testimony, other details of
the police investigation were irrelevant.5
Moreover, there is nothing in the record to suggest that the PCRA
court would have made different credibility determinations had the
complained-of objections been overruled. Dawkins’ failure to raise this
evidentiary issue in either his post-hearing brief to the PCRA court or his
Rule 1925(b) statement belies his present claim of harm from those rulings.
In fact, in his post-hearing brief, Dawkins acknowledged that “[b]ased on
the strength of [his] Petition for Post-Conviction Relief, [the PCRA court]
_______________________
(Footnote Continued)
Commonwealth v. Solano, 129 A.3d 1156, 1180 (Pa. 2015). However,
because their PCRA testimony contradicted their pre-trial statements to
police, “we view [them] with the same ‘jaundiced eye’” as recantation
evidence. Id. (citation omitted). Williams and Perry, on the other hand, did
testify at trial.
5
In any event, we note that later in the hearing, Dawkins’ counsel was
able to inquire about some police interrogation issues without objection.
See N.T., 7/1/15, at 205-06, 213-15.
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granted . . . Dawkins a hearing to test the credibility of the witnesses
presented.” Dawkins’ Post-Hr’g Submission, 7/27/15, at 1-2. As our
Supreme Court has observed, “one of the primary reasons PCRA hearings
are held in the first place is so that credibility determinations can be made;
otherwise, issues of material fact could be decided on pleadings and
affidavits alone.” Commonwealth v. Johnson, 966 A.2d 523, 539 (Pa.
2009).
Next, Dawkins claims that the PCRA court erred in concluding that
Dawkins’ new evidence, taken together, would not have resulted in a
different verdict had it been presented at trial. Largely for the reasons
discussed above, we disagree.
To succeed on an after-discovered-evidence claim under Section
9543(a)(2)(vi), the petitioner must establish that the evidence: (1) was
discovered after trial and could not have been obtained at or before trial
through reasonable diligence; (2) is not cumulative; (3) is not being used
solely to impeach credibility; and (4) would likely compel a different verdict.
D'Amato, 856 A.2d at 824.
As discussed above, the PCRA court considered the testimony of each
of Dawkins’ witnesses and thoroughly explained its reasons for discrediting
their testimony. See 1925(a) Op. at 12-32. The PCRA court “assessed the
demeanor of the witnesses, the substance of their testimony, as well as the
substance of the prior statements and testimony, and found that the
witnesses were not credible and that there was not a reasonable probability
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that, upon hearing this testimony, the jury would have credited it and
rendered a different verdict.” Id. at 12. The PCRA court ultimately
concluded:
Even when considered in totality, the testimony of
Brown, Williams, Perry, and Evans was not credible and
failed to establish that the police engaged in a pattern and
practice of coerciveness in order to get the witnesses to
identify [Dawkins] and his co-defendant. It was this
Court’s responsibility at the PCRA stage to assess the
credibility of the witnesses presented, and to determine
whether the nature and quality of the evidence was such
that there was a reasonable probability that the jury would
have credited it and rendered a more favorable verdict.
With respect to this claim, this Court recognized that all
four witnesses would have been impeached at trial with
the testimony of the officers who took their statements, as
well as with the pervasive inconsistencies in their
testimony. When the statements of these four witnesses
are viewed as a whole, they fail to demonstrate that the
police engaged in a pattern and practice of coercion in
investigating this case.
Id. at 32 (citation omitted). Based on our review of the certified record,
Dawkins’ brief,6 and the applicable law, we conclude that the record supports
the PCRA court’s factual findings and credibility determinations and that the
PCRA court’s conclusions are free of legal error.
Order affirmed.
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6
On June 1, 2016, this Court granted the Commonwealth’s request for
an extension of time to file its brief, setting the new deadline as August 1,
2016. As of the date of this memorandum, the Commonwealth has not filed
a brief. This failure is both surprising and disappointing, given the
significance of the case and the nature of Dawkins’ arguments on appeal.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/15/2016
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