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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
RAYMOND CHARLES WHITE :
:
Appellant : No. 478 WDA 2019
Appeal from the PCRA Order Entered March 5, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0013548-2000
BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED MAY 08, 2020
Appellant, Raymond Charles White, appeals from the March 5, 2019
order dismissing his petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We remand this case with instructions.
The record reveals that on July 16, 2002, a jury found Appellant guilty
of third-degree murder and criminal conspiracy to commit third-degree
murder.1 On October 23, 2002, Appellant was sentenced to an aggregate 30
to 60 years’ incarceration. Appellant timely appealed, and on August 24,
2004, this Court affirmed Appellant’s judgment of sentence. Commonwealth
v. White, 860 A.2d 1137 (Pa. Super. 2004). Appellant did not seek
discretionary review in our Supreme Court.
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1 18 Pa.C.S.A. §§ 2502(c) and 903(a)(1), respectively.
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On January 18, 2006, Appellant filed pro se his first PCRA petition raising
claims of, inter alia, ineffective assistance of counsel and government
interference. Counsel was appointed to represent Appellant. On July 9, 2007,
Appellant’s counsel filed a Turner-Finley2 no-merit letter and a petition to
withdraw. The PCRA court granted counsel’s petition to withdraw and notified
Appellant of its intent to dismiss the PCRA petition pursuant to
Pa.R.Crim.P. 907. Appellant filed a pro se response. On August 17, 2007, the
PCRA court dismissed Appellant’s PCRA petition. This Court affirmed the
dismissal, and our Supreme Court denied allowance of an appeal.
Commonwealth v. White, 959 A.2d 470 (Pa. Super. 2008), appeal denied,
958 A.2d 1048 (Pa. 2008).
On October 27, 2008, Appellant filed pro se his second PCRA petition
raising claims of, inter alia, ineffective assistance of counsel and government
interference. Counsel was appointed to represent Appellant and subsequently
filed a Turner-Finley no-merit letter. On July 7, 2010, the PCRA court
notified Appellant of its intent to dismiss the PCRA petition pursuant to
Rule 907. Appellant did not file a response. On October 20, 2010, the PCRA
court dismissed Appellant’s petition.
On December 21, 2011, Appellant filed pro se his third PCRA petition
raising a claim of ineffective assistance of PCRA counsel and alleging he never
received notice of the PCRA court’s intent to dismiss his second PCRA petition
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2Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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or the order dismissing the same. On March 22, 2012, the PCRA court notified
Appellant of its intent to dismiss his third PCRA petition pursuant to Rule 907.
Appellant filed pro se a response alleging, inter alia, that PCRA counsel
abandoned him. The PCRA court dismissed Appellant’s third PCRA petition on
April 12, 2012. Appellant filed pro se a notice of appeal on May 2, 2012. This
Court reversed the dismissal of Appellant’s third PCRA petition and remanded
the case with instructions. Commonwealth v. White, 2013 WL 11288929
at *1 (Pa. Super. January 28, 2013) (unpublished memorandum). This Court
found, “the PCRA court failed to consider the ‘no merit’ letter at all, and that
notice of the [PCRA court’s intent to dismiss and subsequent dismissal order
were] given solely to PCRA counsel.” Id. (original brackets omitted). On
remand, PCRA counsel was instructed to provide Appellant a copy of the
no-merit letter. Id. The PCRA court, after an independent review of the
record, was to provide Appellant notice of its intent to dismiss pursuant to
Rule 907 in order to provide Appellant an opportunity to respond. Id.
On February 13, 2013, PCRA counsel filed a petition to reinstate
Appellant’s second PCRA petition nunc pro tunc. On November 19, 2013, the
PCRA court notified Appellant of its intent to dismiss Appellant’s second PCRA
petition pursuant to Rule 907.3 Appellant filed pro se a response on February
24, 2014. On February 25, 2014, the PCRA court dismissed Appellant’s second
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3 The record contains no order specifically reinstating Appellant’s second PCRA
petition nunc pro tunc. It is apparent from the PCRA court’s notice of intent
to dismiss, however, that the PCRA court reinstated the second PCRA petition.
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PCRA petition but did not grant counsel permission to withdraw. Appellant
filed pro se a notice of appeal on March 17, 2014. This Court, finding PCRA
counsel was not granted permission to withdraw, was unable to address the
merits of Appellant’s pro se claims and remanded the case with instructions
to determine counsel’s status. Commonwealth v. White, 2015 WL 7587158
at *3 (Pa. Super. January 7, 2015) (unpublished memorandum).
On January 20, 2015, the PCRA court granted counsel’s petition to
withdraw. Having retained jurisdiction, this Court determined that because
Appellant perfected his underlying pro se appeal, the PCRA court’s subsequent
order, upon remand, granting counsel permission to withdraw was a nullity.
Commonwealth v. White, 2015 WL 7458884 at *1 (Pa. Super. March 5,
2015) (unpublished memorandum). This Court remanded the case and
instructed the PCRA court to conduct a Grazier4 hearing to determine if
Appellant waived assistance of counsel. Id.
After conducting a Grazier hearing, the PCRA court determined that
Appellant knowingly, intelligently, and voluntarily waived his right to counsel,
and granted counsel’s petition to withdraw on March 20, 2015. This Court
subsequently affirmed the PCRA court’s dismissal of Appellant’s second PCRA
petition. Commonwealth v. White, 2015 WL 7194237 at *5 (Pa. Super.
May 12, 2015) (unpublished memorandum).
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4 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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On August 20, 2018, Appellant filed the instant PCRA petition, his fourth,
requesting a new trial based upon after-discovered evidence.5 The PCRA court
conducted an evidentiary hearing on February 7, 2019, and subsequently
dismissed Appellant’s PCRA petition on March 5, 2019. This appeal followed.6
Appellant raises the following issue for our review:
Did the PCRA court err in finding that [Appellant] is not entitled to
a new trial as a result of the after-discovered evidence, namely
the testimony of an eyewitness to the shooting who identified two
alternate suspects and testified that [Appellant] was not present
at the scene at the time of the shooting?
Appellant’s Brief at 4.
Our Supreme Court instructed that the timeliness of a PCRA petition is
jurisdictional. If a PCRA petition is untimely, courts lack jurisdiction over the
petition. Commonwealth v. Wharton, 886 A.2d 1120, 1124 (Pa. 2005);
see also Commonwealth v. Callahan, 101 A.3d 118, 121 (Pa. Super. 2014)
(holding courts do not have jurisdiction over an untimely PCRA petition). In
order to be timely filed, a PCRA petition, including second and subsequent
petitions, must be filed within one year of when an appellant’s judgment of
sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). “A judgment becomes
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5 Appellant is represented by Assistant Federal Public Defender Kirk J.
Henderson, Esq., who was appointed by the United States District Court for
the Western District of Pennsylvania upon Appellant’s filing of a petition for
writ of habeas corpus.
6 On July 15, 2019, the PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)
within 21 days. Appellant timely complied. The PCRA court subsequently filed
its Rule 1925(a) opinion on August 20, 2019.
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final at the conclusion of direct review, including discretionary review in the
Supreme Court of the United States and the Supreme Court of Pennsylvania,
or at the expiration of the time for seeking the review.” 42 Pa.C.S.A.
§ 9545(b)(3). Our Supreme Court held that the PCRA’s time restriction is
constitutionally sound. Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa.
2004).
Here, the trial court sentenced Appellant on October 23, 2002. This
Court affirmed the judgment of sentence on August 24, 2004. Appellant did
not file a petition for allowance of appeal seeking discretionary review in our
Supreme Court. Consequently, Appellant’s judgment of sentence became final
on September 23, 2004, 30 days after the expiration of the time for seeking
discretionary review in our Supreme Court. Pa.R.A.P. 1113 (providing 30 days
after entry of this Court’s order in which to file a petition for allowance of
appeal with our Supreme Court); see also 42 Pa.C.S.A. § 9545(b)(3).
Therefore, Appellant’s PCRA petition filed on August 20, 2018, almost 14 years
after his judgment of sentence became final, is patently untimely.
If a PCRA petition is untimely filed, the jurisdictional time-bar can only
be overcome if the petitioner alleges and proves one of the three statutory
exceptions, as set forth in 42 Pa.C.S.A. § 9545(b)(1). Commonwealth v.
Spotz, 171 A.3d 675, 678 (Pa. 2017). The three narrow statutory exceptions
to the one-year time-bar are as follows: “(1) interference by government
officials in the presentation of the claim; (2) newly discovered facts; and (3)
an after-recognized constitutional right.” Commonwealth v. Brandon, 51
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A.3d 231, 233-234 (Pa. Super. 2012), citing 42 Pa.C.S.A. § 9545(b)(1)(i-iii).
A petition invoking an exception to the jurisdictional time-bar must be filed
within one year of the date that the claim could have been presented. 7 42
Pa.C.S.A. § 9545(b)(2). If appellant fails to invoke a valid exception to the
PCRA time-bar, courts are without jurisdiction to review the petition or provide
relief. Spotz, 171 A.3d at 676.
Here, Appellant asserted the newly discovered facts exception to the
jurisdictional time-bar pursuant to Section 9545(b)(1)(ii). Appellant’s PCRA
Petition, 8/20/18, at ¶18. Our Supreme Court held that when considering a
claim seeking to invoke the newly discovered facts exception, “the petitioner
must establish only that (1) the facts upon which the claim was predicated
were unknown and (2) they could not have been ascertained by the exercise
of due diligence.” Commonwealth v. Cox, 146 A.3d 221 (Pa. 2016) (citation
omitted). In the instant case, the Commonwealth conceded the eyewitness
testimony offered at the PCRA evidentiary hearing satisfied the newly
discovered facts exception to the jurisdictional time-bar.8 N.T., 2/7/19, at 5.
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7 We note that effective December 24, 2018, the time period in which to file
a petition invoking one of the three exceptions was extended from sixty days
to one year. 42 Pa.C.S.A. § 9545(b)(2). This amendment applies to claims
arising one year prior to the effective date of the amendment; arising
December 24, 2017, or later. Act 2018, Oct. 24, P.L. 894, No. 146, § 3.
Because Appellant filed his instant PCRA petition on August 20, 2018, this
amendment applies.
8 We note that counsel for both the Commonwealth and Appellant, as well as
the PCRA court, mistakenly refer to the newly discovered facts exception,
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At the evidentiary hearing, the eyewitness testified that on the day of the
murder, Appellant was not one of the two male shooters she observed at the
scene. Id. at 15. After witnessing the shooting, the eyewitness ran from the
scene and did not talk to the police about what she saw. Id. at 11 and 16.
The PCRA court found, and the record supports, that the eyewitness disclosed
her recall of the shooting to the Federal Public Defender’s Office in April 2018.
PCRA Court Opinion, 8/20/19, at 5; N.T., 2/7/19, at 14. Upon learning of this
newly discovered fact, namely the eyewitness’s statement of events, Appellant
filed his instant PCRA petition on August 20, 2018.
Based upon our review of the record, we concur with the parties that
Appellant proved the newly discovered facts exception to the PCRA jurisdiction
time-bar to the extent that the eyewitness identified the name of a second
male present at the shooting scene, who was not previously known by
Appellant, and identified two males, neither of whom was Appellant, as the
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which serves as an exception to the PCRA jurisdictional time-bar, as the
after-discovered evidence basis that serves as grounds for PCRA relief.
Compare 42 Pa.C.S.A. § 9545(b)(1)(ii), with 42 Pa.C.S.A. § 9543(2)(vi);
see also N.T., 2/7/19, at 5; Appellant’s PCRA Petition, 8/20/18, at ¶15; PCRA
Court Opinion, 8/20/19, at 5. “To reiterate, the newly-discovered facts
exception to the time limitations of the PCRA, as set forth in subsection
9545(b)(1)(ii), is distinct from the after-discovered evidence basis for relief
delineated in 42 Pa.C.S.[A.] § 9543(a)(2).” Commonwealth v. Burton, 158
A.3d 618, 629 (Pa. 2017).
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shooters.9 Having invoked this Court’s jurisdiction, we review the merits of
Appellant’s claim.
Appellant contends the PCRA court erred in finding the after-discovered
evidence did not merit post-conviction relief. Appellant’s Brief at 12-22.
Appellant argues he is entitled to a new trial based upon the eyewitness’s
testimony that he was not one of the two male shooters. Id.
Proper appellate review of a PCRA court’s dismissal of a PCRA petition
is limited to the examination of “whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Miller,
102 A.3d 988, 992 (Pa. Super. 2014) (citation omitted). “The PCRA court’s
findings will not be disturbed unless there is no support for the findings in the
certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super.
2014) (citations omitted). “This Court grants great deference to the findings
of the PCRA court, and we will not disturb those findings merely because the
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9 “The focus of the exception is ‘on [the] newly discovered facts, not on a
newly discovered or newly willing source for previously known facts.’”
Commonwealth v. Robinson, 185 A.3d 1055, 1064 n.4 (Pa. Super. 2018),
quoting Commonwealth v. Marshall, 947 A.2d 714 (Pa. 2008), appeal
denied, 192 A.3d 1105 (Pa. 2018). Here, Appellant, in August 2007, identified
an alleged eyewitness to the shooting. Appellant’s Response to Petition of
Withdrawal of Counsel, 8/3/07, at 3 (identifying the male individual by full
name and alleging this individual was an eyewitness to the shooting). As
discussed in greater detail infra, the eyewitness in the instant PCRA petition
identified the same individual, previously known by Appellant, and a second
individual, who Appellant did not previously identify, as the two male shooters.
Because this eyewitness was able to identify a second male present at the
scene, as well as identify both individuals as the two male shooters, we find
this evidence constitutes newly discovered facts.
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record could support a contrary holding.” Commonwealth v. Hickman, 799
A.2d 136, 140 (Pa. Super. 2002) (citation omitted). In contrast, we review
the PCRA court’s legal conclusions de novo. Commonwealth v. Henkel, 90
A.3d 16, 20 (Pa. Super. 2014) (en banc), appeal denied, 101 A.3d 785
(Pa. 2014).
In order to be granted a new trial based on after-discovered evidence,
the petitioner must satisfy a four-part test requiring
the petitioner to demonstrate the [after-discovered] evidence: (1)
could not have been obtained prior to the conclusion of the trial
by the exercise of reasonable 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. Small, 189 A.3d 961, 972 (Pa. 2018), citing
Commonwealth v. Pagan, 950 A.2d 270 (Pa. 2008), cert. denied, 555 U.S.
1198 (2009). “The test is conjunctive; the [petitioner] 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.” Commonwealth v. Padillas, 997
A.2d 356, 363 (Pa. Super. 2010), appeal denied, 14 A.3d 826 (Pa. 2010). In
addition, the after-discovered evidence must be producible and admissible.
Small, 189 A.3d at 972.
The “salutary goal of the after-discovered evidence rule [is] to limit
continued litigation without being so rigid as to shut out [after-]discovered
evidence from a credible source which may lead to a true and proper
judgment.” Small, 189 A.3d at 975 (citation omitted, emphasis added). As
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is the case with recantation testimony, when the after-discovered evidence is
exculpatory eyewitness testimony, a request for a new trial based on the
exculpatory eyewitness testimony hinges on the credibility of the testimony.
Id. “[T]he inquiry into whether the evidence would likely result in a different
verdict [is] the lodestar of the after-discovered evidence analysis.” Id. at 976
n.12 (stating second and third prongs of test subsumed by fourth prong
regarding likelihood of different outcome), citing Commonwealth v. Perrin,
59 A.3d 663, 669 (Pa. Super. 2013) (Wecht, J., concurring), vacated, 103
A.3d 1224 (Pa. 2014). In short, only credible testimony satisfies the fourth
prong of the after-discovered evidence test.
In determining whether the after-discovered evidence is of such nature
and character that it would compel a different verdict if a new trial were
granted, “a court should consider the integrity of the alleged after-discovered
evidence, the motive of those offering the evidence, and the overall strength
of the evidence supporting the conviction.” Padillas, 997 A.2d at 365
(citations omitted). It is axiomatic that if the after-discovered evidence is
incredible, the after-discovered evidence would not compel a different
outcome, and as a result, the PCRA court must deny the request for a new
trial regardless of whether a petitioner has satisfied the first three prongs of
the test. Small, 189 A.3d at 977. The precedent set by our Supreme Court
in Small requires the PCRA court, as the fact-finder at the evidentiary hearing,
to make definitive findings of fact, which are supported by the record, and
conclusions of law with regard to the credibility of the after-discovered
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evidence. Id. at 978. The PCRA court is in the superior position to make the
credibility determination and assess whether the credible after-discovered
evidence is of such importance that it will change the outcome of the case.
Id.
Here, as to the first prong of the four-part test, we agree that due to
the eyewitness fleeing the scene of the murder, her undetected presence at
the time of the shooting, and her unwillingness to talk with the police or
investigators prior to April 2018, Appellant, with reasonable diligence, could
not have known about or obtained the eyewitness’s testimony pertaining to
the name of the second male present at the scene or the fact that two males,
neither of whom was Appellant, were identified as the two shooters prior to
the conclusion of the trial. PCRA Court Opinion, 8/20/19, at 7. Therefore,
Appellant proved the first prong of the after-discovered evidence test.
With regard to the remaining three prongs, Appellant argues the
eyewitness identified by name the two shooters, neither of whom, according
to the eyewitness, was Appellant. Appellant’s Brief at 20. Appellant contends
the Commonwealth’s case consisted primarily of Appellant’s confession to the
police memorialized solely by a written statement, which Appellant argued at
trial was a fabrication, and the testimony of two eyewitnesses who were
intoxicated at the time of the shooting and were unable to identify Appellant
as the shooter. Id. at 19-20; see also Appellant’s Reply Brief at 1. Appellant
claims he never confessed to the police and that his alleged statement,
handwritten by the police detective, was falsified because information he
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allegedly provided during the confession that was memorialized in the written
statement was later proven false.10 Appellant’s Brief at 19-21. Appellant
contends that the eyewitness testimony “corroborates [Appellant’s] alibi
evidence, contradicts the Commonwealth’s theory of the case[], and most
importantly, identifies the shooters, neither of whom [was Appellant].” Id.
In order to satisfy the second and third prongs of the after-discovered
evidence test, the use of the after-discovered evidence, at trial, must be more
than “merely corroborative or cumulative 11” and for purposes other than
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10 Appellant contends that one of the falsifications in the written statement
was that he allegedly stated he dismantled the gun he used to shoot the victim
and scattered the gun parts in various locations. Appellant’s Brief at 19.
Appellant claims that while he was incarcerated, the police, in fact, found the
gun intact. Id. In support of his argument, Appellant cites to portions of the
notes of testimony that are missing from the certified record. Id.; see also
Commonwealth’s Brief at 15 n.7 (stating, “it appears[] at least some portion
of the transcript is missing” from the certified record). Specifically, the notes
of testimony from the afternoon session of trial on July 19, 2002, are not
included in the certified record.
11 Regarding the second prong, the Small Court reaffirmed,
after-discovered evidence is merely corroborative or cumulative
— and thus not sufficient to support the grant of a new trial — if
it is of the same character and to the same material point as
evidence already adduced at trial. It is clear the terms “of the
same character” and “to the same point” refer to distinct qualities
of evidence; to be “merely corroborative or cumulative,”
[after-]discovered evidence must tend to prove material facts that
were already in evidence at trial, and also be of the same grade
or character of evidence as that produced at the trial to prove
those material facts. If the [after-discovered] evidence is of a
different and “higher” grade or character, though upon the same
point, or of the same grade or character on a different point, it is
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“solely to impeach the credibility of a witness.” Small, 189 A.3d at 972. In
finding that Appellant did not prove the second prong, the PCRA court stated,
[Appellant] presented three witnesses at trial who testified that
he was not present [at the time of the shooting] on August 10,
2000. [The eyewitness] testified [at the PCRA evidentiary
hearing] that she did not see [Appellant] present on August 10,
2000, nor did she []identify [Appellant] as being one of the men
shooting. Thus, [the eyewitness’s] testimony is corroborative with
the testimony of the three witnesses presented at trial and is[,]
therefore[,] cumulative.
PCRA Court Opinion, 8/20/19, at 7 (record citation omitted). Although the
eyewitness corroborates the alibi witness testimony that Appellant was not
present at the time of the shooting, the eyewitness further provides definitely
the identities of the two male shooters, which the other witnesses did not
provide. The after-discovered eyewitness testimony, therefore, is more than
“merely corroborative or cumulative.” Consequently, we find, and the record
supports, that Appellant proved the second prong of the after-discovered
evidence test.
With regard to the third prong, the PCRA court concluded the eyewitness
testimony would, inter alia, impeach the City of Pittsburgh police detective,
who testified regarding Appellant’s confession. Id. at 7-8. Because the
eyewitness testimony does not pertain to the challenges Appellant raised at
trial regarding the veracity of the police detective’s testimony, namely the
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not “merely” corroborative or cumulative, and may support the
grant of a new trial based on after-discovered evidence.
Small, 189 A.3d at 973-974 (citation omitted).
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circumstances under which the confession was obtained and the validity of the
confession, the use of the eyewitness testimony would not impeach the
credibility of the police detective. Rather, the eyewitness testimony would be
used to identify the two male shooters, neither of whom was Appellant, and
no other evidence offered at the trial named these two same individuals as
the shooters.12 Consequently, we find, and the record supports, that Appellant
proved the third prong of the after-discovered evidence test.
The PCRA court, in finding that Appellant did not satisfy the fourth prong
of the test, stated,
[The eyewitness] testified that she witnessed [two males, neither
of whom was Appellant, and] both of whom are now deceased, kill
the victim. However, [the eyewitness] did not know the last
names of the men she testified she saw until January/February of
[2018] after she spoke to [a friend], who learned the identification
of the men from her niece, [Appellant’s] wife. Additionally,
although [the eyewitness] was willing to speak to the Federal
Public Defender's Office, she refused to speak to the City of
Pittsburgh Police Department[,] who attempted to review the
case. Given the connection to [Appellant’s] wife, the fact [the
eyewitness] did not know the positive identification of the now
deceased men until she spoke to [her friend], and [the]
unwillingness to cooperate with the police calls into question
both the integrity and motive for presenting this testimony.
As previously stated, [Appellant] presented three witnesses at
trial who testified he was not present at the crime scene. With
the testimony of these witnesses, the jury returned a guilty verdict
of [t]hird-[d]egree murder. An additional witness, who would
present cumulative information with that already presented to the
jury, would not compel a verdict different than that reached at
trial.
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12 The eyewitness testimony, at most, indirectly impeached Appellant’s
confession that he was one of the shooters.
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For the aforementioned reasons, the after-discovered testimony
of [the eyewitness] does not satisfy the nature and character that
would compel a []different outcome.
PCRA Court Opinion, 8/20/19, 8-9 (emphasis added).
Appellant contends the PCRA court did not find the eyewitness testimony
“entirely incredible.” Appellant’s Reply Brief at 1. Appellant argues the
eyewitness “testimony, even with facts that have the potential to undermine
her credibility, combined with what was presented at trial, likely would have
resulted in a different verdict.” Id. Appellant submits, “[t]he mere fact that
[the eyewitness] did not know the last names of [the two] individuals [that]
she did not know personally but recognized from ‘seeing them around’ the
neighborhood does not detract from the credibility of her identification.” Id.
at 2.
The PCRA court opined that the circumstances surrounding the
eyewitness, namely that the eyewitness was not able to provide the last
names of the two shooters until her friend obtained the information from
Appellant’s wife and that the eyewitness did not speak with the City of
Pittsburgh Police Department, “calls into question” the integrity and the
motive for providing the testimony. PCRA Court Opinion, 8/20/19, at 8. The
PCRA court, however, did not make specific, independent findings of fact and
conclusions of law and did not make a definitive determination as to the
credibility of the eyewitness. We might infer from the PCRA court’s remark
that the circumstances “called into question” the eyewitness’s integrity and
motivation, coupled with the subsequent denial of Appellant’s request for a
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new trial, that the PCRA court found the eyewitness incredible. We are
reluctant to do so, however, given that the PCRA court failed to state,
expressly and conclusively, whether it found the eyewitness credible or
incredible. Our task on appeal is to assess whether the record supports the
PCRA court’s factual findings and credibility determinations; this Court cannot
assume, for purposes of its review, that the PCRA court found the eyewitness
incredible.
Accordingly, we are constrained to remand the case to the PCRA court
for the limited purpose of determining definitively whether it found the
eyewitness to be credible and, if so, whether her testimony would likely
produce a different verdict in this case if a new trial were granted. Within 60
days of the reopening of the Allegheny County Court of Common Pleas
pursuant to our Supreme Court’s April 1, 2020 order13 declaring a general
statewide judicial emergency due to COVID-19 or within 60 days of the filing
of this memorandum, whichever the latter, the PCRA court shall file a
supplemental Rule 1925(a) opinion stating definitively whether the eyewitness
was credible or incredible and what impact that testimony, if credible, would
have on the outcome of this case. Within that 60-day period, the PCRA court
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13 In its second supplemental order, our Supreme Court declared the
Pennsylvania courts closed to the public until April 30, 2020, and authorized
individual judicial districts to remain closed until May 31, 2020, if deemed
necessary. Supreme Court of Pennsylvania Second Supplemental Order,
4/1/20.
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shall also make the notes of testimony from the July 19, 2002 afternoon
session of trial part of the certified record.
Case remanded. Jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/08/2020
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