Com. v. Thomas, M.

J-S20035-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARQUIS THOMAS :
:
Appellant : No. 2555 EDA 2022

Appeal from the PCRA Order Entered September 28, 2022
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0001721-2011

BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED OCTOBER 20, 2023

Appellant, Marquis Thomas, appeals from the order of the Court of

Common Pleas of Delaware County that dismissed his second petition filed

under the Post Conviction Relief Act (PCRA)1 without a hearing. For the

reasons set forth below, we vacate the dismissal of Appellant’s PCRA petition

and remand the case to the PCRA court for an evidentiary hearing.

Appellant was convicted on February 29, 2012, of robbery and

conspiracy for participating with another individual, Corey Johnson, in a May

18, 2010 robbery of Keith Edmonds (Victim) in Victim’s home.

Commonwealth v. Thomas (Thomas I), No. 2680 EDA 2012, slip op. at 1-

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541–9546.
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2, 7-8 (Pa. Super. July 15, 2013) (unpublished memorandum); N.T. Trial,

2/29/12, at 125-30. Victim died of a cause unrelated to the robbery before

trial and the only evidence introduced at trial that implicated Appellant in the

robbery was the testimony of two other residents of the house, Keisha

Anderson and Craig Graham. Id., No. 2680 EDA 2012, slip op. at 7-8 & n.2.

Graham testified that at about 10:00 p.m. on May 18, 2010, he was in

the kitchen of the house, that the door opened, that he later heard a loud

smack sound and Anderson ran into the kitchen, and that he went toward the

living room, but Appellant, who is Johnson’s cousin, stopped him. N.T. Trial,

2/28/12, at 154-66, 188-89, 196, 224. Graham testified that Appellant had

his hand in his pocket, that he did not see a gun on Appellant, but that there

was a bulge in Appellant’s pocket that looked like the shape of a gun, and that

Appellant told Graham to “chill” and that Graham had “nothing to do with it.”

Id. at 165-69, 170, 190-91, 202, 219-20, 224. Graham testified that after

Anderson ran into the kitchen, he saw Johnson hitting Victim in the head with

a gun, heard Johnson demand that Victim tell him where the money was, and

saw Victim give Johnson money. Id. at 170-77, 191-92, 194-95, 198-99,

228-29. He testified that after Victim gave Johnson money, Appellant went

to the room where Johnson was, and Johnson and Appellant left the house

together. Id. at 199-200.

At trial, Anderson testified that Johnson and Appellant came to the

house together three times on May 18, 2010 and that when they came to the

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house the third time, Appellant stood near Anderson and said to her, “don't

worry, baby girl, it’s going to be all right” and “I got a son for you.” N.T. Trial,

2/28/12, at 248, 250-58. She testified that she then turned and saw Johnson

pointing a gun at Victim’s head and that she heard Johnson asking Victim,

“where it’s at,” and saying to Victim, “give it up and that it’s over for you.”

Id. at 258-60. Anderson testified that when Victim said that he had nothing,

Johnson repeatedly hit Victim in the head with the gun. Id. at 260, 264-65.

Anderson testified that she ran into the kitchen, that Appellant followed her to

the kitchen, that he stood at the entrance of the kitchen with his right hand

in his pocket and said that she and Graham were not leaving the kitchen, and

that Appellant also asked her, “where the stuff at,” and said, “I know you

know where it’s at you the girlfriend.” Id. at 265-67, 273-74, 290-92.

Anderson testified that while she and Graham were in the kitchen, she later

saw Victim give Johnson money from his pocket and saw Johnson hit Victim

one more time with the gun, that Appellant then went to Johnson and went

through Victim’s wallet, and that Appellant and Johnson left together. Id. at

268-69, 290-91. She testified that after Appellant and Johnson left, she called

an ambulance to take Victim to the hospital. Id. at 270.

On July 17, 2012, Appellant was sentenced as a repeat offender under

42 Pa.C.S. § 9714 to 25 to 50 years’ incarceration, followed by a 15-year term

of probation. Sentencing Order. Appellant filed a timely direct appeal and

this Court affirmed Appellant’s judgment of sentence on July 15, 2013.

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Thomas I, No. 2680 EDA 2012, slip op. at 1, 13. Appellant did not file a

petition for allowance of appeal to the Pennsylvania Supreme Court.

On May 26, 2016, Appellant filed a counseled first PCRA petition

asserting claims of ineffectiveness of trial counsel with respect to a jury

instruction, testimony concerning the fact that Victim was deceased, and

advice concerning a plea offer. 2016 PCRA Petition at 2-4. On August 17,

2016, the PCRA court dismissed that PCRA petition without a hearing. PCRA

Court Order, 8/17/16. This Court affirmed the dismissal of Appellant’s first

PCRA petition on August 17, 2017, on the ground that it was untimely,

Commonwealth v. Thomas (Thomas II), No. 2958 EDA 2016, slip op. at

1, 4-8 (Pa. Super. August 17, 2017) (unpublished memorandum), and

Appellant did not seek further review.

On September 7, 2021, Appellant filed the instant second PCRA petition.

In this PCRA petition, Appellant sought relief based on a handwritten May 5,

2021 statement signed by Anderson recanting her trial testimony. 2021 PCRA

Petition at 2-10 & Appendix A thereto. In this statement, Anderson asserts

that she testified falsely at Appellant’s trial because she was threatened by

the police and the prosecutor told her that she would get full custody of her

daughter if she cooperated. Id. Appendix at 1, 3. In the document, Anderson

further states, contrary to her trial testimony, that Appellant did not come to

the house with Johnson and arrived after Johnson was already with Victim,

that she saw Appellant’s eyes “get big” when Johnson pointed a gun at Victim,

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that Appellant only tried to calm her and Graham down and did not ask her

anything, that Appellant’s hands were not in his pockets, that Appellant never

went over to where Johnson and Victim were, and that Appellant did not go

through Victim’s wallet. Id. Appendix at 1-2.

On July 12, 2022, the PCRA court issued a notice pursuant to

Pa.R.Crim.P. 907 of its intent to dismiss this PCRA petition without a hearing

on the grounds that the PCRA petition was time-barred and that it was without

merit because Anderson’s statement did not satisfy the requirements for relief

based on after-discovered evidence. Rule 907 Notice, 7/12/22, at 2-4.

Appellant filed a response to the Rule 907 notice in which he argued that the

PCRA petition was timely under Section 9545(b)(1)(ii) of the PCRA, 42 Pa.C.S.

§ 9545(b)(1)(ii), because Anderson’s recantation was newly discovered

evidence that was not available before 2021 and that the PCRA court could

not reject his claim on the merits without an evidentiary hearing. On

September 28, 2022, the PCRA court dismissed the PCRA petition without a

hearing. PCRA Court Order, 9/28/22. This timely appeal followed.

The issues before the Court in this appeal are whether the PCRA court

erred in dismissing Appellant’s PCRA petition on the grounds that it was

untimely and did not assert a meritorious claim for PCRA relief without holding

an evidentiary hearing. A PCRA petitioner does not have an absolute right to

a hearing on his claims for relief. Commonwealth v. Grayson, 212 A.3d

1047, 1054 (Pa. Super. 2019); Commonwealth v. Wah, 42 A.3d 335, 338

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(Pa. Super. 2012). A PCRA court may properly dismiss a PCRA claim without

a hearing if there is no genuine dispute with respect to the facts on which the

claim is based and those facts preclude relief or if it is clear from the record

that the claim is patently without merit. Pa.R.Crim.P. 907; Commonwealth

v. D. Williams, 244 A.3d 1281, 1287 (Pa. Super. 2021); Wah, 42 A.3d at

338. The PCRA court, however, must hold a hearing where the defendant’s

PCRA claim cannot be rejected without resolving disputed issues of material

fact that have not been addressed at a prior evidentiary hearing in the case.

Pa.R.Crim.P. 908(A)(2); Commonwealth v. Santiago, 855 A.2d 682, 691

(Pa. 2004); Grayson, 212 A.3d at 1054-55. It is this Court’s responsibility on

appeal to determine whether the PCRA court erred in concluding that there

were no genuine issues of material fact and in denying relief without

conducting an evidentiary hearing. D. Williams, 244 A.3d at 1287; Grayson,

212 A.3d at 1054; Wah, 42 A.3d at 338.

The dismissal without a hearing on untimeliness grounds cannot be

sustained because Appellant’s PCRA petition set forth a sufficient basis to

conclude that it was filed within the PCRA’s time limits. The PCRA provides

that

[a]ny 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

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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.

42 Pa.C.S. § 9545(b)(1). These three exceptions can apply only if Appellant

filed the PCRA petition “within one year of the date the claim could have been

presented.” 42 Pa.C.S. § 9545(b)(2). The PCRA’s time limit is jurisdictional,

and a court may not ignore it and reach the merits of an untimely claim for

PCRA relief. Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999);

Commonwealth v. Diggs, 220 A.3d 1112, 1117 (Pa. Super. 2019);

Commonwealth v. Pew, 189 A.3d 486, 488 (Pa. Super. 2018).

Appellant’s judgment of sentence became final on August 14, 2013,

upon the expiration of the 30-day period to file a petition for allowance of

appeal following this Court’s affirmance of Appellant’s judgment of sentence.

42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 1113(a). The instant PCRA petition,

filed more than eight years later, is facially untimely and would therefore be

time-barred unless Appellant satisfies one of the three exceptions set forth in

Section 9545(b)(1)(i)-(iii).

Appellant’s PCRA petition, however, pleads sufficient facts to satisfy

Section 9545(b)(1)(ii)’s exception for newly discovered facts. The claim for

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relief that the petition asserts is based on a newly discovered fact, a statement

by Anderson recanting her trial testimony. 2021 PCRA Petition at 2-10 &

Appendix A. That statement was given on May 5, 2021, less than one year

before Appellant filed the PCRA petition. Id. Appendix A. Absent evidence

that the Anderson had previously admitted that her trial testimony was not

truthful or that Appellant had reason to know prior to September 7, 2020, one

year before he filed the PCRA petition, that she would admit to testifying

falsely, the May 5, 2021 recantation is sufficient to satisfy the PCRA’s

timeliness exception for newly discovered facts. Diggs, 220 A.3d at 1116,

1118 (Section 9545(b)(1)(ii) newly discovered fact exception applied to PCRA

claim that witness recanted testimony where witness signed affidavit

recanting testimony one month before defendant filed PCRA petition asserting

a claim based on that recantation); Commonwealth v. Medina, 92 A.3d

1210, 1214, 1216-18 (Pa. Super. 2014) (en banc), appeal dismissed as

improvidently granted, 140 A.3d 675 (Pa. 2016) (PCRA claim that witness

recanted testimony was timely under Section 9545(b)(1)(ii) where witness,

less than 60 days before defendant filed PCRA petition, revealed to defendant

that he lied at trial); Commonwealth v. Parks, 2031 EDA 2021, slip op. at

3, 7-12 (Pa. Super. May 16, 2023) (unpublished memorandum) (reversing

dismissal without a hearing of PCRA petition that was based on recantation

shortly before the PCRA petition was filed). There is nothing in the record

from which it can be concluded that Anderson recanted her trial testimony

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more than a year before Appellant filed the PCRA petition on September 7,

2021, that Anderson ever indicated to anyone before September 7, 2020 that

she had testified falsely at trial, or that Appellant could have learned such

information before that date.

Notwithstanding these facts, the Commonwealth argues that Appellant

did not satisfy the timeliness exception for newly discovered facts because he

did not show that he could not have learned of the new evidence earlier if he

had acted with diligence. The PCRA court did not address the issue of due

diligence, but held that Section 9545(b)(1)(ii) did not apply because it

concluded that Anderson’s statement did not satisfy the requirements for

granting relief based on after-discovered evidence. PCRA Court Opinion,

1/20/23, at 6-10 & n.2. Neither the Commonwealth’s argument nor the PCRA

court’s reasoning is a legally valid basis for dismissing Appellant’s PCRA

petition as untimely without a hearing.

To satisfy Section 9545(b)(1)(ii)’s timeliness exception, the defendant

must show that the new facts on which his PCRA petition is based could not

have been discovered earlier if he had exercised due diligence. 42 Pa.C.S. §

9545(b)(1)(ii); D. Williams, 244 A.3d at 1288; Diggs, 220 A.3d at 1117;

Commonwealth v. Sanchez, 204 A.3d 524, 526 (Pa. Super. 2019). The

mere assertion that the defendant only recently learned of documents, facts

or witnesses that were in existence and capable of being discovered long

before the PCRA petition was filed is therefore not sufficient to make a PCRA

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petition timely where there is no explanation why the defendant could not

have learned that information earlier. Sanchez, 204 A.3d at 526-27; Pew,

189 A.3d at 489-90; Commonwealth v. Priovolos, 746 A.2d 621, 625-26

(Pa. Super. 2000). Here, however, the new facts are a change in a witness’s

testimony that occurred sometime after Appellant’s trial, not a pre-existing

document or the identity of witness that could have been discovered by

exercising diligence. It cannot be concluded such a change in testimony could

have been discovered earlier through the exercise of due diligence where there

is no evidence that the witness gave any indication at any earlier date that

the prior testimony was false or that the defendant had any prior reason to

believe that the witness would admit to having lied at trial. Medina, 92 A.3d

at 1216-18; see also Commonwealth v. Davis, 86 A.3d 883, 890-91 (Pa.

Super. 2014) (due diligence does not require that the defendant to assume

that the Commonwealth has caused a witness to commit perjury).

The only factual basis that the Commonwealth asserts for its claim that

Appellant failed to exercise due diligence is that Appellant knew at trial that

Anderson had attended the preliminary hearing testimony of the other

witness, Graham, and contended that this was a violation of a sequestration

order. Appellee’s Brief at 11-12; N.T. Trial, 2/28/12, at 87-106. That,

however, shows only that Appellant had reason to know that Anderson’s

recollection could have been improperly influenced by Graham’s testimony,

not that she testified falsely that Appellant did things that she knew that he

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did not do or that she would admit that her testimony was false. Appellant’s

knowledge of a violation of the sequestration order would therefore only affect

the timeliness of one part of Appellant’s PCRA petition, the claim that he is

entitled to relief based on prosecutorial misconduct in directing Anderson to

violate a sequestration order, 2021 PCRA Petition ¶14, and has no effect on

the timeliness of Appellant’s claims based on Anderson’s statement concerning

what happened at the time of the robbery. It therefore cannot support the

PCRA court’s dismissal of the entire PCRA petition as untimely without a

hearing.

The PCRA court’s reason for holding that Appellant did not satisfy

Section 9545(b)(1)(ii)’s timeliness exception is simply erroneous. The law is

clear that Section 9545(b)(1)(ii) does not require that a PCRA petitioner allege

and prove a valid after-discovered evidence claim. Commonwealth v.

Burton, 158 A.3d 618, 628-29 (Pa. 2017); Commonwealth v. Bennett, 930

A.2d 1264, 1271-72 (Pa. 2007); Commonwealth v. R. Williams, 215 A.3d

1019, 1024 n.3 (Pa. Super. 2019). Rather, whether the elements of an after-

discovered evidence claim are satisfied goes to the merits, whether the

defendant is entitled to PCRA relief, and not to the timeliness of a PCRA

petition. Burton, 158 A.3d at 628-29; R. Williams, 215 A.3d at 1024 n.3.

Because there is no basis in the record to find that it is undisputed that

Appellant could have learned of Anderson’s change in testimony more than a

year before he filed the PCRA petition, the PCRA court’s summary dismissal of

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the PCRA petition as untimely was improper. A hearing must therefore be

held on the issues of whether Appellant could have learned of Anderson’s

recantation before September 7, 2020 and Appellant’s due diligence in seeking

that information before the PCRA petition can be dismissed on untimeliness

grounds. D. Williams, 244 A.3d at 1288-89; Parks, 2031 EDA 2021, slip op.

at 7-12.

The PCRA court alternatively held even if the PCRA petition was timely,

dismissal was proper on the ground that Appellant’s claim for relief lacked

merit. PCRA Court Opinion, 1/20/23, at 11-14. This likewise is not a sufficient

basis on which the dismissal without a hearing can be sustained.

To prevail on an after-discovered evidence claim the defendant must

prove that (1) the new evidence could not have been obtained prior to the

end of his trial through reasonable diligence; (2) the new evidence is not

merely corroborative or cumulative of evidence that was admitted at trial; (3)

the new evidence is not being used solely to impeach credibility; and (4) the

new evidence would likely result in a different verdict. Commonwealth v.

Small, 189 A.3d 961, 972 (Pa. 2018); Commonwealth v. Crumbley, 270

A.3d 1171, 1178 (Pa. Super. 2022); R. Williams, 215 A.3d at 1024. All four

of these requirements must be proved; if the defendant fails to establish any

one of these, the after-discovered evidence claim fails. Small, 189 A.3d at

972; Crumbley, 270 A.3d at 1178. The PCRA court held that Anderson’s

statement did not satisfy the fourth requirement that it would have likely

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resulted in a different verdict, because it was not credible, because it did not

exculpate Appellant, and because Graham’s testimony was sufficient to prove

Appellant’s guilt. PCRA Court Opinion, 1/20/23, at 6-14. We do not agree

that these determinations can be made without a hearing at which the PCRA

can evaluate the credibility of Anderson’s recantation and the new testimony

that she claims that she would give.

Recantation evidence is generally an exceedingly unreliable type of

evidence, particularly when, as here, it constitutes an admission of perjury.

Commonwealth v. D'Amato, 856 A.2d 806, 825 (Pa. 2004);

Commonwealth v. McCracken, 659 A.2d 541, 545 (Pa. 1995);

Commonwealth v. Loner, 836 A.2d 125, 135 (Pa. Super. 2003) (en banc).

That fact, however, does not make all such recantations ipso facto incredible.

Commonwealth v. R.L. Williams, 732 A.2d 1167, 1180 (Pa. 1999);

McCracken, 659 A.2d at 545-52 (upholding grant of new trial based on

witness recantation where trial court heard recanting witness’s testimony and

found recantation credible); Medina, 92 A.3d at 1218-21 (affirming grant of

new trial based on witness recantation where PCRA court heard recanting

witness’s testimony and found recantation credible). A PCRA court therefore

cannot automatically reject a recantation as incredible and must assess its

credibility based on factors beyond the mere fact that it contradicts the

witness’s prior testimony before it can deny relief on the ground that the claim

based on the recantation lacks merit. D'Amato, 856 A.2d at 825-26; R.L.

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Williams, 732 A.2d at 1180-81. Loner, relied on by the PCRA court and the

Commonwealth, is not to the contrary. In Loner, the PCRA court rejected the

victim’s recantation of her trial testimony after observing her testimony

concerning the recantation at a PCRA hearing. 836 A.2d at 139-41.

Here, the PCRA court did not point to anything in the content of

Anderson’s May 5, 2021 statement that is facially impossible or that is

incredible for any reason other than the fact that it differs from her trial

testimony. Rather, the sole basis that the PCRA court articulated for finding

Anderson’s statement incredible was that it was a recantation and involved an

admission of perjury. PCRA Court Opinion, 1/20/23, at 7-8, 12-13.

Moreover, the PCRA court not only did not have the benefit of observing

Anderson and judging the credibility of her recantation at a PCRA hearing, it

had no opportunity to observe her trial testimony, as the PCRA judge did not

preside over Appellant’s trial. Under these circumstances, it was error for the

PCRA court to conclude that Anderson’s recantation was not credible without

holding a hearing. Parks, 2031 EDA 2021, slip op. at 10-12;

Commonwealth v. Smith, 436 EDA 2020, slip op. at 12-15 (Pa. Super. July

30, 2021) (unpublished memorandum).

Absent an evaluation of Anderson’s credibility after hearing her

testimony, no determination can be made that her new testimony would not

be likely to result in a different verdict. While Anderson’s statement would

not change the evidence that Appellant was present at the time of the robbery,

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it would negate much of the evidence that Appellant was acting in conspiracy

with Johnson when Johnson robbed Victim. Anderson’s testimony at trial was

not merely that Appellant was at the house at the time, but that he arrived

with Johnson, that Appellant asked her while the robbery was going on for

information about what Johnson was seeking, that Appellant went through

Victim’s wallet, and that Appellant left the house with Johnson. N.T. Trial,

2/28/12, at 248, 250-55, 265-66, 269, 273, 290-91. Anderson’s statement

affirmatively denies that Appellant came into the house with Johnson and

asserts that Appellant looked surprised when Johnson pulled the gun on

Victim, denies that Appellant asked her or Graham for anything, denies that

Appellant went through Victim’s wallet, and states that she did not see

whether Appellant left the house with Johnson. 2021 PCRA Petition Appendix

A at 1-3.

Graham also testified at trial concerning Appellant’s actions. The PCRA

court, however, could not evaluate Graham’s demeanor because, as noted

above, it did not preside over Appellant’s trial, and the cold record that it

evaluated does not support the conclusion that Anderson’s recantation and

new testimony, if credible, would have no effect on the outcome of Appellant’s

trial. Graham’s testimony on whether Appellant arrived with Johnson appears

from the trial transcript to have been equivocal, asserting both that he saw

Appellant and Johnson enter together and also that he merely heard the door

open while he was in the kitchen. N.T. Trial, 2/28/12, at 157-64, 185-88,

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221-23. Graham’s testimony concerning what Appellant said, id. at 165-66,

170, 190-91, 224-25, was less incriminating than Anderson’s trial testimony.

Moreover, his testimony that Appellant arrived with Johnson and his assertion

on cross-examination, contrary to his testimony on direct examination, that

Appellant asked Anderson “where is it at,” id. at 170, 240, are both directly

contradicted by Anderson’s statement. 2021 PCRA Petition Appendix A at 1-

2. In addition, Graham’s incriminating testimony that Appellant had his hand

in his pocket where there was a bulge that looked like a gun, N.T. Trial,

2/28/12, at 165-69, 191, 202, 219, is contradicted by Anderson’s statement

in her recantation that Appellant did not have either of his hands in a pocket.

2021 PCRA Petition Appendix A at 2. Notably, this Court concluded in

upholding the sufficiency of the evidence on direct appeal that “the

coalescence of” both Graham’s and Anderson’s testimony established

Appellant’s guilt. Thomas I, No. 2680 EDA 2012, slip op. at 8. Although the

PCRA court may well conclude that Anderson’s recantation is not credible or

that it would not likely result in a different verdict after it has heard her

testimony and observed her demeanor at an evidentiary hearing, it cannot

make those determinations solely on a cold record without the benefit of a

hearing. Smith, 436 EDA 2020, slip op. at 12-15.

For the foregoing reasons, the PCRA court erred in concluding that there

were no genuine issues of material fact and in determining that the PCRA

petition was untimely and lacked merit without conducting an evidentiary

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hearing. We therefore vacate the PCRA court’s order and remand this case

with instructions that the PCRA court hold a hearing on the timeliness and

merits of Appellant’s claim for PCRA relief based on witness Anderson’s

recantation of her trial testimony.

Order vacated. Case remanded for further proceedings. Jurisdiction

relinquished.

Judge Kunselman joins the memorandum.

Judge Dubow files a Dissenting Statement.

Date: 10/20/2023

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