Com. v. Harper, J. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JASON JAMES HARPER, :
:
Appellant : No. 85 WDA 2016
Appeal from the PCRA Order December 1, 2015
in the Court of Common Pleas of Allegheny County,
Criminal Division, No(s): CP-02-CR-0009702-2011
BEFORE: BENDER, P.J.E., OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JULY 27, 2016
Jason James Harper (“Harper”) appeals from the Order dismissing his
Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).
See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On May 31, 2011, Harper had an argument with another person inside
of Pearl’s Café, a bar in the Homestead neighborhood of Allegheny County.
The bartender, James Miller (“Miller”), intervened and ended the
confrontation. As Harper left the bar, he had a brief interaction with Diego
Walker (“Walker”) by the front door. Harper left the bar, but he returned
moments later and shot Walker in the leg, shattering Walker’s femur. After
the police reported to the scene, Harper was identified as a possible suspect.
An officer saw Harper running through the street and followed him to an
apartment building, where police arrested him. Harper was charged with
one count each of aggravated assault, persons not to possess a firearm, and
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carrying a firearm without a license. Following a jury trial, Harper was found
guilty of aggravated assault and carrying a firearm without a license.
Thereafter, the trial court sentenced him to a prison term of ten to twenty
years.
This Court affirmed the judgment of sentence, after which the
Pennsylvania Supreme Court denied Harper’s Petition for Allowance of
Appeal. See Commonwealth v. Harper, 96 A.3d 1096 (Pa. Super. 2014)
(unpublished memorandum), appeal denied, 96 A.3d 1026 (Pa. 2014).
Harper, pro se, filed a timely PCRA Petition. The PCRA court appointed
counsel, who filed an Amended Petition. Following a hearing, at which
Harper’s designated witness, Gary Lamont Butler (“Butler”), did not appear,
the PCRA court dismissed the Petition. Harper filed a timely Notice of
Appeal.
Harper raises the following question for our review:
Did the [PCRA] court err in [dismissing Harper’s] PCRA Petition
since [] Butler submitted newly discovered evidence, in the form
of an 11/11/14 affidavit, stating that he was an eyewitness to
the 5/31/11 shooting of [] Walker, and that [Harper] was not the
shooter[?] If the jury had heard this testimony, it would likely
not have convicted [Harper] of the instant crimes, and therefore
[Harper] should have been granted a new trial[.]
Brief for Appellant at 3 (capitalization omitted).
An appellate court reviews the PCRA court’s findings of fact
to determine whether they are supported by the record, and
reviews its conclusions of law to determine whether they are free
from legal error. The scope of review is limited to the findings of
the PCRA court and the evidence of record, viewed in the light
most favorable to the prevailing party at the trial level.
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Commonwealth v. Freeland, 106 A.3d 768, 775 (Pa. Super. 2014)
(citation and brackets omitted).
Harper claims that the PCRA court erred in dismissing his Petition
where he submitted newly discovered evidence. See Brief for Appellant at
17-20. Harper contends that the evidence provided by Butler’s affidavit
establishes that Harper was not the shooter. See id. at 20. Harper asserts
that this evidence, presented to the jury with all other evidence, would have
led to a finding of innocence. See id. Thus, Harper concludes that a new
trial is required. See id.
In order to present a successful newly discovered evidence claim:
[Harper] must demonstrate that the 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. Padillas, 997 A.2d 356, 363 (Pa. Super. 2010)
(citations omitted). “The test is conjunctive; [Harper] 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. Whether newly discovered
evidence is corroborative or cumulative depends on the strength of other
evidence supporting the conviction. Id. at 364. Further, where the newly
discovered evidence supports a claim that the petitioner previously made
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and litigated at trial, it is probably cumulative or corroborative of the
evidence already presented. Id. at 365.
Here, Butler provided an affidavit explaining that he was at the bar on
the evening of the incident, saw the shooter, the shooter was not Harper,
and that the police never questioned him. See Affidavit, 11/24/14.
However, Miller and another bar employee testified at trial that they did not
know if Harper was the shooter. N.T., 9/25/12, at 71, 95, 104. Further,
Walker testified that, while he could not definitively identify the shooter, he
knew it was not Harper. N.T., 9/25/12, at 127. Thus, Butler’s affidavit was
merely corroborative to evidence presented at trial. See Padillas, 997 A.2d
at 363.
Moreover, Harper has not demonstrated that Butler’s testimony would
have changed the outcome of the trial. Indeed, the PCRA court noted
“overwhelming evidence implicating [Harper], most notably a surveillance
video from inside [the bar] that captured [Harper,] and his conduct inside
the bar.” PCRA Court Opinion, 4/13/16, at 7; see also N.T., 9/27/12, at
323; Commonwealth v. Childs, 63 A.3d 323, 327 (Pa. Super. 2013)
(stating that video surveillance was sufficient to identify appellant as the
perpetrator). Thus, Harper’s claim is without merit. See Padillas, 997 A.2d
at 367-68 (stating that appellant is not entitled to a new trial where a new
jury, presented with all evidence including the new witness testimony, would
not arrive at a different outcome).
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Based upon the foregoing, we conclude that the PCRA court properly
dismissed the Petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/27/2016
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