Com. v. Mccullough, K. ( 2020 )

J-S34017-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KALVIN M. MCCULLOUGH :
:
Appellant : No. 1630 MDA 2019
Appeal from the PCRA Order Entered September 12, 2019
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0004052-2003
BEFORE: PANELLA, P.J., BENDER, P.J.E., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 02, 2020
Appellant, Kalvin M. McCullough, appeals from the post-conviction
court’s September 12, 2019 order denying, as untimely, his seventh petition
filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.
Additionally, Appellant’s counsel, Dennis C. Dougherty, Esq., seeks to
withdraw his representation of Appellant pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1988) (en banc). After careful review, we affirm the order
denying Appellant’s PCRA petition and grant counsel’s petition to withdraw.
The PCRA court provided a detailed summary of the facts and procedural
history of Appellant’s case, which we need not reproduce herein. See PCRA
Court Opinion (PCO), 12/26/19, at 1-7. We only point out that in 2004, a jury
convicted Appellant of four counts each of attempted homicide and aggravated
assault, and one count of conspiracy, based on evidence that he shot at four
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college students, striking and paralyzing one of them. He was sentenced on
October 15, 2004, to an aggregate term of 38 to 76 years’ incarceration.
Appellant’s judgment of sentence was affirmed by this Court on February 9,
2007, and our Supreme Court denied his petition for allowance of appeal on
July 6, 2007. See Commonwealth v. McCullough, 924 A.2d 695 (Pa.
Super. 2007) (unpublished memorandum), appeal denied, 927 A.2d 623 (Pa.
2007).
Over the ensuing years, Appellant filed six unsuccessful PCRA petitions.
On May 29, 2018, he filed the pro se petition underlying the present appeal,
claiming that he has discovered new evidence in the form of a confession by
a man named Lamar Clark. Attached to Appellant’s petition was an affidavit
from Clark — dated April 30, 2018 — in which Clark claims he was the person
who shot at the victims in this case. The PCRA court appointed Appellant
counsel, who filed an amended petition on his behalf. On February 15, 2019,
the court conducted an evidentiary hearing, at which Appellant, Clark, and
multiple other witnesses testified. On September 12, 2019, the court issued
an order and opinion denying Appellant’s petition as being untimely filed.
Alternatively, the court concluded that Clark’s confession was incredible and
did not warrant a new trial. See PCRA Court Opinion, 9/12/19, at 8-9.
Appellant filed a timely notice of appeal, and he also timely complied
with the PCRA court’s order to file a Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal. Therein, he preserved the following two
issues for our review:
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1. The PCRA [c]ourt erred in … finding that the controlling date for
[Appellant] to file a [PCRA p]etition under the newly[-]discovered
evidence exception to the time[-]bar was within a year of April 22,
2017. The controlling date for the newly[-]discovered evidence
exception should have had a start date of April 30, 2018, thus
making any PCRA due within one year of said date. In choosing
2017 as the controlling date, the [c]ourt erred in relying on the
unsubstantiated rumor that “Mar-Mar” was the shooter, such
rumor being inadmissible at any trial or evidentiary proceeding as
blatant hearsay. Rather, the proper controlling date should have
been April 30, 2018, the date that Lamar Clark signed the
notarized affidavit as to his involvement as the true shooter.
2. The PCRA [c]ourt erred in finding [] Clark and [Appellant] to be
lacking credibility, as [] Clark was very familiar with the facts of
the case and in no way could he have known these facts other
than as the perpetrator of the crime.
Pa.R.A.P. 1925(b) Statement, 10/30/19, at 1-2. On December 26, 2019, the
PCRA court filed a Rule 1925(a) opinion addressing these two issues. Again,
the court determined that Appellant’s petition was untimely, see PCO at 7-11,
and alternatively concluded that Clark’s confession was incredible, id. at 12-
15.
On June 7, 2020, Appellant’s counsel, Attorney Dougherty, filed an
application to withdraw as counsel and a Turner/Finley no-merit letter. In
Turner, our Supreme Court “set forth the appropriate procedures for the
withdrawal of court-appointed counsel in collateral attacks on criminal
convictions[.]” Turner, 544 A.2d at 927. The traditional requirements for
proper withdrawal of PCRA counsel, originally set forth in Finley, were
updated by this Court in Commonwealth v. Friend, 896 A.2d 607 (Pa.
-3-
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Super. 2006), abrogated by Commonwealth v. Pitts, 981 A.2d 875 (Pa.
2009),1 which provides:
1) As part of an application to withdraw as counsel, PCRA counsel
must attach to the application a “no-merit” letter[;]
2) PCRA counsel must, in the “no-merit” letter, list each claim the
petitioner wishes to have reviewed, and detail the nature and
extent of counsel’s review of the merits of each of those claims[;]
3) PCRA counsel must set forth in the “no-merit” letter an
explanation of why the petitioner’s issues are meritless[;]
4) PCRA counsel must contemporaneously forward to the
petitioner a copy of the application to withdraw, which must
include (i) a copy of both the “no-merit” letter, and (ii) a
statement advising the PCRA petitioner that, in the event the trial
court grants the application of counsel to withdraw, the petitioner
has the right to proceed pro se, or with the assistance of privately
retained counsel;
5) the court must conduct its own independent review of the
record in the light of the PCRA petition and the issues set forth
therein, as well as of the contents of the petition of PCRA counsel
to withdraw; and
6) the court must agree with counsel that the petition is meritless.
Friend, 896 A.2d at 615 (footnote omitted).
Here, Attorney Dougherty filed a petition to withdraw and a no-merit
letter, in which he discusses the issues Appellant wishes to have reviewed,
and explains why Appellant is not entitled to relief. Notably, counsel first
states that the PCRA court’s decision that Appellant’s petition is untimely “may
____________________________________________
1 In Pitts, our Supreme Court abrogated Friend “[t]o the extent Friend
stands for the proposition that an appellate court may sua sponte review the
sufficiency of a no-merit letter when the defendant has not raised such issue.”
Pitts, 981 A.2d at 879. In this case, Attorney Dougherty filed his petition to
withdraw and no-merit letter with this Court and, thus, our Supreme Court’s
holding in Pitts is inapplicable.
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be arguable,” as counsel “believe[s] the … court’s reasoning to have been
incorrect leading to [t]his legal conclusion….” No-Merit Letter, 6/7/2020, at
3. However, counsel does not elaborate on why he believes the court erred
in its untimeliness determination. Instead, counsel concludes that any such
error “will not garner [Appellant] PCRA relief[,]” as the court did not find
Clark’s confession credible, which “defeats the ultimate issue of [Appellant’s]
entitlement to PCRA relief.” Id. Attorney Dougherty verifies in his petition to
withdraw that he has sent his no-merit letter to Appellant, and he provides
proof that he informed Appellant of his right to hire new counsel or proceed
pro se. Appellant filed a pro se response on July 7, 2020, essentially claiming
that the PCRA court’s credibility determination was belied by the record.
Accordingly, Attorney Dougherty has satisfied the first four requirements for
withdrawal under Turner/Finley.
In regard to the fifth and sixth requirements for withdrawal, we have
conducted our own independent assessment of the record to determine if the
issues Appellant seeks to raise herein are meritless. As part of this review,
we have examined the certified record, Attorney Dougherty’s no-merit letter,
the Commonwealth’s brief, Appellant’s pro se response, and the applicable
case law. We have also considered the December 26, 2019 opinion by the
Honorable Jeffrey D. Wright of the Court of Common Pleas of Lancaster
County. For the reasons set forth by Judge Wright, we agree that Appellant
has failed to demonstrate that he could not have discovered Clark’s confession
earlier, had he exercised due diligence. Alternatively, Judge Wright found that
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Clark’s confession was incredible and, contrary to Appellant’s pro se response,
the record supports that determination.2 Therefore, we are bound by it. See
Commonwealth v. Abu-Jamal, 720 A.2d 79, 99 (Pa. 1998) (“Just as with
any other credibility determination, where the record supports the PCRA
court’s credibility determinations, those determinations are binding on [an
appellate c]ourt.”). Consequently, even if Appellant’s petition had been timely
filed, we would discern no error in the court’s decision to deny him post-
conviction relief. Therefore, we affirm the order denying Appellant’s petition
for the reasons set forth by Judge Wright in his December 26, 2019 opinion,
and grant Attorney Dougherty’s petition to withdraw.
Order affirmed. Petition to withdraw granted.
____________________________________________
2 In Appellant’s pro se response to the Turner/Finley no-merit letter, he
provides cursory objections to the court’s basis for finding Clark incredible that
are confusing and not supported by citations to the record. Additionally, he
seems to focus on alleged discrepancies regarding trivial matters that were
not vital to the court’s credibility decision. To the extent Appellant also
impliedly challenges the court’s timeliness assessment, he seems to argue
that the court utilized dates in 2017 when it should have used dates from 2016
in discerning when he could have first discovered Clark’s confession. Clearly,
using the earlier dates proposed by Appellant only bolsters the court’s
conclusion that he did not exercise due diligence in discovering and/or
presenting the new evidence of Clark’s confession. Accordingly, Appellant’s
response does not demonstrate any error in the court’s decision to deny his
petition.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/02/2020
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KALVIN M. MCCULLOUGH
OPINION
BY: WRIGHT, J, December./ (ft". , 2019
This Opinion is written pursuant to Rule 1925(a) of the Pennsylvania Rules of
Appellate Procedure. Defendant, Kalvin M. McCullough, appeals my September 12,
2019 Order dismissing his seventh Post-Conviction Relief Act ("PCRA") petition filed on
makes two claims regarding his PCRA Petition. First, that it
was timely filed within a year of discovering after acquired exculpatory evidence.
Second, that I erred in finding the evidence presented at the PCRA Hearing as lacking
in credibility. As these issues have no merit, Defendant's appeal should be denied.
BACKGROUND
In the early morning hours of July 27, 2003, a group of five Thaddeus Stevens
College students decided to head off campus and walk to a friend's house in the city of
Lancaster, (Transcript, Jury Trial, August 30, 2004 at 37-39)(hereinafter "Jury Trial").
When the students arrived on the first block of Howard Avenue, they encountered the
Defendant and an unknown individual who began interrogating them about their
identities and involvement in a recent altercation, claiming one of the students "snuck"
the Defendant) (Id. at 73-75). After a brief interaction, Defendant accused the students
"Snuck" in this instance means to sucker punch someone, or punch someone without provocation.
2_0pinio!
of lying, gave them three seconds to run, pulled a gun from his waistband, and fired a
shot in the air. (Id. at 75-76). Shortly thereafter, Defendant started shooting at the five
students as they attempted to flee the unprovoked confrontation. (Id. at 47-50). Four
of
the five students were able to escape the hail of bullets physically unscathed.
Unfortunately, the fifth student, Joseph Rodgers, was not so lucky and was
struck by a bullet in his back. (Id. at 50-51). Mr. Rodgers was transported to
Lancaster
General Hospital, where he underwent emergency surgery during which several
bullet
fragments were pulled from his spine. (Id.) Despite this emergency care, at eighteen
years old, Mr. Rodgers, a former student athlete, suffered debilitating injuries which
rendered him a paraplegic and will confine him to a wheelchair for the remainder of
his
life. (Id. at 52).
Defendant was subsequently charged with four counts of Criminal Attempt -
Homicide2, four counts of Aggravated Assault3, and one count Criminal Conspiracy -
Aggravated Assault.4 A jury trial was held on August 30, 2004, and Defendant was
found guilty on all counts. After a pre -sentence investigation report, The Honorable
Michael A. Georgelis sentenced Defendant on October 15, 2004 to an aggregate
sentence of thirty eight (38) to seventy six (76) years in a state correctional institution.5
An appeal and six prior PCRA petitions followed the sentence.
The Petition sub judice was filed on May 29, 2018 and purported to invoke one of
the narrow exceptions to the timeliness requirement of the PCRA, claiming that
Defendant had discovered after acquired evidence unknown at the time of trial in the
2 18 Pa.C.S.A. § 901(a)
3 18 PS § 2702(A)(1)
4 18 PS § 903(A)(1)
5 President Judge Georgelis has since retired and the case was reassigned to the undersigned.
2
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form of an alleged confession from an individual by the name of Lamar Clark. On
February 15, 2019, I held a PCRA Hearing to determine the timeliness of the filing of the
petition and to evaluate the credibility of the "confession" offered by Mr. Clark.
At the PCRA Hearing, Mr. Clark and Defendant testified on behalf of the
Defendant. The Commonwealth also called witnesses to describe their investigation into
this issue and to authenticate messages transmitted through the prison's messaging
systems.6
The evidentiary hearing centered on an affidavit from Mr. Clark in which he
claimed that he, and not the Defendant, was the shooter. (PCRA Petition, Exhibit 1). As
such, Mr. Clark was questioned extensively on details relating to the shooting. (N.T.
Evidentiary Hearing, February 15, 2017, at 11-13, 18-20)(hereinafter "Hearing"). On the
issue of the events, Mr. Clark claimed the shooting was triggered because of an
altercation caused by a group of individuals that "snuck" him on a front porch, although
he could not remember the timeline from the altercation to the night of the shooting! (Id.
at 11-12). Mr. Clark also claimed to have two individuals8 with him when he allegedly
shot at this group of students, which directly contradicts testimony of the three victims
that testified at the jury trial in 2004.9 (Id. at 22).
The most telling portion of Mr. Clark's testimony was his lack of memory about
specific details of any portion of the shooting. He could not recall what type of gun was
6 Lieutenant Joyce Rose, Detective William Chalfant, Detective Charles Stevens, and Detective Andrew Morgan
testified to their investigations of Defendant, Lamar Clark, and the various parties involved in this scheme, which
included the interception of electronic messages and recorded telephone calls.
He could not remember if it was "the next day or sometime that week or whatever it was." (Hearing at 11-12).
8
One individual was a deceased cousin and the other was one of his cousin's "little buddies" only identified as
"Jay." (Id. at 22). Both individuals were unavailable to corroborate Mr. Clark's version of events.
9 The victims that testified in the 2004 jury trial were Zane
Brown, Dashawn Harrison, and the shooting victim,
Joseph Rodgers. Two others did not testify. All the victims' stated that two individuals approached them, not three.
(N.T. Jury Trial, August 30, 2004 at 35, 66, and 97).
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used other than it was a revolver, and he could not even say whether it was a big or
small gun. (Id. at 18, 38), He could not say how many shots he fired, or even estimate
whether it was six or more than six shots fired. (Id. at 19, 40). When asked what
happened to the gun he used, his first response was he gave it to a friend. (id. at 20).
Upon further questioning, Mr. Clark then said he gave it to a nameless person on the
street before retracting that to state he sold it to someone but could not give a name or
sale price. (Id. at 39-40). Lastly, Mr. Clark admitted to reading about the events in the
newspaper and referred to the victim as Aaron Rodgers.1° (Id. at 19, 37-38).
Aside from the actual contents of the affidavit, the timing of the discovery of Mr.
Clark's identity was at issue. At the time of the investigation, Mr. Barry Stumpf" gave a
statement to the police that "Mar -Mar" was the shooter, according to the "word on the
street." (PCRA Petition, Exhibit "2", Police Report). At the evidentiary hearing,
Defendant stated that he heard this "rumor" and the name "Mar -Mar" from inmates
when he transferred to SCI Dallas in January or February of 2017. (Hearing at 60). He
also claimed it was about this time that he learned for the first time that "Mar -Mar" was
Lamar Clark. (Id.)
While Defendant eventually acknowledged that he had known Mr. Clark virtually
his whole life and, in fact, had dated Mr. Clark's sister, he insisted he knew him only as
1G After Mr. Clark admitted he read newspaper stories about the shooting he tried to deny that later in his testimony.
(Hearing at 37-38).
11 This was Defendant's boxing coach, who claimed to have a
close, personal relationship with Defendant and
described it as a father/son relationship. (Jury Trial at 269).
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"Little Marey." (Id. at 41-42). Mr. Clark, on the other hand, testified that he had gone by
the nickname "Mar" or "Mar -Mar" his entire life. (Id. at 11).12
The details of how this affidavit came about, while initially murky, were later
clarified to be the result of communications between Defendant, Mr. Clark, a Cornelius
Bryant, and a "Jessica Mysteria."13 In a message sent on April 22, 2017, Defendant
asked Ms. "Mysteria": "I need you to look up somebody named Mar -Mar, real name
Lamar M. Clack [sic],14 MQ414115... Tell him I need an affidavit from him... the statute is
up for him." (Id. at 84). On April 28, Ms. "Mysteria" confirmed she e -mailed Mr. Clark,
per Defendant's instructions. (Id. at 85).
Subsequently, Cornelius Bryant, also known as "Neil," corresponded with both
Defendant and Mr. Clark prior to the receipt of the affidavit.18 (Id. at 86, 88). One
message on October 30, 2017 from "Neil" to Defendant stated, "...explain to me about
your situation with being time barred again... Let me know ASAP and I'll holla at Mar -
Mar tonight to see what he says." (Id. at 88). A later message from "Neil" to Mr. Clark
stated, "He (Defendant) said he found a crazy loophole but he needs your help in order
for him to succeed." (Id.) A number of additional messages relating to Mr. Clark
agreeing to the plan were sent, messages which Defendant claimed he did not receive
because he was "in the hole" at SCI Dallas. (Id. at 53-54).
12 Interestingly enough, despite Defendant's claim to
have known Mr. Clark only as "Little Marey" until recently, he
used the name "Mar-Mar" with ease about twenty times in total throughout his testimony when referring to Mr.
Clark and never once referred to him as "Little Marey." (Id, at 41-68).
11 "Jessica Mysteria" was an account on the prison e-mail system who was
revealed to be Defendant's ex -girlfriend
Jessica Lopez. (Hearing at 44-46).
14 A later message corrected the misspelling of Mr. Clark's last name. (Id.
at 84)
'5 This is Mr. Clark's inmate number. (Id.)
16 "Neil" used the account of an "Anthony Patterson" to correspond to both Defendant and Mr. Clark
using the
prison e-mail system. (Id. at 87-88).
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2_Opinion
Throughout the hearing, Mr. Clark's testimony was shifting, evasive, and vague .
Not only could he not remember details about the events or the victim, he would admit a
fact and then later recant that fact.17 (Id. at 25-26, 31-32). Also, I took judicial notice of
Mr. Clark's criminal history pursuant to rules 201 and 609(A) of the Pennsylvania Rules
of Evidence. (Id. at 95). On Docket No. 4865-08, Mr. Clark was convicted of identity
theft and false identification to law enforcement on April 17, 2019, which was within the
ten-year window. (Id.) On Docket No. 4864-08, Mr. Clark was convicted for false reports
to law enforcement authorities with the same conviction date as the prior docket
squarely within the ten-year window. (Id.)
Other portions of Defendant's testimony were also of some interest. At the jury
trial, Defendant's boxing coach, Mr. Stumpf, testified as an alibi witness and placed
Defendant's whereabouts with him in Philadelphia watching a boxing match. (Jury Trial
at 259-261). At the PCRA Hearing, Defendant claimed that he was "all over Lancaster"
that night, including at a party thrown by an individual identified only as "Anwar." t6
(Hearing at 54). He then modified that statement to claim that the the party was actually
over and they were watching a fight. (Id. at 54). When pressed on the issue, Defendant
actually admitted to being "at Mar -Mar's party" before correcting himself and again
stating he was at Anwar's party. (Id. at 55).
Based on these facts ascertained at the PCRA Hearing through testimony and
documentary evidence, I found first that Defendant's PCRA Petition was time barred
17 Mr. Clark first admits to knowing Cornelius Bryant as Neil writing under Anthony Patterson's account, then tries
to say he does not know any of this. (Id. at 25-26, 31-32). In fact, Mr. Clark and Mr. Bryant were housed on the
same block and Mr. Clark admitted to knowing Mr. Bryant "pretty well." (Commonwealth's Exhibit 3, Id. at 26).
18 In the e-mail exchange, there was also a request from Defendant to Ms. Lopez asking her to obtain an
affidavit
from Anwar stating Defendant was at the party, and he "wouldn't put him (Anwar) under a bus or anything."
(Commonwealth's Exhibit I , #6).
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2_Opinion
and therefore was without jurisdiction to hear its merits. Even if the matter had not
I
been time barred, I found the testimony of both Mr. Clark and Defendant to be evasive,
vague, inconsistent, and wholly incredible, if not perjurious. As such, I dismissed
Defendant's PCRA by Order on September 12, 2019. He proceeded to file this timely
Appeal to that Order and the Commonwealth responded in turn, As the Appeal is
without merit, it should be denied for the following reasons.
DISCUSSION
Defendant makes two claims on appeal: (1) the PCRA Petition was timely filed
within the one-year limit after the discovery of after acquired evidence; and (2) erred I in
finding Defendant's evidence void of credibility. (Def. Concise Statement of Matters
Complained of on Appeal, October 30, 2019)(hereinafter "Def. Errors on Appeal"). I
shall discuss each in turn.
Timeliness
Generally, a petition filed pursuant to the PCRA, "including a second or
subsequent petition, shall be filed within one year of the date the judgment becomes
final . ." 42 Pa.C.S.A. § 9545(b)(1). Judgment becomes final at the conclusion of
direct review, or at the expiration of time for seeking the review. Id. §9545(b)(3).
It is also "well -settled that the PCRA's time restrictions are jurisdictional in
nature." Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016) (citations omitted).
"As such, this statutory time -bar implicates the court's very power to adjudicate a
controversy and prohibits a court from extending filing periods except as the statute
permits. . . . Id. Accordingly, "the time for filing a PCRA petition can be extended only by
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operation of one of the statutorily enumerated exceptions to the PCRA time -bar." Id.
(citations omitted). Those exceptions consist of the following:
(i) The failure to raise the claim previously was the result of interference
by government officials with the presentation of the 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
Defendant 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.A. § 9545(b)(1)(i)-(iii). It is the Defendant's burden to plead and prove that
one of these timeliness exceptions applies. Commonwealth v. Beasley, 741 A.2d 1258,
1261 (Pa. 1999) (citing 42 Pa.C.S.A. § 9545(b)(1)). Moreover, "ftlhat burden necessarily
entails an acknowledgement by the petitioner that the PCRA petition under review is
untimely but that one or more of the exceptions apply." Id. If a Defendant invokes any of
the exceptions, yet another requirement is that the petition is filed within one year from
the date it could be filed. 42 Pa.C.S.A. § 9545(b)(2).
In the instant petition, Defendant invokes the after acquired evidence exception
of 42 Pa.C.S.A. § 9545(b)(1)(ii). By invoking this exception, it is the burden of the
Defendant to plead and prove by a preponderance of the evidence that the after
acquired evidence could not have been uncovered using due diligence before trial, it is
not merely cumulative, it does not go to impeaching the credibility of evidence produced
at trial, and the evidence would likely compel a change in verdict. Commonwealth v.
D'Amato, 586 A.2d 806, 823 (Pa. 2004).
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2_Opinior
It is undisputed that Defendant's seventh PCRA Petition falls well outside of the
original one-year limitation, as his sentence became final on March 14, 2006.19
Defendant now relies on the after acquired evidence exception to trigger a new one
year period in which to file his seventh PCRA Petition. It is also undisputed that the
evidence Defendant proffered is not cumulative, it is not being used to impeach trial
testimony, and it would likely result in a different outcome, which satisfied three of the
four elements outlined in D'Amato. The two issues of timeliness of the petition are
whether or not Defendant exercised due diligence in uncovering the evidence and at
which point the after acquired evidence became known to the Defendant.
At the PCRA Hearing, Defendant explained "Mar -Mar" was brought up when he
was transferred to SCI Dallas in January or February of 2017. (Hearing at 60-61). He
was told by several other inmates that "Mar -Mar" had confessed to others about
committing the shooting. (Hearing at 60-61). Defendant knew the name because Mr.
Stumpf made comments to the police about "Mar -Mar" being the shooter during the
initial investigation. (Id. at 62).
Giving Defendant the benefit of every doubt, what this establishes is that, at the
latest, by February 2017 he had acquired the evidence necessary to trigger the one-
year filing period. Accordingly, his Petition filed May 2018 was untimely.
Defendant argues that these statements made by Mr. Stumpf and the inmates at
SCI Dallas are inadmissible hearsay and, therefore, do not trigger the commencement
of the filing period. (Brief in Support of Petitioner's Amended PCRA at 3)(hereinafter
19Defendant was sentenced on October 15, 2004. His appeal was dismissed by the Superior Court on January 25,
2005 and again on March 14, 2005. Therefore, his right to petition expired and the sentence became final.
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2_ Opinion
"Brief'). Defendant further argues that after hearing the rumors at SCI Dallas, it
prompted him to begin an investigation into the identity of "Mar -Mar," which was the
missing fact and the key to after discovered evidence in the case at hand. (1d. at 4).
Defendant explains the delay between learning the identity of Mr. Clark and the date of
the affidavit was caused by his stay in a disciplinary unit at his assigned SCI which
made him unable to correspond on the e-mail messaging system. In short, the
Defendant views the date of the affidavit as the controlling date for the after acquired
evidence exception to begin tolling. This Court disagrees.
Claims based on inadmissible hearsay do not implicate the tolling of the after
acquired evidence exception. Commonwealth v. Yarris, 731 A.2d 581, 592 (1999). "A
petitioner fails to meet his burden when the facts asserted were merely 'unknown' to
him." Commonwealth v. Taylor, 2007 Pa. Super. 282, 1110, 933 A.2d 1035, 1041
(2007)(citing Commonwealth v. Chester, 895 A.2d 520, 523 (2006)). Petitioner must
also explain why the asserted facts could not have been discovered earlier by using due
diligence to uncover them. Commonwealth v. Breakiron, 566 Pa. 323, 331, 781 A.2d 94,
98 (2001).
While the statements made by Mr. Stumpf and the inmates at SCI Dallas
regarding the rumor of "Mar -Mar" being the shooter may be inadmissible hearsay, the
issue is not hearsay but rather due diligence, or the lack thereof. Defendant fails to
explain why a jailhouse rumor in 2017 triggered an investigation when, by Defendant's
own admission, the same rumor existed in 2003. Defendant fails to explain why he
gives inmate chatter greater credibility than a boxing coach with whom he shared an
almost paternal relationship. Defendant's only explanation of the lack of due diligence is
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he was "in the hole" and could not correspond in order to get the affidavit.20 Defendant
failed to exercise due diligence and subsequently fails to meet his burden of proving the
after acquired evidence exception.
Assuming Defendant did exercise some amount of due diligence as he argues,
Defendant's argument as to the controlling date of the discovery of information remains
fatally flawed. Defendant argues that whether or not the true shooter would actually
confess holds bearing on the acquisition of evidence, so the date of the affidavit should
be the controlling date. The outstanding fact allegedly "acquired" by the Defendant was
the true identity and legal name of "Mar-Mar," the alleged shooter. Defendant claims the
identity of "Mar-Mar" was unknown to him until he "learned" it was Lamar Clark,
evidenced by the April 22, 2017 e-mail to "Jessica Mysteria" asking her to look up the
individual by that name. (Commonwealth's Exhibit 1, #2). As noted previously, I
consider the triggering event to be even earlier, specifically January or February 2017
when he admits to first learning about "Mar-Mar" when he was transferred to SCI Dallas.
(Hearing at 44). All that Defendant's e-mail to Jessica "Mysteria" in April 2017
demonstrates that he had firm knowledge of the identity of "Mar-Mar" at that time.
Regardless of whether you use the January or February 2017 dates, or the April 22,
2017 date, Defendant failed to file a petition until May 29, 2018, over a year past any of
those dates. Defendant's Petition was untimely and, therefore, properly dismissed.
" Defendant was "in the hole" from November 2, 2017 until February 3, 2018, but he learned of "Mar -Mar's"
identity prior to that period in January or February of 2017. (Hearing at 63).
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Credibility
Assuming, in arguendo, that Defendant's Petition was timely filed, it was still
properly denied because the supporting evidence had no credibility.
When a trial court is faced with recantation evidence in a PCRA, they must hold
an evidentiary hearing to determine the credibility of such evidence. Commonwealth v.
Small, 189 A.3d 961 (Pa. 2018). As the Pennsylvania Supreme Court stated in Williams,
"...the PCRA court as factfinder is in a superior position to make the initial assessment."
Commonwealth v. Williams, 557 Pa. 207, 233, 732 A.2d 1167, 1181 (Pa. 1999). Unless
the post -conviction court is satisfied that the recantation is true, it should deny a new
trial based on after -discovered evidence. Small, 189 A.3d 961 at 977. A higher court
should leave the determinations made at an evidentiary hearing undisturbed unless
unsupported by the record. Id. at 971.
It is this Court's opinion that Mr. Clark's proffered "admission" is little more than a
transparent effort to proffer false testimony in an attempt to free a guilty man. This
opinion has ample support in the record.
First, one of the key facts in the instant matter is the identity of "Mar-Mar."
Defendant claims that he had no idea who "Mar-Mar" was, and that Lamar Clark was
only known to him as "Little Marey." (Hearing at 41-42). Mr. Clark testified, however,
that he has been known as "Mar -Mar" since birth. (Id. at 11). Add to that fact
Defendant's admission that he and Mr. Clark were childhood friends and that he had
dated Mr. Clark's sister, and there is no credibility whatsoever that Defendant did not
know who "Mar-Mar" was. (Id. at 41-42). Indeed, Defendant himself said that
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"Lancaster's a real small city - it's really small,"21 so it defies logic that a person with
such close familial ties with someone in such a small city would not know a nickname by
which Clark had been known by since birth.
Furthermore, Mr. Clark's offered testimony was shifting, elusive, inconsistent and
vague. He admitted to knowing Cornelius Bryant as "Neil" during one line of
questioning. (Hearing at 25). Then a few moments later, he questions the identity of
Cornelius Bryant as if he never admitted knowing Cornelius Bryant as "Neil." (Id. at 31).
This was all despite the fact that Mr. Clark and Mr. Bryant were incarcerated together in
the past. (Commonwealth's Exhibit 3). He admitted to reading the newspaper account of
the shooting in 2003, but later denied reading any news stories, got confused about
whether or not he read new stories, and could not remember the victim's name. (Id. at
19, 38). He claimed two people were with him at the time of the shooting, which was in
complete contradiction to jury trial testimony. (Id. at 22). Conveniently, all parties that
could corroborate his version of the events were unavailable. (Id.) Finally, while Mr.
Clark could only give vague details of the shooting such as using a revolver, wearing a
hoodie, the name of the victims (which he confused)22, he was utterly unable to give
specifics such as the exact type of gun, an estimate to how many shots were fired, or to
whom and for how much he sold the gun to after the shooting. (Id. at 39). Coupled with
his prior convictions for crimen falsi, Mr. Clark's testimony has no iota of credibility.
Defendant's testimony was also shifting and inconsistent. At the jury trial in 2003,
Mr. Stumpf testified that he and Defendant went to Philadelphia to watch a fight and did
21Hearing at 62.
22These details are easily obtainable through online news sourced such as: Justin Quinn, Man Guilty of Shooting at
Stevens Students, LancasterOnline, September 15, 2004, available at https://lancasteronline.com/news/ man -guilty -
of-shooting -at-stevens-students/article_7970b3f8-4e54-586c-8c8c-fl9ac7ec2602.html.
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not return until after midnight at the time of the shooting, and he gave similar statements
to the police. (Jury Trial at 260-261, PCRA Petition, Exhibit "2," Police Report). At the
Hearing, Defendant claimed first he was "all over Lancaster," then at a party at
"Anwar's," but then claimed that the party was over and they were watching the fight.
(Hearing at 54). Defendant then said in his testimony he was at "Mar -Mar's party" before
correcting himself to saying Anwar's party. (Id. at 55). One of Defendant's messages to
Jessica "Mysteria" asks her to try to obtain an affidavit from Anwar to state that
Defendant was at his party. (Commonwealth's Exhibit 1, #6). Defendant's testimony
along with Mr. Clarks are wholly unbelievable, as shown in the record.
Lastly, there was an overwhelming amount of evidence presented by the
Commonwealth which shows a scheme contrived by Defendant, Mr. Clark, Mr. Bryant,
and Jessica Lopez aka Jessica "Mysteria" to perjure evidence. Defendant claims actual
innocence in the underlying matter. However, in one of the first messages from "Neil" to
Mr. Clark there was mention of a "crazy loop hole" that Defendant needed Mr. Clark's
help with to utilize. (Commonwealth's Exhibit 2, #10). Another message from "Neil" to
Mr. Clark said, "He wanted me to make sure you knew exactly what he need [sic] your
help on and how he needs it." (Id. at #13). Other emails between Defendant and Neil
highlight the plan with statements such as, "Explain to me about your situation with
being time barred again. I need to know so I can do some research on it myself plus my
lady is a law student so she maybe able to help me out as well." (Commonwealth's
Exhibit 1, #9).
Actual innocence is not a "crazy loop hole" that is time barred. It is this Court's
opinion that Defendant tried to get a childhood friend, Mr. Clark, to take the fall for
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Defendant's heinous actions in 2003 because the statute of limitations had run for the
Commonwealth to successfully prosecute Mr. Clark. Defendant's own words allude to
this in his telephone call to "Neil" the night before the PCRA Hearing, saying, "We never
gave out the whole facts to any of the case. Everything we said is, yo, can you send an
affidavit?" (Hearing at 109). And it was obvious from Mr. Clark's testimony that he did
not know the "whole facts" because he did not commit the shooting. It was clear to this
Court that this was nothing more than a plot between these actors to try to exculpate a
rightfully convicted Defendant from serving the remainder of his sentence.
Conclusion
The issues Defendant raises are time barred and do not have merit and his
appeal should be should dismissed. Accordingly, I enter the following:
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IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
CRIMINAL
COMMONWEALTH OF PENNSYLVANIA
vs. 4052-2003
KALVIN M. MCCULLOUGH
ORDER
AND NOW, this ltoday of December, 2019 the Court hereby submits this
Opinion pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure.
BY THE Cp\URT:
JEFFER HT
JUDGE,
COPIES TO:
Gregory Seiders, Assistant District Attorney
Dennis Dougherty, Esq., 53 North Duke Street, Suite 304, Lancaster, PA 17602
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