Com. v. Parker, M. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MARIO COURTLIN PARKER :
:
Appellant : No. 687 WDA 2020
Appeal from the PCRA Order Entered June 10, 2020
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0007624-2009
BEFORE: DUBOW, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY DUBOW, J.: FILED: September 20, 2021
Appellant, Mario Courtlin Parker, appeals from the June 10, 2020 Order
entered in the Allegheny County Court of Common Pleas denying his Petition
filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541-
96. After careful review, we affirm.
The relevant facts and procedural history are as follows. On May 1,
2009, Appellant and a second man shot and killed two victims in the victims’
home in Pittsburgh. Appellant and the other man also held three witnesses—
Laron Thornton, Michael Morrison, and D’Andre1 Freeman—at gunpoint.
Although Appellant had attempted to conceal his identity by wearing a ski
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* Former Justice specially assigned to the Superior Court.
1 D’Andre Freeman is also referred to as Deandre Freeman throughout the
record.
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mask, Freeman saw Appellant’s face when Appellant partially lifted up his ski
mask, and he recognized Appellant as someone he knew from the
neighborhood. At a formal interview conducted by police detectives a few
hours after the incident, Freeman identified Appellant in a photo array.2 Laron
Thornton also identified Appellant as one of the actors involved and picked
him out of a photo array later that day.
Police arrested Appellant and charged him with numerous offenses
arising from the murders. Prior to trial, Appellant filed a Motion to, inter alia,
suppress Thornton’s identification of Appellant, which the trial court denied.
At trial, Thornton could not identify Appellant. Over Appellant’s
objection, however, a detective testified to Thornton’s pre-trial identification
of Appellant. Freeman also testified at trial and identified Appellant as the
perpetrator. On July 2, 2010, a jury convicted Appellant of two counts of first-
degree Murder, Burglary, Possession of a Firearm Prohibited, five counts of
Unlawful Restraint, and Criminal Conspiracy to Commit Homicide. On
September 20, 2010, the court sentenced Appellant to two life sentences for
the murders and 20 to 40 years’ imprisonment on the remaining convictions.
Appellant filed a direct appeal to this Court challenging the trial court’s
denial of his Motion to Suppress Thornton’s pre-trial and in-court identification
of Appellant, the admission of the detective’s testimony that Thornton had
identified Appellant prior to trial, and the sufficiency of the evidence. On
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2 Pittsburgh Police placed Freeman in its witness protection program shortly
after the murders. N.T. Hr’g, 4/1/19, at 37.
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March 5, 2013, this Court affirmed Appellant’s Judgment of Sentence, and the
Pennsylvania Supreme Court denied further review. See Commonwealth v.
Parker, 2013 WL 11273762 (Pa. Super. March 5, 2013) (unpublished
memorandum); appeal denied, 72 A.3d 602 (Pa. 2013).
On March 17, 2014, Appellant filed a timely first PCRA Petition raising
numerous ineffective assistance of counsel claims. On April 22, 2015, the
PCRA court denied Appellant’s Petition. Appellant filed an appeal to this Court.
Prior to our disposition of Appellant’s appeal, Appellant filed a Petition
requesting that we remand for an evidentiary hearing based on after-
discovered evidence. In support of this request, he submitted an unsworn
February 23, 2016 affidavit obtained from trial witness D’Andre Freeman. In
the affidavit, Freeman stated that, despite his preliminary hearing and trial
testimony identifying Appellant as one of the perpetrators of the 2010
murders, he did not actually recognize either gunman. Affidavit, 2/23/16, at
¶ 4. He stated that he had been drinking and smoking marijuana on the
evening of the murders and was under the influence at both the time of the
murders and when the police took him to the police station to be interviewed.
Id. at ¶ 2. He stated that he felt pressured by the police to identify Appellant
and he felt like he could not disagree with them. Id. at ¶¶ 5-6. He stated
that Appellant’s trial counsel never contacted him prior to trial and that his
first discussion about the case with anyone other than the police took place in
April of 2015 when an investigator for Appellant contacted him. Id. at ¶ 7.
Freeman asserted that he was not ready to talk with anyone at that time, so
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he falsely told the investigator that his trial testimony was the truth. Id. He
stated that the first time he told anyone he identified “the wrong person” was
on February 11, 2016, when he met with Appellant’s PCRA counsel, Attorney
Emily McNally. Id. at ¶ 8. In his affidavit, Freeman stated he “do[es] not
believe” Appellant was one of the gunmen responsible for the Robinson
murders and he is willing to testify to that effect under oath. Id. at ¶ 9.
On August 10, 2016, this Court denied Appellant’s Petition for Remand
finding that Appellant had not asserted in it that he could not have obtained
Freeman’s recantation at or prior to the conclusion of trial through reasonable
diligence. This Court also noted Freeman was not the only witness to identify
Appellant and affirmed the Order dismissing Appellant’s first PCRA Petition.
See Commonwealth v. Parker, 153 A.3d 332 (Pa. Super. 2016)
(unpublished memorandum). The Pennsylvania Supreme Court denied further
review. See Commonwealth v. Parker, 156 A.3d 333 (Pa. 2017).
On March 21, 2017, Appellant filed a counselled second PCRA Petition,
raising again the after-discovered evidence claim outlined above and
requesting a new trial. The PCRA court dismissed this Petition, concluding
that Appellant had previously litigated this claim before the Superior Court.
On appeal, we vacated the PCRA court’s Order and remanded for an
evidentiary hearing on Appellant’s after-discovered evidence claim.3
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3 We found that Appellant’s second PCRA Petition overcame the PCRA’s one-
year jurisdictional time bar because Appellant filed it within 60 days of the
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The PCRA court held hearings on Appellant’s second PCRA Petition on
April 1, 2019, and April 23, 2019, at which Appellant presented the testimony
of D’Andre Freeman; Barry Fox, Appellant’s counsel’s private investigator;
Attorney McNally; and Detectives Martin Kail and Scott Evans.
Freeman testified that he was intoxicated on the night in question when
police interviewed him and that he did not recall picking Appellant out of a
photo array. N.T., 4/1/19, at 7-9 He conceded that he did testify at the
preliminary hearing and at trial that Appellant was one of the perpetrators.
Id. at 9. Freeman asserted that, after Appellant’s trial, an investigator went
to his house, but he refused to speak with the investigator. Id. at 11.
However, he eventually met with prior PCRA counsel and provided a signed
affidavit in February 2016, in which he stated that he had testified falsely at
trial when he identified Appellant as one of the perpetrators and that he did
not actually recognize either shooter. Id. at 10-12. Freeman confirmed,
however, that not once during his trial testimony did he indicate to the court
that he was unsure of his identification of Appellant. Id. at 34.
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Pennsylvania Supreme Court’s February 22, 2017 denial of his Petition for
Allowance of Appeal. Commonwealth v. Parker, 2018 WL 1939823 at *4
(Pa. Super. 2018) (citing 42 Pa.C.S. § 9545(b)(2)). We further found that the
record did not support the PCRA court’s conclusion that Appellant had
previously litigated his claim before this Court because we did not address the
claim on its merits; instead, we concluded that Appellant failed to aver in his
Petition for Remand that he “could not have obtained Freeman’s recantation
at or prior to the conclusion of trial through reasonable diligence.” Id. at *4-
5 (citation omitted).
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On cross-examination, the Commonwealth attempted to demonstrate
that Freeman’s recantation was not truthful and that he was motivated solely
by fear. The Commonwealth elicited Freeman’s testimony that, when he
called 911 to report the shooting, he asked the operator not to send police
officers to his house so that no one would know that he called the police or
where he lived. Id. at 20-21, 37. Freeman also testified that prior to
testifying at trial, he asked that the police place him in its witness protection
program and that the police complied. Id. at 21, 37-38. He agreed that when
he testified at trial, he still felt scared. Id. at 28. He acknowledged omitting
from the 2016 affidavit that he had affirmatively identified Appellant as the
shooter during his police interview.4 Id.at 30-31. Freeman also testified that
about two months after the murders an unknown male approached him on the
street and informed him that he “got the wrong person” convicted and warned
Freeman to “be careful,” but claimed that he did not perceive this as a threat.
Id. at 23-25.
Pittsburgh Police Detective Martin Kail testified that he interviewed
Freeman in the fall of 2018, approximately two years after Freeman’s
recantation affidavit. Id. at 48. He testified that Freeman informed him
during that interview that Freeman felt pressured into giving prior PCRA
counsel the affidavit. Id. at 50. He also testified that he felt threatened by
an unknown male who had approached him on the street and referred to
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4 He also testified that he did not write or type the affidavit himself. N.T. Hr’g
at 30.
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Appellant by name. Id. at 50-51. Detective Kail testified that Freeman
indicated to him that his prior trial testimony identifying Appellant as one of
the perpetrators was truthful. Id. at 51.
Following the hearings, the PCRA court issued a Pa.R.Crim.P. 907 Notice
to Dismiss explaining that it had found Freeman’s recantation testimony
incredible and concluding that Appellant had failed to establish that a new
trial, if granted, would likely result in a different verdict. Rule 907 Notice,
2/18/20, at 4.
On March 9, 2020, Appellant filed a Response to the court’s Rule 907
Notice. On June 10, 2020, the PCRA court dismissed Appellant’s Petition as
meritless. This timely appeal followed.5
Appellant raises the following issues on appeal:
1. Whether the PCRA[] court erred in finding that the eyewitness,
in recanting his prior testimony, was not credible, when he has
made any number of conflicting statements and thus the very
inconsistency of his various statements adversely affects his
credibility and mandates further review [?]
2. Whether the fact that the eyewitness has made a number of
inconsistent statements, including a recantation of his
eyewitness identification, dictates that a fact-finder must hear
and evaluate his testimony at a new trial[?]
Appellant’s Brief at 5.
Both of Appellant’s issues challenge the PCRA court’s denial of
Appellant’s after-discovered evidence claim.
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5 The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b) Statement.
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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
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).
To receive a new trial based on after-discovered evidence, a 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, 292 (Pa. 2008)). “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.
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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.” Id. at 975 (citation omitted, emphasis added). A request for a
new trial based on recantation testimony hinges on the credibility of the
testimony. Id.
It is well-settled that “recantation is one of the least reliable forms of
proof, particularly when it constitutes an admission of perjury.”
Commonwealth v. McCracken, 659 A.2d 541, 545 (Pa. 1995). Thus, it is
within the province of the PCRA court to judge the credibility of the recantation
testimony. Small, 189 A.3d at 977. The court must deny a defendant’s
request for a new trial unless the court is satisfied that the recantation is true.
Id. “[A]n appellate court may not interfere with the denial or granting of a
new trial where the sole ground is the alleged recantation of state witnesses
unless there has been a clear abuse of discretion.” McCracken, 659 A.2d at
545 (citation omitted).
Appellant’s issues challenge: (1) the PCRA court’s finding that Freeman’s
recantation testimony was not credible; (2) the weight the PCRA court gave
to Freeman’s testimony; and (3) the court’s conclusion that Appellant had
failed to demonstrate by a preponderance of the evidence that a different
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verdict would result if the court granted him a new trial.6 Appellant’s Brief at
13-23. Conceding that Freeman offered numerous conflicting statements,
Appellant essentially argues that the PCRA court’s finding that Freeman’s
PCRA hearing testimony was not credible amounted to the court “[p]icking
and choosing, in an arbitrary manner” which of Freeman’s statements to
disbelieve. Id. at 21. In other words, Appellant claims that, precisely because
Freeman has offered inconsistent statements for more than a decade, the
PCRA court should not determine whether his current testimony is credible;
rather, he asserts that the PCRA court should order a new trial so that a jury
may weigh Freeman’s credibility and determine which of his inconsistent
statements to believe. Id.
Appellant’s argument flies in the face of our well-established case law
that it is, as a threshold matter, the job of the PCRA court to determine the
credibility of a recantation witness’s testimony. Moreover, Appellant’s
assertion that a jury should consider Freeman’s conflicting statements and
determine which to believe amounts to no more than unfounded speculation—
and not proof by a preponderance of the evidence—that a new jury would
reach a different verdict if presented with Freeman’s testimony.
Furthermore, the record reflects that, in accordance with its mandate,
the PCRA court weighed the testimony presented at the hearing, including that
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6 Appellant has neglected to divide the Argument section of his brief “into as
many parts as there are questions to be argued” as required by Rule of
Appellate Procedure 2119(a). Pa.R.A.P. 2119(a).
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of Freeman and Detective Kail. The PCRA court found Freeman’s testimony
not credible, noting that Freeman had offered “multiple conflicting statements
throughout the course of this case.” Rule 907 Notice at 5. Conversely, the
court found credible Detective Kail’s testimony that Freeman informed him
that Freeman had told the truth at Appellant’s trial, that Freeman had felt
threatened after being approached by an unidentified man who invoked
Appellant’s name, and that he had felt pressured into providing the 2016
recantation affidavit. The record, thus, supports the trial court’s conclusion
that Appellant failed to demonstrate that a new trial would likely result in a
different verdict. Because Appellant did not satisfy this prong of the after-
discovered evidence test, the PCRA court properly found that his after-
discovered evidence claim lacked merit.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/20/2021
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