Com. v. Jackson, J.

J-S23028-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JONATHAN JACKSON, JR. :
:
Appellant : No. 329 MDA 2022
Appeal from the PCRA Order Entered February 4, 2022
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0002353-2018
BEFORE: STABILE, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED: JANUARY 13, 2023
Jonathan Jackson, Jr. appeals the denial of his request for relief under
the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. He
claims the court erred by not granting an evidentiary hearing for his claim that
the victim had recanted. We dismiss the appeal as moot.
Jackson was charged with several crimes, including strangulation,
following an incident with his girlfriend. At trial in November 2018, the victim
testified for the prosecution and said that her statements to police
immediately after the incident were not “a hundred percent accurate,” she is
bipolar and was not on medication, and that when she made the statements,
she “couldn’t remember everything[.]” N.T., Nov. 16, 2018, at 23. She then
gave conflicting testimony. On direct examination, she said that Jackson had
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* Retired Senior Judge assigned to the Superior Court.
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restrained her by placing his hands around her neck, and that her ability to
breathe was restricted because she was “movin’ around and stuff.” Id. at 11.
On cross, however, she said that Jackson had not blocked her nose or mouth
and that he had not impeded her breathing. Id. at 25. The defense also put
into evidence a letter that the victim had written to Jackson, while Jackson
was in jail awaiting trial, suggesting that her statements to police were
inaccurate.
The court found Jackson guilty of strangulation and simple assault1 and
sentenced him to 18 to 36 months’ incarceration, with credit for time served.
Following the reinstatement of his direct appeal rights, we affirmed the
judgment of sentence in October 2020. Commonwealth v. Jackson, 241
A.3d 368 (Table) (Pa.Super. October 6, 2020). Jackson did not seek a
discretionary appeal in our Supreme Court.
In February 2021, Jackson filed the instant PCRA petition, and the court
appointed counsel. Counsel filed a supplemental PCRA petition claiming that
the victim had recanted her statements to police. The petition included a
certification from the victim that Jackson “never strangled her, did [sic] put
his hands on her shoulders, but that her breathing was not restricted[.]”
Supplemental Petition, filed 7/6/21, at ¶ 19. Jackson claimed the evidence
was previously unavailable and exculpatory.
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1 18 Pa.C.S.A. §§ 2718(a)(1) and 2701(a)(1), respectively.
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The court issued notice of its intent to dismiss the petition without a
hearing. See Pa.R.Crim.P. 907. It explained that it found Jackson’s claim
meritless because “the inconsistencies or recantations made by the victim
were included at [Jackson’s] trial.” Trial Court Memorandum Opinion, filed
11/29/21, at 4. The court pointed out that at trial, defense counsel introduced
the letter from the victim to Jackson. The court characterized the letter as
“seemingly recanting” the victim’s statements to police. The court also noted
that this Court had affirmed Jackson’s challenge to the sufficiency of the
evidence, and on that basis concluded that the issue had been previously
litigated. Jackson did not respond to the court’s Rule 907 notice, and in
February 2022, the court dismissed the petition. This timely appeal followed.
Jackson raises one issue for our review: “Whether the PCRA court
abused its discretion in not holding an evidentiary hearing regarding
[Jackson’s] attempt to offer evidence that the victim recanted her
testimony[.]” Jackson’s Br. at 7 (unpaginated) (suggested answer omitted).
This appeal is moot because we cannot afford Jackson relief. An appeal
is moot if any ruling we entered would have no practical force or effect. See
Commonwealth v. Bricker, 41 A.3d 872, 881 (Pa.Super. 2012).
To be eligible for PCRA relief, the petitioner must be “currently serving
a sentence of imprisonment, probation or parole for the crime.” 42 Pa.C.S.A.
§ 9543(a)(1)(i). This is required even if the petitioner was initially incarcerated
at the time of filing but has completed their sentence. See Commonwealth
v. Ahlborn, 699 A.2d 718, 720 (Pa. 1997) (affirming denial of PCRA relief for
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petitioner who was incarcerated at the time of filing the PCRA petition but had
completed his sentence by the time the PCRA court held a hearing on the
matter). “The time of filing a petition is not the same as the time that a
decision is rendered regarding eligibility for relief.” Id.We could not grant relief in this case because Jackson is not “currently
serving” a sentence. On January 9, 2019, the court sentenced Jackson to 18
to 36 months’ incarceration, with credit for time served from April 5, 2018 to
January 9, 2019. The court did not impose a probationary tail and the sentence
was not consecutive to another sentence. Therefore, Jackson finished serving
his sentence in this case in April 2021.
Because Jackson is no longer serving a sentence for this case, any order
we might enter would, as a practical matter, have no effect. This appeal is
moot. See Ahlborn, 699 A.2d at 720.
Furthermore, even if the appeal were not moot, Jackson would not be
entitled to relief. We do not agree that this issue was previously litigated, as
the issue before us now is Jackson’s after-acquired evidence claim, and the
issue on direct appeal was the sufficiency of the evidence.
We nonetheless would affirm because the after-acquired evidence claim
fails. To obtain relief under the PCRA on such a claim, the petitioner must
demonstrate that the new 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
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new trial were granted.” Commonwealth v. Small, 189 A.3d 961, 972 (Pa.
2018).
The victim’s recantation statement is insufficient to meet this standard
because Jackson has made no effort to show that he could not have obtained
it before the end of his trial by the exercise of due diligence. Indeed, the
victim’s cross-examination testimony at trial included a statement that her
breathing was not restricted. It is also corroborative and cumulative of her
cross-examination testimony, and because her trial testimony was conflicting,
and included testimony similar to her recantation statement, we cannot say
that it would be likely to result in a different outcome at a new trial.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/13/2023
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