Com. v. Washington, A.

J-S21020-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
AARON WASHINGTON
Appellant No. 2991 EDA 2014
Appeal from the PCRA Order September 17, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0908521-1999
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED MARCH 30, 2016
Aaron Washington appeals from the order of the Court of Common
Pleas of Philadelphia County dismissing his petition pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful
review, we affirm.
The PCRA court stated the facts and procedural history of this case as
follows:
On August 1, 1999, [Washington] was arrested and charged with
first-degree murder, possession with intent to deliver a
controlled substance (PWID), and the possession of an
instrument of crime (PIC). In April 2002, a trial was held in the
presence of a jury. On April 15, 2002, [Washington] was found
guilty on all charges and sentenced by the Honorable Judge
Pamela Pryor Dembe to a mandatory sentence of life in prison
without the possibility of parole on the murder charge, 2-6 years’
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*
Former Justice specially assigned to the Superior Court.
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incarceration on the PWID charge, and 2 to 5 years’
incarceration on the PIC charge. On April 25, 2002,
[Washington] filed a Notice of Appeal to the Superior Court,
which affirmed the judgment of sentence on April 21, 2003. On
May 12, 2004, [Washington] filed a petition for relief pursuant to
the PCRA. On May 27, 2005, [Washington’s] petition was
dismissed as untimely. On June 24, 2005, [Washington]
appealed the dismissal of his PCRA petition to the Superior
Court. On November 21, 2006, the Superior Court affirmed the
dismissal of [Washington’s] PCRA petition. On December 21,
2006, [Washington] filed a Petition for Allowance of Appeal to
the Pennsylvania Supreme Court, which denied the petition on
June 14, 2007.
On April 12, 2013, [Washington’s] aunt, Veronica Nelson
(“Nelson”) visited him in prison for the first time since he was
incarcerated. According to [Washington], Nelson told him that
her brother, who was a Commonwealth witness against
[Washington], recanted his testimony while on his deathbed in
2005. According to [Washington], Nelson was told by her
brother, [Washington’s] uncle, that [Washington] was not
present when the victim in this case was killed and that he “felt
bad for lying on [Washington].” [Washington] further claimed
that his uncle told Nelson the identity of the person who shot
and killed the victim. On the basis of this information,
[Washington] filed a second petition for relief pursuant to 42
Pa.C.S.A. § 9545(b)(1)(ii) on May 28, 2013.
On February 20, 2014, James Lammendola, Esquire, was
appointed PCRA counsel. On July 7, 2014, Mr. Lammendola filed
a Finley[1] letter stating that the issues raised in [Washington’s]
PCRA petition were without merit. On August 5, 2014, this
[c]ourt sent [Washington] a notice pursuant to [Pa.R.Crim.P.]
907, indicating that his petition would be dismissed due to a lack
of merit. On August 21, 2014, [Washington] filed a response to
the [Rule] 907 notice. On September 17, 2014, after review of
[Washington’s] pro se petition, PCRA counsel’s Finley letter, and
[Washington’s] reply to the [Rule] 907 notice, this [c]ourt
dismissed [Washington’s] petition without a hearing as being
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1
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988).
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without merit. On October 10, 2014, [Washington] appealed
this dismissal to the Superior Court.
PCRA Court Opinion, 12/8/14, at 1-3.
On appeal, Washington raises the following issues for our review,
verbatim:
1. Whether the PCRA court erred when it dismissed
[Washington’s] claim of AFTER DISCOVERED “FACT,” pursuant to
42 Pa.C.S. § 9545[(b)](1)(ii), based on a hearsay statement of
recantation where the PCRA petition was dismissed without an
evidentiary hearing to assess the credibility of [Washington’s]
witness?
2. Whether the hearsay statement of recantation has the indicia
of reliability sufficient enough to be presented at a new trial for
purposes beyond merely impeachment, considering the
circumstances surrounding the case?
Brief of Appellant, at 4.
Our standard and scope of review for the denial of a PCRA petition is
well-settled. We review the PCRA court’s findings of fact to determine
whether they are supported by the record, and review its conclusions of law
to determine whether they are free from legal error. Commonwealth v.
Spotz, 84 A.3d 294, 311 (Pa. 2014). The scope of our 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. Id.
All petitions under the PCRA, including second or subsequent petitions,
must be filed within one year of the date the judgment becomes final, unless
the petitioner alleges, and the petitioner proves, an exception to the one-
year time bar. Commonwealth v. Hawkins, 953 A.2d 1248, 1251 (Pa.
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2008). The exceptions apply where the petitioner successfully alleges and
proves one or more of the following:
(i) the failure to raise this claim previously was the result of
interference by government officials with 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 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.A. §§ 9545(b)(1)(i)-(iii).
A petition invoking one of these exceptions must be filed within 60
days of the date the claim could first have been presented. 42 Pa.C.S.A. §
9545(b)(2). The petitioner must plead and prove specific facts that
demonstrate his claim was raised within the 60 day time frame.
Commonwealth v. Hernandez, 79 A.3d 649, 651-52 (2013).
Here, Washington’s judgment of sentence became final on or about
May 21, 2003, when the time within which to file a petition for allowance of
appeal with the Pennsylvania Supreme Court expired. See 42 Pa.C.S.A. §
9545(b)(3). The instant petition was filed on May 28, 2013, more than ten
years after Washington’s judgment of sentence became final. Accordingly,
the PCRA court lacked jurisdiction to consider Washington’s petition unless
he pled and proved one of the exceptions to the time bar.
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Here, Washington invokes the newly-discovered-fact exception to the
time bar pursuant to section 9545(b)(1)(ii). Specifically, Washington claims
that, on April 12, 2013, his aunt, Veronica Nelson, informed him that her
brother, a Commonwealth witness at Washington’s trial, had recanted his
testimony to her on his death bed. The witness allegedly told Nelson that he
had not actually been present at the time the victim was killed and also told
her the identity of the actual killer. Washington claims this information was
unknown to him at the time of trial and could not have been ascertained by
the exercise of due diligence. Because he filed his petition within 60 days of
obtaining the information, Washington asserts his petition should be treated
as timely filed.
To obtain relief of after-discovered evidence, the defendant 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. Pagan, 950 A.2d 270, 292 (Pa. 2008). The test is
conjunctive; the defendant 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.
2010). As a general matter, recantation evidence is, “notoriously unreliable,
particularly where the witness claims to have committed perjury.”
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Commonwealth v. D’Amato, 856 A.2d 806, 835 (Pa. 2004), quoting
Commonwealth v. Dennis, 715 A.2d 404, 416 (Pa. 1998).
Here, Washington asserts that the after-discovered evidence, although
hearsay, is admissible as a statement against penal interest2 pursuant to
Pa.R.E. 804(b)(3). A statement against penal interest is one that:
(A) a reasonable person in the declarant’s position would have
made only if the person believed it to be true because, when
made, it was so contrary to the declarant’s proprietary or
pecuniary interest or had so great a tendency to invalidate the
declarant’s claim against someone else or to expose the
declarant to civil or criminal liability; and
(B) is supported by corroborating circumstances that clearly
indicate its trustworthiness, if it is offered in a criminal case as
one that tends to expose the declarant to criminal liability.
Pa.R.E. 804(b)(3).
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2
In the PCRA court, Washington also asserted that the statement was
admissible as a dying declaration, a claim which the PCRA court properly
concluded was meritless. “A statement may be considered a dying
declaration, and hence admissible notwithstanding its hearsay attributes, if
the declarant identifies his attacker, the declarant believes he is going to die,
that death is imminent, and death actually results.” Commonwealth v.
Griffin, 684 A.2d 589, 592 (Pa. Super. 1996). Dying declarations are
statements made by the deceased concerning the circumstances of his
injuries and are admissible in the trial of a person accused of killing him.
Commonwealth v. Knable, 85 A.2d 114, 116 (Pa. 1952). Here, the
declarant’s statements did not concern the circumstances of his own death.
As such, the dying declaration exception to the hearsay rule is inapplicable.
Indeed, Washington acknowledged this fact by abandoning this claim on
appeal. See Brief of Appellant, at 15 (“[A]ppellant concede[s] that his
previous claim of the statement being a ‘Dying Declaration’ was
misplaced[.]”).
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Declarations against penal interest are admissible as an exception to
the hearsay rule only where there are existing circumstances that provide
clear assurances that such declarations are trustworthy and reliable.
Commonwealth v. Yarris, 731 A.2d 581, 591 (Pa. 1999). A statement
made by a defendant’s relative must be closely scrutinized for motive to
fabricate the confession. Padillas, 997 A.2d at 366.
Here, the circumstances surrounding the statement made by
Washington’s uncle do not provide the indicia of reliability and
trustworthiness necessary to permit its admission as a statement against
penal interest. First, the alleged declarant and the witness to the declarant’s
statement were both Washington’s relatives, which provided them with a
clear motive to fabricate an exculpatory statement. Second, the declarant
allegedly made the statement on his deathbed. As such, he would have had
little, if any, concern that he would ever be prosecuted for perjury as a
result of his recantation. In short, the evidence Washington sought to
present does not satisfy the trustworthiness requirements of Rule
804(b)(3)(B) and is, therefore, inadmissible hearsay. Because a claim based
on inadmissible hearsay does not implicate the exception to the time bar
under section 9545(b)(1)(ii), see Commonwealth v. Abu-Jamal, 941 A.2d
1263, 1269 (Pa. 2008), Washington’s petition is untimely. Accordingly, the
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PCRA court lacked jurisdiction to consider his claims3 and properly dismissed
it.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/30/2016
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3
Although the PCRA court dismissed Washington’s petition as “without
merit,” we may affirm the court’s order on any basis. Commonwealth v.
Reed, 107 A.3d 137, 144 (Pa. Super. 2014).
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