Com. v. Elliot, D.

J-S18028-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DERRICK ELLIOT, :
:
Appellant : No. 1431 WDA 2017
Appeal from the PCRA Order September 12, 2017
in the Court of Common Pleas of Allegheny County,
Criminal Division at No(s): CP-02-CR-0014878-2010
BEFORE: STABILE, J., MUSMANNO, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY MUSMANNO, J.: FILED JUNE 15, 2018
Derrick Elliot (“Elliot”) appeals from the Order dismissing his first
Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”). 1
We affirm.
This Court previously summarized the factual and procedural history of
this case as follows:
On March 7, 2009, Melvin Duncan, Jr. [(“Duncan”)], Tezjuan
Taylor [(“Taylor”)], and Lamar Patrick [(“Patrick”)] drove to the
Crawford Village in McKeesport in a stolen red Honda car, and
stopped the vehicle near a basketball court. Patrick was in the
driver’s seat, Taylor was in the front passenger seat, and Duncan
was in the back seat standing up through the sunroof. Elliot was
in the nearby basketball court. When [Elliot] saw the red car, he
picked up a gun and, while walking in the parking lot adjoining the
court, began firing shots at the car. One of the bullets struck
Duncan, and he fell back into the car as Patrick drove away
quickly. [Patrick] stopped the car on a dead[-]end street, where
he and Taylor pulled Duncan out of the car and placed him on the
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1 See 42 Pa.C.S.A. §§ 9541-9546.
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ground before fleeing on foot. The City of McKeesport Police
Department later received a call reporting that a stolen car had
been located. When the police responded to the location, they
found Duncan lying beside the passenger side of the vehicle. He
was pronounced dead shortly thereafter.
Allegheny County police investigators responded to the
scene of the Crawford Village shooting. The police recovered
seven shell casings from the parking lot adjacent to the basketball
courts; testing revealed that they had all been fired from the same
gun. The police did not recover the weapon. The caliber of shell
casings found at Crawford Village was the same as the caliber of
the casing removed from Duncan’s body.
Several witnesses identified Elliot as the shooter. Jameelah
Miller [(“Miller”)], an eyewitness, told police that when the
shooting started, everyone hit the ground—except Elliot[,] who
remained standing with a gun in his hand, shooting toward the
car. Derrick Walker [(“Walker”)] told police that Elliot had
confessed to him that he had shot at the car. Patrick identified
Elliot in a photo array as someone who “jumped out at him,” and
told investigators that the shooter’s name was “Derrick.” Trial
Court Opinion, dated 9/3/14, at 6. Elliot was arrested and charged
with the aforementioned crimes.
At Elliot’s [non-jury] trial, Patrick and Walker withdrew their
prior statements made to police. Patrick testified that he had
never positively identified Elliot from the photo array as the
shooter and stated that Elliot was not the shooter. Taylor testified
that he did not see the shooter, did not know Elliot, and did not
see Elliot at the scene of the crime. Walker testified that he did
not have a conversation with [Elliot]. The [trial] court admitted
Patrick’s prior statement, as well as a video of Walker’s interview
with investigating officers in which Walker told officers that Elliot
had told him that he was the shooter. [] Miller testified in detail
about the circumstances leading up to and including the shooting.
She also stated that she did not hear gunshots coming from
anywhere else in the area and “[s]he was emphatic that there was
only one person shooting, and that the shooter was Derrick Elliot,
the Defendant.” Id. at 6-7. She also testified that threats had
been made against her prior to trial and she had been placed in a
witness protection program.
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The [trial] court found Elliot guilty of third-degree murder
and [a] firearms offense. He was subsequently sentenced to a
term of 12½ to 25 years’ incarceration for the homicide conviction
and to a consecutive term of 3½ to 7 years’ incarceration for the
firearms conviction.
Commonwealth v. Elliot, 122 A.3d 453 (Pa. Super. 2015) (unpublished
memorandum at 1-4) (footnote omitted).
This Court affirmed Elliot’s judgment of sentence, after which the
Pennsylvania Supreme Court denied allowance of appeal. See id., appeal
denied, 2016 Pa. LEXIS 730 (Pa. 2016).
On December 17, 2015, Elliot filed pro se correspondence alleging
ineffectiveness of direct appeal counsel, which the PCRA court treated as a
timely, first PCRA Petition. The PCRA court appointed Elliot PCRA counsel
(hereinafter “PCRA counsel”). PCRA counsel filed an Amended PCRA Petition
alleging that Elliot’s trial counsel was ineffective for failing to impeach the
testimony of Miller.
PCRA counsel thereafter filed a second Amended PCRA Petition.
Therein, PCRA counsel (1) attached an Affidavit (hereinafter, the “Affidavit”),
executed by Miller on April 6, 2017, wherein she recanted her identification of
Elliot as the shooter and identified another man; and (2) requested an
evidentiary hearing concerning this after-discovered evidence.
At the September 12, 2017 evidentiary hearing (hereinafter, the “PCRA
Hearing”), Miller retracted her allegations in the Affidavit, via her appointed
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counsel.2 Concerning Miller’s retraction, PCRA counsel stated as follows at the
PCRA hearing:
By way of procedural background, Your Honor, when I had [] Miller
subpoenaed for a separate PCRA proceeding raising similar -- that
she recanted a prior identification, I spoke with [] Miller[,] at
which time she told me that she had been either threatened or
intimidated into making those statements, at which time[,]
pursuant to my ethical responsibilities as an attorney[,] I
petitioned this court for the appointment of counsel for [] Miller[,]
and [counsel] was appointed to represent her.
It is my understanding[,] in a prior conversation with
[Miller’s counsel,] that [Miller] does not intend to testify and that
she would maintain that her signature or [A]ffidavit [sic] was the
product of coercion.
N.T., 9/12/17, at 4; see also id. at 5 (wherein Miller’s counsel stated that
Miller “believes the whole [A]ffidavit to recant is false and her original
testimony would be her testimony at this time.”).
At the close of the PCRA Hearing, the PCRA court entered a
Memorandum Order dismissing Elliot’s first Petition. Elliot then filed the
instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise
Statement of errors complained of on appeal.
Elliot now presents the following question for our review: “Did the
[PCRA] court err when it dismissed [Elliot’s] PCRA [P]etition alleging after-
discovered evidence[,] without placing … Miller under oath to testify relative
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2 Though Miller was present at the PCRA hearing, she never testified.
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to her [A]ffidav[]it[,] in which she recanted her identification of [Elliot?]” Brief
for Appellant at 9.
Elliot summarizes his claim as follows:
The [PCRA] court erred when it did not require [] Miller to testify
under oath relative to the … Affidavit. As the [PCRA] court noted
in its [Memorandum Order,] it placed a great deal of credibility on
[] Miller’s testimony,[3] especially when other witnesses [had]
recanted their testimony and identifications of [Elliot at trial]. The
fact that the [PCRA] court placed a great deal of weight on []
Miller’s testimony[,] combined with the fact that she authored a[n]
Affidavit recanting same[,] demonstrates that the [PCRA] court
committed reversible error when it did not require [] Miller to
testify under oath.
Id. at 12 (footnote added).4
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3 Specifically, the PCRA court addressed Elliot’s claim as follows:
[W]ith respect to [Elliot’s] after-discovered evidence claim, [Elliot]
cannot meet his burden of proving he is entitled to relief on this
claim because the Affidavit which forms the basis for the claim has
since been recanted by [Miller]. Indeed, although [Elliot]
submitted an Affidavit from [] Miller[,] wherein she purportedly
sought to recant her trial testimony, [] Miller thereafter claimed,
by way of counsel, that the statements in the Affidavit were false,
that they were not her statements, and that her signature on said
Affidavit was coerced. [] Miller further represented that she stood
by her trial testimony wherein she identified [Elliot] as the
shooter. This court presided over [Elliot’s] non-jury trial and it
found her trial testimony to be credible and worthy of belief.
Accordingly, because [] Miller has represented that the statements
made in the Affidavit were false, and that her signature on the
Affidavit was coerced, [Elliot’s] after-discovered claim is without
merit and does not warrant PCRA relief.
PCRA Court Memorandum Order, 9/12/17, at 2-3.
4 Elliot does not identify the relief he seeks.
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When reviewing an order [denying] PCRA relief, we must
determine whether the decision of the PCRA court is supported by
the evidence of record and is free of legal error. Moreover, we will
not disturb the findings of the PCRA court unless those findings
have no support in the certified record.
Commonwealth v. Rivera, 154 A.3d 370, 377 (Pa. Super. 2017) (en banc)
(citations and quotation marks omitted).
Preliminarily, we must address whether Elliot has preserved his
challenge for appellate review. It is well established that “the failure to make
a timely and specific objection before the trial court at the appropriate stage
of the proceedings will result in waiver of the issue.” Commonwealth v.
Houck, 102 A.3d 443, 451 (Pa. Super. 2014); see also Pa.R.A.P.
302(a) (providing that “[i]ssues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”); Commonwealth v. Duffy,
832 A.2d 1132, 1137 (Pa. Super. 2003) (holding claim that trial court erred
by failing to conduct an on-the-record colloquy regarding the defendant’s right
to testify was waived for failure to make a timely and specific objection at
trial).
Here, PCRA counsel never objected to Miller’s failure to testify under
oath at the PCRA Hearing, nor did he seek to cross-examine her.5
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5 Indeed, as mentioned above, PCRA counsel expressly noted at the PCRA
Hearing that Miller “did not intend to testify and that she would maintain that
her signature or [A]ffidavit [sic] was the product of coercion.” N.T., 9/12/17,
at 4.
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Consequently, Elliot has waived his sole allegation of PCRA court error on
appeal. See Houck, supra.
Accordingly, we conclude that the PCRA court properly determined that
Elliot is not entitled to collateral relief and dismissed his first PCRA Petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/15/2018
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