Com. v. Upshaw, M.

J-S28007-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARCUS UPSHAW
Appellant No. 888 WDA 2016
Appeal from the Order June 17, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0001280-2009
BEFORE: OLSON, MOULTON and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED MAY 23, 2017
Appellant, Marcus Upshaw, appeals from the order entered on June 17,
2016, dismissing his petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
We set forth the facts and procedural history of this case as follows.
In February 2011, a jury convicted Appellant of second-degree murder,
robbery, burglary, criminal conspiracy, and two counts each of unlawful
restraint and recklessly endangering another person. The trial court
imposed a mandatory sentence of life imprisonment for second-degree
murder, plus consecutive sentences of nine to 18 months’ imprisonment on
each count of unlawful restraint. The trial court did not impose further
penalties for the remaining convictions.
* Retired Senior Judge assigned to the Superior Court.
J-S28007-17
On October 3, 2011, after receiving nunc pro tunc reinstatement of his
appellate rights, Appellant filed a timely appeal to this Court. On October
21, 2011, Appellant petitioned this Court for remand to allow the trial court
to conduct an evidentiary hearing based on after-discovered evidence. The
after-discovered evidence consisted of letters prepared by Appellant’s
co-conspirator, Darryl Reese, that declared, similar to affidavits Reese
disavowed at trial, that police officials coerced his testimony that Appellant
participated in the instant offense. Relying on the newly-produced letters,
Appellant alleged that Reese recanted his trial testimony that Appellant was
involved in the conspiracy. We granted relief, dismissed the appeal, and
remanded for a hearing on the after-discovered evidence. The trial court
held a hearing and ultimately denied Appellant relief.
Appellant filed a direct appeal, challenging both the sufficiency of the
evidence to support his convictions and the trial court’s denial of relief on his
after-discovered evidence claim. This Court affirmed both decisions in an
unpublished memorandum decision filed on March 28, 2014. See
Commonwealth v. Upshaw, 2014 WL 10965838 (Pa. Super. 2014)
(unpublished memorandum). Within the context of the direct appeal,
Appellant challenged the sufficiency of the evidence to support his
convictions, arguing that: (1) Reese’s testimony should not be credited
since Reese obtained a reduction of charges and sentence in exchange for
his testimony and, (2) Reese signed affidavits in prison stating that he had
been forced by police to identify Appellant as one of the perpetrators, even
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though Appellant was not involved in the episodes. Id. at 9. We
determined, however, that “[t]he jury was apprised of the cooperation
agreement and the documents that Reese executed while he was in jail[,]”
but that “Reese explained that he wrote the affidavits that were exculpatory
to Appellant under duress since he feared that he or his family would be
harmed by Appellant or his friends.” Id. Regarding the after-discovered
evidence claim, Appellant presented “two letters executed by Reese after
trial in this matter [wherein] Reese, once again, claimed that Appellant was
not a participant in the criminal episode and that police coercion led to his
trial testimony to the contrary.” Id. at 10-11. However, we determined
that “when called to the stand [at the after-discovered evidence hearing],
Reese disavowed the letters and indicated that they, like the previous
affidavits [presented at trial], had been executed under duress [from
Appellant and/or his friends]” and “that his trial testimony identifying
Appellant as one of the culprits was true.” Id. We ultimately determined
that the proffered after-discovered evidence of Reese’s purported
recantation letters “were cumulative in nature to other proof already
presented to the jury” because “[b]efore trial, Reese had provided identical
statements exonerating Appellant and, then, upon appearance in the
courtroom, retracted those representations as procured under duress.” Id.
at 12. Accordingly, we affirmed Appellant’s judgment of sentence.
On August 13, 2014, Appellant filed the counseled PCRA petition
currently at issue averring, in pertinent part:
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3. As [the PCRA court] is well aware, [Appellant] twice
sough[t] a remand from the Superior Court of
Pennsylvania due to letters from Commonwealth witness
Darryl Reese in which Mr. Reese claimed to have
provided false testimony at trial in this matter.
Specifically, Mr. Reese’s letters stated that he did not
see [Appellant] at the scene of the shooting and only
identified him because he saw him at a gas station a
short time later.
4. Mr. Reese was appointed counsel and testified that he
was coerced into authoring the letter and that his trial
testimony was accurate.
5. On approximately July 26, 2014, within counsel received
the attached letter from Mr. Reese again claiming that
he testified falsely at trial and requesting the
opportunity to set the record straight. Said letter is
attached hereto and made a part hereof.
6. Mr. Reese’s letter, if true, directly contradicts both his
trial testimony and his evidentiary hearing testimony of
April, 2013.
7. Mr. Reese has demonstrated himself to be willing to lie,
whether it[’]s to lie under oath at [c]ourt proceedings or
to lie in letters to counsel. Regardless, it is imperative
[to] schedule an evidentiary hearing to explore Mr.
Reese’s claims that he lied under oath at trial and at the
April evidentiary hearing.
PCRA Petition, 8/13/2014, at ¶¶ 3-7.
On December 2, 2014, upon Appellant’s motion, the PCRA court
appointed counsel to represent Reese. On May 13, 2016, counsel for Reese
filed a verification with the PCRA court which stated as follows:
1. Undersigned counsel has spoken with Darryl Reese
multiple times between this year and last year via
telephone.
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2. Counsel has tried to get Mr. Reese to sign a [v]erification
form.
3. Mr. Reese has waived his attorney-privilege so that
counsel can speak on his behalf.
4. Mr. Reese fully agreed that he is being pressured to
recant his statement by [Appellant] and [Appellant’s]
family.
5. Mr. Reese has clearly told counsel that his trial testimony
and prior [after-discovered evidence hearing] testimony
was accurate.
6. Mr. Reese does not want to come to Pittsburgh because
of fear of retaliation.
Verification, 5/13/2016, at ¶¶ 1-6.
On May 18, 2016, the trial court entered notice of its intent to dismiss
the PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907. Appellant
filed a timely response. By order entered on June 17, 2016, the PCRA court
dismissed Appellant’s PCRA petition. This timely appeal resulted.1
On appeal, Appellant presents the following issue for our review:
Did the [PCRA] court err when it dismissed Appellant’s
[PCRA] petition alleging a claim of “after-discovered
evidence” without an evidentiary hearing where Appellant’s
claim was not “patently frivolous” and, if proven, would
entitle Appellant to relief?
Appellant’s Brief at 4.
____________________________________________
1
Appellant filed a notice of appeal on June 20, 2016. On June 22, 2016, the
PCRA court entered an order directing Appellant to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant
complied timely on August 2, 2016. The PCRA court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on December 2, 2016.
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Appellant claims that Reese’s most recent letter constitutes
exculpatory after-discovered evidence entitling him to a new trial.
Appellant claims he could not ascertain it earlier through due diligence, it
was not cumulative evidence or being used solely as impeachment, and “if
true, would certainly compel a different verdict as Mr. Reese was the only
witness to place Appellant at the [crime] scene.” Id. at 13. Appellant avers
he “is obviously constrained to concede that Mr. Reese’s recantation was
addressed in the March, 2012, evidentiary hearing where Mr. Reese recanted
his recantation on the record” and “[t]his issue was then litigated before
[this] Court[.]” Id. at 14. “Appellant, however, asserts that this [] Court
must nonetheless review Appellant’s claim to prevent a ‘miscarriage of
justice.’” Id.
We review the denial of a PCRA petition to determine whether the
record supports the PCRA court's findings and whether its order is otherwise
free of legal error. Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa.
Super. 2016) (citation omitted). “The scope of 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.
A claim that has been previously litigated is not cognizable for
collateral relief. 42 Pa.C.S.A. § 9544(a)(2). The PCRA defines a matter as
having been previously litigated when “the highest appellate court in which
the petitioner could have had review as a matter of right has ruled on the
merits of the issue.” Id. “[T]he fact that a petitioner presents a new
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argument or advances a new theory in support of a previously litigated issue
will not circumvent the previous litigation bar.” Commonwealth v. Roane,
142 A.3d 79, 94 (Pa. Super. 2016) (citations omitted).
Here, the PCRA court recognized that we addressed Appellant’s
present claim in his prior appeal. See PCRA Court Opinion, 12/2/2016, at 4.
We previously determined on direct appeal:
In this case, the [after-discovered] evidence in question
consisted of two letters executed by Reese after trial in this
matter. In those documents, Reese, once again, claimed
that Appellant was not a participant in the criminal episode
and that police coercion led to his trial testimony to the
contrary. Likewise again, when called to the stand, Reese
disavowed the letters and indicated that they, like the
previous affidavits, had been executed under duress. Reese
represented at the evidentiary hearing that his trial
testimony identifying Appellant as one of the culprits was
true.
The trial court concluded that the letters were cumulative to
the evidence presented at trial in that they were identical to
the affidavits signed by Reese and produced at trial. The
trial court also observed that Reese's testimony at the
evidentiary hearing tracked his trial testimony. It found that
the letters, as well as the affidavits produced at trial, were
written under duress. Finally, the trial court made the
following observation[:]
[The trial court] notes the ongoing and significant
efforts taken by the Commonwealth and the
Department of Corrections, at Reese's request, to
insure his safety while he serves his five to ten year
sentence of incarceration. [The trial court] also notes
that Appellant's original trial counsel withdrew on the
basis that Appellant had sent correspondence to at
least two people asking them to get witnesses to
recant statements and indicating that his attorney
had advised him to send those letters, a claim
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counsel strenuously denied. The eight letters written
by Appellant and his mother after trial to Reese
further corroborate the ongoing pressure to recant
being placed on Reese by Appellant. Reese has
consistently expressed concern about the
consequences of being a ‘snitch,’ including
references in the subject letters, and also about both
direct and indirect threats made against him as a
result of his testimony. Reese's fears for his safety
are valid and ongoing and his testimony, both at trial
and at the Post–Sentence Motion hearing, was
credible.
Trial Court Opinion, 6/29/2012, at 9–10.
It is evident that the trial court did not abuse its discretion
or commit an error of law. We concur that the letters were
cumulative in nature to other proof already presented to the
jury. Before trial, Reese had provided identical statements
exonerating Appellant and then, upon appearance in the
courtroom, retracted those representations as procured
under duress. Hence, Appellant is not entitled to a new trial
based upon after-discovered evidence.
Upshaw, 2014 WL 10965838 at *6.
Here, we discern no abuse of discretion or error of law in denying
Appellant’s PCRA petition. Reese has thrice attempted to recant his
identification of Appellant as a co-conspirator, each time subsequently
disavowing those recantations. Despite the fact that Reese offered a “new”
letter of recantation, Appellant does not argue that Reese’s most recent
recantation somehow differed from his prior retractions. In fact, upon
review, Reese’s most recent affidavit contains the same substance as his
previous after-discovered claim. Moreover, counsel for Reese submitted a
verification that Reese would disavow the statements made in the most
recent affidavit and that his trial testimony was accurate. Appellant does not
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assail this affirmation. We have already determined that Appellant was not
entitled to relief on the same purported after-discovered evidence. See id.
Hence, we conclude Appellant has previously litigated his current claim
under Section 9544(a)(2). Accordingly, the PCRA court properly determined
Appellant was not entitled to relief when it dismissed Appellant’s PCRA
petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/23/2017
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