Com. v. Jones, L.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LAVAR JONES :
:
Appellant : No. 322 EDA 2022
Appeal from the Order Entered January 14, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0505781-1998
BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.
MEMORANDUM BY McCAFFERY, J.: FILED JULY 5, 2023
Lavar Jones1 (Appellant) appeals from the January 14, 2022, order
entered in the Philadelphia County Court of Common Pleas, dismissing his
serial petition filed pursuant to the Post Conviction Relief Act (PCRA).2 He
seeks relief from the 2001 judgment of sentence imposed following a jury
conviction of second-degree murder, robbery, aggravated assault, possession
of an instrument of crime (PIC), and criminal conspiracy3 for the April 1998
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1 Appellant’s brief, and the court opinion filed below, spell Appellant’s first
name as “Levar.” However, his name appears on the caption for this appeal,
the certified docket, and prior court proceedings as “Lavar.” Therefore, we
will use the latter spelling.
2 42 Pa.C.S. §§ 9541-9546.
3 See 18 Pa.C.S. §§ 2502(b), 3701(a)(1), 2702(a)(1), 907, & 903,
respectively.
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shooting death of Anita Kirby. Appellant contends the PCRA court erred in
dismissing his petition because he properly invoked the newly-discovered fact
exception to the timeliness requirement. See 42 Pa.C.S. § 9545(b)(1)(ii).
For the reasons below, we affirm.
The PCRA court set forth the underlying factual history as follows:
Appellant suggested to his friend, Donyel Jones, that they
“take down” Frank & Nate’s Variety Store, a small grocery store
directly across the street from Appellant’s house in the city and
county of Philadelphia, Pennsylvania. Co-conspirator Jones
responded that he “had been thinking the same thing.” About a
week later they carried out their plan.
On April 23, 1998, they entered the store with guns drawn
and the hoods of their sweatshirts tightly closed around their
faces. They told a group of children to get out. The children
included Vernicha Holt (age 12), her cousin Johnny (age 6),
Jennifer Davis (age 14), and Christina Lewis (age 9). As the
children ran out of the door, co-conspirator Donyel Jones
approached the cashier, Anita Kirby and demanded money while
Appellant stood in the back of the store.
Ms. Kirby filled a plastic bag with money from the register,
approximately $250. During this time, the store owner, Luther
Frank Rucker, emerged from an ice box in the rear of the store.
Appellant, who had known the elderly shopkeeper since childhood,
pointed his gun at Mr. Rucker and ordered him to get down.
Mr. Rucker recognized Appellant from a two-and-one-half
inch opening around his eyes and his long, thin build and
addressed Appellant by name saying, “Lavar.” Appellant told Mr.
Rucker to get down again. At that point, co-conspirator Jones
spun and pointed his gun at Mr. Rucker, but Appellant told him
not to shoot Mr. Rucker.
Jones then turned back to Ms. Kirby and lowered his gun
toward the counter. In that moment, Jones shot Ms. Kirby. She
collapsed immediately and later died. After he shot Ms. Kirby,
Jones collected the bag of money and fled the store with Appellant.
As soon as they were out the door, Mr. Rucker exclaimed, “That
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was Lavar!” Mr. Rucker’s statement and the entire interaction was
recorded on a store surveillance camera.
That night[,] Appellant was arrested based on the videotape
of the crime and Mr. Rucker’s identification. During an interview,
Appellant attempted to place most of the blame on his
coconspirator, Jones, but Appellant admitted that he initially
suggested the plan and agreed to act as a lookout during the
robbery, and he fled with Jones after the shooting. After
Appellant’s taped confession, police searched his home and
recovered a blue Nautica baseball cap, a blue sleeveless vest,
white long-sleeve sweatshirt, and a pair of Timberland boots,
corroborating what Appellant said he was wearing and where he
placed the clothing in his home.
PCRA Ct. Op., 7/13/22, at 1-2.
On November 21, 2000, at the conclusion of a jury trial, the jury found
Appellant guilty of second-degree murder, robbery, aggravated assault, PIC,
and criminal conspiracy. On January 25, 2001, the trial court sentenced
Appellant to life imprisonment for the murder conviction. As for the remaining
crimes, the court imposed the following sentences: (1) a concurrent term of
ten years to 20 years for the robbery conviction; (2) a concurrent term of ten
years to 20 years for the aggravated assault conviction; (3) a concurrent term
of 30 months to 60 months for the PIC conviction; and (4) a term of ten to 20
years for the conspiracy conviction, to run consecutively to the robbery
charge.
The details of the ensuing convoluted procedural history have been set
forth in prior memoranda and are not relevant to the issue in this appeal. See
Commonwealth v. Jones, 2719 EDA 2009 (Pa. Super. March 17, 2011)
(unpub. memo.); Commonwealth v. Jones, No. 2944 EDA 2007 (Pa. Super.
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filed May 13, 2009); Commonwealth v. Jones, 2624 EDA 2002 (Pa. Super.
Oct. 29, 2003) (unpub. memo.); see also PCRA Ct. Op., 1/20/10; PCRA Ct.
Op., 10/24/08; PCRA Ct. Op., 12/19/07.
We summarize that this Court affirmed Appellant’s judgment on
sentence on October 29, 2003. See Jones, 2624 EDA 2002 (Pa. Super. Oct.
29, 2003) (unpub. memo.). Appellant did not file a petition for allowance of
appeal with the Pennsylvania Supreme Court.
More recently, Appellant filed a pro se petition for writ of habeas corpus
on February 16, 2018, alleging the trial court erred in admitting testimony of
certain witnesses who identified Appellant based on the sound of his voice and
in instructing the jury regarding this evidence. See Appellant’s Writ of Habeas
Corpus/Memorandum of Law to Support Substantial Constitutional Claims,
2/16/18, at 13-14. He also claimed trial counsel was ineffective for failing to
object to these instructions. Id.
The PCRA court treated Appellant’s petition as a serial PCRA petition4
and issued a Pa.R.Crim.P. 907(a) notice of intent to dismiss without a hearing,
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4 Appellant previously filed a PCRA petition in 2004, but ultimately was
unsuccessful in receiving any relief. See Commonwealth v. Jones, 2719
EDA 2009 (Pa. Super. March 17, 2011) (unpub. memo.).
See also Commonwealth v. Hromek, 232 A.3d 881, 884 (Pa. Super.
2020) (stating that the PCRA generally “encompasses all other common law
and statutory remedies . . . including habeas corpus. . . .”) (italics added;
citation omitted); Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super.
2013) (concluding “a defendant cannot escape the PCRA time-bar by titling
(Footnote Continued Next Page)
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stating that it reviewed Appellant’s claims and it lacked jurisdiction to review
the matter because the petition was untimely, and his claims failed to satisfy
any of the exceptions to the timeliness requirements of the PCRA. See Notice
Pursuant to Pennsylvania Rule of Criminal Procedure 907, 7/11/18, at 5.
Appellant did not file a response to the court’s Rule 907 notice. On December
7, 2018, the PCRA court dismissed the petition as untimely.
During this time, Appellant retained private counsel, Teri B. Himebaugh,
Esquire,5 who subsequently filed a document, titled “Petitioner’s Amended
Motion for Post Conviction Relief,” on March 30, 2021. In this petition,
Appellant raised a claim of “newly discovered evidence” in the form of a
December 2, 2020, affidavit from one of the Commonwealth trial witnesses,
Vernicha Holt, who was 12 years old at the time of his trial.6 Appellant’s
Amended Motion for Post Conviction Relief, 3/30/21, at 8.
Appellant alleged that in April of 2020, Holt saw a photograph of
Appellant that his cousin had posted on social media “with the caption, ‘Free
my cousin L[a]var Jones[.’]” See Appellant’s Amended Motion for Post
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his petition or motion as a writ of habeas corpus”) (footnote omitted);
Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa. Super. 2001) (the
PCRA is “the exclusive vehicle for obtaining post-conviction collateral relief . . .
regardless of the manner in which the petition is titled.”) (citation omitted).
5 Notably, Attorney Himebaugh entered their appearance in July of 2018.
6 Appellant attached Holt’s affidavit to his motion.
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Conviction Relief at 11. Holt apparently “commented that it was a shock to
see a picture of [Appellant] and that it [should not] have happened (i.e. he
[should not] have been convicted).” Id. Appellant’s cousin then asked Holt
if she would be willing to speak with an investigator retained by Appellant’s
family, to which Holt agreed. Holt spoke with the investigator twice — once
in May of 2020, and then in December of 2020, which is when her statement
was taken. Id. at 8.
In her affidavit, Holt averred that when detectives first questioned her,
she told them the truth — that she could not remember who the perpetrators
were and what they were wearing. See Appellant’s Amended Motion for Post
Conviction Relief at 6. She said she lied and changed her story based on the
detectives’ mannerisms, which she believed were leading her to identify a
certain individual. Id. Holt alleged they offered her money if the perpetrators
were convicted. Id. Moreover, she stated that during Appellant’s trial, she
and two other witnesses, Jennifer Davis and Luther Frank Rucker, were
coached by a detective and an assistant district attorney regarding their
testimony. Id. at 7. She indicated that they again offered her money if she
testified and Appellant was convicted, but she never received any money. Id.
Appellant argued that he “had no reason however to think that a key
Commonwealth witness had been coached, threatened, coerced and bribed
into testifying to facts which were not based on the witnesses’ recollection.”
Appellant’s Amended Motion for Post Conviction Relief at 10. Further, he
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stated that his “counsel had no reason to suspect at the time of trial that the
detectives and prosecutor . . . would intentionally coerce and fabricate
evidence from these witnesses[, or] that a witness had been bribed to
embellish her testimony in order to help achieve [Appellant]’s conviction.” Id.
at 13. Lastly, he alleged that this evidence was “highly relevant and material.”
Id. at 14. He stated that if he had known about it, he “could have filed a pre-
trial motion to suppress the statements taken from [the] three eyewitnesses”
on the basis that this tainted testimony was insufficiently reliable and violated
his constitutional due process rights. Id. at 14-15.
The Commonwealth filed a response to Appellant’s petition on May 27,
2021, asserting that Holt’s trial testimony “was inconsequential, because she
did not identify [Appellant] or his co-conspirator. Accordingly, even if
believed, her affidavit claiming that she was ‘coached’ into testifying to ‘what
[detectives] wanted [her] to say’ does not help [Appellant] because Ms. Holt
did not identify [Appellant] at any time.” Commonwealth’s Letter Response
to Appellant’s PCRA Petition, 5/27/21, at 1 (emphasis omitted).
The PCRA court7 treated Appellant’s petition as another PCRA petition
and issued a Rule 907 notice. The court specifically found:
Holt’s trial testimony described the crime but did not implicate
[Appellant]. There was video evidence and also testimony by the
owner of the store who recognized [Appellant]’s voice among
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7The matter “was administratively reassigned” to a new PCRA judge. See
PCRA Ct. Op., 7/13/22, at 3 n.3.
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other things. [Holt’s] allegations now that she was allegedly
threatened to provide non-inculpatory testimony is not the sort of
evidence that qualifies as after-discovered evidence.
Notice of Court’s Intent to Dismiss Without Hearing Appellant’s Petition for
Post-Conviction Relief Pursuant to Pa.R.Crim.P. 907 (PCRA Ct.’s Rule 907
Notice), 12/15/21, at 2 (unpaginated). Appellant did not file a response to
the court’s Rule 907 notice. On January 14, 2022, the court dismissed
Appellant’s PCRA petition. This timely appeal followed.8
Appellant raises the following issue for our review:
Did the PCRA [c]ourt err when it found, without a hearing, that
Appellant’s newly/after discovered evidence claim relating to
Vernicha Holt was not of a type to be considered [“]newly/after
discovered[”] evidence, lacked merit and/or otherwise failed to
state a claim upon which PCRA relief could be granted?
Appellant’s Brief at 2.9
Appellant first alleges that the PCRA court “did not advise” in its Rule
907 notice that “the petition was untimely.” Appellant’s Brief at 12 (emphasis
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8Appellant complied with the PCRA court’s directive to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. The court issued a
Pa.R.A.P. 1925(a) opinion on July 13, 2022.
9 In his question presented, Appellant appears to conflate the concepts of
newly discovered evidence and after-discovered evidence. As will be
discussed below, it is for the PCRA court to: (1) first determine whether his
claim involving newly discovered evidence satisfies an exception to the PCRA
time bar; and if so, (2) then shall reach the merits of the substantive claim
concerning after-discovered evidence. See Commonwealth v. Williams,
244 A.3d 1281, 1289 n.20 (Pa. Super. 2021).
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omitted). He states that the court’s “basis for dismissing the petition was
based solely on ostensible lack of merit.” Id.Additionally, Appellant claims the PCRA court erred by dismissing his
petition because Holt’s 2020 statement, in which Holt averred she was
recanting her 2000 trial testimony because it had purportedly been coerced,
falls under the newly-discovered fact exception to the PCRA time-bar. See
Appellant’s Brief at 9-12, 13. Appellant states that his case is factually akin
to Commonwealth v. Medina, 92 A.3d 1210 (Pa. Super. 2014) (en banc),
where a panel of this Court concluded that a witness’s recantation of her trial
testimony and disclosure of detectives threatening her into testifying
constituted a newly-discovered fact. See Appellant’s Brief at 14.
Appellant repeats most of his argument in his PCRA petition, arguing
that he has been diligently seeking relief since his judgment of sentence, and
he “had no reason however to think that a key Commonwealth witness had
been coached, threatened, coerced and bribed into testifying to facts which
were not based on the witnesses’ recollection.” Appellant’s Brief at 18.
Appellant further alleges that counsel would have no reason to suspect
fabrication and cross-examine the witnesses and detectives about this alleged
misconduct. Id. at 23. Appellant maintains the evidence at issue can be used
“to impeach the credibility of the Commonwealth witnesses[ ] and the integrity
of the entire police investigation[.]” Id. at 20. He also contends Holt’s
statement demonstrates she fabricated her testimony, and fellow witness,
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Davis, “lied when she testified that she recognized [Appellant]’s voice.” Id.
at 21. Appellant alleges that another Commonwealth witness, Rucker, was
also coached and provided fabricated testimony. Id. Appellant asserts that
as such, the evidence at issue “is not cumulative of any evidence presented
by the defense” at trial. Id. at 22. Lastly, he again states counsel “could
have filed a pre-trial motion to suppress the statements taken from [the] three
eyewitnesses” on the basis that this tainted testimony was insufficiently
reliable and violated his constitutional due process rights. Id. at 24-25.
In reviewing an order denying or dismissing a PCRA petition, our
standard of review “is limited to examining whether the PCRA court’s
determination is supported by the evidence of record and whether it is free of
legal error.” Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa.
Super. 2019) (citation omitted).
Pursuant to Rule 907, a PCRA court has discretion to dismiss a
PCRA petition without a hearing if the court is satisfied that there
are no genuine issues concerning any material fact; that the
defendant is not entitled to post-conviction collateral relief; and
that no legitimate purpose would be served by further
proceedings.
Commonwealth v. Brown, 161 A.3d 960, 964 (Pa. Super. 2017) (citations
omitted).
Here, while the PCRA court did not specifically find that Appellant’s
petition was untimely filed in its Rule 907 notice, it did make such a
determination in its Rule 1925(a) opinion. See PCRA Ct. Op., 7/13/22, at 4
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(stating “Appellant’s current PCRA petition is untimely filed. . . .”).10
Therefore, before reaching the merits of Appellant’s claim, we must determine
whether this appeal is properly before us.
The timeliness of a PCRA petition is a jurisdictional requisite.
[T]he PCRA time limitations implicate our jurisdiction and may not
be altered or disregarded in order to address the merits of the
petition. In other words, Pennsylvania law makes clear no court
has jurisdiction to hear an untimely PCRA petition. The PCRA
requires a petition, including a second or subsequent petition, to
be filed within one year of the date the underlying judgment
becomes final. A judgment of sentence is final at the conclusion
of direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of
Pennsylvania, or at the expiration of time for seeking review.
Commonwealth v. Ballance, 203 A.3d 1027, 1031 (Pa. Super. 2019)
(citations, quotation marks, & emphasis omitted); see also 42 Pa.C.S. §
9545(b)(1), (3).
As mentioned above, on October 29, 2003, a panel of this Court affirmed
Appellant’s judgment of sentence. Therefore, Appellant’s judgment of
sentence became final on Friday, November 28, 2003, when the 30-day period
for filing a petition for allowance of appeal expired. See 42 Pa.C.S. §
9545(b)(3) (judgment is final at conclusion of direct review, or at the
expiration of time for seeking review); Pa.R.A.P. 1113(a) (petition for
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10Moreover, we note that one can reasonably infer the PCRA court deemed
Appellant’s 2021 petition as untimely filed when it issued the Rule 907 notice
because it had previously concluded that Appellant’s 2018 petition was
untimely filed.
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allowance of appeal must be filed within 30 days of entry of Superior Court
decision). Appellant had one year from that date — or until November 29,
200411 — to file a timely PCRA petition. See 42 Pa.C.S. § 9545(b)(1) (PCRA
petition must be filed within one year of date judgment of sentence is final).
He filed the present petition on March 30, 2021 — approximately 16 years
later — and as such, it is facially untimely.
The PCRA, however, allows a defendant to file a petition after this period
when they plead and prove the following relevant timeliness exception:
(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
42 Pa.C.S. § 9545(b)(1)(ii). Furthermore, a petition pleading any of the above
exceptions must be filed within one year of the date the claim could have been
presented.12 42 Pa.C.S. § 9545(b)(2). It is the petitioner’s “burden to allege
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11 The one year mark, November 28, 2004, fell on a Sunday; therefore,
Appellant had until Monday, November 29th to file a timely notice of appeal.
See 1 Pa.C.S. § 1908 (for purposes of computing time, when last day of period
falls on a weekend or legal holiday, such day is omitted from computation).
12 Until 2018, Section 9545(b)(2) required a petitioner to invoke a timeliness
exception within 60 days. However, in 2018, the time period was extended
to one year. 42 Pa.C.S. § 9545(b)(2); Act of October 24, 2018, P.L. 894, No.
146, § 2. The Act amending Section 9545(b)(2) provides that the one-year
period applies only to timeliness exception claims arising on or after December
24, 2017. Act of October 24, 2018, P.L. 894, No. 146, § 3. Appellant alleges
his claim arose in 2020, when Holt made her statement. Therefore, the
amendment governs the present matter.
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and prove that one of the timeliness exceptions applies.” Commonwealth
v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008).
“Due diligence demands that the petitioner take reasonable steps to
protect his own interests. A petitioner must explain why he could not have
learned the new fact(s) earlier with the exercise of due diligence. This rule is
strictly enforced.” Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super.
2015) (citations omitted). Additionally, the Pennsylvania Supreme Court
previously explained that “[t]he focus of the [Section 9545(b)(1)(ii)]
exception is on [the] newly discovered facts, not on a newly discovered or
newly willing source for previously known facts.” Commonwealth v.
Marshall, 947 A.2d 714, 720 (Pa. 2008) (citation, quotation marks, &
emphasis omitted).
Here, Appellant attempts to satisfy the newly-discovered fact exception
by relying on Holt’s 2020 affidavit. In denying his claim, the PCRA court found
the following:
Appellant attaches an affidavit from Holt recanting her
testimony at trial, saying that she told the truth when she was
first questioned by the detectives and that her testimony at trial
was coerced. . . . She first spoke to the private investigator in
May 2020, and she gave a verified statement on December 2,
2020. The PCRA petition was filed on March 30, 2021, thereby
filing the petition within one year of learning of the “new
evidence.”
In her affidavit, Holt states that during the interview with
detectives, a detective said that one of the guys had a gray and
blue hoodie and was six feet tall. Holt claims that when her aunt
stepped out of the interview room, Detectives threatened to lock
her up and take her away from her family if she didn’t say what
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they wanted her to. When asked if she was offered anything she
claims, “basically money.” Holt also claims that other
Commonwealth witnesses during the trial were coached, although
there are no statements from those witnesses.
The information in Holt’s affidavit fails to invoke the new fact
exception to the timeliness requirements of the PCRA. Holt did
not identify Appellant or his co-conspirator, Jones, in her
statement to detectives or at trial. Holt was cross-examined about
the inconsistencies in her testimony and statement to detectives
at trial. Holt states that she lied but does not say what she
lied about. It is unclear therefore what the new fact is or how
this new fact would have changed the outcome of the trial had it
been known at the time. Holt’s affidavit contains nothing new
as she never identified Appellant, and her overall testimony
was inconsequential.
Appellant also claims Holt’s affidavit would undermine the
statements and testimony of the other Commonwealth witnesses;
however, this claim is without merit as there are no affidavits from
those witnesses or any indication that their statements were
untruthful. Thus, Appellant has failed to invoke an exception to
the timeliness requirements of the PCRA.
PCRA Ct. Op., 7/13/22, at 5-6 (emphases added).
The Pennsylvania Supreme Court previously noted the following
regarding recantation testimony:
We acknowledge that, as a general matter, recantation evidence
is notoriously unreliable, particularly where the witness claims to
have committed perjury. This Court has also emphasized,
however, that, even as to recantations that might otherwise
appear dubious, the PCRA court must, in the first instance, assess
the credibility and significance of the recantation in light of the
evidence as a whole.
Commonwealth v. D'Amato, 856 A.2d 806, 825 (Pa. 2004) (citations and
quotation marks omitted).
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Notably, the Commonwealth acknowledges that Holt’s statement “may
be sufficient” to meet the newly-discovered fact exception to the time bar.
See Commonwealth’s Brief at 8. Moreover, the Commonwealth stated:
Holt testified at [Appellant]’s trial but was not able to identify him.
She did testify about the events of the robbery and the description
of the robbers’ clothes and heights. If the factual assertions
[Appellant] presented in his petition regarding his discovery of the
witness’s recantation are true, it appears that he may have met
the newly-discovered-facts exception to the PCRA’s one-year filing
deadline.
Id. at 10 (record citation omitted).
In Medina, which Appellant relies on, a panel of this Court found that
two child key witness’s recantation testimony met the newly-discovered fact
exception where a detective had threatened one of the Commonwealth’s
witnesses, causing one child witness to lie. See Medina, 92 A.3d at 1216-
17. The Court also explained that the defendant had no way of discovering
this evidence through the exercise of due diligence, stating:
[The child witness] testified consistently and unequivocally at trial
that [the defendant] wielded a knife shortly before the murder and
stated that he was going to kill someone. As such, it was highly
unlikely that defense counsel, without any supporting factual
basis, could have compelled [the witness] to change his testimony
during cross-examination, by engaging in a fishing expedition as
to why [the witness] was lying. Therefore, we conclude that [the
defendant] could not have discovered the source of [the witness’s]
recantation, or the recantation itself, through the exercise of due
diligence[.]
Id. at 1217-18 (citation omitted).
At trial, and as summarized by the PCRA court, Holt testified to the
following:
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[S]he was inside the store when she witnessed two men enter the
store each with a gun. One, she stated had a gray hoodie on. She
did not pay attention to the other. When she left the store she
saw a man at the corner and heard [the] man yelling “grab her;
grab her[.”] She turned the corner and r[a]n, then heard a
gunshot. She testified she was unable to tell detectives anything
else about the two men involved in the robbery and subsequent
murder.
PCRA Ct.’s Rule 907 Notice at 1-2 (unpaginated; some capitalization omitted).
In Holt’s December 2020 affidavit, she recanted her trial testimony and, for
the first time, stated that the detectives and assistant district attorney
coached and threatened her as well as offered her money if the defendants
were convicted. We discern that there is nothing in the record to suggest that
Appellant could have learned of Holt’s recantation statement before December
of 2020. Accordingly, despite the PCRA court’s finding to the contrary, it
appears that Appellant may have satisfied the PCRA’s timeliness exception for
newly discovered facts under 42 Pa.C.S. § 9545(b)(1)(ii).13, 14
Nevertheless, our review does not end there. “Once jurisdiction has
been properly invoked (by establishing either that the petition was filed within
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13To the extent that Appellant raises claims that two other witnesses, Davis
and Rucker, were coached and fabricated their testimony, we reject his
assertion. Appellant failed to include these affidavits or statements in his
petition; therefore, we have nothing to review.
14We reiterate that the newly-discovered evidence exception is a jurisdictional
threshold and does not require a merits analysis. See Williams, 244 A.3d at
1289 n.20. “Section 9545(b)(1)(ii) requires a petitioner to allege and prove
that there were facts unknown to him and that he exercised due diligence in
discovering those facts.” Brown, 111 A.3d at 176.
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one year of the date judgment became final or by establishing one of the three
exceptions to the PCRA’s time-bar), the relevant inquiry becomes whether the
claim is cognizable under the PCRA.” Commonwealth v. Cox, 146 A.3d 221,
227-28 (Pa. 2016). Subsection 9543(a)(2)
delineates seven classes of allegations that are eligible for relief
under the PCRA. Of relevance here is the “after-discovered
evidence” provision, which states that a claim alleging “the
unavailability at the time of trial of exculpatory evidence that has
subsequently become available and would have changed the
outcome of the trial if it had been introduced” is cognizable under
the PCRA. To establish such a claim, a petitioner must prove that
“(1) the evidence has been discovered after trial and it could not
have been obtained at or prior to trial through reasonable
diligence; (2) the evidence is not cumulative; (3) it is not being
used solely to impeach credibility; and (4) it would likely compel
a different verdict.”
Cox, 146 A.3d at 228 (citations omitted). “In making that determination, a
court should consider the integrity of the alleged after-discovered evidence,
the motive of those offering the evidence, and the overall strength of the
evidence supporting the conviction.” Commonwealth v. Padillas, 997 A.2d
356, 365 (Pa. Super. 2010).
Here, the PCRA court provided an alternate conclusion, finding that
Appellant’s petition was without merit:
Appellant would not be able to demonstrate that this
affidavit would likely result in a different verdict. At trial, the
Commonwealth presented Appellant’s detailed and corroborated
confession, eyewitness identification testimony from Mr. Rucker,
and voice identification testimony from witness Jennifer Davis,
one of the children from the neighborhood that Appellant ordered
out of the store. Child witness Davis was recalled by the
Commonwealth because she testified during her initial cross-
examination that she recognized the voice of one of the men in
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the store, which contradicted her statement to detectives. The
Commonwealth recalled Ms. Davis the following day where she
explained that she did not identify Appellant’s voice because she
did not pay attention to it and did not think it was Appellant in the
store. Ms. Davis testified that when she viewed the video tape
the day prior to testifying, she was able to recognize Appellant’s
voice, but did not tell anyone immediately. She testified that the
first person she told was her mother as they were both seated in
the detective’s car just after she testified the day prior. Ms. Davis
testified that she was scared to testify in the first place, so she
“wasn’t really trying to say anything[.”]
At trial, Holt testified that she could not identify who the two
robbers were other than that one of the men was dark-skinned
and that he had a gray hoodie on. She did not pay attention to
the other man. Holt was cross-examined regarding the
discrepancies in her first statement to detectives, which she now
claims was true, and her trial testimony, which she now claims
was coerced. Holt’s testimony was not crucial to the case [—] she
did not identify the robbers, nor did she see the shooting. It is
very unlikely that this recantation would likely change the
outcome of the verdict. Thus, this claim lacks merit.
PCRA Ct. Op., 7/13/22, at 7.
We agree with the PCRA court’s conclusion that Holt’s affidavit does not
warrant any substantive relief because this evidence would not have resulted
in a different verdict where Holt never identified Appellant in her statement or
at trial. Holt merely testified about the robbery and the description of the
perpetrators’ clothing and heights. At Appellant’s trial, the Commonwealth
presented identification testimony from Davis and Rucker but also, and
importantly, video surveillance footage of the entire incident as well as
Appellant’s taped confession, in which he admitted that he suggested the
robbery plan, agreed to act as lookout, and fled with his companion following
the shooting. See PCRA Ct. Op., 7/13/22, at 2. It is unlikely that Holt’s
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affidavit recanting her testimony concerning the perpetrators’ clothing and
heights would have affected the outcome of the trial in light of the fact that
the jury observed the video footage depicting the robbery and offenders.
Therefore, even if Appellant overcame the PCRA’s timeliness requirement, his
after-discovered evidence claim would not warrant any relief. For these
reasons, we affirm the PCRA court’s order dismissing Appellant’s petition.15
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/5/2023
____________________________________________
15 It is well-settled that we may affirm on any basis. See Commonwealth
v. Clouser, 998 A.2d 656, 661 n.3 (Pa. Super. 2010).
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