J-S54043-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    THOMAS JAMES BLACK                         :
                                               :
                       Appellant               :   No. 533 WDA 2018

                   Appeal from the PCRA Order April 30, 2018
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                            CP-25-CR-0001125-2012


BEFORE: PANELLA, J., LAZARUS, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.:                           FILED SEPTEMBER 20, 2018

        Thomas James Black (Appellant) appeals pro se from the order denying

as untimely his second petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541–9546. We affirm.

        The Commonwealth charged Appellant with shooting Yolanda Black, his

ex-wife (the victim).1 The case proceeded to a jury trial on September 17,

2012.    The victim testified that she went for a ride in Appellant’s vehicle

because he told her that he would get cash to give her for spousal support.

N.T. Trial Day 1, 9/17/12, at 34-36. While Appellant was driving, he told the

victim that he would give her money but asked her to write a receipt stating

that he gave her $4,000 or $4,500.             Id. at 39.   The victim refused and

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1At the time of the incident and at trial, Appellant and the victim’s divorce
was pending.
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Appellant became irritated and started screaming. Id. The victim asked to

get out of the car, but Appellant brandished a gun and pointed it at her head.

Id. at 40-42. The victim believed Appellant was going to kill her and thus

opened the car door with the intention of jumping out. Id. at 42-43. Appellant

sped up, and as the victim “started jumping out of the vehicle[, ] he started

shooting” and said “B—tch, I kill you, I’m not playing with you now.” Id. The

victim did not remember anything else until waking up inside Appellant’s car

in a wooded area. Id. at 44. The victim repeatedly asked Appellant to take

her to the hospital, and ultimately he agreed.       Id. at 45-46.   The victim

suffered a gunshot wound to the chest, a concussion, an ankle fracture, and

a pelvic fracture. N.T. Trial Day 2, 9/18/12, at 4-5. On cross-examination,

the victim denied that she brought the gun along on the drive with Appellant.

N.T. Trial Day 1, 9/17/12, at 58.

      Appellant did not testify, but presented his mother and sister as

witnesses.    They testified about Appellant and the victim’s unhappy

relationship and the victim’s attempt to obtain various items in their division

of the marital estate.

      Appellant   also   elicited   testimony   on   his   cross-examination   of

investigating detective Dennis Oborski. Detective Oborski testified that after

the shooting, Appellant said that the victim called Appellant and demanded

money; while Appellant and the victim were driving, they had a “little dispute”

and Appellant opened the car door and told the victim to get out; the victim


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pulled a gun from her purse, and Appellant grabbed the gun and the gun went

off. Id. at 114.

        The jury found Appellant guilty of aggravated assault, possession of a

firearm by a prohibited person, possession of an instrument of crime, unlawful

restraint, recklessly endangering another person, and attempted homicide.

On November 26, 2012, the trial court sentenced Appellant to an aggregate

term of 25 to 50 years’ imprisonment. Appellant filed a timely post-sentence

motion, which was denied on December 7, 2012.           He did not file a direct

appeal.

        On January 1, 2014, Appellant filed a counseled, timely, first PCRA

petition, citing exculpatory after-discovered evidence2 in the form of affidavits

by two inmates who were incarcerated with him.          Pertinently, one of the

affiants claimed that that he was following Appellant’s vehicle when the

incident occurred and saw the victim point a gun at Appellant, get shot in the

back, and fall out of the vehicle. The PCRA court denied relief, finding, inter

alia, that the affidavit was not exculpatory, but merely corroborative of

Appellant’s trial theory that he acted in self-defense. Appellant appealed, this

Court affirmed, and our Supreme Court denied Appellant’s petition for




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2   See 42 Pa.C.S.A. § 9543(a)(2)(vi).




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allowance of appeal.3           Commonwealth v. Black, 1086 WDA 2015

(unpublished memorandum) (Pa. Super. Jul. 19, 2016), appeal denied, 319

WAL 2016 (Jan. 4, 2017).

       On December 8, 2017, Appellant filed the instant pro se PCRA petition,

alleging that he obtained an affidavit from “Demarsje Henderson,” which was

notarized on November 3, 2017.            The affiant stated that he was a young

teenager when the shooting occurred, and that now as an adult, he wished to

state that he observed the victim point a gun at Appellant, and the gun

discharged while Appellant and the victim struggled. Also, Appellant attached

what appears to be an affidavit of probable cause for a search warrant for

Appellant’s car.     This affidavit of probable cause stated that police officers

interviewed Demarsje Henderson at the scene.              Mr. Henderson merely

reported that a black female jumped from a vehicle, laid on the ground, and

asked for help; a black male exited the vehicle; and Mr. Henderson assisted

the black male in placing the female back into the vehicle.4

       On March 26, 2018, the PCRA court issued Pa.R.Crim.P. 907 notice of



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3  Appellant, who was represented by private counsel before the PCRA court,
filed a pro se notice of appeal and pro se appellate brief. Initially, this Court
remanded for a determination of whether counsel was permitted to withdraw.
Commonwealth v. Black, 715 WDA 2014 (unpublished memorandum) (Pa.
Super. Mar. 9, 2015). On remand, the PCRA court permitted counsel to
withdraw and appointed new counsel to represent Appellant.

4Appellant attached additional affidavits from other individuals. However, he
makes no reference to these other affidavits on appeal.

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intent to dismiss the petition without a hearing.      Appellant filed a pro se

response.   On April 30, 2018, the court dismissed Appellant’s petition as

untimely filed, finding inter alia, that Appellant failed to show that the new

evidence was unknown to him, that he exercised due diligence in obtaining it,

and that in any event, it was merely cumulative of evidence already adduced

at trial and would be used to attack the victim’s credibility. PCRA Court Order,

4/30/18.    Appellant filed this timely appeal.      The court did not order

compliance with Pa.R.A.P. 1925.

      Appellant states his four issues as follows:

      1.     Was the Trial Court in error to claim, with respect moreso to
      the eyewitness of the offense[s]; that corroborates . . . Appellant’s
      testimony to police years prior to Appellant’s obtaining a
      statement from the under-aged witness whom is now 21 yrs. old,
      that such evidence is waived for failure to raise them in a timely
      petition, when such evidence proves Appellant is innocent of the
      crimes in question and is not used to impeach the credibility of the
      victim moreso than to be used to corroborate Appellant’s
      testimony to police? [sic]

      2.     Was the Commonwealth in error to demand that the petition
      be dismissed as untimely, despite the fact the Commonwealth
      made reference to the exceptions of both government official
      interference of a claim that the Commonwealth refused to take
      the necessary steps, as defense counsel had, to obtain the under-
      aged eyewitness’s testimony, that should have been obtained
      seeing it was part of the police’s investigation which notes that
      the witness was questioned but such testimony was not
      introduced; that could not have been ascertained by the Appellant
      himself [until years letter], and had it been the outcome of
      Appellant’s convictions would have resulted to an acquittal? [sic]

      3.    Was it not the Commonwealth’s responsibility, moreso than
      defense counsel’s, to obtain the eyewitness’s testimony after
      discussing it with the police/detective[s] whom knew what the
      testimony supported in favor of Appellant’s innocence; seeing

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      such testimony corroborated Appellant’s testimony to police, and
      that by not doing so prejudice the outcome of Appellant’s
      discovery rights to prove the alleged victim had committed perjury
      to authorities? [sic]

      4.    Was the Trial Court in error to dismiss Appellant’s PCRA
      without a hearing, without first allowing the eyewitness to testify
      on behalf of Appellant’s innocence; that corroborates Appellant’s
      testimony to police, and the Commonwealth lacked corroborating
      evidence to substantiate the alleged victim’s testimony? [sic]

Appellant’s Brief at 5-6.

      Appellant avers that the PCRA court erred in concluding that his petition

was untimely.    Appellant does not refer to any particular statement in Mr.

Henderson’s affidavit, and his discussion is not entirely clear or coherent.

However, we discern Appellant’s claims to be that the affidavit “proves [he] is

innocent of the crimes” and “was not used to impeach the credibility of the

victim” but rather to corroborate his statement to the detective; “the police

and Commonwealth both withheld the testimony [sic] of the under-aged

witness from the police’s Incident/Investigative Report and defense”; “[t]he

essence of the eyewitnesses’ (unknown) testimony . . . is an [essential piece]

of evidence that the Commonwealth is required to know . . . when contained

within the police’s investigation report and must relinquish that evidence to

defense [sic];” and the Commonwealth chose not “to seek additional

testimony from the juvenile” or “question[ ] the officer as to what the witness

saw” because the Commonwealth “most likely” knew that what the witness

told police was in Appellant’s favor. Id. at 9-10. Finally, Appellant contends

that he could not have ascertained this newly discovered evidence earlier.

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      This Court has stated:

      “In reviewing the denial of PCRA relief, we examine whether the
      PCRA court’s determination is supported by the record and free of
      legal error.” “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.”

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations

omitted).

      We “first consider the timeliness of Appellant’s PCRA petition because it

implicates the jurisdiction of this Court and the PCRA court.” Id. A PCRA

petition “shall be filed within one year of the date the judgment becomes final,

unless the petition alleges and the petitioner proves” one of the three limited

exceptions set forth at 42 Pa.C.S.A. § 9545(b)(1).            42 Pa.C.S.A. §

9545(b)(1)(i)-(iii).   With respect to the “newly discovered evidence” at

Subsection 9545(b)(1)(ii):

      [T]he petitioner must establish only that (1) the facts upon which
      the claim was predicated were unknown and (2) they could not
      have been ascertained by the exercise of due diligence. We have
      unequivocally explained that “the exception . . . does not require
      any merits analysis of the underlying claim.”          Rather, the
      exception only requires a petitioner to “prove that the facts were
      unknown to him and that he exercised due diligence in discovering
      those facts.”

         Once jurisdiction has been properly invoked . . . the relevant
      inquiry becomes whether the claim is cognizable under the PCRA.
      Section 9543, titled “Eligibility for relief,” governs this inquiry.
      [Pertinently], section 9543 delineates seven classes of allegations
      that are eligible for relief under the PCRA. See 42 Pa.C.S.A. §
      9543(a)(2). 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

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       trial if it had been introduced” is cognizable under the PCRA. 42
       Pa.C.S.A. § 9543(a)(2)(vi). 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.”

Commonwealth v. Cox, 146 A.3d 221, 227-228 (Pa. 2016).

       As stated above, Appellant relies on the newly-discovered evidence

exception.5 See 42 Pa.C.S.A. § 9545(b)(1)(ii). The PCRA court rejected this

claim, concluding that it “was not persuaded that [Appellant] has proved that

the facts were not known to [Appellant] and he could not have obtained this

information through reasonable diligence.” PCRA Court Opinion, 3/26/18, at

2. The court observed that the affidavit of probable cause stated that police

interviewed Demarsje Henderson on the night of the incident, and that with

due diligence, Appellant could have interviewed the witness and called him to

testify.   Id.   We agree.       Although Appellant now avers that it was “the

Commonwealth’s responsibility, more[ ] than the defense counsel’s, to obtain

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5 Appellant’s timely post-sentence motion was denied on December 7, 2012
and he did not file a direct appeal. Thus, his judgment of sentence became
final for PCRA purposes thirty days thereafter, on Monday, January 7, 2013.
See 1 Pa.C.S.A. § 1908 (when last day of any statutory period of time falls on
Sunday, such day shall be omitted from computation); 42 Pa.C.S.A. §
9545(b)(3) (judgment of sentence becomes final at the conclusion of direct
review or at the expiration of time for seeking review); Pa.R.Crim.P.
720(A)(2)(a) (“If the defendant files a timely post-sentence motion, the notice
of appeal shall be filed . . . within 30 days of the entry of the order deciding
the motion[.]”). Appellant then had one year, until January 8, 2014, to file a
PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1).



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the eyewitness’s testimony,” he provides no legal authority to support this

assertion. See Appellant’s Brief at 10. We discern no error by the PCRA court.

       Furthermore, even if Appellant had properly pled the newly-discovered

evidence exception at Section 9545(b)(i)(ii), we would agree with the PCRA

court’s determination that Appellant failed to establish that he was entitled to

relief under the after-discovered requirement at Section 9543(a)(2)(vi).6 Mr.

Henderson’s affidavit would merely be cumulative of evidence already

adduced at trial — Appellant’s statement to the investigating detective that it

was the victim who pulled the gun on him, and the gun discharged when

Appellant tried to grab it. See Cox, 146 A.3d at 228.

       For the above reasons, we agree with the PCRA court that Appellant is

not entitled to relief because his petition is untimely.




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6 We note that the PCRA court’s opinion considers the newly-discovered
evidence, set forth at Section 9545(b)(1)(ii), and the after-discovered
exception at Section 9543(a)(2)(vi) together. See PCRA Court Opinion,
3/26/18, at 2 (stating that Appellant’s PCRA petition alleged “after-discovered
evidence” pursuant to Section 9545(b)(1)(ii)). Our Supreme Court has
“cautioned against the conclusion that there is an overlap between these
provisions and reiterated that they remain distinct inquiries.” Cox, 146 A.3d
at 228. Nevertheless, we affirm the order dismissing Appellant’s PCRA petition
for the reasons set forth above.

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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/20/2018




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