J-S68012-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                           Appellee

                      v.

JOHN HALL,

                           Appellant                 No. 2698 EDA 2013


              Appeal from the PCRA Order entered August 20, 2013,
              in the Court of Common Pleas of Philadelphia County,
              Criminal Division, at No(s): CP-51-CR-0227961-1988.


BEFORE: ALLEN, JENKINS, and MUSMANNO, JJ.:

MEMORANDUM BY ALLEN, J.:                        FILED NOVEMBER 10, 2014

      John Hall (“Appellant”) appeals pro se from the order denying his

second petition for relief under the Post-Conviction Relief Act (PCRA), 42

Pa.C.S.A. sections 9541-46. We affirm.

      The PCRA court summarized the pertinent facts and procedural history

as follows:

             On February 28, 1989, [Appellant] was sentenced to life
         imprisonment after a jury found him guilty of first degree
         murder and robbery for the July 13, 1986 shooting death
         of Derrick Jones (Jones).      Appellant’s post sentence
         motions were litigated, and denied on June 26, 1990. On
         November 13, 1991, the Superior Court affirmed the
         judgment of sentence, but remanded for [an] evidentiary
         hearing on [Appellant’s] Batson claim. On May 27, 1993,
         following the hearing and further briefing and oral
         argument, the court denied [Appellant’s] Batson claim.
         The Superior Court affirmed the denial on December 28,
         1993. Allocatur was denied on January 21, 1994. On
         January 16, 1997, [Appellant] filed his first petition for
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       PCRA relief which was dismissed without a hearing on
       August 14, 1998. On September 29, 2011, [Appellant]
       filed a second pro se petition for PCRA relief asserting that
       he was legally and factually innocent of the crimes for
       which he was convicted.       On February 24, 2012, the
       petition was dismissed as untimely filed and [Appellant]
       appealed. [This appeal was later discontinued.]

           On March 12, 2012, pursuant to a motion filed with
       retained counsel, [Appellant’s] dismissal was vacated and
       he was permitted to file a fully developed amended PCRA
       petition. On May 2, 2012, [Appellant] filed an amended
       petition for relief claiming that his petition was timely
       based upon the after-discovered evidence exception to the
       PCRA timeliness requirement, evidence which was
       unavailable at the time of trial and would have changed
       the outcome of the trial. Attached to the petition was the
       affidavit of Darryl Goodman (Goodman), a non-testifying
       co-defendant whose trial had been severed from
       [Appellant’s] trial, indicating that [Appellant] had been
       falsely accused and wrongfully convicted for the crime that
       he, Goodman, and now deceased Jerome Leggatt (Leggatt)
       committed, namely the murder of [] Jones. [In his own
       trial, Goodman was found guilty of third-degree murder
       and criminal conspiracy.]         In his affidavit, Goodman
       claimed that, prior to [Appellant’s] trial, Leggatt killed
       himself because of what he and Goodman had done in
       robbing and killing Jones and [Appellant] being arrested
       for a crime he did not commit. [Goodman] stated that he
       saw [Appellant] during a hearing prior to [Appellant’s] trial
       and told [Appellant] that he knew [Appellant] was innocent
       because it was him and Leggatt who had committed the
       crime, and would come forward to tell authorities but his
       attorney advised [him] to invoke his 5th Amendment
       privilege if he was called to testify at [Appellant’s] trial.
       Goodman claimed that he was coming forward now
       because it was weighing heavy on his conscious. Also
       attached to [Appellant’s] petition was a certification from
       Craig Hill (Hill), [Appellant’s] brother, indicating on August
       31, 2011, he was contacted by Darryl Goodman who
       provided him with the affidavit attached to [Appellant’s]
       petition.

          A hearing on [Appellant’s] after discovered evidence
       claim was conducted on February 6, 2013. At the hearing,

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       Hill testified that he was contacted by Goodman, met him
       in West Philadelphia and picked up the affidavit which he
       fowarded to [Appellant] approximately 19 days later. He
       also testified that a family friend, Jeff Hart, contacted him
       and gave him Goodman’s contact information and he set
       up a meeting to pick up the affidavit. In addition, Hill
       testified that [Appellant] told him maybe as early as 1996
       that Goodman had information that could get him out of
       jail, namely that [Goodman] knew that [Appellant] was
       innocent because he had lied and had wrongly implicated
       [Appellant] in the murder.          Despite that he knew
       Goodman’s family members and had actually spoken with
       Goodman in the early 2000’s, Hill testified that he never
       attempted to contact Goodman to see if he would come
       forward with the information that could get [Appellant] out
       of jail.

          Darryl Goodman, who appeared at the evidentiary
       hearing pursuant to [Appellant’s] subpoena, testified that,
       on July 13, 1986, he and [Appellant] had planned to rob
       Leggatt, however Leggatt reached in his pocket as if he
       had a gun so they fled. He further testified that he was
       arrested for the murder on December 28, 1988, and
       extradited to Philadelphia from North Carolina, where he
       had fled after the crime, on January 4, 1989. On that
       date, he gave police an allegedly false statement that he
       and [Appellant] conspired to rob and shoot Jones.
       Goodman testified that he gave the statement implicating
       [Appellant] as the shooter in the murder that he
       committed with Leggatt because he regarded Leggatt as a
       threat. Around the time of his arrest, [Goodman] learned
       that Leggatt had killed himself. Goodman acknowledged
       that he asserted in his affidavit that Leggatt killed himself
       because [Appellant] had been arrested for what he and
       Goodman had done in robbing and killing Jones.
       Notwithstanding, Goodman testified that Leggatt had killed
       himself because [Leggatt] owed Jones money and feared
       that Jones [sic] would come after him. Goodman also
       testified that in 1989, prior to [Appellant’s] trial, he saw
       [Appellant] and told [Appellant] that it was he and Leggatt
       who committed the crime. He conceded that, despite
       having been released from prison in 2002, he made no
       attempts to provide information that could have
       exonerated [Appellant] until 2011. Additionally, Goodman


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         testified that he used an alias as well as fake social
         security numbers and birth dates in the past.

             The    Commonwealth       presented    Leggatt’s  death
         certificate indicating that Leggatt’s death occurred April 3,
         1987, approximately eight months before Goodman was
         arrested, when he jumped from a window while being
         pursued by the police. Additionally, the Commonwealth
         introduced evidence that, in 1991, Goodman filed for PCRA
         relief alleging that his trial counsel was ineffective for
         failing to call [Appellant] to testify as an alibi witness.
         Following presentation of all the evidence, the arguments
         of counsel and review of both counsels’ post-hearing
         submissions, the Court determined that Goodman’s
         testimony was incredible and that [Appellant] failed to
         meet his burden in showing that his petition met the after-
         discovered evidence exception to the PCRA timeliness
         requirement. After proper notice, [Appellant’s] petition for
         relief was formally dismissed on August 20, 2013.

PCRA Court Opinion, 1/8/14, at 1-5 (footnote omitted). This timely pro se

appeal followed. The PCRA court did not require Pa.R.A.P. 1925 compliance.

      Appellant raises five issues on appeal.     He states his first issue on

appeal as follows:

         1. Did the PCRA Court [err] in finding the testimony of
         Darryl Goodman, not credible and untimely while failing to
         [apply] the appropriate statute of 42.Pa.C.S.A. [sic]
         §9543(a)(2)(vi), after hearing Mr. Goodman, exonerate
         Appellant during the evidentiary hearing?

Appellant’s Brief at 1 (underline in original).

      This Court’s standard of review regarding a PCRA court’s order is

whether the determination of the PCRA court is supported by the evidence of

record and is free of legal error.     Commonwealth v. Reaves, 923 A.2d

1119, 1124 (Pa. 2007).       The PCRA court’s findings will not be disturbed


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unless there is no support for the findings in the certified record.

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

Moreover, “[a] second or any subsequent post-conviction request for relief

will not be entertained unless a strong prime facie showing is offered to

demonstrate     that    a   miscarriage     of     justice   may     have     occurred.”

Commonwealth v. Burkhardt, 833 A.2d 233, 236 (Pa. Super. 2003) (en

banc) (citations omitted). “A petitioner makes a prime facie showing if he

demonstrates that either the proceedings which resulted in his conviction

were so unfair that a miscarriage of justice occurred which no civilized

society could tolerate, or that he was innocent of the crimes for which he

was charged.” Id.

      Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

becomes final unless the petition alleges, and the petitioner proves, an

exception to the time for filing the petition. Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under

these exceptions, the petitioner must plead and prove that “(1) there has

been interference by government officials in the presentation of the claim; or

(2)   there   exists   after-discovered    facts    or   evidence;   or     (3)   a   new

constitutional right has been recognized.” Commonwealth v. Fowler, 930

A.2d 586, 591 (Pa. Super. 2007) (citations omitted).                 A PCRA petition

invoking one of these statutory exceptions must “be filed within sixty days of


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the date the claim first could have been presented.”         Id. See also 42

Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to the time restrictions of the

PCRA must be pled in the petition, and may not be raised for the first time

on appeal.    Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super.

2007); see also Pa.R.A.P. 302(a) (“Issues not raised before the lower court

are waived and cannot be raised for the first time on appeal.”).

      Appellant acknowledges that his PCRA petition is untimely, but asserts

that he timely filed the petition once he obtained new evidence.          When

considering a PCRA petitioner’s claim that he or she has established an

exception to the PCRA’s time bar under section 9545(b)(1)(ii), the petitioner

must establish only that the facts upon which the claim was predicated were

unknown to him, and that he could not have ascertained the facts earlier

despite the exercise of due diligence.     Commonwealth v. Bennett, 930

A.2d 1264, 1270-72 (Pa. 2007). The determination of timeliness does not

require a merits analysis. Commonwealth v. Abu-Jamal, 941 A.2d 1263,

1268 (Pa. 2008).

      A petitioner is eligible for relief under the PCRA if he can establish 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.” 42 Pa.C.S.A. § 9543(a)(2)(vi). This Court

has explained the test to be applied to such a claim as follows:

           To obtain relief based on after-discovered evidence, an
         appellant must demonstrate that the evidence: (1) could

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        not have been obtained prior to the conclusion of the trial
        by the exercise of reasonable due 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. Foreman, 55 A.3d 532, 537 (Pa. Super. 2012) (citation

omitted).   “The test is conjunctive; the appellant 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.” Id. Moreover, “when reviewing the

decision to grant or deny a new trial on the basis of after-discovered

evidence, an appellate court is to determine whether the PCRA court

committed an abuse of discretion or error of law that controlled the outcome

of the case.” Id.

     Here, the PCRA court dismissed Appellant’s PCRA on two bases.

Initially, the PCRA court found that Appellant did not establish the “after-

discovered evidence” exception to the PCRA’s time bar.       According to the

PCRA court, Appellant did not establish that “the facts upon which the claim

is predicated were unknown to [him] and could not have been ascertained

by the exercise of due diligence[.]”    42 Pa.C.S.A. § 9545(b)(1)(ii).   The

PCRA court explained:

        Appellant claims that the affidavit submitted by co-
        conspirator Darryl Goodman indicating that [Appellant] is
        innocent because he, and now deceased [] Leggatt,
        actually committed the robbery and murder, is newly
        discovered evidence sufficient to overcome the PCRA
        requirement that a petition must be filed within one year of
        the date the judgment became final. However, Goodman
        testified that he told [Appellant] before [Appellant’s] trial,

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            around 1989, that he knew [Appellant] was innocent
            because he and Leggatt had committed the crime. He also
            testified that, after he was released from jail in 2002, he
            spoke with [Appellant’s] brother, but did not [inform him
            of Appellant’s] innocence. Appellant’s brother testified that
            he knew that Goodman had lied about [Appellant’s]
            involvement in the crimes because [Appellant] told him
            and that he had seen Goodman around 2005, but did not
            ask him to come forward with the information.

PCRA Court Opinion, 1/8/14, at 6-7 (citations omitted). Secondly, the PCRA

Court found that the testimony from Hill and Goodman “lacked credibility.”

Id. at 7.

      Our review of the record supports the trial court’s conclusions.                We

agree with the PCRA court that Appellant failed to establish due diligence by

a preponderance of the evidence.            See, generally, Commonwealth v.

Johnson, 945 A.2d 185 (Pa. Super. 1998).                At best, Goodman’s affidavit

constituted “a newly discovered or newly willing source for previously known

facts.”     Commonwealth v. Marshall, 947 A.2d 714, 721 (Pa. 2008).

Additionally, when, as here, the PCRA court’s determination of credibility is

supported by the record, it cannot be disturbed on appeal. Commonwealth

v. Harmon, 738 A.2d 1023, 1025 (Pa. Super. 1999).

      In     his   remaining     issues,    Appellant     asserts        PCRA    counsel’s

ineffectiveness.    Unfortunately for Appellant, he inappropriately has raised

these claims for the first time on appeal. See Commonwealth v. Ford, 44

A.3d 1190, 1200 (Pa. Super. 2012) (noting that a majority of the

Pennsylvania       Supreme     Court   agrees    that    issues     of    PCRA    counsel


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ineffectiveness must be raised in a serial PCRA petition or in response to a

Pa.R.Crim.P. 907 notice of dismissal before the PCRA court). Appellant has

therefore failed to preserve his remaining issues.

      In sum, the record supports the PCRA court’s conclusion that Appellant

failed to establish his claim of after-discovered evidence, and his claims of

ineffectiveness of PCRA counsel are not preserved. We thus affirm the PCRA

court’s order denying Appellant’s PCRA petition as untimely filed.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/10/2014




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