J. A17045/19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                     v.                    :
                                           :
NAKIA HORTON,                              :          No. 2739 EDA 2018
                                           :
                          Appellant        :


             Appeal from the PCRA Order Entered August 16, 2018
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No. CP-51-CR-0208591-1997


BEFORE: PANELLA, P.J., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED NOVEMBER 07, 2019

        Nakia Horton appeals from the August 16, 2018 order dismissing as

untimely his petition filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

        The relevant facts of this case were set forth in the PCRA court’s opinion

and need not be reiterated here. (See PCRA court opinion, 10/5/18 at 2-4.)

The pertinent procedural history of this case, as gleaned from the certified

record, is as follows: On December 4, 1997, a jury found appellant guilty of

second-degree murder, robbery, and possessing instruments of crime 1 in

connection with the February 1996 shooting death of Jay Murcheson

(hereinafter, “the victim”).    On March 31, 1998, the trial court sentenced




1   18 Pa.C.S.A. §§ 2502(b), 3701(a), and 907(a), respectively.
J. A17045/19

appellant to a term of life imprisonment. Appellant filed his first pro se PCRA

petition on March 10, 2000, and counsel was appointed to represent him.

Following a reinstatement of appellant’s direct appeal rights nunc pro tunc,

a panel of this court affirmed appellant’s judgment of sentence on April 26,

2005.     See Commonwealth v. Horton, 876 A.2d 463 (Pa.Super. 2005)

(unpublished memorandum). Appellant did not file a petition for allowance of

appeal with our supreme court. Thereafter, on August 22, 2005, appellant

filed yet another pro se PCRA petition. On January 23, 2008, the PCRA court

dismissed appellant’s petition, and a panel of this court affirmed the PCRA

court’s order on September 30, 2009; our supreme court subsequently denied

appellant’s petition for allowance of appeal on August 24, 2010.          See

Commonwealth v. Horton, 986 A.2d 1256 (Pa.Super. 2009) (unpublished

memorandum), appeal denied, 4 A.3d 1052 (Pa. 2010). Appellant filed the

instant pro se PCRA petition on August 5, 2016. Following an evidentiary

hearing conducted over the course of multiple days, the PCRA court dismissed

appellant’s petition on August 16, 2018. This timely appeal followed.2

        Appellant raises the following issues for our review:

              I.    Did the [PCRA] court err in declaring the filing
                    of the PCRA petition “untimely” despite the fact
                    that it was filed within the time limit prescribed
                    for after-discovered evidence claims?

              II.   Did the [PCRA] court err in dismissing the
                    [PCRA] petition based on after-discovered

2The record reflects that appellant and the PCRA court have complied with
Pa.R.A.P. 1925.


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                  evidence, after an evidentiary hearing in which
                  the sole eyewitness recanted her trial testimony
                  and identification of appellant as the gunman?

Appellant’s brief at 4 (extraneous capitalization omitted).

      Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s

findings will not be disturbed unless there is no support for the findings in the

certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014)

(citations omitted). “This Court grants great deference to the findings of the

PCRA court, and we will not disturb those findings merely because the record

could support a contrary holding.” Commonwealth v. Hickman, 799 A.2d

136, 140 (Pa.Super. 2002) (citation omitted).

      Preliminarily, we must consider the timeliness of appellant’s PCRA

petition because it implicates the jurisdiction of this court and the PCRA court.

Commonwealth v. Davis, 86 A.3d 883, 887 (Pa.Super. 2014) (citation

omitted). All PCRA petitions, including second and subsequent petitions, must

be filed within one year of when a defendant’s judgment of sentence becomes

final. See 42 Pa.C.S.A. § 9545(b)(1). “[A] judgment becomes 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 the review.” 42 Pa.C.S.A. § 9545(b)(3).



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      Here, it is undisputed that appellant’s August 5, 2016 pro se PCRA

petition, filed more than a decade after his judgment of sentence became final,

is patently untimely. Accordingly, appellant was required to plead and prove

that one of the three statutory exceptions enumerated in Section 9545(b)(1)

applies.

      The three statutory exceptions to the PCRA time-bar are as follows:

              (i)     the failure to raise the claim previously was the
                      result of interference by government officials
                      with the presentation of the claim in violation of
                      the Constitution or laws of this Commonwealth
                      or the Constitution or laws of the United States;

              (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

              (iii)   the right asserted is a constitutional right that
                      was recognized by the Supreme Court of the
                      United States or the Supreme Court of
                      Pennsylvania after the time period provided in
                      this section and has been held by that court to
                      apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i-iii). A petition invoking any of these exceptions

must “be filed within 60 days of the date the claims could have been

presented.”         Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783

(Pa.Super. 2000); see also 42 Pa.C.S.A. § 9545(b)(2).3


3 On October 24, 2018, the General Assembly amended Section 9545(b)(2),
extending the time for filing a petition from 60 days to one year from the date
the claim could have been presented. See 2018 Pa. Legis. Serv. Act 2018-
146 (S.B. 915), effective December 24, 2018. The amendment applies only
to claims arising one year before the effective date of this section,


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      Instantly, appellant invokes the “after discovered evidence” exception

set forth in Section 9545(b)(1)(ii) and argues that he is entitled to a new trial

based on the fact that Commonwealth witness Tamika Anderson recanted her

testimony that she observed appellant shoot the victim. (Appellant’s brief at

13-14; see also notes of testimony, 8/8/18, at 21-23, 27, 39-40, 44-49.)

Appellant contends that he only became aware of Anderson’s recantation on

June 25, 2016, when he secured a signed affidavit to that effect; thus,

appellant contends, his August 5, 2016 pro se PCRA petition was timely filed

within the 60-day timeframe.      (Appellant’s brief at 12; see also notes of

testimony, 8/10/18 at 6-7.) The record belies these claims.

      To be eligible for relief on a claim of after-discovered evidence, a PCRA

petitioner must plead and prove by a preponderance of the evidence “[t]he

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). To evaluate such a claim,

            [an] appellant must demonstrate that the evidence:
            (1) could not have been obtained prior to the
            conclusion of the trial by the exercise of reasonable
            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.




December 24, 2017, or thereafter. Here, as discussed, appellant’s claim arose
well before that date and, therefore, the amendment is inapplicable.


                                      -5-
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Commonwealth v. Foreman, 55 A.3d 532, 537 (Pa.Super. 2012), citing

Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008), cert. denied,

555 U.S. 1198 (2009).

      Here, our review of the record reveals that appellant failed to file his

PCRA petition invoking the “after-discovered evidence” exception within

60 days of the date the claims could have been presented, as required by

Section 9545(b)(2). As recognized by the PCRA court, the record reflects that

although Anderson did not sign the affidavit recanting her testimony until

June 25, 2016, she had been in contact with appellant’s family about doing so

for years. It strains credibility that appellant could not, with the exercise of

due diligence, have obtained information about Anderson’s willingness to

recant her testimony earlier. Anderson testified at the evidentiary hearing

that she informed appellant’s brother, John Horton, as early as 2013 that she

“wanted to help [appellant] come home” and would recant her trial testimony.

(Notes of testimony, 8/8/18 at 69-70, 86.) Appellant further acknowledged

during the hearing that he has spoken on the telephone with his brother since

the beginning of his incarceration and that his brother knew how to get in

contact with him.   (Notes of testimony, 8/10/18 at 10-13.) Based on the

foregoing, the record supports the PCRA court’s conclusion that appellant

failed to satisfy the “after discovered evidence” exception set forth in

Section 9545(b)(1)(ii).




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      Moreover, we agree with the PCRA court’s rationale at the evidentiary

hearing that appellant failed to establish that introduction of this evidence

would likely result in a different verdict if a new trial were granted. The PCRA

court reasoned:

            [Anderson] now asserts that she testified falsely at
            trial because of both pressure from the police and the
            trial prosecutor, Edward Cameron. [Cameron] was
            called as a Commonwealth witness and credibly
            disputed that testimony.        He also stated that
            [Anderson] testified willingly and she was a
            cooperative witness during the trial.

            In assessing the credibility of [Anderson], it must be
            said that she lacks credibility. She would have this
            [PCRA c]ourt believe that after some 20 years she
            came forward to exonerate [appellant] after speaking
            to his brother, her former boyfriend, because her
            account of the incident was based merely on
            neighborhood rumor, such [is] not to be believed.

            [In] the final analysis, [appellant] has not met his
            burden. [Anderson’s] recantation does not overcome
            the other evidence in this case. It serves only to
            impeach her original testimony.            Indeed, the
            testimony of [eyewitness Charles] Maddox and
            [Shaheed] Johnson standing alone is sufficient to
            support the guilty verdict in this case. Further, as
            mentioned above, her recantation is highly suspect
            when one considers how she -- how it came about.
            This [PCRA c]ourt finds it is wholly lacking in
            credibility. In conclusion, this [PCRA c]ourt finds that
            the alleged after-discovered evidence is simply not of
            such a nature [and] character that a different verdict
            would likely result if a new trial was granted.

PCRA court opinion, 10/5/18 at 8-9, citing notes of testimony, 8/16/18 at

12-21 (some bracketed information in original).




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      Accordingly, we discern no error on the part of the PCRA court in

dismissing appellant’s petition as untimely.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 11/7/19




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