J-S45010-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

THOMAS JAMES BLACK,

                            Appellant               No. 1086 WDA 2015


                 Appeal from the PCRA Order of June 23, 2015
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0001125-2012


BEFORE: OLSON, DUBOW AND PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                               FILED JULY 19, 2016

        Appellant, Thomas James Black, appeals from the April 23, 2014 order

dismissing his first petition filed pursuant to the Post-Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        The relevant factual background and procedural history of this case is

as follows.      On September 18, 2012, a jury convicted Appellant of

aggravated assault,1 possession of a firearm by a prohibited person,2

possession of an instrument of crime,3 unlawful restraint,4 recklessly

____________________________________________


1
    18 Pa.C.S.A. § 2702(a)(4).
2
    18 Pa.C.S.A. § 6105(a)(1).
3
    18 Pa.C.S.A. § 907(a).




*Retired Senior Judge assigned to the Superior Court.
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endangering another person,5 and attempted homicide.6              These charges

stemmed from an altercation which resulted in the shooting of his ex-wife in

March 2012. On November 26, 2012, the trial court sentenced Appellant to

an aggregate term of 25 to 50 years’ incarceration. Appellant filed a timely

post-sentence motion, which was denied on December 7, 2012. He did not

file a direct appeal.

        Appellant filed this timely, counseled PCRA petition on January 6,

2014. The PCRA court issued notice of its intent to dismiss the petition

without an evidentiary hearing on March 26, 2014 and ultimately dismissed

the petition on April 23, 2014. See Pa.R.Crim.P. 907(1). Appellant filed a

pro se notice of appeal. This Court vacated the dismissal order and

remanded the case to the PCRA court to determine if Appellant’s retained

counsel should be permitted to withdraw and, if so, whether Appellant was

entitled to court-appointed counsel.             Commonwealth v. Black, 120 A.3d

1050, 2015 WL 7451202 (Pa. Super. 2015) (unpublished memorandum).

        On remand, retained counsel was permitted to withdraw and the PCRA

court appointed counsel. Court-appointed counsel filed a supplemental PCRA


                       _______________________
(Footnote Continued)
4
    18 Pa.C.S.A. § 2902(a)(1).
5
    18 Pa.C.S.A. § 2705.
6
    18 Pa.C.S.A. §§ 901, 2501(a).




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petition.   On June 23, 2015, the PCRA court dismissed the PCRA petition

without providing notice under Rule 907.7 This timely appeal followed.8

       Appellant presents one issue for our review:

       [Whether t]he PCRA court erred in denying [Appellant’s] PCRA
       petition without an evidentiary hearing when [Appellant] argued
       that [after-]discovered evidence existed?

Appellant’s Brief at 1.

       As most PCRA appeals involve mixed questions of fact and law, “[o]ur

standard of review of an order granting or denying relief under the PCRA

requires us to determine whether the decision of the PCRA court is

supported by the evidence of record and is free from legal error.”

Commonwealth v. Melendez-Negron, 123 A.3d 1087, 1090 (Pa. Super.

2015) (internal alteration, quotation marks, and citation omitted). We give

great deference to the findings of the PCRA court and will not disturb those

findings unless there is no support in the record.        Commonwealth v.

Hickman, 799 A.2d 136, 140 (Pa. Super. 2002).

       The right to an evidentiary hearing for a PCRA petition is not absolute.

Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super. 2001), citing
____________________________________________


7
  The notice requirement set forth in Rule 907 is mandatory.               See
Commonwealth v. Feighery, 661 A.2d 437 (Pa. Super. 1995). However,
Appellant did not object to this procedural error in his brief. Accordingly, he
has waived any challenge to this procedural error. See Commonwealth v.
Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (citation omitted).
8
 The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal.



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Commonwealth v. Granberry, 644 A.2d 204, 208 (Pa. Super. 1994). If

the petitioner’s claim is without support in the record or other evidence, the

PCRA court may decline to hold a hearing. Jordan, 772 A.2d at 1014. An

appellate court must examine the issues raised in the PCRA petition in light

of the record to determine whether the PCRA court erred in concluding there

were no genuine issues of material fact and denying relief without an

evidentiary hearing. Id., citing Commonwealth v. Hardcastle, 701 A.2d

541, 542 (Pa. 1997).

      Appellant’s sole contention on appeal is that he is entitled to relief

based on exculpatory after-discovered evidence.          See 42 Pa.C.S.A.

§ 9543(a)(2)(vi).    To obtain relief on this basis, Appellant must plead and

prove by a preponderance of the evidence the “unavailability at the time of

trial of exculpatory evidence that has subsequently become available and

would have changed the outcome of the trial had it been introduced.” Id.

To obtain relief based on after-discovered evidence, an appellant must show

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.

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

Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008). To determine

whether the evidence is “of such nature and character” to compel a different


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verdict in a new trial, 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), appeal

denied, 14 A.3d 826 (Pa. 2010).

      Attached to his PCRA petition, Appellant presented affidavits from

Justin Gill and Michael Lewis, who were incarcerated with Appellant when he

filed the present petition. Gill stated that in May 2012 he purchased a gun

from a woman he believes to be the victim in this case. Gill believes the gun

to be that used in the March 2012 shooting. Lewis claimed he was following

a vehicle operated by Appellant when the altercation occurred. Lewis claims

he saw the victim point a gun at Appellant before seeing the victim get shot

in the back and fall out of the vehicle. Appellant now claims that these two

witnesses support his self-defense theory of the incident and, accordingly,

he is entitled to an evidentiary hearing on this issue.

      Here, both witnesses are currently incarcerated.        Gill has a lengthy

juvenile and adult record, including six theft convictions.          Further, his

supervision has been revoked seven times. PCRA Court Opinion, 3/26/2014,

at 1. These crimes are crimen falsi and, as the PCRA court correctly found,

go directly to assessing his credibility.    See Padillas 997 A.2d at 365.

Further, Gill’s affidavit contradicts the record. He claims he bought the gun

used in the crime from the victim. However, immediately after the shooting,


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the victim was taken to and remained in the hospital for almost a week.

N.T., 9/17/2012, at 49. No gun was found in her possession at the hospital.

      Gill also failed to identify the type of gun, where the gun is currently,

or any evidence indicating he bought the gun used in the crime. Further, he

failed to sufficiently explain why he believes it was the victim who sold him

the gun. He only states he bought a gun from an African-American woman

in a White Ford Expedition and, based on other information, he believes it

was the victim in Appellant’s SUV.         He does not say what this other

information is.   The victim suffered severe injuries after the shooting and

had a cast on her leg for two months following the incident. Gill failed to

mention this identifying information.

      Further, this information was not exculpatory.       Even if the victim

possessed and sold the firearm two months after the shooting, this does not

mean that Appellant was innocent. It is unlikely this would have resulted in

a different verdict. Gill’s affidavit presents no material question of fact and

thus there was no reason to grant Appellant an evidentiary hearing on this

information.

      Lewis also has a lengthy criminal record, including theft and burglary

convictions and multiple revocations of supervision. Again, these are crimen

falsi crimes that diminish his credibility.   The record also contradicts his

affidavit. Neither Appellant nor the victim ever testified that anyone was

present in the backseat of Appellant’s vehicle during this incident.     Lewis


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claims he saw someone in the backseat.           Further, the record shows

Appellant never slammed on his brakes as Lewis claims and, instead, the

vehicle sped up when the victim jumped out.         N.T., 9/17/2012, at 41-42.

The victim’s injuries were consistent with this testimony. N.T., 9/18/2012,

at 7. Although Lewis claims he was with another individual when he saw this

incident occur, he fails to name this individual.    Thus, there is nothing to

corroborate his version of events.     Finally, Lewis claims he did not come

forward before because he was scared and did not want to get involved. He

claims now to be trying to do the right thing after reading about this story in

the newspaper. We note, however, he failed to come forward until after he

was already incarcerated and after he met Appellant.

      Lewis’ testimony is merely cumulative of testimony that Appellant

gave at trial regarding his theory of self-defense. See N.T., 9/17/2012, at

115, 119. Appellant already presented this testimony and the jury did not

find this story credible.    Without a more credible witness, the verdict is

unlikely to change. Accordingly, Appellant cannot meet his burden of proof.

Given the circumstances mentioned above, it is unlikely that a new trial

would result in a different verdict.

      Finally, Appellant argues that cell phone records indicate the victim

called another family member.      He characterizes this information as after-

discovered evidence.        Appellant, however, failed to plead this after-

discovered evidence in his PCRA petition. As such, this argument is waived.


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Pa.R.A.P. 302(a); see Commonwealth v. Dennis, 950 A.2d 945, 956 (Pa.

2008). Accordingly, the PCRA Court did not err in denying Appellant’s PCRA

petition without an evidentiary hearing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/19/2016




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