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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

EDWARD MITCHELL

                            Appellant                  No. 782 MDA 2014


                    Appeal from the PCRA Order April 8, 2014
                In the Court of Common Pleas of Dauphin County
                Criminal Division at No(s): CP-22-0002648-2000


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.                          FILED JANUARY 12, 2015

        Appellant, Edward Mitchell, appeals pro se from the order entered April

8, 2014, by the Honorable Andrew H. Dowling, Court of Common Pleas of

Dauphin County, which denied Mitchell’s petition filed pursuant to the Post

Conviction Relief Act (“PCRA”).1 We affirm.

        A panel of this Court previously summarized the facts of this case on

direct appeal as follows:

               Angel DeJesus (Mr. DeJesus) was killed in the early
        morning of July 5, 2000, in his taxicab at the intersection of
        Kittatinny and Hummel Streets in Harrisburg. Jennifer McDonald
        (Ms. McDonald) went to a store around 4:30 a.m., shortly before
        the murder. She observed [Mitchell] and his co-defendants,
        Kariem Eley (Eley) and Lester Eiland (Eiland), standing at the
        intersection of Kittatinny and Hummel Streets. As Ms. McDonald
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*
    Former Justice specially assigned to the Superior Court.
1
    42 PA.CONS.STAT.ANN. §§ 9541-9546.
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     was walking home about a minute and a half later, she saw Mr.
     DeJesus’s cab pass her traveling toward the intersection. When
     she heard a loud noise, she looked back and saw Mr. DeJesus’s
     cab stopped at the intersection with its brake lights on. Five or
     ten minutes after arriving home, Ms. McDonald heard police
     sirens.

           Guadalupe Fonseca (Mr. Fonseca) was standing in front of
     his house on the morning of the murder and saw three African-
     American men standing near Mr. DeJesus’s cab. He saw one of
     the men enter the cab and heard two gunshots. After the shots,
     the man got out of the cab and joined the other two men at the
     right side of the cab. Mr. Fonseca heard a third shot and saw
     the men departing to the north on Hummel Street. Rufus
     Hudson saw [Mitchell] and his co-defendants at the intersection
     before the shooting and witnessed them running across Hummel
     Street toward and abandoned house after Mr. DeJesus was shot.

           Another taxicab driver in the area, Francisco Ramirez-
     Torres (Ramirez-Torres) was informed of the incident by a
     passenger named Eligio Contreras (Elijio). Ramirez-Torres went
     to the scene and called the police. Police officers found Mr.
     DeJesus alive but bleeding from the head. Two shell casings
     were found on the floor of the cab. A police officer found a third
     casing inside an air vent in the car. Mr. DeJesus died at the
     hospital following surgery. The evidence indicated that he had
     been shot three times in the head and neck with a .25-caliber
     handgun, at least once from a distance of less than a foot.
     Although Mr. DeJesus was known to carry a pouch to hold his
     money while he was working, it was not found on his person or
     in the cab, nor was any money found.

            [Mitchell] and his co-defendants were arrested and held for
     trial. [Mitchell] made a statement to the police admitting that he
     had been firing guns before the murder with two other men near
     the location where Mr. DeJesus was shot. He stated that the
     group left the weapons in an abandoned house. Although police
     officers discovered several guns in the house, the .25-caliber
     handgun used to kill the victim was not found there.

Commonwealth v. Mitchell, 1658 MDA 2001 (Pa. Super., filed September

22, 2003) (unpublished memorandum at 1-3).




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      On August 10, 2001, Mitchell and his co-defendants were convicted of

second   degree   murder,    robbery,    and     conspiracy,   and   sentenced   to

aggregate terms of life imprisonment.          On appeal, this court sua sponte

vacated Mitchell’s sentence as to the imposition of consecutive sentences for

second-degree murder and robbery, which should have merged, and the

Pennsylvania Supreme Court thereafter denied allocatur. At the conclusion

of Mitchell’s direct appeal, the case was remanded and on August 5, 2004,

the trial court corrected Mitchell’s sentence.

      On November 26, 2004, Mitchell filed his first PCRA petition seeking a

new trial on the basis of after-discovered evidence, which the PCRA court

denied. A second timely PCRA petition followed on February 28, 2005, which

the PCRA court similarly denied.     On appeal, this Court affirmed the order

denying PCRA relief. See Commonwealth v. Mitchell, 739 MDA 2007 (Pa.

Super., filed August 19, 2008) (unpublished memorandum).               During the

pendency of Mitchell’s second PCRA petition, Mitchell joined in a petition for

PCRA relief filed by one of his co-defendants, also based upon alleged after-

discovered evidence. On September 19, 2007, the PCRA court denied relief,

and this Court affirmed that order on appeal.           See Commonwealth v.




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Mitchell, 1776 MDA 2007 (Pa. Super., filed October 20, 2008) (unpublished

memorandum).2

       On March 27, 2012, Mitchell filed the instant pro se PCRA petition – his

fourth – in which he raised yet another allegation of after-discovered

evidence.     Attached to the PCRA petition was the unsworn recantation

statement of Commonwealth witness Rufus Hudson.          Also attached to the

petition was the sworn affidavit of licensed investigator Wayne W. Schmidt,

in which Schmidt attested that he watched Hudson read and sign the

unsworn recantation affidavit in prison on March 2, 2012.     Mitchell filed an

amended PCRA petition on May 17, 2012, and on July 23, 2012, the PCRA

court dismissed the petition without a hearing. On appeal, this Court issued

a judgment order remanding the case and instructing the PCRA court to hold

an evidentiary hearing on the reliability of the recantation testimony. See

Commonwealth v. Mitchell, 1515 MDA 2012 (Pa. Super., filed April 4,

2013) (judgment order). The PCRA court conducted an evidentiary hearing

on August 29, 2013, at which Rufus Hudson testified. On April 8, 2014, the

PCRA court dismissed Mitchell’s PCRA petition after concluding that Hudson’s

testimony was “not credible, not truly exculpatory and would not have likely




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2
  Although the panel noted that this joint PCRA petition should technically
have been held in abeyance pending the resolution of Mitchell’s second PCRA
petition, it declined to dismiss the appeal. Id.



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led to a different verdict.”   PCRA Court Opinion, 4/8/14 at 4.      This timely

appeal followed.

      On appeal, Mitchell argues that the PCRA court erred when it

concluded    that   Hudson’s     recantation   testimony   was   incredible,   not

exculpatory, and would not have likely led to a different verdict.             See

Appellant’s Brief at 4.

      “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.”          Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied,

Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013). “[Our] 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 PCRA court

level.” Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation

omitted). “[T]his Court applies a de novo standard of review to the PCRA

court’s legal conclusions.”    Commonwealth v. Spotz, 18 A.3d 244, 259

(Pa. 2011) (citation omitted).

      Before we may address the merits of a PCRA petition, we must first

consider the petition’s timeliness because it implicates the jurisdiction of

both this Court and the PCRA court. See Commonwealth v. Williams, 35

A.3d 44, 52 (Pa. Super. 2011) (citation omitted), appeal denied, 50 A.3d

121 (Pa. 2012). A PCRA petition must be filed within one year of the date


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that the judgment of sentence becomes final. See 42 PA.CONS.STAT.ANN. §

9545(b)(1). “The PCRA timeliness requirements are jurisdictional in nature

and,   accordingly,   a   court   cannot    hear   untimely   PCRA     petitions.”

Commonwealth v. Flanagan, 854 A.2d 489, 509 (Pa. 2004). As the PCRA

petition at issue here was not timely, “the courts have no jurisdiction to

grant [him] relief unless he can plead and prove that one of the exceptions

to the time bar provided in 42 [PA.CONS.STAT.ANN.] § 9545(b)(1)(i)-(iii)

applies.” Commonwealth v. Pursell, 749 A.2d 911, 914-915 (Pa. 2000).

See also Commonwealth v. Wilson, 824 A.2d 331, 335 (Pa. Super. 2003)

(en banc) (“Since Appellant’s PCRA petition is untimely, our review focuses

on whether Appellant has pled and proven that one of the three limited

exceptions to the timeliness requirements of the PCRA apply.”).

       Section 9545 provides, in relevant part, as follows.

             (b) Time for filing petition.—

               (1) Any petition under this subchapter, including a
               second or subsequent petition, shall be filed within
               one year of the date the judgment becomes final,
               unless the petition alleges and the petitioner
               proves that:

                   (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


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                    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.

               (2) Any petition invoking an exception provided in
               paragraph (1) shall be filed within 60 days of the
               date the claim could have been presented.

                                          …

42 PA.CONS.STAT.ANN. § 9545(b).

      Instantly, there is no dispute that Mitchell’s petition is untimely. Thus,

Mitchell must plead and prove one of the three enumerated statutory

exceptions to the time-bar. As previously noted, Mitchell alleged in the pro

se PCRA petition filed March 27, 2012, that he received “new evidence”

under 42 PA.CONS.STAT.ANN. § 9545(b)(1)(ii) in the form of an affidavit

signed by Rufus Hudson and dated March 2, 2012. In that unsworn affidavit

attached to Mitchell’s petition, Rufus claimed that he fabricated his

testimony and that he “did not see Kari[e]m ‘Mo’ [Eley] or Lester ‘Risha’

Eiland with guns and did not see them running from the scene of the

shooting.” Affidavit of Rufus Hudson, 3/2/12. Mitchell filed his pro se PCRA

petition   within   60   days   of   receiving   this   new   evidence.   See 42

PA.CONS.STAT.ANN. § 9545(b)(2).          Accordingly, we find that Mitchell has




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complied with the timeliness exception contained in 42 PA.CONS.STAT.ANN. §

9545(b)(1)(ii).3

       We proceed to address the merits of Mitchell’s claim that he is entitled

to a new trial based upon after-discovered evidence.

       To obtain relief based upon newly-discovered evidence under the
       PCRA, a petitioner must establish 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. D’Amato, 856 A.2d 806, 823 (Pa. 2004) (citation

omitted).

       “We acknowledge that, as a general matter, recantation evidence is

notoriously unreliable, particularly where the witness claims to have

committed      perjury.”      Id.    at   825    (citations   omitted).   See   also
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3
  As this Court recently noted in Commonwealth v. Davis, 86 A.3d 883
(Pa. Super. 2014),

       an after-discovered evidence claim and the timeliness exception
       based on previously unknown facts are distinct, and the issues
       are analyzed differently. Commonwealth v. Bennett, 593 Pa.
       382, 930 A.2d 1264, 1270-72 (2007). Thus, the relative merit of
       Appellant's underlying PCRA claims is not the issue when
       determining whether his PCRA petition satisfies the after-
       discovered fact exception. Rather, the question of whether he
       met that exception is evaluated pursuant to the statutory
       requirements of 42 Pa.C.S.A. § 9545(b)(1)(ii) and (b)(2).

Id., at 891 n.7.     Thus, our conclusion that Mitchell has satisfied the
timeliness exception based upon unknown evidence does not implicate our
holding, discussed below, that the underlying after-discovered evidence
claim is without merit.



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Commonwealth v. McNeil, 487 A.2d 802, 807 n.4 (Pa. 1985) (opining that

recantation evidence has often been recognized as one of the least reliable

forms of after-discovered evidence). “[A]n appellate court may not interfere

with the denial or granting of a new trial where the sole ground is the

alleged recantation of state witnesses unless there has been a clear abuse of

discretion.” Commonwealth v. Hammond, 953 A.3d 544, 561 (Pa. Super.

2008) (citation omitted).

      Here, Mitchell has established the first three prongs of the after-

discovered evidence test.    As previously noted, Mitchell did not discover

Hudson’s unsworn affidavit until after trial, and we are satisfied that he could

not have done so prior to trial through reasonable diligence.         Hudson’s

recantation statement is also not cumulative, nor is it being used solely to

impeach credibility.   However, we are constrained to agree with the PCRA

court’s conclusion that Mitchell cannot establish the fourth and final prong, in

that the evidence would not likely compel a different verdict.

      Initially, we note that a careful reading of Hudson’s unsworn affidavit

reveals that Hudson recants his trial testimony only insofar as it concerns his

observation of co-defendants Eley and Eiland at the scene of the crime.

Hudson states in the affidavit that he “did not see Kari[e]m ‘Mo’ [Eley] or

Lester ‘Risha’ Eiland with guns and did not see them running from the scene

of the shooting.” Affidavit of Rufus Hudson, 3/2/12. Notably, Hudson does

not recant his trial testimony that he observed Mitchell running from the


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scene of the crime.        Thus, the unsworn affidavit arguably does not even

constitute recantation evidence pertaining to Mitchell’s involvement in the

crime.

       Additionally, Hudson’s testimony at the PCRA hearing still places

Mitchell and his two co-defendants at the scene of the crime.4       Although

Hudson recanted his testimony that he observed Mitchell fire a gun and run

from the scene of the crime, he unequivocally stated that he observed

Mitchell and his co-defendants “in the vicinity of the cab” during the evening

of the shooting, which Hudson clarified to mean “about 30” feet away from

the cab.    N.T., PCRA Evidentiary Hearing, 8/29/13 at 23-24.     We are not
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4
  The transcript of the PCRA hearing is not in the certified record. Moreover,
our review of the record reveals that Mitchell did not even order a copy of
the transcript, in violation of Pennsylvania Rule of Appellate Procedure 1911,
relating to requests for transcripts. Ordinarily, this failure would result in
waiver of Mitchell’s claim on appeal. See Commonwealth v. Preston, 904
A.2d 1, 7 (Pa. Super. 2006) (en banc) (“In the absence of an adequate
certified record, there is no support for an appellant’s arguments and thus,
there is no basis on which relief could be granted.”). However, we note that
a copy of the transcript is in Mitchell’s reproduced record and the
Commonwealth has not objected to that copy. Under these circumstances,
we decline to find waiver and have elected to use the transcript provided in
the reproduced record. Accord Commonwealth v. Walls, 926 A.2d 957,
959 n.1 (Pa. 2007) (relying on pre-sentence investigation report that
appeared only in reproduced record where neither party challenged the
validity of the report).

      In so doing, we remind Mitchell that “the ultimate responsibility of
ensuring that the transmitted record is complete rests squarely upon the
appellant and not upon the appellate courts.” Preston, 904 A.2d at 7.




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convinced that this testimony, together with the unequivocal testimony of

other trial witnesses placing Mitchell and his co-defendants at the cab

directly prior to the shooting, would have compelled a different verdict at

trial.    We further note that the PCRA court explicitly found Hudson’s

recantation testimony, in general, to be incredible. See Commonwealth v.

Loner, 836 A.2d 125, 135 (Pa. Super. 2003) (providing that a prerequisite

to relief based upon a claim of recantation evidence is that “the evidence

upon which the relief is sought must be credible to the trial court.”).

Consequently, we agree with the PCRA court that Hudson’s recantation

testimony does not entitle Mitchell to a new trial.

         Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/2015




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