J-S51023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SHAWN M. JONES-BING

                            Appellant                No. 2890 EDA 2015


                  Appeal from the PCRA Order August 28, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0015263-2009


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                          FILED AUGUST 02, 2016

        Shawn Jones-Bing appeals from the order entered in the Philadelphia

County Court of Common Pleas dismissing his petition filed pursuant to the

Post Conviction Relief Act (“PCRA”).1 After careful consideration, we affirm.

        The trial court set forth the relevant facts and procedural history as

follows:

        On May 10, 2009, at approximately 3:30 a.m., Karl Keith Young
        (victim) was fatally shot in his car, parked outside of a pizza
        parlor located on Spring Garden Street, between Front Street
        and Delaware Avenue in Philadelphia.

        In the early morning hours of May 10, 2009, the victim left his
        home in Trenton, New Jersey, and traveled with several of his
        friends to Palmer’s Social Club in Philadelphia. As was their
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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     habit, the victim and his friends, Alfonso Slaughter and Michael
     Brittingham, went to a nearby pizza parlor after leaving
     Palmer’s. While in the pizza parlor, the victim got into a verbal
     argument with petitioner’s co-defendant, Johnathan Lane
     (hereafter Lane). The victim was heard insulting Lane, making
     claims that he (the victim) was wealthier than Lane, and calling
     Lane broke. The victim and his friends were escorted out of the
     pizza parlor by a security guard. Jones-Bing and Lane were seen
     together in the pizza parlor, and were escorted out of the pizza
     parlor together by the security guard a few moments after the
     victim and his friends were escorted out. Slaughter testified that
     he recognized Jones-Bing and Lane from Trenton; he went to
     school with Lane and rode bikes with Jones-Bing. He had seen
     Lane a few other times at Palmer’s Social Club and at the pizza
     parlor.

     Outside, the victim encountered Natalgia Thomas, his daughter’s
     mother, with whom he had a brief conversation. The victim then
     went to his car, where he sat by himself, in the driver’s seat, for
     a few minutes while Slaughter and Brittingham went back into
     the pizza parlor. While the victim was alone in his car, a Dodge
     Magnum pulled up alongside of his car. The driver’s window of
     the victim’s car was rolled down, as was the front passenger
     window of the Magnum, and remained down for the next few
     minutes, giving the appearance of conversation. The Magnum
     then pulled into the parking space in front of the victim’s car.
     Lane exited the front passenger seat of the Magnum and got into
     the front passenger seat of the victim’s car, and Jones-Bing
     exited the driver’s seat of the Magnum and got into the rear
     passenger-side seat. The three men remained in the victim’s car
     for approximately five minutes before a shot was fired. After the
     shot was fired, Jones-Bing and Lane exited the victim’s car, got
     back into the same seats of the Magnum from which they had
     exited, and drove off. As he exited the victim’s car, Lane was
     seen wiping something off of his face. The timeline of these
     events, including the muzzle flash of the gun, was confirmed by
     video from a surveillance camera mounted outside the front door
     of the Riverview Place apartment building, located on the corner
     of Delaware Avenue and Spring Garden Street, right next to the
     pizza parlor.

     Shortly after Jones-Bing and Lane exited the car, Slaughter
     returned to the victim’s car. He opened the passenger-side door
     and saw the victim laying on the driver’s seat, with his head
     slumped back on the headrest, “with blood just shooting all

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        down his face.” The victim had been shot through his right eye,
        with the muzzle of the gun at a distance of six to eight inches
        from his face.

        Upon seeing the victim, Slaughter ran back into the pizza parlor,
        saying, “[t]hey killed my cousin.” He and Brittingham then went
        back to the car, where they remained until the police and
        paramedics arrived; nothing was removed from the car during
        this time.    Philadelphia Police Officers Charles Stone and
        Terrance Erwin searched the crowd; no firearm was found on
        any individual, around the car, or in the immediate area, nor
        were any shell casings found in the area.

Trial Court Opinion, 1/26/16, at 2-5.

        Following a jury trial, Jones-Bing was convicted of third-degree

murder, criminal conspiracy, and possessing instruments of crime (PIC).

This Court affirmed his judgment of sentence on July 30, 2012, and our

Supreme Court denied his petition for allowance of appeal on January 3,

2013.

        Jones-Bing filed a timely pro se PCRA petition on March 15, 2013,

seeking relief based on an affidavit from his co-defendant Lane, apparently

exonerating him from any wrongdoing. His court-appointed counsel filed an

amended petition on October 10, 2014. The Commonwealth filed a motion

to dismiss on April 29, 2015, and each side filed supplemental briefs at the

trial court’s request.    On June 29, 2015, the trial court sent Jones-Bing

notice of its intent to dismiss his PCRA petition without a hearing pursuant to

Pa.R.Crim.P. 907.     On August 28, 2015, following Jones-Bing’s failure to

respond, the court dismissed the petition.

        Jones-Bing raises the following issue for review:



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         Did the PCRA Court err when it dismissed Jones-Bing’s Amended
         Petition without a hearing where Jones-Bing properly pled and
         would have been able to prove and did in fact prove that Jones-
         Bing was entitled to relief?

Appellant’s Brief, at 3.

         “Our 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. The PCRA court’s findings will not be disturbed unless

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

Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)

(citations omitted).

         A PCRA court may dismiss a petition without an evidentiary hearing if

a petitioner does not raise any “genuine issues concerning any material

fact.”    Pa.R.Crim.P. 907(1).       A decision not to hold a hearing will not be

reversed absent an abuse of discretion.              Commonwealth v. Collins, 888

A.2d 567, 579 (Pa. 2005). Jones-Bing argues that he raised a genuine issue

concerning      material   facts   in    the    form    of    after-discovered      evidence,

specifically Lane’s affidavit stating that Lane himself shot the victim in self-

defense, that Jones-Bing had nothing to do with the shooting, and that there

was no conspiracy to murder the victim. Affidavit, 5/2/13, at 1.

         An    after-discovered      evidence       claim    is   predicated     on     “[t]he

unavailability at the time of trial of exculpatory evidence that has

subsequently became available and would have changed the outcome of the

trial if it had been introduced.”         42 Pa.C.S. § 9543(a)(2)(vi).              To obtain

relief, the petitioner must demonstrate that the new evidence: (1) could not

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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 compel a different verdict.       Commonwealth v. Washington, 927

A.2d 586, 595-96 (Pa. 2007). Jones-Bing’s claim fails on the first factor, as

the information attested to in Lane’s affidavit was known by both Lane and

Jones-Bing at trial, and as such cannot be considered to have been obtained

after the conclusion of the trial.

       The trial court requested that Jones-Bing and the Commonwealth

address Washington, supra in their briefs regarding the motion to dismiss.

In Washington, the defendant sought PCRA review on the basis of a

confession given by his co-defendant with whom he was jointly tried, stating

that it was he, and not Washington, who fired the fatal shot. Washington,

927 A.2d at 597.     Our Supreme Court found that this could not be after-

discovered evidence because Washington knew from the day of the murder

that he did not fire the fatal shot. Id. Other cases from our courts have

upheld the principle that knowledge obtained during the crime cannot be

considered after-discovered. See Commonwealth v. Frey, 517 A.2d 1265,

1268 (Pa. 1986) (rejecting after-discovered evidence claim on basis of

statement containing information that defendant would have known since

the time of the crime); Commonwealth v. McClucas, 548 A.2d 573, 576

(Pa.   Super.   1988)   (holding     victim’s   recantation   not   after-discovered




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evidence because defendant would have known that victim falsely testified

at trial).

       Jones-Bing’s claim of after-discovered evidence is based on his co-

defendant Lane’s affidavit stating that it was Lane, and not Jones-Bing, who

fired the shot killing the victim. This cannot be considered after-discovered

evidence under 42 Pa.C.S. § 9543(a)(2)(vi) because, if true, Jones-Bing

would have known since the time of the murder that he was not the

individual who fired the fatal shot. Lane’s affidavit says that Jones-Bing was

in the car with himself and the victim, and as such Jones-Bing would have

observed the events as they unfolded. Therefore, this information does not

constitute after-discovered evidence simply because it takes the form of a

post-trial affidavit.

       Additionally, Pennsylvania courts have long held that affidavits

submitted by co-defendants subsequent to the co-defendant’s conviction and

sentencing are unreliable. Commonwealth v. Frey, 517 A.2d 1265, 1268-

69 (Pa. 1986) (“We have long recognized that post-verdict accomplice

testimony must be viewed with a jaundiced eye.”). See also Washington,

supra (PCRA court properly rejected co-defendant’s confession when

codefendant had already been convicted of murder and had nothing to lose

by contradicting his pre-trial stance); Commonwealth v. Scott, 470 A.2d

91, 94 (Pa. 1983) (concluding post-trial statements from co-conspirator

were    “clearly   untrustworthy   and    unreliable,   bordering   on   charade”);

Commonwealth v. Treftz, 351 A.2d 265, 272-73 (Pa. 1976) (rejecting co-

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conspirator’s confession that would have exonerated defendant where co-

conspirator learned he could not be retried on the basis of his confession due

to double jeopardy). In the instant matter, co-defendant Lane had already

been convicted and sentenced at the time he provided his affidavit. Thus,

the PCRA court did not err by questioning the validity of and motives behind

Lane’s affidavit.

      Not only does the affidavit contain information that, if true, Jones-Bing

has possessed since the time of the murder, it comes from a co-defendant

who had already been convicted and sentenced, and as such had nothing to

lose from trying to help keep his friend out of prison. Accordingly, the PCRA

court did not abuse its discretion by dismissing Jones-Bing’s PCRA petition

without an evidentiary hearing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/2/2016




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