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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                   v.                    :
                                         :
AVRON HOLLAND,                           :         No. 3020 EDA 2016
                                         :
                        Appellant        :


             Appeal from the PCRA Order, September 20, 2016,
            in the Court of Common Pleas of Philadelphia County
             Criminal Division at Nos. CP-51-CR-1206740-2004,
                          CP-51-CR-1206741-2004


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


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED SEPTEMBER 11, 2017

      Avron Holland appeals pro se from the September 20, 2016 order

dismissing his serial petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

      The PCRA court summarized the relevant facts of this case as follows.

                   The evidence elicited at trial revealed that on
            April 21, 2003, at approximately 11:30 p.m.,
            appellant, Michael Farrell and the decedent, Michael
            Jones, Jr. [(hereinafter, “the victim”)], were standing
            together talking at 60th and Market Streets in the
            City and County of Philadelphia.         Appellant was
            standing about ten feet away from them. Farrell
            heard a gunshot and ducked. He did not see where
            the shot came from. When Farrell looked up, he saw
            [the victim] on the ground with a gunshot wound to
            the right side of his head. He observed appellant still
            in the position he had been in before the gunshot.
            He also observed a small black gun on the ground
            about a foot in front of appellant. Farrell ran to [the
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          victim’s] car which was parked a short distance
          away, retrieved [the victim’s] cell phone and dialed
          911.       Meanwhile,     appellant   flagged   down
          Gregory Brooks, a “hack” cab driver, and asked him
          to take [the victim] to the hospital. On his way back
          to the corner, Farrell observed appellant and Brooks
          attempting to place [the victim] in the back seat of
          Brooks’ 1999 green Honda Accord. Farrell assisted
          with getting Brooks into the back seat and appellant
          got into the front passenger seat. Appellant had a
          white towel in his hand which he placed beneath the
          passenger seat of Brook[s’] car. Farrell returned to
          [the victim’s] car.

                Brooks and appellant transported [the victim]
          to the Misericordia Hospital emergency room.
          During the ride to the hospital, appellant was
          bending over the car’s seat telling [the victim] he
          was going to be alright while he rifled through [the
          victim’s] pockets. When they arrived at the hospital
          both men got out and went into the emergency room
          to get help. The police arrived at approximately the
          same time, asked appellant and Brooks their names
          and told them to wait so that they could be
          interviewed.     Appellant gave the false name,
          Malik Jones, with an address of 44 North Felton
          Street. Before the police could speak with him,
          appellant left the hospital. [The victim’s] cell phone
          was turned over to his father, Michael Jones, Sr.
          The senior Jones, in response to information he
          received from one of his son’s friends, called
          appellant from his son’s cell phone which had
          appellant’s information already programmed into it,
          and asked appellant why he had shot his son.
          Appellant reported that it was an accident; the gun
          dropped and went off.       Appellant called the cell
          phone several times, attempting to explain what
          happened.

                 Gregory Brook[s]’s independent or “hack” cab,
          the 1999 green Honda Accord, was impounded and
          transported to the police crime lab for processing
          directly from the emergency room area of
          Misericordia Hospital. Leo Rahill of the Police Crime


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             Scene Unit[,] who processed the vehicle, discovered
             two firearms concealed beneath the front passenger
             seat where appellant had been sitting:                 a
             semiautomatic .9 millimeter Ruger serial number
             310–26514, fully loaded and a[n] INA .38 Special
             revolver, serial number 059694 and 4 of 5 cartridges
             and a fired cartridge case still in the cylinder. Brooks
             testified that he had just cleaned his vehicle and
             there were no guns in the car prior to this incident.
             Police Officer Robert Stott of the Firearms
             Identification Unit received the .9 millimeter
             semiautomatic and the .38 Special, several pieces of
             ballistic evidence removed from the body of [the
             victim] by the medical examiner who performed the
             autopsy; a bullet jacket, bullet fragment and lead
             fragment. Officer Stott concluded that the bullet
             jacket was fired from the .38 Special confiscated
             from beneath the seat of Brook[s]’s vehicle. He was
             unable to determine if the bullet fragment and the
             lead fragment came from the .38 Special to a degree
             of scientific certainty. In addition to testing the
             ballistic evidence, Officer Stott conducted a trigger
             pull test on each of the firearms to determine how
             much weight it took to pull the trigger and fire the
             weapon.       He determined that the .38 Special
             required 4.5 to 5 pounds of pressure in the single
             mode and 15 to 15.5 pounds of pressure in the
             double mode.

PCRA court opinion, 2/7/12 at 1-4.

        On January 10, 2006, a jury found appellant guilty of first-degree

murder1 in connection with this incident, and the trial court sentenced

appellant to life imprisonment that same day. Appellant filed post-sentence

motions which were subsequently denied by the trial court on January 20,

2006. On June 4, 2007, a panel of this court affirmed appellant’s judgment



1
    18 Pa.C.S.A. § 2502.


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of sentence, and our supreme court denied his petition for allowance of

appeal on December 14, 2007. See Commonwealth v. Holland, 931 A.2d

46 (Pa.Super. 2007) (unpublished memorandum), appeal denied, 938 A.2d

1052 (Pa. 2007).        On July 23, 2008, appellant filed a timely first PCRA

petition and counsel was appointed.        On March 8, 2010, the PCRA court

granted appellant’s request to proceed pro se following a Grazier2 hearing.

The     PCRA    court    subsequently    dismissed    appellant’s   petition   on

September 23, 2011, and a panel of this court affirmed the PCRA court’s

order on January 11, 2013. See Commonwealth v. Holland, 64 A.3d 274

(Pa.Super. 2013), appeal denied, 70 A.3d 809 (Pa. 2013).             On July 3,

2013, our supreme court denied appellant’s petition for allowance of appeal,

and appellant did not file a petition for writ of certiorari with the United

States Supreme Court. Id.

                        Appellant filed the instant PCRA petition, his second, on

July 6, 2015.    The PCRA court appointed Robin Godfrey, Esq. (hereinafter

“PCRA counsel”), to represent appellant, who ultimately requested leave to

withdraw in accordance with Commonwealth v. Turner, 544 A.2d 927 (Pa.

1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en

banc). On August 3, 2016, the PCRA court provided appellant with notice of

its intention to dismiss his petition without a hearing, pursuant to

Pa.R.Crim.P. 907(1).      Thereafter, on August 19, 2016, the PCRA court


2
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).


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entered an order denying appellant’s request for an extension of time to

respond to the August 3, 2016 order. Appellant filed a premature pro se

notice of appeal on September 13, 2016.3      On September 20, 2016, the

PCRA court granted counsel permission to withdraw and formally dismissed

appellant’s petition without a hearing.     The PCRA court did not order

appellant to file a concise statement of errors complained of on appeal, in

accordance with Pa.R.A.P. 1925(b). On December 5, 2016, the PCRA court

filed a Rule 1925(a) opinion in support of its September 20, 2016 order.

     Although the issues raised in appellant’s brief are comprised primarily

of boilerplate or vague assertions of error, the crux of appellant’s argument

is that the PCRA court erred in dismissing his petition as untimely because

he presented a viable “newly-discovered facts” exception to the time-bar.

(See appellant’s brief at 8-17.) For the following reasons, we disagree.

     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.



3
  Pursuant to Pa.R.A.P. 905(a)(5), “[a] notice of appeal filed after the
announcement of a determination but before the entry of an appealable
order shall be treated as filed after such entry and on the day thereof.”
Accordingly, we deem appellant’s appeal as properly filed.


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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).

      Here, the record reveals that appellant’s judgment of sentence became

final on March 13, 2008, 90 days after our supreme court denied appellant’s

petition for allowance of appeal and the time for filing a petition for writ of

certiorari with the United States Supreme Court expired. See 42 Pa.C.S.A.

§ 9545(b)(3) (stating, “[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

the time for seeking the review.”). Thus, in order to comply with the filing

requirements of the PCRA, appellant was required to file his petition by

March 13, 2009.     See 42 Pa.C.S.A. § 9545(b)(1) (stating that all PCRA

petitions, including second and subsequent petitions, must be filed within

one year of when a defendant’s judgment of sentence becomes final).

Appellant’s petition, which was filed over six years past the deadline, is

patently untimely. As a result, the PCRA court lacked jurisdiction to review

appellant’s petition, unless appellant alleged and proved one of the statutory

exceptions to the time-bar, as set forth in 42 Pa.C.S.A. § 9545(b)(1).

      The three PCRA time-bar exceptions are as follows:

            (i)   the failure to raise the claim previously was the
                  result of interference by government officials


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                     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).

      Instantly, appellant invokes the “newly-discovered facts” exception to

the   PCRA    time-bar     in   the   form   of   a   four-page   “affidavit”   from

Commonwealth witness Bobby Scott wherein he recants the testimony he

gave at trial. (Pro se PCRA petition, 7/6/15 at 2-4.)4 Specifically, at trial,

Scott testified that the evening of the shooting, he was inside the victim’s

car smoking marijuana when he heard a gunshot and jumped up. (Notes of

testimony, 1/5/06 at 121-124.) Scott testified that at that point, his cousin,

Michael Farrell, ran up to the car, got in, and drove him and two other

individuals to the hospital where the victim had been taken by appellant.

(Id. at 125-129.) Scott further testified that prior to the shooting, he had



4
   The record reflects that Bobby Scott’s affidavit was executed on March 30,
2015, and was received by appellant on July 2, 2015. As noted, appellant
filed the instant PCRA petition four days later, on July 6, 2015.


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observed appellant in possession of a firearm. (Id. at 130.) In his affidavit,

Scott recants the testimony he gave at trial and contends that the District

Attorney threatened him with solitary confinement if he did not testify that

Farrell told him that appellant had shot the victim. (Id., Exhibit at ¶¶ 4-12.)

      Our supreme court has long recognized that,

            [w]hen seeking a new trial based on alleged
            after-discovered evidence in the form of recantation
            testimony, the 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. Johnson, 966 A.2d 523, 541 (Pa. 2009) (citations

omitted). We further note that, as a general matter, recantation evidence

“is notoriously unreliable, particularly where the witness claims to have

committed perjury.” Commonwealth v. D'Amato, 856 A.2d 806, 825 (Pa.

2004).

      Upon review, we agree with the PCRA court that appellant cannot

prove, by a preponderance of the evidence, that the aforementioned four

factors are satisfied in this case. (See PCRA court opinion, 12/5/16 at 5-6.)

Notably, appellant has failed to establish that Scott’s recantation is of such a

nature that it would compel a different verdict. Even a cursory review of the

record demonstrates that there was ample evidence for the jury to find

appellant guilty of first-degree murder, irrespective of Scott’s recantation



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testimony and that said testimony was not of critical importance to the jury

in rendering its verdict. This is especially true given the fact the evidence at

trial established that appellant acknowledged shooting the victim, albeit

allegedly by accident; there was animosity between appellant and the

victim; appellant attempted to hide the firearm used to shoot the victim;

and appellant gave the police a false name at the hospital and fled

Philadelphia before he could be questioned further.         (See PCRA court

opinion, 2/7/12 at 1-4.)

      Accordingly, appellant has failed to show that his untimely petition

satisfies the newly-discovered facts exception to the statutory one-year

time-bar. Therefore, we conclude that the PCRA court lacked jurisdiction to

consider the merits of appellant’s claim and 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: 9/11/2017




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