J-S06023-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

TYSHEEM CROCKER

                            Appellant                No. 346 MDA 2013


                 Appeal from the PCRA Order January 22, 2013
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0000186-1998


BEFORE: LAZARUS, J., OTT, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                            FILED AUGUST 01, 2014

       Tysheem Crocker appeals from the order entered January 22, 2013, in

the Court of Common Pleas of York County, that denied his fourth petition

for relief pursuant to the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et

seq.   In 1999, a jury convicted Crocker of murder in the first degree and

conspiracy, and the trial court sentenced him to an aggregate term of life

imprisonment.      In this appeal, Crocker contends the PCRA court erred in

rejecting the recantation evidence of Commonwealth witness, Danny Steele,

as not credible. Based upon the following, we affirm, albeit on the basis that
                             1
the petition is untimely.
____________________________________________


1
  See Commonwealth v. Fisher, 870 A.2d 864, 870 n.11 (Pa. 2005)
(appellate court may affirm the decision of the PCRA court if there is any
basis on the record to support the PCRA
court relies on a different basis in its decision to affirm).
J-S06023-14



     The background of this case has been summarized by this Court in

previous decisions:

     [Crocker] and Melvin Bethune were members of a gang in the


     1997, following a dispute between the two groups, [Crocker] and
     Bethune traveled from York to New York to recruit manpower in
     order to retaliate against members of The Gods. The motivation
     for the retaliation was that members of The Gods had assaulted
     Bethune earlier that day.

           [Crocker] and Bethune returned from New York with three


     Super 8 Motel in York to plan the assault. The men decided they
                      -                       head of The Gods and
     whomever was with him. They planned to attack The Gods at its
     usual hangout on Maple Street.

           [Crocker] and the others left the motel and drove to Maple
     Street. They parked their car and entered a home on Maple
     Street where they had stored guns. They retrieved their guns
     and proceeded to a corner where they had been advised
     members of The Gods were playing dice. Do-Work was playing
     dice along with a number of people including Raymond Clark


            [Crocker] and his co-conspirators approached. [Crocker]
     drew a gun on Do-
     Trial, 1/11/99, at 54. [Crocker] attempted to fire his gun at Do-
     Work, but it jammed. Immediately thereafter, other members of
     The Cream Team began firing at the people playing dice. The


            Steele, Corleone, and another unnamed co-conspirator
     chased Clark. Corleone shot Clark twice, fatally wounding him.
     Do-Work escaped. [Crocker], Steele, and Bethune were all
     identified by witnesses as having been involved in the shootings
     and were arrested. Steele agreed to testify for the
     Commonwealth in return for unspecified consideration in the
     criminal proceedings against him. Bethune went to trial with

                                   -2-
J-S06023-14


                                                                         -
     degree murder and conspiracy.

Commonwealth v. Crocker, 750 A.2d 366 [483 MDA 1999] (Pa. Super.

1999) (unpublished memorandum, at 1-3), appeal denied, 761 A.2d 548

(Pa. 2000).

          At trial, [Crocker] testified in his own defense as follows.
     He has been friends with Steele and his co-defendant, Bethune,


     5, 1997, The Gods surrounded a house where the Cream Team
     was staying. [Crocker] ran out of the back of the house
     because The Gods were carrying guns. Later, Bethune stated
     that he had been attacked from behind, and that he did not see
     who did it. [Crocker] stated that he had an idea who it was,
     and that he was going to talk to Do-Work to get rid of the
     problem. He and Bethune drove to New York City, went
     shopping for approximately one hour on Canal Street, and
     arrived back in York at approximately 10:00 or 10:30 that
     night. In total, [Crocker] spent between six and eight hours on
     the road to do one hour of shopping.

           When [Crocker] arrived back in York, Steele told him that
     Steele was having problems with Do-Work. Steele was very

     [Crocker] stated that he could talk to Do-Work without guns.
     Nevertheless, he retrieved a gun from the house and
     approached Do-Work. Do-Work walked toward [Crocker], and
     they met on a corner. [Crocker] did not see anyone else during
     his conversation with Do-Work. A few words were exchanged
     between [Crocker] and Do-Work, but [Crocker] did not draw a
     gun. [Crocker] heard gunshots from an unknown source, ran
     away, and left the gun near a fence. At first, [Crocker] stated
     that he knew the gun was broken as he approached Do-Work,
     but later he testified that he did not know the gun was broken
     until after he ran away from the gunshots. At one point,

     stated that he simply knew the gun was broken. He did not go
     to a motel before this incident took place. He did, however, go
     to a motel after midnight on the night of the shooting.



                                   -3-
J-S06023-14


Commonwealth v. Crocker, 809 A.2d 954 [1392 MDA 2001] (Pa. Super.

2002) (unpublished memorandum) (record citations omitted).

      Following the imposition of sentence, Crocker perfected a direct

appeal. This Court affirmed the judgment of sentence, and the Pennsylvania

Supreme Court denied his petition for allowance of appeal. Commonwealth

v. Crocker, supra, 750 A.2d 366 [483 MDA 1999] (Pa. Super. 1999),

appeal denied, 761 A.2d 548 (Pa. 2000).

      On September 14, 2000, Crocker filed a pro se PCRA petition. Counsel

was appointed, and an evidentiary hearing was held. On March 2, 2001,



                                                                    o file an

appeal nunc pro tunc. However, counsel once again did not file the appeal,

and Crocker then filed a successful second PCRA petition, resulting in the

appointment of new counsel, and the perfection of the appeal. This Court

affirmed the PCRA cour

for   allowance   of   appeal   to   the   Pennsylvania   Supreme     Court.

Commonwealth v. Crocker, supra, 809 A.2d 954 [1392 MDA 2001] (Pa.

Super. 2002) (unpublished memorandum).

      On May 15, 2003, Crocker filed his third PCRA petition. On June 11,

2003, the PCRA court found that the petition was untimely and dismissed it

without a hearing. On May 11, 2004, this Court affirmed the dismissal of




                                     -4-
J-S06023-14


                                                           Commonwealth v.

Crocker, 855 A.2d 129 [1104 MDA 2003] (Pa. Super. 2004) (unpublished

memorandum), appeal denied, 868 A.2d 1197 (Pa. 2005).

     In the meantime, Crocker timely filed a petition for writ of habeas

corpus in the United States District Court for the Middle District of

Pennsylvania on September 29, 2003. On May 24, 2004, the District Court

stayed his habeas corpus petition to allow Crocker to exhaust state court

review of his claims.     On December 9, 2008, the District Court denied

                        habeas corpus. Crocker v. Klem, Civ. No. 3:CV-03-



and a panel of the United States Court of Appeals for the Third Circuit issued

a non-precedential opinion affirming the District Court.    Crocker v. Klem,

450 Fed. Appx. 136 (3d Cir. Pa. 2011).

     Crocker filed this fourth PCRA petition on August 20, 2012, alleging

after-discovered   evidence,    namely,    the   recantation    evidence    of

Comm



put a gun to Do-

was invented by the district attorneys, who pressured him to give false

testimony. See

12, 2012 Affidavit). Counsel was appointed, and that appointment was later

vacated to allow present counsel to enter his appearance.         Following a


                                    -5-
J-S06023-14




recantation testimony was not credible, and denied PCRA relief. This appeal

followed.2

       Our standard of review is well settled:

       On appeal from the denial of PCRA relief, our standard and scope
       of review is limited to determining whether the PCRA
       findings are supported by the record and without legal error.
       Commonwealth v. Breakiron, 566 Pa. 323, 781 A.2d 94, 97
       n.4 (Pa. 2001). A second or subsequent request for PCRA relief
       will not be entertained unless the petitioner presents a strong
       prima facie showing that a miscarriage of justice may have
       occurred. Commonwealth v. Carpenter, 555 Pa. 434, 725
       A.2d 154, 160 (Pa. 1999). The             timeliness requirements
       are jurisdictional in nature and must be strictly construed; courts
       may not address the merits of the issues raised in a petition if it
       is not timely filed. See, e.g., Commonwealth v. Beasley, 559
       Pa. 604, 741 A.2d 1258, 1261 (Pa. 1999); Commonwealth v.
       Fahy, 558 Pa. 313, 737 A.2d 214, 222 (Pa. 1999);
       Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638, 641

       one of the timeliness exceptions applies. See Beasley, at 1261.

Commonwealth v. Abu Jamal, 941 A.2d 1263, 1267 1268 (Pa. 2008),

cert. denied, 555 U.S. 916 (2008).

       Preliminary to our review, we must address the threshold issue of

                                                            , as the timeliness

of the PCRA petition is jurisdictional. Commonwealth v. Taylor, 67 A.3d

1245, 1248 (Pa. 2013), cert. denied, ___ U.S. ___ (June 2, 2014). We need

____________________________________________


2

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).




                                           -6-
J-S06023-14


not recite the PCRA timeliness standards applicable to this case,3 but simply

note that for this fourth PCRA petition to be considered timely, and thus

confer jurisdiction, Crocker must plead and prove one of the statutory
                                               4




Commonwe

facts exception.     See 42 Pa.C.S. § 9545(b)(ii). This exception requires a



predicated were unknown to the petitioner and could not have been

                                                   Id. Furthermore, a PCRA




____________________________________________


3

PCRA appeal:


       about December 5, 2000, after the Supreme Court denied

       to seek certiorari with the United States Supreme Court expired.
       Commonwealth v. Owens, 718 A.2d 330, 331 (Pa. Super.
       1998). Thus, in order to be timely, a PCRA petition would have
       to have been filed by December 5, 2001.

Commonwealth v. Crocker, 855 A.2d 129 [1104 MDA 2003] (Pa. Super.
2004) (unpublished memorandum), appeal denied, 868 A.2d 1197 (Pa.
2005).
4

facts, and newly recognized constitutional right. 42 Pa.C.S. § 9545(b)(1)(i),
(ii), and (iii).



                                           -7-
J-S06023-14


9545(b)(2). To evaluat

a discussion of the recantation evidence of Danny Steele proffered by

Crocker is necessary.



for lenient treatment in his own case. Steele testified that he, Crocker, and

several other co-conspirators met at a motel on the evening of the incident

to discuss the murder of Do-Work. N.T., 1/11 15/99, at 251 259. Steele

also stated that Crocker, after exchanging words with Do-Work, put a gun to

Do-                                                          Id. at 265.

      In his first PCRA petition, Crocker sought PCRA relief based upon



Crocker and others had met at a motel to plan the armed confrontation.



hearing that followed:

      In rather roundabout fashion, Steele stated at the PCRA hearing
      that some of his trial testimony was true but that other elements
      were embellished to show that [Crocker] had the specific intent
      to kill. N.T., 3/2/2001, at 46-67. According to Steele, his own
      counsel indicated that these embellishments would help him to
      receive a more lenient sentence on his own conspiracy charge.
      Id. at 46-56. For example, Steele testified that during the
      meeting at the motel, he did not believe that [Crocker] and his
      associates were going to commit murder; rather, he thought
      they would simply talk out the problem with The Gods. Id. at 50.

Commonwealth v. Crocker, 809 A.2d 954 [1392 MDA 2001] (Pa. Super.

2002) (unpublished memorandum, at 16 17) (record citations omitted).




                                    -8-
J-S06023-14




                                                                Id. at 17.

         In his present PCRA petition, filed on August 20, 2012, Crocker

attached the affidavit of Steele, dated July 12, 2012, which states, in

relevant part, verbatim:

         I never seen Tysheem Crooker put a gun to do-work head and
         pull the trigger. that was all made up by the D.A. Thomas Kelly
         and BILL GRAFF, to make my testimony look better than it would
         have if I gave truthfull testimony.



Affidavit).5



that Crocker filed his petition within 60 days of learning of the new evidence,

as required by

provided in paragraph (1) shall be filed within 60 days of the date the claim

                                      See

2, ¶4.


____________________________________________


5

                                  habeas corpus               [o]ther
corroborating evidence, including the fact that Crocker was armed,
pointed his gun at Do-                      led the trigger (at which
point the firing mechanism jammed), shows that the jury had
sufficient evidence to convict Crocker regardless of when he rented
the motel room. Crocker v. Klem, 450 Fed. Appx. 136 (3d Cir. 2011)
(non-precedential memorandum) (emphasis supplied).




                                           -9-
J-S06023-14


      At the March 2001 PCRA hearing, Steele was asked on cross



                                                               Id. In light of



                                                                          could



Pa.C.S. § 9545(b)(ii).



that he knew that Crocker never put a gun to Do-



examination    of   Steele,   the   following   exchange   occurred   between



      Q. But do you recall, however, testifying at the 2001 PCRA
      hearing before this Honorable Judge, is that correct?

      A. Yes, I do remember that.

      Q. And at the time that you testified before this Judge at that
      2001 PCRA hearing, did you know with substantial certainty that
      the testimony that you gave in 1999, the fact that Tysheem
      Crocker had a gun, pulled it out, put it to Do-Works head, pulled
      the trigger and it jammed, that testimony was false?

      A. Yes, I knew that.


                                        ****

      Q. And at the time that you testified, did you also know that the
      testimony you gave at the 1999 trial, that Tysheem Crocker had
      a gun, pulled it out, put it to Do-Works head, pulled the trigger


                                     - 10 -
J-S06023-14


      and it jammed, that that testimony, too was not true, that it was
      false?

      A. Yes. Yes. Yes.

N.T., 1/22/2013, at 58, 60.

      Steele was then questioned why he did not provide his present

recantation testimony at the 2001 PCRA hearing:

      Q: And you at that time never offered that information to the
      Court when you were testifying before this Judge in 2001, is that
      correct?

                                 I don't even think I was asked it, that
      question. I think it was more focused on the hotel pre-plan of
      plotting the murder, to prove that we did have the knowledge
      that we was going to kill Can-Do, so I was at that time focused
      on telling the Courts that we did not pre-plan to kill anyone, and
      that was what the whole case was about at the time, at that
      hearing, was asked if it was asked, that I would have stated it.
      I just follow the rules of what the hearing was about.


Id. at 60 61.

      In this case, nothing prevented Crocker from questioning Steele at the

2001 PCRA hearing regarding his trial testimony that Crocker put a gun to

Do-                                  er before another man shot the victim.



                              recantation as satisfying the unknown facts

exception, 42 Pa.C.S. § 9545(b)(1)(ii), and the 60-day requirement of 42

Pa.C.S. § 9545(b)(2). See Commonwealth v. Edminston, 65 A.3d 339,

350 (Pa. 2013), cert. denied, 134 S. Ct. 639 (U.S. 2013) (finding PCRA claim

untimely where appellant did not address why he was unable to obtain



                                    - 11 -
J-S06023-14



certain   statements    and    present   them     at   first   PCRA      hearing);

Commonwealth v. Kubis, 808 A.2d 196, 201 (Pa. Super. 2002), appeal

denied, 813 A.2d 839 (Pa. 2002) (Section 9545(b)(1)(ii) not satisfied where

the petitioner was aware of identity of individual during trial and could have

earlier discovered favorable testimony by exercising due diligence).          See

also Commonwealth v. Lambert, 57 A.3d 645 (Pa. Super. 2012), appeal

denied, 67 A.3d 795 (Pa. 2013) (explaining focus of Section 9545(b)(1)(ii) is

on newly discovered facts, not on newly willing source for previously known



      In any event, assuming the petition could even be considered timely,

this Court would not disturb the conclusion of the PCRA court.        Regarding

claims of recantation under the PCRA, this Court has explained:

      Section 9543(a)(2)(vi) of the PCRA provides for post-conviction
      relief when a petitioner can prove a claim of newly discovered

      must establish by a preponderance of the evidence that: (1) the
      evidence has been discovered after the trial and it could not
      have been obtained at or prior to trial through reasonable
      diligence; (2) such evidence is not cumulative; (3) the evidence
      is not being used solely to impeach credibility; and (4) such


      Our Supreme Court has summarized appellate consideration of a
      claim involving recanted testimony as follows:

          The well-established rule is that an 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
                                                      is exceedingly
          unreliable, and it is the duty of the court to deny a new
          trial where it is not satisfied that such testimony is true.

                                     - 12 -
J-S06023-14


         There is no less reliable form of proof, especially when it
         involves an admission of perjury.

Commonwealth v. Loner, 836 A.2d 125, 135 (Pa. Super. 2003), appeal

denied, 852 A.2d 311 (Pa. 2004) (citations omitted).

     Here, the PCRA court explained its conclusion as follows:

     We do not find the testimony of Danny Steele to be credible. We
     find the testimony of Judge Kelley and Bill Graff to be credible.


     now come back several years later and added something, which
     conveniently just happens to be the main stumbling block to

     not credible either, and we specifically disbelieve it, and
     therefore the

N.T., 1/22/2013, at 131.




abuse of discretion. The PCRA court considered its prior              credibility




new testimony in which he



consideration. Id.



preliminary   testimony    of   the   intended   victim,   Do-Work,    (2)   the

                                                                             -in

                                      - 13 -
J-S06023-14


                                 -

                                                                Id. at 3 4.

The PCRA court rejected these arguments, explaining: (1) it did not find Do-



                                                       -          testimony




[C]ommonwealth improved during the course of trial [to be] enough by itself

to conclude that Steele testified correctly in the PCRA hearing that his

                                                               Id. at 4.

      The PCRA court provided a cogent explanation why it did not find

                                                           ted no abuse of



conclude that his after discovered evidence claim fails on the merits.   See

Commonwealth v. Loner, supra

[upon a claim of after




untimely and does not meet any exception to the PCRA timeliness

requirements.   We therefore affirm the order of the PCRA court denying

PCRA relief.

      Order affirmed.


                                     - 14 -
J-S06023-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/1/2014




                          - 15 -
