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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

DANIEL CARTER,

                             Appellant                No. 2446 EDA 2013


                Appeal from the PCRA Order entered July 26, 2013,
               in the Court of Common Pleas of Philadelphia County,
               Criminal Division, at No(s): CP-51-CR-1213321-1992


BEFORE: ALLEN, JENKINS, and MUSMANNO, JJ.

MEMORANDUM BY ALLEN, J.:                         FILED NOVEMBER 07, 2014

          Daniel Carter (“Appellant”) appeals from the order denying his second

petition for relief under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A.

sections 9541-46. We affirm the PCRA court’s order denying post-conviction

relief.

          The pertinent facts are as follows:

                On July 3, 1992, at approximately 1:30 a.m.,
             [Appellant] and one Jamal Jones arrived at the home of
             Daniel Witherspoon at 711 Mercy Street in Philadelphia.
             Appellant requested to speak with Shawn “Ali” Bain, who
             was Witherspoon’s step-son and resided with him.
             Appellant asked Bain if he could borrow his twelve gauge
             sawed-off shotgun.      Bain agreed and retrieved the
             shotgun, loaded with three shells, from his bedroom.
             Appellant and [Jones] left with the shotgun and met one
             Wayne “Hawk” Witherspoon. The three men proceeded to
             a playground, approximately one and one-half blocks from
             [Daniel] Witherspoon’s house.         Once inside the
             playground, [Appellant] approached the victim, Darryl
             Chinn, who was sitting on a park bench facing the
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         basketball court. Appellant fired a single, fatal shot into
         Chinn’s groin and pelvis from approximately two yards
         away.

                                   ***

            On October 31, 1992, [Appellant] was arrested and
         charged with the murder of Darryl Chinn.

Commonwealth v. Carter, 661 A.2d 390, 391-92 (Pa. Super. 1995).

      At the conclusion of a two-day bench trial, the trial court found

Appellant guilty of first-degree murder, possession of an instrument of

crime, and criminal conspiracy.    Subsequently, the trial court sentenced

Appellant to life in prison for his murder conviction, and a suspended

sentence on the remaining convictions.    Appellant filed a timely appeal to

this Court. On June 6, 1995, a divided panel affirmed Appellant’s judgment

of sentence. Carter, supra. On April 9, 1996, our Supreme Court denied

Appellant’s petition for allowance of appeal.   Commonwealth v. Carter,

675 A.2d 1242 (Pa. 1996).

      On July 7, 1997, Appellant filed a pro se PCRA petition.     The PCRA

court appointed counsel, and PCRA counsel filed an amended petition. The

PCRA court held two days of evidentiary hearings.     By opinion and order

dated January 5, 1999, the PCRA court denied relief. Appellant filed a timely

appeal to this Court.   In an unpublished memorandum filed on March 7,

2000, we adopted the PCRA court’s opinion as our own in affirming its denial

of post-conviction relief.   Commonwealth v. Carter, 757 A.2d 990 (Pa.

Super. 2000) (unpublished memorandum). On July 5, 2000, our Supreme



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Court denied Appellant’s petition for allowance of appeal. Commonwealth

v. Carter, 785 A.2d 87 (Pa. 2000).

      On September 21, 2010, Appellant filed a second PCRA petition. The

PCRA court appointed counsel, and PCRA counsel filed an amended petition.

While acknowledging that his serial petition was untimely, Appellant asserted

that he filed it within sixty days of obtaining the new evidence. The PCRA

court summarized the claim within the amended petition as follows:

              In this Amended Petition, [Appellant] claimed that on
           July 20, 2010, a woman named Raynell Allen wrote
           [Appellant] a letter in which she informed him that her
           then-boyfriend [Jamal Jones], had confessed to her on the
           night of the shooting at issue in this case that he, and not
           [Appellant,] committed the murder of which [Appellant]
           was convicted. [Jamal Jones] passed away on December
           22, 2005.

PCRA Court Opinion, 11/7/13, at 2 (footnote and citations omitted).

      The PCRA court then explained the subsequent procedural history as

follows:

              On November 16, 2012, Judge Temin ordered that an
           evidentiary hearing be held on [Appellant’s] after-
           discovered evidence claim.       Due to Judge Temin’s
           retirement from the bench, this PCRA was then re-
           assigned to the [PCRA court]. On July 26, 2013, following
           an evidentiary hearing and supplemental pleadings by both
           parties, the Court entered an order dismissing
           [Appellant’s] PCRA petition. [PCRA counsel] subsequently
           withdrew from representation, and [Appellant] requested
           permission to proceed pro se. The PCRA court held a
           Grazier hearing and permitted [Appellant] to represent
           himself.




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PCRA Court Opinion, 11/7/13, at 2 (footnote omitted).            This timely pro se

appeal followed.    Both Appellant and the PCRA court have complied with

Pa.R.A.P. 1925.

      Appellant raises the following issues on appeal:

         I. For the reasons given, [d]id the [PCRA court] err in
         holding that the proffered testimony of [Ms.] Allen did not
         constitute legally sufficient after-discovered evidence?

         II. Did the [PCRA court] err in denying [Appellant’s] claim
         of ineffective assistance of [PCRA] counsel, given counsel’s
         complete and utter failure to investigate and provide the
         testimonial evidence for several relevant witnesses?

         III. Do the interests of justice require a remand for the
         purpose of taking the respective testimonies of [prior
         counsel] and Wayne Witherspoon?

Appellant’s Brief at 4.

      This Court’s 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.      Commonwealth v. Reaves, 923 A.2d

1119, 1124 (Pa. 2007).         The PCRA court’s findings will not be disturbed

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

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

Moreover, “[a] second or any subsequent post-conviction request for relief

will not be entertained unless a strong prime facie showing is offered to

demonstrate     that      a   miscarriage   of   justice   may    have   occurred.”

Commonwealth v. Burkhardt, 833 A.2d 233, 236 (Pa. Super. 2003) (en

banc) (citations omitted). “A petitioner makes a prime facie showing if he

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demonstrates that either the proceedings which resulted in his conviction

were so unfair that a miscarriage of justice occurred which no civilized

society could tolerate, or that he was innocent of the crimes for which he

was charged.” Id.

      Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

becomes final unless the petition alleges, and the petitioner proves, an

exception to the time for filing the petition. Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under

these exceptions, the petitioner must plead and prove that “(1) there has

been interference by government officials in the presentation of the claim; or

(2)   there   exists   after-discovered    facts   or   evidence;    or   (3)   a   new

constitutional right has been recognized.” Commonwealth v. Fowler, 930

A.2d 586, 591 (Pa. Super. 2007) (citations omitted).                A PCRA petition

invoking one of these statutory exceptions must “be filed within sixty days of

the date the claim first could have been presented.”                Id. See also 42

Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to the time restrictions of the

PCRA must be pled in the petition, and may not be raised for the first time

on appeal.    Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super.

2007); see also Pa.R.A.P. 302(a) (“Issues not raised before the lower court

are waived and cannot be raised for the first time on appeal.”).




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      As noted above, Appellant acknowledges that his serial PCRA petition

is untimely, but asserts that he timely filed the petition once he obtained

new evidence. When considering a PCRA petitioner’s claim that he or she

has established an exception to the PCRA’s time bar under section

9545(b)(1)(ii), the petitioner must establish only that the facts upon which

the claim was predicated were unknown to him, and that he could not have

ascertained   the    facts   earlier   despite   the    exercise     of   due   diligence.

Commonwealth v. Bennett, 930 A.2d 1264, 1270-72 (Pa. 2007).                           The

determination   of     timeliness      does   not      require   a    merits    analysis.

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

      A petitioner is eligible for relief under the PCRA if he can establish the

“unavailability at the time of trial of exculpatory evidence that has

subsequently become available and would have changed the outcome of the

trial if it had been introduced.” 42 Pa.C.S.A. § 9543(a)(2)(vi). This Court

has explained the test to be applied to such a claim as follows:

            To obtain relief based on after-discovered evidence, an
         appellant must demonstrate that the evidence: (1) could
         not have been obtained prior to the conclusion of the trial
         by the exercise of reasonable due 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) (citation

omitted).     “The test is conjunctive; the appellant must show by a



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preponderance of the evidence that each of these factors has been met in

order for a new trial to be warranted.” Id. Moreover, “when reviewing the

decision to grant or deny a new trial on the basis of after-discovered

evidence, an appellate court is to determine whether the PCRA court

committed an abuse of discretion or error of law that controlled the outcome

of the case.” Id.

     In rejecting Appellant’s claim, the PCRA court explained:

           Here, the Court concluded that the “after-discovered
        evidence” presented by [Appellant] at the PCRA
        evidentiary hearing clearly would not result in a different
        verdict if a new trial were granted. This conclusion was
        premised upon two findings.

            First, the proffered after-discovered evidence was
        utterly and completely incredible, and therefore, was not
        likely to have any effect on the outcome of the trial.
        [Appellant’s] after-discovered evidence consisted solely of
        the testimony of Raynell Allen. According to Ms. Allen’s
        testimony at the evidentiary hearing, she has known
        [Appellant] for twenty years. Ms. Allen testified that,
        years after the murder of [the victim], she ran into
        [Appellant’s] daughter, who informed Ms. Allen that
        [Appellant] was in prison for murder. Ms. Allen testified
        that thereafter, she wrote [Appellant] a letter in which she
        informed [Appellant] that she knew that he did not kill [the
        victim]. Ms. Allen testified that on the night that [the
        victim] was murdered, she was in her home at 607 Mercy
        Street, across the street from the playground in which the
        murder occurred, when she heard a gunshot. Ms. Allen
        testified that shortly after she heard the shot, her
        boyfriend, [Jones], entered her apartment and asked her
        to go and look in the playground because he had shot
        someone. According to Ms. Allen, Mr. [Jones] wanted her
        to go outside to the playground and check to see if the
        man was dead. Ms. Allen stated that she went into the
        playground and saw a man lying under a bench and blood
        on the ground. Ms. Allen testified that, following the

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       incident, she never asked Mr. [Jones] about what
       happened, and he never told her anything else about the
       shooting. Ms. Allen testified that she was afraid to come
       forward with this information, and that after that night,
       she never spoke to anyone about what had happened, and
       that she never gave an interview to the police.

          The PCRA court found Ms. Allen’s testimony to be
       incredible for several reasons. First, Ms. Allen did not
       come forward with this information until more than 18
       years after the murder, and more than six years after Mr.
       [Jones] had passed away and therefore could no longer be
       prosecuted for the crime. Moreover, at the evidentiary
       hearing, Ms. Allen testified that she had never spoken to
       the police or given a statement regarding the murder.
       However, the evidence at the hearing established that,
       contrary to this testimony, Ms. Allen had given to the
       police a signed statement on the day of [the victim’s]
       murder in which she told the police a completely different
       story than the story she told at the evidentiary hearing. In
       particular, Ms. Allen told the police that she was walking to
       a swimming pool to see a friend named Ramy when she
       happened upon [the victim], who was moaning and
       bleeding heavily. Nowhere in her statement to the police,
       given on the very day of the killing, did she ever mention
       Mr. [Jones,] or even hint at the sequence of events that
       she described at the evidentiary hearing approximately 21
       years later.     The Court found her testimony to be
       demonstratively unbelievable and incapable of influencing
       the decision of a reasonable factfinder.

          Second, Ms. Allen’s testimony, even if true, would not
       have established that [Appellant] was not guilty of
       conspiracy and first-degree murder. As described above,
       the evidence at the trial established that [Appellant],
       together with Mr. [Jones], secured the shotgun that was
       used to murder [the victim], and that both [Appellant] and
       Mr. [Jones], along with Mr. Witherspoon, confronted [the
       victim] in the playground.       Therefore, even if, as
       [Appellant] now claims, Mr. [Jones] pulled the trigger and
       shot [the victim,] [Appellant] would still be guilty of first-
       degree murder as either a co-conspirator or accomplice of
       the shooter.



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PCRA Court Opinion, 11/7/13, at 7-9 (footnote and citations omitted).

      Our review of the record supports the PCRA court’s conclusion that

Appellant has failed to meet the burden necessary to obtain post-conviction

relief on an after-discovered evidence claim. See e.g., Commonwealth v.

Abu-Jamal, 720 A.2d 79, 104-05 (Pa. 1998) (rejecting the petitioner’s

claims   that   the   proposed   testimony   of   newly   discovered   witnesses

established a basis for the grant of a new trial).

      Appellant’s remaining claims involve his assertion that PCRA counsel

was ineffective in his presentation of Appellant’s “after-discovered” evidence

claim. See Appellant’s Brief at 38-39. Unfortunately for Appellant, and as

recognized by the PCRA court, Appellant inappropriately has raised this claim

for the first time on appeal. See Commonwealth v. Ford, 44 A.3d 1190,

1200 (Pa. Super. 2012) (noting that a majority of the Pennsylvania Supreme

Court agrees that issues of PCRA counsel ineffectiveness must be raised in a

serial PCRA petition or in response to a Pa.R.Crim.P. 907 notice of dismissal

before the PCRA court).      Appellant has therefore failed to preserve his

remaining claims.

      In sum, the record supports the PCRA court’s conclusion that Appellant

failed to establish his claim of after-discovered evidence, and his claims of

ineffectiveness of PCRA counsel are not preserved. We thus affirm the PCRA

court’s order denying Appellant post-conviction relief.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/7/2014




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