J-S61002-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                     v.

LOUIS VAN REESE

                          Appellant                   No. 772 WDA 2015


               Appeal from the PCRA Order entered May 14, 2015
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0005061-2002
                                          CP-02-CR-0005062-2002


BEFORE: PANELLA, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.                       FILED SEPTEMBER 06, 2016

      Louis Van Reese appeals from the order denying his serial petition for

post-conviction relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.

      The pertinent facts and procedural history have been summarized as

follows:

              Ms. Talavia Ledbetter testified that on December 10,
           2001, she, Kevin Crosby, and Lindsay [Loker] drove to the
           Club Classic. Once inside, a man approached Ms. [Loker]
           and started pulling on [her]. The witness then identified
           [Appellant] as the man in the club who had approached
           her friend. She then testified that as she and her party
           were leaving, [Appellant] again pulled on Ms. [Loker]. Mr.
           Crosby intervened and words were exchanged. Ms.
           Ledbetter grabbed [Appellant] and threw him to the
           ground. However, before Ms. Ledbetter and her party
           [could] leave, she claimed that she re-entered the bar to
           retrieve Mr. Crosby’s hat. When she returned, they left the
           parking lot and were on Verona Road when she heard
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       shots and saw a white car, driven by [Appellant], following
       them. [Appellant] fired into the Ledbetter car and the
       driver, Kevin Crosby[,] was shot. The car then wrecked
       and Ms. Ledbetter suffered a ruptured uterus, bladder and
       spleen. She also had both ankles and her tibia broken. On
       cross-examination, she admitted drinking and that
       [Appellant] appeared to have been drinking. She also
       admitted to having filed a Civil Action against [Appellant]
       and the bar.

          Lindsay [Loker] similarly testified that she was with Ms.
       Ledbetter and [Ms. Ledbetter’s] boyfriend [Kevin Crosby]
       at Club Classic on December 11, 2001. She stated that
       [Appellant] grabbed her as she was exiting the ladies
       restroom. After describing how [Appellant] looked that
       night and what he was wearing, she identified him for the
       jury. Ms. [Loker] then testified that twenty minutes after
       the incident at the restroom [Appellant] stumbled into her
       and attempted to talk to her. [As] she and her friends left
       the club [Appellant] grabbed her. Ms. [Loker] related how
       Mr. Crosby intervened and how Ms. Ledbetter grabbed
       [Appellant]. She also said she recalled [Appellant] stating,
       “bitch, I’ll fuck you up” and reached for his waist band,
       although she admitted that she never saw a gun.

          After the incident in the parking lot, Ms. [Loker] stated
       that the victims got into Crosby’s car and drove away. Ms.
       [Loker] noticed they were being followed by a white car,
       which looked similar to the one she had seen [Appellant]
       standing near, looking for his keys a short time earlier at
       the night club. She then explained that she heard one
       shot, turned and actually saw the second shot being fired
       at the car, but could not identify the shooter.

          [Ms. Loker] then testified she remembered “coming to
       on Washington Boulevard and flagging down a police car.”
       City of Pittsburgh Police Officer Paul Kirby testified that he
       found Ms. [Loker] and the others at 2:27 a.m.

          [Ms. Loker testified] that the whole incident from
       leaving the bar until she flagged down the police car may
       have taken ten minutes. She went on to explain that she
       told the officer about the incident at the bar and how the
       car from which the shots were fired looked like the car
       [Appellant] got into. She also explained she suffered a


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        compression fracture of the spine and a radial [fracture] of
        her right wrist.

            Mr. Kevin Crosby testified similarly that they were
        drinking at Club Classic when Ms. [Loker] was accosted by
        [Appellant]. He then testified to the incident in Club
        Classic’s parking lot and how after getting on Allegheny
        River Boulevard, Lindsay “looks out the back window and I
        think she said somebody is following us.” Crosby testified
        that “I looked up and into the rear view mirror and a car
        comes zooming in back behind me before he cut out the
        lights. I could see into the car it was [Appellant], and I
        heard four (4) shots.” One bullet lodged in Mr. Crosby’s
        head, and he also broke his left leg and two ribs.

                                     ***

           [T]he defense called Darrell Holloway, Terrell Bush and
        Cheyenne Allen, who all testified they witnessed
        [Appellant] pull out [of the Club Classic parking lot] in the
        opposite direction from the Crosby car. [Appellant] also
        took the stand and admitted to drinking at Club Classic
        and having an encounter with Ms. [Loker] and Mr. Crosby.
        However, he stated he started to come towards
        Wilkinsburg when he decided to go to the Original (hot dog
        shop) in Oakland. He testified that he was not driving up
        Washington Boulevard on Fifth Avenue, but rather turned
        on Fifth Avenue from Penn Avenue when Officer [David]
        Meade saw him. While he admitted to fleeing and eluding
        the police and to drunk driving, he denied any knowledge
        of the shooting.

Commonwealth v. Reese, 929 A.2d 248 (Pa. Super. 2007), unpublished

memorandum at 1-4 (citation omitted).

     Based upon the above, the jury, on December 15, 2004, convicted

Appellant of three counts of criminal attempt to commit homicide, three

counts of aggravated assault, two counts of driving under the influence, and

one count of fleeing or eluding police. On April 6, 2005, Appellant was

sentenced   to   an   aggregate   term   of   twenty-five   to   sixty   years   of

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imprisonment. Appellant filed a timely post-sentence motion. That same

day, the trial court entered an order purporting to vacate Appellant’s

judgment of sentence “pending hearing on motion for new trial and

modification of sentencing.” On September 12, 2005, the clerk of courts

entered an order denying the post-sentence motion by operation of law.

        Appellant filed a timely appeal to this Court, and, on May 8, 2007, we

rejected Appellant’s sufficiency challenge and affirmed his judgment of

sentence. See Reese, supra. Appellant did not file a petition for allowance

of appeal. On May 29, 2008, Appellant filed a counselled PCRA petition, and

PCRA counsel filed an amended PCRA petition on June 3, 2009. Following an

evidentiary hearing, the PCRA court dismissed Appellant’s first PCRA petition

on June 30, 2009. Appellant filed a timely appeal, and, on February 10,

2011,    we   affirmed   the   order   denying   post-conviction   relief.   See

Commonwealth v. Reese, 24 A.3d 452 (Pa. Super. 2011) (unpublished

memorandum). On August 2, 2011, our Supreme Court denied Appellant’s

petition for allowance of appeal. See Commonwealth v. Reese, 26 A.3d

483 (Pa. 2011).

        On November 7, 2011, Appellant filed a counseled “Defendant’s Motion

for Imposition of Sentence,” wherein he contended that he had not been

lawfully sentenced because his original sentence had been vacated and

never re-imposed. On April 4, 2012, the trial court denied Appellant’s

motion. Appellant filed a timely appeal to this Court. Treating the motion as

a request for habeas corpus relief outside the parameters of the PCRA, this

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Court concluded that the trial court’s order vacating Appellant’s sentence

was a legal nullity. We therefore affirmed the order denying Appellant’s

motion. See Commonwealth v. Reese, 96 A.3d 1083 (Pa. Super. 2014)

(unpublished memorandum). On August 7, 2014, our Supreme Court denied

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

97 A.3d 744 (Pa. 2014).

     On September 22, 2014, Appellant filed a “Motion to Resume PCRA

Proceedings,” in which he sought to continue seeking relief via a pro se

PCRA petition he had filed during the pendency of his latest appeal. The

PCRA court appointed present counsel. PCRA counsel filed an amended PCRA

petition on November 12, 2014, in which Appellant raised a newly

discovered   evidence   claim   regarding    Commonwealth   witness    Talavia

Ledbetter. The Commonwealth filed an answer, and the PCRA court held an

evidentiary hearing on April 22, 2015. By order entered on May 14, 2015,

the PCRA court denied Appellant’s petition. This timely appeal follows.

     Appellant raises the following issue:

        1. Did the [PCRA] court err in denying Appellant’s PCRA
           petition since [Talavia] Ledbetter provided newly
           discovered evidence, in an affidavit and at the 4/22/15
           PCRA hearing, recanting her trial testimony that
           identified Appellant as the shooter, since she never
           observed the identity of the shooter, the identity of the
           shooter was told to her by others, her mind was
           compromised by prescribed medications due to her
           serious injuries, and she was coerced by the
           Commonwealth to testify at Appellant’s trial, despite the
           fact that she had no personal knowledge of the identity
           of the shooter. If the jury had heard this testimony, it


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            would likely not have convicted Appellant of attempted
            homicide and related crimes?

Appellant’s Brief at 3 (excess capitalization omitted).

      This Court’s standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is

supported by the evidence of record and is free of legal error. See

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record. See Commonwealth v. Carr, 768 A.2d

1164, 1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold

a hearing on the petition if the PCRA court determines that petitioner’s claim

is patently frivolous and is without a trace of support either in the record or

from other evidence. See Commonwealth v. Jordan, 772 A.2d 1011, 1104

(Pa. Super. 2001).

      Because this is Appellant’s second petition for post-conviction relief, he

must meet a more stringent standard. “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 demonstrates that either the proceedings which resulted

in his conviction were so unfair that a miscarriage of justice occurred which




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no civilized society could tolerate, or that he was innocent of the crimes for

which he was charged.” Id. (citations omitted).

      The timeliness of a post-conviction petition is jurisdictional. See

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

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

is final unless the petition alleges, and the petitioner proves an exception to

the timeliness requirement. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A PCRA

petition invoking one of these statutory exceptions must “be filed within 60

days of the date the claims could have been presented.” Hernandez, 79

A.3d 651-52 (citations omitted). See also 42 Pa.C.S.A. § 9545(b)(2).

Finally, exceptions to the PCRA’s time bar must be pled in the petition and

may not be raised for the first time on appeal. See Commonwealth v.

Burton, 936 A.2d 521, 525 (Pa. Super. 2007). See also Pa.R.A.P. 302(a).

      Appellant’s judgment of sentence became final on June 8, 2007, when

the thirty-day time period for filing a petition for allowance of appeal with

our Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3). Thus, Appellant

had until June 8, 2008, to file a timely PCRA petition. As Appellant filed the

instant petition in 2013, it is patently untimely unless he has satisfied his

burden of pleading and proving that one of the enumerated exceptions

applies.




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      Within his brief, Appellant does not acknowledge that his latest petition

is untimely and makes no mention of the PCRA’s time bar exceptions.

Instead, although arguing “newly-discovered evidence,” Appellant cites a

case from this Court that conflates eligibility for the PCRA’s time bar

exceptions with the eligibility for relief, via a timely PCRA petition, based

upon “after-discovered evidence” pursuant to 42 Pa.C.S.A. § 9543(a)(vi).

See Appellant’s Brief at 17 (citing Commonwealth v. Holmes, 925 A.2d

507 (Pa. Super. 2006)). Each of these sections of the PCRA requires

different analyses.

      When considering a PCRA’s petitioner’s claim that he or she has

established an exception to the PCRA’s time bar under § 9545(b)(1)(ii), the

petitioner must establish only that the facts upon which the claim are

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

facts earlier despite the exercise of due diligence. See Commonwealth v.

Bennett, 930 A.2d 1264, 1270-1272 (Pa. 2007). The determination of

timeliness does not require a merits analysis. See Commonwealth v. Abu-

Jamal, 941 A.2d 1263, 1268 (Pa. 2008).

      Here, Appellant does not demonstrate the exercise of due diligence.

Although he asserts he filed his latest PCRA petition within sixty days of the

discovery of Ms. Ledbetter’s purported recantation, see Appellant’s Brief at

18, he offers no explanation as to why, with the exercise of due diligence,

this information could not have been discovered earlier. We could affirm the


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PCRA court’s order denying post-conviction relief on this basis alone. See

Commonwealth v. Doty, 48 A.3d 451, 456 (Pa. Super. 2012) (explaining

that this Court can affirm the PCRA court’s denial of post-conviction relief on

any basis).

      Nevertheless, even if the PCRA court had found Appellant met the

timeliness exception for newly-discovered evidence, we would agree with the

PCRA court’s ultimate conclusion that Appellant did not demonstrate he is

entitled to post-conviction relief based upon Ms. Ledbetter’s affidavits or

testimony at the evidentiary hearing.

      A petitioner is eligible for relief under the PCRA if he or she 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 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

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

order for a new trial to be warranted.” Id. (citation omitted). Moreover,


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“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. (citation omitted).

      In concluding that Appellant failed to meet this burden, the PCRA court

noted that Ms. Ledbetter’s trial testimony identifying Appellant as the

shooter was corroborated by the identification testimony of Mr. Crosby, as

well as an inference from Ms. Loker’s testimony that Appellant was the

occupant of the vehicle from which the shots were fired. Thus, Ms.

Ledbetter’s recantation of her trial testimony would not have likely resulted

in a different verdict if a new trial was granted.

      Moreover, the PCRA court did not find her recantation testimony to be

credible. We cannot disturb this determination. See Commonwealth v.

D’Amato, 856 A.2d 806, 825-826 (Pa. 2004) (explaining that the PCRA

court as fact-finder is in a superior position to make the initial assessment of

the importance of the recanting witness’s testimony to the outcome of the

case). Nevertheless, the PCRA court’s credibility determination is supported

by our review of the evidentiary hearing—Ms. Ledbetter was inconsistent

with her testimony regarding when she stopped taking the drugs that

purportedly compromised her ability to remember the shooting incident. In

addition, we note that no medical evidence was introduced at the hearing to

support Ledbetter’s time line regarding the treatment for her injuries. See

N.T., 4/22/15, at 5-29.

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     In sum, for all of the above reasons, the PCRA court correctly

determined that Appellant was ineligible for relief. We therefore affirm the

PCRA court’s order denying Appellant’s PCRA petition.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/6/2016




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