J-A22014-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KEVIN YELVERTON                            :
                                               :
                       Appellant               :   No. 148 EDA 2019

             Appeal from the PCRA Order Entered January 11, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0104401-2004

BEFORE:      MURRAY, J., STRASSBURGER, J.*, and PELLEGRINI, J.*

MEMORANDUM BY MURRAY, J.:                          FILED SEPTEMBER 06, 2019

        Kevin Yelverton (Appellant) appeals from the order dismissing his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541–9546. We affirm.

        Prior panels of this Court summarized the pertinent facts and procedural

history of this case as follows:

           On June 9, 2003[,] at approximately 6:30 p.m., Tyrek Nelson
        (hereinafter “Tyrek”), David Nelson, his brother, the deceased
        (hereinafter “David”), and Michael Hinton (hereinafter “Michael”)
        were on Conestoga Street in Philadelphia. [Appellant] (a/k/a
        Gotti) approached David and questioned him about something
        that was stolen from [Appellant’s] apartment. An argument
        ensued, [Appellant] grabbed David by his shirt, and they began
        shoving each other.      Michael intervened and broke up the
        altercation. Tyrek, David, and Michael left the area and walked
        over to 55th Street in Philadelphia.


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*   Retired Senior Judge assigned to the Superior Court.
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         The next day, June 10, 2003[,] at approximately 9:00 p.m.,
      Tyrek and other unknown males were in a dice game on
      Conestoga Street between Poplar Street and Girard Avenue in
      Philadelphia. David joined the dice game and won about twelve
      hundred dollars before he left. Approximately twenty minutes
      after David left the dice game, Tyrek left and walked towards 54th
      and Pennsgrove Streets. When he was approximately 60 feet
      away from Pennsgrove Street, he heard a gunshot. Upon turning
      onto Pennsgrove Street, he saw a male with braids, later identified
      as [Appellant], standing over another male, later identified as
      David, who was on the ground. He saw [Appellant] touch David’s
      clothing and shoot at him twice. After firing the shots, [Appellant]
      ran across 54th Street through a parking lot.

Commonwealth v. Yelverton, 996 EDA 2006 at 2-3 (Pa. Super. Aug. 30,

2007) (unpublished memorandum) (quoting Trial Court Opinion, 7/14/06, at

1-2 (record citations omitted)).

         Following a jury trial, at which Tyrek [] was a key eyewitness
      for the Commonwealth, Appellant was convicted of second-degree
      murder and possessing an instrument of crime (PIC). On October
      24, 2005, he was sentenced to life imprisonment, without the
      possibility of parole, for his murder conviction, and a consecutive
      term of 16 to 48 months [of] incarceration for his PIC offense. On
      August 30, 2007, this Court affirmed Appellant’s judgment of
      sentence, and our Supreme Court denied his subsequent petition
      for allowance of appeal. Commonwealth v. Yelverton, [996
      EDA 2006 at 2-3 (Pa. Super. Aug. 30, 2007)] (unpublished
      memorandum), appeal denied, 946 A.2d 688 (Pa. 2008).

          Appellant filed his first PCRA petition on December 1, 2008.
      Counsel was appointed and filed an amended petition on his
      behalf. On January 18, 2011, Appellant’s petition was denied
      without a hearing, and Appellant timely appealed. On October 25,
      2013, this Court affirmed the order denying Appellant’s petition,
      and on April 8, 2014, our Supreme Court denied his petition for
      allowance of appeal. Commonwealth v. Yelverton, No. 1040
      EDA 2011, unpublished memorandum (Pa. Super. filed Oct. 25,
      2013), appeal denied, 89 A.3d 661 (Pa. 2014).

        On June 6, 2014, Appellant filed [a] pro se PCRA petition . . . .
      Therein, Appellant asserted, inter alia, that he had obtained new

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      evidence in the form of an affidavit from Tyrek, in which Tyrek
      recanted his trial testimony against Appellant. On July 16, 2014,
      Appellant filed an amended petition.       For some unapparent
      reason, Appellant’s petition languished in the lower court for two
      years before the court issued a Pa.R.Crim.P. 907 notice on July
      12, 2016, stating only that Appellant’s petition “is untimely and
      does not invoke an exception to the timeliness provisions of the
      [PCRA].” Pa.R.Crim.P. 907 Notice, 7/12/16, at 1. On August 1,
      2016, Appellant filed a pro se response to the court’s Rule 907
      notice, but on August 31, 2016, the court issued an order
      dismissing his petition as being untimely-filed.

Commonwealth v. Yelverton, 3110 EDA 2016 at 2-3 (Pa. Super. Feb. 2,

2018) (unpublished memorandum).

      Appellant timely appealed the denial of his second PCRA petition to this

Court.   On appeal, this Court vacated the order denying his second PCRA

petition as untimely, concluding that Appellant’s after-discovered evidence

claim relating to Tyrek’s recantation affidavit potentially satisfied the newly-

discovered fact exception to the PCRA’s time limitation and that Appellant had

exercised due diligence in raising the claim.    Id. at 8-9.   Accordingly, we

remanded the case to the PCRA court to determine in the first instance

whether Tyrek’s recantation satisfied the timeliness exception and if so,

whether the after-discovered evidence claim had merit.

      On October 5, 2018, the PCRA court held a hearing on Appellant’s claim.

On January 11, 2019, the PCRA court issued an order dismissing Appellant’s

second PCRA petition.    The PCRA court determined that Appellant’s claim

satisfied the newly-discovered fact exception to the PCRA’s time limitation and

that consequently, the court had jurisdiction over his second PCRA petition.


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PCRA Court Opinion, 3/6/19, at 3. The court, however, further determined

that Appellant’s after-discovered evidence claim was meritless. Id. at 5. The

court reasoned that Tyrek’s recantation was not credible and that even if it

were credible, it would not have changed the outcome at trial because there

was other evidence of Appellant’s guilt, including another eyewitness who

testified at trial that Appellant committed the murder. Id. at 2-5. Appellant

timely appealed to this Court.

      Appellant presents the following issue for review:

      1.     Did the PCRA court err in dismissing Appellant’s PCRA
      Petition because recanting eyewitness, Tyr[e]k Nelson, testified
      consistently at the evidentiary hearing and there is no reasonable
      basis for believing that Mr. Nelson would wish to give exculpatory
      testimony in favor of Appellant if Appellant had, in fact, shot and
      killed Mr. Nelson’s brother and Decedent in the underlying trial,
      David Nelson?

Appellant’s Brief at 4.

      We review the denial of PCRA relief by “examining whether the PCRA

court’s findings of fact are supported by the record, and whether its

conclusions of law are free from legal error.” Commonwealth v. Busanet,

54 A.3d 35, 45 (Pa. 2012). “Our scope of review is limited to the findings of

the PCRA court and the evidence of record, viewed in the light most favorable

to the party who prevailed in the PCRA court proceeding.” Id.

      Appellant argues that the PCRA court erred in finding Tyrek’s recantation

not credible. Appellant asserts that Tyrek’s recantation was credible because

there was no evidence that he and Appellant had colluded and that “[i]t is


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inconceivable” that Tyrek, whose brother was the victim in this case, would

not want Appellant to face justice if Appellant was indeed the true killer.

Appellant’s Brief at 12-13.

       “Pennsylvania law makes clear no court has jurisdiction to hear an

untimely PCRA petition.” Commonwealth v. Monaco, 996 A.2d 1076, 1079

(Pa. Super. 2010) (quoting Commonwealth v. Robinson, 837 A.2d 1157,

1161 (Pa. 2003)). A petitioner must file a PCRA petition within one year of

the date on which the petitioner’s judgment became final, unless one of the

three statutory exceptions applies:

       (i) the failure to raise the claim previously was the result of
       interference by government officials 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). A petitioner must file a petition invoking one of

these exceptions “within 60 days of the date the claim could have been

presented.” 42 Pa.C.S.A. § 9545(b)(2).1 If a petition is untimely, and the

____________________________________________


1 Act 146 of 2018 amended 42 Pa.C.S.A. §9545(b)(2) and now provides that
a PCRA petition invoking a timeliness exception must be filed within one year
of the date the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(1).



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petitioner has not pled and proven any exception, “‘neither this Court nor the

trial court has jurisdiction over the petition. Without jurisdiction, we simply

do not have the legal authority to address the substantive claims.’”

Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).

       With respect to the newly-discovered fact exception, this Court has

explained:

           The timeliness exception set forth in Section 9545(b)(1)(ii)
       requires a petitioner to demonstrate he did not know the facts
       upon which he based his petition and could not have learned those
       facts earlier by the exercise of due diligence. Commonwealth v.
       Bennett, 930 A.2d 1264, 1271 (Pa. 2007). Due diligence
       demands that the petitioner take reasonable steps to protect his
       own interests. Commonwealth v. Carr, 768 A.2d 1164, 1168
       (Pa. Super. 2001). A petitioner must explain why he could not
       have learned the new fact(s) earlier with the exercise of due
       diligence. Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa.
       2001); Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.
       Super. 2010). This rule is strictly enforced. Id. Additionally, the
       focus of this exception “is on the newly discovered facts, not on a
       newly discovered or newly willing source for previously known
       facts.” Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa.
       2008) (emphasis in original).

           The timeliness exception set forth at Section 9545(b)(1)(ii) has
       often mistakenly been referred to as the “after-discovered
       evidence” exception.        Bennett, 930 A.2d at 1270.         “This
       shorthand reference was a misnomer, since the plain language of
       subsection (b)(1)(ii) does not require the petitioner to allege and
       prove a claim of ‘after-discovered evidence.’” Id. Rather, as an
       initial jurisdictional threshold, Section 9545(b)(1)(ii) requires a
       petitioner to allege and prove that there were facts unknown to
____________________________________________


The amendment took effect on December 24, 2018 and “shall apply to claims
arising on Dec[ember] 24, 2017 or thereafter.” Id. This amendment does
not impact our disposition.

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      him and that he exercised due diligence in discovering those facts.
      See 42 Pa.C.S.A. § 9545(b)(1)(ii); Bennett, supra. Once
      jurisdiction is established, a PCRA petitioner can present a
      substantive after-discovered-evidence claim. See 42 Pa.C.S.A. §
      9543(a)(2)(vi) (explaining that to be eligible for relief under PCRA,
      petitioner must plead and prove by preponderance of evidence
      that conviction or sentence resulted from, inter alia, unavailability
      at time of trial of exculpatory evidence that has subsequently
      become available and would have changed outcome of trial if it
      had been introduced). In other words, the “new facts” exception
      at:

         [S]ubsection (b)(1)(ii) has two components, which must be
         alleged and proved. Namely, the petitioner must establish
         that: 1) the facts upon which the claim was predicated were
         unknown and 2) could not have been ascertained by the
         exercise of due diligence. If the petitioner alleges and
         proves these two components, then the PCRA court has
         jurisdiction over the claim under this subsection.

      Bennett, 930 A.2d at 1272 (internal citations omitted) (emphasis
      in original).   Thus, the “new facts” exception at Section
      9545(b)(1)(ii) does not require any merits analysis of an
      underlying after-discovered-evidence claim.4 Id. at 395, 930 A.2d
      at 1271.

Commonwealth v. Brown, 111 A.3d 171, 176-77 (Pa. Super. 2015)

(citations modified).

      Here, there is no dispute that Appellant’s claim satisfied the newly-

discovered fact exception to the PCRA’s time limitation. Instead, Appellant

challenges the PCRA court’s conclusion that his after-discovered evidence

claim was meritless because Tyrek’s recantation was not credible.

      To obtain relief based upon an after-discovered evidence claim under

the PCRA, a petitioner must establish:

      (1) the evidence has been discovered after trial and it could not
      have been obtained at or prior to trial through reasonable

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      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. D’Amato, 856 A.2d 806, 823 (Pa. 2004).

      Importantly, our Supreme Court has acknowledged that, “as a general

matter, recantation evidence is notoriously unreliable, particularly where the

witness claims to have committed perjury.”        Id. at 825 (quotations and

citations omitted). The Supreme Court “has also emphasized, however, that,

even as to recantations that might otherwise appear dubious, the PCRA court

must, in the first instance, assess the credibility and significance of the

recantation in light of the evidence as a whole.” Id.

      The   PCRA court     provided the     following assessment     of   Tyrek’s

recantation:

          Here, [Tyrek] gave consistent statements throughout the
      entirety of the case. Not only to witnessing the murder and
      identifying [] Appellant but also as to Appellant’s motive and
      telling his mother Appellant killed his brother. It took [Tyrek] ten
      years, five of which he was incarcerated, to recant his story. To
      [Tyrek]’s own admission, it is problematic to be known as a snitch
      in jail. Despite Appellant’s position that it is “inconceivable” that
      [Tyrek] would recant unless it was true given that that his brother
      was killed, [Tyrek] is incarcerated for the foreseeable future on
      multiple attempted murder convictions and related charges.
      Moreover, it is not credible that police would know all the detailed
      information in [Tyrek]’s statement. [Tyrek] gave a detailed
      statement as to both being an eyewitness and as to Appellant’s
      motive and statements. There was no evidence presented to show
      that [Tyrek] gave the statement in exchange for the police
      dropping charges. There was no pending criminal charges against
      [Tyrek] at any time during Appellant’s case nor any record of an
      arrest at that time. Therefore, this court found that [Tyrek]’s
      recantation at the evidentiary hearing was not credible.


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          Notwithstanding the credibility issue, [Tyrek]’s recantation
      alone would not satisfy the requirement that it would likely result
      in a different verdict if a new trial were granted. [Tyrek] was only
      one of two eye witnesses. Christopher Thomas also testified and
      identified Appellant at trial. [Tyrek]’s mother testified that [Tyrek]
      told her that Appellant killed her son. There also was motive
      evidence, flight and ballistic evidence submitted at trial.
      Therefore, the instant recantation would not likely result in a
      different verdict at a new trial.

PCRA Court Opinion, 3/6/19, at 4-5.

      Having reviewed the record, the parties’ briefs, and pertinent authority,

we   conclude    that   the   record   supports   the   PCRA   court’s   credibility

determination.   At Appellant’s PCRA hearing, Tyrek testified that his initial

identification of Appellant as his brother’s killer was a lie and the product of

police coercion and promises by the police to dismiss charges against him.

N.T., 10/5/18, at 34-35.       Tyrek, however, readily acknowledged at the

evidentiary hearing that he was not in custody at the time he gave his

statement to police or when he testified at Appellant’s preliminary hearing,

nor did he have any criminal charges pending against him at either time. Id.

at 35, 50. As the PCRA court recounted, Appellant also explicitly discussed

the problems of serving time in prison while having the reputation of being a

“snitch.” Id. at 86. It is well settled that “[a] PCRA court’s credibility findings

are to be accorded great deference, and where supported by the record, such

determinations are binding on a reviewing court.”           Commonwealth v.

Williams, 141 A.3d 440, 452 (Pa. 2016). Because the PCRA court’s credibility

finding is supported by the record, we are bound its determination. See id.


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      Moreover, Appellant does not in any manner contest the PCRA court’s

determination that even if Tyrek’s recantation was credible, it would not have

changed the outcome of Appellant’s trial because of the other evidence of

Appellant’s guilt. Accordingly, we conclude that the PCRA court did not abuse

its discretion in rejecting Appellant’s after-discovered evidence claim, as it

would not have compelled a differed verdict. See D’Amato, 856 A.2d at 825.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/6/19




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