J-S54035-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :        IN THE SUPERIOR COURT OF
                                               :              PENNSYLVANIA
            v.                                 :
                                               :
JASON JAMES HARPER,                            :
                                               :
                   Appellant                   :             No. 85 WDA 2016

                Appeal from the PCRA Order December 1, 2015
              in the Court of Common Pleas of Allegheny County,
              Criminal Division, No(s): CP-02-CR-0009702-2011

BEFORE: BENDER, P.J.E., OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                                 FILED JULY 27, 2016

      Jason James Harper (“Harper”) appeals from the Order dismissing his

Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).

See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      On May 31, 2011, Harper had an argument with another person inside

of Pearl’s Café, a bar in the Homestead neighborhood of Allegheny County.

The   bartender,   James       Miller   (“Miller”),   intervened   and   ended   the

confrontation. As Harper left the bar, he had a brief interaction with Diego

Walker (“Walker”) by the front door. Harper left the bar, but he returned

moments later and shot Walker in the leg, shattering Walker’s femur. After

the police reported to the scene, Harper was identified as a possible suspect.

An officer saw Harper running through the street and followed him to an

apartment building, where police arrested him.            Harper was charged with

one count each of aggravated assault, persons not to possess a firearm, and
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carrying a firearm without a license. Following a jury trial, Harper was found

guilty of aggravated assault and carrying a firearm without a license.

Thereafter, the trial court sentenced him to a prison term of ten to twenty

years.

      This Court affirmed the judgment of sentence, after which the

Pennsylvania Supreme Court denied Harper’s Petition for Allowance of

Appeal. See Commonwealth v. Harper, 96 A.3d 1096 (Pa. Super. 2014)

(unpublished memorandum), appeal denied, 96 A.3d 1026 (Pa. 2014).

      Harper, pro se, filed a timely PCRA Petition. The PCRA court appointed

counsel, who filed an Amended Petition.         Following a hearing, at which

Harper’s designated witness, Gary Lamont Butler (“Butler”), did not appear,

the PCRA court dismissed the Petition.        Harper filed a timely Notice of

Appeal.

      Harper raises the following question for our review:

      Did the [PCRA] court err in [dismissing Harper’s] PCRA Petition
      since [] Butler submitted newly discovered evidence, in the form
      of an 11/11/14 affidavit, stating that he was an eyewitness to
      the 5/31/11 shooting of [] Walker, and that [Harper] was not the
      shooter[?] If the jury had heard this testimony, it would likely
      not have convicted [Harper] of the instant crimes, and therefore
      [Harper] should have been granted a new trial[.]

Brief for Appellant at 3 (capitalization omitted).

            An appellate court reviews the PCRA court’s findings of fact
      to determine whether they are supported by the record, and
      reviews its conclusions of law to determine whether they are free
      from legal error. The 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 prevailing party at the trial level.


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Commonwealth v. Freeland, 106 A.3d 768, 775 (Pa. Super. 2014)

(citation and brackets omitted).

      Harper claims that the PCRA court erred in dismissing his Petition

where he submitted newly discovered evidence. See Brief for Appellant at

17-20.   Harper contends that the evidence provided by Butler’s affidavit

establishes that Harper was not the shooter. See id. at 20. Harper asserts

that this evidence, presented to the jury with all other evidence, would have

led to a finding of innocence. See id. Thus, Harper concludes that a new

trial is required. See id.

      In order to present a successful newly discovered evidence claim:

      [Harper] must demonstrate that the evidence: (1) could not
      have been obtained prior to the conclusion of the trial by the
      exercise of reasonable 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. Padillas, 997 A.2d 356, 363 (Pa. Super. 2010)

(citations omitted).   “The test is conjunctive; [Harper] 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.   Whether newly discovered

evidence is corroborative or cumulative depends on the strength of other

evidence supporting the conviction. Id. at 364. Further, where the newly

discovered evidence supports a claim that the petitioner previously made




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and litigated at trial, it is probably cumulative or corroborative of the

evidence already presented. Id. at 365.

      Here, Butler provided an affidavit explaining that he was at the bar on

the evening of the incident, saw the shooter, the shooter was not Harper,

and that the police never questioned him.           See Affidavit, 11/24/14.

However, Miller and another bar employee testified at trial that they did not

know if Harper was the shooter.       N.T., 9/25/12, at 71, 95, 104.   Further,

Walker testified that, while he could not definitively identify the shooter, he

knew it was not Harper. N.T., 9/25/12, at 127. Thus, Butler’s affidavit was

merely corroborative to evidence presented at trial. See Padillas, 997 A.2d

at 363.

      Moreover, Harper has not demonstrated that Butler’s testimony would

have changed the outcome of the trial.         Indeed, the PCRA court noted

“overwhelming evidence implicating [Harper], most notably a surveillance

video from inside [the bar] that captured [Harper,] and his conduct inside

the bar.”   PCRA Court Opinion, 4/13/16, at 7; see also N.T., 9/27/12, at

323; Commonwealth v. Childs, 63 A.3d 323, 327 (Pa. Super. 2013)

(stating that video surveillance was sufficient to identify appellant as the

perpetrator). Thus, Harper’s claim is without merit. See Padillas, 997 A.2d

at 367-68 (stating that appellant is not entitled to a new trial where a new

jury, presented with all evidence including the new witness testimony, would

not arrive at a different outcome).



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      Based upon the foregoing, we conclude that the PCRA court properly

dismissed the Petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/27/2016




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