J-S60021-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                    v.

ROBERT J. HOUSE

                          Appellant                   No. 819 MDA 2014


                Appeal from the Order Entered April 24, 2014
              In the Court of Common Pleas of Dauphin County
              Criminal Division at No: CP-22-CR-0002768-2003


BEFORE: OTT, STABILE, and JENKINS, JJ.

MEMORANDUM BY STABILE, J.:                       FILED NOVEMBER 13, 2014

      Appellant Robert J. House pro se appeals from an order of the Court of

Common Pleas of Dauphin County (PCRA court), which dismissed without a

hearing his request for collateral relief under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-46. For the reasons set forth below, we affirm.

      The   facts   and   procedural   history   underlying   this   appeal   are

undisputed. As we have previously recounted:
            On March 7, 2003, Brent Mosley [“Mosley”] and Rikeena
      Turner [“Turner”] exited the home of a friend on North 15th
      Street in Harrisburg, Pennsylvania.      Mosley noticed that a
      champagne-colored car, which he had seen when he entered the
      home, was still parked across the street. Mosley and Turner got
      into Mosley’s car and began to drive away; the car that had been
      parked across the street followed and eventually blocked their
      lane of travel on 19th Street. A man identified as Appellant, and
      another man, exited the champagne-colored car and approached
      Mosley’s vehicle. The two men were both brandishing guns, and
      they ordered Mosley out of his car.
            A third man, the driver of the champagne-colored car, then
      exited the car. He walked to Mosley’s car and pulled him out.
      One of the assailants ripped a gold necklace from Mosley’s neck.
J-S60021-14


      Mosley was able to overpower his attacker and flee to his car;
      his vehicle was then fired upon by the attackers. The bullets
      penetrated the car, but they did not strike Mosley or his
      passenger.

Commonwealth v. House, No. 571 MDA 2010, unpublished memorandum

at 1-2 (Pa. Super. filed December 21, 2010) (citation omitted).
               On June 17, 2004, a jury convicted Appellant of
      aggravated assault and conspiracy to commit aggravated
      assault.   On September 9, 2004, the trial court sentenced
      Appellant to a term of incarceration of thirteen and one-half
      years to twenty-seven years. On August 9, 2005, this Court
      affirmed Appellant’s judgment of sentence.
             On October 28, 2005, Appellant filed a pro se PCRA
      petition. The PCRA court appointed counsel, and subsequently
      permitted counsel to withdraw. On August 31, 2006, the PCRA
      court dismissed Appellant’s PCRA petition. Appellant filed a
      timely appeal, and this Court affirmed the order of the PCRA
      court denying relief on October 30, 2007.
             On February 9, 2009, Appellant filed a document titled:
      “Petition for Writ of Habeas Corpus Ad Subjiciendum.” On
      February 24, 2010, the PCRA court dismissed Appellant’s
      petition.

Id. at 2 (internal citation omitted). Treating Appellant’s habeas petition as

an untimely PCRA petition, we affirmed the PCRA’s order. Id. at 4-8.

      On March 14, 2013, Appellant filed his third (instant) petition for PCRA

relief, alleging after-discovered evidence.      Specifically, Appellant claimed

that Commonwealth witness Mosley had recanted his trial testimony

identifying Appellant as the shooter.      In support of this claim, Appellant

attached to the petition an affidavit by Mosley.       The affidavit provided in

pertinent part:
             I, Brent Mosley . . . testified at the trial of [Appellant] held
      on June 14th-17th. I testified that he, in the company of others,
      fired shots at me. As a result of me identifying him as the
      shooter he was convicted.
             This statement of facts within this affidavit are my true an
      [sic] accurate account of the incident despite the false testimony
      I provided at trial. From the outset of this case I was reluctant

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J-S60021-14


       to state what actually took place and didn’t want anything to do
       with the matter. On May 4, 2003 I informed Detective Aaron
       Paige that I didn’t want to press charges nor did I want anything
       to do with the matter.
              Following my arrest for my own unrelated criminal
       matters, I decided to use the case against [Appellant] as a
       means to reduce any potential prison time I faced. In turn, I
       lied and told the authorities that I would testify that [Appellant]
       was the shooter during the incident in questions [sic].
              In comparison to my previously made statements, I lied
       and testified that [Appellant] shot at me. That testimony was
       false, [Appellant] did not shoot at me. Any previous testimony I
       may have provided, I will discredit with the facts within this
       affidavit if called on to do so.

Mosley’s Affidavit, 2/19/13. Following receipt of Appellant’s answer to the

PCRA court’s Pa.R.Crim.P. 907 notice of intention to dismiss, the court

dismissed without a hearing Appellant’s PCRA petition on April 24, 2014.

Appellant appealed to this Court.              Appellant filed a Pa.R.A.P. 1925(b)

statement of errors complained of on appeal.               The PCRA court filed a

Pa.R.A.P. 1925(a) opinion on June 5, 2014, by which it incorporated its April

7, 2014 opinion filed in support of its Rule 907 notice. In its April 7, 2014

opinion, the PCRA court concluded that Appellant’s third PCRA petition was

not only facially untimely, but it also failed to prove the after-discovered

evidence    exception     to   the   one-year     time   bar   set   forth   in   Section

9545(b)(1)(ii) of the PCRA.1 The PCRA court found Appellant provided “no
____________________________________________


1
  Generally, a petition for PCRA relief, including second or subsequent
petition, must be filed within one year of the date the judgment is final. See
42 Pa.C.S.A. § 9545(b)(3); see also Commonwealth v. Alcron, 703 A.2d
1054, 1056 (Pa. Super. 1997), appeal denied, 724 A.2d 348 (Pa. 1998).
One exception to the timeliness requirement, however, is after-discovered
facts or evidence.      See 42 Pa.C.S.A. § 9545(b)(1)(ii) (This exception
requires a petitioner to plead and prove that “the facts upon which the claim
(Footnote Continued Next Page)


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. . . evidence that he could not have obtained,” by the exercise of due

diligence, Mosley’s proffered statement at or prior to trial.       PCRA Court

Opinion, 4/7/14, at 5.           The court also found that Mosley’s recantation

statement was cumulative in that it closely mirrored his testimony at trial

and that the introduction of the recantation sought “to challenge the

credibility of another trial witness.”2 Id. at 9-11.

        On appeal,3 Appellant essentially argues that the trial court erred in

dismissing his PCRA petition without a hearing. After careful review of the
                       _______________________
(Footnote Continued)

is predicated were unknown to the petitioner and could not have been
ascertained by the exercise of due diligence.”). A PCRA petition invoking a
timeliness exception must “be filed within 60 days of the date the claims
could have been presented.” 42 Pa.C.S.A. § 9545(b)(2). We have no
jurisdiction over untimely PCRA petitions. See Commonwealth v. Seskey,
86 A.3d 237, 241 (Pa. Super. 2014).
2
    With regard to recanted testimony, we have previously stated:
        While [the appellate courts have] often acknowledged the
        limitations inherent in recantation testimony, we have not
        foreclosed the possibility that, in some instances, such testimony
        may be believed by the factfinder and thus form a basis for
        relief. For this to occur, however, the testimony must be such
        that it could not have been obtained at the time of trial by
        reasonable diligence; must not be merely corroborative or
        cumulative; cannot be directed solely to impeachment; and must
        be such that it would likely compel a different outcome of the
        trial. In addition, 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 discretion.
Commonwealth v. Hammond, 953 A.2d 544, 561 (Pa. Super. 2008)
(citation and quotation omitted), appeal denied, 964 A.2d 894 (Pa. 2009).
3
 As we recently noted in Commonwealth v. Medina, 92 A.3d 1210 (Pa.
Super. 2014) (en banc):
        On appeal from the denial of PCRA relief, our standard and scope
        of review is limited to determining whether the PCRA court’s
(Footnote Continued Next Page)


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J-S60021-14



parties’ briefs, the record on appeal, and the relevant case law, we conclude

that the PCRA court’s 1925(a) opinion incorporating its April 7, 2014 opinion

authored by the Honorable Todd A. Hoover, thoroughly and adequately

disposes of Appellant’s issue on appeal.4 See PCRA Court 1925(a) Opinion,

6/5/14, PCRA Court Opinion, 4/7/14, at 3-11.       We, therefore, affirm the

PCRA court’s order dismissing Appellant’s PCRA petition without a hearing.

We direct that a copy of the PCRA court’s June 6, 2014 Rule 1925(a) opinion

and April 7, 2014 opinion in support of its Rule 907 notice be attached to

any future filings in this case.

                       _______________________
(Footnote Continued)

      findings are supported by the record and without legal error.
      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 prevailing party at the PCRA court level. The PCRA court’s
      credibility determinations, when supported by the record, are
      binding on this Court. However, this Court applies a de novo
      standard of review to the PCRA court’s legal conclusions.
      Additionally, courts will not entertain a second or subsequent
      request for PCRA relief unless the petitioner makes a strong
      prima facie showing that a miscarriage of justice may have
      occurred. Appellant makes a prima facie showing of entitlement
      to relief only if he demonstrates either that 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.
Medina, 92 A.3d at 1214-15 (internal citation and quotation marks
omitted).
4
   We observe that Mosley’s recantation probably would not result in a
different verdict if a new trial were awarded. Aside from the testimony of
Mosley’s passenger (Turner) identifying Appellant as the shooter, see N.T.
Trial, 6/14-17/04, at 310-11, the recantation itself acknowledges the
commission of perjury. Therefore, his original testimony at Appellant’s trial
would be admissible in a new trial as substantive evidence based on it being
a prior inconsistent statement made under oath.



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J-S60021-14



     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2014




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