J-S71023-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

LESTER EILAND

                            Appellant                  No. 674 MDA 2014


                   Appeal from the PCRA Order April 8, 2014
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0002630-2000


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.                          FILED JANUARY 16, 2015

        Appellant, Lester Eiland, appeals from the order entered by the

Honorable Andrew H. Dowling, Court of Common Pleas of Dauphin County,

which denied his petition pursuant to the Post Conviction Relief Act. After

careful review, we affirm.

        This Court has previously summarized the factual and procedural

history behind Eiland’s convictions as follows:

        Angel DeJesus (Mr. DeJesus) was killed in the early morning of
        July 5, 2000, in his taxicab at the intersection of Kittatinny and
        Hummel Streets in Harrisburg.           Jennifer McDonald (Ms.
        McDonald) went to a store around 4:30 a.m., shortly before the
        murder. She observed Appellant and his co-defendants, Kariem
        Eley (Eley) and Edward Mitchell (Mitchell), standing at the
        intersection of Kittatinny and Hummel Streets. As Ms. McDonald
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     was walking home about a minute and half later, she saw Mr.
     DeJesus’s cab pass her traveling toward the intersection. When
     she heard a loud noise, she looked back and saw the cab
     stopped at the intersection with its brake lights on. Five or ten
     minutes after arriving home, Ms. McDonald heard police sirens.

     Guadalupe Fonseca was standing in front of his house at the
     time of the incident and observed three African-American men
     standing near Mr. DeJesus’s cab. He saw one of the men enter
     the cab and heard two gunshots. After the shots, the man got
     out of the cab and joined the other two men at the right side of
     the cab. Mr. Fonseca heard a third shot and saw the men
     departing to the north on Hummel Street. Rufus Hudson saw
     Appellant and his co-defendants at the intersection before the
     shooting and witnessed them running across Hummel Street
     toward an abandoned house after Mr. DeJesus was shot.

     Another taxicab driver in the area, Francisco Ramirez-Torres
     (Ramirez-Torres), was informed of the incident by a passenger
     named Elijio Contreras. Ramirez-Torres drove to the scene and
     called the police. Police officers found Mr. DeJesus alive but
     bleeding from the head. Two shell casings were found on the
     floor of the cab. A police officer found a third casing inside an
     air vent in the car. Mr. DeJesus died at the hospital following
     surgery. The evidence indicated that he had been shot three
     times in the head and neck, at least once from a distance of less
     than a foot, with a .25 caliber handgun. Although Mr. DeJesus
     was known to carry a pouch to hold his money while he was
     working, it was not found on his person or in the cab, nor was
     any money found.

     Appellant and his co-defendants were arrested and held for trial.
     Two mistrials occurred before a third jury convicted Appellant on
     August 10, 2001, … of second-degree murder, conspiracy to
     commit robbery and robbery.         Appellant was acquitted of
     conspiracy to commit murder. Appellant was sentenced to life in
     prison without the possibility of parole for second-degree
     murder.     He was also sentenced to consecutive terms of
     incarceration of seven to twenty years for robbery and four to
     twelve years for criminal conspiracy.




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Commonwealth v. Eiland, No. 2005 MDA 2007, unpublished memorandum

at 1-2 (Pa. Super. filed September 19, 2007) (footnotes omitted) (citation

omitted).

        On direct appeal, this Court affirmed Eiland’s convictions, but vacated

and remanded for re-sentencing, concluding that the consecutive sentence

for robbery violated the double jeopardy clause of the Constitution of the

United States. On August 5, 2004, the trial court re-sentenced Eiland to life

in prison without possibility of parole plus a consecutive term of four to ten

years in prison for the conspiracy conviction. The conviction for robbery was

found to have merged with the murder conviction for purposes of

sentencing.     Eiland did not file a direct appeal from this judgment of

sentence.

        On August 4, 2005, Eiland filed his first PCRA petition, which the PCRA

court ultimately dismissed on May 18, 2006. On that same date, Eiland filed

a second PCRA petition, which the PCRA court dismissed on September 20,

2007.     Eiland appealed, and this Court affirmed the dismissal of Eiland’s

petition on Septmeber 19, 2009.         The Supreme Court of Pennsylvania

subsequently denied Eiland’s petition for allowance of review.

        On November 16, 2011, Eiland filed the current PCRA petition, his

third, alleging after-discovered evidence.    The evidence at issue was the

recantation of trial testimony by eyewitness Rufus Hudson. A hearing was

held on this petition in August of 2013, and both parties filed briefs with the


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PCRA court. On April 8, 2014, the PCRA court entered an order dismissing

Eiland’s petition, and this timely appeal followed.

       “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.”        Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied,

Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013). “[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.” Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation

omitted). “[T]his Court applies a de novo standard of review to the PCRA

court’s legal conclusions.”   Commonwealth v. Spotz, 18 A.3d 244, 259

(Pa. 2011) (citation omitted).

       Before we may address the merits of a PCRA petition, we must first

consider the petition’s timeliness because it implicates the jurisdiction of

both this Court and the PCRA court. See Commonwealth v. Williams, 35

A.3d 44, 52 (Pa. Super. 2011) (citation omitted), appeal denied, 50 A.3d

121 (Pa. 2012). A PCRA petition must be filed within one year of the date

that the judgment of sentence becomes final. See 42 PA.CONS.STAT.ANN. §

9545(b)(1). “The PCRA timeliness requirements are jurisdictional in nature

and,   accordingly,   a   court   cannot   hear   untimely   PCRA   petitions.”

Commonwealth v. Flanagan, 854 A.2d 489, 509 (Pa. 2004). As the PCRA


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petition at issue here was not timely, “the courts have no jurisdiction to

grant [him] relief unless he can plead and prove that one of the exceptions

to the time bar provided in 42 [PA.CONS.STAT.ANN.] § 9545(b)(1)(i)-(iii)

applies.” Commonwealth v. Pursell, 749 A.2d 911, 914-915 (Pa. 2000).

See also Commonwealth v. Wilson, 824 A.2d 331, 335 (Pa. Super. 2003)

(en banc) (“Since Appellant’s PCRA petition is untimely, our review focuses

on whether Appellant has pled and proven that one of the three limited

exceptions to the timeliness requirements of the PCRA apply.”).

     Section 9545 provides, in relevant part, as follows.

     (b) Time for filing petition.—

        (1) Any petition under this subchapter, including a second
        or subsequent petition, shall be filed within one year of the
        date the judgment becomes final, unless the petition alleges
        and the petitioner proves that:

           (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.

        (2) Any petition invoking an exception provided in
        paragraph (1) shall be filed within 60 days of the date the
        claim could have been presented.

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                                               …


42 Pa.Cons.Stat.Ann. § 9545(b).

        No party to this appeal, or the PCRA court, addresses the issue of the

application of the timeliness requirement.         Eiland’s third petition for PCRA

relief, filed on November 16, 2011, asserted that he received the unsworn

declaration of Rufus Hudson recanting his trial testimony on September 22,

2011.      This timeline satisfies the 60-day requirement set forth by the

statute.

        The other requirement under the statute is that the evidence could not

have been ascertained by the exercise of due diligence.           The PCRA court

implicitly found this condition satisfied. In the absence of obvious error and

Commonwealth argument to the contrary, we conclude that this condition

has been met.          We therefore conclude that Eiland has satisfied the

jurisdictional requirements of the PCRA.1


____________________________________________


1
  As this Court recently noted in Commonwealth v. Davis, 86 A.3d 883
(Pa. Super. 2014),

        an after-discovered evidence claim and the timeliness exception
        based on previously unknown facts are distinct, and the issues
        are analyzed differently. Commonwealth v. Bennett, 593 Pa.
        382, 930 A.2d 1264, 1270-72 (2007). Thus, the relative merit of
        Appellant's underlying PCRA claims is not the issue when
        determining whether his PCRA petition satisfies the after-
        discovered fact exception. Rather, the question of whether he
(Footnote Continued Next Page)


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      On appeal, Eiland contends that the PCRA court erred in dismissing his

petition. Specifically, Eiland argues that the PCRA court erred in finding that

Hudson’s recantation testimony was not credible. To establish the right to

relief due to after-discovered evidence, Eiland must establish that: (1) the

evidence has been discovered after trial and it could not have been obtained

at or prior to trial through reasonable diligence; (2) the evidence is not

cumulative; (3) the evidence is not being used solely to impeach credibility;

and (4) the evidence would likely compel a different verdict.                See

Commonwealth v. D'Amato, 856 A.2d 806, 823 (Pa. 2004).

      Our review of a claim involving recanted testimony is as follows:

      The well-established rule is that 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.... Recanting testimony is
      exceedingly unreliable, and it is the duty of the court to deny a
      new trial where it is not satisfied that such testimony is true.
      There is no less reliable form of proof, especially when it involves
      an admission of perjury.

Commonwealth v. Loner, 836 A.2d 125, 135 (Pa. Super. 2003). As the

PCRA court is provided a unique opportunity to observe the witness’s

manner and demeanor during an evidentiary hearing, “a prerequisite to such

                       _______________________
(Footnote Continued)

      met that exception is evaluated pursuant to the statutory
      requirements of 42 Pa.C.S.A. § 9545(b)(1)(ii) and (b)(2).

Id., at 891 n.7. Thus, this determination is analytically distinct from the
assessment of reasonable diligence employed when addressing the merits of
an after-discovered evidence claim.



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relief is that ‘the evidence upon which the relief is sought must be credible to

the trial court.’” Id. (citation omitted).

      The first three prongs of the after-discovered evidence test are not at

issue in this appeal. At issue is the PCRA court’s finding that “Mr. Hudson’s

recantation testimony is not credible, not truly exculpatory and would not

have likely led to a different verdict.” Trial Court Opinion, 4/8/14, at *4.

      In addressing the fourth prong, the PCRA court first found the

recantation testimony not credible. The PCRA court found the reasons given

by Hudson for his alleged previous perjury unbelievable.        In his affidavit,

Hudson claimed that he was young and had a poor understanding of the

legal system. However, at the time of trial, Hudson was 24 years old, had

extensive contact with the juvenile and criminal justice system, and had

been incarcerated pending resolution of a charge of attempted homicide.

See N.T., PCRA Hearing, 8/29/13, at 35-38.        As a result, the PCRA court

found that at the time of trial, Hudson had a strong understanding of the

consequences of his testimony. We can find no reason to conclude that this

finding was a clear abuse of discretion.

      Furthermore, the PCRA court concluded that even if it had found this

testimony credible, the recantation testimony would not have compelled a

different result at trial. Another witness at the trial placed Eiland near the

scene of the crime shortly after the murder.        See N.T., Jury Trial, 8/6-

8/10/01, at 283. The Commonwealth also presented testimony that Eiland


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had admitted to the murder while in jail. See id., at 420-421. Thus, we

cannot conclude that the PCRA court clearly abused its discretion in this

manner, either. As a result, we conclude that Eiland’s sole issue on appeal

merits no relief.

      Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/16/2015




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