J-S27006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    EDMOND J. CALLOWAY                         :
                                               :
                      Appellant                :      No. 2895 EDA 2016


                 Appeal from the PCRA Order August 18, 2016
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0509401-1995,
                            CP-51-CR-0509411-1995


BEFORE: GANTMAN, P.J., OTT, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                              FILED JUNE 01, 2017

        Appellant, Edmond J. Calloway, appeals from the order entered in the

Philadelphia County Court of Common Pleas, which denied his third petition

brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        A prior memorandum of this Court sets forth the relevant facts of this

case as follows:

          Appellant’s convictions [arose] out of an incident in which
          he beat [Victim 1] with a baseball bat and shot and
          killed…[Victim 2]. … [O]n [April 8, 1995], Appellant went
          to a speakeasy in search of [Victim 2], where, upon
          arrival, he repeatedly struck [Victim 1] with a baseball bat,
          rendering him unconscious. Appellant then demanded to
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1
    42 Pa.C.S.A. §§ 9541-9546.


_____________________________

*Retired Senior Judge assigned to the Superior Court.
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         know [Victim 2]’s whereabouts. Shortly thereafter, when
         [Victim 2] approached the speakeasy in his car, Appellant
         fired three shots into the vehicle, causing [Victim 2] to
         crash. Appellant then ran up to the automobile and fired
         three shots inside. … Appellant’s trial commenced on April
         2, 1996. On April 4, 1996, a jury found Appellant guilty of
         first-degree murder, possessing instruments of crime, and
         aggravated assault.

Commonwealth v. Calloway, 715 A.2d 500 (Pa.Super. 1998) (unpublished

memorandum).       On April 4, 1996, the court sentenced Appellant to life in

prison without the possibility of parole for first-degree murder.   The court

imposed a term of seven to fourteen years’ incarceration for aggravated

assault, consecutive to the life sentence. This Court affirmed the judgment

of sentence on March 23, 1998.

      The PCRA court opinion sets forth additional procedural history of this

case as follows:

         On June 4, 1999, [Appellant] filed a pro se Motion for Post-
         Conviction Collateral Relief pursuant to the [PCRA]. [PCRA
         counsel] was appointed to represent [Appellant], and
         determined that [Appellant]’s claims were without arguable
         merit and there were no additional issues to be raised.
         [PCRA counsel] then filed [on January 31, 2003,] a “no
         merit” letter pursuant to Commonwealth v. Finley, 550
         A.2d 213, 215 (Pa.Super. 1988) (en banc). On April 11,
         2003, the PCRA [c]ourt dismissed [Appellant]’s [f]irst
         [p]etition and permitted PCRA counsel to withdraw.
         [Appellant] appealed the dismissal of his [f]irst [PCRA]
         [p]etition, and the Superior Court affirmed the PCRA
         [c]ourt’s dismissal on October 1, 2004.

(PCRA Court Opinion, filed August 17, 2016, at 2). In his “no merit” letter,

PCRA counsel explained that Appellant said Jacqueline Davis might have

been able to provide exculpatory testimony.       PCRA counsel added that,

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despite his repeated attempts to contact her, Ms. Davis refused to speak

with him.

     The PCRA court opinion continues:

        [Appellant] filed his second pro se Motion for Post-
        Conviction Collateral relief…on November 10, 2009. In a
        memorandum       attached    to   the  [s]econd   [PCRA]
        [p]etition…, [Appellant] alleged that after-discovered
        [facts], in the form of new exculpatory eyewitness
        Jacqueline Davis, proved he did not commit either the
        aggravated assault or the murder of which he was
        convicted.    [Appellant] did not, however, submit an
        affidavit or witness certification from Ms. Davis, but
        instead relied on two witnesses who claimed to have
        spoken with her and heard her exculpatory statements. …
        On February 3, 2012, [the] [PCRA] [c]ourt dismissed
        [Appellant]’s [s]econd [PCRA] [p]etition…, on the ground
        that it was untimely filed. [T]he Superior Court affirmed
        the PCRA [c]ourt’s dismissal on December 5, 2012, holding
        that inadmissible hearsay evidence could not form the
        basis for an exception to the PCRA’s time-bar
        requirements. …

        [Appellant] filed his third pro se Motion for Post-Conviction
        Collateral Relief, here at issue, on October 18, 2013.
        [Appellant] again asserted that after-discovered [facts],
        specifically the testimony of Ms. Davis, proved he did not
        commit either the aggravated assault or the murder of
        which he was convicted. This time, [Appellant] included
        an affidavit from Ms. Davis. [PCRA counsel] was appointed
        to represent [Appellant] on June 3, 2014. On January 8,
        2015, [PCRA] counsel filed an Amended [PCRA] Petition…,
        asserting that Ms. Davis, now available to testify in person,
        would     provide    newly    discovered    [facts]   proving
        [Appellant]’s innocence.

        The [PCRA] [c]ourt held a hearing to address the newly
        discovered [facts] issue on October 20, 2015.

                                *    *    *

        At the evidentiary hearing, [Appellant] testified on his own

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            behalf and presented the testimony of Jacqueline Davis.
            The Commonwealth presented the testimony of Mary Ann
            Hill, the wife of [Victim 2], and a stipulation regarding
            certain records of the parole agent for Ms. Davis.

Id. at 2-5 (internal citations to record omitted).

      On August 18, 2016, the PCRA court dismissed Appellant’s PCRA

petition.    Appellant timely filed a notice of appeal on September 9, 2016.

The PCRA court, on September 13, 2016, ordered Appellant to file a concise

statement of errors complained of on appeal per Pa.R.A.P. 1925(b);

Appellant timely complied on October 4, 2016.

      Appellant raises one issue for our review:

            DID THE PCRA COURT ERR WHEN IT DETERMINED THAT
            [APPELLANT] WAS NOT ENTITLED TO PCRA RELIEF?

(Appellant’s Brief at 3).

      Our standard of review of the denial of a PCRA petition is limited to

examining      whether      the   evidence    of   record     supports    the     court’s

determination      and   whether     its     decision    is   free   of   legal    error.

Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied,

612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the

findings of the PCRA court if the record contains any support for those

findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal

denied, 593 Pa. 754, 932 A.2d 74 (2007).                We give no such deference,

however, to the court’s legal conclusions.          Commonwealth v. Ford, 44

A.3d 1190 (Pa.Super. 2012). Traditionally, credibility issues are resolved by


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the trier of fact who had the opportunity to observe the witnesses’

demeanor.     Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79

(1998), cert. denied, 528 U.S. 810, 120 S.Ct. 41, 145 L.Ed.2d 38 (1999).

Where the record supports the PCRA court’s credibility resolutions, they are

binding on this Court. Id.

      A PCRA petition, including a second or subsequent petition, shall be

filed within one year of the date the underlying judgment becomes final. 42

Pa.C.S.A. § 9545(b)(1). A judgment is deemed final “at the conclusion of

direct review, including discretionary review in the Supreme Court of the

United States and the Supreme Court of Pennsylvania, or at the expiration of

time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3).

      The three statutory exceptions to the timeliness provisions in the PCRA

allow for very limited circumstances under which the late filing of a petition

will be excused.   42 Pa.C.S.A. § 9545(b)(1).     To invoke an exception, a

petition must allege and the petitioner must prove:

         (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

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         apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).     Additionally, a PCRA petitioner must

present his claimed exception within sixty days of the date the claim first

could have been presented. 42 Pa.C.S.A. § 9545(b)(2). “As such, when a

PCRA petition is not filed within one year of the expiration of direct review,

or not eligible for one of the three limited exceptions, or entitled to one of

the exceptions, but not filed within 60 days of the date that the claim could

have been first brought, the [PCRA] court has no power to address the

substantive merits of a petitioner’s PCRA claims.”        Commonwealth v.

Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783 (2000).

      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, 593 Pa. 382, 395, 930 A.2d 1264,

1271 (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, 566 Pa. 323, 330-31, 781 A.2d 94, 98

(2001); Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.Super

2010), appeal denied, 610 Pa. 607, 20 A.3d 1210 (2011).            This rule is

strictly enforced.   Id.   Additionally, the focus of this exception “is on the


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newly discovered facts, not on a newly discovered or newly willing source

for previously known facts.”         Commonwealth v. Marshall, 596 Pa. 587,

596, 947 A.2d 714, 720 (2008) (emphasis in original). 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, supra at 395, 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.2 Id. at 395, 930 A.2d at 1271.

       After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Glenn B.

Bronson, we conclude Appellant’s issue merits no relief.     The PCRA court

____________________________________________


2
  To obtain relief on a substantive after-discovered-evidence claim under the
PCRA, a petitioner must demonstrate: (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) it is not being
used solely to impeach credibility; and (4) it would likely compel a different
verdict. See, e.g., Commonwealth v. Washington, 592 Pa. 698, 927
A.2d 586 (2007); Commonwealth v. D’Amato, 579 Pa. 490, 856 A.2d 806
(2004). The substantive merits-based analysis is more stringent than the
analysis required by the “new facts” exception to establish jurisdiction. See
Bennett, supra at 395-96, 930 A.2d at 1271-72.



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opinion comprehensively discusses and properly disposes of the question

presented.    (See PCRA Court Opinion, filed August 17, 2016, at 5-9)

(finding: Appellant’s PCRA hearing testimony was incredible; Appellant knew

before trial that Jacqueline Davis was potential witness because Ms. Davis

was with Appellant at speakeasy on night of incident; also, Appellant knew

that Ms. Davis could provide potentially exculpatory testimony as early as

2003, when first PCRA counsel stated in his “no merit” letter that Ms. Davis

was possible eyewitness; Appellant failed to demonstrate he exercised

reasonable diligence to obtain Ms. Davis’ testimony; Appellant’s PCRA

petition is time-barred because Appellant failed to prove new-facts exception

to PCRA timeliness requirement applied; even if Ms. Davis’ testimony

qualified as new facts, Appellant’s PCRA petition merits no relief; credible

testimony of Mary Ann Hill established that shortly after incident, Ms. Davis

told Ms. Hill she saw Appellant shoot Victim 2; Ms. Davis fabricated

statement that she saw another individual shoot Victim 2; additionally,

parole agent’s records indicate that in 2000, parole agent told Ms. Davis that

investigator for Appellant contacted parole agent about information Ms.

Davis might have concerning incident; parole agent’s records establish Ms.

Davis told parole agent she did not remember incident and did not want to

talk to investigator; Ms. Davis’ falsely testified that her parole agent advised

her not to speak about incident; Ms. Davis’ testimony at PCRA hearing was

incredible; thus, Appellant could not demonstrate that if Ms. Davis had


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testified at trial, there is reasonable probability that outcome of trial would

have differed). The record supports the PCRA court’s rationale. Accordingly,

we affirm on the basis of the PCRA court opinion.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/1/2017




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