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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


1
    42 Pa.C.S.A. §§ 9541-9546.


_____________________________

*Retired Senior Judge assigned to the Superior Court.
J-S27006-17


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Commonwealth v. Calloway, 715 A.2d 500 (Pa.Super. 1998) (unpublished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

                                     -2-
J-S27006-17


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

                                    -3-
J-S27006-17


            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


                                           -4-
J-S27006-17


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

                                     -5-
J-S27006-17


         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


                                      -6-
J-S27006-17


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.



                                           -7-
J-S27006-17


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


                                     -8-
J-S27006-17


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




                                     -9-
                                                                                             .. ~   Circulated 05/16/2017 01:55 PM


                                    IN THE COURT OF COMMON PLEAS
                               FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                        CRIMINAL TRIAL DIVISION

         COMMONWEALTH OF                                                                 CP-5 l-CR-0509401-1995
         PENNSYLVANIA                                                                    CP-51-CR-0509411-1995

                  v.                                                                                          FILED
         EDMOND CALLOWAY                                                                                    AUG 17 2016
                                                 OPINION AND ORDER                                         Appeals/PostTl'lal
                                                                                                       Office of JudicialRecords
                                               CP-51·CR~9401-1995 Comm. v. CaNoway, Edmond
                                                               Opinion


         BRONSON, J.                                                                                August 17, 2016
                                                    IIII IIIIIII IIHIIII U
                                                            7487551921
         Presently before the Court is the petition of defendant Edmond Calloway under the Post

Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-46. This PCRA court held an

evidentiary hearing and now renders findings of fact and conclusions of law regarding

defendant's claim. For the reasons set forth below, the Court finds that the petition is untimely

and that the claim raised by defendant is without merit. For those reasons, the Court orders that

defendant's -PCRA petition be dismissed.

                                          I. PROCEDURAL HISTORY

         On April 4, 1996, following a jury trial before the Honorable James Lineberger,

defendant Edmond Calloway was convicted of one count of murder of the first degree (18

Pa.C.S. § 2502(a)), one count of aggravated assault (18 Pa.C.S. § 3702), and two counts of

possessing an instrument of crime ("PIC") (18 Pa.C.S. § 907(a)).1 Defendant was immediately

sentenced to life imprisonment for the murder charge (18 Pa.C.S. § l 102(a)(l)). Further

sentencing was deferred to September 5, 1996, at which time defendant was sentenced to seven

1
 Defendant was initially tried in front of Judge. Lineberger in March 1996, which resulted in a mistrial following
evidence of witness tampering. In particular, Commonwealth witness Tammy Wilder testified that defendant's
cousin "Ed" offered her money to recant her identification of defendant as the shooter.
to fourteen years imprisonment for the aggravated assault charge, to run consecutive to the life

 sentence. No further penalty was imposed on the PIC charges. Defendant was represented at

trial by Geoffrey Seay, Esquire.

        Defendant was represented on direct appeal by Yung W. Lee, Esquire, who filed a timely

notice of appeal to Superior Court on October 4, 1996. The trial court filed its I 925(a) Opinion

on February 7, 1997. On March 23, 1998, the Superior Court affirmed defendant's judgment of

sentence. Defendant did not seek further direct appellate review. The judgment of sentence

became final 30 days later, on April 22, 1998.

        On June 4, 1999, defendant filed a prose Motion for Post-Conviction Collateral Relief

pursuant to the Post-Conviction Relief Act ("PCRA") ("First Petition"). Jeffrey Minehart,

Esquire, was appointed to represent defendant, and determined that defendant's claims were

without arguable merit and there were no additional issues to be raised. Mr. Minehart then filed

a "no merit" letter pursuant to Commonwealthv. Finley, 550 A.2d 213, 215 (Pa. Super. 1988) (en

bane). On April 11, 2003, the PCRA Court dismissed defendant's First Petition and permitted

PCRA counsel to withdraw. Defendant appealed the dismissal of his First Petition, and the

Superior Court affirmed the PCRA Court's dismissal on October I, 2004. Defendant did not

seek further review of that decision.

        Defendant filed his second prose Motion for Post-Conviction Collateral Relief ("Second

Petition") on November 10, 2009. In a memorandum attached to the Second Petition

("Memorandum in Support of Second Petition"), defendant alleged that after-discovered

evidence, in the form of new exculpatory eyewitness Jaqueline Davis, proved he did not commit

either the aggravated assault or the murder of which he was convicted. Defendant did not
                                                                                           '
however, submit an affidavit or witness certification from Ms. Davis, but instead relied on two




                                                 2
    witnesses who claimed to have spoken with her and heard her exculpatory statements. See

    Memorandum in support of Second Petition at pp. 6-17. Judge Lineberger having retired from

    the bench, this matter was assigned to Judge Sheila Woods-Skipper, who on September 10, 2010,

    issued a Notice oflntent to Dismiss defendant's Second Petition, pursuant to Pa.R.Crim.P. 907.

    Defendant filed a reply to this 907 Notice on September 28, 2010. On June 21, 2011, the Second

    Petition was reassigned to the undersigned trial judge. On February 3, 2012, this Court

    dismissed defendant's Second Petition without a hearing, on the ground that it was untimely

    filed. Defendant appealed the dismissal of his Second Petition, and the Superior Court affirmed

    the PCRA Court'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. Superior Court

    Opinion, filed 12/5/12 at pp. 2-3. Defendant did not seek further review of that decision.

           Defendant filed his third pro se Motion for Post Conviction Collateral Relief, here at

    issue, on October 18, 2013. Defendant again asserted that after-discovered evidence, 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, defendant included an affidavit from Ms. Davis. David

Rudenstein, Esquire, was appointed to represent defendant on June 3, 2014. On January 8, 2015,

defense counsel filed an Amended Post-Conviction Relief Act Petition ("Third Petition"),

asserting that Ms. Davis, now available to testify in person, would provide newly discovered

evidence proving defendant's innocence.2

            The Court held a hearing to address the newly discovered evidence issue on October 20,

2015. Post-hearing submissions were received from both parties.



2
  The Third Petition also requested that the Commonwealth be ordered to turn over to defendant the statement of one
Barbara McCullough, who was allegedly questioned by police about the murder. The Commonwealth represented
that it had no such statement and defendant withdrew that request.




                                                         3
                                       L   FACTUAL      BACKGROUND

         The facts of this case are summarized     in Judge Lineberger's   1925(a) opinion regarding

 defendant's   direct appeal.   See Trial Court Opinion, filed 2/7/1997 at pp. 2-4.

                                                II. ANALYSIS

         Defendant's PCRA claim is premised upon the availability of newly discovered evidence.

 A defendant may be eligible for relief under the PCRA where the defendant pleads and proves by

 a preponderance of the evidence "the unavailability at the time of trial of exculpatory evidence

 that has subsequently become available and would have changed the outcome of the trial if it had

 been introduced." 42 Pa.C.S. § 9543(a)(2)(vi); Commonwealth v. Lambert, 765 A.2d 306, 324-

 25 (Pa. Super. 2000). The PCRA court must be satisfied that the evidence could not have been

 obtained by reasonable diligence, is not cumulative, does not merely impeach credibility, and

that it would likely compel a different result. Lambert, 765 A.2d at 324-25.

        Defendant claims in his Third Petition that Ms. Davis provided a statement on August 31,

2013, in which she asserted that she saw defendant near the car where the victim in this case was

killed, but that defendant was not the shooter. Third Petition at,I 12; Letter Brief in support of

defendant's Third Petition ("Letter Brief') at p. 6. Defendant contends that since Ms. Davis had

not previously provided a statement in this matter, and that since the Third Petition was filed

within 60 days of that statement, the statement qualified as newly discovered evidence within the

meaning of the applicable exception to the PCRA time-bar. Third Petition at ,r 12.

       A. Evidence Presented at the Evidentiary Hearing

       At the evidentiary hearing, defendant testified on his own behalf and presented the

testimony of Jacqueline Davis. The Commonwealth presented the testimony of Mary Ann Hill,




                                                    4
 the wife of the decedent, and a stipulation regarding certain records of the parole agent for Ms.

 Davis.

                  1. Testimony of Jacqueline Davis

          Davis testified to the following version of the events related to the murder. She met

 defendant in the early morning hours of April 8, 1995, and he asked her to accompany him to a

 speakeasy, as "every time [he] come down here ... they try to do something to [him]." N.T.

 I 0/20/15 at 13-14. Defendant was then in possession of a bat so that "if they jump( ed] [him]" he

 could hit them with the bat. N. T. 10/20/15 at 14. They arrived at the speakeasy, and defendant

 then left to take a girl named Althea home. N.T. 10/20/15 at 15. After defendant left, Tyrone

 Hill, the decedent, and two men identified as Frank and Ritchie came to the speakeasy looking

 for defendant. N.T. 10/20/15 at 15-16. Defendant returned to the speakeasy, with a person who

 introduced himself as "Karate.'' Davis then told defendant that the three men were looking for

 him. N.T. 10/20/15 at 16-17, 45. Defendant got into a physical confrontation with Ritchie, after

which defendant was kicked out of the speakeasy. N.T. 10/20/15 at 17.

          According to Davis, she and a few other patrons went upstairs to the second floor of the

speakeasy and looked out the window, where she saw defendant and "Karate" standing on the

street next to a telephone pole. N.T. 10/20/15 at 17-18, 69. Davis saw a car, driven by the

decedent, pull up next to defendant, and saw defendant go to the car window, state that he was

tired of being messed with, and punch the decedent. N.T. 10/20/15 at 18. Davis then saw

"Karate" step out from behind the telephone pole and shoot the decedent. N.T. 10/20/15 at 18-

19, 70- 71. After "Karate" shot the decedent, defendant said "Oh, my God, why you do that?

Why you do that?" N.T. 10/20/15 at 19-20. Both defendant and "Karate" then fled the scene.

N.T. 10/20/15 at 19-20. Davis later met with the decedent's wife, Mary Ann Hill, and told her




                                                  5
that she saw "Karate" kill her husband. N.T. 10/20/15 at 104-106. According to Davis, after

defendant's convictions in this matter, she did not come forward with her testimony because her

parole agent "told [her] to stay out of it." N.T. 10/20/15 at 24, 29. Davis later provided a

statement to private investigator Wayne Schmidt on August 31, 2013. N.T. 10/20/15 at 27-29,

151-156, 169-170. Davis also admitted to using crack cocaine and heroin at the time of the

homicide. N.T. 10/20/15 at 31-32.

               2. Testimony of Defendant

       Defendant testified as follows. He claimed that, at the time of the trial, he was unaware

of Davis' helpful potential testimony, and was not able to call Davis to testify. N.T. 10/20/15 at

178. He first learned of Davis' possible testimony sometime in 2009 and attempted to reach out

to people who knew her. N.T. 10/20/15 at 178. While he was not able to get a statement from

Davis, he did obtain letters from people who claimed to have heard Davis' helpful version of the

shooting. Defendant subsequently hired an investigator in late 2013 to contact Davis. N.T.

10/20/15 at 178-179. Defendant claimed to know the person "Karate" referred to by Davis, and

that "Karate" was a person who lived in the same neighborhood as defendant. N.T. 10/20/15 at

182. However, defendant did not know where "Karate" was, had no contact with "Karate," and

did not know ifhe was alive. N.T. 10/20/15 at 182.

       On cross-examination, defendant acknowledged that he had talked to his cousin, Edward

Williams, who probably mentioned prior to 2009 that Davis was a helpful witness. N.T.

10/20/ 15 at 190-191, 193. Defendant also acknowledged that in 1999, he had mentioned that

Davis could be a helpful witness to attorney Jeffrey Minehart, who was defendant's attorney for

the first PCRA petition. N. T. 10/20/15 at 194-19 5. Defendant also remembered receiving a

letter from Mr. Minehart, indicating that Mr. Minehart had attempted to contact Davis through an




                                                 6
investigator, but that Davis "would make excuses as to why she was not available." N.T.

 10/20/15 at 203-204.

                3. Testimony of Mary Ann Hill

        Mary Ann Hill testified that she was the wife of Tyrone Hill, the decedent. N.T. 10/20/15

at 243. Hill directly contradicted the testimony of Davis regarding Hill's conversation with

Davis after the murder. In particular, Hill testified that, while preparing the funeral arrangements

for her husband, Davis came to her and told her that defendant had shot and killed her husband.

N.T. 10/20/15 at 245, 247. Hill further testified that Davis never told her that "Karate" was

responsible for the death of her husband, and that she did not know anyone named "Karate."

N.T. 10/20/15 at 248-249.

                4. Stipulation regarding parole records of Davis

        The parties stipulated that the parole records for Ms. Davis include a handwritten entry

from her parole agent, dated September 1, 2000, in which he recorded that he received a phone

call from an investigator for defendant who thought that Davis may have information about

defendant's case. The agent further noted that he spoke with Davis about this and that "she does

not remember the details and does not want to talk to [the investigator]." N.T. 10/20/2015 at 235-

236.

        B. Findings of Fact and Conclusions of Law

        1. The Court finds that defendant's testimony was not credible. In particular, the Court

finds that defendant knew Davis was a potential witness prior to defendant's trial, as Davis was

with defendant in the speak.easy just prior to the murder that took place in front of the speakeasy.

        2. The Court finds that defendant failed to exercise due diligence to secure Davis'

presence as a witness at trial. Specifically, defendant failed to make efforts to contact or




                                                  7
 interview Davis prior to trial. In addition, defendant unquestionably knew that Davis would

 provide exculpatory testimony no later than 2003, when Mr. Minehart drafted his Finley Letter in

 response to defendant's first PCRA petition, and mentioned that defendant claimed that Davis

 was an exculpatory witness. Six years later, when defendant filed his Second Petition in 2009,

 and presented Davis as an exculpatory witness, he failed to provide either an affidavit from

 Davis, or even a certification of her expected testimony to support his petition, relying only on

 hearsay. By the time defendant filed the Third Petition here at issue, nearly 10 years had passed

 since attorney Minehart's Finley letter demonstrated defendant's knowledge of Davis as a

witness. Without question, defendant failed to sufficiently follow up during this period of time

to secure Davis as a witness.

         3. Accordingly, defendant failed to demonstrate that he exercised reasonable diligence in

obtaining Davis' statement or testimony. Therefore, his claim must fail as defendant did not

prove an exception to the PCRA time-bar. Lambert, 765 A.2d at 324-25.

        4. In addition, even had defendant been able to establish that Davis' testimony would

qualify as newly discovered evidence sufficient to render his Third Petition to be timely,

defendant still would not be entitled to relief, since he could not demonstrate that if she had

testified, there would be a reasonable probability that the outcome of the trial would have been

different.

        5. The Court finds the testimony of Jacqueline Davis to be incredible. In particular, the

Court finds that Davis never told Hill that "Karate" shot the decedent. The Court finds that

Davis' testimony that she stood behind a closed window on the second floor of the speakeasy,

saw "Karate" shoot the decedent, and heard defendant say "why did you do that?" was a

fabrication. The Court finds that Davis' statement that her parole agent told her not to speak to




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 anyone about the murder was completely false and refuted by the agent's records. The Court

 finds further that Davis fabricated her exculpatory story to assist defendant.

        6. The Court finds that the testimony of Mary Ann Hill was credible and established that

shortly after the murder, Davis told Hill that she saw defendant shoot the decedent. The Court

also finds that Davis never told Hill that she saw "Karate" shoot decedent and that Hill never

heard of anyone named "Karate."

        7. Accordingly, defendant cannot demonstrate that the outcome of his case would have

been different had Davis been presented as a witness, as Davis' testimony was incredible and her

story an apparent fabrication.

                                             IV. ORDER

        For all of the foregoing reasons, the Court finds that the Third Petition was untimely

filed, and that in any event, the claim raised in the Third Petition is without merit. For that

reason, it is hereby ORDERED that defendant's Third Petition is DISMISSED.           Defendant is

hereby advised that he has the right to file an appeal to the Superior Court of Pennsylvania

within 30 days of the date of the entry of this order. Informa pauperis status to continue.



                                                              BY THE COURT:




                                                              GLENN B. BRONSON, J.




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