J-S32040-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RICKIE JAMES                               :
                                               :
                       Appellant               :   No. 776 EDA 2019

              Appeal from the PCRA Order Entered March 4, 2019,
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0013643-2009.


BEFORE:      KUNSELMAN, J., KING, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.:                           FILED AUGUST 28, 2020

        Rickie James appeals from the order denying his petition filed pursuant

to the Post Conviction Relief Act. 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        The PCRA court summarized the pertinent facts from James’ trial as

follows:

           On September 30, 2009, at about 6:27 p.m., Police Officer
           Andrew Jackson was in an unmarked police vehicle in the
           vicinity of 22nd and Dauphin Streets when he was flagged
           down by the [victim]. Officer Jackson testified [the victim]
           exited his Chevrolet Impala screaming and pointing towards
           his left shoulder; he told Officer Jackson that he had been
           shot. Officer Jackson saw the bullet wound and a bit of
           blood right below [the victim’s] left ear. Officer Jackson
           observed that the driver’s side window of the vehicle was
           shot out and there were multiple shots visible on the driver’s
           side of the vehicle. [The victim] told Officer Jackson that he
           was shot by someone named Rickie, who lived in the area
           of 23rd and Norris Streets in a house in front of which a black

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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       Chrysler Pacifica was parked. [The victim] described two
       shooters: the first male was Rickie, a black male about 6’2’’
       wearing a black hoodie and riding a bike. The second male
       was described as a black male wearing a black hoodie and
       riding a bike. [The victim’s] children were in the car and
       after they were picked up, [he] was taken to Temple
       University Hospital by Police Officer Robert Dougherty.

                                    ***

       [The victim] testified that on September 30, 2009, we was
       picking up medicine for the mother of his eight-year old son
       at a Rite Aid Pharmacy located at 22nd Street and Lehigh
       Avenue. His son, seven-year old daughter and eight-year
       old niece were with him in the car. After going to the
       playground at 25th and Diamond Streets, they drove to his
       son’s mother’s house at 22nd and Diamond Streets. As he
       pulled up, he saw two people who started to shoot at him.
       He testified that he could not identify either shooter, that he
       was just grazed by the shots, and that his window was hit.
       [The victim] drove to Dauphin Street and flagged down a
       police officer . . . whom he saw in an unmarked vehicle. He
       did not recall telling the officer who had shot him. [The
       victim] was released from the hospital and was taken to
       Northwest Detectives where he gave a statement to
       Detective Edward Keppol. [The victim] testified that when
       he was interviewed he was under the influence of the drugs
       he had received at the hospital.

       He further testified that he did not recognize anyone in the
       courtroom as the person who shot at him, but in his
       statement to police, he stated that two people came towards
       his vehicle shooting. . . . [The victim] denied telling police
       the information contained in his statement; he testified that
       he told the police some of the information in his statement,
       but that most of it was false. He stated that the detective
       told him whose photos to identify and that he really was not
       sure who had shot him, but he was sure it was neither
       defendant.

       The notes of testimony from the preliminary hearing for
       [James] and the notes of testimony from co-defendant
       [Lamar] Harding’s preliminary hearing were read to the
       jury. [The victim] testified that the notes were inaccurate
       and that he did not testify as the notes reflected. He then


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         stated he identified [James] as one of the shooters at the
         preliminary hearing because he “was pissed off” about an
         earlier confrontation with a woman who was in the Rite Aid
         parking lot with [James]. [The victim] identified [Harding]
         and [James] as the shooters numerous times at each of
         their preliminary hearings, but denied at trial knowing who
         had shot at him. He insisted that it was neither defendant
         and insisted that the court reporter transcribed an
         inaccurate report.

         Police Officer Robert Dougherty testified that he met Officer
         Jackson in the vicinity of 22nd and Dauphin and transported
         [the victim] to the hospital. On the way to the hospital, [the
         victim] told him that he was possibly shot over an earlier
         confrontation over a parking spot at Rite Aid.

                                      ***

         After he was released from the hospital, [the victim] was
         formally interviewed. Detective [Edward] Keppol [testified]
         that [the victim] did not appear drowsy or under the
         influence of any drugs . . . Detective Keppol read [the
         victim’s] statement to the jury and denied telling [him] that
         the police had a suspect. Detective Keppol showed [the
         victim] a photograph of [James] after [the victim] said that
         [James] had shot him.

PCRA Court Opinion, 6/28/19, at 2-3 (citation omitted).

      James and Harding were tried together. Based on the above evidence,

on May 13, 2010, a jury convicted James of attempted murder and related

charges. On July 7, 2010, the trial court sentenced James to an aggregate

term of seventeen to thirty-four years of imprisonment on his remaining

convictions. James filed a timely petition for reconsideration.

      On October 13, 2010, the trial court held a hearing on the motion, at

which James’ mother testified regarding a letter purportedly written by

Harding. She testified that Harding allegedly “stated in the letter that he is



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the actual person that shot [the victim] and not [James].” N.T., 10/13/10, at

5. The Commonwealth argued that nothing in the letter was relevant to the

post-sentence motion, but the letter could be the basis for a “PCRA after

discovered evidence” claim. N.T., 10/13/10, at 8. In addition, the prosecutor

commented that he read the letter and “nothing indicated [James] is innocent,

it just indicates [Harding] is guilty of more crimes than he was found guilty

of.” Id.1 For his part, James’ trial counsel stated he agreed that the letter

allegedly written by Harding would be appropriately considered under the

PCRA.    Id. at 9.     Finally, the prosecutor stated that “with regards to the

authentication of this letter, it could have [been] written by [James.]” Id.

Trial counsel then confirmed that he received an original copy of the letter

from James’ mother. Id. Although the letter was marked as a defense exhibit,

it was not admitted into evidence. Ultimately, the trial court denied James’

post-sentence motion.

       Trial counsel filed a timely appeal on James’ behalf but later was

permitted to withdraw, and the trial court appointed new counsel.        In an

unpublished memorandum filed on October 18, 2011, this Court rejected

James’ challenge to the sufficiency of the evidence supporting his convictions,

as well as his claim challenging the discretionary aspects of his sentence.

____________________________________________


1 The jury convicted Harding of only aggravated assault, and the trial court
sentenced him to an aggregate term of three-and-one-half to ten years in
prison and a consecutive five-year probationary term. See Commonwealth
v. Harding, 37 A.3d 1235 (Pa. Super. 2011)(unpublished memorandum).


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Commonwealth v. James, 37 A.3d 1235 (Pa. Super. 2011). Although James

claimed that he was entitled to a new trial based upon after-discovered

evidence in the form of Harding’s letter, we found this claim waived because

the letter did not appear in the certified record.      James, unpublished

memorandum at 15-16. In a footnote, however, we noted that “our review

of the document attached to [James’] brief reveals that nowhere therein does

[Harding] state he was solely responsible for shooting [the victim].” Id. at

16 n.7. Our Supreme Court denied James’ petition for allowance of appeal on

February 1, 2012. Commonwealth v. James, 37 A.3d 1194 (Pa. 2012).

      On March 28, 2013, James filed a pro se PCRA petition, and the PCRA

court appointed counsel. Thereafter, PCRA counsel filed a petition to withdraw

and a “no-merit” letter pursuant to Commonwealth v. Turner, 544 A.2d 927

(Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988)

(en banc). According to PCRA counsel, James’ PCRA petition was untimely

and alleged not time-bar exception. The PCRA court agreed and, following a

Pa.R.Crim.P. 907 notice, the PCRA court dismissed the petition as untimely.

      James filed a timely appeal to this Court in which he asserted that his

PCRA petition was timely. After reviewing the record, we determined that the

PCRA court erred in concluding James had not filed a petition for permission

to appeal to our Supreme Court. See Commonwealth v. James, 190 A.3d

721 (Pa. Super. 2018) (unpublished memorandum).         This Court therefore

reversed the PCRA court’s order denying relief and remanded for the

appointment of new counsel. Id.

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      Following remand, the PCRA court appointed current counsel, who filed

an amended petition in which he claimed he was entitled to a new trial based

upon after-discovered evidence, as well as a layered claim of ineffectiveness

due to prior counsel’s failure to ensure Harding’s letter appeared in the

certified record. On February 4, 2019, the Commonwealth filed a motion to

dismiss the amended petition.       The next day, the PCRA court issued a

Pa.R.Crim.P. 907 notice of its intent to dismiss the petition without merit.

James filed a response.    By order entered March 4, 2019, the PCRA court

dismissed James’ amended PCRA petition.           This timely appeal followed.

Although the PCRA court did not require James to comply with Pa.R.A.P. 1925,

the PCRA court filed a Rule 1925(a) opinion.

      James raises the following issue on appeal:

            Did the [PCRA court] err in refusing to grant [James] an
         evidentiary hearing regarding the question of whether [he]
         was involved with the shooting of the victim, involving the
         testimony of [Harding] and the letter he sent to [James’]
         family at the end of trial?

James’ Brief at 1.

      This Court’s standard of review regarding an order dismissing a petition

under the PCRA is to ascertain whether “the determination of the PCRA court

is supported by the evidence of record and is free of legal error. The PCRA

court’s findings will not be disturbed unless there is no support for the findings

in the certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-92

(Pa. Super. 2013) (citations omitted).



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         The PCRA court has discretion to dismiss a petition without
         a hearing when the court is satisfied that there are no
         genuine issues concerning any material fact, the defendant
         is not entitled to post-conviction collateral relief, and no
         legitimate purpose would be served by further proceedings.
         To obtain a reversal of a PCRA court’s decision to dismiss a
         petition without a hearing, an appellant must show that he
         raised a genuine issue of material fact which, if resolved in
         his favor, would have entitled him to relief, or that the court
         otherwise abused its discretion in denying a hearing.

Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014) (citations

omitted).

      In his issue, James argues that the PCRA court abused its discretion in

dismissing his PCRA without first affording him a hearing based on the content

of Harding’s letter. James summarizes his argument in support of his issue

as follows:

             There is enough of an evidentiary cause for [the PCRA
         court] to have granted [James] an evidentiary hearing,
         primarily based upon the testimony of eyewitness and co-
         defendant, [Harding] who has communicated by means of a
         letter to [James’] family that he has knowledge of the fact
         that [James] was not the shooter of [the victim] of this
         incident. Therefore, the [PCRA] court needs to conduct an
         evidentiary hearing so that [Harding’s] testimony can be
         certified and included with the record to be considered by
         this Honorable Court so that it can equitably determine
         whether this case can be remanded back to the [PCRA] court
         for a new trial or a new sentencing.

James’ Brief at 6.

      To address this claim, we first note the test applied to after-discovered

evidence under the PCRA. When discussing the test in the context of a PCRA

appeal, our Supreme Court summarized:


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             [W]e have viewed this analysis in criminal cases as
         comprising four distinct requirements, each of which, if
         unproven by the petitioner, is fatal to the request for a new
         trial. As stated, the four-part test requires the petitioner to
         demonstrate the new evidence: (1) could not have been
         obtained prior to the conclusion of 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. The test applies
         with full force to claims arising under Section 9543(a)(2)(vi)
         of the PCRA. In addition, we have held the proposed new
         evidence must be producible and admissible.

Commonwealth v. Small, 189 A.3d 961, 972 (Pa. 2018) (citations omitted).

Credibility determinations are an integral part of determining whether a PCRA

petitioner has presented after-discovered evidence that would entitle him to

a new trial. See, e.g., Small, 189 A.3d at 978-79 (remanding for the PCRA

court to make relevant credibility determinations). We have stated, prior to

granting a new trial based on after-discovered evidence, “a court must assess

whether the alleged after-discovered evidence is of such a nature and

character that it would likely compel a different verdict if a new trial is

granted.”   Commonwealth v. Padillas, 997 A.2d 356, 365 (Pa. Super.

2010). “In making this determination, a court should consider the integrity of

the alleged after-discovered evidence, the motive of those offering the

evidence, and the overall strength of the evidence supporting the conviction.”

Id.

      Here, the PCRA court explained that it denied James’ amended PCRA

petition without a hearing for several reasons:



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            First, [James] fails to proffer a signed certification from
         Harding indicating that he did, in fact, write the letter or that
         he would testify at an evidentiary hearing. Without such a
         certification, the claim must fail.

             Moreover, [James’] claim fails because Harding’s letter
         does not contain, as [James] alleges, the assertion that
         [James] was not the person [who] shot the victim[.] In the
         letter, Harding is addressing a person by the name of
         “Rakim.” The contents of the letter are largely Harding
         accusing Rakim’s mother of telling people that Harding had
         snitched on [James]. In the letter, Harding insists that he
         never “ratted” on [James] and further threatens to kill
         Rakim and his mother when Harding gets out of jail. At one
         point in the letter, Harding acknowledges that he shot an
         unnamed “boy”, but nothing in the letter established that
         Harding is referring to [the victim].

            Simply, nothing in Harding’s letter exculpates [James].
         At no point does Harding’s letter state that [James] did not
         shoot [the victim].     The evidence presented at trial
         established that both [James] and Harding shot at [the
         victim]. Therefore, even if Harding was referring to the
         shooting of [the victim], admitting that he shot the victim
         does not contradict the evidence presented at trial.

PCRA Court Opinion, 6/28/19, at 7 (citations omitted). In addition, the PCRA

court noted this Court’s statement on direct appeal, see supra, that nowhere

in the letter does Harding state that he was solely responsible for shooting the

victim. Id.

      Our review of the record supports the PCRA court’s conclusions.

Initially, we note that James’ claim fails because Harding did not sign a witness

certification in which he acknowledges he authored the letter in question and

was willing to testify at a PCRA hearing.       See 42 Pa.C.S.A. 9545(d)(1)(i)

(providing, “Where a petitioner requests an evidentiary hearing, the petition

shall include a certification signed by each intended witness stating the

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witness’s name . . . and substance of testimony and shall include any

documents material to that witness’s testimony”); see also Pa.R.Crim.P.

902(A)(15)(providing that a request for an evidentiary hearing shall include

witness certifications). Indeed, nowhere in this amended petition does James

even aver that Harding was willing to testify regarding the contents of the

letter.

      In addition, to the extent we can read the handwritten letter, we agree

with the PCRA court that, even if properly authenticated, the letter in no way

exculpates James. This is especially true given, the “overall strength of the

evidence supporting [James’] conviction.”      Padillas, supra.     Although he

recanted the identification at trial, in his initial statements to police, and in

preliminary hearing testimony, the victim identified James—a person he

knew—as one of the shooters. In addition, ballistic evidence established that

a bullet fragment recovered from the victim’s car was fired from the same

handgun police found on James when they arrested him less than two weeks

after the shooting. See N.T., 5/12/10, at 110-17.

      In sum, because the PCRA court did not err in concluding that the letter

allegedly written by Harding was not of such a nature and character that it

would compel a different result, Small, supra, James’ issue fails, and we

affirm the PCRA court’s order denying him post-conviction relief.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/28/20




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