J-S35033-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :       IN THE SUPERIOR COURT OF
                                           :             PENNSYLVANIA
             v.                            :
                                           :
ANTHONY WRIGHT,                            :
                                           :
                   Appellant               :           No. 2886 EDA 2015

               Appeal from the PCRA Order September 21, 2015
             in the Court of Common Pleas of Philadelphia County,
               Criminal Division, No(s): CP-51-CR-0014984-2007

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E. and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                            FILED MAY 31, 2016

        Anthony Wright (“Wright”) appeals from the Order dismissing his

Petition filed pursuant to the Post Conviction Relief Act (“PCRA”). 1      We

affirm.

        The PCRA court set forth the relevant factual and procedural

background in its Opinion, which we adopt for purposes of this appeal. See

PCRA Court Opinion, 12/8/15, at 1-3.

        On appeal, Wright raises the following issue for our review: “Did the

PCRA court err in denying [Wright] an evidentiary hearing when [he] raised

a material issue of fact?” Brief for Appellant at 2.

        Wright contends that the PCRA court erred in denying his request for

an evidentiary hearing regarding newly discovered evidence that showed his

innocence of the crimes of which he was convicted. Brief for Appellant at 6.



1
    See 42 Pa.C.S.A. §§ 9541-9546.
J-S35033-19


Wright asserts that, 1½ years after his trial, his co-defendant, Kevin Bates

(“Bates”), testified in another case that the testimony he provided at

Wright’s trial was coerced by detectives, and that it was Bates (rather than

Wright) who possessed the gun and shot Doreen Williams during the

incident. Id. Wright claims that Bates also stated that, pursuant to Bates’s

agreement with prosecutors, Bates thought that he would receive a prison

sentence of 12½ years to 25 years if he testified at Wright’s trial, rather

than the 20-40 year prison sentence that he received. Id. Wright argues

that Bates’s subsequent trial testimony constitutes newly discovered

evidence which raised a material issue of fact as to Wright’s innocence,

requiring the PCRA court to conduct an evidentiary hearing. Id. at 8.

            We review an order dismissing a petition under the PCRA
     in the light most favorable to the prevailing party at the PCRA
     level. This review is limited to the findings of the PCRA court
     and the evidence of record. We will not disturb a PCRA court’s
     ruling if it is supported by evidence of record and is free of legal
     error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

     The PCRA court addressed Wright’s claim and concluded that it lacks

merit.   See PCRA Court Opinion, 12/8/15, at 7-8; see also id. at 3-7

(explaining why the Bates’s testimony was not exculpatory). We agree with

the reasoning of the PCRA court and affirm on this basis. See id. at 7-8.

     Order affirmed.




                                 -2-
J-S35033-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/31/2016




                          -3-
                                                                                                   Circulated 05/03/2016 03:59 PM




COMMONWEALTH OF PENNSYLVANIA                                                           COURT OF COMMON PLEAS
                                                                                       FIRST JUDICIAL DISTRICT
                                                           FILED
                  vs.                              D. c.re.· \.} u
                                                            !"! (';: ·. ,1,r:.
                                                                     i, ., . ...   ,



                                              =Post Trial Unit
ANTHONY WRIGHT                                                                              CP-51-CR-0014984-2007


                                              OPINION


                                                                                            2886 EDA 2015

LEON W. TUCKER, J.                                                                          DATE: December 8, 2015

      I.      Procedural History and Facts

           This matter comes before the Superior Court on appeal from the denial of a Post Conviction

Relief Act1 ("PCRA") Petition filed by Anthony Wright (hereinafter referred to as "Petitioner") in
                                              ~~'-
which Petitioner sought an evidentiary hearing and' a new trial based upon claims of after-

discovered exculpatory evidence.

           On July 22, 2007, the Petitioner and an accomplice, Kevin Bates, arranged to purchase

crack cocaine from the decedent, Doreen Williams. Unbeknownst to the decedent, the Petitioner
                                              . ~~·-·
and Bates intended to rob her. That evening, the decedentwas driven to North Philadelphia by

Charles Smith, an acquaintance. Upon arriving at the agreed upon meeting place, Bates and

Petitioner separately entered Smith's vehicle. Prior to exiting the car, the Petitioner shot the

decedent at point-blank range. The decedent died several days later, due to complications from the
                                       . ~.:.":":"·
gunshot wound. At Petitioner's trial, Smith identified the Petitioner as the shooter and testified

about the robbery and shooting. Additionally, Bates also identified the Petitioner as the shooter, as

part of a negotiated guilty plea agreement with the Commonwealth.



 1
     42 PA. CONS. STAT.§§ 9541-9546 (2015).




                                                                                                                         '"-......,   . . ..
            On September 23, 2009, the Petitioner was convicted of Murder of the First Degree2,

Conspiracy- Robbery- Inflict Serious Bodily Injury3, Robbery- Threat of Serious Bodily Injury4,

Possession of an Instrument of a Crime5''ci>IC"), and Recklessly Endangering Another Person6

("REAP") after a jury trial. On December 4, 2009, Petitioner was sentenced to life imprisonment

for First Degree Murder. He was also sentenced to a concurrent sentence often to twenty years of

incarceration for the conspiracy and robbery charges, a consecutive sentence of five years of

probation for PIC and a sentence of two years of probation for REAP, to run concurrent with the

PIC sentence.

                On December 11, 2009, Petitioner appealed to the Superior Court of Pennsylvania. On

February 16, 2012, the Superior Court affirmed Petitioner's judgment of sentence. On March 1,
                                                                 ~.




2012, the Supreme Court of Pennsylvani~td~nied Petitioner's Petition for Allowance of Appeal.

                On February 11, 2013, Petitioner, prose, timely filed the instant PCRA Petition as it was

filed within one year of when his conviction became final. 42 Pa. Cons. Stat. § 9545(b) (2015).

Petitioner filed a series of Amended PCRA Petitions on May 20, 2013, May 9, 2014, and January
                                                       ~?Z.~~.·

 12, 2015. On July 14, 2015, the Commonwealth fileda Motion to Dismiss Petitioner's Amended

PCRA Petition. On July 20, 2015, after reviewing Petitioner's Amended PCRA Petition arguing

for relief based on newly discovered evidence and the Commonwealth's              Motion to Dismiss, the

 Court issued a Notice of Intent to Dismiss pursuant to Pa. R. Crim. P. 907, finding Petitioner's
                                                        :.1<!'.'~'"'g;;,;.,
 claims were without merit. On September 21, 2015, the Court formally dismissed Petitioner's

 Amended PCRA Petition.




 2
     18   PA.   CONS.   STAT.§    2502 (2015).
 3
     18   PA.   CONS.   STAT. §   903 (2015).          .<"'~""""'
 4
     18   PA.   CONS.   STAT.§    370l(a)(l) (2015).
 5   18   PA.   CONS.   STAT.§    907 (2015).
 6
     18   PA.   CONS.   STAT.§    2705 (2015).

                                                                              2
          On September 29, 2015, Petitioner timely filed the instant appeal to the Superior Court. On

October 5, 2015, the Court ordered Petitioner to file a concise statement of matters complained of

on appeal pursuant to Pa.R.A.P.        1925(b) (hereinafter referred to as "1925(b)        Statement").

Petitioner timely complied and filed his 1925(b) Statement on October 13, 2015. The Petitioner

submitted the following verbatim in his 1925(b) Statement:

          (1) The trial court erred in denying the defendant a new trial based on exculpatory evidence
              that was not available at time of trial.

          (2) The trial court erred in denying the defendant an evidentiary hearing on exculpatory
              evidence that was not available at time of trial.

          (3) The exculpatory evidence would have changed the outcome of the trial ifit would have
              been introduced at trial.

    II.       Legal Analysis

          Under 42 Pa. Cons. Stat.§§ 9541-9546, commonly known as the Post Conviction Relief

Act, a petitioner is required to plead and prove by a preponderance of the evidence that he was

convicted or sentenced as a result of one of the grounds enumerated in subsection (a)(2) to obtain
                                                          ·•":',

post-conviction relief. Id. § 9543(a)(2). A Petitioner may be eligible for relief on the basis of

exculpatory evidence, which was unavailable at the time of trial and "subsequently [became]

available and would have changed the outcome of the trial if it had been introduced." Id. §

9543(a)(2)(vi). Additionally, Petitioner must prove any claimed errors were not previously
                                                           ~""'"
 litigated or waived and "the failure to litigate the issue prior to or during trial, ... or on direct

 appeal could not have been the result of any rational, strategic or tactical decision by counsel."

 Id. § 9543(a)(4).




                                                     3
                                             ~r-
   A. The Courtdid not err when it denied Petitioner'srequestbased on after-discovered
       evidence as the evidence did not warranta new trial and would not have compelled
       a different verdict.

       To succeed on a claim of after-discovered evidence, Petitioner must establish (1) the

evidence was discovered after trial and even with reasonable diligence could not have been

obtained at or prior to trial; (2) the evideiic'e is not cumulative; (3) the evidence's sole use is not

to impeach credibility; and ( 4) the presentation of the evidence would likely compel a different

verdict. Commonwealth v. Washington, 927 A.2d 586, 595-96 (Pa. 2007).

        Petitioner argues the Court erred in its denial of a new trial because the after-discovered

evidence warranted post-conviction relief."P~titioner claims he discovered after trial that (1)

Bates, his accomplice, was coerced into a plea agreement to testify against Petitioner, (2) Bates

was mistaken about the sentence he would receive under the plea agreement, and (3) Bates

testified in a separate trial that he had the murder weapon during the shooting of the decedent,
                                            ~,~,:;'f+::··

not the Petitioner. Trial Tr. 3, July 20, 2015; Pet'r's. Am. PCRA Pet. 2, Jan. 12, 2015. This Court

properly denied Petitioner's request for a new trial as the alleged after-discovered evidence is not

exculpatory and did not warrant a new trial.

        First, Petitioner asserts Bates was coerced into and misunderstood the terms of the plea
                                             .•.•. ,,,.<!,,,
agreement and therefore, any testimony given as part of that agreement was tainted. Trial Tr. 4-5,

July 20, 2015. In a separate jury trial, Commonwealth v. Antoine Johnson (CP-51-CR-0000826-

2010), Bates testified that "the whole agreement was shook," and he was coerced by police and

 the Commonwealth's     attorneys into entering it. Trial Tr. 46, 63, 65, 69, May 12, 2011. He

 additionally testified that his sentence of ''20to 40 years is life," and he did not want to send

 innocent parties to jail for his crimes. Trial Tr. 46, May 12, 2011.
       In its consideration of granting a new trial, the Court is to 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." Commonwealth v. Padillas, 997 A.2d 356,

365 (Pa. Super. Ct. 2010). When evaluating the integrity of the alleged after-discovered

evidence, the Court is to view any post-verdict accomplice testimony "with a jaundiced eye."

Washington, 927 A.2d at 597. This post-verdict accomplice testimony is considered particularly

suspicious when the accomplice has already been con~icted and sentenced. Id.

        In the instant matter, the Court properly considered the testimony of Bates with particular

suspicion as he was already serving what he believed to be a life sentence of twenty to forty

years. Bates claimed he offered this testimony to prevent innocent parties from going to jail but
                                          ~i;.-~V"..:.·~·




his testimony did not expose him to any additional punishment for the crime, as he was already

serving a sentence as part of a negotiated plea agreement. Additionally, Bates engaged in a

lengthy colloquy with this Court prior to entering that agreement. Trial Tr. 3-19, Feb. 27, 2009.

Bates testified "I am pleading guilty to third degree murder to a sentence of 20 to 40. As long as
                                           .-.,~""·             -
I cooperate and everything is truthful, I will get 20 to 40 years." Trial Tr. 5, Feb. 27, 2009. The

 Court inquired whether Bates was forced or compelled into entering the agreement, and Bates

 answered that he was not. Trial Tr. 9-10, Feb. 27, 2009. The Petitioner has failed to establish this

 subsequent testimony from Bates is persuasive or sufficiently compelling to overcome the

 testimony from eyewitness, Charles Smith, who identified the Petitioner and recalled details of

 the robbery and shooting at the Petitioner's trial. As such, this Court did not err in denying the

 Petitioner's request for a new trial based on this testimony.

         Second, Petitioner asserts Bates testified in a separate trial that Bates had the gun during

 the robbery of the decedent and any testimony that thePetitioner shot the decedent was false.



                                                            5
Trial Tr. 3, July 20, 2015; Pet'r's. Am. PCRA Pet. 2, Jan. 12, 2015. The Court finds this

characterization of Bates' testimony to be misleading and erroneous. Even if Petitioner

accurately characterized the evidence, it would solely be used for impeachment purposes and

thereby impermissible as after-discovered evidence. Padillas, 997 A.2d at 365.

       In the Johnson trial, Bates testifiedv'I'had the gun the whole time" in response to a

question about the murder weapon being in Bates' possession over a two-month time period

including July 2007. Trial Tr. 160, May 12, 2011. However, Bates also testified "I didn't have

that gun in my hand during that robbery [involving the Petitioner]. I had a shotgun." Trial Tr.

129, May 12, 2011. He answered affirmatively when asked ifhe gave the gun to Petitioner for

the robbery, "Did I give [murder weapon] to [Petitioner]? Yeah." Trial Tr. 129, May 12, 2011.

Bates also expressly testified that "the other guy" pulled the trigger and that he testified against

"the other guy," referring to the Petitioner. Trial Tr. 128, May 12, 2011

    This testimony does not establish that-Bates lied during the Petitioner's trial about the

 Petitioner having the gun and shooting the decedent, as Petitioner contends. Rather, Bates

 affirmed his testimony from Petitioner's trial, that Petitioner did in fact have the murder weapon

 and shoot the victim. Even if this testimony may in some context seem to contradict Bates'

 earlier testimony, it would solely be used-for impeachment purposes, which is impermissible to

 succeed on an after-discovered evidence claim. Washington, 927 A.2d at 595-96. In Petitioner's

 trial, there was testimony from eyewitness Charles Smith, identifying the Petitioner as the party

 who shot and killed the victim. Any third-party testimony exculpating the Petitioner would be

 considered impeachment evidence againstthe eyewitness, Padillas, 997 A.2d at 365. Any

 evidence used solely for impeachment purposes is not permissible as after-discovered evidence

 warranting post-conviction relief. Id. The Court did not err in denying Petitioner's request for a



                                                   6
new trial, as the after-discovered evidence was not exculpatory in nature, and any testimony
                                                 ,"."•~·it•..,;

would have been solely used for impeachment purposes. Id.

     Consequently, Petitioner's third claim, that the presentation of this evidence would have

changed the outcome of the trial, also fails as the alleged after-discovered evidence is not

exculpatory in nature and would not have compelled a different verdict, as discussed above.
                                                 -~·:'-~-
     B. This Court did not err when it denied Petitioner's request for a hearing on
        exculpatory evidence as there was no genuine issue of material fact, and the
        Petitioner was not entitled to post-conviction relief.

         Petitioner argues this Court erred in denying him an evidentiary hearing on after-

discovered exculpatory evidence. Notwithstanding the Court's discussion of whether the
                                                  .J:x-.rf'f.il!!':·

evidence was indeed exculpatory, the Court did not errin denying the Petitioner's request for an

evidentiary hearing on the matter.

         The Court is not required to grant an evidentiary hearing for every issue raised in a PCRA

petition. The Court must review the defendant's petition, any answers from the Commonwealth,
                                                   ,,.,·:,.,.-;"/4~"'

and any other related matters of record before its determination. Pa. R. Crim. P. 907(1). In its

 review, the Court is to determine whether there are any genuine issues of material fact, whether

 the defendant is entitled to post-conviction relief, and whether further proceedings would serve

 any purpose. Id. If the Court's review does not reveal any issues of material fact or any purpose
                                                      .~}ff>.,.

 for further proceedings, it may dismiss the PCRA petition without a hearing. Id.

         In the instant matter, this Court reviewed Petitioner's PCRA petition7, filed on January

 12, 2015, in which Petitioner argued after-discovered evidence warranted a new trial. The Court




 7
   Petitioner filed three additional PCRA petitions on February 11, 2013, May 20, 2013, and May 9, 2014. Petitioner
 argued claims of ineffective assistance of counsel, prosecutorial misconduct, and other trial-related errors in those
 petitions, which the Court also dismissed. Inasmuch as those issues were not raised in the 1925(b) Statement in the
 instant matter, those issues are not addressed here and deemed waived. See Commonwealth v. Castillo, 888 A.2d
 775, 780 (Pa. 2005).

                                                                        7
also reviewed the Commonwealth's           answer, its Motion to Dismiss, filed on July 14, 2015.

Additionally, the Court reviewed the exhibits accompanying both the petition and the

Commonwealth's       response prior to ordering the Notice oflntent to Dismiss on July 20, 2015 and

formally dismissing the PCRA Petition on September 21, 2015. The Court found that the
                                                :.~"'.'to·~·



"Petitioner fail[ed] to state a claim for post-conviction relief based on after-discovered evidence

because the proffered newly discovered evidence is not exculpatory in nature." Order Entered by

J. Tucker, July 21, 2015.

        Petitioner did not raise any genuine     issues of material
                                          -..,f'~';f>,·,   -».
                                                                    fact as the Commonwealth

acknowledged there was additional testimony about Petitioner's possession of the murder

weapon and Bates' negotiated guilty plea agreement in a separate trial. Com. Mot. to Dismiss 5-

8, July 14, 2015. As the Court discussed above, the Court found the evidence was not

exculpatory in nature and defendant was... ,....thereby
                                                 . , ~·.,-;;-:"\'-
                                                                   not entitled to post-conviction relief. Lastly,

this Court found any further proceedings on the matter would not serve any exonerating purpose,

as the Court reviewed the numerous petitions, answers and accompanying exhibits prior to its

determination. Therefore, this Court did not err when it denied Petitioner's request for an

evidentiary hearing on his claim of after-discovered exculpatory
                                                      .~,
                                                   ..;~,.~-~~·"-·
                                                                 evidence .

    III.      Conclusion

    For the above reasons, this Court did not err in denying Petitioner Wright's request for a new

 trial or dismissing Petitioner's PCRA Petition without an evidentiary hearing. The Court's ruling

 should stand.




                                                                    8
               COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
                          CRIMINAL TRIAL DIVISION

COMMONWEALTH              V. ANTHONY WRIGHT                           CP-51-CR-0014984-2007

Opinion


                                       PROOF OF SERVICE
          Ihereby certify that I am this day serving the foregoing Court Order upon the person(s)
and in the manner indicated below, in accordance with the requirements of PA. R.CRIM.P. 114:



Defense Counsel/Party:          John Cotter, Esquire
                                2541 S Broad Street
                                Philadelphia, PA 19148

Type of Service:                ( ) Personal    ( X) First Class Mail ( ) Other, please specify


District Attorney:               Hugh J. BumsrJr., Esquire
                                 District Attorney's Office
                                 Widener Building
                                 3 South Penn Sq.
                                 Philadelphia, PA 19107

Type of Service:                 ( ) Personal   ( X) First Class Mail ( ) Other, please specify




Dated:




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