J-S23031-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,               :   IN THE SUPERIOR COURT OF
                                            :         PENNSYLVANIA
                   Appellee                 :
          v.                                :
                                            :
TYRONE HARRIS,                              :
                                            :
                   Appellant                :   No. 1494 EDA 2014

                Appeal from the PCRA Order Entered April 25, 2014,
               in the Court of Common Pleas of Philadelphia County,
                Criminal Division, at Nos: CP-51-CR-0604471-1996

BEFORE:        DONOHUE, SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                        FILED JUNE 03, 2015

      Tyrone Harris (Appellant) appeals from the order which dismissed his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541-9546. We affirm.

      In 1997, Appellant was sentenced to life imprisonment without the

possibility of parole after a jury convicted him of the first-degree murder of

Herbert Washington. This Court affirmed Appellant’s judgment of sentence,

and our Supreme Court denied allowance of appeal.         Commonwealth v.

Harris, 731 A.2d 194 (Pa. Super. 1998) (unpublished memorandum),

appeal denied, 753 A.2d 815 (Pa. 2000).         Appellant’s first PCRA petition

resulted in no relief.

      On March 23, 2005, Appellant filed pro se his second PCRA petition,

which was amended by appointed counsel on March 21, 2006.             The PCRA

court dismissed the petition as untimely filed and meritless; vacated the

*Retired Senior Judge assigned to the Superior Court.
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dismissal order; gave the required notice of intent to dismiss the petition

without a hearing; and, on March 1, 2007, entered another order dismissing

Appellant’s petition.

         Appellant timely filed a notice of appeal.   The PCRA court ordered

Appellant to file a statement of errors complained of on appeal.     Although

Appellant filed a statement, the PCRA court “inadvertently failed to

acknowledge” it, PCRA Court Opinion, 7/26/2014, at 2 n.1, and filed an

opinion indicating that Appellant waived all objections by failing to comply.

By order of June 11, 2008, this Court remanded the case for 60 days and

required the PCRA court to file a corrected opinion addressing the issue

raised in Appellant’s concise statement.

         While awaiting the new PCRA court opinion, Appellant filed, pro se,

multiple applications for remand based upon after-discovered evidence.

Eventually, counsel filed a similar motion and, in support thereof, attached

the affidavits of Zakee Hamilton, Bonnie Colmon, and Tyrone Bullock. This

Court denied the motion without prejudice to seek the requested relief in his

brief.

         On May 11, 2009, this Court ordered the PCRA court to advise this

Court within 20 days of the status of its compliance with the June 11, 2008

order. The PCRA court filed its opinion on June 16, 2009, in which it stated

its determination that Appellant’s petition, as amended, was untimely filed.




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      On April 13, 2010, this Court reversed.           This Court held that

Appellant’s “after-discovered evidence fulfills the requirements to apply an

exception   to   the   one-year   time   limit   and   warrants   a   hearing.”

Commonwealth v. Harris, 998 A.2d 1006 (Pa. Super. 2010) (unpublished

memorandum at 1). Accordingly, the case was remanded for an evidentiary

hearing on the three affidavits Appellant submitted in support of his after-

discovered evidence claim.

      After many continuances, the PCRA court held a hearing on July 19,

2013, at which Zakee Hamilton testified as to the substance of his affidavit.

At the close of the hearing, the PCRA court granted Appellant funds to hire

an investigator to locate the other witnesses. N.T., 7/19/2013, at 50-51. It

was determined subsequently that Tyrone Bullock died in 2009 and that

Bonnie Coleman was not available to testify.

      On April 25, 2014, the PCRA court dismissed Appellant’s petition on

the grounds that (1) it was filed untimely, and (2) the verdict would not be

different if Appellant were granted a new trial.       Appellant timely filed a

notice of appeal. Both Appellant and the PCRA court complied with Pa.R.A.P.

1925. On appeal, Appellant challenges both of the PCRA court’s bases for

dismissing his petition.

      On appeal from the denial of PCRA relief, our standard of review
      calls for us to determine whether the ruling of the PCRA court is
      supported by the record and free of legal error. The PCRA
      court’s findings will not be disturbed unless there is no support



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     for the findings in the certified record. The PCRA court’s factual
     determinations are entitled to deference, but its legal
     determinations are subject to our plenary review.

Commonwealth v. Nero, 58 A.3d 802, 805 (Pa. Super. 2012) (internal

citations and quotation marks omitted).

     To be entitled to relief under the PCRA on [the basis of
     exculpatory after-discovered evidence], the petitioner must
     plead and prove by a preponderance of the evidence [t]he
     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. As our Supreme
     Court has summarized:

           To obtain relief based on after-discovered evidence,
           [an] appellant must demonstrate that the evidence:
           (1) could not have been obtained prior to the
           conclusion of the 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 is conjunctive; the [appellant] must show by a
     preponderance of the evidence that each of these factors has
     been met in order for a new trial to be warranted. Further, when
     reviewing the decision to grant or deny a new trial on the basis
     of after-discovered evidence, an appellate court is to determine
     whether the PCRA court committed an abuse of discretion or
     error of law that controlled the outcome of the case.

Commonwealth v. Foreman, 55 A.3d 532, 537 (Pa. Super. 2012) (internal

citations and quotation marks omitted).

     Appellant first claims that the PCRA court erred in holding that his

claim was untimely filed because he failed to prove that he could not have




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obtained the evidence prior to the close of trial. We agree that the PCRA

court erred in so holding.

      “‘[A] court involved in the later phases of a litigated matter should not

reopen questions decided by another judge of that same court or by a higher

court in the earlier phases of the matter.’” Commonwealth v. King, 999

A.2d 598, 600 (Pa. Super. 2010) (quoting Commonwealth v. Starr, 664

A.2d 1326, 1331 (Pa. 1995)). Here, a panel of this Court held that

      [Appellant] satisfied the prongs of the after-discovered
      [evidence] rule because he could not have known of witnesses to
      the shooting who were not interviewed by police or had not
      come forward on their own.        The testimony of the three
      witnesses is not cumulative or impeaching and, if believed, could
      change the outcome of trial.

Harris, 998 A.2d 1006 (unpublished memorandum at 7). The PCRA court,

therefore, acted improperly in holding, based upon Hamilton’s affidavit and

testimony consistent therewith, that “the witness’ decision to not come forth

with evidence to this crime does not make the evidence undiscoverable at

the time this crime occurred” and that “Appellant has failed to prove that

Zakee Hamilton’s witness testimony could not have been discovered [earlier]

by the exercise of reasonable diligence.” PCRA Court Opinion, 6/26/2014, at

8, 7. The law of the case was that Hamilton’s evidence was not discoverable

earlier, and the PCRA court lacked the power to hold otherwise. However,

this error does not necessarily entitle Appellant to relief.




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      The question that the PCRA court was required to answer on remand,

following the evidentiary hearing, was whether Appellant Zakee Hamilton’s

testimony would likely result in a different verdict if presented in a new trial.

      Appellant argues that a new trial is warranted because Hamilton “gave

credible testimony that the decedent, Herbert Washington, was shot by

Damon Elazier and not [A]ppellent.” Appellant’s Brief at 10. The PCRA court

disagreed, offering the following explanation.

      … Zakee Hamilton testified that he was present at the scene of
      the crime on September 30, 1995.12 Zakee Hamilton stated that
      he was walking towards the Laundromat on Germantown Avenue
      when he witnessed an argument between the Appellant and the
      deceased, Herbert Washington. Subsequently, the witness saw
      Damon “come out of nowhere” and shoot the victim. Actually,
      Zakee Hamilton’s testimony aligns [in some respects] with the
      witness testimony presented at the Appellant’s trial. Joseph
      Jones testified that he witnessed an argument between the
      Appellant and Herbert Washington over whether the decedent
      could sell drugs on the corner where the Appellant usually sold
      drugs. After Joseph Jones stopped the argument he walked
      away to get food from a food cart and heard a gunshot. The
      witness testified that when he turned around he saw the
      Appellant standing over Herbert Washington shooting him in the
      back several times.     Then, Herbert Washington fell to the
      ground.
            _____
            12
               The witness testified that he was going to do laundry for
            his household on Saturday, September 30, 1995, at
            approximately 11:00 [AM]. However, the incident was
            noted by the Commonwealth as having taken place
            between 7:00 AM and 8:00 AM with the authorities arriving
            at 8:30 AM.

            After Herbert Washington was shot, the Appellant ran from
      the scene of the murder and Joseph Jones went to help the
      victim. Not only did Joseph Jones testify that he saw the



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     Appellant shoot the victim, but he also stated the victim
     provided a dying declaration when he said, “I cannot believe
     Blue [Appellant] shot me.” Immediately after the victim was
     taken away by an ambulance, Joseph Jones called the victim’s
     grandmother from a payphone to tell her Herbert Washington
     had been shot, by “Blue.” Coincidentally, Joseph Jones never
     testified to seeing Damon Elazier at the scene of the crime or
     identified Damon Elazier as the shooter nor was Damon Elazier
     implicated by law enforcement in any way.

            Yet, after Zakee Hamilton met the Appellant in the
     Somerset State Correctional Institution and ten (10) years after
     this murder took place, he decided to come forward with
     information regarding the real shooter of Herbert Washington.19
     Zakee Hamilton testified that he was not friends with the
     Appellant and only knew him from his neighborhood.
     Nonetheless, he testified that when he saw the Appellant in the
     gym of Somerset State Correctional Institute, he went up to him
     to talk and update him on what was going on in the
     neighborhood. The credibility and integrity of Zakee Hamilton’s
     testimony was weakened by inconsistencies that were evident to
     this court. For example, Zakee Hamilton had previously stated
     that “nobody go around talking like that” regarding
     conversations about people from his neighborhood being
     charged with murder. However, Zakee Hamilton testified during
     the first actual conversation with the Appellant, they began to
     talk about their charges and the witness decided to reveal that
     he knew the Appellant had not committed the crime.
            _____
            19
               It should be noted that Zakee Hamilton testified that he
            was scared of Damon because of his known violent
            behavior and said this was a reason that he never came
            forward with this eyewitness testimony. However, Zakee
            Hamilton also testified as a 14 year-old child he stood and
            watched from across the street as Damon Elazier shot the
            victim several times[, w]hile others ran as the shots were
            fired, including the Appellant.        Additionally, Zakee
            Hamilton was aware that Damon Elazier passed away in
            1998 and still did not come forward with this testimony.
            Again, this court found the integrity of Zakee Hamilton's
            testimony at the evidentiary hearing, to be lacking.




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           Moreover, Zakee Hamilton claimed that he and the
     Appellant did not discuss the murder any further.23 Even though
     Zakee Hamilton placed both the Appellant and Damon Elazier at
     the scene of the murder, no other witness at the Appellant’s
     actual trial mentions Damon Elazier being at the scene of the
     crime or the shooter in this murder. Since Damon Elazier is now
     deceased, it is impossible to verify any of the alleged eyewitness
     testimony presented by Zakee Hamilton. Coincidently, Zakee
     Hamilton was aware of the passing of Damon Elazier since
     approximately 1998.
           _____
           23
               The witness provided further inconsistent testimony
           when he testified that he told the Appellant he knew the
           Appellant did not commit the murder, but later testifie[d]
           that he and the Appellant never discussed the murder. It
           does not seem likely to this court that in a conversation
           about the murder that neither the witness nor the
           Appellant mentioned who the actual shooter was. The
           witness went on to testify that he by his own volition
           decided to go to the law library, and take the proper steps
           to reveal this information in order to help the Appellant.
           Yet, the witness had this information for ten (10) years
           prior to their meeting and never felt compelled to divulge
           his version of events that took place on September 30,
           1995.

                                   ***

           Again, the testimony presented by Zakee Hamilton at the
     evidentiary hearing did not seem reliable or consistent with any
     testimony that was presented at the actual trial. Joseph Jones
     was not only a spectator to this occurrence but directly involved
     in the argument prior to the shooting.          Additionally, the
     deceased in this case provided a dying declaration to Joseph
     Jones; holding Blue (Appellant) responsible for the shooting.
     …[T]here has been no other witness that testified to Damon
     Elazier being at the scene of the crime…. Furthermore, when
     [the PCRA] court viewed the integrity of the alleged after-
     discovered evidence, the motive for offering the evidence and
     the overall strength of Zakee Hamilton’s testimony, it does not
     compel a new verdict in this matter or warrant a new trial. …




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PCRA Court Opinion, 6/26/2014, at 10-14 (some footnotes and unnecessary

commas omitted).

      The PCRA court’s factual determinations are supported by the record,

and we discern no error of law in its conclusion that a new trial is

unwarranted by Appellant’s evidence. See, e.g., Commonwealth v. Abu-

Jamal, 720 A.2d 79, 97 (Pa. 1998) (affirming denial of relief where “the

PCRA court explicitly found [the witness’s] testimony to be incredible and,

accordingly, concluded as well that such testimony was not likely to have

altered the verdict and thus, did not establish the fourth factor necessary to

meet the test for ‘after-discovered evidence.’”).   Therefore, we affirm the

PCRA court’s order denying Appellant relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 6/3/2015




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