J. S52010/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                    v.                   :
                                         :
CLIFFORD W. BROWN,                       :         No. 2435 EDA 2015
                                         :
                         Appellant       :


                   Appeal from the PCRA Order, July 13, 2015,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0708081-1996


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED OCTOBER 25, 2016

        Clifford W. Brown appeals, pro se, from the order of July 13, 2015,

dismissing his third PCRA1 petition without a hearing. We affirm.

        In a prior memorandum filed July 8, 2013, affirming the dismissal of

appellant’s second PCRA petition, this court set forth the factual and

procedural history of this case as follows:

                    We have previously explained the underlying
              facts of this case:

                   In the early hours of August 5, 1995,
                   [Appellant] was playing “craps” outside
                   [of] J’s Bigshot Bar with Robert
                   Richardson   (“Richardson”)    and  the
                   victim, Vaughn Gaillard (“Gaillard”).
                   [Appellant]   and     Gaillard   argued

* Retired Senior Judge assigned to the Superior Court.
1
    Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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               throughout the game, with [Appellant]
               insisting that Gaillard bet at least
               $100.00.      Gaillard responded that
               [Appellant could not] tell him how to bet.

               Gaillard won the game, collected his
               winnings, and walked towards his car.
               [Commonwealth           witness       Dana
               Lucas[Footnote 1] testified at trial that,
               as Gaillard was walking away, Appellant]
               . . . stated to Richardson, “[y]ou’re going
               to let him walk away? You ain’t going to
               handle your business? You know how we
               do. You either put down or lay down.”

                   [Footnote 1] Dana Lucas is also
                   known as “Carolyn Eddles.”
                   See, e.g., Appellant’s First
                   PCRA Petition, 1/8/03, at ¶ 17.

               Richardson kicked off his shoes, walked
               into the street, and shot Gaillard three
               times     in   the    side    and    back.
               [Commonwealth witness Henry Jones
               testified that, after Richardson shot
               Gaillard, Appellant yelled] “[s]hoot him
               again! Get his money!” Richardson and
               [Appellant] then fled. Gaillard was taken
               to the hospital and shortly thereafter was
               pronounced dead from th[e] gunshot
               wounds.

               [Appellant] was arrested [and charged
               with several crimes related to the
               murder. Following Appellant’s jury trial,
               Appellant was] found guilty of first
               degree murder, possessing instruments
               of       crime,       and       criminal
               conspiracy.[Footnote 2]

                   [Footnote     2] 18 Pa.C.S.A.
                   §§ 2502(a), 907, and 903,
                   respectively.



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                [On July 1, 1997, the trial court
                sentenced Appellant] to a term of life
                imprisonment    for  the  [first-degree
                murder conviction and concurrent terms
                of imprisonment for the remaining
                convictions].

          Commonwealth v. Brown, 754 A.2d 14 (Pa.Super.
          2000) (unpublished memorandum) at 1-2.

                Appellant filed a direct appeal to this Court and
          raised a number of claims, including claims of trial
          court error and a claim that his trial counsel provided
          him with ineffective assistance. Id. at 3. With
          respect to Appellant’s ineffective assistance of
          counsel claim, Appellant claimed that counsel was
          ineffective for failing to present the testimony of
          eyewitness William Hanible. According to Appellant,
          Mr. Hanible’s testimony would have established that
          “[Appellant] never said anything to Richardson to
          incite Richardson to shoot Gaillard, and that
          [Appellant] appeared shocked and amazed when
          Richardson shot Gaillard.” Id. at 9.

                  On February 8, 2000, this Court affirmed
          Appellant’s judgment of sentence, but remanded the
          case so that the trial court could conduct a limited
          evidentiary hearing on Appellant’s ineffective
          assistance of counsel claim. Id. at 9-10; see, e.g.,
          Commonwealth v. Pearson, 685 A.2d 551, 558-
          559 (Pa.Super. 1996) (in the time prior to
          Commonwealth v. Grant, 813 A.2d 726 (Pa.
          2002), where an appellant’s judgment of sentence
          was proper on direct appeal, but where the conjoined
          ineffective assistance of counsel claim had arguable
          merit, this Court was required to “affirm the
          judgment of sentence and remand solely for an
          evidentiary hearing on [the] ineffectiveness claim;”
          if, following remand, this Court affirmed the denial of
          the ineffective assistance of counsel claim, the
          appellant could then file a petition for allowance of
          appeal with our Supreme Court, contesting both the
          denial of his ineffective assistance claim and the
          affirmance of his judgment of sentence).


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                Following remand, the trial court rejected
          Appellant’s ineffective assistance of counsel claim.
          We affirmed the trial court’s order on June 12, 2001
          and, on January 11, 2002, our Supreme Court
          denied Appellant’s petition for allowance of appeal.
          Commonwealth v. Brown, 779 A.2d 1214
          (Pa.Super. 2001) (unpublished memorandum) at
          1-7, appeal denied, 793 A.2d 904 (Pa. 2002).

                 Appellant filed his first PCRA petition on
          January 8, 2003. The PCRA court dismissed this
          petition on June 10, 2003, we affirmed the PCRA
          court’s order on May 24, 2004, and our Supreme
          Court denied Appellant’s petition for allowance of
          appeal on October 26, 2004. Commonwealth v.
          Brown,      855    A.2d   128    (Pa.Super.  2004)
          (unpublished memorandum) at 1-10, appeal
          denied, 862 A.2d 1253 (Pa. 2004).[2]

                Appellant filed the current PCRA petition – his
          second – on October 10, 2009. Within this pro se
          PCRA petition, Appellant acknowledged that he filed
          his petition outside of the PCRA’s one-year time-bar.
          Appellant’s Second PCRA Petition, 10/10/09, at 7.
          Appellant, however, claimed that a man named
          Tyrone Williams had recently come forward with
          “exculpatory evidence” regarding Appellant’s case.
          Id. Appellant thus claimed that his PCRA petition

2
          [W]ithin Appellant’s first PCRA petition (which was
          filed in 2003), Appellant included and relied upon an
          affidavit from an individual named Shareef Cato. In
          his 2003 affidavit, Mr. Cato averred that,
          immediately before the shooting, Dana Lucas was
          watching the outside dice game, but was insulted by
          Appellant.    Mr. Cato averred that, following the
          insult, Ms. Lucas “turned away and went inside the
          bar” – and that, after Ms. Lucas was inside of the
          bar, the shooting occurred.      Affidavit of Shareef
          Cato, 12/12/02, at 1-2.

Commonwealth v. Brown, No. 3150 EDA 2012, unpublished memorandum
at 13 (Pa.Super. filed July 8, 2013).


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            was timely under the “after-discovered facts”
            exception       to    the     PCRA’s      one-year
            time-bar.[Footnote 3] Id.; see also 42 Pa.C.S.A.
            § 9545(b)(1)(ii). Moreover, attached to Appellant’s
            PCRA petition was a sworn affidavit from
            Mr. Williams[.]

                  [Footnote 3] Obviously, in order to
                  satisfy   the   “after-discovered   facts”
                  exception to the PCRA’s one-year
                  time-bar, the petitioner need not plead
                  or prove that the evidence was
                  “exculpatory” or that the evidence
                  “would have changed the outcome of the
                  trial.” Commonwealth v. Bennett, 930
                  A.2d 1264, 1270-1272 (Pa. 2007)
                  (holding that the PCRA’s after-discovered
                  facts exception “merely requires that the
                  ‘facts’ upon which such a claim is
                  predicated must not have been known to
                  appellant, nor could they have been
                  ascertained by due diligence”) (internal
                  quotations and citations omitted). Our
                  reference to the alleged “exculpatory”
                  nature of Appellant’s evidence simply
                  reflects   our   effort   to   summarize
                  Appellant’s claim.

Commonwealth v. Brown, No. 3150 EDA 2012, unpublished memorandum

at 1-5 (Pa.Super. filed July 8, 2013) (brackets in original).

            According to Appellant’s memorandum in support of
            his second PCRA petition, [Williams’] affidavit
            demonstrates: “[1) that Appellant] was not the one
            engaged in an argument with the decease[d] over a
            bet . . . [; 2) that Appellant] did not promote, order,
            or instruct the shooter to [shoot] the deceased . . .
            [; and, 3) that] the Commonwealth’s key witness
            (Dana Lucas) did not actually eyewitness the
            shooting, and was inside the bar when the incident
            took place and when the shots were fired.”
            Appellant’s Memorandum of Law in Support of
            Second PCRA Petition, 10/10/12, at 15-16.


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Id. at 6 (brackets in original).

      Appellant’s second petition was dismissed on October 15, 2012; and

this court affirmed on July 8, 2013, holding, inter alia, that Williams was

merely a newly discovered or newly willing source for previously known

facts, and that such evidence does not satisfy the PCRA’s after-discovered

facts exception to the jurisdictional one-year time-bar.    Id. at 13, citing

Commonwealth v. Marshall, 947 A.2d 714, 720, 722 (Pa. 2008).                We

observed that, “Initially, since Appellant was present at the time of the

shooting, Appellant was aware of the alleged ‘fact’ that Appellant ‘was not

the one engaged in an argument with the decease[d] over a bet’ and that

Appellant ‘did not promote, order, or instruct the shooter to [shoot] the

deceased.’”    Id. at 12.   Furthermore, appellant brought similar claims on

direct appeal and in his first PCRA petition. Id. at 12-14. Appellant simply

reiterated facts that were previously supplied by Hanible and Cato. Id.

      Our supreme court denied appellant’s petition for allowance of appeal

from this court’s decision affirming the order dismissing his second PCRA

petition.   Commonwealth v. Brown, 82 A.3d 1058 (Pa.Super. 2013),

appeal denied, 85 A.3d 481 (Pa. 2014), cert. denied,           U.S.       , 135

S.Ct. 226 (2014). The instant petition was filed on October 3, 2014. Again,

appellant claimed that the after-discovered facts exception applied, this time

relying on an August 14, 2014 affidavit from Andre Lewis (“Lewis”).




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Therein, Lewis alleged that at the hospital after the shooting, 3 he told Lucas

to implicate appellant:

            I pulled [Lucas] to the side and told her, you can’t
            just tell them what happened. You have to get
            [appellant] locked up with [Richardson]. If you are
            going to tell on [Richardson] you have to put
            [appellant] in it and get [appellant] off the streets
            because if you don’t something is going to happen to
            you.    [Lucas] asked me how do [sic] she put
            [appellant] in it, I told her to tell them that after
            [Richardson] shot [the victim] [appellant] told
            [Richardson] to shoot him again and take his money.

Affidavit, Andre Lewis, 8/14/14 at 2 (appellant’s brief, Exhibit 1).               On

July 13, 2015, the PCRA court dismissed appellant’s petition as untimely

and/or previously litigated. This timely appeal followed. Appellant was not

ordered to file a concise statement of errors complained of on appeal

pursuant   to    Pa.R.A.P.   1925(b);    however,   the   PCRA   court     filed    a

Pa.R.A.P. 1925(a) opinion on October 5, 2015.

      Appellant has raised the following issues for this court’s review:

            1.     Given     that      [appellant]    proved   the
                   after-discovered facts exception, did the PCRA
                   court abuse its discretion when it decided that
                   [appellant]’s petition is untimely?

            2.     Given that the PCRA court did not review the
                   newly-discovered evidence on its merits, did
                   the court abuse its discretion?

            3.     Did the PCRA court abuse its discretion when it
                   denied [appellant]’s request for permission to
                   amend his PCRA petition?

3
  Lewis was a friend of the victim, Gaillard, and drove him to the hospital.
(Appellant’s brief at 15.)


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Appellant’s brief at 4.

      “Our standard of review in reviewing an order either granting or

denying post-conviction relief is limited to examining whether the court’s

determination is supported by evidence of record and whether it is free of

legal error.”   Commonwealth v. Albrecht, 720 A.2d 693, 698 n.3 (Pa.

1998) (citation omitted).

            In 1995, the legislature amended the PCRA to
            require that PCRA petitions must be filed within a
            certain period of time. These amendments require
            that any PCRA petition, “including a second or
            subsequent petition, shall be filed within one year of
            the date the judgment becomes final.” 42 Pa.C.S.
            § 9545(b)(1). A judgment becomes 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.    § 9545(b)(3).         These    timeliness
            requirements are jurisdictional. Commonwealth v.
            Fahy, 558 Pa. 313, 737 A.2d 214, 222 (1999). ‘[A]
            court has no authority to extend filing periods except
            as the statute permits.’ Id. (citation omitted).

Commonwealth v. Howard, 788 A.2d 351, 353 (Pa. 2002).

      This court affirmed appellant’s judgment of sentence on June 12,

2001, and our supreme court denied allocatur on January 11, 2002.

Therefore, appellant’s judgment became final on or about April 11, 2002,

after the time for filing a petition for writ of certiorari with the United

States Supreme Court expired.       See U.S.Sup.Ct. Rule 13, 28 U.S.C.A.

Appellant had until April 11, 2003, one year later, to file a timely PCRA



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petition.   Since this petition was filed 11½ years after the date on which

appellant’s judgment became final, then it was obviously filed beyond the

one-year time limitation.

             [T]he 1995 amendments afford three narrow
             exceptions to the one-year time limitation for
             seeking PCRA relief. One of the exceptions provides
             that a party is excused from the general one-year
             filing requirement of the PCRA if “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.”           42 Pa.C.S.A.
             § 9545(b)(1)(ii). This exception has come to be
             known as the after-discovered evidence exception.
             See Commonwealth v. Yarris, 557 Pa. 12, 731
             A.2d 581, 592 (1999) (characterizing 42 Pa.C.S.A.
             § 9545(b)(ii) as “the after-discovered evidence
             exception     to    the    timeliness    requirement”);
             Commonwealth v. Peterkin, 554 Pa. 547, 722
             A.2d 638, 643 (1998) (stating that “the exceptions
             to [PCRA] filing period encompass government
             misconduct,      after-discovered     evidence,    and
             constitutional changes”).         Furthermore, as a
             secondary proviso, the amendments mandate that
             when a petitioner alleges entitlement to an exception
             to the one-year time limitation, the petition will only
             be addressed on substantive grounds if it is “filed
             within 60 days of the date the claim could have been
             presented.” 42 Pa.C.S.A. § 9545(b)(2). Thus, a
             petitioner relying on the after-discovered evidence
             exception is further required to file his or her PCRA
             petition within 60 days of the discovery of the new
             evidence proffered in support of relief.

Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 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


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            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 obtained 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. Yarris, 557 Pa. 12, 29, 731 A.2d 581, 590
            (1999).    This rule is strictly enforced.         See
            [Commonwealth v. Vega, 754 A.2d 714, 718
            (Pa.Super. 2000)].

Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.Super. 2010),

appeal denied, 20 A.3d 1210 (Pa. 2011).

            We emphasize that it is the petitioner who bears the
            burden to allege and prove that one of the timeliness
            exceptions     applies.       [Commonwealth          v.
            Abu-Jamal, 941 A.2d 1263 (Pa. 2008)].                In
            addition, a petition invoking any of the timeliness
            exceptions must be filed within 60 days of the date
            the claim first could have been presented.
            42 Pa.C.S. § 9545(b)(2). A petitioner fails to satisfy
            the 60-day requirement of Section 9545(b) if he or
            she fails to explain why, with the exercise of due
            diligence, the claim could not have been filed earlier.
            Commonwealth v. Breakiron, 566 Pa. 323, 781
            A.2d 94, 98 (2001).

Marshall, 947 A.2d at 719-720.

      First, we observe that Lewis’ affidavit was dated August 14, 2014, and

appellant filed his petition on October 3, 2014, within 60 days.       However,

appellant does not allege when he first became aware of the information in

Lewis’ affidavit, i.e., that Lewis told Lucas to tell police that appellant urged

Richardson to shoot the victim and take his money. Appellant claims that

his wife sent him Lewis’ affidavit on September 2, 2014. (Appellant’s brief


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at 10; appellant’s reply brief at 4.) However, appellant failed to plead when

he first became aware of the facts alleged in Lewis’ affidavit, as required by

42 Pa.C.S.A. § 9545(b)(2).    The operative date is not the date of Lewis’

affidavit, nor when appellant received the affidavit in the mail.          See

Commonwealth v. Holmes, 905 A.2d 507, 510-511 (Pa.Super. 2006),

appeal denied, 917 A.2d 845 (Pa. 2007) (“While Holmes’ petition was

admittedly filed within sixty days of the date of the Fauntleroy affidavit,

there is absolutely no indication that Mr. Fauntleroy drafted the affidavit on

the same day that he first approached Appellant and revealed to him the

new information.     Thus, Holmes failed to demonstrate the predicate

requirement that the instant claim was raised within sixty days of the date it

first could be presented, and, therefore, he did not sustain his burden of

pleading and proving that the after-discovered evidence exception permits

him to circumvent the statutory time-bar.”).

      Furthermore, appellant has failed to demonstrate why this evidence

could not have been obtained earlier, with the exercise of due diligence.

According to appellant, Lewis was a friend of the victim and drove the victim

to the hospital after the shooting.    (Appellant’s brief at 15.)   The alleged

conversation between Lewis and Lucas took place in the emergency room of

Germantown Hospital. (Id.; Lewis affidavit, 8/14/14 at 1.) Initially, Lewis

also gave a statement to police inculpating appellant. (Appellant’s brief at

15.) Lewis did not testify at trial. (Id.) However, appellant does not allege



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that he was unaware of Lewis’ existence or could not have uncovered this

evidence prior to trial through the exercise of reasonable diligence.

      Even if appellant could demonstrate that he met the 60-day

requirement and that the evidence was not discoverable earlier, with due

diligence, he would still not be entitled to relief.   As described thoroughly

above, this is at least the fourth witness that appellant has found to say

essentially the same thing, i.e., that appellant did not order Richardson to

shoot the victim.     See Marshall, 947 A.2d at 720 (“The focus of the

exception is ‘on [the] newly discovered facts, not on a newly discovered or

newly willing source for previously known facts.’”), quoting Commonwealth

v. Johnson, 863 A.2d 423, 427 (Pa. 2004) (emphasis in Johnson)

(footnote omitted).    This court observed on appeal from dismissal of

appellant’s second PCRA petition,

            Unquestionably, Appellant has long been aware of all
            three of the alleged “facts” that are contained in
            Mr. Williams’ affidavit. Initially, since Appellant was
            present at the time of the shooting, Appellant was
            aware of the alleged “fact” that Appellant “was not
            the one engaged in an argument with the decease[d]
            over a bet” and that Appellant “did not promote,
            order, or instruct the shooter to [shoot] the
            deceased.”     Appellant’s Memorandum of Law in
            Support of Second PCRA Petition, 10/10/12, at
            15-16. Therefore, with respect to these two aspects
            of Mr. Williams’ affidavit, Appellant’s after-discovered
            facts claim immediately fails.




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Brown, No. 3150 EDA 2012 at 12. Appellant keeps finding new witnesses

to submit affidavits containing the same averments of fact. This is not new

evidence.

        Finally, we address appellant’s argument that he should have been

granted leave to amend his PCRA petition, after receiving Rule 9074 notice,

to include his investigator’s interview of Lewis.    (Appellant’s brief at 20.)

Pennsylvania Rule of Criminal Procedure 905 provides, “(A) The judge may

grant leave to amend or withdraw a petition for post-conviction collateral

relief at any time. Amendment shall be freely allowed to achieve substantial

justice.” Pa.R.Crim.P. 905(A). The transcript of the investigator’s interview

with Lewis does not add anything material to Lewis’ affidavit. (Appellant’s

brief at 11-12.) Lewis does not actually exonerate appellant. At the end of

the interview, Lewis states that, “[The victim] was winning but then he

crapped out and tried to leave without paying the fade. [The victim] went to

the passenger side of his car and that’s when [Richardson] shot him.” (Id.

at 12.) Lewis does not allege that Lucas’ statement to police was false, only

that he urged her to “put [appellant] in it.”       Lewis’ allegations did not

constitute after-discovered evidence for PCRA purposes, and the PCRA court

did not abuse its discretion in denying appellant leave to amend his petition

to include the transcript provided by appellant’s investigator.      Certainly,

appellant was not prejudiced by the PCRA court’s denial of leave to amend.


4
    Pa.R.Crim.P. 907.


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      Lastly,   we   address   appellant’s      “Application    for   Post-Submission

Communication,” filed June 16, 2016. Appellant avers that on June 6, 2016,

during the pendency of this appeal, he received an affidavit from Lucas.

According to appellant, Lucas confirms what was said by Lewis and also

contradicts her own trial testimony. (Id. at 2.) At trial, Lucas testified that

she heard appellant tell Richardson to shoot the victim, not that she was

instructed to say so by Lewis. (Id.) Appellant seeks a remand to amend his

PCRA petition to include Lucas’ affidavit. (Id.) Appellant also notes that he

has dispatched an investigator to interview Lucas and seeks permission to

include   any    additional    exculpatory      evidence       provided   by   Lucas.

(“Memorandum of Law in Support of Application for Relief,” 6/16/16 at

2 n.1.)

      On July 15, 2016, appellant filed a “Supplemental Application for

Post-Submission Communications,” alleging that his investigator interviewed

Lucas on June 29, 2016.          Appellant attaches a notarized, handwritten

question-and-answer      sheet    in   which       Lucas   exonerates       appellant.

(“Supplemental Application for Relief,” 7/15/16, Exhibit 1.)

      We decline appellant’s invitation to remand to amend the instant PCRA

petition, his third, to include yet another claim of after-discovered evidence




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based on Lucas’ affidavit. Appellant will have to raise any such claim in a

serial PCRA petition.5

      Order affirmed.     Appellant’s application and supplemental application

for post-submission communication are denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/25/2016




5
  The PCRA court observed that in his October 10, 2009 PCRA petition,
appellant claimed to have after-discovered evidence that Lucas fabricated
her trial testimony and that she did not actually witness the shooting.
(PCRA court opinion, 10/5/15 at 4.)


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