J-S68006-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    :   IN THE SUPERIOR COURT OF
                                                    :        PENNSYLVANIA
                                                    :
                v.                                  :
                                                    :
                                                    :
    LELAND DAVIS                                    :
                                                    :
                       Appellant                    :   No. 31 WDA 2019

             Appeal from the PCRA Order Entered November 7, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0015949-2010


BEFORE: GANTMAN, P.J.E., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                            FILED DECEMBER 20, 2019

        Leland Davis (Davis) appeals the order of the Allegheny County Court

of Common Pleas (PCRA court) denying his petition for relief filed pursuant to

the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. The order

is affirmed.

                                               I.

        This case arises from a 2008 shooting at the Elks Club in Allegheny

County.1 The image of a man fitting Davis’ general description was captured

by a surveillance video in the club. The video showed that the victim was

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*   Retired Senior Judge assigned to the Superior Court.

1 The facts of the underlying criminal offenses are gleaned from our decision
in Davis’ direct appeal. See Commonwealth v. Davis, 618 WDA 2013 (Pa.
Super. May 11, 2015) (unpublished memorandum).
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fatally shot once in the head. Nearby police officers heard the gunshot and

reported to the area.

      An officer saw Davis running from the area while holding a pistol. The

officer ordered Davis to stop but had to chase Davis on foot when he did not

comply. Davis eluded the officer, but dropped the firearm and some articles

of clothing in the process.    The officer who pursued Davis was unable to

immediately identify him.

      Jameelah Miller (Ms. Miller) was shown the surveillance video footage of

the shooting, and she told police that she recognized the shooter as Davis.

Police used that identification to obtain a warrant to take a DNA sample from

Davis, who was then charged with one count of third-degree murder, one

count of carrying a firearm without a license, and one count of person not to

possess a firearm.

      Davis filed a motion to suppress in September 2011 and it was denied.

A jury trial was held in 2012 and Davis was found guilty as charged. On the

murder count, he received a prison term of 20-40 years. Davis received a

consecutive term of three to six years as to the count of carrying a firearm

without a license. He received no further penalty on the remaining count.

      Davis filed a post sentence motion and it was denied. He then timely

filed a notice of appeal and this Court affirmed the judgement of sentence.

Davis did not file a petition for allowance of appeal.




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      The PCRA has summarized the subsequent post-conviction proceedings

as follows:

      On September 29, 2015, appellate counsel . . . filed a [PCRA
      petition] alleging after discovered evidence pursuant to 42 Pa.C.S.
      §9545(b)(1)(ii) [and 42 Pa.C.S. § 9543(a)(2)(vi)]. . . .

      On December 5, 2016, [Davis] filed a second PCRA petition. On
      April 7, 2017, the Commonwealth filed an Answer to the Post-
      Conviction Relief Act petitions. On July 18, 2017, [Davis] filed an
      "Amended PCRA Petition-After Discovered Evidence" . . . . On
      June 11, 2018, [Davis] appeared before the [PCRA] Court for an
      evidentiary hearing on [Davis’] PCRA claim.

      At the evidentiary hearing, the [PCRA] Court heard testimony
      from witnesses: [Jameelah] Miller, Detective Anthony Perry,
      Detective Patrick Kinavey, and Allegheny County Police Inspector
      Christopher Kearns. . . .

      [I]t it is alleged that on September 15, 2015, Ms. Miller [a witness
      at Davis’ trial] informed a representative for then appellate
      counsel that she never viewed a video in the present case nor
      identified the [Davis] to law enforcement.

      In support of this contention, [Davis] attached a certified
      statement from Ms. Miller to his December 5, 2016, PCRA petition.
      The certified statement alleged that she was shown Allegheny
      County police reports prepared in relation to the present case by
      a private investigator for [Davis] wherein she is alleged to have
      identified [Davis] in a surveillance video. Ms. Miller contended
      that she never met with law enforcement relative to the case and
      was not shown any video nor did she ever identify [Davis] in that
      video.

      [Davis] further alleged that Ms. Miller, who was acting as a
      cooperating informant, had provided false testimony in the trial of
      Defendant Derrick Elliot in an unrelated case falsely identifying
      him as the murderer. In support of this contention, [Davis]
      attached a notarized affidavit from [Ms.] Miller to his Amended
      PCRA petition filed on July 18, 2017.

      At [Davis’] evidentiary hearing, Ms. Miller testified that at the time
      of the murder she was having a sexual relationship with an

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     Allegheny County Homicide detective for money while she was in
     witness protection in relation to another case.

     She testified that the detective asked her if she knew [Davis] and
     was shown a videotape of a bar in the McKeesport area but that
     [Davis] was not in the video; however, he was in a photo array he
     showed her. [Davis] conceded that she had previously informed
     the former prosecutor that she was being threatened by
     individuals involved in [Davis’] case, that someone had been hired
     to kill her because of her involvement, and that her brother was
     pressuring her to “fix things” for [Davis]. Ms. Miller testified that
     she was testifying at the hearing because of the threats she was
     receiving and to “clear” her name.

     Detective Perry testified that he showed the video in question to
     Ms. Miller on July 8, 2010, and later showed her a photo array on
     July 12, 2010. Detective Perry testified that Ms. Miller did, in fact,
     identify [Davis] in the video and also denied he was the detective
     who had a sexual relationship with Ms. Miller.

     Detective Kinavey testified that he too was not the detective who
     had a sexual relationship with Ms. Miller, and that he has spoken
     with Ms. Miller in relation to the present PCRA petition and the
     claim that she was recanting in this case as well as an unrelated
     case. Ms. Miller informed Detective Kinavey that she was upset
     because her name was involved with [Davis’] case and that her
     name had been released in documents as a potential witness. She
     further indicated that she was being threatened and had been
     picked up by an individual, driven to a notary, and was forced to
     sign a statement in an unrelated case. He indicated he was the
     only one to have direct contact with Ms. Miller while in witness
     protection, was the one to transport her to hearings, move her,
     and distribute any funds given for reimbursement. He additionally
     stated he was unaware that she had a sexual relationship with any
     Allegheny County Homicide detective.

     Inspector Kearns testified that he investigated the allegations that
     Ms. Miller had a sexual relationship with a detective from the
     county homicide division. The investigation revealed that the
     sexual relationship did not occur with a county detective but had
     occurred with a Pittsburgh Police detective. Further, there was no
     evidence that particular city detective had been involved in any
     Allegheny County cases in which Ms. Miller was a witness.
     Additionally, Inspector Kearns indicated that the Allegheny County

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       Homicide Unit is separate from the Pittsburgh Homicide Unit and
       unless there is a joint investigation or specific request that the
       units do not have access to each other’s investigation files.

PCRA Court Notice of Intent to Dismiss, 9/20/2018, at 1-4. (Internal citations

omitted).

       The PCRA court found the testimony of Detective Perry, Detective

Kinavey and Inspector Kearns credible. Id. at 4.2 The PCRA court found Ms.

Miller’s testimony to be “wholly incredible.” Id. Importantly, the PCRA court

determined that Ms. Miller recanted her 2010 identification of Davis as the

shooter “due to threats she had received both from unnamed individuals and

her brother.” Id. at 4-5. Due to the weight it afforded to the testimony of

the officers, the PCRA denied Davis’ petition.          See PCRA Court Order,

11/7/2018.

       Davis filed his notice of appeal over 30 days after the PCRA court had

entered the order now at issue.          However, the PCRA court granted Davis’

petition for reinstatement of his appellate rights, nunc pro tunc, due to

administrative delays in providing Davis notice of the order. See PCRA Court

Order, 1/2/2019. Davis then timely filed his notice of appeal and both Davis

and the PCRA court complied with Pa.R.A.P. 1925.




____________________________________________


2The PCRA Court relied on its Notice of Intent to Dismiss in lieu of a 1925(a)
opinion. See PCRA Court order, 5/2/2019.


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                                               II.

       The main issue here is whether the PCRA court erred in rejecting Davis’

claim that after-discovered evidence entitled him to PCRA relief. 3 Such relief

is only available where a petitioner can establish that:

       (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.

Commonwealth. v. D'Amato, 856 A.2d 806, 823 (Pa. 2004) (citation and

quotation marks omitted).4 As set forth in the PCRA, a petitioner must prove

“[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.” 42 Pa.C.S. § 9543(a)(2)(vi).

       Based on the above facts and authorities, we find that Davis cannot

establish the third and fourth prongs of the PCRA’s after-discovered evidence


____________________________________________


3 “Our review of a PCRA court’s decision is limited to examining whether the
PCRA court’s findings of fact are supported by the record, and whether its
conclusions of law are free from legal error.” Commonwealth v. Mason,
130 A.3d 601, 617 (Pa. 2015) (citation omitted). The PCRA court’s credibility
determinations are binding on this Court as long as they are supported by the
record. Id.

4 The PCRA’s jurisdictional time-bar precludes claims for relief asserted more
than one year after the date the petitioner’s judgment of sentence becomes
final. See 42 Pa.C.S. § 9545(b)(1). However, Davis clearly satisfies an
exception to the time-bar because the subject recantation was indisputably
unknown to Davis within the filing period and could not have been ascertained
by the exercise of due diligence. See id. at § 9545(b)(1)(ii); see generally
Commonwealth v. Bennett, 930 A.2d 1264, 1270–73 (Pa. 2007).

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test. See Amato, 856 A.2d at 823; 42 Pa.C.S. § 9543(a)(2)(vi). While Ms.

Miller’s recantation could not have been discovered prior to the time she made

it (first prong), and the evidence is not cumulative (second prong), Davis fails

the third prong because he is using this evidence solely to impeach the

credibility of Ms. Miller and the investigating officers.

      Davis also cannot establish the fourth prong – that the evidence would

compel a different result – because the PCRA court found that Ms. Miller was

simply not believable when she testified that police coerced her into

implicating Davis. Ms. Miller was a trial witness who had initially identified

Davis in a surveillance video, leading to his arrest and conviction. A few years

after Davis’ convictions, Ms. Miller stated in a certified statement that she had

falsely identified Davis from surveillance video footage of the murder. Ms.

Miller explained that a homicide detective assigned to the subject case had

forced her into a sexual relationship and demanded that she incriminate Davis.

See PCRA Hearing, 6/11/2018, at 14-17.

      However, the PCRA court heard evidence from the Commonwealth’s

witnesses that Ms. Miller was romantically involved with a Pittsburgh police

officer who had nothing to do with Davis’ case. Id. at 23-24; 26-30; 32-33.

Ms. Miller also testified that her own brother had pressured her to exonerate

Davis, and that she had previously been threatened by an unnamed individual

into recanting testimony in an unrelated case. Id. at 16-19.




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      On appeal, this Court is bound by a PCRA court’s credibility

determinations as long as they are supported by the record.                   See

Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (“The PCRA

court’s credibility determinations, when supported by the record, are binding

on this Court.”). The PCRA court’s determination that the Commonwealth’s

witnesses were more credible than Ms. Miller finds ample record support.

      Additionally, aside from Ms. Miller’s visual identification of Davis as the

shooter, the Commonwealth linked him to the murder weapon with DNA

evidence. Davis was also linked to DNA found on clothing worn by the shooter.

Thus, because Ms. Miller’s dubious recantation would not likely compel a

different verdict at a new trial, the subject petition was properly denied.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/20/2019




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