J-S13019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MARIO COURTLIN PARKER

                            Appellant                  No. 821 WDA 2015


                   Appeal from the PCRA Order April 22, 2015
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0007624-2009


BEFORE: LAZARUS, STABILE, and FITZGERALD,* JJ.

DISSENTING STATEMENT BY FITZGERALD, J.:             FILED AUGUST 10, 2016

        I respectfully disagree with the majority’s decision to deny Appellant’s

petition for remand for an evidentiary hearing.       See Majority Mem. at 5.

The majority concludes that Appellant has not asserted or demonstrated

“that Freeman’s recantation could not have been obtained prior to trial

through reasonable diligence” and “he has not shown that it would compel a

different result[.]” Id. at 5; see id. at 4 (“Appellant’s petition for remand

does not aver that he could not have obtained Freeman’s recantation at or

prior to the conclusion of trial through reasonable diligence”).      However,

Appellant specifically contends Freeman’s recantation meets the criteria for

an after-discovered evidence claim, including the requirement that the

evidence “could not have been obtained at or prior to trial through the
____________________________________________
*
    Former Justice specially assigned to the Superior Court.
J-S13019-16



exercise of reasonable diligence[.]” Appellant’s Pet. for Remand, 3/27/16, at

6 (citation omitted). Moreover in his affidavit, Freeman avers, inter alia, the

following:

         5.        When I was interviewed by the police, I did not
         feel that I was able to disagree with them. I had been
         held in a room for many hours, overnight, and felt
         pressured by the detectives to agree with them that
         [Appellant] was one of the shooters. I wanted to go home,
         so I told them what I felt they wanted to hear. Aside from
         the interview on May 1, 2009, I was never interviewed
         again by the police or the District Attorney’s Office.

         6.        Before I testified in court, I told the police that I
         didn’t think I had identified the right person. The police
         told me that I should just say what I had said to them
         before, that they had the right guy. I had never testified in
         court before. I did not have an attorney to advise me. I
         was scared and nervous.

         7.      [Appellant’s] trial attorney never contacted me
         before his trial. The first time I spoke to anyone other
         than the police about [Appellant’s] case was in April of
         2015, when an investigator for [Appellant] contacted me.
         I was not ready to talk to anyone at that time, so I
         told him that what I said at trial was the truth.

         8.        The first time I told anyone involved in
         [Appellant’s] case that I identified the wrong person was
         on February 11, 2016, when I met with [Appellant’s]
         attorney . . . at her office. Although I do not look forward
         to having to testify again, an experience that was
         extremely stressful to me, a man is serving two life
         sentence for crimes he did not commit, and the right thing
         to do is to come forward with the truth.

Id. at Ex. A (Affidavit of D’Andre Freeman), at 1-2 (emphasis added).

      Accordingly, Appellant sufficiently contended in his petition that he

could not have obtained Freeman’s recantation through the exercise of due

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J-S13019-16


diligence at or prior to trial, and Freeman reiterated he was unwilling to

proffer his recantation as of April 2015. See id. at 6; id. at Ex. A at 1-2;

see also Commonwealth v. Medina, 92 A.3d 1210, 1217-18 (Pa. Super.

2014) (en banc) (discussing recantation evidence as “after-discovered

evidence” and noting it was “highly unlikely” defense counsel could elicit

recantation   testimony    on   cross-examination      at   the   time    of   trial).

Furthermore, as the majority acknowledges, the other witness who identified

Appellant prior to trial did not identify him as the shooter at the time of trial.

Majority Mem. at 4-5.

      Based   on   the    foregoing,   I   conclude   Appellant   has    sufficiently

established his right to an evidentiary hearing on his claim based on

Freeman’s recantation, and I would remand to the PCRA court. Therefore, I

respectfully dissent.




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