J-S40045-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANTHONY E. FIELDER                         :
                                               :
                       Appellant               :   No. 3760 EDA 2016

                 Appeal from the PCRA Order November 7, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0416961-1990


BEFORE:      LAZARUS, J., DUBOW, J., and PLATT*, J.

MEMORANDUM BY LAZARUS, J.:                             FILED AUGUST 13, 2018

       Anthony E. Fielder appeals from the order of the Court of Common Pleas

of Philadelphia County, dismissing his petition filed pursuant to the Post

Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 (“PCRA”). Counsel has filed

a petition to withdraw and an “Anders” brief.1 Upon review, we affirm the

PCRA court’s order and grant counsel’s motion to withdraw.

       On January 18, 1991, Fielder was convicted of first-degree murder and

related offenses stemming from an incident in which he shot the victim after

____________________________________________


1 Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
apparently in the mistaken belief that an Anders brief is required where
counsel seeks to withdraw on appeal from the denial of PCRA relief. A
Turner/Finley “no-merit” letter, however, is the appropriate filing in the
context of PCRA proceedings. See Commonwealth v. Turner, 544 A.2d 927
(Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc ). Because an Anders brief provides greater protection to a defendant,
this Court may accept an Anders brief in lieu of a Turner/Finley letter.
Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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an altercation outside of a bar in Philadelphia.         This Court previously

summarized the facts of the case as follows:

      On Saturday, September 23, 1989[,] at about 5:00 p.m.[,] the
      victim, Jack Fauntleroy, was having an argument outside Skip’s
      Bar at 52nd and Market Street [in Philadelphia] with a man named
      Stefan. Stefan then went into the bar and came out with Anthony
      Fielder[,] who began arguing with the victim. After a few
      minutes[,] Alfonso Goldsmith, a friend of the [decedent],
      intervened on behalf of [the decedent] and began to argue with
      [Fielder]. The argument came to blows and when Goldsmith
      began to get the better of it[, Fielder] left and went back into
      Skip’s Bar. A few minutes later[, Fielder] emerged from the bar
      with a .38 caliber handgun and fired it at the fleeing victim[,]
      hitting him in [sic] once in the leg and once in the back[,] causing
      his death.

Commonwealth v. Fielder, 1487 Philadelphia 1998, at 1 (Pa. Super. filed

6/10/99) (unpublished memorandum decision), quoting Trial Court Opinion,

7/1/91, at 1.

      Fielder was sentenced on May 30, 1991, to a term of life imprisonment

without the possibility of parole. This Court affirmed his judgment of sentence

on July 20, 1992 and, on January 27, 1993, our Supreme Court denied

allowance of appeal.

      Fielder filed his first PCRA petition on January 14, 1997; the petition was

denied and the trial court’s order was affirmed by this Court. Fielder did not

seek allowance of appeal. On August 29, 2012, Fielder filed the instant PCRA

petition, his second, alleging that Latonia Shawver, one of two eyewitnesses

who testified at his trial, had recanted her testimony. The PCRA court held a

hearing on November 7, 2016, at which time Shawver testified. The PCRA



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court, having determined Shawver’s recantation to be “dubious,” dismissed

Fielder’s petition that same day.

      This timely appeal follows, in which counsel seeks to withdraw his

representation of Fielder.

      In order to withdraw as counsel on appeal from the dismissal of a PCRA

petition, counsel must undertake an independent review of the record to

ascertain that there are no meritorious issues to be raised.                 See

Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009).               Such independent

review requires proof of: (1) a “no-merit” letter prepared by counsel detailing

the nature and extent of his review and listing each issue the petitioner wished

to have reviewed; (2) an explanation by counsel, in the “no-merit” letter, of

why the petitioner’s issues were meritless; (3) an independent review of the

record by the PCRA court; and (4) a finding by the PCRA court that the petition

was meritless.    See id. at 876 n.1.         In addition, PCRA counsel must

contemporaneously serve on the petitioner a copy of counsel’s application to

withdraw as counsel, and must supply to the petitioner both a copy of the “no-

merit” letter and a statement advising the petitioner that, in the event that

the court grants the application of counsel to withdraw, he or she has the right

to proceed pro se or with the assistance of privately retained counsel.

Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 2006).

      Here,   counsel   has   substantially   complied    with   the   procedural

requirements for withdrawal.        We now turn to an independent review of

Fielder’s PCRA Petition to ascertain whether his claim is, in fact, frivolous.

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      Fielder raises the following issue on appeal:       “Whether the after-

discovered evidence, an eyewitness that testified at trial, recanting testimony

25 years later, at an evidentiary hearing, was without any legal merit.”

Anders Brief, at 4.

      We review an order dismissing a petition under the PCRA by examining

whether PCRA court’s determination is supported by the evidence of record

and is free of legal error. See Commonwealth v. Halley, 870 A.2d 795, 799

n.2 (Pa. 2005). “[Our] scope of review is limited to the findings of the PCRA

court and the evidence of record, viewed in the light most favorable to the

prevailing party at the PCRA court level.” Commonwealth v. Koehler, 36

A.3d 121, 131 (Pa. 2012) (citation omitted). “The PCRA court’s credibility

determinations, when supported by the record, are binding on this Court.”

Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (citation omitted).

“However, this Court applies a de novo standard of review to the PCRA court’s

legal conclusions.” Id.

      Although neither the parties nor the court address the matter of the

timeliness of Fielder’s petition, because the timeliness of a PCRA petition is

jurisdictional, we must do so before reviewing the merits of his substantive

claim. See Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super.

2013). Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

is final unless the petition alleges, and the petitioner proves, an exception to




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the timeliness requirement. See 42 Pa.C.S.A. § 9545(b)(1)(i)–(iii).2 A PCRA

petition invoking one of these statutory exceptions must be filed within sixty

days of the date the claims could have been presented.             42 Pa.C.S.A. §

9545(b)(2).

        Here, Fielder’s judgment of sentence became final on or about April 27,

1993, upon the expiration of the ninety-day period for filing a writ of certiorari

with the U.S. Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3); Sup.Ct.R. 13.

Thus, his August 2012 petition, filed more than 19 years after his judgment

of sentence became final, was patently untimely.          Unless Fielder pled and

proved one of the timeliness exceptions under 42 Pa.C.S.A. § 9545(b)(1), the

PCRA court was without jurisdiction to consider the merits of the petition.

        In order to circumvent the statutory time bar, Fielder invokes the newly-

discovered fact exception under section 9545(b)(1)(ii). Fielder presents the

____________________________________________


2   The statutory exceptions to the time bar are as follows:

        (i) the failure to raise the claim previously was the result of
        interference by government officials with the presentation of the
        claim in violation of the Constitution or laws of this Commonwealth
        or the Constitution or laws of the United States;

        (ii) 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; or

        (iii) the right asserted is a constitutional right that was recognized
        by the Supreme Court of the United States or the Supreme Court
        of Pennsylvania after the time period provided in this section and
        has been held by that court to apply retroactively.

42 Pa.C.S.A. §§ 9545(b)(1)(i)-(iii).

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affidavit given by trial witness Latonia Shawver to a private investigator that

contradicted her trial testimony. Specifically, at trial, Shawver testified that

she had seen Fielder shoot Fauntleroy. She further testified that she had then

seen the shooter run up 52nd Street with a gun in his hand, run into a

delicatessen, come back out of the delicatessen a short time later, and

continue running out of her sight. In her 2012 statement, however, Shawver

averred that Fielder was not the person she saw with the gun who ran into

the delicatessen. She stated that she had been pressured by police to identify

Fielder as the shooter.

      The timeliness exception set forth in [s]ection 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, [] 930 A.2d 1264, 1271 ([Pa.] 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, [] 781 A .2d 94, 98
      ([Pa.] 2001); Commonwealth v. Yarris, [] 731 A.2d 581, 590
      ([Pa.] 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).

      The sixty (60) day time limit related to [s]ection 9545(b)(2) runs
      from the date the petitioner first learned of the alleged after-
      discovered facts. Commonwealth v. Albrecht, [] 994 A.2d
      1091 ([Pa.] 2010). A petitioner must explain when he first learned
      of the facts underlying his PCRA claims and show that he brought
      his claim within sixty (60) days thereafter. Id. (holding petitioner
      failed to demonstrate his PCRA petition was timely where he did
      not explain when he first learned of facts underlying his PCRA
      petition)[]. “A petitioner fails to satisfy the 60–day requirement
      of [s]ection 9545(b) if he . . . fails to explain why, with the

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      exercise of due diligence, the claim could not have been filed
      earlier.” Commonwealth v. Marshall, [] 947 A.2d 714, 720
      ([Pa.] 2008)[]. All of the time limits set forth in the PCRA are
      jurisdictional and must be strictly construed. Commonwealth v.
      Fahy, [] 959 A.2d 312, 315 ([Pa.] 2008).

Commonwealth v. Williams, 35 A.3d 44, 53 (Pa. Super. 2011).

      This Court recently clarified a petitioner’s burden under section

9545(b)(1)(ii) as follows:

      The timeliness exception set forth at [s]ection 9545(b)(1)(ii) has
      often mistakenly been referred to as the “after-discovered
      evidence” exception. This shorthand reference was a misnomer,
      since the plain language of subsection (b)(1)(ii) does not require
      the petitioner to allege and prove a claim of “after-discovered
      evidence.” Rather, as an initial jurisdictional threshold, [s]ection
      9545(b)(1)(ii) requires a petitioner to allege and prove that there
      were facts unknown to him and that he exercised due diligence in
      discovering those facts. Once jurisdiction is established, a PCRA
      petitioner can present a substantive after-discovered-evidence
      claim. See 42 Pa.C.S.A. § 9543(a)(2)(vi) (explaining that to be
      eligible for relief under PCRA, petitioner must plead and prove by
      preponderance of evidence that conviction or sentence resulted
      from, inter alia, unavailability at time of trial of exculpatory
      evidence that has subsequently become available and would have
      changed outcome of trial if it had been introduced). In other
      words, the “new facts” exception at subsection (b)(1)(ii) has two
      components, which must be alleged and proved. Namely, the
      petitioner must establish that: 1) the facts upon which the claim
      was predicated were unknown and 2) [those facts] could not have
      been ascertained by the exercise of due diligence. If the petitioner
      alleges and proves these two components, then the PCRA court
      has jurisdiction over the claim under this subsection.

      Thus, the “new facts” exception at [s]ection 9545(b)(1)(ii) does
      not require any merits analysis of an underlying after-discovered-
      evidence claim.




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Commonwealth v. Brown, 111 A.3d 171, 176–77 (Pa. Super. 2015) (some

internal citations, quotation marks and punctuation omitted) (emphasis

added).

        In his PCRA petition, Fielder asserted that at the end of June 2012,

Latonia Shawver contacted his sister, Teresa, by telephone and stated that

she had “important information” about Fielder’s case. Shawver did not divulge

to Teresa what the information was. Teresa took Shawver’s phone number

and informed her she would have an attorney contact her.                Fielder

subsequently retained Teri B. Himebaugh, Esquire, who contacted Shawver by

telephone.    Shawver told Attorney Himebaugh that she was now living in

Detroit and had important information about Fielder’s case. Again, she did

not specify the nature of the information she possessed, but she indicated to

Attorney Himebaugh that she would speak to an investigator.           Attorney

Himebaugh retained Wayne Bullen, a private investigator in Michigan, who

took Shawver’s taped statement, as well as a sworn affidavit, on August 23,

2012.

        Our review of the record leads us to the conclusion that Shawver’s

affidavit satisfies the jurisdictional threshold for the newly-discovered facts

exception contained in section 9545(b)(1)(ii). Fielder could not have known

at the time of his trial that Shawver was not testifying truthfully, or that

Shawver believed she had been pressured into identifying Fielder as the

shooter. Nor would Fielder have had any reason to know or believe, in the

time between his trial and the date Shawver gave her affidavit, that she had

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recanted her testimony. Fielder did not know Shawver personally and she had

long ago moved out of state. Thus, the first date that Fielder, exercising due

diligence, could have known of Shawver’s recantation was the date she spoke

with the investigator and executed her affidavit, August 23, 2012. Fielder

filed his PCRA petition on August 29, 2012, well within the 60-day period

required under section 9546(b)(2). Accordingly, the PCRA court possessed

jurisdiction to consider the merits of Fielder’s claim. We now turn to our own

independent review of that claim, as required by Turner/Finley.

      Fielder asserts that he is entitled to a new trial based on Shawver’s

recantation. Fielder claims that, without Shawver’s identification testimony,

the sole Commonwealth evidence implicating him in the shooting is the

testimony of a biased witness, Antonio Goldsmith. Fielder asserts that, in light

of Shawver’s recantation, a reasonable jury could not possibly find him guilty.

For the following reasons, Fielder’s claim is meritless.

      When seeking a new trial based on alleged after-discovered
      evidence in the form of recantation testimony, the petitioner must
      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. Johnson, 966 A.2d 523, 541 (Pa. 2009) (citations

omitted).   Here, Fielder is unable to establish that the after-discovered

evidence, in the form of Shawver’s alleged recantation, would likely compel a

different verdict.



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      As a general matter, recantation evidence “is notoriously unreliable,

particularly    where   the   witness   claims   to   have   committed   perjury.”

Commonwealth v. D’Amato, 856 A.2d 806, 825 (Pa. 2004).                       This

generalization is borne out by Shawver’s testimony at the PCRA hearing in this

matter.   Although Shawver initially testified that she had lied when she

identified Fielder as the person who ran into the delicatessen with the gun, by

the conclusion of cross-examination, Shawver had again changed her story

and conceded that Fielder was the individual she had seen.

      Q: You spoke the truth [at trial], you saw that defendant [Fielder]
      kill Jack Fauntleroy, that’s the truth?

      A: I saw him leave the scene. I didn’t see him pull the trigger. I
      didn’t see an actual shooting. I saw him with a handgun.

                                         ...

      Q: Let’s look at more [trial testimony]. Page 98, third question
      from the bottom:

           QUESTION: “Could you tell where the gun was pointed at
      when the defendant shot?”

               ANSWER: “Yes.”

               QUESTION: “Where was it pointed at?”

               ANSWER: “In his back. It looked like his lower back.”

             QUESTION: “How many shots did you see the defendant
      firing?”

               ANSWER: “Two.”

               That was your testimony, was it not, ma’am?

      A: Yes.

      Q: That was the truth?



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      A: Yep.

      Q: You saw the defendant fire two shots into Jack Fauntleroy,
      true?

      A: Yes, sir.

      Q: So all the testimony this morning was a lie?

      A:    Now that I’m recalling and this document, all this stuff is
      coming back to me that we are sitting here and going over this.
      It’s been 30 years.
                                    ...

      Q: He is the one – the defendant is the one that killed Jack
      Fauntleroy; true?

      A: He looks like the individual I saw that day.      He has the
      description of it, yes, with the goatee.

                                    ...

      Q: You’re still [sic] on the fact that back then you absolutely,
      positively, without a doubt, knew this defendant[,] who looks
      somewhat different[,] was the person who you saw shoot Jack
      Fauntleroy in the back?

      A: Yes, sir.

N.T. PCRA Hearing, 11/7/16, at 130, 133-34, 135, 136.

      In light of the foregoing, Fielder has failed to demonstrate that

Shawver’s testimony would compel a different result were he to be granted a

new trial. Johnson, supra. Indeed, her testimony would support a finding

of guilt. Accordingly, the PCRA court did not err or abuse its discretion in

denying Fielder relief.

      Order affirmed. Petition to withdraw granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/13/18




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