J. S37034/19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                  v.                     :
                                         :
LAMARR WANAMAKER,                        :        No. 3145 EDA 2018
                                         :
                       Appellant         :


         Appeal from the PCRA Order Entered September 20, 2018,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0010007-2011


BEFORE: BOWES, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED OCTOBER 15, 2019

     Lamarr Wanamaker appeals from the September 20, 2018 order

entered by the Court of Common Pleas of Philadelphia County denying relief

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. After careful review, we affirm.

     A previous panel of this court provided the following factual history:

           On September [11,] 2010, a group of men, including
           Neville Franks and Shakiel Taylor, were walking to a
           park at B and Rockland Streets in North Philadelphia.
           The group was a few blocks away from the park, on
           Ruscomb Street when [a]ppellant and Jerek Anderson
           approached the group. Appellant asked, “where the
           money at? [W]here the drugs at? I heard you all be
           out there selling.” Taylor responded saying that he
           did not have any money or drugs. Appellant then took
           out a revolver and searched Taylor’s pockets.
           Appellant threw the things in Taylor’s pockets on the
           ground.
J. S37034/19


          Appellant demanded to search Franks.              Franks
          refused. Appellant then shot Franks twice.        Franks
          died.

Commonwealth      v.   Wanamaker,     161      A.3d   369   (Pa.Super.   2017)

(unpublished memorandum).

     The PCRA court set forth the following:

          On July 8, 2011, [appellant] was arrested and charged
          with murder, robbery (two counts), simple assault,
          firearms not to be carried without a license
          (“VUFA 6106”), carrying firearms on a public street in
          Philadelphia (“VUFA 6108”), and possession of an
          instrument of crime (“PIC”).

          On January 22, 2013, [appellant] appeared before
          [the trial court] and elected to be tried by a jury. On
          January 25, 2013, the jury found [appellant] guilty of
          second-degree murder, two counts of robbery,
          VUFA 6106, and PIC.[Footnote 1] That same day,
          [the trial court] sentenced [appellant] to life
          imprisonment without parole for second-degree
          murder, and concurrent sentences of ten to twenty
          years of imprisonment for each robbery count, three
          to six years of imprisonment for VUFA 6106, and one
          to two years of imprisonment for PIC, for a total
          sentence of life imprisonment.

                [Footnote 1] The remaining charges were
                nolle prossed.

          [Appellant] appealed and on February 7, 2017, the
          Superior Court vacated [appellant’s] judgment of
          sentence with respect to one count of robbery, and
          affirmed the judgment of sentence in all other
          respects.[Footnote 2] [See Wanamaker, 161 A.3d
          369 (unpublished memorandum).] On March 6, 2017,
          [appellant] filed a petition for allowance of appeal,
          which the Supreme Court of Pennsylvania denied on
          July 6, 2017. [See Commonwealth v. Wanamaker,
          169 A.3d 1036 (Pa. 2017).]



                                   -2-
J. S37034/19


                    [Footnote 2] The predicate felony for
                    [appellant’s]   second-degree    murder
                    conviction    was   robbery,   so   the
                    second-degree murder conviction and one
                    of the robbery convictions should have
                    merged for sentencing purposes.

              On February 20, 2018, [appellant] filed the instant,
              timely pro se PCRA petition, his first. On June 27,
              2018, appointed PCRA counsel filed an amended
              petition. After a bifurcated evidentiary hearing on
              September 17, 2018 and September 20, 2018, [the
              PCRA court] dismissed the petition. On October 14,
              2018, [appellant] filed a timely notice of appeal. On
              October 16, 2018, [the PCRA court] issued an order
              directing [appellant] to file a 1925(b) statement,
              which was filed on November 3, 2018.

PCRA court opinion, 12/14/18 at 1-2 (extraneous capitalization omitted). The

PCRA court filed an opinion pursuant to Pa.R.A.P. 1925(a) on December 14,

2018.

        Appellant raises the following issues for our review:

              I.    Did the PCRA [c]ourt err and violate
                    [a]ppellant’s constitutional rights under the
                    Sixth and Fourteenth Amendments by finding
                    that [a]ppellant had not used reasonable
                    diligence and/or was otherwise untimely in
                    presenting the after[-]discovered evidence of
                    Jaleel Lewis?

              II.   Did the PCRA court err and violate [a]ppellant’s
                    constitutional rights under the Sixth and
                    Fourteenth Amendments by finding that
                    after[-]discovered witness Jaleel Lewis did not
                    present credible evidence of [a]ppellant’s
                    innocence?

Appellant’s brief at 3.




                                       -3-
J. S37034/19

     We review the denial of relief pursuant to the PCRA using the following

standard:

            “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.”          Commonwealth v.
            Washington, [], 927 A.2d 586, 593 ([Pa.] 2007)
            (citations omitted). “The PCRA court’s credibility
            determinations, when supported by the record, are
            binding on this Court; however, we apply a de novo
            standard of review to the PCRA court’s legal
            conclusions.” Commonwealth v. Roney, [], 79 A.3d
            595, 603 ([Pa.] 2013), cert. denied, Roney v.
            Pennsylvania, [] 135 S.Ct. 56, [] (2014). To be
            eligible for relief under the PCRA, a defendant must
            plead and prove that his conviction and/or sentence
            resulted from one of the circumstances delineated by
            the PCRA. See 42 Pa.C.S.[A.] § 9543(a)(2) (outlining
            the requirements to be eligible for PCRA relief).
            Among those requirements are that the issue raised
            be neither previously litigated nor waived. Id. at
            9543(a)(3). “An issue is previously litigated if ‘the
            highest appellate court in which the petitioner could
            have had review as a matter of right has ruled on the
            merits of the issue. . . .’ [42 Pa.C.S.A.] § 9544(a)(2).
            An issue is waived ‘if the petitioner could have raised
            it but failed to do so before trial, at trial, . . . , on
            appeal, or in a prior state postconviction proceeding.’
            Id. § 9544(b).” Commonwealth v. Keaton, [], 45
            A.3d 1050, 1060 ([Pa.] 2012). “Appellant has the
            burden to persuade this Court that the PCRA court
            erred and that such error requires relief. [Also, i]t is
            well settled that this Court may affirm a valid
            judgment or order for any reason appearing as of
            record.” Commonwealth v. Wholaver, [], 177 A.3d
            136, 144-45 ([Pa.] 2018) (citations omitted).

Commonwealth v. Williams, 196 A.3d 1021, 1026-1027 (Pa. 2018).

     Both of appellant’s issues on appeal address the potential testimony of

Jaleel Lewis. Appellant contends that Lewis was at the murder scene, but that


                                      -4-
J. S37034/19

appellant did not learn Lewis’s first and last name until he and Lewis met on

October 8, 2017, on their way to the dining hall at SCI Houtzdale, and

therefore had no way to contact Lewis before trial.     (Appellant’s brief at

10-11.)

     In his first issue, appellant contends that the PCRA court erred when it

determined that appellant failed to exercise reasonable diligence in his

attempt to secure Lewis’s testimony. (Id. at 6.)

           To obtain a new trial based on after-discovered
           evidence, the petitioner must explain why he could
           not have produced the evidence in question at or
           before trial by the exercise of reasonable diligence.
           Commonwealth v. Jones, [] 402 A.2d 1065, 1066
           ([Pa.Super.] 1979).      A defendant may unearth
           information that the party with the burden of proof is
           not required to uncover, so long as such diligence in
           investigation does not exceed what is reasonably
           expected. Commonwealth v. Brosnick, [] 607 A.2d
           725, 729 ([Pa.] 1992). See also Argyrou v. State,
           [] 709 A.2d 1194, 1202-03 ([Md.] 1998) (holding due
           diligence requires that defendant act “reasonably and
           in good faith to obtain the evidence, in light of the
           totality of the circumstances and facts known to
           [him]”). Thus, a defendant has a duty to bring forth
           any relevant evidence in his behalf. Commonwealth
           v. Johnson, [] 323 A.2d 295, 296 ([Pa.Super.]
           1974). A defendant cannot claim he has discovered
           new evidence simply because he had not been
           expressly told of that evidence. Commonwealth v.
           Crawford, [] 427 A.2d 166, 175 ([Pa.Super.] 1981).
           Likewise, a defendant who fails to question or
           investigate an obvious, available source of
           information, cannot later claim evidence from that
           source constitutes newly discovered evidence.
           Commonwealth v. Chambers, [] 599 A.2d 630, 642
           ([Pa.] 1991), cert. denied, 504 U.S. 946 [] (1992).
           The concept of reasonable diligence is particularly
           relevant where the defendant fails to investigate or


                                    -5-
J. S37034/19


            question a potential witness with whom he has a
            close, amicable relationship. See Commonwealth v.
            Parker, [] 431 A.2d 216, 218 ([Pa.] 1981) (holding
            defendant did not exercise reasonable diligence where
            he failed to learn before or during trial of girlfriend’s
            confession to murder for which he was on trial). See
            also United States v. Vigil, 506 F. Supp.2d 571, 578
            (D. N.M. 2007) (observing defendant likely knew
            content of new witness’ testimony where defendant
            had long-standing personal relationship with witness,
            worked with witness, and witness was member of
            defendant’s family); Commonwealth v. Weichell, []
            847 N.E.2d 1080, 1092 ([Mass.] 2006) (stating
            defendant who learned of exculpatory witness
            testimony after trial did not exercise due diligence,
            where he maintained contact with witness and
            circumstances should have alerted him to existence of
            evidence claimed to be newly discovered).

Commonwealth v. Padillas, 997 A.2d 356, 363-364 (Pa.Super. 2010),

appeal denied, 14 A.3d 826 (Pa. 2010).

      Here, as noted by the PCRA court, appellant was aware that Lewis was

“out there” on the night of the murder. (See PCRA court opinion, 12/14/18

at 6, citing notes of testimony, 9/20/18 at 35-36.)      In his brief, appellant

contends that he failed to investigate Lewis’s whereabouts because he only

knew Lewis to be “Shaniqua’s little brother.” (Appellant’s brief at 9.) This

does not absolve appellant of his responsibility to conduct an investigation into

Lewis’s whereabouts.    Indeed, appellant knew that Lewis lived somewhere

over on the next block from where appellant lived. (Id. at 8.) Appellant was

also casually acquainted with Shaniqua. (Id. at 9 n.2.) With this information,

appellant, through his counsel and/or an investigator, could have attempted

to obtain Lewis’s cooperation before and during trial. Accordingly, we find


                                      -6-
J. S37034/19

that the PCRA court’s conclusion that appellant did not adequately explain the

delay in producing Lewis’s testimony is supported by the record and is free of

legal error.

      In his second issue on appeal, appellant contends that the PCRA court

erred when it concluded that Lewis’s evidence of appellant’s innocence lacked

credibility. In his argument, rather than defend Lewis’s credibility, appellant

avers that Lewis’s testimony “cannot possibly be considered to be cumulative

of other evidence.”     (Appellant’s brief at 16.)   In his concise statement of

errors complained of on appeal, appellant only addresses the PCRA court’s

credibility determination as it pertains to Lewis’s testimony. (See appellant’s

Rule 1925(b) statement at 2.)       Accordingly, any issue relating to whether

Lewis’s   testimony   was    considered   cumulative    is   waived   on   appeal.

Commonwealth v. Smyser, 195 A.3d 912, 916 (Pa.Super. 2018), citing

Commonwealth          v.    Lord,   719      A.2d    306,    309   (Pa.    1998);

Pa.R.A.P. 1925(b)(4)(vii) (holding that failing to include an issue in a

Rule 1925(b) statement results in waiver of the issue on appeal).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 10/15/19



                                       -7-
