J-S52023-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

TIMOTHY DAVIS,

                          Appellant                  No. 2789 EDA 2013


             Appeal from the PCRA Order entered August 29, 2013,
             in the Court of Common Pleas of Philadelphia County,
              Criminal Division, at No(s): CP-51-CR-1209481-1999


BEFORE: GANTMAN, P.J., ALLEN and FITZGERALD*, JJ.

MEMORANDUM BY ALLEN, J.:                            FILED AUGUST 20, 2014

                                            pro se from the order denying his

serial petition for post-conviction relief filed pursuant to the Post Conviction

                                            -46. We affirm.

      The PCRA court summarized the pertinent procedural history as

follows:

              On June 9, 2000, a jury convicted [Appellant] of
           attempted murder (3 counts), aggravated assault (3
           counts), possession of an instrument of crime (2 counts)
           and criminal conspiracy. On October 4, 2000, this court
           sentenced [Appellant to] a total aggregate sentence of 35
           -70 years [of imprisonment].


           reinstated nunc pro tunc.] [Appellant] thereafter filed an
           appeal in the Superior Court, which affirmed his judgment
           of sentence on November 12, 2005. [Commonwealth v.



*Former Justice specially assigned to the Superior Court.
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       Davis, 890 A.2d 1096 (Pa. Super. 2005) (unpublished
       memorandum)].   On May 9, 2006, the Pennsylvania
                                                    wance
       of Appeal. [Commonwealth v. Davis, 898 A.2d 1069
       (Pa. 2006)].

           On June 26, 2006, [Appellant] filed a pro se PCRA
       petition the first to deal with the merits of his case. [The
       PCRA court appointed counsel. PCRA counsel subsequently
       filed a brief pursuant to [Commonwealth v. Turner, 544
       A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550
       A.2d 213 (Pa. Super. 1988) (en banc)], stating that the
                                       pro se petition were without
       merit and/or had been previously litigated. Counsel also
       concluded that there were no additional issues which could
       be raised in an amended PCRA petition. On March 20
       2007, [after having previously issued Pa.R.Crim.P. 907
       notice,] this court dismissed the petition without a hearing,
       holding that the petition had no merit. The court also
       permitted [PCRA counsel] to withdraw.

          [Appellant] acting pro se
       dismissal.   On February 7, 2008, the Superior Court
       dismissed the appeal because [Appellant] failed to file an
       appellate brief. Commonwealth v. Davis, No. 1094 EDA
       2007. [Appellant] then sought review in the Pennsylvania
       Supreme Court. On August 19, 2008, the Supreme Court
       denied the Petition for review.    [Commonwealth v.
       Davis, 955 A.2d 349 (Pa. 2008)].

          On May 14, 2010, [Appellant] filed his second pro se
       PCRA petition. On January 3, 2011, after consulting with
       counsel, [Appellant] withdrew his PCRA petition.

         On August 20, 2012, [Appellant] filed the instant pro se
       PCRA petition. In his petition, [Appellant] claims that he is

       evidence. In support of this claim, [Appellant] attached to
       his petition an affidavit from Woodrow Lawson in which
       Lawson recants his trial testimony. [Appellant] argued

       witness, Shawn Price, warrant a new trial because the
       verdict would have been different had they testified




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           On August 29, 2013, [after issuing Pa.R.Crim.P. 907
        notice, and] after thoroughly reviewing the trial record and
        the pleadings and witness affidavits provided by
        [Appellant], this court dismissed the instant PCRA petition,
        holding the petition was untimely.

PCRA Court Opinion, 11/12/13, at 1-3 (footnotes omitted).                 This timely

appeal followed.         The PCRA court did not require Pa.R.A.P. 1925(b)

compliance.

     Appellant raises the following issues:

        I. Did the [PCRA court] err in holding that the recantation
        evidence/testimony of Woodrow Lawson did not meet the
        timeliness exception as set forth under 42 Pa.C.S.A. §
        9545(b)(1)(ii)(2) [sic]?

        II. Do the interest[s] of justice require a remand for the

        but also to consider the previous recantation of Shawn
        Price?




petition under the PCRA is whether the determination of the PCRA court is

supported     by   the    evidence   of   record   and   is   free   of   legal   error.

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA



findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001).        Moreover, a PCRA court may decline to hold a

hearing on the petition i

claim is patently frivolous and is without a trace of support in either the



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J-S52023-14



record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011

(Pa. Super. 2001). Because this is a serial petition for post-conviction relief,



subsequent post-conviction request for relief will not be entertained unless a

strong prima facie showing is offered to demonstrate that a miscarriage of

justice may hav                 Commonwealth v. Burkhardt, 833 A.2d 233,

236 (Pa. Super. 2003) (en banc

prima facie showing if he demonstrates that either the proceedings which

resulted in his conviction were so unfair that a miscarriage of justice

occurred which no civilized society could tolerate, or that he was innocent of

                                          Id.

          Our review of the record reveals that, although the PCRA court stated

in its dismissal order that it was doing so because the petition was untimely,

                                                                   -

evidence claim on its merits:

                                                         -discovered
            evidence claim satisfied the timely filing exceptions of

            after-discovered evidence claims on their respective merits
            and in light of the evidence as a whole.

PCRA Court Opinion, 11/12/13, at 5-6.           Because the record supports the

                              n that Appellant had established an exception to



                    -discovered evidence claim did not warrant post-conviction

relief.

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      A petitioner is eligible for relief under the PCRA if he can establish the



subsequently become available and would have changed the outcome of the



has explained the test to be applied to such a claim as follows:


            To obtain relief based on after-discovered evidence, an
         appellant must demonstrate that the evidence: (1) could
         not have been obtained prior to the conclusion of the trial
         by the exercise of reasonable due diligence; (2) is not
         merely corroborative or cumulative; (3) will not be used
         solely to impeach the credibility of a witness; and (4)
         would likely result in a different verdict if a new trial were
         granted.

Commonwealth v. Foreman, 55 A.3d 532, 537 (Pa. Super. 2012) (citation



preponderance of the evidence that each of these factors has been met in

                                           Id.

decision to grant or deny a new trial on the basis of after-discovered

evidence, an appellate court is to determine whether the PCRA court

committed an abuse of discretion or error of law that controlled the outcome

              Id.

                                                   usly unreliable, particularly




                                                          Commonwealth v.



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J-S52023-14



Johnson, 966 A.2d 523, 541 (Pa. 2009) (citation omitted)).          Thus, when



evidence is such that there is a reasonable probability that the jury would

have credited it and rendered a more favorable verd              Johnson, 966

A.2d at 542.



follows:

           5. My trial testimony was not a true account of what had


           6. I changed my testimony against [Appellant] because
           my Step-Son Jermaine was also shot and following the
           testimony I gave at the Preliminary Hearing I was put
           under a lot of pressure from my family to make sure
           everyone was convicted including [Appellant].

           7. Prior to testifying against [Appellant] I was prepped
           and coerced by the trial prosecutor who told me that in
           order for him [sic]1 to make his [sic] case stick I needed to
           say that [Appellant] was also shooting a gun during the
           gun battle.

           9. I am coming forward now with these statements in the
           sole effort of correcting a terrible mistake that was made
           on my behalf when I falsely implicated [Appellant] in the
           gun battle that led to me and my Step-Son being shot and
           injured. I feel terrible that I am, to a large degree,
           responsible for sending an innocent person to prison.

                                          ***

             My conscious is calling me to face reality. I use to
           abuse drugs. I am suffering nightmares because of this
____________________________________________


1




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J-S52023-14


           incident, and my desire for revenge. My angar [sic] and
           confusion allowed me to be influenced by the police and
           others to say [Appellant] had two guns. The fact is, I
           assumed he had been shooting. The truth is he never did
           any shooting. At the time the shots rang out, he had not
           pulled any weapons. I never saw [Appellant] do any
           shooting. In fact he looked shocked and actually moving
           away from the other two shooters. I realize now that my
           testifying that he had two guns was a desire to punish
           anyone that appeared to be part of the group. I regret
           what I have done.

PCRA Petition, 8/20/12, Exhibit A, Affidavit, 7/6/12, at 1-2.



follows:

           Affiant swears that the District Attorney intimidated, and
           forced him to lie on the stand at trial or I would be sent
           back to jail for withholding evidence. I was also asked to
           point directly at [Appellant] and [was told] to say that
           Bruce Burdine shot at Myself [sic], and I would go home
           after I said and did what I was forced and threatened to
           do[.]

           Affiant concludes his his [sic] affidavit by stating that I am

           committed a wrong by lying for the District Attorney, [in

           Bruce Burdine and [Appellant].

PCRA Petition, 5/4/10, Exhibit A, Affidavit, 3/18/10, at 1-2.

       After reviewing the recantation affidavits of both Mr. Lawson and Mr.

Price, the PCRA court determined that Appellant did not meet his burden of



verd                                     Foreman, 55 A.3d at 537. The PCRA

court explained:


                                       -7-
J-S52023-14


          Here, the evidence and testimony present[ed] at

       that, on November 24, 1998, [Appellant] and his cohorts,
       Bruce Burdine and Darnell Branch, were involved in a gun
       battle on the streets of Philadelphia during which
       [Appellant] and/or his accomplices shot three people
       ([Shawn] Price, Woodrow Lawson and four year-old
       [J]ermaine     Lipscomb)     and    endangered     numerous
       bystanders, including children.         After the shooting,
       [Shawn] Price and Woodrow Lawson both gave police
       detectives a detailed description of the shooters[.] They
       also positively identified [Appellant] as one of the shooters
       after viewing more than 200 photos at police
       headquarters. On June 30, 1999, the police arrested
       Burdine. [Appellant], who was present when Burdine was
       taken into custody, escaped. He was apprehended two
       months later.

          At trial, Lawson, [Shawn] Price and Rosalie Waring, who
       was standing across the street with several children when
       the shooting took place, all positively identified [Appellant]
       as one of the shooters. Based upon this evidence, the jury
       found both [Appellant] and Burdine guilty as charged.

                                                  their testimony
       via affidavit. Even if these witnesses had testified at trial
       in a manner consistent with their recent recantations, it

       First, Rosalie Waring, who the jury found to be credible,
       positively identified [Appellant] as one of the shooters.
       She was standing across the street when the shooting
       occurred. Second, there was ample evidence suggesting

       to evade the police and remained at large even after his
       accomplices had been arrested. Third, both Price and
       Lawson gave detailed accounts of the shooting to police
       and [a] description of the shooter to police. Price and

       than 200 shown to them by police at headquarters.


       the photo identification to impeach any inconsistent trial
       testimony. The credible evidence and testimony presented
       by the Commonwealth was overwhelming and clearly


                                   -8-
J-S52023-14


         The proposed recantation testimony would not have
         compelled a different verdict.

            Finally, it is important to note that this court, though

         heard all of the evidence and testimony presented by the

         the opportunity to [] listen to the trial testimony of both
         Price and Lawson and observed their demeanor during the
         proceedings. The court also observed the jurors response

         was credible. It was also consistent with the statements
         they had provided to police detectives and with the
         testimony of the other Commonwealth witness(es).

            Even if Price and Lawson had testified at trial consistent
         with their recantations, it is highly unlikely that any juror
         would have accepted that testimony as true given their
         prior positive and detailed statements to police and Rosalie

         cannot meet the burden imposed by Commonwealth v.
         Johnson, 966 A.2d 523 (Pa. 2009) and Commonwealth
         v. Abu-Jamal, 553 Pa. 485, 517, 720 A.2d 79, 94 (1998).

PCRA Court Opinion, 11/12/13, at 6-7 (footnoted omitted).



Appellant has failed to meet the burden necessary to obtain post-conviction

relief on an after-discovered evidence claim. See e.g., Commonwealth v.

Abu-Jamal, 720 A.2d 79, 104-

claims   that   the   proposed   testimony   of   newly   discovered   witnesses

established a basis for the grant of a new trial). Although not discussed by

the PCRA court, Appellant has not adequately established how these

proposed recantations would have done more than impeach their own, as

                                       See                             Foreman,

supra                                                              tions, it did

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J-S52023-14



not err in failing to grant an evidentiary hearing prior to dismissing

                            See, e.g., Commonwealth v. Bond, 819 A.2d

                                                                  -defendant

recanted his statement



that the jury convicted Appellant of criminal conspiracy.   Thus, generally,

Appellant, as a member of the conspiracy, is criminally responsible for the

acts of his co-conspirators that were committed in furtherance of the

conspiracy. See generally, Commonwealth v. Galindes, 786 A.2d 1004

(Pa. Super. 2001).

      In sum, for all of the reasons stated above, the PCRA court did not err



order denying post-conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/20/2014




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