J-S48026-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ERIK CATHELL                               :
                                               :
                       Appellant               :   No. 3496 EDA 2017

                  Appeal from the PCRA Order October 3, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-1200291-1997


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

MEMORANDUM BY MURRAY, J.:                              FILED AUGUST 31, 2018

       Erik Cathell (Appellant) appeals pro se from the order dismissing his

third petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

       Appellant was charged with the fatal shooting of William Jamarr Phillips

(victim). The case proceeded to a bench trial in April of 1999.1 We recount

the trial evidence consistent with our disposition of Appellant’s direct appeal.

See Commonwealth v. Cathell, 345 EDA 2005 (unpublished memorandum)

at 2-5 (Pa. Super. Apr. 25, 2005).


____________________________________________


* Retired Senior Judge assigned to the Superior Court.

1 The trial judge presided over Appellant’s first PCRA petition; two different
judges presided over Appellant’s second and third PCRA petitions.
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      On August 11, 1997, Appellant was with three men at the corner of 54th

and Jefferson Streets in Philadelphia, sitting on a car, drinking beer, and

smoking marijuana. The victim approached and asked Appellant if he could

enter Appellant’s nearby home, and Appellant told him to get the keys from

Appellant’s mother. After the victim left, Appellant fell off the car. One of the

men insinuated that Appellant may be intoxicated, and in response, Appellant

stated that he could shoot the stop sign at the corner of 55th and Jefferson

Streets. Appellant pulled a firearm from his waistband and fired three shots

toward the stop sign.     The victim then ran toward the group from the

intersection at 55th & Jefferson Streets and collapsed. Appellant ran to the

victim, and he and another man placed the victim in a car that took the victim

to the hospital. The victim died from a gunshot wound to the chest.

      The victim’s mother, Shirley Phillips, testified that on the day before the

shooting, she observed Appellant confront the victim about missing drugs, and

saw Appellant strike the victim in the face. Lisa Griffin testified that she was

sitting on her front porch at the time of the shooting. After the shooting,

Griffin saw Appellant walking from the scene with two men, and from a

distance of two feet, overheard Appellant tell the other men, “[H]e should not

have crossed me.” Cathell, 345 EDA 2005 at 4.

      Appellant testified in his own defense, denying that he had any intention

of shooting the victim. Instead, he maintained that he shot at the stop sign

to demonstrate that he was not high, and that when he realized he shot the


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victim, he rushed to help him. Appellant also denied fighting with the victim

the previous day or saying anything in the presence of Griffin.

      The trial court found Appellant guilty of first-degree murder, carrying a

firearm without a license, carrying a firearm on a public street in Philadelphia,

and possessing an instrument of crime.         On June 9, 1999, the trial court

sentenced him to an aggregate term of life imprisonment and a consecutive 6

to 12 years’ imprisonment.

      Appellant took a direct appeal.       This Court affirmed his judgment of

sentence in part and vacated it in part; we rejected his claims but sua sponte

addressed an illegal sentencing issue (not relevant in this appeal) and

remanded for resentencing. Cathell, 345 EDA 2003. Appellant filed a petition

for allowance of appeal with the Pennsylvania Supreme Court, which was

denied. Commonwealth v. Cathell, 296 EAL 2005 (Pa. Dec. 14, 2005).

      The trial court conducted re-sentencing on March 13, 2006, and imposed

the same aggregate sentence.        Appellant did not appeal.      Thus, for PCRA

purposes, Appellant’s judgment of sentence became final 30 days later, on

April 12, 2006, and the general one-year period for filing a PCRA petition

ended on April 12, 2007. See 42 Pa.C.S.A. § 9545(b)(1), (3); Pa.R.Crim.P.

720(A)(3).

      Appellant filed a timely first PCRA petition on April 27, 2006, which the

PCRA court denied.      On appeal, this Court affirmed, and the Pennsylvania

Supreme      Court   denied   Appellant’s   petition   for   allowance   of   appeal.


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Commonwealth v. Cathell, 3123 EDA 2007 (unpublished memorandum)

(Pa. Super. Dec. 2, 2008), appeal denied, 686 EAL 2009 (Pa. Aug. 5, 2009).

Appellant filed a second PCRA petition on July 13, 2011, which the PCRA court

dismissed as untimely.         Again, this Court affirmed.    Commonwealth v.

Cathell, 2722 EDA 2012 (unpublished memorandum) (Pa. Super. June. 28,

2013).

        Appellant filed the instant pro se PCRA petition, his third, on August 26,

2016, invoking the “newly-discovered evidence” exception to the PCRA’s one-

year filing requirement.2 The PCRA court summarized:

        [Appellant] presented a [June 29,] 2016 affidavit from James
        Freeman, . . . who claimed that the victim’s mother, Shirley
        Phillips, whose relation to him is unspecified, told him in April of
        1999 that [Appellant] and her son were not involved in a physical
        altercation prior to the shooting and that her testimony to the
        contrary was false. Additionally, according to Freeman, Phillips
        [admitted that she convinced Lisa Griffin, her childhood friend,
        that Appellant and her son had problems.]

           In addressing the due diligence prong of subsection
        9545(b)(1)(ii), [Appellant] claimed that he attempted, through his
        family, to locate witnesses including Phillips.          Additionally,
        [Appellant] claimed that a prison official ordered him to cease
        contacting the . . . victim’s family. [Appellant further claimed that
        he “reached out” to Phillips.]

PCRA Court Opinion, 1/2/18, at 4 (citations to record omitted). On June 29,

2017, the PCRA court issued Pa.R.Crim.P. 907 notice of intent to dismiss the

petition without a hearing. Appellant filed a pro se response, and on October



____________________________________________


2   See 42 Pa.C.S.A. § 9545(b)(1)(ii).

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3, 2017, the court dismissed the petition.

      Appellant filed a timely notice of appeal.     The court did not order

Appellant to comply with Pa.R.A.P. 1925(b), but nonetheless issued an opinion

on January 2, 2018. Appellant presents two issues:

      [1.] Whether the PCRA court erred by dismissing [Appellant’s]
      PCRA when [the] affidavit in question presented genuine issues of
      material fact to satisfy the after-discovered facts exception (42
      Pa.C.S.A. § 9545(b)(1)(ii)) and is timely fil[ed] within 60 days as
      required by § 9545(b)(2).

      [2.] Whether the PCRA court erred by dismissing [Appellant’s]
      PCRA without an evidentiary hearing, where the affidavit of Mr.
      James D. Freeman . . . presented genuine issues of material fact
      to negate the necessary element of intent for first-degree murder.

Appellant’s Brief at 4.

      In his first issue, Appellant avers that the PCRA court improperly

conflated Section 9545(b)(1)(ii) (the newly-discovered evidence exception)

and Section 9543(a)(2)(vi) (after-discovered evidence basis for relief).

Appellant contends that when considering whether a PCRA petition is timely

under the former, the PCRA court does not review the merits of the underlying

claim, which is a factor in the latter; Appellant asserts that the PCRA court

improperly considered whether Freeman’s affidavit — which the court found

would be used solely to impeach the credibility of a trial witness — warranted

relief. Id. at 9-11, citing Commonwealth v. Burton, 158 A.3d 618 (Pa.

2017); Commonwealth v. Lambert, 884 A.2d 848 (Pa. 2005). Appellant

maintains that in pleading the newly-discovered evidence exception, he

successfully established that the facts upon which his claim was predicated

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were unknown and that they could not have been ascertained by the exercise

of due diligence. In support, he avers that he “sought to locate witnesses,

obtain affidavits, and [reached] out to the [victim’s family] every so often by

way of letters in an unsuccessful attempt for them to recant their statements.”

Appellant’s Brief at 13. Appellant also states that Phillips complained about

Appellant’s conduct and the prison “initiated . . . a ‘no contact order’ dated

May 07, 2004.”     Id.   Appellant concludes that he did not know of “[t]he

exculpatory information” until July 19, 2016, when he received Freeman’s

affidavit, and that he properly filed his PCRA petition within 60 days thereafter.

Id. at 14.

      “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014).                 “The

PCRA’s time restrictions are jurisdictional in nature, and a court may not

entertain untimely PCRA petitions.” Burton, 158 A.3d at 627. It is undisputed

that Appellant’s PCRA petition was filed after the general one-year period

expired. Rather, the initial question before the PCRA court and this Court is

whether Appellant properly invoked the newly-discovered evidence.

      A petitioner relying on the newly-discovered exception must plead and

prove that “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.” See 42 Pa.C.S.A. § 9545(b)(1)(ii). Any petition relying on this


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exception must be filed within 60 days of the date could have been presented.

42 Pa.C.S.A. § 9545(b)(2). Our Supreme Court has explained:

      [T]he newly-discovered facts exception to the time limitations of
      the PCRA, as set forth in subsection 9545(b)(1)(ii), is distinct from
      the after-discovered evidence basis for relief delineated in 42
      Pa.C.S. § 9543(a)(2). To qualify for an exception to the PCRA’s
      time limitations under subsection 9545(b)(1)(ii), a petitioner need
      only establish that the facts upon which the claim is based were
      unknown to him and could not have been ascertained by the
      exercise of due diligence. However, where a petition is otherwise
      timely, to prevail on an after-discovered evidence claim for relief
      under subsection 9543(a)(2)(vi), a petitioner must prove that (1)
      the exculpatory evidence has been discovered after trial and 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.

Burton, 158 A.3d at 629 (citations omitted). “[D]ue diligence requires neither

perfect vigilance nor punctilious care, but rather it requires reasonable efforts

by a petitioner, based on the particular circumstances, to uncover facts that

may support a claim for collateral relief.”      Id. at 623.     An individual’s

recantation of prior testimony may qualify as newly-discovered evidence for

PCRA purposes. Commonwealth v. Medina, 92 A.3d 1210, 1217-1218 (Pa.

2014) (en banc).

      Here, the PCRA court rejected Appellant’s claim that he acted with due

diligence:

      Although claiming that he “reached out” to Phillips [and other
      potential witnesses, Appellant’s] description of his investigative
      efforts lacked detail, temporal specificity, or any corroborating
      evidence. Thus, his vague account of actions taken during the
      sixteen years preceding the filing of his petition were insufficient
      to demonstrate that a statement from Phillips, a known witness

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      who allegedly divulged her fabrication once in 1999, was
      unascertainable.

PCRA Court Opinion, 1/2/18, at 4 (citations to record omitted). The court thus

found that Appellant failed to meet his burden under Section 9545(b)(1)(ii).

Id.

      While the PCRA court correctly noted that Appellant did not specify how

or when he attempted to locate witnesses, we disagree that he failed to show

that the newly discovered evidence — Phillips’ alleged recantation of her trial

testimony to another individual — could not have been ascertained by the

exercise of due diligence. See Burton, 158 A.3d at 629; Medina, 92 A.3d at

1217-1218.      According to Appellant, Phillips refused to reply to his

communications and in 2004, he was prevented from further contacting her

by a “no contact order” issued against him. Accordingly, we hold Appellant

properly invoked the newly-discovered evidence exception by averring that he

received an affidavit from Freeman, dated June 29, 2016, which set forth facts

previously unknown to him. See id.

      Nevertheless, although Appellant has established that his petition was

timely filed, we agree with the PCRA court that he has not presented a basis

for relief under Section 9543(a)(2). The PCRA court reasoned:

      Freeman’s affidavit would not entitle him to relief. Specifically,
      even if Freeman’s hearsay statement is admissible[FN] 7, its only
      relevance is in asserting that Phillips and Griffin had lied at trial in
      order to exact revenge on [Appellant] for killing Phillips’ son.
      Freeman did not claim that he . . . witnessed [either] the shooting
      or [Appellant’s] purported altercation with the victim. [Appellant]
      failed to acknowledge that evidence used solely to impeach the

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      credibility of witnesses does not warrant PCRA relief.
      ___________________
      [FN] 7 See Commonwealth v. Yarris, 731 A.2d 581, 592 (Pa.

      1999) (asserting that claims which rest exclusively upon
      inadmissible hearsay do not warrant relief under the [newly
      discovered evidence exception of the] PCRA).

PCRA Court Opinion, 1/2/18, at 4 & n.7.

      We agree that Appellant’s sole purpose for presenting Freeman’s

affidavit is to impeach the credibility of Phillips’ trial testimony. Furthermore,

Appellant ignores that at trial, he denied fighting with the victim the day before

the shooting or making any comments in Griffin’s presence. Thus, Freeman’s

affidavit would be cumulative of Appellant’s trial testimony.        Accordingly,

Appellant cannot establish that Freeman’s affidavit meets the criteria for

“after-discovered   evidence”   that   would   warrant    relief   under   Section

9543(a)(2)(vi). See 42 Pa.C.S.A. § 9543(a)(2)(vi); Burton, 158 A.3d at 628.

      In his second issue, Appellant claims that the PCRA court erred in

dismissing his petition without a hearing. Appellant emphasizes that at trial,

the Commonwealth established motive and intent via Phillips’ testimony, and

reasons that his petition thus raised an issue of material fact, meriting an

evidentiary hearing.

      This Court has stated:

      We review the PCRA court’s decision dismissing a petition without
      a hearing for an abuse of discretion.

         [T]he right to an evidentiary hearing on a post-conviction
         petition is not absolute. It is within the PCRA court’s
         discretion to decline to hold a hearing if the petitioner’s
         claim is patently frivolous and has no support either in the

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           record or other evidence. [We] examine each issue raised
           in the PCRA petition in light of the record . . . to determine
           if the PCRA court erred in its determination that there were
           no genuine issues of material fact in controversy[.]

Miller, 102 A.3d at 992 (citations omitted).

     For the same reasons set forth above, we find no abuse of discretion by

the PCRA court in dismissing Appellant’s petition without an evidentiary

hearing.     Freeman’s affidavit would have only impeached Phillips’ trial

testimony, and been cumulative of Appellant’s testimony.         Thus, Appellant

failed to establish there was after-discovered evidence warranting relief —

including an evidentiary hearing — pursuant to Section 9543(a)(2)(vi).

Accordingly, we affirm the order dismissing Appellant’s PCRA petition.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/31/18




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