J-S75025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JEFFREY DAWKINS

                            Appellant                 No. 2680 EDA 2015


                    Appeal from the PCRA Order August 3, 2015
               In the Court of Common Pleas of Philadelphia County
                Criminal Division at No(s): CP-51-CR-807922-2005


BEFORE: BOWES, J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                       FILED NOVEMBER 15, 2016

       Jeffrey Dawkins appeals from the August 3, 2015 order of the Court of

Common Pleas of Philadelphia County denying his second amended petition

filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-

9545. We affirm.

       On December 18, 2006, a jury convicted Dawkins and his co-

defendant, Jason Perez, of first-degree murder, criminal conspiracy, carrying

a firearm without a license, and possessing instruments of crime. 1        The

convictions stemmed from the shooting death of Bryan Green at a bar in

Philadelphia on March 28, 2004.

       The PCRA court set forth the procedural history of this case as follows:
____________________________________________


       1
           18 Pa.C.S. §§ 2502(a), 903, 6106, and 907(a), respectively.
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             On [December 18, 2006], this Court sentenced
       [Dawkins] to the mandatory term of life imprisonment.
       [Dawkins] did not file post-sentence motions, but filed a
       timely notice of appeal to the Superior Court on December
       29, 2006. On August 6, 2008, the Superior Court affirmed
       [Dawkins’] judgment of sentence and, on April 1, 2009,
       our Supreme Court denied [Dawkins’] petition for
       allowance of appeal.

             On April 27, 2009, [Dawkins] filed a pro se petition
       pursuant to the [PCRA]. Counsel was appointed and, on
       September 24, 2009, filed an amended petition. On
       January 21, 2010, the Commonwealth filed a motion to
       dismiss. After reviewing the pleadings and conducting an
       independent examination of the record, on February 17,
       2010, this Court sent [Dawkins] notice of its intent to deny
       and dismiss his petition without a hearing pursuant to
       Pa.R.Crim.P. 907 (907 Notice). Consistent with its 907
       Notice, on March 26, 2010, this Court denied and
       dismissed [Dawkins’] PCRA petition. [Dawkins] filed a
       timely notice of appeal. On April 25, 2011, the Superior
       Court affirmed this Court’s denial and dismissal of
       [Dawkins’] petition and, on October 17, 2011, our
       Supreme Court denied [his] petition for allowance of
       appeal.

              On October 5, 2012, [Dawkins] filed a second,
       untimely pro se PCRA petition, and on June 19, 2013, [he]
       filed a supplemental amended petition. On January 30,
       2014, retained counsel, Teri Himebaugh, Esquire, entered
       her appearance in [Dawkins’] case. PCRA counsel then
       filed a supplemental memorandum of law on August 5,
       2014, and a second supplemental PCRA petition on
       November 26, 2014.        On December 19, 2014, the
       Commonwealth agreed to a hearing on [Dawkins’] claims
       of newly-discovered evidence, in which Perez joined.
       Thereafter, on February 19 2015, Marissa Boyers
       Bluestine, Esquire, entered her appearance in [Dawkins’]
       case, and proceeded to represent [Dawkins] pro bono,
       along with retained PCRA counsel, Teri Himebaugh,
       Esquire.




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PCRA Ct. 1925(a) Opinion, 12/18/15, at 1-3 (footnotes and citations

omitted) (“1925(a) Op.”).

       In his second amended PCRA petition, Dawkins asserted a claim of

after-discovered      evidence     based       on   the   affidavits   of     four   alleged

eyewitnesses to the March 28, 2004 murder:                    Chamar Brown, Donald

Williams, Brian Perry, and Damien Evans. In the affidavits, each eyewitness

disavowed his prior trial testimony or written statement identifying Dawkins

as the victim’s killer. Dawkins asserted that the witnesses’ prior testimony

and statements were the result of police coercion.

       The PCRA court held a three-day evidentiary hearing on Dawkins’

PCRA petition on March 9, March 10, and July 1, 2015.2                      At the hearing,

Dawkins presented the testimony of Brown, Williams, Perry, and Evans.

Dawkins also testified on his own behalf. The Commonwealth presented the

testimony of several police officers and detectives involved in the underlying

homicide investigation.

       On August 3, 2015, the PCRA court dismissed Dawkins’ PCRA petition.

The PCRA court concluded that although Dawkins had proven an exception

to the PCRA’s one-year time-bar, Dawkins had failed to prove the merits of
____________________________________________


       2
        On March 13, 2015, Dawkins and co-defendant Perez also filed a
joint petition for post-conviction DNA testing. After an evidentiary hearing,
the PCRA court denied the petition, concluding “that nothing existed on
which DNA testing could be attempted.” 1925(a) Op. at 3. Dawkins does
not challenge that ruling on appeal.




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his after-discovered-evidence claim. See PCRA Order, 8/3/15, at 1; 1925(a)

Op. at 9.3 Dawkins timely appealed to this Court.

       Our review of an order denying PCRA relief is limited to determining

“whether the decision of the PCRA court is supported by the evidence of

record and is free of legal error.” Commonwealth v. Melendez–Negron,

123 A.3d 1087, 1090 (Pa.Super. 2015). We will not disturb the PCRA court’s

factual findings “unless there is no support for [those] findings in the

certified record.” Id.


____________________________________________


       3
         “[T]he timeliness of a PCRA petition is a jurisdictional requisite.”
Commonwealth v. Brown, 111 A.3d 171, 175 (Pa.Super.), app. denied,
125 A.3d 1197 (Pa. 2015). A petitioner must file a PCRA petition, including
a second or subsequent petition, within one year of the date his or her
judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). Here, the
Pennsylvania Supreme Court denied Dawkins’ petition for allowance of
appeal on April 1, 2009. Dawkins did not seek review with the United States
Supreme Court, so his judgment of sentence became final 90 days later, on
July 1, 2009. See 42 Pa.C.S. § 9545(b)(3); U.S. S. Ct. R. 13. Dawkins had
one year from that date, or until July 1, 2010, to file a timely PCRA petition.
Thus, the instant PCRA petition, filed on October 5, 2012, was facially
untimely.

       In his petition, Dawkins asserted the “new-facts” exception to the one-
year time-bar. See Commonwealth v. Bennett, 930 A.2d 1264, 1270-72
(Pa. 2007); Brown, 111 A.3d at 176-77. To invoke this exception, the
petitioner must 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.” 42 Pa.C.S. § 9545(b)(1)(ii). The petitioner also
must file the petition within 60 days of the date the claim first could have
been presented. 42 Pa.C.S. § 9545(b)(2). Here, the PCRA court found that
Dawkins satisfied the new-facts exception and, thus, that it had jurisdiction
to consider the merits of Dawkins’ after-discovered-evidence claim. 1925(a)
Op. at 9.



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       On appeal, Dawkins makes two related claims – one concerning the

conduct of the PCRA hearing and one concerning the merits of his petition.

As to the hearing, Dawkins asserts that the PCRA court erred in “engraft[ing]

a merit-based analysis to its jurisdictional analysis when it handled [the]

PCRA    evidentiary    hearing”   and   in    making   “merit-based   credibility”

determinations. Dawkins’ Br. at 29, 31. Dawkins contends that as a result,

the PCRA court “denied [him] a full and fair hearing” and, in particular,

“denied [his] ability to develop his timely-pled claims of police coercion and

intimidation.”    Id. at 33-34.    Although Dawkins is correct that, at times

during the three-day hearing, the trial court did not properly separate the

two inquires – whether Dawkins had established an exception to the PCRA

time-bar and, if so, whether he was entitled to relief – Dawkins’ claim fails.

       In Brown, this Court explained the interplay between the new-facts

exception to the PCRA time-bar and an after-discovered-evidence claim as

follows:

           [A] facially untimely PCRA petitioner attempting to raise a
           substantive after-discovered-evidence claim [under Section
           9543(a)(2)(vi)] must first establish jurisdiction by pleading
           and proving an exception to the PCRA time-bar. . . . [T]he
           “new facts” exception set forth at Section 9545(b)(1)(ii)
           does not require any merits analysis of an underlying
           after-discovered-evidence claim.       Rather, to establish
           jurisdiction under Section 9545(b)(1)(ii), a petitioner must
           allege and prove (a) the existence of facts that were
           unknown to him and (b) his exercise of due diligence in
           discovering those facts.




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111 A.3d at 179.    “Once jurisdiction is established, a PCRA petitioner can

present a substantive     after-discovered-evidence     claim   [under    Section

9543(a)(2)(vi)].” Id. at 176. Recently, our Supreme Court further clarified

the distinction between these two inquiries, stating:
         The distinction between the use of the terms “facts” in
         section   9545(b)(1)(ii)    and    “evidence”     in   section
         9543(a)(2)(vi) underscores their separate functions. . . .
         The function of a section 9545(b)(1)(ii) analysis is that of a
         gatekeeper. Its inquiry, therefore, is limited to considering
         only the existence of a previously unknown fact that would
         allow a petitioner to avoid the strict one year time-bar. In
         contrast, the purpose of an inquiry under section
         9543(a)(2)(vi) is to ensure that the claim presented is
         cognizable under the PCRA, and so it requires a more
         thorough analysis. As such, the matter upon which the
         claim is based is assessed in terms of its evidentiary merit,
         by considering the purpose for which it would be used and
         its potential impact on the outcome of trial. Through
         consideration of these factors, section 9543 assists the
         goal of the PCRA to provide relief to the wrongfully
         convicted by ferreting out colorable claims of wrongful
         convictions.

Commonwealth v. Cox, 146 A.3d 221, 229 n.11 (Pa. 2016).

      Here, it appears that in discussing the scope of the proceedings with

counsel, the PCRA court did not clearly distinguish the timeliness inquiry

under Section 9545(b)(1)(ii) from the after-discovered-evidence inquiry

under Section 9543(a)(2)(vi). See N.T., 3/10/15, at 51-61. The PCRA court

also sustained the Commonwealth’s objections to defense counsel’s inquiries

about aspects of the police investigation not directly related to the testimony

of the four witnesses, apparently on the ground that the PCRA court needed

to address timeliness first. See id. at 62-66. Dawkins asserts that if the


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PCRA court had overruled the Commonwealth’s objections to that line of

questioning, the record would have established that Dawkins’ newly

discovered evidence, had it been presented to the jury, would have changed

the outcome of his trial. This claim fails for two reasons.

       First, Dawkins did not raise this evidentiary issue in his Pennsylvania

Rule of Appellate Procedure 1925(b) statement. It is well settled that “[a]ny

issues not raised in a [Rule] 1925(b) statement will be deemed waived.’”

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

Commonwealth v. Riggle, 119 A.3d 1058, 1070 (Pa.Super. 2015).

Therefore, Dawkins has waived this claim.

       Second, even if Dawkins had properly preserved this claim, the PCRA

court’s conclusion that none of the four witnesses was credible precludes

relief. It is well settled that “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) (citation

omitted). As Dawkins acknowledges, see Dawkins’ Br. at 40, our Supreme

Court has stated that “[t]he trial court has the responsibility of judging the

credibility of the recantation [and] [u]nless the trial court is satisfied that the

recantation is true, it should deny a new trial.” Commonwealth v. Henry,

706 A.2d 313, 321 (Pa. 1997) (internal citation omitted).4

____________________________________________


       4
        We recognize that Brown and Evans did not testify at Dawkins’ trial,
so   their PCRA testimony is not true recantation evidence.            See
(Footnote Continued Next Page)


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        After observing the testimony of the four witnesses, the PCRA court

found their testimony incredible. In its opinion, the PCRA court explained in

careful detail its reasons for disbelieving each of the four witnesses.               See

1925(a) Op. at 12-32.             We are bound by the PCRA court’s credibility

determinations when they are supported by the record. Commonwealth v.

Abu-Jamal, 720 A.2d 79, 99 (Pa. 1998). Because Dawkins’ sole basis for

claiming a right to a new trial was the after-discovered recantation

testimony, once the PCRA court discredited that testimony, other details of

the police investigation were irrelevant.5

        Moreover, there is nothing in the record to suggest that the PCRA

court       would   have   made    different     credibility   determinations   had   the

complained-of objections been overruled.                Dawkins’ failure to raise this

evidentiary issue in either his post-hearing brief to the PCRA court or his

Rule 1925(b) statement belies his present claim of harm from those rulings.

In fact, in his post-hearing brief, Dawkins acknowledged that “[b]ased on

the strength of [his] Petition for Post-Conviction Relief, [the PCRA court]

                       _______________________
(Footnote Continued)

Commonwealth v. Solano, 129 A.3d 1156, 1180 (Pa. 2015). However,
because their PCRA testimony contradicted their pre-trial statements to
police, “we view [them] with the same ‘jaundiced eye’” as recantation
evidence. Id. (citation omitted). Williams and Perry, on the other hand, did
testify at trial.
        5
       In any event, we note that later in the hearing, Dawkins’ counsel was
able to inquire about some police interrogation issues without objection.
See N.T., 7/1/15, at 205-06, 213-15.



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granted . . . Dawkins a hearing to test the credibility of the witnesses

presented.”    Dawkins’ Post-Hr’g Submission, 7/27/15, at 1-2.         As our

Supreme Court has observed, “one of the primary reasons PCRA hearings

are held in the first place is so that credibility determinations can be made;

otherwise, issues of material fact could be decided on pleadings and

affidavits alone.”   Commonwealth v. Johnson, 966 A.2d 523, 539 (Pa.

2009).

      Next, Dawkins claims that the PCRA court erred in concluding that

Dawkins’ new evidence, taken together, would not have resulted in a

different verdict had it been presented at trial.    Largely for the reasons

discussed above, we disagree.

      To succeed on an after-discovered-evidence claim under Section

9543(a)(2)(vi), the petitioner must establish that the evidence:      (1) was

discovered after trial and could not have been obtained at or before trial

through reasonable diligence; (2) is not cumulative; (3) is not being used

solely to impeach credibility; and (4) would likely compel a different verdict.

D'Amato, 856 A.2d at 824.

      As discussed above, the PCRA court considered the testimony of each

of Dawkins’ witnesses and thoroughly explained its reasons for discrediting

their testimony. See 1925(a) Op. at 12-32. The PCRA court “assessed the

demeanor of the witnesses, the substance of their testimony, as well as the

substance of the prior statements and testimony, and found that the

witnesses were not credible and that there was not a reasonable probability

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that, upon hearing this testimony, the jury would have credited it and

rendered a different verdict.”           Id. at 12.   The PCRA court ultimately

concluded:

                  Even when considered in totality, the testimony of
           Brown, Williams, Perry, and Evans was not credible and
           failed to establish that the police engaged in a pattern and
           practice of coerciveness in order to get the witnesses to
           identify [Dawkins] and his co-defendant.        It was this
           Court’s responsibility at the PCRA stage to assess the
           credibility of the witnesses presented, and to determine
           whether the nature and quality of the evidence was such
           that there was a reasonable probability that the jury would
           have credited it and rendered a more favorable verdict.
           With respect to this claim, this Court recognized that all
           four witnesses would have been impeached at trial with
           the testimony of the officers who took their statements, as
           well as with the pervasive inconsistencies in their
           testimony. When the statements of these four witnesses
           are viewed as a whole, they fail to demonstrate that the
           police engaged in a pattern and practice of coercion in
           investigating this case.

Id. at 32 (citation omitted).        Based on our review of the certified record,

Dawkins’ brief,6 and the applicable law, we conclude that the record supports

the PCRA court’s factual findings and credibility determinations and that the

PCRA court’s conclusions are free of legal error.

       Order affirmed.

____________________________________________


       6
         On June 1, 2016, this Court granted the Commonwealth’s request for
an extension of time to file its brief, setting the new deadline as August 1,
2016. As of the date of this memorandum, the Commonwealth has not filed
a brief.    This failure is both surprising and disappointing, given the
significance of the case and the nature of Dawkins’ arguments on appeal.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/15/2016




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