J-S28007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

MARCUS UPSHAW

                         Appellant                  No. 888 WDA 2016


                    Appeal from the Order June 17, 2016
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0001280-2009


BEFORE: OLSON, MOULTON and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                               FILED MAY 23, 2017

      Appellant, Marcus Upshaw, appeals from the order entered on June 17,

2016, dismissing his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      We set forth the facts and procedural history of this case as follows.

In February 2011, a jury convicted Appellant of second-degree murder,

robbery, burglary, criminal conspiracy, and two counts each of unlawful

restraint and recklessly endangering another person.         The trial court

imposed a mandatory sentence of life imprisonment for second-degree

murder, plus consecutive sentences of nine to 18 months’ imprisonment on

each count of unlawful restraint.    The trial court did not impose further

penalties for the remaining convictions.




* Retired Senior Judge assigned to the Superior Court.
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      On October 3, 2011, after receiving nunc pro tunc reinstatement of his

appellate rights, Appellant filed a timely appeal to this Court. On October

21, 2011, Appellant petitioned this Court for remand to allow the trial court

to conduct an evidentiary hearing based on after-discovered evidence. The

after-discovered evidence consisted of letters prepared by Appellant’s

co-conspirator, Darryl Reese, that declared, similar to affidavits Reese

disavowed at trial, that police officials coerced his testimony that Appellant

participated in the instant offense. Relying on the newly-produced letters,

Appellant alleged that Reese recanted his trial testimony that Appellant was

involved in the conspiracy.    We granted relief, dismissed the appeal, and

remanded for a hearing on the after-discovered evidence.         The trial court

held a hearing and ultimately denied Appellant relief.

      Appellant filed a direct appeal, challenging both the sufficiency of the

evidence to support his convictions and the trial court’s denial of relief on his

after-discovered evidence claim.    This Court affirmed both decisions in an

unpublished memorandum decision filed on March 28, 2014.                    See

Commonwealth v. Upshaw, 2014 WL 10965838 (Pa. Super. 2014)

(unpublished memorandum).          Within the context of the direct appeal,

Appellant challenged the sufficiency of the evidence to support his

convictions, arguing that:    (1) Reese’s testimony should not be credited

since Reese obtained a reduction of charges and sentence in exchange for

his testimony and, (2) Reese signed affidavits in prison stating that he had

been forced by police to identify Appellant as one of the perpetrators, even

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though Appellant was not involved in the episodes.             Id. at 9.      We

determined, however, that “[t]he jury was apprised of the cooperation

agreement and the documents that Reese executed while he was in jail[,]”

but that “Reese explained that he wrote the affidavits that were exculpatory

to Appellant under duress since he feared that he or his family would be

harmed by Appellant or his friends.”        Id.   Regarding the after-discovered

evidence claim, Appellant presented “two letters executed by Reese after

trial in this matter [wherein] Reese, once again, claimed that Appellant was

not a participant in the criminal episode and that police coercion led to his

trial testimony to the contrary.”    Id. at 10-11.      However, we determined

that “when called to the stand [at the after-discovered evidence hearing],

Reese disavowed the letters and indicated that they, like the previous

affidavits [presented at trial], had been executed under duress [from

Appellant and/or his friends]” and “that his trial testimony identifying

Appellant as one of the culprits was true.”       Id. We ultimately determined

that   the   proffered   after-discovered    evidence    of   Reese’s   purported

recantation letters “were cumulative in nature to other proof already

presented to the jury” because “[b]efore trial, Reese had provided identical

statements exonerating Appellant and, then, upon appearance in the

courtroom, retracted those representations as procured under duress.” Id.

at 12. Accordingly, we affirmed Appellant’s judgment of sentence.

       On August 13, 2014, Appellant filed the counseled PCRA petition

currently at issue averring, in pertinent part:

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        3. As [the PCRA court] is well aware, [Appellant] twice
           sough[t] a remand from the Superior Court of
           Pennsylvania due to letters from Commonwealth witness
           Darryl Reese in which Mr. Reese claimed to have
           provided false testimony at trial in this matter.
           Specifically, Mr. Reese’s letters stated that he did not
           see [Appellant] at the scene of the shooting and only
           identified him because he saw him at a gas station a
           short time later.

        4. Mr. Reese was appointed counsel and testified that he
           was coerced into authoring the letter and that his trial
           testimony was accurate.

        5. On approximately July 26, 2014, within counsel received
           the attached letter from Mr. Reese again claiming that
           he testified falsely at trial and requesting the
           opportunity to set the record straight. Said letter is
           attached hereto and made a part hereof.

        6. Mr. Reese’s letter, if true, directly contradicts both his
           trial testimony and his evidentiary hearing testimony of
           April, 2013.

        7. Mr. Reese has demonstrated himself to be willing to lie,
           whether it[’]s to lie under oath at [c]ourt proceedings or
           to lie in letters to counsel. Regardless, it is imperative
           [to] schedule an evidentiary hearing to explore Mr.
           Reese’s claims that he lied under oath at trial and at the
           April evidentiary hearing.

PCRA Petition, 8/13/2014, at ¶¶ 3-7.

      On December 2, 2014, upon Appellant’s motion, the PCRA court

appointed counsel to represent Reese. On May 13, 2016, counsel for Reese

filed a verification with the PCRA court which stated as follows:

        1. Undersigned counsel has spoken with Darryl Reese
           multiple times between this year and last year via
           telephone.



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         2. Counsel has tried to get Mr. Reese to sign a [v]erification
            form.

         3. Mr. Reese has waived his attorney-privilege so that
            counsel can speak on his behalf.

         4. Mr. Reese fully agreed that he is being pressured to
            recant his statement by [Appellant] and [Appellant’s]
            family.

         5. Mr. Reese has clearly told counsel that his trial testimony
            and prior [after-discovered evidence hearing] testimony
            was accurate.

         6. Mr. Reese does not want to come to Pittsburgh because
            of fear of retaliation.

Verification, 5/13/2016, at ¶¶ 1-6.

       On May 18, 2016, the trial court entered notice of its intent to dismiss

the PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907. Appellant

filed a timely response. By order entered on June 17, 2016, the PCRA court

dismissed Appellant’s PCRA petition. This timely appeal resulted.1

       On appeal, Appellant presents the following issue for our review:

         Did the [PCRA] court err when it dismissed Appellant’s
         [PCRA] petition alleging a claim of “after-discovered
         evidence” without an evidentiary hearing where Appellant’s
         claim was not “patently frivolous” and, if proven, would
         entitle Appellant to relief?

Appellant’s Brief at 4.
____________________________________________


1
  Appellant filed a notice of appeal on June 20, 2016. On June 22, 2016, the
PCRA court entered an order directing Appellant to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant
complied timely on August 2, 2016. The PCRA court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on December 2, 2016.



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      Appellant     claims    that   Reese’s    most   recent     letter    constitutes

exculpatory      after-discovered    evidence   entitling   him   to    a   new   trial.

Appellant claims he could not ascertain it earlier through due diligence, it

was not cumulative evidence or being used solely as impeachment, and “if

true, would certainly compel a different verdict as Mr. Reese was the only

witness to place Appellant at the [crime] scene.” Id. at 13. Appellant avers

he “is obviously constrained to concede that Mr. Reese’s recantation was

addressed in the March, 2012, evidentiary hearing where Mr. Reese recanted

his recantation on the record” and “[t]his issue was then litigated before

[this] Court[.]” Id. at 14. “Appellant, however, asserts that this [] Court

must nonetheless review Appellant’s claim to prevent a ‘miscarriage of

justice.’” Id.

      We review the denial of a PCRA petition to determine whether the

record supports the PCRA court's findings and whether its order is otherwise

free of legal error.     Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa.

Super.   2016) (citation omitted).       “The 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 trial level.”       Id.

      A claim that has been previously litigated is not cognizable for

collateral relief. 42 Pa.C.S.A. § 9544(a)(2). The PCRA defines a matter as

having been previously litigated when “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.”        Id. “[T]he fact that a petitioner presents a new

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argument or advances a new theory in support of a previously litigated issue

will not circumvent the previous litigation bar.” Commonwealth v. Roane,

142 A.3d 79, 94 (Pa. Super. 2016) (citations omitted).

     Here, the PCRA court recognized that we addressed Appellant’s

present claim in his prior appeal. See PCRA Court Opinion, 12/2/2016, at 4.

We previously determined on direct appeal:

        In this case, the [after-discovered] evidence in question
        consisted of two letters executed by Reese after trial in this
        matter. In those documents, Reese, once again, claimed
        that Appellant was not a participant in the criminal episode
        and that police coercion led to his trial testimony to the
        contrary. Likewise again, when called to the stand, Reese
        disavowed the letters and indicated that they, like the
        previous affidavits, had been executed under duress. Reese
        represented at the evidentiary hearing that his trial
        testimony identifying Appellant as one of the culprits was
        true.

        The trial court concluded that the letters were cumulative to
        the evidence presented at trial in that they were identical to
        the affidavits signed by Reese and produced at trial. The
        trial court also observed that Reese's testimony at the
        evidentiary hearing tracked his trial testimony. It found that
        the letters, as well as the affidavits produced at trial, were
        written under duress. Finally, the trial court made the
        following observation[:]

           [The trial court] notes the ongoing and significant
           efforts taken by the Commonwealth and the
           Department of Corrections, at Reese's request, to
           insure his safety while he serves his five to ten year
           sentence of incarceration. [The trial court] also notes
           that Appellant's original trial counsel withdrew on the
           basis that Appellant had sent correspondence to at
           least two people asking them to get witnesses to
           recant statements and indicating that his attorney
           had advised him to send those letters, a claim


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            counsel strenuously denied. The eight letters written
            by Appellant and his mother after trial to Reese
            further corroborate the ongoing pressure to recant
            being placed on Reese by Appellant. Reese has
            consistently    expressed     concern     about    the
            consequences of being a ‘snitch,’ including
            references in the subject letters, and also about both
            direct and indirect threats made against him as a
            result of his testimony. Reese's fears for his safety
            are valid and ongoing and his testimony, both at trial
            and at the Post–Sentence Motion hearing, was
            credible.

        Trial Court Opinion, 6/29/2012, at 9–10.

        It is evident that the trial court did not abuse its discretion
        or commit an error of law. We concur that the letters were
        cumulative in nature to other proof already presented to the
        jury. Before trial, Reese had provided identical statements
        exonerating Appellant and then, upon appearance in the
        courtroom, retracted those representations as procured
        under duress. Hence, Appellant is not entitled to a new trial
        based upon after-discovered evidence.

Upshaw, 2014 WL 10965838 at *6.

      Here, we discern no abuse of discretion or error of law in denying

Appellant’s PCRA petition.     Reese has thrice attempted to recant his

identification of Appellant as a co-conspirator, each time subsequently

disavowing those recantations. Despite the fact that Reese offered a “new”

letter of recantation, Appellant does not argue that Reese’s most recent

recantation somehow differed from his prior retractions.        In fact, upon

review, Reese’s most recent affidavit contains the same substance as his

previous after-discovered claim.   Moreover, counsel for Reese submitted a

verification that Reese would disavow the statements made in the most

recent affidavit and that his trial testimony was accurate. Appellant does not

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assail this affirmation. We have already determined that Appellant was not

entitled to relief on the same purported after-discovered evidence. See id.

Hence, we conclude Appellant has previously litigated his current claim

under Section 9544(a)(2). Accordingly, the PCRA court properly determined

Appellant was not entitled to relief when it dismissed Appellant’s PCRA

petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/23/2017




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