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NON-PRECEDENTIAL DECISION                - SEE SUPERIOR COURT I.O.P.          65.37
COMMONWEALTH OF PENNSYLVANIA,                :        IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                   Appellee

              v.

CARL ALLEN KIRKSEY,

                   Appellant                          No. 4011 EDA 2017

               Appeal from the Judgment of Sentence October 3, 2017
                 in the Court of Common Pleas of Delaware County
                Criminal Division at No(s): CP-23-CR-0002741-1986

BEFORE:       LAZARUS, J., KUNSELMAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                               FILED JULY 26, 2019
        Carl Allen Kirksey (Appellant) appeals from the October 3, 2017

judgment of sentence imposed following           a   resentencing hearing pursuant to

Miller   v.   Alabama, 567     U.S. 460 (2012).1      On appeal, Appellant challenges

the court's dismissal of his petition filed under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546, as to his after -discovered evidence claim.

Upon review, we affirm.

        The PCRA court aptly summarized the underlying facts.

              On April 13, 1986, at approximately 7:30 p.m., [Appellant,
        who was 17 years old at the time,] and two other individuals
        went to the home of Walter Lee Robinson in the city of Chester,
        Delaware County. [Appellant's] girlfriend at the time, Robinson's


1  In Miller, the United States Supreme Court held that a "mandatory
[sentence of] life without parole for those under the age of 18 at the time of
their crimes violates the Eighth Amendment's prohibition on cruel and
unusual punishments." 567 U.S. at 465 (internal quotation marks omitted).


* Retired Senior Judge assigned to the Superior Court.
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        niece, was present when the three young men knocked on the
        door and were all admitted into the home. Upon entering, one of
        the young men pointed a sawed-off shotgun at Robert Grant,
        who was visiting Robinson at the time. [Appellant] then
        exclaimed, "No, not him, the other one[,"] and the gunman then
        turned and pointed the shotgun at Robinson, who was coming
        out of the kitchen area at the time. The gunman fired one shot
        at Robinson and the three men then fled the scene. [Appellant]
        returned minutes later to retrieve the shotgun that had been left
        on the living room floor and again left the scene. Robinson was
        transported to the hospital following the shooting and died a
        short while later.

PCRA Court Opinion,       10/4/2018, at   1.

                [Appellant] was found guilty of murder in the second
        degree, robbery, conspiracy, and possession of prohibited
        offensive weapons following trial by jury on October 23, 1986.
        Post -trial motions were denied, and [Appellant] was sentenced,
        on July 13, 1987, to life imprisonment for murder and to a
        concurrent term of imprisonment of not less than three nor more
        than six years for conspiracy. On direct appeal to the Superior
        Court, the judgment of sentence was affirmed. Commonwealth
        v. Kirksey, [] 544 A.2d 1042 ([Pa. Super.] 1988) [(unpublished
        memorandum) (Kirksey I)]. The Pennsylvania Supreme Court
        denied allocatur. Commonwealth v. Kirksey, [] 552 A.2d 250
        ([Pa.] 1988).

Commonwealth         v.     Kirksey,      576   A.2d     1134   (Pa.   Super.   1990)

(unpublished memorandum at 1) (Kirksey             II)    (unnecessary capitalization

altered and parenthetical numbers omitted).

        Following several unsuccessful PCRA petitions, Appellant filed another

petition on June 15, 2011.         In that petition, Appellant averred he was

entitled to relief based on after -discovered evidence, and that this evidence




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satisfied the newly -discovered facts exception to the PCRA's time-bar.2 Pro

se PCRA Petition, 6/15/2011, at 3, 7.

               The newly[ -]discovered [facts] upon which Appellant relies
        is a letter written by his sister, Gladys Kirksey, which Appellant
        received on April 19, 2011. In that correspondence, Gladys
        admitted that she forged a note implicating Appellant in the
        murder. She alleged that she turned that fabricated note over to
        police claiming that Appellant had written it. Moreover, Gladys
        admitted that she also gave a false statement to police in which
        she inculpated Appellant in the murder. Gladys stated that she
        fabricated evidence and lied to police because she was severely
        addicted to crack cocaine.

               Appellant filed his pro se PCRA petition within 60 days of
        his receipt of Gladys'[s] letter. Therein, he averred that the
        information in the letter was previously unknown to him, and
        that he could not have obtained it by exercising due diligence
        because Gladys had a severe drug addiction and was estranged
        from his family. He also claimed that he repeatedly asked his
        various attorneys to investigate Gladys'[s] allegations that he
        committed the murder, but none of his attorneys followed this
        directive. As such, he maintained that he satisfied the [newly] -
        discovered [facts] exception.

Commonwealth v. Kirksey, 62 A.3d 460           (Pa. Super. 2012) (unpublished

memorandum at 5-6) (Kirksey       III).
        The PCRA court issued notice of its intent to dismiss the petition

without   a   hearing pursuant to Pa.R.Crim.P. 907, and Appellant responded.

The PCRA court dismissed the petition as untimely filed.




2 See 42 Pa.C.S. § 9545(b)(1)(ii) (providing an exception to the PCRA's
time -bar where "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").

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       On appeal to this Court, we held          that Appellant had satisfied the

newly -discovered facts exception to the PCRA's time -bar, and therefore

vacated the PCRA court's order and remanded for an evidentiary hearing on

the after -discovered evidence claim.         Id. (unpublished memorandum at        7-

8).3

       On remand, the PCRA court appointed counsel for Appellant.4 On April

12, 2013, Appellant, through counsel, filed      a   supplement to Appellant's PCRA

petition, adding    a   claim that Appellant's sentence was illegal pursuant to

Miller. Supplemental Amendments to Amended               PCRA Pursuant to the Post

Conviction Relief Act, 4/12/2013, at 2, 4-5 (unnumbered).            This filing also

contained   a   discovery motion for the fabricated note, which the PCRA court

granted.    The Commonwealth ultimately recovered and disclosed              a   note,

which was attached to      a   property receipt dated April 16, 1986, containing     a


"note written by [Appellant] given to Gladys Kirksey[.]"            Commonwealth




3 Because the preliminary hearing transcript was not included in the certified
record, this Court was unable to address the Commonwealth's argument that
"this evidence was previously discoverable because Gladys testified at
Appellant's preliminary hearing that she fabricated the note and lied in her
statement to police." Kirksey III, 62 A.3d 460 (unpublished memorandum
at 8 n.2). As such, this Court noted that on remand, the PCRA court would
be in a better position to address this issue in determining whether Gladys's
April 19, 2011 letter necessitated a new trial for Appellant. Id.

4 Appellant sought to represent himself with standby counsel. A hearing
pursuant to Commonwealth v. Grazier, 713 A.2d 1 (Pa. 1998), was held
on February 14, 2013. At the conclusion of the hearing, the PCRA court
denied Appellant's request.

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PCRA Exhibit 2.     The note stated "Tell Heidi to tell Duncan that I lock up

because of Jeannette."      Id.;   N.T., 11/25/2014, at 27.

        The   Commonwealth         filed        a   motion to    strike the       supplemental

amendments to Appellant's pro se PCRA petition regarding the                      Miller claim.
Motion to Strike, 4/30/2013.                    The PCRA court did           not rule on the

Commonwealth's       motion,       but         implicitly permitted the amendment of

Appellant's petition as the PCRA court held an evidentiary hearing on both

Appellant's after -discovered evidence and Miller claims on November 25,

2014. Appellant and Gladys testified at the hearing. After taking the matter

under advisement,      the PCRA court denied Appellant's after -discovered

evidence claim, finding that Gladys was not credible and that the evidence

would not have resulted in                 a   different verdict.    PCRA Court Opinion,

9/24/2015, at 6.      Additionally, the PCRA court denied Appellant's Miller

claim based upon our Supreme Court's decision in Commonwealth v.

Cunningham,       81 A.3d    1     (Pa. 2013) (holding           that Miller did not apply

retroactively). PCRA Court Opinion, 9/24/2015, at 6.

        Appellant timely filed     a   notice of appeal to this Court on October 22,

2015 (2015 appeal), claiming the PCRA court erred in denying relief based

on his after -discovered evidence and                   Miller claims.      Pa.R.A.P. 1925(b)

Concise Statement, 11/16/2015.                  We glean from the record that Appellant

and the Commonwealth filed             a   joint petition for this Court to remand       on the

Miller claim, which this Court denied. Subsequently,                     in his brief, Appellant


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again requested remand solely on the               Miller claim     and did not present any

argument as to his after -discovered evidence claim.                    Before reaching the

merits of Appellant's claims and without addressing the after -discovered

evidence claim, this Court issued        a   per curiam order remanding the case to

the PCRA court for further proceedings on his Miller claim in light of

Montgomery         v.   Louisiana,          U.S.         ,    136 S.Ct. 718 (2016) (holding

that Miller applies retroactively to cases on collateral appeal), and

relinquishing jurisdiction. Per Curiam Order, 8/8/2016.

        On remand, PCRA counsel was permitted to                  withdraw and new counsel

was appointed for resentencing.              Order, 9/1/2016.          On October 3, 2017,

following   a   September 21, 2017 hearing, Appellant was resentenced to                    a


term of 31 years to life imprisonment. On October 12, 2017, Appellant filed

a    post -sentence motion seeking      a    term -of -years maximum sentence.           The

motion was denied on October 17, 2017.

        This timely -filed appeal followed.                  In his court -ordered Pa.R.A.P.

1925(b) statement, Appellant raised                a   discretionary -aspects -of -sentencing

claim, and again raised       a   claim that the PCRA court erred in dismissing his

PCRA    petition in light of the after -discovered evidence. The court issued               a


Pa.R.A.P.       1925(a)    opinion.     In     his      brief,    Appellant   abandons   the

discretionary -aspects -of-sentencing claim and challenges only the PCRA

court's denial of his after -discovered evidence claim. Appellant's Brief at 4.




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          Preliminarily, we note that Appellant raised this same claim in his 2015

appeal,      but abandoned     it   in    favor of remand on         his   Miller claim.
Specifically, in his brief in the 2015 appeal, Appellant presented argument

solely on his    Miller claim, but requested that      he be permitted to pursue the

after -discovered evidence claim if this Court denied his remand request.

Because we granted Appellant's remand request, this Court did not address

his    alternative request to file        a   supplemental brief arguing his after -

discovered evidence claim.               Because Appellant abandoned         this   after -

discovered evidence claim by failing to present any meaningful argument

when it was ripe for disposition in the 2015 appeal, we find it waived.

          However, even if we were to excuse waiver based on the foregoing

procedural complexity and because this Court remanded without addressing

Appellant's after -discovered evidence claim, Appellant         is   still not entitled to

relief.

          "Our standard of review of      a   [PCRA] court order granting or denying

relief under the PCRA calls upon us to determine 'whether the determination

of the PCRA court is supported by the evidence of record and is free of legal

error."      Commonwealth v. Barndt, 74 A.3d 185, 192                (Pa. Super. 2013)

(quoting Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super.

2011)).       "The PCRA court's credibility determinations, when supported              by

the record, are binding on this Court."            Commonwealth v. Johnson,             51




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A.3d 237, 242-43 (Pa. Super. 2012) (en banc) (citation and quotation marks

omitted).

        To warrant relief, after -discovered evidence must meet a four -
        prong test: (1) the evidence could not have been obtained
        before the conclusion of the trial by reasonable diligence; (2) the
        evidence is not merely corroborative or cumulative; (3) the
        evidence will not be used solely for purposes of impeachment;
        and (4) the evidence is of such a nature and character that a
        different outcome is likely. At an evidentiary hearing, an
        appellant must show by a preponderance of the evidence that
        each of these factors has been met in order for a new trial to be
        warranted.

Commonwealth v. Rivera, 939 A.2d 355, 359                (Pa. Super. 2007) (citation

omitted).

        At the PCRA hearing, Gladys testified that on April 16, 1986, she gave

a    false statement to police implicating Appellant in the murder, and while

she was at the police station, she fabricated       a   note from Appellant, due to

threats from the police.     N.T., 11/25/2014, at 37-40, 44, 46.        Specifically,

the PCRA court recounted that on April 16, 1986,

        Gladys gave a statement to the Chester Police in which she
        stated, "I was in the police van on 4-16-86 when [Appellant]
        handed a note to me and told me to tell Heidi to tell Duncan that
        he is locked up because of Jeannette." In her statement, Gladys
        also provided the police with information tying [Appellant] to the
        scene of the murder and told the police that he kept a gun in the
        house. Gladys'[s] statement reflects that she told the police that
        she was not under the influence of any drugs or intoxicating
        liquors at the time she gave her statement.

PCRA Court Opinion,       3/2/2016, at   8     (citations omitted).    Nonetheless,

Gladys testified at the hearing that she could not remember much from that

time period because of her cocaine addiction, and that the statement and

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note were provided after     a   three-day cocaine binge.    N.T., 11/25/2014, at

41-42, 46, 55.

      Gladys confirmed that she denied her April 16, 1986 statement was

true at Appellant's preliminary hearing, but subsequently reaffirmed the

statement during an interview with the District Attorney's Office prior to

Appellant's trial.   Id. at 65; Statement of     Gladys Kirksey, 9/4/1986, at 35

(Commonwealth PCRA Exhibit 4).           Both Gladys and Appellant testified that

Appellant did not write the note.        N.T., 11/25/2014, at 43, 120, 124, 134.

However, Appellant contests that the recovered note was the same note as

the one police showed him on April 17, 1986. According to Appellant, while

he could not recall the contents of the note due to the passage of time, it

was on    a   long sheet of blue paper and contained        a   lot of information,

including that "the gun is here" and "he shot, he missed."         Id. at 157-58,
160, 166-67.

      At the hearing, Appellant argued that Gladys's fabricated note and

false statement provided the crux for his arrest warrant in the murder case,

and that his confession was      a   direct result of the police showing him these

documents.      Id. at 125-26,       157, 159, 163, 178.    But see Affidavit of
Probable Cause, 4/17/1986 (Commonwealth PCRA Exhibit 6) (containing no

reference to   a   note, but relying in part on statements given by Muril Jones

and Gladys).




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         In denying Appellant's claim, the PCRA court found that the evidence

presented would not have resulted in         a   different outcome because "Gladys

did not testify at [Appellant's] trial.      The statement that she now denies

making, or if made was made as           a   result of police coercion, was never

mentioned at trial.       The allegedly 'fabricated    note'-the after[ -]discovered
evidence-similarly was never mentioned at [Appellant's] trial."           PCRA Court

Opinion, 3/2/2016, at 8 (emphasis removed).

         Instead, the record reveals that [Appellant's] conviction for the
         murder of [] Robinson was based upon an eyewitness account by
         Muril Jones, as well as the testimony of Robert Grant and officers
         of the Chester Police Department. [Appellant's] conviction was
         additionally based upon his own statement to the police.
         Accordingly, regardless of Gladys['s] allegations, and even if
         they were true, none of them would "likely compel a different
         verdict."
Id. at   11   (citations omitted).

         On appeal, Appellant disagrees with the          PCRA   court's conclusion

because even though Gladys did not testify at trial, without the statement or

note, he claims the police would not have had probable cause to arrest

Appellant for murder, and Appellant therefore would never have confessed.

Appellant's Brief at 17, 21. However, the PCRA court made           a   determination

that Gladys was not credible as to the fabrication of the note or the falsity of

her statement.       We are bound by that credibility determination as long as it

is   supported by the record. See Johnson, 51 A.3d at 242-43. In addition,

the affidavit of probable cause did not mention Gladys's note, but did

mention other evidence tying Appellant to the murder independent of

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Gladys's    statement.         See   Affidavit    of   Probable    Cause,     4/17/1986

(Commonwealth PCRA Exhibit 6)

        Upon review, we conclude that the PCRA court's determination is

supported by the record.         Because Gladys's testimony that she fabricated

the note and gave      a   false statement was found not to be credible, the PCRA

court concluded that the evidence was not of such           a   nature that   a    different

outcome was likely. See Rivera, 939 A.2d at 359; cf. Commonwealth v.

Small, 189 A.3d 961, 977         (Pa. 2018) (citation and internal quotation marks

omitted) ("Unless the [PCRA] court       is   satisfied that the recantation      is   true, it

should deny      a   new trial.").   We find the PCRA court's conclusion to be

supported by the record and free of error.

        Accordingly, we conclude that the PCRA court did not err in dismissing

Appellant's after -discovered evidence claim.

        Order affirmed.

Judgment Entered.




J seph D. Seletyn,
Prothonotary



Date: 7/26/19
