J-S72006-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JEROME M. WALKER,

                            Appellant                No. 1984 WDA 2013


           Appeal from the PCRA Order Entered November 12, 2013
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0015481-2007


BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                   FILED NOVEMBER 21, 2014

        Appellant, Jerome M. Walker, appeals from the November 12, 2013

order denying his petition for relief filed pursuant to the Post Conviction

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

        Appellant was sentenced to six to twelve years’ imprisonment after he

was convicted, following a nonjury trial, of involuntary deviate sexual

intercourse (IDSI), sexual assault, indecent assault, simple assault, and

criminal conspiracy. Appellant’s convictions stemmed from his participation

in the sexual assault of a female victim, T.W. At trial, T.W. testified that at

approximately 9:00 or 10:00 p.m. on September 25, 2007, she left a

friend’s house and was walking home when she was struck from behind with

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*
    Retired Senior Judge assigned to the Superior Court.
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“a ‘bat or metal pipe or something.’” PCRA Court Opinion (PCO), 5/16/14, at

3-4 (citing N.T. Trial, 9/16/09, at 23).    T.W. fell to the ground and was

attacked by three men who groped her breasts, buttocks, and in between

her legs. Id. at 4. T.W. identified Appellant as one of her attackers, and

testified that during the assault, Appellant “pulled her head back and placed

his penis in her mouth.” Id.        T.W. bit down and, at the same time, a

spotlight in the area came on, causing Appellant and his cohorts to flee. Id.

Appellant was later apprehended and, when interviewed by police, he stated

that “[h]e and his boys were all over that bitch, and she deserved what she

got[.]” Id. at 6. Appellant followed that comment with the statement, “I’m

just funning with all you[.]” Id.

      Following his conviction and sentencing, Appellant filed a direct appeal.

This Court affirmed his judgment of sentence on July 26, 2011, and our

Supreme Court denied his subsequent petition for allowance of appeal on

January 18, 2012.    Commonwealth v. Walker, 32 A.3d 282 (Pa. Super.

2011) (unpublished memorandum), appeal denied, 37 A.3d 1195 (Pa.

2012). On March 12, 2012, Appellant filed a timely pro se PCRA petition and

counsel was appointed. Pertinent to the instant appeal, Appellant claimed in

his petition that he “was entitled to a new trial based on after-discovered

evidence in that an alibi witness, [Daric Anderson,] who was unavailable at

trial, became available….” PCO at 3.




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      A PCRA hearing was conducted on September 27, 2013, at which

Appellant called Anderson to the stand.    The PCRA court summarized the

relevant portions of Anderson’s testimony as follows:

      Anderson testified that on the night of the sexual assault [of
      T.W.], he and [Appellant] were in his apartment watching
      television, going outside occasionally to smoke cigarettes. He
      stated that between 10:00 p.m. and 10:30 p.m., he went into
      the apartment and when he returned outside, [he] observed
      [Appellant], an individual by the name of Antoine Dean, an
      unidentified man and an unidentified woman arguing.
      [Anderson] stated that the police were present at that time and
      he spoke with them. He said that Dean then left their company
      but [Anderson] and [Appellant] stayed together the rest of the
      night. He said that the police returned the next day, accused
      him and [Appellant] of committing a rape, and arrested
      [Appellant].

PCO at 6-7 (citations to the record omitted).

      Ultimately, the PCRA court issued an order denying Appellant’s

petition.   Appellant filed a timely notice of appeal, and presents one

question for our review:

      I. Whether Appellant proved, by a preponderance of the
      evidence, the four factors set forth in Commonwealth v.
      D’Amato, 579 Pa. 490, 856 A.2d 806 (Pa. 2004), controlling
      post-conviction relief for claims of after-discovered witnesses?

Appellant’s Brief at 4.

      Our standard of review regarding an order denying post-conviction

relief under the PCRA is whether the determination of the court is supported

by the evidence of record and is free of legal error.   Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). This Court grants great deference

to the findings of the PCRA court, and we will not disturb those findings


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merely     because      the    record     could   support   a   contrary   holding.

Commonwealth v. Touw, 781 A.2d 1250, 1252 (Pa. Super. 2001).                   The

PCRA court’s findings will not be disturbed unless there is no support for the

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

1166 (Pa. Super. 2001).

       The PCRA provides post-conviction relief for petitioners who prove that

their conviction resulted from “[t]he unavailability at the time of trial of

exculpatory evidence that has subsequently become available and would

have changed the outcome of the trial if it had been introduced.” 42 Pa.C.S.

§ 9543(a)(2)(vi).       As Appellant acknowledges, in D’Amato our Supreme

Court set forth the following test for proving an after-discovered evidence

claim under section 9543(a)(2)(vi):

       To obtain relief based upon newly-discovered evidence under the
       PCRA, a petitioner must establish that: (1) the evidence has
       been discovered after trial and it 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.

D'Amato, 856 A.2d at 823-24 (citations omitted).

       In this case, the PCRA court concluded that Appellant failed to satisfy

the fourth prong of the above-stated test.1 Specifically, the court found that

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1
  The PCRA court also determined that Anderson’s testimony could have
been presented at trial had Appellant exercised reasonable diligence. We
need not address the court’s assessment in this regard because, for the
reasons stated infra, we ascertain no error in the court’s conclusion that
(Footnote Continued Next Page)


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Anderson’s alibi testimony was not credible and would not likely have

compelled a different verdict. The court explained:

      Anderson was not a credible witness at the PCRA hearing.
      Moreover, the “alibi” he would have provided was profoundly
      weak. It actually placed [Appellant] approximately one block
      from where the [assault of T.W.] occurred at the time it
      occurred.    The apartment where Anderson claimed he and
      [Appellant] were, between 10:00 and 10:30 [on] the night of
      September 2[5], 2007, was, according to the trial testimony of
      Carnegie Police Officer Scott Schmeltz, approximately one block
      from where the victim was assaulted. [Moreover,] [Anderson’s]
      testimony as to the time he and [Appellant] encountered the
      police, … was contrary to the trial testimony of the police officer
      who responded to that disturbance. Officer [] Schmeltz stated
      that he was dispatched to 432 Broadway at 11:45 [p.m.], where
      he encountered [Appellant], Anderson and another male.
      Anderson claimed at the PCRA hearing that the police [officer]
      came there between 10:00 and 10:30 [p.m.]            In addition,
      Anderson’s testimony placing [Appellant] with him when the
      assault occurred was contradicted by the victim who positively
      identified [Appellant] as one of her assailants.           Finally,
      [Appellant’s] own inculpatory statement contradicted Anderson’s
      claim that he and [Appellant] were together and somewhere
      other than where the victim was attacked.

PCO at 8-9.

      Clearly, the PCRA court heard and considered Anderson’s alibi

testimony, deemed it incredible, and concluded that it would not likely have

compelled a different verdict had it been presented at Appellant’s trial.

Because the record supports the PCRA court’s credibility determination, we

must defer to it on appeal. See Commonwealth v. Fiore, 780 A.2d 704,
                       _______________________
(Footnote Continued)

Appellant failed to satisfy the fourth prong of the after-discovered evidence
test.




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704, 712 (Pa. Super. 2001) (“Where the record supports the credibility

determination of the post-conviction court, the reviewing court is to defer to

that determination.”).       Accordingly, the court did not err in denying

Appellant’s PCRA petition.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/2014




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