J-S18021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES SIMON THOMPSON,                      :
                                               :
                       Appellant               :      No. 1150 WDA 2017

                    Appeal from the PCRA Order July 14, 2017
                in the Court of Common Pleas of Fayette County,
              Criminal Division at No(s): CP-26-CR-0001761-2009

BEFORE: STABILE, J., MUSMANNO, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MUSMANNO, J.:                               FILED JUNE 27, 2018

       James Simon Thompson (“Thompson”) appeals from the Order denying

his first Petition filed pursuant to the Post Conviction Relief Act (“PCRA”). See

42 Pa.C.S.A. §§ 9541-9546. We affirm.

       The PCRA court set forth the relevant underlying facts:

       On April 14, 2009, [Thompson] was arrested and charged with
       Possession with Intent to Deliver, Possession of Drug
       Paraphernalia, and two counts of Persons not Possess a Firearm.
       According to the [C]riminal [C]omplaint drafted by former
       Connellsville police officer and Fayette County Drug Task Force
       detective Ryan Reese [(“Reese”)], [Thompson] made a full
       confession.[fn1] On [March] 11, 2011, [Thompson] pled guilty to
       all of the charges. He was sentenced to four to eight years of
       incarceration in a “global” plea offer[fn2] and did not file a direct
       appeal of his sentence. Instead, he filed a PCRA [Petition] based
       on [after-]discovered evidence in the form of a letter from [] Dawn
       Millholland [(“Millholland”)1], who claimed that the drugs and
       firearms belonged to her then-boyfriend, Robert “Hoppy” Williams
____________________________________________


1Millholland’s drug addiction sponsor was a friend of Thompson’s sister. N.T.,
1/30/17, at 62.
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     [(“Williams”)].  [Thompson] also alleged [after-]discovered
     evidence stemming from the corruption charges against Reese
     and alleged that Reese falsified the [C]riminal [C]omplaint to
     include [Thompson’s] confession; an allegation that [Thompson]
     vehemently denied.

     On June 19, 2015, the Court ultimately dismissed all of
     [Thompson’s] Amended [PCRA Petitions], and he filed a direct
     appeal. On July 29, 2016, the Superior Court reversed th[e PCRA
     c]ourt’s dismissal and remanded the matter for [Thompson] to be
     appointed new counsel to file yet another amended Petition and
     for [the PCRA c]ourt to hold an evidentiary hearing. [See
     Commonwealth v. Thompson, 153 A.3d 1111 (Pa. Super.
     2016) (unpublished memorandum).]

     On January 30, 2017, an evidentiary hearing was held.
     [Thompson] testified that he pled guilty because Reese stated that
     [Thompson] confessed to the crimes; specifically, [Thompson]
     testified, “[i]t was my word against an officer as decorated as
     [Reese] was at the time. I had no choice.” Notes of Testimony
     (N.T.), 1/30/17, at 17. In addition to [Thompson], [] Millholland
     testified as to the aforementioned letter, which was also admitted
     into evidence. [] Millholland claimed to have first-hand knowledge
     of the drugs and guns in question, even though she was frequently
     under the influence of drugs at the time [Thompson] was charged.
     N.T. at 52, 61. Her reason for the delay in coming forward with
     this information was fear of retaliation by Williams, who is
     currently incarcerated. N.T. at 55. In an effort to corroborate []
     Millholland’s testimony, Samantha Brown [(“Brown”)] also
     testified that the drugs and firearms in question belonged to
     Williams. N.T. at 91-92.

     With regard to the criminal charges against Reese, [Thompson]
     offered testimony from Thelma Friday [(“Friday”)], who stated
     that she was asked to assist Reese in implicating [Thompson],
     which she did not do. N.T. at 76. She did, however, offer Reese
     sexual favors from herself and assisted him in soliciting sex from
     other females in order to protect herself from criminal
     prosecution.[fn3] N.T. at 71, 78.


         At the present time, [] Reese has been convicted of corruption
     [fn1]

     of minors and has two additional pending criminal cases where he
     is charged with various sexually-based and corruption offenses.

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      He is no longer a police officer or detective, and the Fayette
      County Drug Task Force was disbanded in 2016.

          The [sentence in the] instant case was to run concurrent with
      [fn2]

      Nos. 527 of 2008, 187 of 2009, 272 of 2009, and 422 of 2009. At
      the time of his plea in the instant case, [Thompson] also entered
      a guilty plea in No. 1393 of 2010 and was sentenced to one to two
      years’ incarceration to run consecutive with the instant case.

      [fn3]Although [] Friday alleged that she exchanged sexual favors
      for immunity from prosecution with Reese, she is not one of the
      accusers in any of Reese’s criminal cases.

PCRA Court Opinion, 7/14/17, at 1-3 (footnotes in original).

      On July 14, 2017, the PCRA court denied Thompson’s PCRA Petition.

Thompson filed a timely Notice of Appeal.

      On appeal, Thompson raises the following questions for our review:

      1. Whether the PCRA court erred in denying relief for [Thompson]
         based upon after–discovered evidence of three (3) witnesses
         who came forward after [Thompson] had been sentenced[?]

      2. Whether the PCRA court erred in denying relief for [Thompson]
         based upon the after–discovered evidence that the prosecuting
         officer has pending criminal charges, including charges of
         official oppression[?]

Brief for Appellant at 3 (capitalization omitted).

           Our standard of review of an order denying PCRA relief is
      whether the record supports the PCRA court’s determination, and
      whether the PCRA court’s determination is free of legal error. The
      PCRA court’s findings will not be disturbed unless there is no
      support for the findings in the certified record.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013)

(citations omitted).




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      We will address Thompson’s claims together, as he contends that he is

entitled to relief on the basis of exculpatory, after-discovered evidence. Brief

for Appellant at 7-13. Thompson argues that statements by Millholland and

Brown confirmed that the drugs and firearms belonged to Williams, not

Thompson. Id. at 8-10; see also id. at 10-11 (wherein Thompson claims

Millholland and Brown did not come forward earlier because they were afraid

of Williams).   Thompson asserts that these statements qualify as after-

discovered evidence because the evidence was unavailable to him until

Millholland wrote him a letter; the evidence would not solely impeach the

credibility of other witnesses; and the testimony would have led to a not guilty

verdict. Id. at 10; see also id. at 11 (wherein Thompson claims he is entitled

to a new trial based upon the statements of Millholland and Brown).

      Thompson also contends that he is entitled to relief because Reese, the

prosecuting officer, was subject to various criminal charges.       Id. at 11.

Thompson argues that District Attorney in Fayette County dismissed other

cases in which Reese was the primary witness. Id. at 12. Thompson also

asserts that Friday issued a notarized affidavit and testified that Reese had

stated that he wanted Thompson to go to prison for a long time. Id. at 11-

12, 13; see also id. at 12-13 (wherein Thompson argues that Reese’s

statements were admissible under hearsay exceptions at Pa.R.E. 803(25)(a)

and (c)). Thompson claims that he should be given a new trial based upon

this evidence. Id. at 13.


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           To be entitled to relief under the PCRA on the basis of
     exculpatory after-discovered evidence, the petitioner must plead
     and prove by a preponderance of the evidence “[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.A.
     § 9543(a)(2)(vi). …

           To obtain relief based on after-discovered evidence, [an]
     appellant must demonstrate that the evidence: (1) could not have
     been obtained prior to the conclusion of the trial by the exercise
     of reasonable diligence; (2) is not merely corroborative or
     cumulative; (3) will not be used solely to impeach the credibility
     of a witness; and (4) would likely result in a different verdict if a
     new trial were granted.

           The test is conjunctive; the [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. Further, when
     reviewing the decision to grant or deny a new trial on the basis of
     after-discovered evidence, an appellate court is to determine
     whether the PCRA court committed an abuse of discretion or error
     of law that controlled the outcome of the case.

Commonwealth v. Foreman, 55 A.3d 532, 537 (Pa. Super. 2012) (some

citations, brackets, and quotation marks omitted); see also Commonwealth

v. Padillas, 997 A.2d 356, 365 (Pa. Super. 2010) (noting that in determining

whether the evidence is of such nature and character to compel a different

verdict in a new trial, a court should consider “the integrity of the alleged

after-discovered evidence, the motive of those offering the evidence, and the




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overall strength of the evidence supporting the conviction.”).2

        Initially, with regard to Millholland and Brown, their statements and

testimony do not constitute after-discovered evidence, where they had failed

to come forward based upon possible retaliation from Williams. See Padillas,

997 A.2d at 363 (stating that “testimony of witness who simply refuses or is

unwilling to testify does not constitute after-discovered evidence.”). Further,

the testimony of Millholland and Brown was not exculpatory, but instead would

have been used solely to impeach the credibility of Commonwealth witnesses

regarding Thompson’s possession of the contraband. See Foreman, 55 A.3d

at 537; see also Padillas, 997 A.2d at 365 (noting that a party offering to

provide evidence contradicting evidence given by another witness constitutes

impeachment evidence). Thus, Thompson’s after-discovered evidence claim

in this regard does not entitle him to relief.

       The criminal charges brought against Reese also do not constitute after-

discovered evidence. Indeed, Thompson would have used the charges in an

unrelated matter solely to impeach the credibility of Reese. See Foreman,

____________________________________________


2 It is undisputed that Thompson knowingly pled guilty to the possession of
contraband and firearm charges. See Commonwealth v. Yeomans, 24 A.3d
1044, 1047 (Pa. Super. 2011) (stating that a person who elects to plead guilty
is bound by the statements he made during the plea colloquy and may not
later assert grounds for withdrawing the plea which contradict those
statements). However, “[a]ny after-discovered evidence which would justify
a new trial would also entitle [a] defendant to withdraw his guilty plea.”
Commonwealth v. Heaster, 171 A.3d 268, 273 n.6 (Pa. Super. 2017)
(citation omitted).



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55 A.3d at 537 (noting that the “filing of criminal charges against [the

testifying detective] in an unrelated matter does not meet the after-discovered

evidence test since such evidence would be used solely to impeach the

credibility of [the detective.]”). Further, Thompson has not demonstrated that

there is any nexus between his case and Reese’s alleged criminal activities.

See id. at 537-38 (noting that the after-discovered evidence test is not met

where the evidence against the testifying detective would not have changed

the result of the verdict because appellant failed to show a nexus between his

case and the detective’s case). Thus, Thompson’s claims with regard to Reese

are without merit.

       Finally, Friday’s testimony regarding statements by Reese seeking to

implicate Thompson did not meet the requirements of the after-discovered

evidence test, as such testimony would have been used solely to impeach

Reese’s credibility.3 See Padillas, 997 A.2d at 363.

       Based upon the foregoing, Thompson’s after-discovered evidence claims

are without merit. Thus, he is not entitled to the relief requested.

       Order affirmed.




____________________________________________


3 The PCRA court additionally noted that Friday’s testimony was “highly
suspect since she openly admitted to soliciting other women to have sex with
Reese, and used Reese’s alleged statements to her in support thereof. The
bulk of her testimony was hearsay[.]” PCRA Court Opinion, 7/14/17, at 5.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/27/2018




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