J-S74034-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KYSHIM M. HENDERSON                        :
                                               :
                       Appellant               :   No. 1284 EDA 2019

                 Appeal from the Order Entered March 29, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0007718-2009

BEFORE:      BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                          FILED MARCH 09, 2020

        Appellant Kyshim M. Henderson appeals from the order entered by the

Court of Common Pleas of Philadelphia County denying Appellant's second

petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§

9541-46. Appellant argues that he is entitled to a new trial based on the after-

discovered testimony of a witness who claims to have committed the murder

for which Appellant was convicted. We affirm.

        On August 8, 2008, Rashawn Howard (“the complainant”) was shot six

times in the courtyard located at 623 North Franklin Place in Philadelphia.

After the complainant was rushed to a local hospital, he died as a result of his

gunshot wounds. Responding officers did not recover any weapons from the

crime scene or from the complainant’s person.


____________________________________________


*   Former Justice specially assigned to the Superior Court.
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      On September 16, 2008, after Lyle Littlejohn had been brought into

police custody on unrelated charges, he gave detectives a signed, written

statement identifying Appellant as the individual who shot the complainant.

Littlejohn, who referred to Appellant as “Mike” or “Cherp,” indicated that he

knew Appellant for years. Further, Littlejohn told officers that the complainant

had allegedly robbed Appellant on a prior occasion.

      Littlejohn recalled that on the night of the murder, Appellant and the

complainant began arguing at a dice game in the courtyard. Littlejohn saw

Appellant shoot at the complainant’s legs seven times and watched Appellant

run into the third house on Green Street. Littlejohn told detectives that he

came forward with this identification as he was friends with the complainant.

      On September 22, 2008, a second witness, Germaine Thompson, gave

a signed, written statement to police identifying Appellant as the individual

who shot the complainant. Thompson knew Appellant as “Mike” and noted

that Appellant was his sister’s neighbor in the Penntown Projects where the

shooting occurred. Thompson recalled that on the night of the complainant’s

murder, he heard an argument in the courtyard where a dice game was taking

place. When Thompson looked over to this location, he saw Appellant shoot

the complainant’s legs five or six times with a small, black gun and then run

out of the courtyard toward Green Street.

      After Appellant was charged with the complainant’s murder, he

proceeded to a bench trial. While Littlejohn and Thompson previously gave

statements to the police identifying Appellant as the individual who shot the

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complainant, both men recanted their testimony at trial. Littlejohn claimed

he was not in the courtyard at the time of the shooting but asserted that

detectives told him that Appellant committed the complainant’s murder and

made Littlejohn circle Appellant’s picture in a photo array. Thompson similarly

claimed that he was not in the courtyard at the time of the complainant’s

murder and contended that detectives directed him to identify Appellant as

the perpetrator of the complainant’s murder. The Commonwealth introduced

both men’s statements at trial as prior inconsistent statements.

      A third witness, Sheryl Smith, testified at Appellant’s trial. Smith knew

Appellant for years and referred to him as “Mike-Mike.” She recalled seeing

both Appellant and Thompson in the courtyard at the time of the complainant’s

murder. While she was walking into the courtyard, she heard the shots being

fired, observed a gun in Appellant’s hand, and saw Appellant run toward Green

Street after the shots were fired.

      On March 20, 2010, the trial court convicted Appellant of third-degree

murder and possession of an instrument of crime.          On June 11, 2010,

Appellant was sentenced to an aggregate term of eighteen (18) to thirty-six

(36) years’ incarceration followed by five years’ probation. On January 23,

2012, this Court affirmed the judgment of sentence and on July 16, 2012, our

Supreme Court denied Appellant’s petition for allowance of appeal.

      On April 23, 2013, Appellant filed his first PCRA petition, which was

subsequently dismissed on January 29, 2014. On July 8, 2015, this Court




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affirmed the dismissal of the petition and on February 2, 2017, our Supreme

Court denied Appellant’s petition for allowance of appeal.

      On November 6, 2017, Appellant filed the instant PCRA petition,

claiming that he was entitled to a new trial based on the testimony of Marcus

Williams, who claimed to have committed the complainant’s murder.

Appellant claims that he received this information when Williams approached

him on September 16, 2017 in prison and confessed to the shooting.

      On January 4, 2019, the PCRA court held an evidentiary hearing at which

Williams testified. Williams claimed that on the night in question, he went to

the Penntown Projects with a friend, Derrick Davis (also known as “Black”), to

buy a pound of marijuana. As the men were unfamiliar with the neighborhood,

Williams armed himself with a 9-millimeter firearm and waited in the courtyard

while Davis went into the seller’s house to purchase the drugs.      Williams

claimed that the men traveled to this location as they could obtain the

marijuana cheaper there.

      Once in the courtyard, Williams claimed that he joined a dice game while

he was waiting for Davis. Shortly thereafter, the complainant approached and

began arguing with one of the individuals playing dice. Williams believed the

complainant had mental health issues or was high as the complainant was

acting aggressively, stumbling, mumbling to himself, and cursing.

      At one point, the complainant brushed up against Williams and asked

where he was from. Thereafter, Davis met up with Williams and the two men

started to leave the courtyard. The complainant called out to Williams, “yo,

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bro, let me holla at you.” Notes of Testimony (N.T.), PCRA Hearing, 1/4/19,

at 14. Williams went back to the complainant to continue the conversation.

The complainant pulled a gun from behind his back and told Williams to put

his money and gold chain on the ground.         When Williams complied, the

complainant picked up the money and chain while still pointing the gun at him.

The complainant threatened to kill Williams as he was not from his

neighborhood.

      Williams recalled that he suddenly heard an unidentified woman cry out,

“let me get my kids, let me get my kids, oh my God.” Id. at 17. Williams

testified that the woman’s cry drew the complainant’s attention, giving

Williams an opportunity to pull out his own firearm and fire it at the

complainant in self-defense.      Williams indicated that he shot at the

complainant’s legs to get him on the ground. Thereafter, Williams threw his

gun in a dumpster and left the scene with Davis.

      Williams was subsequently incarcerated for a probation violation. When

Williams called Davis from prison, he found out that the complainant had

passed away and that an individual named “Cherp” was charged with the

murder. Davis told Williams to “keep his mouth shut.” Id. at 22. Several

months before Williams was paroled, Davis passed away.

      After Williams was released from prison, he was subsequently convicted

of robbery and sentenced to six to twelve years’ incarceration. While in prison,

in 2017, Williams discovered that a man referred to as “Cherp” was in the

same correctional facility.   Williams claimed that he felt guilt over the

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complainant’s murder and had to “come clean with God.”             Id. at 25.

Thereafter, Williams confessed to Appellant (“Cherp”) that he had murdered

the complainant.    At Appellant’s request, Williams subsequently made a

statement to a private investigator on October 19, 2017. Despite the fact that

Appellant and Williams were in the same prison for fifteen months and traveled

together on a bus from SCI Benner to SCI Phoenix, Williams claimed he never

spoke to Appellant again and denied having any mutual friends.

      In response to Appellant’s petition, the Commonwealth presented the

PCRA court with exhibits documenting both Williams and Appellant’s messages

using the prison email system. The exhibits first showed that both Williams

and Appellant had contact with Durward Allen, a former inmate at the same

prison as Appellant and Williams. Just days after Williams gave his statement

to the private investigator, on October 26, 2017, prison records show that

Allen requested to be an email contact of both Williams and Appellant on the

same day.     Inmate Messages Report (Williams), at 24; Inmate Messages

Report (Appellant), at 100.     Id. On October 31, 2017, Allen messaged

Appellant to tell him, “I’m still working on that situation we talked about for

you.” Inmate Messages Report (Appellant), at 101. On March 25, 2018, Allen

sent Williams an email stating, “I’ll have something for you in a little bit.”

Inmate Messages Report (Williams), at 25.

      The prison records also show that Williams also had contact with

Kennesha Watson, Appellant’s girlfriend.      On January 14, 2018, Watson

contacted Williams and was added to his contact list.      On April 12, 2018,

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Williams contacted his girlfriend, Jasmine Taylor, and told her to stop stressing

because he would send her money “if shit work out.” Id. at 30. On April 15,

2018, Appellant’s girlfriend, Watson, sent Williams an email telling him that

she was going to send him money but had not done so as she asserted that

Appellant had stopped calling her. Id. at 31. On August 5, 2018, Williams

sent his own girlfriend, Taylor, an email promising to provide her a “house[,]

money[,] cars[,] kids education paid,” but indicated that he might have to

come back to prison. Id. at 36.

      On March 29, 2019, the PCRA court held a second hearing at which it

allowed counsel to present oral argument. At this hearing, the PCRA court

expressly denied Appellant’s petition and set forth its rationale for doing so on

the record. On April 21, 2019, Appellant filed a timely appeal. Thereafter,

Appellant complied with the trial court’s direction to file a Concise Statement

of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b).

      As an initial matter, we must determine whether Appellant's PCRA

petition was timely filed. It is well-established that “the PCRA's timeliness

requirements are jurisdictional in nature and must be strictly construed;

courts may not address the merits of the issues raised in a petition if it is not

timely filed.” Commonwealth v. Walters, 135 A.3d 589, 591 (Pa.Super.

2016) (citations omitted). Generally, a PCRA petition “including a second or

subsequent petition, shall be filed within one year of the date the judgment of

sentence becomes final.” 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence




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becomes final at the conclusion of direct review or the expiration of the time

for seeking the review. 42 Pa.C.S.A. § 9545(b)(3).

      However, our courts may consider an untimely petition if the appellant

explicitly pleads and proves one of the three exceptions enumerated in

Sections 9545(b)(1)(i)-(iii), which include: (1) the petitioner's inability to raise

a claim as a result of governmental interference; (2) the discovery of

previously unknown facts or evidence that would have supported a claim; or

(3) a newly-recognized constitutional right that has been held to apply

retroactively by the Supreme Court of the United States or the Supreme Court

of Pennsylvania. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      As noted above, the trial court sentenced Appellant on June 11, 2010,

this Court affirmed the judgment of sentence on January 23, 2012, and our

Supreme Court denied Appellant’s petition for allowance of appeal on July 16,

2012. Appellant did not seek further review with the Supreme Court of the

United States.

      As a result, Appellant's judgment of sentence became final on October

14, 2012, after the expiration of the ninety-day period in which he was allowed

to file a petition for certiorari with the Supreme Court of the United States.

See U.S.Sup.Ct.R.13(1) (stating “a petition for a writ of certiorari to review a

judgment in any case ... is timely when it is filed with the Clerk of this Court

within 90 days after entry of the judgment”). Thus, Appellant needed to file

his PCRA petition by October 14, 2013. As Appellant filed the instant petition

on November 6, 2017, this petition is facially untimely.

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     Appellant claims that his petition meets the newly-discovered evidence

timeliness exception under Section 9545(b)(1)(ii), claiming that he could

prove his innocence with the confession of Marcus Williams to the

complainant’s murder. In reviewing this assertion, we are careful to note the

distinctions between the PCRA’s newly-discovered fact timeliness exception

and the standard governing after-discovered evidence. Our Supreme Court

has provided:

     the newly-discovered facts exception to the time limitations of the
     PCRA, as set forth in subsection 9545(b)(1)(ii), is distinct from the
     after-discovered evidence basis for relief delineated in 42 Pa.C.S.
     § 9543(a)(2). To qualify for an exception to the PCRA's time
     limitations under subsection 9545(b)(1)(ii), a petitioner need only
     establish that the facts upon which the claim is based were
     unknown to him and could not have been ascertained by the
     exercise of due diligence. However, where a petition is otherwise
     timely, to prevail on an after-discovered evidence claim for relief
     under subsection 9543(a)(2)(vi), a petitioner must prove that (1)
     the exculpatory evidence has been discovered after trial and 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. Commonwealth v. D'Amato, 579 Pa. 490,
     856 A.2d 806, 823 (2004); see [Commonwealth v.] Cox, [636
     Pa. 603, 614,] 146 A.3d [221,] 227–28 [(2016)] (“Once
     jurisdiction has been properly invoked (by establishing either that
     the petition was filed within one year of the date judgment became
     final or by establishing one of the three exceptions to the PCRA's
     time-bar), the relevant inquiry becomes whether the claim is
     cognizable under [Section 9543] of the PCRA.”).

Commonwealth v. Burton, 638 Pa. 687, 705, 158 A.3d 618, 629 (2017).

     In this case, we agree with the PCRA court’s finding that Appellant has

established that Williams’ testimony was unknown to him and could not have

been ascertained by the exercise of due diligence. As Appellant satisfied the


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newly-discovered fact timeliness exception, we may proceed to determine

whether he raised a cognizable claim under the PCRA based on his after-

discovered evidence claim.

      There is no dispute that Appellant has proven the first three prongs of

the after-discovered evidence test as Williams’ confession was discovered

after trial and could not have been obtained at or prior to trial through

reasonable diligence, Williams’ confession is not cumulative evidence, and the

confession would not be used solely to impeach credibility.

      However, the PCRA court found that Appellant did not prove that the

admission of Williams’ conviction would likely compel a different verdict as the

PCRA court found the record contained overwhelming evidence of Appellant’s

guilt at his trial given that the prosecution had presented the accounts of three

eyewitnesses who identified Appellant as the individual who shot the

complainant multiple times. These witnesses gave consistent statements to

the police shortly after the complainant’s murder and none of the witnesses

indicated that the complainant had a firearm.

      In addition, the PCRA court found Williams’ confession to the

complainant’s murder was not credible.        The PCRA court was skeptical of

Williams’ testimony that the complainant tried to rob Williams in a courtyard

full of bystanders. As Williams claimed to be a stranger to the neighborhood,

the PCRA court questioned why none of the thirty to forty witnesses to the

shooting were willing to describe the stranger for the police to protect their

community, but instead attempted to cover for the shooter. The PCRA court

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also pointed out that none of the three witnesses who gave statements to

police observed the complainant with a weapon as Williams had claimed.

      Moreover, the PCRA court found the veracity of Williams’ statement was

called into question by messages he sent and received through the prison

email system.    The PCRA court noted that not only did Williams lie about

having mutual connections with Appellant, but the “timing and content of

those messages suggest collusion” between Williams and Appellant.         N.T.

PCRA Hearing, 3/29/19, at 36. The PCRA court pointed to a message in which

Appellant’s girlfriend promised to send Williams money and a subsequent

message from Williams to his own girlfriend, in which he promised to pay for

a car, house, and their children’s education with the caveat that he might have

to go back to prison. The PCRA court did not believe Williams’ assertion that

he and Appellant never spoke again about the shooting even though they were

incarcerated in the same prison for fifteen months and had even traveled

together between two state correctional institutions on a 197-mile bus trip.

      Accordingly, we agree with the PCRA court’s finding that Appellant failed

to prove that the admission of Williams’ conviction would likely compel a

different verdict and conclude that the PCRA court correctly rejected

Appellant’s request for a new trial based on after-discovered evidence.

      For the foregoing reasons, we affirm the PCRA court’s order denying

Appellant’s petition.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/2020




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