Com. v. Sanders, J.

J-E02004-25

2026 PA Super 75

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

:

v. :

:

:

JAMAL R. SANDERS : No. 2549 EDA 2022

Appeal from the PCRA Order Entered September 12, 2022

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP-51-CR-1010881-1997

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., OLSON, J., STABILE, J.,

KUNSELMAN, J., MURRAY, J., KING, J., SULLIVAN, J., and LANE, J.

OPINION BY KING, J.: FILED APRIL 17, 2026

Appellant, the Commonwealth of Pennsylvania, appeals from the order

entered in the Philadelphia County Court of Common Pleas, which granted the

petition filed pursuant to the Post Conviction Relief Act (“PCRA”) 1 of Appellee,

Jamal R. Sanders, and awarded Appellee a new trial. We affirm.

The PCRA court set forth the relevant facts and procedural history of

this case as follows:

On September 5, 1997, police responded to a radio call

reporting a shooting. The victim, Ronnie Johnson

(“Johnson”), had been shot outside of a barbershop and died

as a result of his injuries. Based on a homicide investigation

that followed this incident, police arrested two suspects:

Appellee and Keane Tucker (“Tucker”).[2] Cephus [Houser]

(“Houser”) would inform police that [Appellee] and Tucker

had arrived at the barbershop and argued with Johnson prior

____________________________________________

1 42 Pa.C.S.A. §§ 9541-9546.

2 Tucker is sometimes referred to in the record as “Keane Tate” or “Keen Tate.”

For consistency, we will continue to use the name Tucker.

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to the shooting.

Appellee was eventually arrested and went to [a] jury trial

before the Honorable James A. Lineberger, after which he

was convicted of third-degree murder, flight to avoid

prosecution, criminal conspiracy, and possession of an

instrument of crime. The Commonwealth’s theory was that

Appellee did not shoot the victim but had conspired [with

Tucker], was present at the shooting, and provided the

murder weapon [to Tucker]. At trial, the Commonwealth

presented the testimony of Houser and Shawn Clark

(“Clark”). Houser testified that two men, including Appellee,

had arrived at the barbershop with guns and that Johnson

was shot twice, though he did not know if both men shot

Johnson or if one of the attackers shot Johnson twice. The

Commonwealth also presented ballistics evidence that

proved that both shots that killed Johnson were fired from

the same gun [and that the shots both came from the side

of Johnson where Houser had testified that Tucker was

standing]. Clark testified that several weeks prior to

Johnson’s murder, Appellee had loaned Clark the same gun

that had been used to murder Johnson[, and testified that

he later returned the gun to Appellee], tying Appellee in

conspiracy to Johnson’s murder. [In closing argument, the

Commonwealth emphasized Appellee’s return of the gun to

Clark; specifically, the assistant district attorney stated that

the “gun that was handed out for use to [Clark] three weeks

before now demonstratively has been handed over for use

to … Tucker in this case.” (N.T. Trial, 11/12/98, at 144).]

Appellee appealed his conviction to the Pennsylvania

Superior Court, and his judgment of sentence was affirmed

on September 8, 2003. Appellee did not seek Allowance of

Appeal to the Pennsylvania Supreme Court. On January 8,

2020, [PCRA counsel] entered his appearance on Appellee’s

matter and filed a PCRA Petition on Appellee’s behalf. [The

PCRA] court found relevant questions existed which

necessitated an evidentiary hearing held on September 23,

2021 and September 27, 2021. At the evidentiary hearing

testimony was presented from witnesses Robert Nixon

(“Nixon”), private investigator Ronald Felder (“Felder”), and

Tucker. Further, as Clark had passed away two weeks after

submitting a sworn affidavit, his affidavit was admitted into

evidence and considered by [the PCRA] court.

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At the evidentiary hearing, Nixon testified that he had been

friends with both Appellee and Clark for decades and that,

in June of 2019, Clark and Nixon attended the same

barbeque where Clark told Nixon that Clark had testified

falsely against Appellee at trial.[3] Private Investigator

Felder testified regarding his efforts to speak with Houser

about what happened on the day Johnson was murdered.

Felder stated that when he met with Houser that Houser first

asked if he was going to be compensated for his time, asking

“what’s in it for me” and became rude and standoffish after

being told that no one would be compensating him for his

time. Felder then testified that, after informing Houser that

there was no compensation for providing information

regarding Appellee’s case, Houser voluntarily stated that

Appellee shot Johnson in the back of the head which

completely conflicted with Houser’s trial testimony. Tucker

testified to a variety of information, the most significant of

which being that Tucker himself shot and killed Johnson, not

Appellee, that Tucker had shot Johnson twice, and that

Houser was not outside when the shooting occurred and

____________________________________________

3 Specifically, Nixon testified, inter alia, that Clark approached him in June of

2019 and told Nixon that Appellee was incarcerated for something he did not

do because of Clark, and that it was really bothering Clark. Clark told Nixon

that police had taken Clark out of a youth correctional facility in the middle of

the night, handcuffed him, and took him to the police station. Clark said that

police told him that a firearm Clark had been charged with using in another

crime about a month before Johnson’s murder, a shooting on the 1500 block

of Gratz Street, was used in the Johnson murder, and that if Clark did not tell

police what they wanted to hear, then police would charge Clark in connection

with the murder. Clark was about 16 years old at the time, and police made

Clark sign a statement without a guardian or counsel present that implicated

Appellee. Police told Clark that he would receive favorable treatment if he

cooperated. Nixon further stated that prior to seeing Clark in June of 2019,

Nixon had not seen Clark in approximately 15 years, because shortly after

Appellee’s trial, Clark left the neighborhood. Nixon contacted Appellee’s wife

about this conversation shortly thereafter. (See PCRA Hearing, 9/23/21, at

16-35).

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thus could not have observed the shooting. [4]

On September 8, 2022, after the PCRA hearings and

numerous supporting briefs filed by [the Commonwealth]

and Appellee, this court vacated Appellee’s sentence and

ordered a new trial. On September 29, 2022, [the

Commonwealth] filed a Notice of Appeal to the Pennsylvania

Superior Court, followed by a [Rule] 1925(b) Statement

filed on October 19, 2022.

(PCRA Court Opinion, 12/27/22, at 1-3) (internal citations and footnotes

omitted).

On January 8, 2025, a three-judge panel of this Court reversed the order

granting PCRA relief, with one dissent. Appellee subsequently filed a petition

for reargument before an en banc panel of this Court. On March 21, 2025,

this Court granted the request for en banc reargument and withdrew the

January 8, 2025 decision. The parties have filed supplemental briefs in this

appeal.

The Commonwealth raises the following claim for our review:

Did the PCRA court err in granting a new trial in this

decades-old murder case based on an alleged newly-

discovered statement that: (1) was hearsay and not

admissible under the statement-against-interest exception;

and (2) did not even exonerate [Appellee]?

____________________________________________

4 Later in its opinion, the PCRA court makes clear that it did not award a new

trial based on either Felder’s testimony (concerning what Houser had said to

him) or Tucker’s testimony at the PCRA hearing. The PCRA court concluded

that testimony from Tucker at the PCRA hearing would not overcome the

newly-discovered facts exception to the PCRA time-bar. The PCRA court

further concluded that it did not consider Felder’s testimony about Houser as

a basis for granting relief to Appellee.

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(Commonwealth’s Brief at 4).

The scope and standard of review of an order granting PCRA relief are

well settled. “Our scope of review ‘is limited to the PCRA court’s findings and

evidence of record,’ viewed here in the light most favorable to [Appellee] as

the party who prevailed before the PCRA court.” Commonwealth v.

Robinson, 278 A.3d 336, 340 (Pa.Super. 2022) (quoting Commonwealth v.

E. Small, 662 Pa. 309, 330, 238 A.3d 1267, 1280 (2020)). “[O]ur standard

of review calls for us to determine whether the ruling of the PCRA court is

supported by the record and free of legal error.” Id. (quoting

Commonwealth v. Wharton, 669 Pa. 625, 634, 263 A.3d 561, 567 (2021)).

This Court grants great deference to the factual findings of the PCRA court if

the record contains any support for those findings. Commonwealth v.

Dozier, 208 A.3d 1101, 1103 (Pa.Super. 2019). “[W]e review the court’s

legal conclusions de novo.” Commonwealth v. Prater, 256 A.3d 1274, 1282

(Pa.Super. 2021).

Preliminarily, the timeliness of a PCRA petition is a jurisdictional

requisite. Commonwealth v. Zeigler, 148 A.3d 849, 853 (Pa.Super. 2016).

A PCRA petition, including a second or subsequent petition, shall be filed within

one year of the date the underlying judgment of sentence becomes final. 42

Pa.C.S.A. § 9545(b)(1). A judgment of sentence is final “at the conclusion of

direct review, including discretionary review in the Supreme Court of the

United States and the Supreme Court of Pennsylvania, or at the expiration of

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

exceptions to the PCRA time-bar allow very limited circumstances to excuse

the late filing of a petition; a petitioner must also assert the exception within

the time allowed under the statute. 42 Pa.C.S.A. § 9545(b)(1) and (b)(2).

To obtain merits review of a PCRA petition filed more than one year after

the judgment of sentence became final, the petitioner must allege and prove

at least one of the three timeliness exceptions:

(i) the failure to raise the claim previously was the

result of interference by government officials with the

presentation of the claim in violation of the Constitution or

laws of this Commonwealth or the Constitution or laws of

the United States;

(ii) 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; or

(iii) the right asserted is a constitutional right that was

recognized by the Supreme Court of the United States or

the Supreme Court of Pennsylvania after the time period

provided in this section and has been held by that court to

apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

This Court has explained:

The timeliness exception set forth in Section 9545(b)(1)(ii),

also known as the “newly-discovered fact” exception,

requires a petitioner to plead and prove: (1) [he] did not

know the fact(s) upon which [he] based [his] petition; and

(2) [he] could not have learned those fact(s) earlier by the

exercise of due diligence. Due diligence demands the

petitioner to take reasonable steps to protect [his] own

interests.… A petitioner must explain why [he] could not

have learned the new fact earlier with the exercise of due

diligence.

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Commonwealth v. Shiloh, 170 A.3d 553, 557-58 (Pa.Super. 2017) (internal

citations and footnote omitted).

Instantly, this Court affirmed Appellee’s judgment of sentence on

September 8, 2003. Thus, Appellee’s judgment of sentence became final on

October 8, 2003, after expiration of the time to file a petition for allowance of

appeal in our Supreme Court. See Pa.R.A.P. 1113(a) (allowing 30 days to file

petition for allowance of appeal in our Supreme Court). See also 42 Pa.C.S.A.

§ 9545(b)(3). Appellee had until October 8, 2004, to file a timely PCRA

petition. See 42 Pa.C.S.A. § 9545(b)(1). Appellee filed the current PCRA

petition on January 8, 2020, which is facially untimely.

To overcome the jurisdictional hurdle, Appellee invoked the “newly-

discovered facts” exception, claiming that he filed his PCRA petition within one

year of learning about Clark’s recantation, which Appellee maintains he could

not have discovered sooner with the exercise of due diligence. The PCRA court

evaluated Appellee’s invocation of the “newly-discovered facts” exception and

found that Clark’s proffered recantation testimony satisfied the requirements

of the exception. (See PCRA Court Opinion at 6, 10) (explaining that Clark

provided information to Nixon in May/June 2019; only possible way Appellee

could have learned about Clark’s recantation would have been for Clark or

detectives to reveal it prior or during trial; thus, it is clear Appellee could not

have learned these proffered new facts sooner with exercise of due diligence).

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The parties and the PCRA court agree that Clark’s recantation statement

satisfies the newly-discovered fact exception. 5 On this record, we agree that

Clark’s recantation was a new fact that Appellee could not have discovered

sooner with the exercise of due diligence. See 42 Pa.C.S.A. § 9545(b)(1)(ii).

See also Commonwealth v. Richardson, No. 1744 EDA 2019 (Pa.Super.

filed May 3, 2021) (unpublished memorandum) 6 (holding appellant satisfied

newly-discovered facts exception to time-bar where nothing in record

suggested that witness’s admission of deal for leniency in exchange for her

testimony or general recantation of trial testimony were facts previously

known to appellant; witness testified at PCRA hearing that she had never told

anyone about plea deal until that time; further, this Court would find it

untenable and unreasonable to impose standard on PCRA petitioners that

would require them to continually harass Commonwealth’s witness for

decades after conviction in order to satisfy due diligence requirement in event

that said witness eventually comes forward to recant or provide new

evidence).

Having found that Appellee’s claim satisfied the newly-discovered fact

exception to the PCRA time-bar, we turn to the merits of Appellee’s claim of

____________________________________________

5 The Commonwealth agreed that this evidence satisfied the newly-discovered

fact exception. (See Commonwealth’s Post-Hearing Brief, filed 6/23/22, at 5

n.3).

6 See Pa.R.A.P. 126(b) (explaining that we may rely on unpublished decisions

of this Court filed after May 1, 2019 for their persuasive value).

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after-discovered evidence. On appeal, the Commonwealth contends that the

PCRA court erred in granting relief because Clark’s statement was inadmissible

hearsay evidence. Specifically, the Commonwealth maintains that Clark’s

proffered recantation testimony was not admissible under the statement-

against-interest hearsay exception. The Commonwealth emphasizes that the

PCRA court acknowledged that Clark’s testimony, offered by way of Nixon,

was hearsay and would be inadmissible at a new trial unless an exception to

the rule against hearsay applied. The Commonwealth claims that the

statement-against-interest hearsay exception did not apply here because

Clark’s proffered statement would not expose him to perjury charges. The

Commonwealth maintains that Clark testified against Appellee in 1998, so the

five-year statute of limitations for perjury had long since expired. Further,

the Commonwealth contends that the PCRA court ignored that no

corroborating circumstances provided the indicia of trustworthiness of Clark’s

statement. To the contrary, the Commonwealth submits that Clark’s

statement made it clear that it “was the opposite of trustworthy.”

(Commonwealth’s Brief at 14). As such, the Commonwealth insists that the

PCRA court erred in finding Clark’s statement admissible. We disagree.

To obtain relief on a substantive claim of after-discovered evidence

under the PCRA once jurisdiction is established, a petitioner must demonstrate

both that the evidence would be producible and admissible at trial, and that

the four prongs of the after-discovered evidence test are satisfied.

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Commonwealth v. E.E. Small, 647 Pa. 423, 442, 189 A.3d 961, 972 (2018).

Turning first to whether evidence is producible and admissible, the

admissibility of a statement is an evidentiary question, which involves our

well-settled standard of review: “Questions concerning the admissibility of

evidence are within the sound discretion of the [PCRA] court, and this Court

will not reverse the [PCRA] court’s decision absent an abuse of that

discretion.” Commonwealth v. Fitzpatrick, 667 Pa. 447, 479, 255 A.3d

452, 471 (2021).

Hearsay is defined as an out of court statement that is offered into

evidence to prove the truth of the matter asserted. Pa.R.E. 801(c)(1)-(2).

Statements that meet the definition of hearsay are not admissible, unless they

fall within an established hearsay exception. Fitzpatrick, supra at 479, 255

A.3d at 471. Pennsylvania Rule of Evidence 804 sets forth exceptions to the

rule against hearsay for when the declarant is unavailable as a witness, and

states in pertinent part:

Rule 804. Exceptions to the Rule Against Hearsay—

When the Declarant is Unavailable as a Witness

(a) Criteria for Being Unavailable. A declarant is

considered to be unavailable as a witness if the declarant:

* * *

(4) cannot be present or testify at the trial or hearing

because of death…

* * *

(b) The Exceptions. The following are not excluded by the

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rule against hearsay if the declarant is unavailable as a

witness:

* * *

(3) Statement Against Interest. A statement that:

(A) a reasonable person in the declarant’s position

would have made only if the person believed it to be

true because, when made, it was so contrary to the

declarant’s proprietary or pecuniary interest or had so

great a tendency to invalidate the declarant’s claim

against someone else or to expose the declarant to

civil or criminal liability; and

(B) is supported by corroborating circumstances that

clearly indicate its trustworthiness, if it is offered in a

criminal case as one that tends to expose the

declarant to criminal liability.

Pa.R.E. 804(a)(4), (b)(3).

A statement against interest is often considered trustworthy if it subjects

the declarant to criminal liability and a reasonable person would not make the

claim unless it was true. Commonwealth v. Randolph, 582 Pa. 576, 587-

88, 873 A.2d 1277, 1284 (2005), cert. denied, 547 U.S. 1058, 126 S.Ct. 1659,

164 L.Ed.2d 402 (2006). “Before crediting as reliable a statement against

penal interest, the court must consider the declarant’s motive for making the

statement and whether the surrounding circumstances indicate the statement

is trustworthy.” Commonwealth v. Padillas, 997 A.2d 356, 365-66

(Pa.Super. 2010), appeal denied, 609 Pa. 687, 14 A.3d 826 (2010) (citing

Randolph, supra at 587–88, 873 A.2d at 1284).

Reliability is determined by referring to the circumstances in

which the declarant gave the statement, not by reference to

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other corroborating evidence presented at trial.

Commonwealth v. Robins, 571 Pa. 248, 812 A.2d 514

(2002). Among the factors a court might consider in

determining the reliability of inculpatory or exculpatory

statements are:

the circumstances under which the statements were

uttered, including the custodial/non-custodial aspect

of the setting and the identity of the listener; the

contents of the statement, including whether the

statements minimize the responsibility of the

declarant or spread or shift the blame; other possible

motivations of the declarant, including improper

motive such as to lie, curry favor, or distort the truth;

the nature and degree of the “against interest” aspect

of the statements, including the extent to which the

declarant apprehends that the making of the

statement is likely to actually subject him to criminal

liability; the circumstances or events that prompted

the statements, including whether they were made

with the encouragement or at the request of a

listener; the timing of the statement in relation to

events described; the declarant’s relationship to the

defendant; and any other factors bearing upon the

reliability of the statement at issue.

Id. at 267, 812 A.2d at 525–26.

Commonwealth v. Cascardo, 981 A.2d 245, 258 (Pa.Super. 2009), appeal

denied, 608 Pa. 652, 12 A.3d 750 (2010).

“Pennsylvania has long recognized that a witness’s admission to a crime

is considered reliable and, therefore, admissible because its ‘trustworthiness

is safeguarded by the improbability that a declarant would fabricate a

statement which is contrary to his own interests.’” Commonwealth v. Little,

246 A.3d 312, 324 (Pa.Super. 2021) (quoting Commonwealth v. Colon, 461

Pa. 577, 337 A.2d 554, 556 (1975)). Significantly, it is the possibility of

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prosecution, not the likelihood of prosecution, which renders a statement

against an individual’s interest, and which lends weight to its admission. Id.

(citing Commonwealth v. Statum, 769 A.2d 476, 480 (Pa.Super. 2001),

appeal denied, 566 Pa. 681, 784 A.2d 117 (2001)).

This Court recently addressed the issue of whether the statement

against interest exception applied in Commonwealth v. Franklin, 346 A.3d

812 (Pa.Super. 2025). There, this Court held that when an eyewitness

recanted his 1980 trial testimony in 2016, the statement did not qualify as a

statement against interest because the statute of limitations on perjury had

run. Id. at 223-24. The Court specifically explained that the witness could

not have been subject to either civil or criminal liability for stating that he had

lied “because the statute of limitations on perjury had run. Thus, the second

prong of the statement against interest exception to hearsay has not been

met.” Id. at 824. The Franklin Court further held that perjury at a first-

degree murder trial did not constitute a felony in connection with a murder,

which would otherwise have no limitations period for prosecution under 42

Pa.C.S.A. § 5551. Id. at 823 (explaining: “that the exception to the five-year

statute of limitations for felonies committed ‘in connection with’ a murder is

intended for felonies that occurred at the same time as a murder during the

same criminal episode; that occurred as part of the same criminal scheme(s),

plan(s), or transactions(s) as the murder; or that involved a common basis of

operative facts as the murder”).

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Instantly, the PCRA court explained its evidentiary ruling concerning

Clark’s affidavit and proffered testimony, by way of Nixon, 7 as follows:

Rule 804 takes applicable hearsay exceptions into account

when the declarant is unavailable, most significantly when

a declarant makes a statement that is so contrary to their

interests, including but not limited to exposing them to

criminal liability, that a reasonable person would not make

such a statement unless it was true. Clark’s affidavit

revealed that he could have faced criminal culpability

if he did not falsely testify against [Appellee] at trial,

information that clearly fits the criteria of Rule 804.

It is significant that Clark had passed away while visiting

Pittsburgh, Pennsylvania a month prior to the evidentiary

hearing, making him unavailable to testify. This would have

potentially barred his affidavit at the evidentiary hearing.

However, it is clear to this court that when Clark

proffered his initial affidavit, Clark was unaware that

he was going to pass away and that, if he had lived,

that he would potentially be subject to criminal

liability.9 As a natural consequence, this court determined

that Clark provided the information contained in his affidavit

under such circumstances that supported the truthfulness of

the information proffered.10

9 This court would have found differently as to the

veracity of the information provided by Clark if Clark

had provided such information while knowing that he

was going to pass away and thus avoid potential

criminal liability. For example, if Clark had been

suffering from a terminal illness and provided this

information, then it could be inferred that Clark had

no reason to be truthful in his affidavit because he

knew he would pass away before facing any criminal

liability for lying to police at Appellee’s trial.

10 It is important to note that Clark initially provided

his affidavit on August 5, 2019. Appellee, through his

____________________________________________

7 The PCRA court found Nixon’s testimony credible. (See PCRA Court Opinion

at 3 n.3, 17).

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attorney, filed the underlying PCRA Petition on

January 8, 2020. The First Judicial District was shut

down due to the COVID-19 Pandemic in March 2020.

Clark could not have predicted that a global pandemic

would cause delays and prevent Clark from testifying

prior to his passing. It is evident that when Clark

provided his affidavit that not only was the

information contained within against Clark’s own

interest but that Clark had no way of knowing that the

COVID-19 Pandemic would delay the evidentiary

hearing from occurring until Clark had passed away.

This court determined that these circumstances

sufficiently bolstered the credibility of the information

contained within Clark’s affidavit for it to be

considered.

(PCRA Court Opinion at 16) (internal citations omitted) (emphasis added).

The PCRA court further explained:

Clark’s affidavit made several facts clear. Clark, at the age

of 17, had already been charged and sentenced for firearms

offenses. He was at a boot camp known as Vision Quest

when homicide detectives picked him up and questioned him

about Appellee’s criminal matter. Clark also stated that

police told him that the gun Clark used in his own

incident was used to kill Johnson and that, if Clark did

not testify against Appellee at trial, that Clark would

be charged with murder. Taken to be accurate, it

becomes evident that Clark, in his affidavit where he stated

that he never received a firearm from Appellee, was drawing

a more direct link between himself, Tucker, and the firearm

used to kill Johnson. At trial, Clark testified that the murder

weapon went from himself to Appellee, after which it is

apparent that the murder weapon went from Appellee to

Tucker. This separated Clark from Johnson’s murder.

However, in Clark’s affidavit, Clark exonerates Appellee as

the individual who controlled and provided the murder

weapon, in essence stating that the murder weapon went

directly from Clark to Tucker. This removes the degree

of separation that protected Clark from liability for

Johnson’s murder and would likely result in Clark

facing culpability for providing the weapon. As a

natural consequence of this affidavit, Clark would no longer

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be separated from Johnson’s murder by a third party. This

would absolutely be a statement against Clark’s own

interests and, ergo, adds reliability to Clark’s affidavit.

(Id. at 12) (emphasis added).

On this record, we agree with the PCRA court’s analysis that the

statement against interest hearsay exception was applicable. Clark was

unavailable to testify at the PCRA hearing due to his death a year earlier.

However, Clark provided the information in his affidavit under circumstances

that supported the truthfulness of the information proffered. Specifically,

based on the circumstances surrounding Clark’s trial testimony, 8 the record

____________________________________________

8 The PCRA court expressly considered the following circumstances:

As stated, Clark was questioned by police in this matter

when he was seventeen years old. Clark was taken by

homicide detectives from his boot camp program and

questioned regarding Johnson’s murder. Clark was

informed that Appellee had control over firearms and that

refusing to testify against Appellee could have resulted in

Clark facing murder charges. This sort of pressure

understandably strengthened Clark’s motive to testify

falsely against Appellee at trial as Clark had just been

convicted and was serving a sentence for an unrelated

firearms offense. Based on these factors, even if this court

felt that Clark did not prove that he was the victim of police

misconduct, having heard the testimony this court

determined that there was sufficient information presented

in Clark’s affidavit to prove that Clark was scared enough to

have testified falsely against Appellee that it was the same

gun used to murder Johnson in order to avoid facing any

further consequences regarding his own firearms violations.

Clark was a juvenile serving time for firearms violations and

was understandably concerned about facing more serious

charges as stated in his affidavit. Consequently, this court

(Footnote Continued Next Page)

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reflects that when Clark provided his recantation testimony, Clark believed

that he could have been implicated in Johnson’s murder for having provided

Tucker with the murder weapon. See Little, supra.

Unlike the facts in Franklin, supra, here, Clark’s recantation did not

solely subject him to perjury charges, which would have been barred by the

statute of limitations. Rather, as the PCRA court makes clear, Clark’s

recantation might have subjected him to charges directly related to the

murder of Johnson. Indeed, according to Clark, officers threatened as much

when they questioned him initially, informing Clark that because the gun that

Clark had used in a prior crime was used to kill Johnson, that police would

charge him with murder if he did not testify against Appellee. (See PCRA

Court Opinion at 12).

Pennsylvania law defines an accomplice as a person who, “with the

intent of promoting or facilitating the commission of the offense” either

“solicits such other person to commit it” or “aids or agrees or attempts to aid

such other person in planning or committing it.” 18 Pa.C.S.A. § 306(c)(1).

Clark’s recantation removed Appellee from the chain of possession of the

firearm, such that the evidence could then reasonably suggest that Clark

____________________________________________

determined that the evidence presented by Appellee was

credible and was sufficient to cast doubt on Clark’s trial

testimony.

(PCRA Court Opinion at 7-8).

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provided the gun to Tucker, who used it to murder Johnson. Hence, Clark

could possibly face criminal culpability for providing the murder weapon. As

there is no statute of limitations for charges of being an accomplice to murder,

even though Clark’s statement recanted testimony made more than 20 years

prior, the recantation statement “when made” was contrary to Clark’s

pecuniary interests. Pa.R.E. 804(b)(3)(A).

Therefore, because there could be a “possibility of criminal

prosecution” as an accomplice for Clark providing the murder weapon, we

agree with the PCRA court that Clark’s recantation testimony satisfies the

second prong of the statement against interest hearsay exception. Little,

supra at 324 (emphasis added). Accordingly, on this record, we cannot say

that the PCRA court abused its discretion in deciding that Clark’s statement

satisfied the statement-against-interest hearsay exception, such that this

evidence would be producible and admissible at a new trial. See Pa.R.E.

804(b)(3); E.E. Small, supra; Randolph, supra; Padillas, supra.

We turn next to the second part of the Commonwealth’s claim, that the

PCRA court erred in determining that Clark’s statement satisfied the PCRA’s

requirements for after-discovered evidence. Specifically, the Commonwealth

argues that Clark’s proffered statement would not have altered the outcome

of trial. The Commonwealth stresses that Clark’s trial testimony—which

implicated only how and why Appellee could have had access to the murder

weapon—would not exculpate Appellee or negate the eyewitness testimony

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that Appellee pointed a gun at Johnson seconds before the murder. The

Commonwealth highlights that co-defendant Tucker, not Appellee, was in

possession of the gun at issue on the day of the shooting. The Commonwealth

suggests that the evidence against Appellee at trial was straightforward and

compelling. Specifically, the Commonwealth relies on eyewitness testimony

from Houser, who testified that he saw Appellee and someone else step out

of a vehicle each armed with guns and point their guns at the victim. The

Commonwealth emphasizes that its theory at trial was that Tucker was the

actual shooter responsible for Johnson’s death. The Commonwealth insists

that Clark’s proffered recantation testimony was far from exculpatory, where

Clark’s trial testimony had merely established Appellee’s access to a gun that

Appellee did not even use in the murder. The Commonwealth highlights that

Clark was not present at the shooting and did not testify to any details about

the murder or Appellee’s involvement in the killing.

In other words, the Commonwealth avers that Clark’s recantation

testimony did nothing more than recant Clark’s prior testimony that he had

returned a gun to Appellee; but it did not rebut eyewitness testimony that

Appellee was present at the crime scene with a gun. Ultimately, the

Commonwealth concludes that the PCRA court’s award of a new trial was

erroneous, and this Court must reverse. We disagree.

It is well settled that when considering a claim of after-discovered

evidence involving recanted testimony, “an appellate court may not interfere

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with the … granting of a new trial where the sole ground is the alleged

recantation of state witnesses unless there has been a clear abuse of

discretion.” Commonwealth v. Medina, 92 A.3d 1210, 1219 (Pa.Super.

2014) (en banc), appeal dismissed as improvidently granted, 636 Pa. 77, 140

A.3d 675 (2016) (quoting Commonwealth v. McCracken, 540 Pa. 541, 549,

659 A.2d 541, 545 (1995)) (brackets in original).

“[W]e have emphasized that, when addressing an after-discovered

evidence claim premised on recantation testimony, ‘the PCRA court must, in

the first instance, assess the credibility and significance of the recantation in

light of the evidence as a whole.’” E.E. Small, supra at 450-51, 189 A.3d at

977 (quoting Commonwealth v. D’Amato, 579 Pa. 490, 523, 856 A.2d 806,

825 (2004)). “The deference normally due to the findings of the [PCRA] court

is accentuated where what is involved is recantation testimony.”

Commonwealth v. Loner, 836 A.2d 125, 141 (Pa.Super. 2003) (en banc),

appeal denied, 578 Pa. 699, 852 A.2d 311 (2004). “The PCRA court’s

credibility determinations, when supported by the record, are binding on this

Court.” Commonwealth v. Spotz, 610 Pa. 17, 43-44, 18 A.3d 244, 259

(2011) (citation omitted).

To obtain relief on a substantive claim of after-discovered evidence

under the PCRA, a petitioner must demonstrate: (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 merely corroborative or

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cumulative; (3) the evidence is not being used solely to impeach credibility;

and (4) the evidence would likely result in a different verdict if a new trial

were granted. Commonwealth v. Pagan, 597 Pa. 69, 106, 950 A.2d 270,

292 (2008), cert. denied, 555 U.S. 1198, 129 S.Ct. 1378, 173 L.Ed.2d 633

(2009). See also 42 Pa.C.S.A. § 9543(a)(2)(vi) (discussing claim of after

discovered evidence as cognizable under PCRA; petitioner must establish

“unavailability at 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”).

In this case, the Commonwealth argues only that Appellee could not

satisfy the fourth prong,9 claiming that the proffered evidence would not likely

result in a different verdict if a new trial were granted. As this Court has

explained:

When evaluating whether a petitioner has established by a

preponderance of the evidence that the after-discovered

evidence would likely produce a different verdict, a court

must examine the persuasiveness of the new evidence

assuming the fact-finder believes it. [Commonwealth v.

Fiore, 780 A.2d 704, 713-14 (Pa.Super. 2001), appeal

granted, 568 Pa. 715, 797 A.2d 910 (2002), appeal

dismissed, 572 Pa. 568, 817 A.2d 1080 (2003)]. This

inquiry includes evaluations of (1) the nature of the new

evidence; (2) whether, and to what extent, the new

evidence is consistent or inconsistent with other trial

____________________________________________

9 Upon review, we similarly conclude that Appellee’s claim satisfies the first

three elements. There is no question that the evidence was discovered after

trial and could not have been discovered sooner. Further, Clark’s statement

is not merely cumulative or corroborative and is not being used to impeach

credibility. See Pagan, supra.

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testimony; and (3) whether, and to what extent, the new

evidence is consistent or inconsistent with documentary

evidence. Id.

Commonwealth v. Payne, 210 A.3d 299, 302 (Pa.Super. 2019) (en banc),

appeal denied, 655 Pa. 591, 218 A.3d 1201 (2019).

Our Supreme Court has explained the extent of review required for an

after discovered evidence claim as follows:

Several case-specific factors inform the analysis of whether

the petitioner has established by a preponderance of the

evidence that the after-discovered facts would likely

produce a different result. In [Commonwealth v. Bulted,

443 Pa. 422, 279 A.2d 158, 159-62 (1971),] for example,

the Court reviewed all of the trial evidence, as well as the

Commonwealth’s closing argument, in order to assess the

impact of the after-discovered evidence. In

Commonwealth v. Mount, [435 Pa. 419, 257 A.2d 578,

582 (1969),] the Court analyzed the impact of the after-

discovered evidence against the Commonwealth’s theory of

the case. In Commonwealth v. Cooney, [444 Pa. 416,

282 A.2d 29, 31 (1971),] the Court held that after-

discovered evidence entitled the petitioner to relief because

it supported and confirmed the petitioner’s trial testimony

and rendered the defense theory much more plausible.

This precedent demonstrates that the only way to assess

the likelihood that after-discovered evidence will produce a

different result is to review the totality of all of the trial

circumstances, including, but not limited to, the trial

evidence and the parties’ closing arguments. When the

petitioner establishes by a preponderance of the evidence

that the new facts are “of such a nature and character that

a different verdict will likely result if a new trial is granted,”

then the petitioner is entitled to relief. [Commonwealth

v. Valderrama, 479 Pa. 500, 388 A.2d 1042, 1045 (1978)

(holding that the after-discovered evidence provided

substantial support for the defendant’s alibi defense and

that a different verdict would likely result)].

Commonwealth v. Murchison, ___ Pa. ___, ___, 328 A.3d 5, 17 (2024)

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(footnotes omitted).

“Finally, we note that the Supreme Court does not require that a

petitioner establish that the after-discovered evidence proves his innocence

beyond a reasonable doubt.” Payne, supra at 304 (citations omitted).

“Rather, a petitioner must only establish by a preponderance of the evidence

that the exculpatory after-discovered evidence ‘would have changed the

outcome of the trial if it had been introduced.’ 42 Pa.C.S.[A.] §

9543(a)(2)(vi).” Id.

In Fiore, supra, this Court considered whether a witness’s recantation

testimony would likely compel a different verdict. The witness was allegedly

the middleman in a murder-for-hire conspiracy, and provided the link between

the appellant, the victim, and the men hired to kill the victim. There, the

PCRA court found that the witness’s testimony would not likely have changed

the outcome of trial. Nevertheless, on appeal, this Court concluded that the

witness’s testimony contradicted the Commonwealth’s case-in-chief and,

because the witness provided the links of the conspiracy, his testimony, if

believed by a jury, would likely have changed the outcome of the trial. See

id. at 714. Therefore, this Court reversed the order of the PCRA court and

remanded for a new trial.

This Court also considered whether evidence of a witness’s recantation

would likely compel a different verdict in Medina, supra. There, the

petitioner was convicted of murder based on the testimony of two witnesses.

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One witness recanted and claimed that a detective had coerced his testimony,

and the petitioner sought relief under the PCRA based on after-discovered

evidence. The PCRA court found the testimony of the recanting witness

credible and granted petitioner a new trial. See id. at 1216. On appeal, this

Court reasoned that the recantation testimony not only repudiated the

witness’s initial testimony, but also undermined the credibility of the other

witness who, the Court noted “ha[d] well-documented credibility issues.” Id.

at 1220. This Court explained that in a new trial, if the jury believed the

recantation witness’s testimony, the “Commonwealth would be left with shaky

circumstantial proof.” Id. Accordingly, this Court explained that because the

PCRA court found the recantation testimony credible and the eyewitness’s

PCRA testimony incredible, “the PCRA court did not abuse its discretion in

concluding that there was a strong likelihood that a different verdict would be

reached upon retrial.” Id. (footnote omitted).

Here, the PCRA court explained in its opinion that it found Clark credible

and that his recantation was significant in light of the evidence as a whole.

The court explained that

in Clark’s affidavit, Clark exonerates Appellee as the

individual who controlled and provided the murder weapon,

in essence stating that the murder weapon went directly

from Clark to Tucker. This removes the degree of

separation that protected Clark from liability for Johnson’s

murder and would likely result in Clark facing culpability for

providing the weapon.

(PCRA Court Opinion at 12).

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The PCRA court further concluded that Clark’s recantation would likely

change the outcome of trial, reasoning:

Critical to this was the role Clark played at trial, testifying

that he received the same firearm used in the murder from

Appellee a month before Johnson’s murder took place. This

testimony was designed to paint Appellee as someone who

had control over firearms, lent firearms to people, and lent

the very same firearm used in the murder to Clark, a fact

that was crucial to convicting Appellee at a trial where it had

been determined that Appellee did not personally shoot

Johnson. Appellee’s mere presence at the scene of the

shooting with nothing more would likely have been

insufficient for a jury to have determined that Appellee had

conspired in and was therefore guilty of Johnson’s murder.

Consequently, testimony that Appellee had control over the

firearm used in Johnson’s murder and another shooting was

critical information in the jury’s determination of Appellee’s

guilt.

* * *

[T]he effect of Clark’s affidavit would require that Houser’s

trial testimony stand on its own merit. At trial, the

Commonwealth used Houser’s testimony to prove that

Appellee was present at Johnson’s murder. However,

Houser testified that he did not see exactly who shot

Johnson. Clark’s trial testimony, therefore, was crucial to

tie Appellee to the murder: through ballistic evidence at

trial, it was proven that both shots that killed Johnson came

from Tucker’s gun. Consequently, Appellee was not directly

involved in murdering Johnson. Clark’s testimony

provided the critical link between Appellee and

Johnson’s murder. Without Clark, the Commonwealth’s

sole witness would have been Houser, and Houser neither

saw who shot Johnson nor tied Appellee to the weapon used

in Johnson’s murder. By himself, Houser’s testimony

would have likely been insufficient to prove

Appellee’s guilt at trial.

(Id. at 7) (emphasis added). The PCRA court continued:

Clark’s affidavit essentially alleged that homicide detectives

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told Clark to testify in such a way that tied Appellee to

Johnson’s death or else Clark himself would be facing

murder charges. Such information, if believed at Appellee’s

trial, would be convincing evidence that Clark was coerced

into falsely testifying against Appellee, namely that Appellee

had control over and loaned to Clark the same gun that

would later be used to murder Johnson. This coercion, if

believed by the jury, could have cast enough reasonable

doubt on Appellee’s matter for the jury to have found

Appellee not guilty of having any involvement in Johnson’s

murder. The Commonwealth’s theory of Appellee’s case

was not that Appellee himself shot Johnson, but rather that

Appellee was present at the scene with Tucker, who

admittedly did shoot Johnson, and that Appellee conspired

with Tucker to murder Johnson. Part of this theory was

that Appellee provided the murder weapon, hence

why Clark’s testimony was crucial to their case of

proving Appellee’s participation in a conspiracy. If

Clark had not testified to such information at trial or

if Clark’s affidavit had been available at trial, it is clear

that the outcome of Appellee’s trial would potentially

have been very different.

(Id. at 13-14) (emphasis added).

Similar to the recanted testimony in Fiore, Clark’s trial testimony

concerning the murder weapon played a central role in the Commonwealth’s

case-in-chief. At Appellee’s trial, the Commonwealth relied on Clark’s trial

testimony to provide the connection between Appellee and the gun used in

the murder. The Commonwealth argued that although Appellee was not the

shooter, Appellee had provided the gun (which Clark testified he returned to

Appellee) that Tucker used to shoot Johnson. During the Commonwealth’s

opening statement, the prosecutor explained that it would present evidence

that one of the two guns at the scene left behind two shell casings, and that

the same weapon was used by Shawn Clark in a shooting on Gratz Street

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three weeks earlier. (See N.T. Trial, 11/6/98, at 24-25). The Commonwealth

emphasized that Clark had obtained the weapon from Appellee, and that after

the Gratz Street shooting, Clark returned the gun to Appellee. (See id. at

25). During trial, the Commonwealth introduced Clark’s testimony, where he

stated that Appellee had given him a gun on the day of the Gratz Street

shooting, and that Clark returned the gun to Appellee after that shooting. (Id.

at 96-98). In the prosecutor’s closing remarks, he emphasized the importance

of Clark’s having returned the gun to Appellee, explaining that the fact that

the gun was returned formed a basis for the jury to conclude that it was

Appellee’s gun to handout. (See N.T. Trial, 11/12/98, at 127). The prosecutor

further stated that although the death bullets came from Tucker, the “gun that

was handed out for use to [Clark] three weeks before now demonstratively

has been handed over for use to … Tucker in this case,” and that there was

direct evidence that the gun fired by Tucker belonged to Appellee. (See id.

at 144-45).

Ultimately, Clark’s recantation of that testimony removes from the

Commonwealth’s theory of the case any evidence that Appellee had

possession of the firearm prior to the shooting. As noted, the PCRA court

found Clark’s recantation testimony to be credible, and we give such credibility

determinations great deference. See Spotz, supra; Medina, supra. We

emphasize that this Court may not interfere with the PCRA court’s award of a

new trial where the sole ground is the recantation of a state witness, unless

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there has been a clear abuse of discretion. See id. As we discern no clear

abuse of discretion on the part of the PCRA court in making its credibility

determination, this Court is bound to accept it.

Additionally, viewing the trial evidence as a whole and considering the

Commonwealth’s theory of the case and the arguments of the parties, the

record supports the PCRA court’s analysis that Appellee has established by a

preponderance of the evidence that the after-discovered fact of Clark’s

recantation would likely compel a different verdict upon retrial. See

Murchison, supra. Accordingly, we affirm the order of the PCRA court

granting Appellee a new trial based on the after-discovered evidence of Clark’s

recantation.

Order affirmed.

Judge Sullivan notes dissent.

Date: 4/17/2026

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