The opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAMIEN CLAGON :
:
Appellant : No. 583 MDA 2021
Appeal from the Order Entered March 5, 2021
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0004045-2003
BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED: FEBRUARY 7, 2022
Damien Clagon appeals from the order dismissing as untimely his Post
Conviction Relief Act (“PCRA”) petition, 42 Pa.C.S.A. §§ 9541-9546. We
affirm.
In November 2004, a jury found Clagon guilty of first-degree murder
and firearms not to be carried without a license. 18 Pa.C.S.A. §§ 2501(a) and
6106(a). The trial court set forth the following factual history:
The evidence at trial established that on March 28, 2003,
between 2:00 and 2:30 a.m., a drug addict by the name of
Joseph Meikle was walking the streets of Lancaster City in
search of drugs. He came across an acquaintance by the
name of Robert Travers, nicknamed “Newport.” Travers
testified that he, too, is a drug addict and that he and Meikle
decided to combine their money to make one purchase of
cocaine to share.
As the two addicts approached the intersection of East End
Avenue and South Marshall Street, they encountered a red
Ford F-150 pickup truck. Travers recognized the driver as a
street-level drug dealer known as “D” and “D-Cert” who had
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once dated his cousin. “D” was talking on his cell phone in
his truck and then suddenly turned his attention to Meikle.
“D” became angry and started shouting, “what the f*** you
looking at?” He repeated this question two or three more
times. “D” then reached into the center console of the truck,
pulled out a .357 revolver and exited his truck. Travers was
yelling, “no, no” as “D” walked around the front of his truck,
pointed his gun at Meikle and fired it, striking Meikle in the
chest. Travers fled the scene and Meikle collapsed on the
sidewalk and eventually died from the gunshot wound to his
chest. The individual known as “D” and “D-Cert” was later
identified as [Clagon].
John Calixto, a friend of [Clagon’s] and a drug dealer, heard
the gun shot about a block away and called [Clagon] on his
cell. [Clagon] confirmed that he did the shooting and asked
Calixto to pick him up in the parking lot of the American Bar
and Grill. When [Clagon] got into Calixto’s car, he was
wearing a gray hooded sweatshirt and there was a gun
protruding from his pocket. The two men drove around
Lancaster City and eventually ended up at the Sixth Ward
Park. As they were driving, [Clagon] detailed the shooting
for Calixto.
After exiting the car, [Clagon] was last seen by Calixto
walking towards the Turkey Hill convenience store at the
corner of East Ross Street and New Holland Avenue. At 3:08
a.m., the video surveillance camera at the Turkey Hill shows
[Clagon] walking into the store wearing the same gray
hooded sweatshirt that Calixto said he was wearing when he
picked him up shortly after the shooting.
Calixto testified that the next day he ran into [Clagon] on
East End Avenue outside the home of Brian Pearson,
[Clagon’s] supplier. At that time, [Clagon] told Pearson and
Calixto that he had to “stay low,” “get his money together”
and get out of town.
Jere Gilgore also testified for the Commonwealth. Gilgore
was a crack addict who was letting [Clagon] live with him
and drive his F-150 truck in exchange for drugs. At the time
of this incident, Gilgore and his father owned a fabricating
business near the American Bar and Grill in Lancaster City.
Gilgore’s apartment was in the fabrication building. Gilgore
testified that the evening after the shooting, [Clagon] threw
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the keys to his truck on the table and told Gilgore that he
([Clagon]) could not drive the truck anymore. Several hours
later, [Clagon] returned to the apartment and told Gilgore
about the shooting. He also returned Gilgore’s gun, a Rossi
.357 snub-nose two-and-a-half inch barrel, that had been
used to kill Meikle. The day after the shooting, Gilgore
rented a vehicle for [Clagon] and [Clagon] left town.
[Clagon] returned to Lancaster on March 31, 2003, and
spent the night at the Red Carpet Inn with his girlfriend,
Kristen Mitchell. At approximately 2:30 a.m. on the morning
of April 1, 2003, [Clagon] was arrested in his room on
charges of receiving stolen property. He was taken to the
Lancaster City Bureau of Police and processed. After
receiving his Miranda5 warnings, [Clagon] was interviewed
by Detectives Kent Switzer and Jarrod Berkihiser. During
this interview, [Clagon] stated that he had left for Brooklyn,
New York, on Wednesday, March 26th and had not returned
to Lancaster until Monday, March 31, 2003. Therefore,
[Clagon] claimed he could not have been involved in the
Meikle murder in the early morning hours of March 28th.
5 Miranda v. Arizona, 384 U.S. 436 (1966).
...
[Clagon] took the stand in his own defense during the trial
of his case. He admitted lying to the police about when he
went to New York. In fact, he claimed that between 2:30
and 3:00 in the early morning of March 28th, he was in
Lancaster meeting drug customers first at the corner of
Lemon and Lime Streets and next at the McDonald’s near
McCaskey High School at the corner of Franklin Street and
New Holland Avenue. After his drug transaction at the
McDonald’s, [Clagon] testified that he started walking to the
Turkey Hill convenience store at the corner of East Ross
Street and New Holland Avenue. Halfway there, [Clagon]
encountered Calixto, whom [Clagon] described as his
competitor, and had words with him about the drug deal at
McCaskey. [Clagon] then entered the convenience store
where he was captured on videotape by the store’s
surveillance system.
[Clagon] denied being at the corner of South Marshall Street
and East End Avenue on Friday, March 28th at 2:30 a.m. He
denied knowing an individual by the name of Joseph Meikle.
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He denied having a motive to shoot Joseph Meikle and he
denied shooting him. [Clagon] further testified that because
his drug supply was running low, he had Gilgore rent him a
car on Saturday, March 29, 2003, so he could drive to New
York to hook up with his supplier. Circumstances prevented
[Clagon] from connecting with his supplier so he called his
girlfriend and invited her to join him in New York. On
Monday, March 31st, [Clagon] and his girlfriend returned to
Lancaster and got a room at the Red Carpet Inn, where he
was arrested early the next morning.
Trial Court Opinion, filed Apr. 19, 2005, at 3-7 (citations to record omitted).1
In January 2005, the trial court sentenced Clagon to life imprisonment
for the murder conviction and one to two years’ imprisonment for the firearms
conviction. This Court affirmed the judgment of sentence in November 2005
and the Pennsylvania Supreme Court denied Clagon’s petition for allowance
of appeal in June 2006.
Clagon has filed numerous PCRA petitions, including petitions where he
claimed a trial witness, Trevor Bailey, fabricated his testimony. See, e.g.,
Commonwealth v. Clagon, Order, filed July 6, 2015, at n.1 (rejecting
Clagon’s argument that the Commonwealth offered the “unsubstantiated
perjured testimony” of Bailey); Commonwealth v. Clagon, Order, filed Oct.
28, 2015, at n.1 (rejecting claim the Commonwealth offered “[b]artered,
biasedly, manufactured, perjured testimony” of Bailey); Commonwealth v.
Clagon, 1925(a) Opinion, filed Aug. 8, 2016, at 6-7 (finding Clagon failed to
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1 The trial transcripts are not included in the certified record in this appeal.
However, the PCRA court and this Court have used this summary, or similar
summaries, in prior opinions and memoranda. See, e.g., Commonwealth v.
Clagon, Memorandum, filed Apr. 11, 2012, at 1-4 (quoting PCRA Ct. Op., filed
Dec. 22, 2010, at 4-8).
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prove the new facts related to Bailey’s testimony were previously unknown to
him or his failure to know them was due to government interference and
finding any alleged concealment did not impact the verdict). At trial, Bailey
testified for the Commonwealth regarding conversations he had with Clagon
where Clagon spoke about the murder.
In November 2020, Clagon filed the subject PCRA petition, titled
“Petition to Revisit Per Unfounded Offense and Unlawful Confinements.” He
claims the Commonwealth knowingly used false testimony to convict him. The
court issued notice of its intent to dismiss the petition pursuant to
Pennsylvania Rule of Criminal Procedure 907. Clagon filed a response. He
attached to his response to the notice of intent to dismiss a printout of what
he claims is an email from Bailey. The “From” line states, “Bailey, Trevor” and
the Subject is “Dee,” which is Clagon’s nickname. Response to Rule 907
Notice, 12/21/20, at Exh.2 In the purported email, Bailey states he “lied at
your trial” and “made false statements” about what he knew and what Clagon
told him. Id. The document states that Clagon3 never told Bailey that he
“committed a crime” and “actually told [him] several times . . . that [he] didn’t
kill dude and that that crack head dude was lying . . . to get out of his charges
for robbing them stores.” Id. The document also states that if Clagon needs
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2 The document also lists a web address –
lwebapp/jsps/cn/dashboard/dashboard.cn.
3 The body of the email does not state Clagon’s name, but, based on the
context, we infer that the writer of the document is referring to Clagon.
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him to help, “please let [him] know and [he is] willing to help any way [he]
can.” Id. There is a notary signature and stamp at the bottom and a separate
signature, but not Trevor Bailey’s signature.
In March 2021, the court dismissed the petition as untimely. After being
granted leave to file an appeal nunc pro tunc, Clagon timely filed an appeal.
Clagon raises the following issues on appeal, which we repeat verbatim:
I) Did the lower court not err and abuse its discretion when
it inaccurately, and biasedly disregarded timely presented
information of after discovered false testimony relied upon
for conviction in the instant case, based on their unproven,
personal “hunch” that said after discovered evidence may
have been “doctored” [simply because it was presented in
email format] . . . without a prior hearing to discern the
credibility of presented facts?
II) Did the PCRA court not err and abuse its discretion when
it asserted the “factual impossibility” that Appellant had
previously argued after discovered admitted false
testimony, that such had already been “made clear” to the
jury. . ., and therefore was not presenting after discovered
evidence, without exercising a hearing to properly discern
as much?
III) Did the PCRA court not err and abuse its discretion when
biasedly reclassifying Appellant’s contentions, inaccurately
asserting Appellant was “arguing recanted testimony”
despite aft. disc. evi. specifying fabricated, false testimony
was knowingly exhibited to the jury; relied upon for
conviction? One cannot recant; “retell” an admittedly
fabricated tale, can they?
IV) Did the PCRA court not err and abuse its discretion by
disregarding facts [of confession] in aft. disc. evi., biasedly
asserting that it somehow knows what [Commonwealth jail-
house informant] Bailey would do (confess to); know what
Bailey would do in the face of a perjury charge despite aft.
disc. evi. clearly stating Bailey is willing to help in any way
that he could?
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V) Did the lower court not err and abuse its discretion when
it inaccurately and falsely stated after discovered evidence;
email lacked an address, despite the fact that the upper left
hand corner of said (included) email displays address;
website, email network, and provider? In turn, the lower
court also falsely contended that no information existed
which states Bailey sent said email, despite said email
containing all the necessary information to verify; track
sender of email, and it prominently stating on the face of
said email that Bailey is, in fact, the sender?
VI) Did the lower court not err and abuse its discretion when
it falsely asserted Appellant failed to contend his innocence,
despite documentation presented to the lower court
explaining how without Baileys false offering no information
of an offense of murder existed in record of the instant trial?
It is elementary that this is the reason the lower court stated
that “even without Bailey there still existed an offense of
murder” (albeit false)? See also, summary of argument,
infra.
VII) Lastly, did the lower court not err and abuse its
discretion when falsely asserting that Appellant “cannot”
show that even if Baileys falsities were known [and
believed] such still would not have changed the result of
conviction for murder in the instant case. . . without the
benefit of a hearing, and despite facts presented to the
lower court [in aft. dis. evi. documentation] displaying that
an offense of murder would be lawfully unfounded upon the
proper omission of Baileys admittedly false, insidious
offering? See VII, infra.
Clagon’s Br. at 2-3 (brackets in original).
We review an order denying a PCRA petition to determine “whether the
record supports the PCRA court’s determination, and whether the PCRA court’s
determination is free of legal error.” Commonwealth v. Phillips, 31 A.3d
317, 319 (Pa.Super. 2011). A timely petition is one that a petitioner has filed
within one year from the judgment of sentence becoming final. A judgment of
sentence is final “at the conclusion of direct review, including discretionary
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review in the Supreme Court of the United States and the Supreme Court of
Pennsylvania, or at the expiration of time for seeking the review.” 42 Pa.C.S.A.
§ 9545(b)(3). After the one-year deadline expires, a petitioner must plead
and prove at least one of the time-bar exceptions. These exceptions are:
(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.
Id. at § 9545(b)(1)(i)-(iii). A petitioner must raise the claim within one year
from the time the claim could have been raised. Id. at § 9545(b)(2). To qualify
for the new fact exception, “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.” Commonwealth v. Burton,
158 A.3d 618, 629 (Pa. 2017).
Where a petitioner seeks an evidentiary hearing, the petition must
include “a certification signed by each intended witness stating the witness’s
name, address, date of birth and substance of testimony and shall include any
documents material to that witness’s testimony,” or “a certification, signed by
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the petitioner or counsel, stating the witness’s name, address, date of birth
and substance of testimony.” 42 Pa.C.S.A. § 9545(d)(i)-(ii). Failure to
substantially comply with the certification requirements renders the proposed
witness’s testimony inadmissible. Id. at § 9545(d)(1)(iii).
Clagon’s judgment of sentence became final in September 2006, 90
days after the Pennsylvania Supreme Court denied his petition for allowance
of appeal and when his time to seek certiorari from the Unites States Supreme
Court expired. See U.S.Sup.Ct.R. 13 (allowing 90 days to file a petition for
writ of certiorari with the United States Supreme Court). Therefore, he had
until September 2007 to file a timely PCRA petition and his petition, filed in
November 2020, is untimely.
Clagon claims he satisfied the new fact exception. See 42 Pa.C.S.A. §
9545(b)(1)(ii). He argues the court abused its discretion by discrediting the
email, which he alleges contained all necessary information to verify its
authenticity. He claims the PCRA court should have held an evidentiary
hearing to verify its authenticity or appointed counsel to assist him in
preparing an affidavit. Clagon claims he attempted to draft the evidence in
affidavit form but was disallowed. He claims that in the past he had only
“surmised” that Bailey may have offered false testimony. In contrast, this time
he had “proof.” Clagon’s Br. at 7. He argues it was error for the court to claim
it knew what Bailey would do in relation to a perjury charge, noting that the
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email states Bailey would be willing to help in any way.4 He further claims that
without Bailey’s testimony at trial, there would have been know information
that Clagon had previous knowledge of the victim or a plan to harm him.5
Here, the PCRA court concluded Clagon failed to establish the new fact
exception, as he presented only an unauthenticated email and made no
assertion Bailey would be available and willing to testify:
The new evidence Clagon presents in the form of an
unauthenticated email is inherently not credible and
therefore problematic. The proffered email is not a sworn
affidavit.15 In fact, Clagon makes no assertion that Bailey
himself would be available and willing to subject himself to
the criminal charge of perjury by testifying to this
recantation under oath.16 As such, the printout of the email
itself is the extent of Clagon’s “new” evidence and the email
itself lacks any indicia of credibility. No email addresses
appear on the printout, making it impossible to know
whether Bailey himself actually sent the email and to whom
it was sent. Damien Clagon’s name is never mentioned in
the body of the email. Clagon offers nothing other than his
own assertions that the email was actually written by Bailey
and that the recantation is, in fact, authentic. In our
electronic age, this evidence could have been fabricated by
anyone and made to appear to have come from Bailey. The
Court finds it highly unlikely that Bailey, who admitted on
cross-examination at trial to testifying in hopes of receiving
favorable treatment from the Commonwealth on his own
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4 Clagon further claims the court erred in stating the email did not have an
address on it, had no assertion it was from Bailey, and never mentioned
Clagon. He claims the address, email provider, and sender of the email are
apparent on the face of the email. He further claims Bailey refers to Clagon as
“Dee.” Clagon’s Br. at 10. We note the document contains a URL, but no email
address, mailing address, phone number, or date of birth for the sender.
5 Clagon further claims that the court erred in stating he did not maintain his
innocence. He states that, without Bailey’s testimony, there was only evidence
that he acted in self-defense.
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pending criminal charges,17 would at this late date subject
himself to a charge of perjury on Clagon’s behalf.
15 Although the printed email does have a notary’s
seal at the bottom, Clagon provides no explanation for
why this notarization appears and whose handwriting
or signature seems to have been placed at the bottom.
It would be pure conjecture for the Court to assign
any meaning to this signature and notarization.
16 Although the email states “I’m willing to help any
way I can,” nowhere does the sender offer to testify
under oath. A significant difference exists between a
willingness to write an email with a recantation and a
willingness to expose oneself to criminal prosecution
by admitting under oath that one has previously lied
under oath.
17 For example, see Notes of Transcript (“N.T.”) for
the trial, where Clagon’s attorney cross examined
Bailey regarding his pending criminal charges: “Do
you hope to get help with charges in exchange for
your testimony?” Bailey responded: “I was hoping
that it would be taken into consideration.” (N.T., Trial
at 337.) This testimony establishes that in 2004
Clagon knew (1) Bailey had criminal charges pending
against him at the time of his testimony against
Clagon, and (2) Bailey and the Commonwealth had no
agreement regarding those pending charges in
exchange for his testimony, but that Bailey hoped for
some consideration.
PCRA Court Opinion, filed Mar. 5, 2021, at 10-11.
The court’s findings are supported by the record, and it did not err in
finding Clagon failed to plead a time-bar exception and failed to establish a
hearing was necessary. Any claim that the PCRA court ought to have
appointed counsel fails because this was not Clagon’s first PCRA petition and
no hearing was required. See Pa.R.Crim.P. 904(D). Clagon did not include an
affidavit from Bailey with the relevant information sufficient to justify a
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hearing. Contrary to his assertion, the email does not contain information
sufficient to authenticate the contents. A document that Clagon purports to
be from a trial witness, without identifying information or authentication, does
not constitute a new fact. Accordingly, Clagon did not plead and prove a time-
bar exception.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/7/2022
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