The opinion
J-S13036-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAYVON AKEEM MO MORGAN :
:
Appellant : No. 1225 MDA 2021
Appeal from the PCRA Order Entered August 20, 2021
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0002985-2017
BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED MAY 05, 2022
Appellant Shayvon Akeem Mo Morgan appeals from the Order entered
in the Court of Common Pleas of York County on August 20, 2021, denying
his amended petition filed pursuant to the Post-Conviction Relief Act (PCRA)1
following a hearing. We affirm.
A prior panel of this Court set forth the relevant facts and procedural
history herein as follows:
The following facts were gleaned from the trial court's Rule
1925(a) opinion: Appellant and his co-conspirator, Dysheem
Jones, fled from the scene of an automobile accident and ran
towards Rutter's Dairy. There, [A]ppellant and Jones approached
Dennis Hoke, a Rutter's employee, and offered him $100 to give
them a ride out of the area. When Hoke asked appellant and Jones
where they wanted to go, they responded “anywhere but here.”
Hoke described their demeanor as being “very, very nervous.”
Although Hoke saw neither [A]ppellant nor Jones deposit anything
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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on the ground, after they left the area Hoke observed a clear
plastic bag of marijuana and another bag of a white powdery
substance, consistent with crack cocaine, lying on their path. (Trial
court opinion, 11/8/19 at 3-5.)
Appellant and Jones proceeded to enter a Budget Rental.
When asked by the manager, Joseph Charles, if he could help
them, they responded that they were waiting for their girl to come.
Then [A]ppellant went into the bathroom, and Jones went into a
backroom. Charles asked Jones if he could be of assistance, and
Jones replied that he was just leaving. Charles informed Jones that
the back door was locked. While Jones was attempting to exit
through the front door, State Trooper Patrick Kelly was entering
the building. Jones was taken into custody. A search revealed
Jones was in possession of cocaine, heroin, and marijuana. (Id.
at 5-6, 9.)
Appellant exited the bathroom and surrendered to Trooper
Kelly. Although no drugs were found on his person, he was in
possession of $506 in cash. Shawn Chambers, a Budget
employee, testified that she had cleaned the bathroom the
previous day. She stated that she put the bathroom trash can near
the bathroom door with a new trash bag draped over its side.
When she returned the day of the incident, she put in the new
bag. At that time, all that was in the trash can were some paper
towels. Chambers further testified that no one had entered the
bathroom prior to [A]ppellant. Trooper Richard Sentak testified
that he searched the bathroom and recovered a firearm from the
trash can. The firearm was operable and [A]ppellant was ineligible
to possess a firearm. (Id. at 6-10.)
On September 20, 2018, a jury convicted [A]ppellant of all
counts. Appellant was sentenced on January 3, 2019.[2] Timely
post-sentence motions were filed and denied by the trial court.
Appellant timely appealed. The trial court ordered appellant to file
a concise statement of errors complained of on appeal, pursuant
to Pa.R.A.P. 1925(b), and he timely complied. Thereafter, the trial
court filed its Rule 1925(a) opinion.
Commonwealth v. Morgan, No. 625 MDA 2019, unpublished memorandum
at 1 (Pa.Super. filed June 23, 2020).
____________________________________________
2 Appellant was sentenced to an aggregate term of six (6) years to thirteen
(13) years in prison.
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On November 13, 2020, Appellant filed a PCRA petition, pro se.
Appellant secured counsel, and on June 1, 2021, counsel filed an Amended
Petition for Relief Under the Post Conviction Relief Act; a further amendment
was submitted on August 2, 2021, wherein Appellant, citing 42 Pa.C.S.A. §
9543(a)(2)(vi), raised a claim of after discovered, exculpatory evidence in the
form of testimony of co-defendant Dysheem Jones.
A PCRA hearing was held on August 6, 2021. After indicating that it had
considered the relevant testimony, record evidence, and caselaw, the PCRA
court denied Appellant’s petition on August 18, 2021.
Appellant filed a timely appeal on September 16, 2021, and a statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) on
September 27, 2021. The PCRA court filed its Opinion pursuant to Pa.R.A.P.
1925(a) on November 4, 2021. Therein, the court adopted its reasoning and
opinion set forth in its Opinion and Order of August 18, 2021.
In his brief, Appellant presents the following question for this Court’s
review:
Did the [PCRA] court commit an error of law and improperly
dismiss [Appellant’s] PCRA petition because [Appellant] is entitled
to PCRA relief where exculpatory evidence presented in the form
of the testimony of Dysheem Jones met the four-prong test for
after-discovered evidence?
Brief for Appellant at 4.
Appellant maintains that the testimony co-defendant Jones is
prepared to offer is of such a nature that a different verdict would be
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likely at a new trial. Brief for Appellant at 11. Appellant avers that the
PCRA Court based its decision to deny him PCRA relief on “incorrect
suppositions and a palpable bias against [him]” and that the court held
him to a higher standard of review than a preponderance of the
evidence. Appellant further claims the PCRA court erroneously found
Jones to be incredible without legal support or support in the record.
Appellant concludes that the court’s order should be reversed and that
he should be afforded a new trial based upon this new evidence.
As this Court recently reiterated, our standard of review of an order
denying PCRA relief is well-established:
Our review of a PCRA court's decision is limited to
examining whether the PCRA court's findings of fact are
supported by the record, and whether its conclusions of
law are free from legal error. We view the findings of the
PCRA court and the evidence of record in a light most
favorable to the prevailing party. With respect to the
PCRA court's decision to deny a request for an
evidentiary hearing, or to hold a limited evidentiary
hearing, such a decision is within the discretion of the
PCRA court and will not be overturned absent an abuse
of discretion. The PCRA court's credibility
determinations, when supported by the record, are
binding on this Court; however, we apply a de novo
standard of review to the PCRA court's legal conclusions.
Commonwealth v. Mason, 634 Pa. 359, 130 A.3d 601, 617
(2015) (citations and quotation marks omitted).
To be entitled to PCRA relief, a petitioner must plead and
prove by a preponderance of the evidence, that his conviction or
sentence resulted from one or more of the circumstances
enumerated in 42 Pa.C.S. § 9543(a)(2), which provides, in
relevant part:
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(2) That the conviction or sentence resulted from one or
more of the following:
***
(vi) The unavailability at the time of trial of exculpatory
evidence that has subsequently become available and
would have changed the outcome of the trial if it had
been introduced.
42 Pa.C.S. § 9543(a)(2)(vi).
To establish such a claim, a petitioner must prove that (1)
the evidence has been discovered after trial and it could not have
been obtained at or prior to trial through reasonable diligence; (2)
the evidence is not cumulative; (3) it is not being used solely to
impeach credibility; and (4) it would likely compel a different
verdict. Commonwealth v. Cox, 636 Pa. 603, 146 A.3d 221,
228 (2016) (citations and quotation marks omitted). See also
Commonwealth v. Small, ––– Pa. ––––, 238 A.3d 1267, 1273
n.1 (2020); Commonwealth v. D'Amato, 579 Pa. 490, 856 A.2d
806, 823 (2004).
Commonwealth v. Murchison, 2022 WL 589122, at *7-8 (Pa.Super. Feb.
28, 2022).
In addition, we note that credibility determinations are an integral part
of determining whether a PCRA petitioner has presented after-discovered
evidence that would entitle him to a new trial. See Commonwealth v. Small,
189 A.3d 961, 978-79 (Pa. 218) (remanding for the PCRA court to make
relevant credibility determinations). This Court has stated, prior to granting
a new trial based on after-discovered evidence, “a court must assess whether
the alleged after-discovered evidence is of such a nature and character that it
would likely compel a different verdict if a new trial is granted.”
Commonwealth v. Padillas, 997 A.2d 356, 365 (Pa.Super. 2010). “In
making this determination, a court should consider the integrity of the alleged
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after-discovered evidence, the motive of those offering the evidence, and the
overall strength of the evidence supporting the conviction.” Id.
Herein, the PCRA court explained in great detail why it determined
Appellant’s after-discovered evidence claim lacks merit:
B. Unavailability at Trial of Exculpatory Evidence
On the eve of his PCRA hearing and after the originally
scheduled PCRA hearing date, on August 2, 2021, [Appellant]
added a new PCRA claim. The new claim was that [Appellant’s]
codefendant, Dysheem Jones, was willing to testify that it was he,
not [Appellant], who had placed the firearm in the trashcan at the
Budget Rental. Mr. Jones did so testify at the PCRA hearing.
[Appellant] avers that this amounts to exculpatory evidence not
available at the time of trial that would have changed the outcome
of his case. Amended Petition for Relief Under the Post Conviction
Relief Act, at unnumbered page 2 (citing 42 Pa.C.S. §
9543(a)(2)(vi). For the following reasons, we disagree.
As a brief aside, the Commonwealth addressed this claim as
though it were brought as an ineffective assistance of counsel
claim. 42 Pa.C.S. § 9543(a)(2)(ii). To that end, the
Commonwealth cited the case of Commonwealth v. Clark, 961
A.2d 80 (Pa. 2008), which deals with ineffective assistance of
counsel claims concerning the failure to call a potential witness.
In Clark, our Supreme Court states the following:
Where a defendant claims that counsel was ineffective
for failing to call a particular witness, we require proof of
that witness's availability to testify, as well an adequate
assertion that the substance of the purported testimony
would make a difference in the case. Generally, we
require a defendant to demonstrate that:
(1) the witness existed, (2) the witness was
available to testify for the defense; (3) counsel
knew of, or should have known of, the
existence of the witness; (4) the witness was
willing to testify for the defense; and (5) the
absence of the testimony of the witness was so
prejudicial as to have denied the defendant a
fair trial.
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Commonwealth v. Washington, 927 A.2d 586, 599 (Pa.
2007).
Id., at 90 (some internal citations omitted). The Commonwealth,
having supplied this case law, then argued that Mr. Jones was
unavailable to testify, Mr. Jones was, at the time of [Appellant’s]
trial, unwilling to testify for the defense, and that the absence of
the witness was not so prejudicial as to have denied [Appellant]
of a fair trial. As to this last prong, the Commonwealth submitted
that prejudice was greatly reduced where the jury heard from a
defense witness, Mr. Brian Mertz, that he believed Mr. Jones had
gone into the bathroom. All of this is accurate and would support
denial of such a claim. However, [Appellant] specifically brought
his claim under 42 Pa.C.S. § 9543(a)(2)(vi). See Amended
Petition for Relief Under the Post Conviction Relief Act, at
unnumbered page 2.
42 Pa.C.S. § 9543(a)(2)(vi) states as follows:
(a) General rule. — To be eligible for relief under this
subchapter, the petitioner must plead and prove by a
preponderance of the evidence all of the following:
(2) That the conviction or sentence resulted from one
or more of the following:
(vi) The 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.
As [Appellant] has brought his claim under 42 Pa.C.S. §
9543(a)(2)(vi) and not 42 Pa.C.S. § 9543(a)(2)(ii), our analysis
departs from that of the Commonwealth. We, instead, begin with
Mr. Jones' credibility.
Mr. Jones was not credible to this [c]ourt. His demeanor,
though calm, appeared, to this [c]ourt, to be calculating. We
cannot speculate as to that calculus: however, Mr. Jones testified
that he, not [Appellant], placed the firearm in the trashcan. Even
if Mr. Jones’ altruistic statements were credited, there is likely no
price Mr. Jones could be made to pay for any untrue testimony.
He has already been sentenced for his own crimes and a perjury
charge is extremely unlikely to lay based upon the testimony
offered. As such, Mr. Jones was free to testify almost risk-free.
Jones had a preexisting criminal relationship with [Appellant],
which also renders his belated assumptions of culpability suspect.
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And yet, despite Mr. Jones having long been sentenced—his York
County matters were settled on February 26, 2019-- this claim
was not brought until just before the PCRA hearing-- despite
testimony from [Appellant] that Mr. Jones had been reaching out
to him for some time. On the stand, Mr. Jones’ testimony flew in
the face of the bulk of the testimony offered at trial and this
[c]ourt finds that it was false testimony given in continued support
of his accomplice.
Though Mr. Jones’ PCRA testimony disagreed with all of the
evidence that the jury clearly credited, it did align in one detail
with that of a defense witness. During the PCRA proceedings, trial
counsel testified regarding her elation at discovering Mr. Hertz.
Mr. Hertz was the only witness that the defense was able to locate
whose story seemed to support that of [Appellant], which was
recounted at the PCRA hearing. At the PCRA hearing, [Appellant]
testified that, at one point, while he was sitting on the opposite
side of the room at the Budget Rental, his codefendant entered
the bathroom. Trial counsel’s excitement aside, this does not fully
comport with the testimony of Mr. Hertz. The following exchange
occurred between Mr. Hertz and defense counsel:
Defense: So, you testified that all three of you were
behind the counter when they first came in?
Hertz: Correct.
Defense: And what happened next?
Hertz: Well, the two were on the one side towards the
bathroom and we asked could we help. And they said
they were waiting for their girlfriend.
Defense. And after that did you go back to work?
Hertz: Yes, I was still behind the counter working.
Defense: From where all three of you were behind the
counter, are you able to see the entrance to the
bathroom?
Hertz: No. I can’t, no.
Defense: And are you aware did anybody go into that
bathroom?
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Hertz: I thought both of them went in at one time.
Defense: Okay. And why did you think both went in?
Hertz: Because I couldn't see them anymore.
(N.T., 9/17/18, at 272-73.) (emphasis added). On cross-
examination, the Commonwealth asked and Mr. Hertz
answered the following question:
Cmwlth: Mr. Hertz, did you see either of those two
gentlemen with your own eyes go into that bathroom?
Defense: No.
Id., at 275. Very clearly, Mr. Hertz's candid trial testimony did not
perfectly align with [Appellant’s] testimony, at the PCRA hearing,
that [Appellant] was seated across the room when the
codefendant entered the bathroom. Rather, Mr. Hertz's testimony
only agrees with [Appellant] in that Mr. Hertz thought that the
codefendant, Mr. Jones, also entered the bathroom. However, Mr.
Hertz believed that the codefendants were in the bathroom at the
same time. And, Mr. Hertz testified that he did not actually see
either of the codefendants enter the bathroom. Thus, though he
went no further in his testimony than inferring that Mr. Jones
entered the bathroom, Mr. Hertz's testimony somewhat aligns
with Mr. Jones on this one detail.
The facts at issue established, we turn to the law governing
newly discovered evidence claims that are offered under the aegis
of the PCRA. In Commonwealth v. Loner, our Superior Court
summarized the applicable law as follows:
Section 9543(a)(2)(vi) of the PCRA provides for post-
conviction relief when a petition can prove a claim of
newly discovered evidence. In order to succeed with this
claim, the petitioner must establish by a preponderance
of the evidence that: (1) the evidence has been
discovered after the trial and it could not have been
obtained at or prior to trial through reasonable diligence;
(2) such evidence is not cumulative; (3) the evidence is
not being used solely to impeach credibility; and (4)
such evidence would likely compel a different verdict.
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836 A.2d 125, 135 (Pa. Super. Ct. 2003) (internal citations and
quotations omitted).
Regarding discovery and reasonable diligence, if [Appellant]
were to be believed, he discovered that his codefendant placed
the firearm in the trashcan after trial and he could not have
obtained this information prior to trial through reasonable due
diligence. Regarding this supposed newly discovered evidence,
this [c]ourt did not find [Appellant] credible. During the PCRA
hearing [Appellant] “guaranteed” that the statement along the
lines of “he's got a gun” was made by Dysheem Jones to indicate
that the trooper possessed a firearm. When queried by this [c]ourt
as to why Mr. Jones would have made such an obvious observation
about a trooper in full uniform—when he might have just as easily
declared that the trooper possessed a badge—[Appellant]
conceded that only Mr. Jones could know for sure. Thus,
[Appellant], understandably, was, during the course of the PCRA
hearing, making purely self-serving statements. We find that
[Appellant] made an equally self-serving statement to place his
own firearm on his codefendant. This was a self-serving statement
made in conjunction with an equally incredible statement by
[Appellant’s] incredible accomplice who clearly still harbors affinity
for [Appellant]. Their duplicity is further demonstrated by the fact
that Mr. Hertz’s inference placed [Appellant] and Mr. Jones in the
bathroom at the same time-; whereas, [Appellant] and Mr. Jones
placed Mr. Jones in the bathroom alone, which makes sense when
a story is being manufactured to distance [Appellant] from the
gun and the possibility that he was present while it was concealed
in the trashcan.
[Appellant’s] story is unbelievable considering his own
credibility. [Appellant’s] story does not align with the one witness
who, as we discussed above, possibly also placed the codefendant
in the bathroom though he did not see it with his own eyes. It
strains credulity beyond the breaking point to believe that
[Appellant], who along with his codefendant, nervously requested
a ride to anywhere else, would not have been aware that his
compatriot was carrying illicit drugs and a firearm. Granted,
handguns are almost inherently concealable and so it is possible,
if the codefendants were credible, that [Appellant] was unaware
of the presence of the gun. Though it is a tautology, if this were
the case and Mr. Jones did not inform [Appellant] that he had
possessed and placed the gun until after [Appellant’s] trial then
the evidence was not discoverable until after trial. However, as we
have clearly indicated, because the codefendants were not
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credible in their PCRA testimony, the supposedly unavailable
evidence was clearly manufactured evidence. As the [c]ourt finds
the evidence in question was not discovered after the trial, but,
rather, was manufactured after the trial, this claim fails.
Nonetheless, we continue on.
For reasonable due diligence, trial counsel’s testimony that
her entreaties to codefendant's counsel for his state charges went
unanswered supports the notion that the information was
unavailable. Though this [c]ourt did not find the codefendant to
be credible, he did indicate that his federal attorney was urging
him to complete his federal matters prior to his state charges.
While Mr. Jones was not credible regarding gun possession, this
sort of prosaic detail was credible in light of standard legal
practice. In fact, trial counsel testified that if roles had been
reversed and she were to have been Mr. Jones’ attorney, she
would not allowed him to testify due to his potential legal
exposure.
As for whether the evidence offered is cumulative, it is not.
Though Mr. Hertz potentially placed the codefendant in the
bathroom—and he admitted he did not actually see either
codefendant enter and merely inferred that they had, Mr. Hertz’s
testimony could not speak to what occurred within that bathroom.
The evidence was not offered solely to impeach credibility.
Mr. Jones’ testimony, if believed, offered substantive evidence as
to how the firearm in question happened to be placed in the
trashcan.
Mr. Jones’ testimony would not be likely to compel a
different verdict. Joseph Charles testified that he was able to see
the store from end-to-end and that only one of the two
codefendants entered the bathroom. Moreover, Mr. Charles
testified that approximately 45 seconds elapsed from the time that
the codefendants entered the store to the arrival of the trooper
and that the person who walked to the back room would not have
had a chance to enter the bathroom. It is clear from other
testimony, including [Appellant’s] during the PCRA hearing, that
Mr. Jones was the one that walked to the backroom.
Shawn Chambers, for all her potential flaws as a witness,
admitted that she could not see the bathroom. However, her
testimony agreed with that of Mr. Charles that, upon the arrival of
the trooper, one of the codefendants entered the bathroom while
the other proceeded to a backroom area.
Trooper Patrick Sentak testified that upon his arrival he saw
the codefendants standing to one side of the Budget Rental. In
agreement with Mr. Charles and Ms. Chambers, Trooper Sentak
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saw Mr. Jones move towards the opposite side of the store and he
saw [Appellant] enter the bathroom.
Mr. Hertz could not see anyone enter the bathroom. He
merely inferred that both codefendants had done so because he
lost sight of them. The testimony of a codefendant would not
compel a jury to arrive at a different verdict in light of at least two
witnesses who claimed to have seen [Appellant], but not Mr.
Jones, enter the bathroom and who were buttressed by the
testimony of the, admittedly, problematic Ms. Chambers.
Moreover, again, this [c]ourt did not find [Appellant] or Mr. Jones
to be credible at the PCRA.
The evidence undergirding this claim is not newly discovered
evidence. It is manufactured evidence. And the outcome would
not have been different if the jury had heard the evidence.
However. before concluding our analysis, we would consider the
case of Commonwealth v. Fiore, 780 A.2d 704 (Pa. Super. Ct.
2001).
In Fiore, the defendant's codefendant, a Mr. Zdrale, was
accused of being the middleman in a murder-for-hire plot set in
motion by the defendant. Id., at 707-08. The defendant filed a
PCRA petition premised upon newly discovered evidence:
In his petition for collateral relief, Appellant alleges that
the testimony of Mr. Zdrale, who was unavailable to
testify at Appellant's second trial because he was
awaiting his own separate trial on the same charges,
would have established that Appellant was innocent of
the charges. Mr. Zdrale died on July 29, 1999. His
testimony was preserved, in anticipation of his death, for
the PCRA hearing and any further proceedings via video
deposition on October 16, 1998.
Id., at 710-11. Specifically, Mr. Zdrale's testimony was that, while
the defendant and Mr. Zdrale did not like the purported target,
they did not intend to kill the target. Id., at 712. During PCRA
proceedings, Mr. Zdrale was found to have been unavailable for
defendant's trial because he had, through his attorney,
communicated to defendant's counsel that he was asserting his
Fifth Amendment privilege against self-incrimination. Id., at 711-
12. Thus, the Superior Court concluded that this amounted to new
evidence that was unavailable to the defendant at the time of his
trial. We would hasten to note that this is different to our own case
in that no communication, whatsoever, was made between Mr.
Jones’ attorneys and [Appellant’s] regarding an assertion of Fifth
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Amendment privilege. The Superior Court also found that Mr.
Zdrale's testimony was neither cumulative, nor was it offered to
impeach credibility. Id., at 712. It was the final prong of the test
for newly discovered evidence, regarding whether the new
evidence would likely compel a different verdict, that was in
question.
Regarding credibility in Fiore, the Superior Court stated the
following:
The PCRA court determined that Mr. Zdrale's testimony
was of “questionable credibility.” We note that the PCRA
court did not find that Mr. Zdrale was incredible, but
instead noted Mr. Zdrale's questionable credibility in
determining that his testimony would not likely have
compelled a different verdict.
780 A.2d, at 712. This is in stark contrast to our own case in which
we have stated that [Appellant] and, paramount to this claim, Mr.
Jones, with limited exceptions for some mundane facts, are
incredible and we have stated our reasons for so finding, supra.
The Fiore court also found that the PCRA court's findings regarding
inconsistencies in Mr. Zdrale's testimony did not bear upon the
ultimate issues. Id., at 713. Again, this is in contrast to our case
in which the testimony of Mr. Jones, regarding ultimate issues,
was almost entirely inconsistent with every other witness—save
one. And the testimony of that one witness, Mr. Hertz is still,
ultimately, at odds with Mr. Jones’ testimony. Mr. Hertz believed
that Mr. Jones and [Appellant] were in the bathroom, because he
could not see them anymore. Mr. Jones’ testimony was such that
he entered the bathroom alone. Mr. Jones’ testimony was at odds
with all other testimony.
The foregoing in mind, the Fiore court stated the following:
This leads us to the final conclusion of the PCRA court.
that Mr. Zdrale's testimony was not likely to have
changed the outcome of the trial. The PCRA. court
determined his testimony was not so persuasive as to
compel a different result. In evaluating Mr. Zdrale's
testimony, the PCRA court used the same factors it
would have asked the jury to consider. The PCRA [sic]
recognized that Mr. Zdrale had a friendship with
Appellant and animosity toward other persons in the
case, he had numerous inconsistencies and inaccuracies
in his testimony and he had suffered a brain injury that
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impaired his memory. Even considering this to be true,
Mr. Zdrale's testimony that there was no conspiracy, if
believed by the jury, would have changed the outcome
of this case.
The Commonwealth's case was essentially that Appellant
asked Mr. Zdrale to find someone to murder Mr. Duritsa.
The Commonwealth attempted to prove
Appellant's involvement through statements made
between Mr. Zdrale and Mr. Thomas and Mr. Smith,
the men hired to conduct the murder. Mr. Zdrale's
testimony would be essential to the defense to
contradict the testimony of Mr. Smith, a convicted
perjurer with a criminal background, and Mr. Thomas, a
person with an extensive criminal history. Mr. Thomas
admitted to lying to the police about the events in
question and gave conflicting versions under oath.
Mr. Thomas also received a sentence of six to twenty-
three months for his involvement in these charges in
return for his cooperation with the Commonwealth. He
also received
immunity from prosecution for any future charges in
return for testifying before the grand jury and at Fiore's
trial. Additionally, the testimony of both Mr. Smith
and Mr. Thomas was inconsistent with previous
statements they had given under oath.
Mr. Zdrale's testimony contradicts the Commonwealth's
case-in-chief. At trial, the Commonwealth
contended that Mr. Zdrale was the middleman in
the murder-for-hire conspiracy. He was the link
between Mr. Fiore, the person who wanted Mr.
Duritsa killed, and Mr. Smith and Mr. Thomas, the
men hired to kill Duritsa. Mr. Zdrale professed that
there was no conspiracy. We believe that a jury should
be presented with the testimony of Mr. Zdrale to permit
it to determine whether his version of the events is more
credible than that of Mr. Smith and Mr. Thomas.
Id., at 713 (internal citations and notes omitted) (emphasis
added). Our case, is markedly different from that of Fiore.
To begin, unlike in Fiore, the Commonwealth witnesses in
our case were disinterested parties whose involvement in the case
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was happenstance. In Fiore, the newly discovered evidence, in the
vessel of Mr. Zdrale, was the Commonwealth's alleged
middleman. Mr. Zdrale’s testimony could potentially rebut that
theory and the evidence of the two Commonwealth witnesses who
were to have been in on the plot. Our newly discovered evidence
witness is, like the one in Fiore, a codefendant; however, unlike
in Fiore, the Commonwealth, in our case, relied upon witnesses
who were disinterested.
In addition to the above, the testimony of crucial witnesses
in Fiore, Messrs. Smith and Thomas, was inconsistent with prior
sworn statements. Though Ms. Chambers’ trial testimony added
details to her pretrial statements, she did not, as we discussed,
supra, under the law, testify inconsistently with her prior
statements. Admittedly, Ms. Chambers has a checkered past;
however, Mr. Charles’ and Trooper Sentak’s testimony aligned
with Ms. Chambers’ testimony that only one person entered the
bathroom. And Mr. Charles’ testimony established that there was
no time for anyone else besides the Defendant to have entered
the bathroom. As for the critical evidence offered by Ms.
Chambers’ regarding the timing of her bathroom cleaning, the jury
clearly decided this issue in the Commonwealth's favor even in
light of Ms. Chambers’ past. Unlike in Fiore, Mr. Jones’ testimony
would not be rebutting unsavory witnesses where one was offered
deals in exchange for testimony; but, rather, it would be offered
against disinterested parties whose testimony agrees in major
detail. And Mr. Jones’ testimony would be in contradiction of
defense witness Mr. Hertz’s testimony that both codefendants
entered the bathroom.
For all of the foregoing reasons, we can differentiate our
case from that of Fiore. As such, our determination that this claim
should fail stands.
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6 This Court would never state as a matter of fact that a perjury
charge could not be made out; but, it being, in our estimation, an
unlikely event, we stand by our assertion that Mr. Jones was free
to testify unencumbered.
PCRA Court Order and Opinion in Support of Order, 8/18/21, at 22-35 (italics
and boldface for emphasis in original).
Our review of the record supports the PCRA court’s conclusion that the
four-prong test for granting a new trial on the basis of after-discovered
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evidence has not been met. While the PCRA court determined that the fourth
prong had not been met, we further find that Mr. Jones’ testimony would
primarily serve to impeach that of Mr. Charles, Ms. Chambers, and Trooper
Kelly, eyewitnesses who had testified that Appellant entered the restroom
where the firearm had been abandoned, while Mr. Jones’ did not do so. For
this reason, we hold that Appellant has failed to establish the third prong of
the test as well. See Murchison, supra.
Notwithstanding, as the PCRA court found, were Appellant to present
Mr. Jones’ testimony at a new trial, it is not likely to compel a different verdict
given the contrary testimony of multiple, credible eyewitnesses who
previously testified. Appellant’s argument to the contrary, the PCRA court’s
explanation does not reveal a bias toward him but, rather, evinces a thorough
analysis supported by record evidence.
Moreover, Appellant’s position that the PCRA court based its decision
upon the incorrect assumption that “there is likely no price Mr. Jones could be
made to pay for any untrue testimony,” see Brief for Appellant at 16, is belied
by the record. The PCRA court was careful to explain in footnote 6 of its
Opinion and Order that it would never definitively state whether a perjury
charge could be brought against Jones, but it did consider the unlikelihood of
that happening in surmising that Jones was free to testify unencumbered. See
supra. This was just one of numerous factors the PCRA court detailed in
support of its decision to deny Appellant PCRA relief.
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Appellant further contends that Jones’ testimony “was, in fact,
inherently reliable and credible” because he could be charged with possession
of a firearm. Brief for Appellant at 16 (emphasis in original). Appellant also
discusses why he deems the PCRA court erred in failing “ to lend any credence
to Jones’s testimony.” Id. at 18. In setting forth these arguments, Appellant
essentially asks this Court to reweigh the testimony of Appellant and Mr. Jones
at the PCRA hearing and make our own credibility determinations to reach a
different result. This we cannot do.
“Indeed, one of the primary reasons PCRA hearings are held in the first
place is so that credibility determinations can be made; otherwise, issues of
material fact could be decided on pleadings and affidavits alone.”
Commonwealth v. Johnson, 966 A.2d 523, 539 (Pa. 2009). Here, the PCRA
court found that Mr. Jones’ testimony, and that of Appellant, was not credible
for numerous reasons. We decline to usurp the PCRA court's credibility
determinations or reweigh the evidence. Because the PCRA court's credibility
determinations render Appellant's claim on appeal meritless, we affirm the
Order denying Appellant post-conviction collateral relief.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/5/2022
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