J-S72006-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JEROME M. WALKER,

Appellant No. 1984 WDA 2013

Appeal from the PCRA Order Entered November 12, 2013

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0015481-2007

BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 21, 2014

Appellant, Jerome M. Walker, appeals from the November 12, 2013 

order denying his petition for relief filed pursuant to the Post Conviction 

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

Appellant was sentenced to six to twelve years’ imprisonment after he 

was convicted, following a nonjury trial, of involuntary deviate sexual 

intercourse (IDSI), sexual assault, indecent assault, simple assault, and 

criminal conspiracy. Appellant’s convictions stemmed from his participation 

in the sexual assault of a female victim, T.W. At trial, T.W. testified that at 

approximately 9:00 or 10:00 p.m. on September 25, 2007, she left a 

friend’s house and was walking home when she was struck from behind with 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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“a ‘bat or metal pipe or something.’” PCRA Court Opinion (PCO), 5/16/14, at 

3-4 (citing N.T. Trial, 9/16/09, at 23). T.W. fell to the ground and was 

attacked by three men who groped her breasts, buttocks, and in between 

her legs. Id. at 4. T.W. identified Appellant as one of her attackers, and 

testified that during the assault, Appellant “pulled her head back and placed 

his penis in her mouth.” Id. T.W. bit down and, at the same time, a 

spotlight in the area came on, causing Appellant and his cohorts to flee. Id. 

Appellant was later apprehended and, when interviewed by police, he stated 

that “[h]e and his boys were all over that bitch, and she deserved what she 

got[.]” Id. at 6. Appellant followed that comment with the statement, “I’m 

just funning with all you[.]” Id. 

Following his conviction and sentencing, Appellant filed a direct appeal. 

This Court affirmed his judgment of sentence on July 26, 2011, and our 

Supreme Court denied his subsequent petition for allowance of appeal on 

January 18, 2012. Commonwealth v. Walker, 32 A.3d 282 (Pa. Super. 

2011) (unpublished memorandum), appeal denied, 37 A.3d 1195 (Pa. 

2012). On March 12, 2012, Appellant filed a timely pro se PCRA petition and 

counsel was appointed. Pertinent to the instant appeal, Appellant claimed in 

his petition that he “was entitled to a new trial based on after-discovered 

evidence in that an alibi witness, [Daric Anderson,] who was unavailable at 

trial, became available....” PCO at 3. 
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A PCRA hearing was conducted on September 27, 2013, at which 

Appellant called Anderson to the stand. The PCRA court summarized the 

relevant portions of Anderson’s testimony as follows:

Anderson testified that on the night of the sexual assault [of 

T.W.], he and [Appellant] were in his apartment watching 

television, going outside occasionally to smoke cigarettes. He 

stated that between 10:00 p.m. and 10:30 p.m., he went into 

the apartment and when he returned outside, [he] observed 

[Appellant], an individual by the name of Antoine Dean, an 

unidentified man and an unidentified woman arguing. 

[Anderson] stated that the police were present at that time and 

he spoke with them. He said that Dean then left their company 

but [Anderson] and [Appellant] stayed together the rest of the 

night. He said that the police returned the next day, accused 

him and [Appellant] of committing a rape, and arrested 

[Appellant].

PCO at 6-7 (citations to the record omitted).

Ultimately, the PCRA court issued an order denying Appellant’s 

petition. Appellant filed a timely notice of appeal, and presents one 

question for our review:

I. Whether Appellant proved, by a preponderance of the 

evidence, the four factors set forth in Commonwealth v. 

D’Amato, 579 Pa. 490, 856 A.2d 806 (Pa. 2004), controlling 

post-conviction relief for claims of after-discovered witnesses?

Appellant’s Brief at 4.

Our standard of review regarding an order denying post-conviction 

relief under the PCRA is whether the determination of the court is supported 

by the evidence of record and is free of legal error. Commonwealth v. 

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). This Court grants great deference 

to the findings of the PCRA court, and we will not disturb those findings 
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merely because the record could support a contrary holding. 

Commonwealth v. Touw, 781 A.2d 1250, 1252 (Pa. Super. 2001). The 

PCRA court’s findings will not be disturbed unless there is no support for the 

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164, 

1166 (Pa. Super. 2001).

The PCRA provides post-conviction relief for petitioners who prove that 

their conviction resulted from “[t]he unavailability at the time of trial of 

exculpatory evidence that has subsequently become available and would 

have changed the outcome of the trial if it had been introduced.” 42 Pa.C.S. 

§ 9543(a)(2)(vi). As Appellant acknowledges, in D’Amato our Supreme 

Court set forth the following test for proving an after-discovered evidence 

claim under section 9543(a)(2)(vi):

To obtain relief based upon newly-discovered evidence under the 

PCRA, a petitioner must establish 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.

D'Amato, 856 A.2d at 823-24 (citations omitted). 

In this case, the PCRA court concluded that Appellant failed to satisfy 

the fourth prong of the above-stated test.1 Specifically, the court found that 

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1 The PCRA court also determined that Anderson’s testimony could have 

been presented at trial had Appellant exercised reasonable diligence. We 

need not address the court’s assessment in this regard because, for the 

reasons stated infra, we ascertain no error in the court’s conclusion that 

(Footnote Continued Next Page)
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Anderson’s alibi testimony was not credible and would not likely have 

compelled a different verdict. The court explained:

Anderson was not a credible witness at the PCRA hearing. 

Moreover, the “alibi” he would have provided was profoundly 

weak. It actually placed [Appellant] approximately one block 

from where the [assault of T.W.] occurred at the time it 

occurred. The apartment where Anderson claimed he and 

[Appellant] were, between 10:00 and 10:30 [on] the night of 

September 2[5], 2007, was, according to the trial testimony of 

Carnegie Police Officer Scott Schmeltz, approximately one block 

from where the victim was assaulted. [Moreover,] [Anderson’s] 

testimony as to the time he and [Appellant] encountered the 

police, ... was contrary to the trial testimony of the police officer 

who responded to that disturbance. Officer [] Schmeltz stated 

that he was dispatched to 432 Broadway at 11:45 [p.m.], where 

he encountered [Appellant], Anderson and another male. 

Anderson claimed at the PCRA hearing that the police [officer] 

came there between 10:00 and 10:30 [p.m.] In addition, 

Anderson’s testimony placing [Appellant] with him when the 

assault occurred was contradicted by the victim who positively 

identified [Appellant] as one of her assailants. Finally, 

[Appellant’s] own inculpatory statement contradicted Anderson’s 

claim that he and [Appellant] were together and somewhere 

other than where the victim was attacked. 

PCO at 8-9. 

Clearly, the PCRA court heard and considered Anderson’s alibi 

testimony, deemed it incredible, and concluded that it would not likely have 

compelled a different verdict had it been presented at Appellant’s trial. 

Because the record supports the PCRA court’s credibility determination, we 

must defer to it on appeal. See Commonwealth v. Fiore, 780 A.2d 704, 

(Footnote Continued) _______________________

Appellant failed to satisfy the fourth prong of the after-discovered evidence 

test.
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704, 712 (Pa. Super. 2001) (“Where the record supports the credibility 

determination of the post-conviction court, the reviewing court is to defer to 

that determination.”). Accordingly, the court did not err in denying 

Appellant’s PCRA petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/21/2014