J-S75025-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JEFFREY DAWKINS

Appellant No. 2680 EDA 2015

Appeal from the PCRA Order August 3, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-807922-2005

BEFORE: BOWES, J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.: FILED NOVEMBER 15, 2016

Jeffrey Dawkins appeals from the August 3, 2015 order of the Court of 

Common Pleas of Philadelphia County denying his second amended petition 

filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-

9545. We affirm.

On December 18, 2006, a jury convicted Dawkins and his codefendant, Jason Perez, of first-degree murder, criminal conspiracy, carrying 

a firearm without a license, and possessing instruments of crime.1 The 

convictions stemmed from the shooting death of Bryan Green at a bar in 

Philadelphia on March 28, 2004.

The PCRA court set forth the procedural history of this case as follows:

____________________________________________

1 18 Pa.C.S. §§ 2502(a), 903, 6106, and 907(a), respectively.
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On [December 18, 2006], this Court sentenced 

[Dawkins] to the mandatory term of life imprisonment. 

[Dawkins] did not file post-sentence motions, but filed a 

timely notice of appeal to the Superior Court on December 

29, 2006. On August 6, 2008, the Superior Court affirmed 

[Dawkins’] judgment of sentence and, on April 1, 2009, 

our Supreme Court denied [Dawkins’] petition for 

allowance of appeal.

On April 27, 2009, [Dawkins] filed a pro se petition 

pursuant to the [PCRA]. Counsel was appointed and, on 

September 24, 2009, filed an amended petition. On 

January 21, 2010, the Commonwealth filed a motion to 

dismiss. After reviewing the pleadings and conducting an 

independent examination of the record, on February 17, 

2010, this Court sent [Dawkins] notice of its intent to deny 

and dismiss his petition without a hearing pursuant to 

Pa.R.Crim.P. 907 (907 Notice). Consistent with its 907 

Notice, on March 26, 2010, this Court denied and 

dismissed [Dawkins’] PCRA petition. [Dawkins] filed a 

timely notice of appeal. On April 25, 2011, the Superior 

Court affirmed this Court’s denial and dismissal of 

[Dawkins’] petition and, on October 17, 2011, our 

Supreme Court denied [his] petition for allowance of 

appeal. 

On October 5, 2012, [Dawkins] filed a second, 

untimely pro se PCRA petition, and on June 19, 2013, [he] 

filed a supplemental amended petition. On January 30, 

2014, retained counsel, Teri Himebaugh, Esquire, entered 

her appearance in [Dawkins’] case. PCRA counsel then 

filed a supplemental memorandum of law on August 5, 

2014, and a second supplemental PCRA petition on 

November 26, 2014. On December 19, 2014, the 

Commonwealth agreed to a hearing on [Dawkins’] claims 

of newly-discovered evidence, in which Perez joined. 

Thereafter, on February 19 2015, Marissa Boyers 

Bluestine, Esquire, entered her appearance in [Dawkins’] 

case, and proceeded to represent [Dawkins] pro bono, 

along with retained PCRA counsel, Teri Himebaugh, 

Esquire.
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PCRA Ct. 1925(a) Opinion, 12/18/15, at 1-3 (footnotes and citations 

omitted) (“1925(a) Op.”).

In his second amended PCRA petition, Dawkins asserted a claim of 

after-discovered evidence based on the affidavits of four alleged 

eyewitnesses to the March 28, 2004 murder: Chamar Brown, Donald 

Williams, Brian Perry, and Damien Evans. In the affidavits, each eyewitness 

disavowed his prior trial testimony or written statement identifying Dawkins 

as the victim’s killer. Dawkins asserted that the witnesses’ prior testimony 

and statements were the result of police coercion.

The PCRA court held a three-day evidentiary hearing on Dawkins’ 

PCRA petition on March 9, March 10, and July 1, 2015.2 At the hearing, 

Dawkins presented the testimony of Brown, Williams, Perry, and Evans. 

Dawkins also testified on his own behalf. The Commonwealth presented the 

testimony of several police officers and detectives involved in the underlying 

homicide investigation.

On August 3, 2015, the PCRA court dismissed Dawkins’ PCRA petition. 

The PCRA court concluded that although Dawkins had proven an exception 

to the PCRA’s one-year time-bar, Dawkins had failed to prove the merits of 

____________________________________________

2 On March 13, 2015, Dawkins and co-defendant Perez also filed a 

joint petition for post-conviction DNA testing. After an evidentiary hearing, 

the PCRA court denied the petition, concluding “that nothing existed on 

which DNA testing could be attempted.” 1925(a) Op. at 3. Dawkins does 

not challenge that ruling on appeal.
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his after-discovered-evidence claim. See PCRA Order, 8/3/15, at 1; 1925(a) 

Op. at 9.3 Dawkins timely appealed to this Court.

Our review of an order denying PCRA relief is limited to determining 

“whether the decision of the PCRA court is supported by the evidence of 

record and is free of legal error.” Commonwealth v. Melendez–Negron, 

123 A.3d 1087, 1090 (Pa.Super. 2015). We will not disturb the PCRA court’s 

factual findings “unless there is no support for [those] findings in the 

certified record.” Id.

____________________________________________

3

“[T]he timeliness of a PCRA petition is a jurisdictional requisite.” 

Commonwealth v. Brown, 111 A.3d 171, 175 (Pa.Super.), app. denied, 

125 A.3d 1197 (Pa. 2015). A petitioner must file a PCRA petition, including 

a second or subsequent petition, within one year of the date his or her 

judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). Here, the 

Pennsylvania Supreme Court denied Dawkins’ petition for allowance of 

appeal on April 1, 2009. Dawkins did not seek review with the United States 

Supreme Court, so his judgment of sentence became final 90 days later, on 

July 1, 2009. See 42 Pa.C.S. § 9545(b)(3); U.S. S. Ct. R. 13. Dawkins had 

one year from that date, or until July 1, 2010, to file a timely PCRA petition. 

Thus, the instant PCRA petition, filed on October 5, 2012, was facially 

untimely.

In his petition, Dawkins asserted the “new-facts” exception to the oneyear time-bar. See Commonwealth v. Bennett, 930 A.2d 1264, 1270-72 

(Pa. 2007); Brown, 111 A.3d at 176-77. To invoke this exception, the 

petitioner must prove that “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.” 42 Pa.C.S. § 9545(b)(1)(ii). The petitioner also 

must file the petition within 60 days of the date the claim first could have 

been presented. 42 Pa.C.S. § 9545(b)(2). Here, the PCRA court found that 

Dawkins satisfied the new-facts exception and, thus, that it had jurisdiction 

to consider the merits of Dawkins’ after-discovered-evidence claim. 1925(a) 

Op. at 9.
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On appeal, Dawkins makes two related claims – one concerning the 

conduct of the PCRA hearing and one concerning the merits of his petition. 

As to the hearing, Dawkins asserts that the PCRA court erred in “engraft[ing] 

a merit-based analysis to its jurisdictional analysis when it handled [the] 

PCRA evidentiary hearing” and in making “merit-based credibility” 

determinations. Dawkins’ Br. at 29, 31. Dawkins contends that as a result, 

the PCRA court “denied [him] a full and fair hearing” and, in particular, 

“denied [his] ability to develop his timely-pled claims of police coercion and 

intimidation.” Id. at 33-34. Although Dawkins is correct that, at times 

during the three-day hearing, the trial court did not properly separate the 

two inquires – whether Dawkins had established an exception to the PCRA 

time-bar and, if so, whether he was entitled to relief – Dawkins’ claim fails.

In Brown, this Court explained the interplay between the new-facts 

exception to the PCRA time-bar and an after-discovered-evidence claim as 

follows:

[A] facially untimely PCRA petitioner attempting to raise a 

substantive after-discovered-evidence claim [under Section 

9543(a)(2)(vi)] must first establish jurisdiction by pleading 

and proving an exception to the PCRA time-bar. . . . [T]he 

“new facts” exception set forth at Section 9545(b)(1)(ii) 

does not require any merits analysis of an underlying 

after-discovered-evidence claim. Rather, to establish 

jurisdiction under Section 9545(b)(1)(ii), a petitioner must 

allege and prove (a) the existence of facts that were 

unknown to him and (b) his exercise of due diligence in 

discovering those facts.
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111 A.3d at 179. “Once jurisdiction is established, a PCRA petitioner can 

present a substantive after-discovered-evidence claim [under Section 

9543(a)(2)(vi)].” Id. at 176. Recently, our Supreme Court further clarified 

the distinction between these two inquiries, stating:

The distinction between the use of the terms “facts” in 

section 9545(b)(1)(ii) and “evidence” in section 

9543(a)(2)(vi) underscores their separate functions. . . . 

The function of a section 9545(b)(1)(ii) analysis is that of a 

gatekeeper. Its inquiry, therefore, is limited to considering 

only the existence of a previously unknown fact that would 

allow a petitioner to avoid the strict one year time-bar. In 

contrast, the purpose of an inquiry under section 

9543(a)(2)(vi) is to ensure that the claim presented is 

cognizable under the PCRA, and so it requires a more 

thorough analysis. As such, the matter upon which the 

claim is based is assessed in terms of its evidentiary merit, 

by considering the purpose for which it would be used and 

its potential impact on the outcome of trial. Through 

consideration of these factors, section 9543 assists the 

goal of the PCRA to provide relief to the wrongfully 

convicted by ferreting out colorable claims of wrongful 

convictions.

Commonwealth v. Cox, 146 A.3d 221, 229 n.11 (Pa. 2016).

Here, it appears that in discussing the scope of the proceedings with 

counsel, the PCRA court did not clearly distinguish the timeliness inquiry 

under Section 9545(b)(1)(ii) from the after-discovered-evidence inquiry 

under Section 9543(a)(2)(vi). See N.T., 3/10/15, at 51-61. The PCRA court 

also sustained the Commonwealth’s objections to defense counsel’s inquiries 

about aspects of the police investigation not directly related to the testimony 

of the four witnesses, apparently on the ground that the PCRA court needed 

to address timeliness first. See id. at 62-66. Dawkins asserts that if the 
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PCRA court had overruled the Commonwealth’s objections to that line of 

questioning, the record would have established that Dawkins’ newly 

discovered evidence, had it been presented to the jury, would have changed 

the outcome of his trial. This claim fails for two reasons.

First, Dawkins did not raise this evidentiary issue in his Pennsylvania 

Rule of Appellate Procedure 1925(b) statement. It is well settled that “[a]ny 

issues not raised in a [Rule] 1925(b) statement will be deemed waived.’” 

Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998); see 

Commonwealth v. Riggle, 119 A.3d 1058, 1070 (Pa.Super. 2015). 

Therefore, Dawkins has waived this claim.

Second, even if Dawkins had properly preserved this claim, the PCRA 

court’s conclusion that none of the four witnesses was credible precludes 

relief. It is well settled that “recantation evidence ‘is notoriously unreliable, 

particularly where the witness claims to have committed perjury.’” 

Commonwealth v. D'Amato, 856 A.2d 806, 825 (Pa. 2004) (citation 

omitted). As Dawkins acknowledges, see Dawkins’ Br. at 40, our Supreme 

Court has stated that “[t]he trial court has the responsibility of judging the 

credibility of the recantation [and] [u]nless the trial court is satisfied that the 

recantation is true, it should deny a new trial.” Commonwealth v. Henry, 

706 A.2d 313, 321 (Pa. 1997) (internal citation omitted).4

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4 We recognize that Brown and Evans did not testify at Dawkins’ trial, 

so their PCRA testimony is not true recantation evidence. See 

(Footnote Continued Next Page)
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After observing the testimony of the four witnesses, the PCRA court 

found their testimony incredible. In its opinion, the PCRA court explained in 

careful detail its reasons for disbelieving each of the four witnesses. See 

1925(a) Op. at 12-32. We are bound by the PCRA court’s credibility 

determinations when they are supported by the record. Commonwealth v. 

Abu-Jamal, 720 A.2d 79, 99 (Pa. 1998). Because Dawkins’ sole basis for 

claiming a right to a new trial was the after-discovered recantation 

testimony, once the PCRA court discredited that testimony, other details of 

the police investigation were irrelevant.5

Moreover, there is nothing in the record to suggest that the PCRA 

court would have made different credibility determinations had the 

complained-of objections been overruled. Dawkins’ failure to raise this 

evidentiary issue in either his post-hearing brief to the PCRA court or his 

Rule 1925(b) statement belies his present claim of harm from those rulings. 

In fact, in his post-hearing brief, Dawkins acknowledged that “[b]ased on 

the strength of [his] Petition for Post-Conviction Relief, [the PCRA court] 

(Footnote Continued) _______________________

Commonwealth v. Solano, 129 A.3d 1156, 1180 (Pa. 2015). However, 

because their PCRA testimony contradicted their pre-trial statements to 

police, “we view [them] with the same ‘jaundiced eye’” as recantation 

evidence. Id. (citation omitted). Williams and Perry, on the other hand, did 

testify at trial.

5

In any event, we note that later in the hearing, Dawkins’ counsel was 

able to inquire about some police interrogation issues without objection. 

See N.T., 7/1/15, at 205-06, 213-15.
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granted . . . Dawkins a hearing to test the credibility of the witnesses 

presented.” Dawkins’ Post-Hr’g Submission, 7/27/15, at 1-2. As our 

Supreme Court has observed, “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).

Next, Dawkins claims that the PCRA court erred in concluding that 

Dawkins’ new evidence, taken together, would not have resulted in a 

different verdict had it been presented at trial. Largely for the reasons 

discussed above, we disagree.

To succeed on an after-discovered-evidence claim under Section 

9543(a)(2)(vi), the petitioner must establish that the evidence: (1) was 

discovered after trial and could not have been obtained at or before trial 

through reasonable diligence; (2) is not cumulative; (3) is not being used 

solely to impeach credibility; and (4) would likely compel a different verdict. 

D'Amato, 856 A.2d at 824.

As discussed above, the PCRA court considered the testimony of each 

of Dawkins’ witnesses and thoroughly explained its reasons for discrediting 

their testimony. See 1925(a) Op. at 12-32. The PCRA court “assessed the 

demeanor of the witnesses, the substance of their testimony, as well as the 

substance of the prior statements and testimony, and found that the 

witnesses were not credible and that there was not a reasonable probability 
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that, upon hearing this testimony, the jury would have credited it and 

rendered a different verdict.” Id. at 12. The PCRA court ultimately 

concluded:

Even when considered in totality, the testimony of 

Brown, Williams, Perry, and Evans was not credible and 

failed to establish that the police engaged in a pattern and 

practice of coerciveness in order to get the witnesses to 

identify [Dawkins] and his co-defendant. It was this 

Court’s responsibility at the PCRA stage to assess the 

credibility of the witnesses presented, and to determine 

whether the nature and quality of the evidence was such 

that there was a reasonable probability that the jury would 

have credited it and rendered a more favorable verdict. 

With respect to this claim, this Court recognized that all 

four witnesses would have been impeached at trial with 

the testimony of the officers who took their statements, as 

well as with the pervasive inconsistencies in their 

testimony. When the statements of these four witnesses 

are viewed as a whole, they fail to demonstrate that the 

police engaged in a pattern and practice of coercion in 

investigating this case.

Id. at 32 (citation omitted). Based on our review of the certified record, 

Dawkins’ brief,6and the applicable law, we conclude that the record supports 

the PCRA court’s factual findings and credibility determinations and that the 

PCRA court’s conclusions are free of legal error.

Order affirmed.

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6 On June 1, 2016, this Court granted the Commonwealth’s request for 

an extension of time to file its brief, setting the new deadline as August 1, 

2016. As of the date of this memorandum, the Commonwealth has not filed 

a brief. This failure is both surprising and disappointing, given the 

significance of the case and the nature of Dawkins’ arguments on appeal.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/15/2016