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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA 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 co

defendant, 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:

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1 18 Pa.C.S. §§ 2502(a), 903, 6106, and 907(a), respectively.J

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- On [December 18, 2006], this Court sentenced [Dawkins] to the mandatory term of life imprisonment. [Daw kins] 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 [Dawki ns’] 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 dismis s. 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). C onsistent 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 Com monwealth 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.J

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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 base d 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

a s 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 h earing, 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

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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, conclud ing “that nothing existed on which DNA testing could be attempted.” 1925(a) Op. at 3. Dawkins does not challenge that ruling on appeal.J

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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 e rror.” 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.

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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 th e one year 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 coul d 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, t he 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.J

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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 jurisdi ctional 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 Dawk ins 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 c laim 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 alleg e and prove (a) the existence of facts that were unknown to him and (b) his exercise of due diligence in discovering those facts.J

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111 A.3d at 179. “Once jurisdiction is established, a PCRA petitioner can present a substantive after

- discovered

- evidence cla im [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 9 543(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 petit ioner 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 whi ch 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 d id 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 co unsel’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 theJ

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PCRA c ourt 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 t wo 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. Lor d , 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 witne sses 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 den y 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’ tr ial, so their PCRA testimony is not true recantation evidence. See (Footnote Continued Next Page)J

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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 de tail 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 Da wkins’ 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 su ggest 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) stateme nt 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 e ye’” 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 obj ection. See N.T., 7/1/15, at 205

- 06, 213

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granted . . . Dawkins a hearing to test the credi bility 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, iss ues 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 resul ted 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 disco vered 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 probabilityJ

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that, upon hearing this testimony, the jury would have credited it and render ed 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 co erciveness 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 o f 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 co ercion in investigating this case.
Id. at 32 (citation omitted). Based on our review of the certified record, Dawkins’ brief, 6 and the applicable law, we conclude that the record supports the PCRA court’s factual findings and credibility determinations an d 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 surpri sing and disappointing, given the significance of the case and the nature of Dawkins’ arguments on appeal.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/15/201 6