J-S68008-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DANIEL CARTER,

Appellant No. 2446 EDA 2013

Appeal from the PCRA Order entered July 26, 2013,

in the Court of Common Pleas of Philadelphia County,

Criminal Division, at No(s): CP-51-CR-1213321-1992

BEFORE: ALLEN, JENKINS, and MUSMANNO, JJ.

MEMORANDUM BY ALLEN, J.: FILED NOVEMBER 07, 2014

Daniel Carter (“Appellant”) appeals from the order denying his second 

petition for relief under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. 

sections 9541-46. We affirm the PCRA court’s order denying post-conviction 

relief.

The pertinent facts are as follows:

On July 3, 1992, at approximately 1:30 a.m., 

[Appellant] and one Jamal Jones arrived at the home of 

Daniel Witherspoon at 711 Mercy Street in Philadelphia. 

Appellant requested to speak with Shawn “Ali” Bain, who 

was Witherspoon’s step-son and resided with him. 

Appellant asked Bain if he could borrow his twelve gauge 

sawed-off shotgun. Bain agreed and retrieved the 

shotgun, loaded with three shells, from his bedroom. 

Appellant and [Jones] left with the shotgun and met one 

Wayne “Hawk” Witherspoon. The three men proceeded to 

a playground, approximately one and one-half blocks from 

[Daniel] Witherspoon’s house. Once inside the 

playground, [Appellant] approached the victim, Darryl 

Chinn, who was sitting on a park bench facing the 
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basketball court. Appellant fired a single, fatal shot into 

Chinn’s groin and pelvis from approximately two yards 

away.

***

On October 31, 1992, [Appellant] was arrested and 

charged with the murder of Darryl Chinn.

Commonwealth v. Carter, 661 A.2d 390, 391-92 (Pa. Super. 1995).

At the conclusion of a two-day bench trial, the trial court found 

Appellant guilty of first-degree murder, possession of an instrument of 

crime, and criminal conspiracy. Subsequently, the trial court sentenced 

Appellant to life in prison for his murder conviction, and a suspended 

sentence on the remaining convictions. Appellant filed a timely appeal to 

this Court. On June 6, 1995, a divided panel affirmed Appellant’s judgment 

of sentence. Carter, supra. On April 9, 1996, our Supreme Court denied 

Appellant’s petition for allowance of appeal. Commonwealth v. Carter, 

675 A.2d 1242 (Pa. 1996).

On July 7, 1997, Appellant filed a pro se PCRA petition. The PCRA 

court appointed counsel, and PCRA counsel filed an amended petition. The 

PCRA court held two days of evidentiary hearings. By opinion and order 

dated January 5, 1999, the PCRA court denied relief. Appellant filed a timely 

appeal to this Court. In an unpublished memorandum filed on March 7, 

2000, we adopted the PCRA court’s opinion as our own in affirming its denial 

of post-conviction relief. Commonwealth v. Carter, 757 A.2d 990 (Pa. 

Super. 2000) (unpublished memorandum). On July 5, 2000, our Supreme 
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Court denied Appellant’s petition for allowance of appeal. Commonwealth 

v. Carter, 785 A.2d 87 (Pa. 2000).

On September 21, 2010, Appellant filed a second PCRA petition. The 

PCRA court appointed counsel, and PCRA counsel filed an amended petition. 

While acknowledging that his serial petition was untimely, Appellant asserted 

that he filed it within sixty days of obtaining the new evidence. The PCRA 

court summarized the claim within the amended petition as follows:

In this Amended Petition, [Appellant] claimed that on 

July 20, 2010, a woman named Raynell Allen wrote 

[Appellant] a letter in which she informed him that her 

then-boyfriend [Jamal Jones], had confessed to her on the 

night of the shooting at issue in this case that he, and not 

[Appellant,] committed the murder of which [Appellant] 

was convicted. [Jamal Jones] passed away on December 

22, 2005.

PCRA Court Opinion, 11/7/13, at 2 (footnote and citations omitted).

The PCRA court then explained the subsequent procedural history as 

follows:

On November 16, 2012, Judge Temin ordered that an 

evidentiary hearing be held on [Appellant’s] afterdiscovered evidence claim. Due to Judge Temin’s 

retirement from the bench, this PCRA was then reassigned to the [PCRA court]. On July 26, 2013, following 

an evidentiary hearing and supplemental pleadings by both 

parties, the Court entered an order dismissing 

[Appellant’s] PCRA petition. [PCRA counsel] subsequently 

withdrew from representation, and [Appellant] requested 

permission to proceed pro se. The PCRA court held a 

Grazier hearing and permitted [Appellant] to represent 

himself.
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PCRA Court Opinion, 11/7/13, at 2 (footnote omitted). This timely pro se

appeal followed. Both Appellant and the PCRA court have complied with 

Pa.R.A.P. 1925.

Appellant raises the following issues on appeal:

I. For the reasons given, [d]id the [PCRA court] err in 

holding that the proffered testimony of [Ms.] Allen did not 

constitute legally sufficient after-discovered evidence?

II. Did the [PCRA court] err in denying [Appellant’s] claim 

of ineffective assistance of [PCRA] counsel, given counsel’s 

complete and utter failure to investigate and provide the 

testimonial evidence for several relevant witnesses?

III. Do the interests of justice require a remand for the 

purpose of taking the respective testimonies of [prior 

counsel] and Wayne Witherspoon?

Appellant’s Brief at 4.

This Court’s standard of review regarding a PCRA court’s order is 

whether the determination of the PCRA court is supported by the evidence of 

record and is free of legal error. Commonwealth v. Reaves, 923 A.2d 

1119, 1124 (Pa. 2007). 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). 

Moreover, “[a] second or any subsequent post-conviction request for relief 

will not be entertained unless a strong prime facie showing is offered to 

demonstrate that a miscarriage of justice may have occurred.” 

Commonwealth v. Burkhardt, 833 A.2d 233, 236 (Pa. Super. 2003) (en 

banc) (citations omitted). “A petitioner makes a prime facie showing if he 
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demonstrates that either the proceedings which resulted in his conviction 

were so unfair that a miscarriage of justice occurred which no civilized 

society could tolerate, or that he was innocent of the crimes for which he 

was charged.” Id. 

Generally, a petition for relief under the PCRA, including a second or 

subsequent petition, must be filed within one year of the date the judgment 

becomes final unless the petition alleges, and the petitioner proves, an 

exception to the time for filing the petition. Commonwealth v. GamboaTaylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under 

these exceptions, the petitioner must plead and prove that “(1) there has 

been interference by government officials in the presentation of the claim; or 

(2) there exists after-discovered facts or evidence; or (3) a new 

constitutional right has been recognized.” Commonwealth v. Fowler, 930 

A.2d 586, 591 (Pa. Super. 2007) (citations omitted). A PCRA petition 

invoking one of these statutory exceptions must “be filed within sixty days of 

the date the claim first could have been presented.” Id. See also 42 

Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to the time restrictions of the 

PCRA must be pled in the petition, and may not be raised for the first time 

on appeal. Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 

2007); see also Pa.R.A.P. 302(a) (“Issues not raised before the lower court 

are waived and cannot be raised for the first time on appeal.”).
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As noted above, Appellant acknowledges that his serial PCRA petition 

is untimely, but asserts that he timely filed the petition once he obtained 

new evidence. When considering a PCRA petitioner’s claim that he or she 

has established an exception to the PCRA’s time bar under section 

9545(b)(1)(ii), the petitioner must establish only that the facts upon which 

the claim was predicated were unknown to him, and that he could not have 

ascertained the facts earlier despite the exercise of due diligence. 

Commonwealth v. Bennett, 930 A.2d 1264, 1270-72 (Pa. 2007). The 

determination of timeliness does not require a merits analysis. 

Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008).

A petitioner is eligible for relief under the PCRA if he can establish 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.A. § 9543(a)(2)(vi). This Court 

has explained the test to be applied to such a claim as follows:

To obtain relief based on after-discovered evidence, an 

appellant must demonstrate that the evidence: (1) could 

not have been obtained prior to the conclusion of the trial 

by the exercise of reasonable due diligence; (2) is not 

merely corroborative or cumulative; (3) will not be used 

solely to impeach the credibility of a witness; and (4) 

would likely result in a different verdict if a new trial were 

granted.

Commonwealth v. Foreman, 55 A.3d 532, 537 (Pa. Super. 2012) (citation 

omitted). “The test is conjunctive; the appellant must show by a 
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preponderance of the evidence that each of these factors has been met in 

order for a new trial to be warranted.” Id. Moreover, “when reviewing the 

decision to grant or deny a new trial on the basis of after-discovered 

evidence, an appellate court is to determine whether the PCRA court 

committed an abuse of discretion or error of law that controlled the outcome 

of the case.” Id.

In rejecting Appellant’s claim, the PCRA court explained:

Here, the Court concluded that the “after-discovered 

evidence” presented by [Appellant] at the PCRA 

evidentiary hearing clearly would not result in a different 

verdict if a new trial were granted. This conclusion was 

premised upon two findings. 

First, the proffered after-discovered evidence was 

utterly and completely incredible, and therefore, was not 

likely to have any effect on the outcome of the trial. 

[Appellant’s] after-discovered evidence consisted solely of 

the testimony of Raynell Allen. According to Ms. Allen’s 

testimony at the evidentiary hearing, she has known 

[Appellant] for twenty years. Ms. Allen testified that, 

years after the murder of [the victim], she ran into 

[Appellant’s] daughter, who informed Ms. Allen that 

[Appellant] was in prison for murder. Ms. Allen testified 

that thereafter, she wrote [Appellant] a letter in which she 

informed [Appellant] that she knew that he did not kill [the 

victim]. Ms. Allen testified that on the night that [the 

victim] was murdered, she was in her home at 607 Mercy 

Street, across the street from the playground in which the 

murder occurred, when she heard a gunshot. Ms. Allen 

testified that shortly after she heard the shot, her 

boyfriend, [Jones], entered her apartment and asked her 

to go and look in the playground because he had shot 

someone. According to Ms. Allen, Mr. [Jones] wanted her 

to go outside to the playground and check to see if the 

man was dead. Ms. Allen stated that she went into the 

playground and saw a man lying under a bench and blood 

on the ground. Ms. Allen testified that, following the 
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incident, she never asked Mr. [Jones] about what 

happened, and he never told her anything else about the 

shooting. Ms. Allen testified that she was afraid to come 

forward with this information, and that after that night, 

she never spoke to anyone about what had happened, and 

that she never gave an interview to the police.

The PCRA court found Ms. Allen’s testimony to be 

incredible for several reasons. First, Ms. Allen did not 

come forward with this information until more than 18 

years after the murder, and more than six years after Mr. 

[Jones] had passed away and therefore could no longer be 

prosecuted for the crime. Moreover, at the evidentiary 

hearing, Ms. Allen testified that she had never spoken to 

the police or given a statement regarding the murder. 

However, the evidence at the hearing established that, 

contrary to this testimony, Ms. Allen had given to the 

police a signed statement on the day of [the victim’s] 

murder in which she told the police a completely different 

story than the story she told at the evidentiary hearing. In 

particular, Ms. Allen told the police that she was walking to 

a swimming pool to see a friend named Ramy when she 

happened upon [the victim], who was moaning and 

bleeding heavily. Nowhere in her statement to the police, 

given on the very day of the killing, did she ever mention 

Mr. [Jones,] or even hint at the sequence of events that 

she described at the evidentiary hearing approximately 21 

years later. The Court found her testimony to be 

demonstratively unbelievable and incapable of influencing 

the decision of a reasonable factfinder.

Second, Ms. Allen’s testimony, even if true, would not 

have established that [Appellant] was not guilty of 

conspiracy and first-degree murder. As described above, 

the evidence at the trial established that [Appellant], 

together with Mr. [Jones], secured the shotgun that was 

used to murder [the victim], and that both [Appellant] and 

Mr. [Jones], along with Mr. Witherspoon, confronted [the 

victim] in the playground. Therefore, even if, as 

[Appellant] now claims, Mr. [Jones] pulled the trigger and 

shot [the victim,] [Appellant] would still be guilty of firstdegree murder as either a co-conspirator or accomplice of 

the shooter.
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PCRA Court Opinion, 11/7/13, at 7-9 (footnote and citations omitted).

Our review of the record supports the PCRA court’s conclusion that 

Appellant has failed to meet the burden necessary to obtain post-conviction 

relief on an after-discovered evidence claim. See e.g., Commonwealth v. 

Abu-Jamal, 720 A.2d 79, 104-05 (Pa. 1998) (rejecting the petitioner’s 

claims that the proposed testimony of newly discovered witnesses 

established a basis for the grant of a new trial). 

Appellant’s remaining claims involve his assertion that PCRA counsel 

was ineffective in his presentation of Appellant’s “after-discovered” evidence 

claim. See Appellant’s Brief at 38-39. Unfortunately for Appellant, and as 

recognized by the PCRA court, Appellant inappropriately has raised this claim 

for the first time on appeal. See Commonwealth v. Ford, 44 A.3d 1190, 

1200 (Pa. Super. 2012) (noting that a majority of the Pennsylvania Supreme 

Court agrees that issues of PCRA counsel ineffectiveness must be raised in a 

serial PCRA petition or in response to a Pa.R.Crim.P. 907 notice of dismissal 

before the PCRA court). Appellant has therefore failed to preserve his 

remaining claims.

In sum, the record supports the PCRA court’s conclusion that Appellant 

failed to establish his claim of after-discovered evidence, and his claims of 

ineffectiveness of PCRA counsel are not preserved. We thus affirm the PCRA 

court’s order denying Appellant post-conviction relief.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/7/2014