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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ANTHONY E. FIELDER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3760 EDA 2016

Appeal from the PCRA Order November 7, 2016

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0416961-1990

BEFORE: LAZARUS, J., DUBOW, J., and PLATT*, J.

MEMORANDUM BY LAZARUS, J.: FILED AUGUST 13, 2018

Anthony E. Fielder appeals from the order of the Court of Common Pleas 

of Philadelphia County, dismissing his petition filed pursuant to the Post 

Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 (“PCRA”). Counsel has filed 

a petition to withdraw and an “Anders” brief.1 Upon review, we affirm the 

PCRA court’s order and grant counsel’s motion to withdraw.

On January 18, 1991, Fielder was convicted of first-degree murder and 

related offenses stemming from an incident in which he shot the victim after 

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1 Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), 

apparently in the mistaken belief that an Anders brief is required where 

counsel seeks to withdraw on appeal from the denial of PCRA relief. A 

Turner/Finley “no-merit” letter, however, is the appropriate filing in the 

context of PCRA proceedings. See Commonwealth v. Turner, 544 A.2d 927 

(Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en 

banc ). Because an Anders brief provides greater protection to a defendant, 

this Court may accept an Anders brief in lieu of a Turner/Finley letter. 

Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004).
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an altercation outside of a bar in Philadelphia. This Court previously 

summarized the facts of the case as follows:

On Saturday, September 23, 1989[,] at about 5:00 p.m.[,] the 

victim, Jack Fauntleroy, was having an argument outside Skip’s 

Bar at 52nd and Market Street [in Philadelphia] with a man named 

Stefan. Stefan then went into the bar and came out with Anthony 

Fielder[,] who began arguing with the victim. After a few 

minutes[,] Alfonso Goldsmith, a friend of the [decedent], 

intervened on behalf of [the decedent] and began to argue with 

[Fielder]. The argument came to blows and when Goldsmith 

began to get the better of it[, Fielder] left and went back into 

Skip’s Bar. A few minutes later[, Fielder] emerged from the bar 

with a .38 caliber handgun and fired it at the fleeing victim[,] 

hitting him in [sic] once in the leg and once in the back[,] causing 

his death.

Commonwealth v. Fielder, 1487 Philadelphia 1998, at 1 (Pa. Super. filed 

6/10/99) (unpublished memorandum decision), quoting Trial Court Opinion, 

7/1/91, at 1. 

Fielder was sentenced on May 30, 1991, to a term of life imprisonment 

without the possibility of parole. This Court affirmed his judgment of sentence 

on July 20, 1992 and, on January 27, 1993, our Supreme Court denied 

allowance of appeal. 

Fielder filed his first PCRA petition on January 14, 1997; the petition was 

denied and the trial court’s order was affirmed by this Court. Fielder did not 

seek allowance of appeal. On August 29, 2012, Fielder filed the instant PCRA 

petition, his second, alleging that Latonia Shawver, one of two eyewitnesses 

who testified at his trial, had recanted her testimony. The PCRA court held a 

hearing on November 7, 2016, at which time Shawver testified. The PCRA 
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court, having determined Shawver’s recantation to be “dubious,” dismissed 

Fielder’s petition that same day. 

This timely appeal follows, in which counsel seeks to withdraw his 

representation of Fielder. 

In order to withdraw as counsel on appeal from the dismissal of a PCRA 

petition, counsel must undertake an independent review of the record to 

ascertain that there are no meritorious issues to be raised. See 

Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009). Such independent 

review requires proof of: (1) a “no-merit” letter prepared by counsel detailing 

the nature and extent of his review and listing each issue the petitioner wished 

to have reviewed; (2) an explanation by counsel, in the “no-merit” letter, of 

why the petitioner’s issues were meritless; (3) an independent review of the 

record by the PCRA court; and (4) a finding by the PCRA court that the petition 

was meritless. See id. at 876 n.1. In addition, PCRA counsel must 

contemporaneously serve on the petitioner a copy of counsel’s application to 

withdraw as counsel, and must supply to the petitioner both a copy of the “nomerit” letter and a statement advising the petitioner that, in the event that 

the court grants the application of counsel to withdraw, he or she has the right 

to proceed pro se or with the assistance of privately retained counsel. 

Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 2006).

Here, counsel has substantially complied with the procedural 

requirements for withdrawal. We now turn to an independent review of 

Fielder’s PCRA Petition to ascertain whether his claim is, in fact, frivolous.
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Fielder raises the following issue on appeal: “Whether the afterdiscovered evidence, an eyewitness that testified at trial, recanting testimony 

25 years later, at an evidentiary hearing, was without any legal merit.” 

Anders Brief, at 4. 

We review an order dismissing a petition under the PCRA by examining 

whether PCRA court’s determination is supported by the evidence of record 

and is free of legal error. See Commonwealth v. Halley, 870 A.2d 795, 799 

n.2 (Pa. 2005). “[Our] scope of review is limited to the findings of the PCRA 

court and the evidence of record, viewed in the light most favorable to the 

prevailing party at the PCRA court level.” Commonwealth v. Koehler, 36 

A.3d 121, 131 (Pa. 2012) (citation omitted). “The PCRA court’s credibility 

determinations, when supported by the record, are binding on this Court.” 

Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (citation omitted).

“However, this Court applies a de novo standard of review to the PCRA court’s 

legal conclusions.” Id.

Although neither the parties nor the court address the matter of the 

timeliness of Fielder’s petition, because the timeliness of a PCRA petition is 

jurisdictional, we must do so before reviewing the merits of his substantive 

claim. See Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 

2013). 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 

is final unless the petition alleges, and the petitioner proves, an exception to 
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the timeliness requirement. See 42 Pa.C.S.A. § 9545(b)(1)(i)–(iii).2 A PCRA 

petition invoking one of these statutory exceptions must be filed within sixty 

days of the date the claims could have been presented. 42 Pa.C.S.A. § 

9545(b)(2). 

Here, Fielder’s judgment of sentence became final on or about April 27, 

1993, upon the expiration of the ninety-day period for filing a writ of certiorari 

with the U.S. Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3); Sup.Ct.R. 13. 

Thus, his August 2012 petition, filed more than 19 years after his judgment 

of sentence became final, was patently untimely. Unless Fielder pled and 

proved one of the timeliness exceptions under 42 Pa.C.S.A. § 9545(b)(1), the 

PCRA court was without jurisdiction to consider the merits of the petition.

In order to circumvent the statutory time bar, Fielder invokes the newlydiscovered fact exception under section 9545(b)(1)(ii). Fielder presents the 

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2 The statutory exceptions to the time bar are as follows:

(i) the failure to raise the claim previously was the result of 

interference by government officials with the presentation of the 

claim in violation of the Constitution or laws of this Commonwealth 

or the Constitution or laws of the United States;

(ii) 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; or

(iii) the right asserted is a constitutional right that was recognized 

by the Supreme Court of the United States or the Supreme Court 

of Pennsylvania after the time period provided in this section and 

has been held by that court to apply retroactively.

42 Pa.C.S.A. §§ 9545(b)(1)(i)-(iii).
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affidavit given by trial witness Latonia Shawver to a private investigator that

contradicted her trial testimony. Specifically, at trial, Shawver testified that 

she had seen Fielder shoot Fauntleroy. She further testified that she had then 

seen the shooter run up 52nd Street with a gun in his hand, run into a 

delicatessen, come back out of the delicatessen a short time later, and 

continue running out of her sight. In her 2012 statement, however, Shawver 

averred that Fielder was not the person she saw with the gun who ran into 

the delicatessen. She stated that she had been pressured by police to identify 

Fielder as the shooter. 

The timeliness exception set forth in [s]ection 9545(b)(1)(ii) 

requires a petitioner to demonstrate he did not know the facts 

upon which he based his petition and could not have learned those 

facts earlier by the exercise of due diligence. Commonwealth v. 

Bennett, [] 930 A.2d 1264, 1271 ([Pa.] 2007). Due diligence 

demands that the petitioner take reasonable steps to protect his 

own interests. Commonwealth v. Carr, 768 A.2d 1164, 1168 

(Pa. Super. 2001). A petitioner must explain why he could not 

have obtained the new fact(s) earlier with the exercise of due 

diligence. Commonwealth v. Breakiron, [] 781 A .2d 94, 98 

([Pa.] 2001); Commonwealth v. Yarris, [] 731 A.2d 581, 590 

([Pa.] 1999). This rule is strictly enforced. See [Commonwealth 

v. Vega, 754 A.2d 714, 718 (Pa. Super. 2000)].

Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010).

The sixty (60) day time limit related to [s]ection 9545(b)(2) runs 

from the date the petitioner first learned of the alleged afterdiscovered facts. Commonwealth v. Albrecht, [] 994 A.2d 

1091 ([Pa.] 2010). A petitioner must explain when he first learned 

of the facts underlying his PCRA claims and show that he brought 

his claim within sixty (60) days thereafter. Id. (holding petitioner 

failed to demonstrate his PCRA petition was timely where he did 

not explain when he first learned of facts underlying his PCRA 

petition)[]. “A petitioner fails to satisfy the 60–day requirement 

of [s]ection 9545(b) if he . . . fails to explain why, with the 
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exercise of due diligence, the claim could not have been filed 

earlier.” Commonwealth v. Marshall, [] 947 A.2d 714, 720 

([Pa.] 2008)[]. All of the time limits set forth in the PCRA are 

jurisdictional and must be strictly construed. Commonwealth v. 

Fahy, [] 959 A.2d 312, 315 ([Pa.] 2008).

Commonwealth v. Williams, 35 A.3d 44, 53 (Pa. Super. 2011).

This Court recently clarified a petitioner’s burden under section 

9545(b)(1)(ii) as follows:

The timeliness exception set forth at [s]ection 9545(b)(1)(ii) has 

often mistakenly been referred to as the “after-discovered 

evidence” exception. This shorthand reference was a misnomer, 

since the plain language of subsection (b)(1)(ii) does not require 

the petitioner to allege and prove a claim of “after-discovered 

evidence.” Rather, as an initial jurisdictional threshold, [s]ection 

9545(b)(1)(ii) requires a petitioner to allege and prove that there 

were facts unknown to him and that he exercised due diligence in 

discovering those facts. Once jurisdiction is established, a PCRA 

petitioner can present a substantive after-discovered-evidence 

claim. See 42 Pa.C.S.A. § 9543(a)(2)(vi) (explaining that to be 

eligible for relief under PCRA, petitioner must plead and prove by 

preponderance of evidence that conviction or sentence resulted 

from, inter alia, unavailability at time of trial of exculpatory 

evidence that has subsequently become available and would have 

changed outcome of trial if it had been introduced). In other 

words, the “new facts” exception at subsection (b)(1)(ii) has two 

components, which must be alleged and proved. Namely, the 

petitioner must establish that: 1) the facts upon which the claim 

was predicated were unknown and 2) [those facts] could not have 

been ascertained by the exercise of due diligence. If the petitioner 

alleges and proves these two components, then the PCRA court 

has jurisdiction over the claim under this subsection.

Thus, the “new facts” exception at [s]ection 9545(b)(1)(ii) does 

not require any merits analysis of an underlying after-discoveredevidence claim.
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Commonwealth v. Brown, 111 A.3d 171, 176–77 (Pa. Super. 2015) (some 

internal citations, quotation marks and punctuation omitted) (emphasis 

added).

In his PCRA petition, Fielder asserted that at the end of June 2012, 

Latonia Shawver contacted his sister, Teresa, by telephone and stated that 

she had “important information” about Fielder’s case. Shawver did not divulge 

to Teresa what the information was. Teresa took Shawver’s phone number 

and informed her she would have an attorney contact her. Fielder 

subsequently retained Teri B. Himebaugh, Esquire, who contacted Shawver by 

telephone. Shawver told Attorney Himebaugh that she was now living in 

Detroit and had important information about Fielder’s case. Again, she did 

not specify the nature of the information she possessed, but she indicated to 

Attorney Himebaugh that she would speak to an investigator. Attorney 

Himebaugh retained Wayne Bullen, a private investigator in Michigan, who 

took Shawver’s taped statement, as well as a sworn affidavit, on August 23, 

2012. 

Our review of the record leads us to the conclusion that Shawver’s 

affidavit satisfies the jurisdictional threshold for the newly-discovered facts 

exception contained in section 9545(b)(1)(ii). Fielder could not have known 

at the time of his trial that Shawver was not testifying truthfully, or that 

Shawver believed she had been pressured into identifying Fielder as the 

shooter. Nor would Fielder have had any reason to know or believe, in the 

time between his trial and the date Shawver gave her affidavit, that she had 
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recanted her testimony. Fielder did not know Shawver personally and she had 

long ago moved out of state. Thus, the first date that Fielder, exercising due 

diligence, could have known of Shawver’s recantation was the date she spoke 

with the investigator and executed her affidavit, August 23, 2012. Fielder 

filed his PCRA petition on August 29, 2012, well within the 60-day period 

required under section 9546(b)(2). Accordingly, the PCRA court possessed 

jurisdiction to consider the merits of Fielder’s claim. We now turn to our own 

independent review of that claim, as required by Turner/Finley. 

Fielder asserts that he is entitled to a new trial based on Shawver’s 

recantation. Fielder claims that, without Shawver’s identification testimony, 

the sole Commonwealth evidence implicating him in the shooting is the 

testimony of a biased witness, Antonio Goldsmith. Fielder asserts that, in light 

of Shawver’s recantation, a reasonable jury could not possibly find him guilty. 

For the following reasons, Fielder’s claim is meritless. 

When seeking a new trial based on alleged after-discovered 

evidence in the form of recantation testimony, the 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. 

Commonwealth v. Johnson, 966 A.2d 523, 541 (Pa. 2009) (citations 

omitted). Here, Fielder is unable to establish that the after-discovered 

evidence, in the form of Shawver’s alleged recantation, would likely compel a 

different verdict.
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As a general matter, 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). This 

generalization is borne out by Shawver’s testimony at the PCRA hearing in this 

matter. Although Shawver initially testified that she had lied when she 

identified Fielder as the person who ran into the delicatessen with the gun, by 

the conclusion of cross-examination, Shawver had again changed her story 

and conceded that Fielder was the individual she had seen.

Q: You spoke the truth [at trial], you saw that defendant [Fielder] 

kill Jack Fauntleroy, that’s the truth?

A: I saw him leave the scene. I didn’t see him pull the trigger. I 

didn’t see an actual shooting. I saw him with a handgun. 

. . .

Q: Let’s look at more [trial testimony]. Page 98, third question 

from the bottom:

QUESTION: “Could you tell where the gun was pointed at 

when the defendant shot?”

ANSWER: “Yes.”

QUESTION: “Where was it pointed at?”

ANSWER: “In his back. It looked like his lower back.”

QUESTION: “How many shots did you see the defendant 

firing?”

ANSWER: “Two.” 

That was your testimony, was it not, ma’am?

A: Yes.

Q: That was the truth?
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A: Yep.

Q: You saw the defendant fire two shots into Jack Fauntleroy, 

true?

A: Yes, sir.

Q: So all the testimony this morning was a lie?

A: Now that I’m recalling and this document, all this stuff is 

coming back to me that we are sitting here and going over this. 

It’s been 30 years.

. . .

Q: He is the one – the defendant is the one that killed Jack 

Fauntleroy; true?

A: He looks like the individual I saw that day. He has the 

description of it, yes, with the goatee.

. . .

Q: You’re still [sic] on the fact that back then you absolutely, 

positively, without a doubt, knew this defendant[,] who looks 

somewhat different[,] was the person who you saw shoot Jack 

Fauntleroy in the back?

A: Yes, sir.

N.T. PCRA Hearing, 11/7/16, at 130, 133-34, 135, 136.

In light of the foregoing, Fielder has failed to demonstrate that 

Shawver’s testimony would compel a different result were he to be granted a 

new trial. Johnson, supra. Indeed, her testimony would support a finding 

of guilt. Accordingly, the PCRA court did not err or abuse its discretion in 

denying Fielder relief.

Order affirmed. Petition to withdraw granted.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/13/18