J-S18028-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DERRICK ELLIOT,Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1431 WDA 2017

Appeal from the PCRA Order September 12, 2017

in the Court of Common Pleas of Allegheny County, Criminal Division at No(s): CP-02-CR-0014878-2010

BEFORE: STABILE, J., MUSMANNO, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MUSMANNO, J.: FILED JUNE 15, 2018

Derrick Elliot (“Elliot”) appeals from the Order dismissing his first

Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1

We affirm.

This Court previously summarized the factual and procedural history of

this case as follows:

On March 7, 2009, Melvin Duncan, Jr. [(“Duncan”)], Tezjuan

Taylor [(“Taylor”)], and Lamar Patrick [(“Patrick”)] drove to the

Crawford Village in McKeesport in a stolen red Honda car, and

stopped the vehicle near a basketball court. Patrick was in the

driver’s seat, Taylor was in the front passenger seat, and Duncan

was in the back seat standing up through the sunroof. Elliot was

in the nearby basketball court. When [Elliot] saw the red car, he

picked up a gun and, while walking in the parking lot adjoining the

court, began firing shots at the car. One of the bullets struck

Duncan, and he fell back into the car as Patrick drove away

quickly. [Patrick] stopped the car on a dead[-]end street, where

he and Taylor pulled Duncan out of the car and placed him on the

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1 See 42 Pa.C.S.A. §§ 9541-9546.
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ground before fleeing on foot. The City of McKeesport Police

Department later received a call reporting that a stolen car had

been located. When the police responded to the location, they

found Duncan lying beside the passenger side of the vehicle. He

was pronounced dead shortly thereafter.

Allegheny County police investigators responded to the

scene of the Crawford Village shooting. The police recovered

seven shell casings from the parking lot adjacent to the basketball

courts; testing revealed that they had all been fired from the same

gun. The police did not recover the weapon. The caliber of shell

casings found at Crawford Village was the same as the caliber of

the casing removed from Duncan’s body.

Several witnesses identified Elliot as the shooter. Jameelah

Miller [(“Miller”)], an eyewitness, told police that when the

shooting started, everyone hit the ground—except Elliot[,] who

remained standing with a gun in his hand, shooting toward the

car. Derrick Walker [(“Walker”)] told police that Elliot had

confessed to him that he had shot at the car. Patrick identified

Elliot in a photo array as someone who “jumped out at him,” and

told investigators that the shooter’s name was “Derrick.” Trial

Court Opinion, dated 9/3/14, at 6. Elliot was arrested and charged

with the aforementioned crimes.

At Elliot’s [non-jury] trial, Patrick and Walker withdrew their

prior statements made to police. Patrick testified that he had

never positively identified Elliot from the photo array as the

shooter and stated that Elliot was not the shooter. Taylor testified

that he did not see the shooter, did not know Elliot, and did not

see Elliot at the scene of the crime. Walker testified that he did

not have a conversation with [Elliot]. The [trial] court admitted

Patrick’s prior statement, as well as a video of Walker’s interview

with investigating officers in which Walker told officers that Elliot

had told him that he was the shooter. [] Miller testified in detail

about the circumstances leading up to and including the shooting.

She also stated that she did not hear gunshots coming from

anywhere else in the area and “[s]he was emphatic that there was

only one person shooting, and that the shooter was Derrick Elliot,

the Defendant.” Id. at 6-7. She also testified that threats had

been made against her prior to trial and she had been placed in a

witness protection program.
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The [trial] court found Elliot guilty of third-degree murder

and [a] firearms offense. He was subsequently sentenced to a

term of 121⁄2 to 25 years’ incarceration for the homicide conviction

and to a consecutive term of 31⁄2 to 7 years’ incarceration for the

firearms conviction.

Commonwealth v. Elliot, 122 A.3d 453 (Pa. Super. 2015) (unpublished

memorandum at 1-4) (footnote omitted).

This Court affirmed Elliot’s judgment of sentence, after which the

Pennsylvania Supreme Court denied allowance of appeal. See id., appeal

denied, 2016 Pa. LEXIS 730 (Pa. 2016).

On December 17, 2015, Elliot filed pro se correspondence alleging

ineffectiveness of direct appeal counsel, which the PCRA court treated as a

timely, first PCRA Petition. The PCRA court appointed Elliot PCRA counsel

(hereinafter “PCRA counsel”). PCRA counsel filed an Amended PCRA Petition

alleging that Elliot’s trial counsel was ineffective for failing to impeach the

testimony of Miller. PCRA counsel thereafter filed a second Amended PCRA Petition.

Therein, PCRA counsel (1) attached an Affidavit (hereinafter, the “Affidavit”),

executed by Miller on April 6, 2017, wherein she recanted her identification of

Elliot as the shooter and identified another man; and (2) requested an

evidentiary hearing concerning this after-discovered evidence. At the September 12, 2017 evidentiary hearing (hereinafter, the “PCRA

Hearing”), Miller retracted her allegations in the Affidavit, via her appointed
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counsel.2 Concerning Miller’s retraction, PCRA counsel stated as follows at the

PCRA hearing:

By way of procedural background, Your Honor, when I had [] Miller

subpoenaed for a separate PCRA proceeding raising similar -- that

she recanted a prior identification, I spoke with [] Miller[,] at

which time she told me that she had been either threatened or

intimidated into making those statements, at which time[,]

pursuant to my ethical responsibilities as an attorney[,] I

petitioned this court for the appointment of counsel for [] Miller[,]

and [counsel] was appointed to represent her.

It is my understanding[,] in a prior conversation with

[Miller’s counsel,] that [Miller] does not intend to testify and that

she would maintain that her signature or [A]ffidavit [sic] was the

product of coercion.

N.T., 9/12/17, at 4; see also id. at 5 (wherein Miller’s counsel stated that

Miller “believes the whole [A]ffidavit to recant is false and her original

testimony would be her testimony at this time.”).

At the close of the PCRA Hearing, the PCRA court entered a

Memorandum Order dismissing Elliot’s first Petition. Elliot then filed the

instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise

Statement of errors complained of on appeal.

Elliot now presents the following question for our review: “Did the

[PCRA] court err when it dismissed [Elliot’s] PCRA [P]etition alleging after- discovered evidence[,] without placing ... Miller under oath to testify relative

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2 Though Miller was present at the PCRA hearing, she never testified.
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to her [A]ffidav[]it[,] in which she recanted her identification of [Elliot?]” Brief

for Appellant at 9.

Elliot summarizes his claim as follows:

The [PCRA] court erred when it did not require [] Miller to testify

under oath relative to the ... Affidavit. As the [PCRA] court noted

in its [Memorandum Order,] it placed a great deal of credibility on

[] Miller’s testimony,[3] especially when other witnesses [had]

recanted their testimony and identifications of [Elliot at trial]. The

fact that the [PCRA] court placed a great deal of weight on []

Miller’s testimony[,] combined with the fact that she authored a[n]

Affidavit recanting same[,] demonstrates that the [PCRA] court

committed reversible error when it did not require [] Miller to

testify under oath.

Id. at 12 (footnote added).4

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3 Specifically, the PCRA court addressed Elliot’s claim as follows:

[W]ith respect to [Elliot’s] after-discovered evidence claim, [Elliot]

cannot meet his burden of proving he is entitled to relief on this

claim because the Affidavit which forms the basis for the claim has

since been recanted by [Miller]. Indeed, although [Elliot]

submitted an Affidavit from [] Miller[,] wherein she purportedly

sought to recant her trial testimony, [] Miller thereafter claimed,

by way of counsel, that the statements in the Affidavit were false,

that they were not her statements, and that her signature on said

Affidavit was coerced. [] Miller further represented that she stood

by her trial testimony wherein she identified [Elliot] as the

shooter. This court presided over [Elliot’s] non-jury trial and it

found her trial testimony to be credible and worthy of belief.

Accordingly, because [] Miller has represented that the statements

made in the Affidavit were false, and that her signature on the

Affidavit was coerced, [Elliot’s] after-discovered claim is without

merit and does not warrant PCRA relief.

PCRA Court Memorandum Order, 9/12/17, at 2-3.

4 Elliot does not identify the relief he seeks.
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When reviewing an order [denying] PCRA relief, we must

determine whether the decision of the PCRA court is supported by

the evidence of record and is free of legal error. Moreover, we will

not disturb the findings of the PCRA court unless those findings

have no support in the certified record.

Commonwealth v. Rivera, 154 A.3d 370, 377 (Pa. Super. 2017) (en banc)

(citations and quotation marks omitted).

Preliminarily, we must address whether Elliot has preserved his

challenge for appellate review. It is well established that “the failure to make

a timely and specific objection before the trial court at the appropriate stage

of the proceedings will result in waiver of the issue.” Commonwealth v.

Houck, 102 A.3d 443, 451 (Pa. Super. 2014); see also Pa.R.A.P.

302(a) (providing that “[i]ssues not raised in the lower court are waived and

cannot be raised for the first time on appeal.”); Commonwealth v. Duffy, 832 A.2d 1132, 1137 (Pa. Super. 2003) (holding claim that trial court erred

by failing to conduct an on-the-record colloquy regarding the defendant’s right

to testify was waived for failure to make a timely and specific objection at

trial).

Here, PCRA counsel never objected to Miller’s failure to testify under

oath at the PCRA Hearing, nor did he seek to cross-examine her.5

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5

Indeed, as mentioned above, PCRA counsel expressly noted at the PCRA

Hearing that Miller “did not intend to testify and that she would maintain that

her signature or [A]ffidavit [sic] was the product of coercion.” N.T., 9/12/17,

at 4.
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Consequently, Elliot has waived his sole allegation of PCRA court error on

appeal. See Houck, supra. Accordingly, we conclude that the PCRA court properly determined that

Elliot is not entitled to collateral relief and dismissed his first PCRA Petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/15/2018