J-S71024-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

EDWARD MITCHELL

Appellant No. 782 MDA 2014

Appeal from the PCRA Order April 8, 2014

In the Court of Common Pleas of Dauphin County

Criminal Division at No(s): CP-22-0002648-2000

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J. FILED JANUARY 12, 2015

Appellant, Edward Mitchell, appeals pro se from the order entered April 

8, 2014, by the Honorable Andrew H. Dowling, Court of Common Pleas of 

Dauphin County, which denied Mitchell’s petition filed pursuant to the Post 

Conviction Relief Act (“PCRA”).1 We affirm. 

A panel of this Court previously summarized the facts of this case on 

direct appeal as follows:

Angel DeJesus (Mr. DeJesus) was killed in the early 

morning of July 5, 2000, in his taxicab at the intersection of 

Kittatinny and Hummel Streets in Harrisburg. Jennifer McDonald 

(Ms. McDonald) went to a store around 4:30 a.m., shortly before 

the murder. She observed [Mitchell] and his co-defendants, 

Kariem Eley (Eley) and Lester Eiland (Eiland), standing at the 

intersection of Kittatinny and Hummel Streets. As Ms. McDonald 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 42 PA.CONS.STAT.ANN. §§ 9541-9546.
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was walking home about a minute and a half later, she saw Mr. 

DeJesus’s cab pass her traveling toward the intersection. When 

she heard a loud noise, she looked back and saw Mr. DeJesus’s 

cab stopped at the intersection with its brake lights on. Five or 

ten minutes after arriving home, Ms. McDonald heard police 

sirens. 

Guadalupe Fonseca (Mr. Fonseca) was standing in front of 

his house on the morning of the murder and saw three AfricanAmerican men standing near Mr. DeJesus’s cab. He saw one of 

the men enter the cab and heard two gunshots. After the shots, 

the man got out of the cab and joined the other two men at the 

right side of the cab. Mr. Fonseca heard a third shot and saw 

the men departing to the north on Hummel Street. Rufus 

Hudson saw [Mitchell] and his co-defendants at the intersection 

before the shooting and witnessed them running across Hummel 

Street toward and abandoned house after Mr. DeJesus was shot. 

Another taxicab driver in the area, Francisco RamirezTorres (Ramirez-Torres) was informed of the incident by a 

passenger named Eligio Contreras (Elijio). Ramirez-Torres went 

to the scene and called the police. Police officers found Mr. 

DeJesus alive but bleeding from the head. Two shell casings 

were found on the floor of the cab. A police officer found a third 

casing inside an air vent in the car. Mr. DeJesus died at the 

hospital following surgery. The evidence indicated that he had 

been shot three times in the head and neck with a .25-caliber 

handgun, at least once from a distance of less than a foot. 

Although Mr. DeJesus was known to carry a pouch to hold his 

money while he was working, it was not found on his person or 

in the cab, nor was any money found. 

[Mitchell] and his co-defendants were arrested and held for 

trial. [Mitchell] made a statement to the police admitting that he 

had been firing guns before the murder with two other men near 

the location where Mr. DeJesus was shot. He stated that the 

group left the weapons in an abandoned house. Although police 

officers discovered several guns in the house, the .25-caliber 

handgun used to kill the victim was not found there. 

Commonwealth v. Mitchell, 1658 MDA 2001 (Pa. Super., filed September 

22, 2003) (unpublished memorandum at 1-3). 
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On August 10, 2001, Mitchell and his co-defendants were convicted of 

second degree murder, robbery, and conspiracy, and sentenced to 

aggregate terms of life imprisonment. On appeal, this court sua sponte 

vacated Mitchell’s sentence as to the imposition of consecutive sentences for 

second-degree murder and robbery, which should have merged, and the 

Pennsylvania Supreme Court thereafter denied allocatur. At the conclusion 

of Mitchell’s direct appeal, the case was remanded and on August 5, 2004, 

the trial court corrected Mitchell’s sentence.

On November 26, 2004, Mitchell filed his first PCRA petition seeking a 

new trial on the basis of after-discovered evidence, which the PCRA court 

denied. A second timely PCRA petition followed on February 28, 2005, which 

the PCRA court similarly denied. On appeal, this Court affirmed the order 

denying PCRA relief. See Commonwealth v. Mitchell, 739 MDA 2007 (Pa. 

Super., filed August 19, 2008) (unpublished memorandum). During the 

pendency of Mitchell’s second PCRA petition, Mitchell joined in a petition for 

PCRA relief filed by one of his co-defendants, also based upon alleged afterdiscovered evidence. On September 19, 2007, the PCRA court denied relief, 

and this Court affirmed that order on appeal. See Commonwealth v. 
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Mitchell, 1776 MDA 2007 (Pa. Super., filed October 20, 2008) (unpublished 

memorandum).2

On March 27, 2012, Mitchell filed the instant pro se PCRA petition – his 

fourth – in which he raised yet another allegation of after-discovered 

evidence. Attached to the PCRA petition was the unsworn recantation 

statement of Commonwealth witness Rufus Hudson. Also attached to the 

petition was the sworn affidavit of licensed investigator Wayne W. Schmidt, 

in which Schmidt attested that he watched Hudson read and sign the 

unsworn recantation affidavit in prison on March 2, 2012. Mitchell filed an 

amended PCRA petition on May 17, 2012, and on July 23, 2012, the PCRA 

court dismissed the petition without a hearing. On appeal, this Court issued 

a judgment order remanding the case and instructing the PCRA court to hold 

an evidentiary hearing on the reliability of the recantation testimony. See 

Commonwealth v. Mitchell, 1515 MDA 2012 (Pa. Super., filed April 4, 

2013) (judgment order). The PCRA court conducted an evidentiary hearing 

on August 29, 2013, at which Rufus Hudson testified. On April 8, 2014, the 

PCRA court dismissed Mitchell’s PCRA petition after concluding that Hudson’s 

testimony was “not credible, not truly exculpatory and would not have likely 

____________________________________________

2 Although the panel noted that this joint PCRA petition should technically 

have been held in abeyance pending the resolution of Mitchell’s second PCRA 

petition, it declined to dismiss the appeal. Id.
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led to a different verdict.” PCRA Court Opinion, 4/8/14 at 4. This timely 

appeal followed. 

On appeal, Mitchell argues that the PCRA court erred when it 

concluded that Hudson’s recantation testimony was incredible, not 

exculpatory, and would not have likely led to a different verdict. See 

Appellant’s Brief at 4. 

“On appeal from the denial of PCRA relief, our standard and scope of 

review is limited to determining whether the PCRA court’s findings are 

supported by the record and without legal error.” Commonwealth v. 

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied, 

Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013). “[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). “[T]his Court applies a de novo standard of review to the PCRA 

court’s legal conclusions.” Commonwealth v. Spotz, 18 A.3d 244, 259 

(Pa. 2011) (citation omitted).

Before we may address the merits of a PCRA petition, we must first 

consider the petition’s timeliness because it implicates the jurisdiction of 

both this Court and the PCRA court. See Commonwealth v. Williams, 35 

A.3d 44, 52 (Pa. Super. 2011) (citation omitted), appeal denied, 50 A.3d 

121 (Pa. 2012). A PCRA petition must be filed within one year of the date 
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that the judgment of sentence becomes final. See 42 PA.CONS.STAT.ANN. § 

9545(b)(1). “The PCRA timeliness requirements are jurisdictional in nature 

and, accordingly, a court cannot hear untimely PCRA petitions.” 

Commonwealth v. Flanagan, 854 A.2d 489, 509 (Pa. 2004). As the PCRA 

petition at issue here was not timely, “the courts have no jurisdiction to 

grant [him] relief unless he can plead and prove that one of the exceptions 

to the time bar provided in 42 [PA.CONS.STAT.ANN.] § 9545(b)(1)(i)-(iii) 

applies.” Commonwealth v. Pursell, 749 A.2d 911, 914-915 (Pa. 2000). 

See also Commonwealth v. Wilson, 824 A.2d 331, 335 (Pa. Super. 2003) 

(en banc) (“Since Appellant’s PCRA petition is untimely, our review focuses 

on whether Appellant has pled and proven that one of the three limited 

exceptions to the timeliness requirements of the PCRA apply.”). 

Section 9545 provides, in relevant part, as follows.

(b) Time for filing petition.—

(1) Any petition under this subchapter, including a 

second or subsequent petition, shall be filed within 

one year of the date the judgment becomes final, 

unless the petition alleges and the petitioner 

proves that: 

(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 
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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. 

(2) Any petition invoking an exception provided in 

paragraph (1) shall be filed within 60 days of the 

date the claim could have been presented. 

...

42 PA.CONS.STAT.ANN. § 9545(b).

Instantly, there is no dispute that Mitchell’s petition is untimely. Thus, 

Mitchell must plead and prove one of the three enumerated statutory 

exceptions to the time-bar. As previously noted, Mitchell alleged in the pro 

se PCRA petition filed March 27, 2012, that he received “new evidence” 

under 42 PA.CONS.STAT.ANN. § 9545(b)(1)(ii) in the form of an affidavit 

signed by Rufus Hudson and dated March 2, 2012. In that unsworn affidavit 

attached to Mitchell’s petition, Rufus claimed that he fabricated his 

testimony and that he “did not see Kari[e]m ‘Mo’ [Eley] or Lester ‘Risha’ 

Eiland with guns and did not see them running from the scene of the 

shooting.” Affidavit of Rufus Hudson, 3/2/12. Mitchell filed his pro se PCRA 

petition within 60 days of receiving this new evidence. See 42 

PA.CONS.STAT.ANN. § 9545(b)(2). Accordingly, we find that Mitchell has 
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complied with the timeliness exception contained in 42 PA.CONS.STAT.ANN. § 

9545(b)(1)(ii).

3

 

We proceed to address the merits of Mitchell’s claim that he is entitled 

to a new trial based upon after-discovered evidence. 

To obtain relief based upon newly-discovered evidence under the 

PCRA, a 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. D’Amato, 856 A.2d 806, 823 (Pa. 2004) (citation 

omitted). 

“We acknowledge that, as a general matter, recantation evidence is 

notoriously unreliable, particularly where the witness claims to have 

committed perjury.” Id. at 825 (citations omitted). See also 

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3 As this Court recently noted in Commonwealth v. Davis, 86 A.3d 883 

(Pa. Super. 2014), 

an after-discovered evidence claim and the timeliness exception 

based on previously unknown facts are distinct, and the issues 

are analyzed differently. Commonwealth v. Bennett, 593 Pa. 

382, 930 A.2d 1264, 1270-72 (2007). Thus, the relative merit of 

Appellant's underlying PCRA claims is not the issue when 

determining whether his PCRA petition satisfies the afterdiscovered fact exception. Rather, the question of whether he 

met that exception is evaluated pursuant to the statutory 

requirements of 42 Pa.C.S.A. § 9545(b)(1)(ii) and (b)(2).

Id., at 891 n.7. Thus, our conclusion that Mitchell has satisfied the 

timeliness exception based upon unknown evidence does not implicate our 

holding, discussed below, that the underlying after-discovered evidence 

claim is without merit. 
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Commonwealth v. McNeil, 487 A.2d 802, 807 n.4 (Pa. 1985) (opining that 

recantation evidence has often been recognized as one of the least reliable 

forms of after-discovered evidence). “[A]n appellate court may not interfere 

with the denial or granting of a new trial where the sole ground is the 

alleged recantation of state witnesses unless there has been a clear abuse of 

discretion.” Commonwealth v. Hammond, 953 A.3d 544, 561 (Pa. Super. 

2008) (citation omitted). 

Here, Mitchell has established the first three prongs of the afterdiscovered evidence test. As previously noted, Mitchell did not discover 

Hudson’s unsworn affidavit until after trial, and we are satisfied that he could 

not have done so prior to trial through reasonable diligence. Hudson’s 

recantation statement is also not cumulative, nor is it being used solely to 

impeach credibility. However, we are constrained to agree with the PCRA 

court’s conclusion that Mitchell cannot establish the fourth and final prong, in 

that the evidence would not likely compel a different verdict. 

Initially, we note that a careful reading of Hudson’s unsworn affidavit 

reveals that Hudson recants his trial testimony only insofar as it concerns his 

observation of co-defendants Eley and Eiland at the scene of the crime. 

Hudson states in the affidavit that he “did not see Kari[e]m ‘Mo’ [Eley] or 

Lester ‘Risha’ Eiland with guns and did not see them running from the scene 

of the shooting.” Affidavit of Rufus Hudson, 3/2/12. Notably, Hudson does 

not recant his trial testimony that he observed Mitchell running from the 
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scene of the crime. Thus, the unsworn affidavit arguably does not even 

constitute recantation evidence pertaining to Mitchell’s involvement in the 

crime.

Additionally, Hudson’s testimony at the PCRA hearing still places 

Mitchell and his two co-defendants at the scene of the crime.

4

 Although 

Hudson recanted his testimony that he observed Mitchell fire a gun and run 

from the scene of the crime, he unequivocally stated that he observed 

Mitchell and his co-defendants “in the vicinity of the cab” during the evening 

of the shooting, which Hudson clarified to mean “about 30” feet away from 

the cab. N.T., PCRA Evidentiary Hearing, 8/29/13 at 23-24. We are not 

____________________________________________

4 The transcript of the PCRA hearing is not in the certified record. Moreover, 

our review of the record reveals that Mitchell did not even order a copy of 

the transcript, in violation of Pennsylvania Rule of Appellate Procedure 1911, 

relating to requests for transcripts. Ordinarily, this failure would result in 

waiver of Mitchell’s claim on appeal. See Commonwealth v. Preston, 904 

A.2d 1, 7 (Pa. Super. 2006) (en banc) (“In the absence of an adequate 

certified record, there is no support for an appellant’s arguments and thus, 

there is no basis on which relief could be granted.”). However, we note that 

a copy of the transcript is in Mitchell’s reproduced record and the 

Commonwealth has not objected to that copy. Under these circumstances, 

we decline to find waiver and have elected to use the transcript provided in 

the reproduced record. Accord Commonwealth v. Walls, 926 A.2d 957, 

959 n.1 (Pa. 2007) (relying on pre-sentence investigation report that 

appeared only in reproduced record where neither party challenged the 

validity of the report).

In so doing, we remind Mitchell that “the ultimate responsibility of 

ensuring that the transmitted record is complete rests squarely upon the 

appellant and not upon the appellate courts.” Preston, 904 A.2d at 7.
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convinced that this testimony, together with the unequivocal testimony of 

other trial witnesses placing Mitchell and his co-defendants at the cab 

directly prior to the shooting, would have compelled a different verdict at 

trial. We further note that the PCRA court explicitly found Hudson’s 

recantation testimony, in general, to be incredible. See Commonwealth v. 

Loner, 836 A.2d 125, 135 (Pa. Super. 2003) (providing that a prerequisite 

to relief based upon a claim of recantation evidence is that “the evidence 

upon which the relief is sought must be credible to the trial court.”). 

Consequently, we agree with the PCRA court that Hudson’s recantation 

testimony does not entitle Mitchell to a new trial. 

Order affirmed. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/12/2015