J-S02029-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

LEROY TAYLOR

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 521 EDA 2021

Appeal from the PCRA Order Entered February 17, 2021

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0002697-2016

BEFORE: OLSON, J., KING, J., and McCAFFERY, J.

MEMORANDUM BY KING, J.: FILED MARCH 9, 2022

Appellant, Leroy Taylor, appeals from the order entered in the 

Philadelphia County Court of Common Pleas, which denied his first petition 

filed pursuant to the Post Conviction Relief Act (“PCRA”).

1 We affirm.

The relevant facts and procedural history of this appeal are as follows. 

On February 7, 2016, neighbors Angel Rivera...and Appellant 

were involved in an altercation over [Mr. Rivera’s] girlfriend, 

who was pregnant with Appellant’s child. The 

argument...soon became physical when Appellant punched 

[Mr.] Rivera in the eye. A fight ensued before several other 

parties separated Appellant and [Mr.] Rivera. Once 

separated, [Mr. Rivera] testified that he saw Appellant walk 

into his home and return with what appeared to be a gun in 

his waistband. [Mr. Rivera’s] daughter, [MariaAngely]

Rivera-Cruz, also testified that she saw Appellant with a gun 

once he returned from his home. [Mr. Rivera] stated that 

he saw Appellant put the gun on the ground behind the tire 

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1 42 Pa.C.S.A. §§ 9541-9546.
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of [Mr. Rivera’s] car as police arrived on scene.

Officer [Anthony] Nicoletti and his partner Officer Hoffman

responded to a radio call for a black male with a black hoodie 

carrying a firearm on the 2700-2800 block of Reese Street. 

When Officer Nicoletti arrived, he saw a group of 

approximately 10 to 15 people trying to prevent Appellant 

from leaving Reese Street by tugging on his clothes and 

yelling, “don’t let him leave. He threw the gun underneath 

the car.” Appellant was the only person present who 

matched the police radio description. Officer Nicoletti 

secured Appellant while Officer Hoffman recovered the 

firearm from under [Mr. Rivera’s] car.

Investigation of the firearm determined that it was operable 

and loaded with nine cartridges of .45-caliber ammunition. 

Appellant was prohibited from possessing a handgun under 

the Firearms Act [because of] a previous criminal conviction.

(PCRA Court Opinion, 6/1/21, at 2-3) (record citations omitted).

On April 28, 2017, Appellant proceeded to a bench trial. At trial, the 

Commonwealth offered the testimony of Officer Nicoletti, Mr. Rivera, and Mr. 

Rivera’s daughter, MariaAngely Rivera-Cruz. At the conclusion of trial, the 

court found Appellant guilty of persons not to possess firearms, carrying a 

firearm without a license, carrying a firearm on public streets in Philadelphia,

and possessing an instrument of crime. The court explained that it found 

Officer Nicoletti the most credible witness and convicted Appellant based on 

the officer’s testimony. (See N.T. Trial, 4/28/17, at 41-42). The court 

sentenced Appellant on September 8, 2017, to an aggregate 5 to 10 years of 

incarceration. This Court affirmed the judgment of sentence on January 4, 

2019, and our Supreme Court denied allowance of appeal on July 2, 2019. 

See Commonwealth v. Taylor, 209 A.3d 478 (Pa.Super. 2019) 

(unpublished memorandum), appeal denied, 654 Pa. 512, 216 A.3d 227 
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(2019).

Appellant filed a timely pro se PCRA petition on August 19, 2019. The 

court subsequently appointed counsel, who filed an amended petition on July 

10, 2020. In his petitions, Appellant raised a claim of after-discovered 

evidence, based on recantation testimony from Mr. Rivera, who was a main 

witness for the Commonwealth at Appellant’s trial. On January 19, 2021, the 

court issued notice of its intent to dismiss the petition without an evidentiary 

hearing, pursuant to Pa.R.Crim.P. 907. Appellant did not file a response, and 

the court dismissed the petition on February 17, 2021. Appellant filed a timely

notice of appeal on March 2, 2021. On March 8, 2021, the court ordered 

Appellant to file a concise statement of errors per Pa.R.A.P. 1925(b), which 

Appellant filed on March 10, 2021.

Appellant raises one issue for our review:

Did the [PCRA] court commit error when it failed to grant 

relief when it refused to conduct an evidentiary hearing 

upon the discovery of evidence that the complaining witness 

recanted his testimony?

(Appellant’s Brief at 8).

This Court has explained:

Our standard of review of the denial of a PCRA petition is 

limited to examining whether the evidence of record 

supports the court’s determination and whether its decision 

is free of legal error. This Court grants great deference to 

the factual findings of the PCRA court if the record contains 

any support for those findings. [W]e review the court’s legal 

conclusions de novo. 

Commonwealth v. Washington, ___ A.3d ___, 2022 PA Super 18, *5 (filed 
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Feb. 1, 2022) (en banc) (citations and quotation marks omitted).

A petitioner is not entitled to a PCRA hearing as a matter of right; the 

PCRA court can decline to hold a hearing if there is no genuine issue 

concerning any material fact, the petitioner is not entitled to relief, and no 

purpose would be served by any further proceedings. Commonwealth v. 

Wah, 42 A.3d 335 (Pa.Super. 2012). “A reviewing court on appeal must 

examine each of the issues raised in the PCRA petition in light of the record in 

order to determine whether the PCRA court erred in concluding that there 

were no genuine issues of material fact and in denying relief without an 

evidentiary hearing.” Commonwealth v. Smith, 121 A.3d 1049, 1052 

(Pa.Super. 2015), appeal denied, 635 Pa. 763, 136 A.3d 981 (2016) (quoting 

Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa.Super. 2007), appeal 

denied, 594 Pa. 685, 934 A.2d 72 (2007)).

Appellant argues that the trial court erred when it did not conduct an 

evidentiary hearing to consider his claim of after-discovered evidence based 

on the Commonwealth’s primary witness, Mr. Rivera, recanting his testimony 

that Appellant possessed the gun. Appellant asserts that the only evidence 

against him came from Mr. Rivera because Mr. Rivera translated the initial 

statement of Ms. Rivera-Cruz to police, and Ms. Rivera-Cruz testified in 

accordance with that statement at trial. Appellant reasons that because 

Officer Nicoletti did not see him in possession of the gun, the primary witness 

against him was Mr. Rivera. Appellant insists that an evidentiary hearing was 

necessary so that the court could evaluate the credibility of Mr. Rivera’s 
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recantation. Appellant concludes the court’s failure to hold an evidentiary 

hearing constitutes reversible error, and this Court should remand for an 

evidentiary hearing. We disagree.

To establish entitlement to post conviction relief based on a claim of 

after-discovered evidence:

[The defendant] must demonstrate that the evidence: (1) 

could not have been obtained prior to the conclusion of the 

trial by the exercise of reasonable 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. Padillas, 997 A.2d 356, 363 (Pa.Super. 2010) (quoting 

Commonwealth v. Pagan, 597 Pa. 69, 106, 950 A.2d 270, 292 (2008), cert. 

denied, 555 U.S. 1198, 129 S.Ct. 1378, 173 L.Ed.2d 633 (2009)). “The test 

is conjunctive; the defendant must show by a preponderance of the evidence 

that each of these factors has been met in order for a new trial to be 

warranted.” Padillas, supra at 363 (citations omitted).

“[A]s a general matter, recantation evidence is notoriously unreliable, 

particularly where the witness claims to have committed perjury.” 

Commonwealth v. D’Amato, 579 Pa. 490, 522, 856 A.2d 806, 825 (2004) 

(citations and internal quotation marks omitted). Upon reviewing such a 

claim, the PCRA court must evaluate the significance of the recantation in light 

of the evidence as a whole. Id. at 523, 856 A.2d at 825. “Unless the [PCRA] 

court is satisfied that the recantation is true, it should deny a new trial.” 

Commonwealth v. Small, 647 Pa. 423, 451, 189 A.3d 961, 977 (2018) 
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(quoting Commonwealth v. Henry, 550 Pa. 346, 363, 706 A.2d 313, 321 

(1997)). “An appellate court may not disturb the trial court’s determination 

absent a clear abuse of discretion.” Id.

Instantly, in denying PCRA relief, the PCRA court explained:

...Angel Rivera submitted a sworn and notarized affidavit on 

May 2, 2018, stating the following:

I, Angel Rivera, recant my statement and testimony. 

I was under duress by the Philadelphia District 

Attorney office, and also I was forced and coerced by 

the Philadelphia District Attorney office to testify 

against [Appellant] at his trial on April 28, 2017. I 

lied, and also I did not see [Appellant] with a gun.

Standing as the finder of fact, this court heard the 

testimonies of three witnesses, [Mr. Rivera], [Ms.] RiveraCruz, and the responding officer, Officer Nicoletti. During 

the course of those testimonies each witness mentioned the 

fact that Appellant possessed a firearm at some point during 

the altercation. [Mr. Rivera] stated that he “[saw Appellant] 

put [the gun] behind the wheel of [his] car.” N.T., 4/28/17 

at 10. Witness [Ms.] Rivera-Cruz stated that [Appellant] 

returned from his home with a gun and threw it down near 

a car when police were called. Id. at 35. Officer Nicoletti 

stated that he and his partner responded to a 911 call from 

an unidentified person regarding “a person with a gun...for 

a black male, black hoodie.” Id. at 18. Upon arrival, Officer 

Nicoletti observed Appellant being contained by 

approximately fifteen witnesses who were excitedly yelling 

to the officer, “[d]on’t let him leave. He threw the gun 

underneath the car.” Id. at 22. This court found Officer 

Nicoletti’s testimony the most credible and in consideration 

of all the evidence determined Appellant was guilty. [Mr. 

Rivera’s] recantation testimony does not dispel either the 

testimony of a corroborating witness or the testimony of 

Officer Nicoletti. Therefore, holding an evidentiary hearing 

on [the] same would serve no legitimate purpose as it would 

not alter the verdict.

(PCRA Court Opinion at 7-8) (citation omitted). In light of the credible 
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testimony from Officer Nicoletti, Appellant failed to prove that Mr. Rivera’s 

recantation would likely compel a different verdict in Appellant’s case if a new 

trial were granted. See Padillas, supra. On this record, we cannot say that 

the PCRA court abused its discretion in declining to hold an evidentiary 

hearing. See Henry, supra. Accordingly, we affirm the order denying PCRA 

relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/09/2022