J-S75026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JASON PEREZ

                            Appellant                 No. 2438 EDA 2015


                    Appeal from the PCRA Order August 3, 2015
               In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-0807921-2005


BEFORE: BOWES, J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                       FILED NOVEMBER 15, 2016

       Jason Perez appeals from the August 3, 2015 order of the Court of

Common Pleas of Philadelphia County denying his second amended petition

filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-

9545. We affirm.

       On December 18, 2006, a jury convicted Perez and his co-defendant,

Jeffrey Dawkins, of first-degree murder, criminal conspiracy, carrying a

firearm without a license, and possessing instruments of crime. 1          The

convictions stemmed from the shooting death of Bryan Green at a bar in

Philadelphia on March 28, 2004.

       The PCRA court set forth the procedural history of this case as follows:


____________________________________________


       1
           18 Pa.C.S. §§ 2502(a), 903, 6106, and 907(a), respectively.
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              On [December 18, 2006], this Court sentenced
        [Perez] to the mandatory term of life imprisonment. Post-
        sentence motions were filed on December 28, 2006, and
        were denied by operation of law on April 27, 2007. On
        April 7, 2008, the Superior Court affirmed [Perez’s]
        judgment of sentence and, on September 9, 2008, our
        Supreme Court denied [Perez’s] petition for allowance of
        appeal.

               On October 20, 2008, [Perez] filed a pro se petition
        pursuant to the [PCRA]. Counsel was appointed and, on
        July 1, 2010, filed an amended petition. On October 14,
        2010, the Commonwealth filed a motion to dismiss. After
        reviewing the pleadings and conducting an independent
        examination of the record, on November 16, 2010, this
        Court sent [Perez] notice of its intent to deny and dismiss
        his petition without a hearing pursuant to Pa.R.Crim.P. 907
        (907 Notice). Consistent with its 907 Notice, on December
        23, 2010, this Court denied and dismissed [Perez’s] PCRA
        petition. [Perez] filed a timely notice of appeal. On April
        17, 2012, the Superior Court affirmed this Court’s denial
        and dismissal of [Perez’s] petition and, on September 13,
        2012, our Supreme Court denied [his] petition for
        allowance of appeal.

              On November 1, 2012, [Perez] filed a second,
        untimely PCRA petition, and on June 20, 2013, [he] filed
        an amended petition. Due to the nature of [Perez’s]
        claims, on August 25, 2014, this Court directed that
        counsel be appointed; counsel filed an amended petition
        on September 23, 2014.          PCRA counsel filed a
        supplemental amended petition on December 3, 2014. On
        December 19, 2014, the Commonwealth agreed to a
        hearing on Dawkins’ claims of newly-discovered evidence,
        in which [Perez] joined.

PCRA Ct. 1925(a) Opinion, 12/14/15, at 1-3 (footnotes and citations

omitted) (“1925(a) Op.”).

     In his second amended PCRA petition, Perez asserted a claim of after-

discovered evidence based on the affidavits of three alleged eyewitnesses to

the March 28, 2004 murder:     Chamar Brown, Donald Williams, and Brian

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Perry. In the affidavits, each eyewitness disavowed his prior trial testimony

or written statement identifying Perez as the victim’s killer. Perez asserted

that the witnesses’ prior inconsistent testimony and statements were the

result of police coercion.

         The PCRA court held a three-day evidentiary hearing on Perez’s PCRA

petition on March 9, March 10, and July 1, 2015.2                At the hearing, Perez

presented the testimony of Brown, Williams, Perry, and Damian Evans,

another alleged eyewitness to the murder who disavowed his prior written

statement to police. The Commonwealth presented the testimony of several

police       officers   and   detectives   involved   in   the   underlying   homicide

investigation.

         On August 3, 2015, the PCRA court dismissed Perez’s PCRA petition.

The PCRA court concluded that although Perez had proven an exception to

the PCRA’s one-year time-bar, Perez had failed to prove the merits of his

after-discovered-evidence claim.           See PCRA Order, 8/3/15, at 1; 1925(a)

Op. at 11-12.3 Perez timely appealed to this Court.
____________________________________________


         2
        On March 13, 2015, Perez and co-defendant Dawkins also filed a
joint petition for post-conviction DNA testing. After an evidentiary hearing,
the PCRA court denied the petition, concluding “that nothing existed on
which DNA testing could be attempted.” 1925(a) Op. at 3. Perez does not
challenge that ruling on appeal.
         3
       “[T]he timeliness of a PCRA petition is a jurisdictional requisite.”
Commonwealth v. Brown, 111 A.3d 171, 175 (Pa.Super.), app. denied,
125 A.3d 1197 (Pa. 2015). A petitioner must file a PCRA petition, including
a second or subsequent petition, within one year of the date his or her
judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). Here, the
(Footnote Continued Next Page)

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      Our review of an order denying PCRA relief is limited to determining

“whether the decision of the PCRA court is supported by the evidence of

record and is free of legal error.” Commonwealth v. Melendez-Negron,

123 A.3d 1087, 1090 (Pa.Super. 2015). We will not disturb the PCRA court’s

factual findings “unless there is no support for [those] findings in the

certified record.” Id.

      On appeal, Perez asserts that the PCRA court erred in denying Perez a

new trial where Perez’s new evidence demonstrated his innocence and would

have resulted in a different verdict had it been presented at trial.    We

disagree.


                       _______________________
(Footnote Continued)

Pennsylvania Supreme Court denied Perez’s petition for allowance of appeal
on September 9, 2008. Perez did not seek review with the United States
Supreme Court, so his judgment of sentence became final 90 days later, on
December 9, 2008. See 42 Pa.C.S. § 9545(b)(3); U.S. S. Ct. R. 13. Perez
had one year from that date, or until December 9, 2009, to file a timely
PCRA petition. Thus, the instant PCRA petition, filed on November 1, 2012,
was facially untimely.

       In his petition, Perez asserted the “new-facts” exception to the one-
year time bar. See Commonwealth v. Bennett, 930 A.2d 1264, 1270-72
(Pa. 2007); Brown, 111 A.3d at 176-77. To invoke this exception, the
petitioner must prove that “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.” 42 Pa.C.S. § 9545(b)(1)(ii). The petitioner also
must file the petition within 60 days of the date the claim first could have
been presented. 42 Pa.C.S. § 9545(b)(2). “Once jurisdiction is established,
the petitioner can present a substantive after-discovered-evidence claim”
under Section 9543(a)(2)(vi). Brown, 111 A.3d at 176. Here, the PCRA
court found that Perez satisfied the new-facts exception and, thus, that it
had jurisdiction to consider the merits of Perez’s after-discovered-evidence
claim. 1925(a) Op. at 11-12.


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      To succeed on an after-discovered-evidence claim under Section

9543(a)(2)(vi), the petitioner must establish that the evidence:          (1) was

discovered after trial and could not have been obtained at or before trial

through reasonable diligence; (2) is not cumulative; (3) is not being used

solely to impeach credibility; and (4) would likely compel a different verdict.

Commonwealth v. D'Amato, 856 A.2d 806, 824 (Pa. 2004).

      Here, the PCRA court considered the testimony of each of Perez’s

witnesses and thoroughly explained its reasons for discrediting their

testimony.     1925(a) Op. at 11, 13-32.      The PCRA court “assessed the

demeanor of the witnesses, the substance of their testimony, as well as the

substance of their prior statements and testimony, and found that the

witnesses were not credible.” Id. at 11. We are bound by the PCRA court’s

credibility   determinations   when   they   are   supported   by   the   record.

Commonwealth v. Abu-Jamal, 720 A.2d 79, 99 (Pa. 1998).

      In denying Perez’s petition, the PCRA court concluded:

                 Even when considered in totality, the testimony of
          Brown, Williams, Perry, and Evans was not credible and
          failed to establish that the police engaged in a pattern and
          practice of coerciveness in order to get the witnesses to
          identify [Perez] and his co-defendant. It was this Court’s
          responsibility at the PCRA stage to assess the credibility of
          the witnesses presented, and to determine whether the
          nature and quality of the evidence was such that there was
          a reasonable probability that the jury would have credited
          it and rendered a more favorable verdict. With respect to
          this claim, this Court recognized that all four witnesses
          would have been impeached at trial with the testimony of
          the officers who took their statements, as well as with the
          pervasive inconsistencies in their testimony. When the
          statements of these four witnesses are viewed as a whole,

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           they fail to demonstrate that the police engaged in a
           pattern and practice of coercion in investigating this case.

1925(a) Op. at 32 (citation omitted).

       Based on our review of the record, Perez’s brief,4 and the applicable

law, we conclude that the record supports the PCRA court’s factual findings

and credibility determinations and that the PCRA court’s conclusions are free

of legal error.

       Order affirmed.5




____________________________________________


       4
          This Court twice granted the Commonwealth an extension of time to
file its brief. The final extension set the deadline as July 5, 2016. As of the
date of this memorandum, the Commonwealth has not filed a brief. This
failure, particularly after requesting and receiving two extensions, is both
surprising and disappointing.
       5
        In his brief, Perez incorporates the arguments made by co-defendant
Dawkins in his PCRA appeal before this Court. See Perez’s Br. at 11 (citing
Pa.R.A.P. 2137). Rule 2137 applies to appeals with more than one appellant
and consolidated appeals. Perez and Dawkins filed separate appeals, which
are related but not consolidated.        Even if we were to accept Perez’s
incorporation of Dawkins’ arguments, Perez would not be entitled to relief.
The only issue Dawkins argued that Perez did not address in his brief is
whether the PCRA court erred in merging the jurisdictional and merits
analyses at the hearing, thereby precluding Perez from presenting certain
evidence related to police coercion. Like Dawkins, Perez failed to raise this
issue in his Pennsylvania Rule of Appellate Procedure 1925(b) statement.
For that reason, and for the additional reasons stated in our memorandum in
Dawkins’ appeal, see Commonwealth v. Dawkins, No. 2680 EDA 2015,
unpublished memorandum at 5-9 (Pa.Super. filed Nov. 15, 2016), this claim
fails.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/15/2016




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