J-S48045-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KEVIN BURTON : : Appellant : No. 106 EDA 2024
Appeal from the PCRA Order Entered November 30, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0406851-2002
BEFORE: STABILE, J., NICHOLS, J., and BENDER, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 28, 2025
Kevin Burton (“Appellant”) appeals pro se from the order dismissing his
fifth petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-9546. Herein, Appellant maintains that the PCRA court erred
in dismissing his petition without conducting a hearing on his claims of newly-
discovered evidence. We affirm.
A prior panel of this Court set forth the relevant factual and procedural
history of this case which we substantially reproduce here:
On October 23, 2003, following a jury trial, Appellant and his co- defendant, Carnell Chamberlain, were convicted of first-degree murder, conspiracy, possession of an instrument of crime (PIC) and firearms violations, and sentenced to [an aggregate term of] life imprisonment for the shooting death of Curtis Cannon…. Appellant timely filed a direct appeal complaining that the court erred in denying his motions to suppress, that the verdicts were against the weight and sufficiency of the evidence, that the court erred by admitting a juror over his challenge for cause, that the court erred by refusing to give a [jury instruction pursuant to J-S48045-24
Commonwealth v. Kloiber, 16 A.2d 820 (Pa. 1954)], and that the court erred by denying his motion for a mistrial. On May 3, 2005, the Superior Court of Pennsylvania … affirmed the judgment of sentence. [Commonwealth v. Burton, 880 A.2d 4 (Pa. Super. 2005) (unpublished memorandum).] Appellant’s Petition for Allowance of Appeal to the Supreme Court of Pennsylvania was denied on December 21, 2005. [Commonwealth v. Burton, 890 A.2d 1056 (Pa. 2005). Accordingly,] Appellant’s judgment of sentence became final on March 21, 2006.[1]
On June 14, 2006, Appellant filed a pro se petition for PCRA relief claiming that trial [and appellate] counsel w[ere] ineffective for [a variety of reasons, along with a claim of newly-discovered evidence that another individual had shot the victim.] …
[After] an evidentiary hearing[,] … Appellant’s petition for PCRA relief was denied. The Superior Court affirmed…, and Appellant's Petition for Allowance of Appeal was denied on December 30, 2009. [See Commonwealth v. Burton, 972 A.2d 548 (Pa. Super. 2009) (unpublished memorandum), appeal denied, 978 A.2d 158 (Pa. 2009).]
On November 5, 2010, Appellant filed a second PCRA petition claiming that he was entitled to relief based upon exculpatory evidence that had become available, and would have changed the outcome of the trial if it had been introduced. … [O]n July 8, 2011, Appellant's second petition for PCRA relief was formally dismissed. Dismissal was affirmed by the Superior Court on July 12, 2012. [Commonwealth v. Burton, 55 A.3d 133 (Pa. Super. 2012) (unpublished memorandum). Appellant did not seek further review with the Pennsylvania Supreme Court.]
On August 3, 2012, Appellant filed a third petition for PCRA relief, again claiming newly[-]discovered evidence. … Following review, on July 17, 2015, Appellant’s PCRA petition was formally dismissed without a hearing. On May 3, 2016, the Superior Court affirmed the dismissal. [Commonwealth v. Burton, 151 A.3d ____________________________________________
1 PCRA petitions must be filed within one year of the date the appellant’s judgment of sentence becomes final, including the conclusion of discretionary review by the Supreme Court of the United States, or the expiration of time for seeking this review. 42 Pa.C.S. § 9545(b)(1). A petition for writ of certiorari seeking U.S. Supreme Court review of a state court decision must be filed within 90 days of the entry of the state court’s order. U.S. Sup. Ct. R. 13.
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1132 (Pa. Super. 2016) (unpublished memorandum).] The petition for allowance of appeal was denied on November 2, 2016. [Commonwealth v. Burton, 160 A.3d 781 (Pa. 2016).]
On December 27, 2016, Appellant filed [his fourth PCRA] petition … claiming governmental interference and newly[-]discovered exculpatory evidence that he allegedly received on September 6, 2016. … PCRA counsel was appointed and, on September 8, 2017, counsel filed a letter pursuant to Turner/Finley.[2] … On October 20, 2017, Appellant’s petition was formally dismissed and PCRA counsel was permitted to withdraw.
Commonwealth v. Burton, No. 3801 EDA 2017, unpublished memorandum
at *1–5 (Pa. Super. Mar. 12, 2019) (cleaned up; internal footnotes omitted).
This Court affirmed the dismissal of Appellant’s fourth PCRA petition, see
generally id., and Appellant did not file a petition for allowance of appeal.
Thereafter, on April 11, 2022, Appellant, through counsel, filed the
instant PCRA petition, his fifth, asserting newly-discovered evidence. On
August 7, 2023, the PCRA court filed a notice pursuant to Pa.R.Crim.P. 907,
indicating that it planned to dismiss the petition without a hearing. Appellant’s
counsel responded to the notice, providing additional affidavits to the PCRA
court in support of the timeliness of Appellant’s claims of new evidence. After
review, the PCRA court concluded that Appellant’s PCRA petition was untimely,
and no exceptions to the timeliness requirements had been proven.
Accordingly, the court denied Appellant’s PCRA petition on November 30,
2023. Appellant filed a pro se notice of appeal of this determination on
____________________________________________
2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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December 22, 2023.3 The PCRA court did not order Appellant to file a
statement of errors under Pa.R.A.P. 1925.
On appeal, Appellant raises the following claim: Whether the PCRA [c]ourt committed an error, and/or abused its discretion[,] by dismissing … Appellant’s PCRA petition without the benefit of an evidentiary hearing in light of newly[-]discovered facts.
Brief for Appellant at 7.
Our standard and scope of review of an order denying a PCRA petition
are well established. Appellate review of a PCRA court’s dismissal of a petition
is limited to an evaluation of whether “the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v.
Branthafer, 315 A.3d 113, 123 (Pa. Super. 2024). This Court will not disturb
the factual findings of the PCRA court unless there is no support for those
findings in the certified record. Id. “In contrast, we review the PCRA court’s
legal conclusions de novo.” Id.
Before addressing the merits of Appellant’s claim, however, we must
evaluate whether his petition was timely filed. Typically, a PCRA petition must
be filed within one year of the petitioner’s judgment of sentence becoming
3 On January 10, 2024, Appellant’s PCRA counsel, Justin Charles Capek, Esq.,
filed a Motion to Withdraw as Counsel with this Court. On February 13, 2024, this Court granted Attorney Capek’s motion and remanded the matter to the PCRA court to determine whether Appellant was eligible for court-appointed counsel. Thereafter, the PCRA court correctly found that Appellant was not entitled to court-appointed counsel for this serial PCRA petition. See Commonwealth v. Kubis, 808 A.2d 196 (Pa. Super. 2002). Appellant is proceeding pro se on this appeal.
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final. 42 Pa.C.S. § 9545(b)(1). “[A] judgment becomes final at the conclusion
of direct review, including discretionary review in the Supreme Court of the
United States and the Supreme Court of Pennsylvania, or at the expiration of
time for seeking the review.” 42 Pa.C.S. § 9545(b)(3). The timeliness of a
PCRA petition is jurisdictional; in other words, if a PCRA petition is untimely,
the court lacks jurisdiction to consider its merits. Commonwealth v.
Reeves, 296 A.3d 1228, 1230-31 (Pa. Super. 2023). Without jurisdiction,
the court simply does not have the legal authority to address the substantive
claims. Commonwealth v. Spotz, 171 A.3d 675, 676 (Pa. 2017).
As noted earlier, Appellant’s judgment of sentence became final on
March 21, 2006, more than seventeen years ago. Appellant’s fifth PCRA
petition, filed April 11, 2022, is thus untimely on its face. Nonetheless, a
petitioner may overcome the PCRA’s time-bar if he pleads and proves one of
the statutory exceptions set forth in 42 Pa.C.S. § 9545(b)(1). Id. These
exceptions are: “(1) interference by government officials in the presentation
of the claim; (2) newly[-]discovered facts; and (3) an after-recognized
constitutional right.” Commonwealth v. Brandon, 51 A.3d 231, 233-34 (Pa.
Super. 2012); see also 42 Pa.C.S. § 9545(b)(1)(i-iii). Moreover, a petition
invoking an exception to the jurisdictional time-bar must be filed within one
year of the date that the claim could have been presented. 42 Pa.C.S.
§ 9545(b)(2).
To satisfy the newly-discovered-fact exception to the PCRA time bar, a
petitioner must demonstrate that he “did not know the facts upon which he
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based his petition and could not have learned those facts earlier by the
exercise of due diligence.” Commonwealth v. Balestier-Marrero, 314 A.3d
549, 554 (Pa. Super. 2024). “Due diligence demands that the petitioner take
reasonable steps to protect his own interests. A petitioner must explain why
he could not have learned of the new fact(s) earlier with the exercise of due
diligence.” Commonwealth v. Myers, 303 A.3d 118, 121-22 (Pa. Super.
2023). Moreover, “[t]his rule is strictly enforced.” Commonwealth v.
Brown, 111 A.3d 171, 176 (Pa. Super. 2015).
Appellant maintains that the two affidavits he has appended to his PCRA
petition are sufficient proof of newly-discovered evidence that he was unaware
of until obtaining them and that he could not have known about earlier.
Appellant first proffers an affidavit from Peter Mobley. Mr. Mobley was a very
good friend of the victim in this case, and, according to his affidavit, he saw
the victim lying on the ground post-shooting, removed the victim’s gloves
from his hands, took the victim’s gun, and ran away. Brief for Appellant at
13. Critically, Mr. Mobley noted that he only saw his friend after he had been
shot, when he was lying in the middle of the street; Mr. Mobley had no
information about who shot the victim. Id.
The second affidavit is from Shakia Smith-Fudge, who states that she
was sitting in the street when the victim walked past her very quickly and
warned her of upcoming trouble. Id. at 13-14. Ms. Smith-Fudge then saw
the victim shoot his gun once down the street in the direction he had just left.
Id. Thereafter, “a bunch of shots” came from the other direction, striking the
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victim; Ms. Smith-Fudge immediately ran into a nearby abandoned home. Id.
at 14. Ms. Smith-Fudge also admits that she also did not see who was
shooting at the victim. Id.
To evaluate whether the newly-discovered-evidence exception to the
timeliness requirement of the PCRA applies in a particular case, we look not
to the merits of the actual claim, but rather, whether the petitioner has alleged
“facts” which were unknown to him and which could not have been determined
by the exercise of “due diligence.” Branthafer, 315 A.3d at 128 (“The newly-
discovered[-]facts exception, however, does not require any merits analysis
of the underlying claim, and application of the time-bar exception, therefore,
does not necessitate proof of the elements of a claim of after-discovered
evidence.”) (cleaned up).
Appellant maintains that the new “facts” listed above were unknown to
him until he obtained the affidavits in question: Mr. Mobley’s affidavit is dated
April 21, 2021, and Ms. Smith-Fudge’s affidavit is dated June 17, 2021.
Appellant filed his counseled PCRA petition on April 7, 2022, within one year
of obtaining the affidavits. If Appellant’s representations are accepted as true,
that he did not know of these witnesses or the testimony they could provide
until obtaining the affidavits in question, it is arguable that Appellant has filed
his petition within one year of discovering new evidence. Neither witness had
testified previously about their knowledge of the incident, nor were they ever
a part of the police investigation.
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Beyond establishing that he was previously unaware of these facts,
however, Appellant must also show that he could not have learned these facts
earlier with the exercise of due diligence. “Due diligence does not require
perfect vigilance and punctilious care, but merely a showing [that] the party
has put forth reasonable effort to obtain the information upon which [the]
claim is based.” Commonwealth v. Cox, 146 A.3d 221, 230 (Pa. 2016).
Here, both claims of newly-discovered evidence concern eyewitness
statements of persons who were not previously known to be witnesses to the
shooting. Mr. Mobley’s affidavit states that he did not initially want to come
forward with his information. See Statement of Peter Mobley, 4/21/21,
attached as Exhibit A to the Brief for Appellant (stating, “I would [have] come
forward earlier, but my friend died and I really didn’t care who paid for it.
Ultimately after sitting in jail myself, I realized if I’m going to better myself
this is definitely going to be helpful.”). With respect to Ms. Smith-Fudge’s
affidavit, it states (verbatim) that she
heard cop sirens and left. I wanted nothing to do with that situation period. I’m coming forward now with this information, Because I speak to gun shot victims in hopes of getting them to tell the truth and put the guns down. And this is something I been holding back for a long time.
Statement of Shakia Smith-Fudge, 6/17/21, attached as Exhibit A to the Brief
for Appellant. It appears that neither of these witnesses were previously
known to authorities, and they certainly did not testify at Appellant’s trial.
Thus, the record supports a finding that the signed statements of Mr. Mobley
and Ms. Smith-Fudge, and the information contained therein, were unknown
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to Appellant and could not have been obtained earlier through due diligence
until the witnesses came forward. See Commonwealth v. Lambert, 884
A.2d 848, 852 (Pa. 2005) (holding that “so long as the facts set forth in the
police file were not otherwise known to appellant, the Brady claims he asserts
are ‘timely’ under the newly[-]discovered evidence exception”). See also
Commonwealth v. Dixon, 296 A.3d 586 (Pa. Super. 2023) (unpublished
memorandum) (determining eyewitness testimony from a new witness that
someone other than the appellant committed the shooting in question was a
newly-discovered fact); Commonwealth v. Shelley, 277 A.3d 1135 (Pa.
Super. 2022) (unpublished memorandum) (ascertaining that eyewitness
statements which were provided to the appellant years after trial satisfied the
newly-discovered fact exception to the timeliness provision of the PCRA as
they were both unknown to the appellant previously and could not have been
obtained earlier with diligence). 4
The statements involved here are indeed new facts, not newly-willing
sources for information about previously known facts. Branthafer, supra.
The affidavits support that Appellant could not have discovered these
witnesses earlier as they were not cooperative with authorities and hid their
knowledge of the case. As the timeliness evaluation does not consider the
merits of the underlying issue as to whether he is entitled to relief, Appellant
4 Non-precedential Superior Court decisions filed after May 1, 2019, may be
cited for their persuasive value. Pa.R.A.P. 126(b)(2).
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has arguably set forth newly-discovered facts, which could then provide an
exception to the PCRA one-year timeliness requirement. However, even if we
recognize, contrary to the finding made by the PCRA court, that Appellant’s
PCRA petition arguably meets a timeliness exception, this does not guarantee
Appellant a new trial or any other relief.
Once jurisdiction over a PCRA claim has been properly invoked by
establishing an exception to the one-year time bar, “the relevant inquiry
becomes whether the claim is cognizable under the PCRA.” Cox, supra.
Section 9543, titled “Eligibility for relief,” governs this inquiry. Among other requirements not pertinent to this appeal, section 9543 delineates seven classes of allegations that are eligible for relief under the PCRA. See 42 Pa.C.S.[] § 9543(a)(2). Of relevance here is the ‘after-discovered evidence’ provision, which states that a claim alleging ‘the unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced’ is cognizable under the PCRA. 42 Pa.C.S.[] § 9543(a)(2)(vi).
To establish such a claim, a petitioner must prove 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.
Cox, 146 A.3d at 228 (citation and quotation marks omitted; paragraph break
added). Importantly, because this four-part test is conjunctive, the failure to
establish any one of these prongs is fatal to the claim. Commonwealth v.
Crumbley, 270 A.2d 1171, 1178 (Pa. Super. 2022) (citing Commonwealth
v. Solano, 129 A.3d 1156, 1180 (Pa. 2015)).
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Herein, despite his efforts, Appellant cannot demonstrate that the new
evidence provided by these two proposed witnesses would likely compel a
different result at trial. In determining whether new evidence would likely
result in a different verdict, “a court should consider the integrity of the alleged
after-discovered evidence, the motive of those offering the evidence, and the
overall strength of the evidence supporting the conviction.” Commonwealth
v. Crumbley, 270 A.3d 1171, 1179 (Pa. Super. 2022).
Crumbley provides an example of a case where newly-discovered
evidence did not result in the grant of a new trial. Crumbly was convicted of
first-degree murder and related offenses. Id. at 1175. At trial, the
Commonwealth’s identification evidence primarily consisted of an eyewitness
named Robinson, who testified that she saw Crumbley and his co-defendant
shoot the victim. Id. During the litigation of his PCRA petition, Crumbley
offered an affidavit from a new eyewitness, jitney driver Robert Raglin, who
claimed that he had dropped two men off in the vicinity of the incident, that
he saw these two men shooting at a white car, and that neither of these two
men was Crumbley or his co-defendant. Id. at 1176-77. At the evidentiary
hearing on Crumbley’s PCRA petition, Raglan testified that once he realized
that he had information about this shooting, he wrote to Crumbley because
he did not want an innocent man to be stuck in jail. Id. However, Raglan
further testified at the PCRA hearing that he did not see anyone get struck by
a bullet, he did not see anyone laying on the ground, and he did not even see
what the victim looked like. Id. He further was unable to identify anyone
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inside the white car because he “wasn’t paying attention” and “everything
happened in a tenth of a second.” Id.
The PCRA court found that Raglan lacked credibility “based on his
demeanor and the lack of detail in his account.” Id. at 1179. It also expressed
skepticism about the circumstances by which Raglan decided to come forward.
Id. at 1180. On appeal, this Court found no abuse of discretion in the denial
of PCRA relief. Id. Specifically, we noted that
[t]he record supports the PCRA court’s finding that Raglin’s account would have had minimal value as compared to the evidence of Crumbley’s guilt. [The eyewitness] Robinson was found credible, and there are too many holes in Raglin’s bizarre story for it to likely result in a different outcome were a new trial granted.
Id.
Crumbley can be contrasted with Commonwealth v. Valderrama,
388 A.2d 1042 (Pa. 1978), another case involving a conviction for murder in
the first degree. At his trial, Valderrama had claimed an alibi, that he was
working in Puerto Rico at the time of the crime. Id. at 1044. He provided
several witnesses in support of the alibi, including the director of public works
for the city of Ciales, who was Valderrama’s direct supervisor. Id. Other
witnesses included the mayor of Ciales and the municipal treasurer. Id. In
rebuttal, the Commonwealth presented testimony from an employee of the
Social Security Administration who testified that no records existed to confirm
Valderrama’s employment. Id. Valderrama was convicted as charged.
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On appeal, Valderrama asserted newly-obtained evidence about his
employment records from Puerto Rico. Specifically, he had discovered that
his wages had initially been reported without a Social Security number; this
error had been rectified since his trial and his records had been updated. Id.
at 1044-45. Valderrama asserted that with this new proof of his alibi, he had
provided newly-discovered evidence which would have caused a different
verdict to be reached at his trial. Id. Our Supreme Court agreed.
First, the evidence could not have been obtained prior to trial because
the Commonwealth’s rebuttal evidence had been wholly unexpected, as
Valderrama had no reason to suspect that his employment records were not
accurate. Id. at 1045. The evidence was not merely cumulative or
corroborative, as it negated the evidence presented by the Commonwealth
about the missing social security number. Id. The evidence was not intended
only to impeach the credibility of a witness; rather, the new evidence
explained the incomplete nature of the Commonwealth’s records. Id. Finally,
with respect to whether the evidence would have compelled a different verdict,
the Court offered:
At trial, the Commonwealth claimed that [Valderrama] never worked for the municipality in Puerto Rico. The incomplete social security records supported this assertion and cast doubt on [Valderrama’s] alibi defense. Given the completed social security records, [Valderrama’s] alibi would receive substantial support and a different verdict would likely result.
Id. Accordingly, Valderrama was awarded a new trial.
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Appellant primarily argues in his brief that his PCRA petition should be
deemed timely filed, and little else. The following is a verbatim recitation of
Appellant’s entire argument on the merits of his claim:
The facts are clear in this case theirs no possible way that the appellant could have known that Mr. Peter Mobley removed a firearm from the victim and took gloves off the victims hand to eliminate the existence of gun shot residue on the hands of the victim, whom by eye witness account of the second individual Ms. Sha’kia Smith-Fidge, seen the victim show a firearm First and then was shot and killed trying to flee. The appellant could have not known that Ms. Sha’kia Smith-Fudge witnessed the victim death. Yes, it is true that neither witness stated they seen the shooter, but what is also true is the fact that they did not say the appellant was the shooter. …
To after-discovered facts in this case is exculpatory, and would likely affect the outcome of the trial, if both Mr. Mobley, and Ms. Smith-Fudge were to testify to the fact stated within their affidavits at New trial, the PCRA Court should have an evidentiary hearing. It would be difficult for the Commonwealth to prove the premeditation and lack of provocation which a conviction for first- degree murder would require.
Brief for Appellant at 16, 18 (emphasis added).
Appellant acknowledges in his argument why the testimony put forth in
the two affidavits would not result in a different outcome of his trial — neither
witness saw who shot the victim — as they provide no evidence to suggest
that Appellant was not the shooter. One witness, Mr. Mobley, saw the victim
after he was shot and removed the victim’s gun and gloves from the scene.
But with no testimony to contradict the trial testimony about who shot the
victim, this evidence is meaningless. This new evidence simply does not
establish any reason to doubt Appellant’s conviction.
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The same result applies to Ms. Smith-Fudge’s proposed testimony. Ms.
Smith-Fudge states that she saw the victim walking quickly down the street,
that he warned her of trouble, and that the victim fired his weapon one time
in the direction from which he had come. Then, according to the affidavit, Ms.
Smith-Fudge heard a barrage of gunfire from the other direction, which caused
her to retreat inside the building. Again, Ms. Smith-Fudge had no information
about who shot the victim. It is difficult to imagine how this proposed evidence
provides any doubt at all, let alone a reasonable one, as to Appellant’s guilty
verdict.
While never clearly stated in his PCRA petition or his brief to this Court,
we recognize that Appellant may be attempting to show that the proffered
testimony from these two witnesses would support a finding that he acted in
self-defense. First, this claim is wholly undeveloped, which would require a
finding of waiver. Commonwealth v. Armolt, 294 A.3d 364, 379 (Pa. 2023)
(finding waiver for a claim where the appellant failed to explain how the trial
court committed an ex post facto violation). Moreover, the affidavit here of
Ms. Smith-Fudge establishes that the victim was fleeing when he was shot
and killed. Thus, any assertion of self-defense would be unsuccessful. See,
e.g., Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017)
(stating the elements of self-defense are that (1) the individual reasonably
believed that force was necessary to protect himself from death or serious
bodily injury, (2) the individual was free from fault in provoking the use of
force against him, and (3) he did not violate any duty to retreat).
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Accordingly, we conclude that Appellant has not provided newly-
discovered evidence that would have changed the verdict in his case.
Appellant simply cannot show that the evidence proffered by these two
affidavits would compel a different result. Neither of these two new
“witnesses” actually witnessed who was responsible for shooting the victim in
this case; thus, their proposed testimony would have minimal value as
compared to the evidence of Appellant’s guilt. We therefore affirm the PCRA
court’s order denying Appellant’s fifth PCRA petition. 5
Order affirmed.
Date: 1/28/2025
5 We recognize that that the PCRA court had found Appellant’s petition to be
untimely. However, we may affirm the denial of PCRA relief if it is correct on any basis. Commonwealth v. Williams, 324 A.3d 569, 576 n.3 (Pa. Super. 2024).
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