Com. v. Parker, M.

• Court: Superior Court of Pennsylvania
• Decided: September 20, 2021
• Docket: 687 WDA 2020
• Status: Unpublished

Opinion

J-S24013-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MARIO COURTLIN PARKER : : Appellant : No. 687 WDA 2020

Appeal from the PCRA Order Entered June 10, 2020 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0007624-2009

BEFORE: DUBOW, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.: FILED: September 20, 2021

Appellant, Mario Courtlin Parker, appeals from the June 10, 2020 Order

entered in the Allegheny County Court of Common Pleas denying his Petition

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

96. After careful review, we affirm.

The relevant facts and procedural history are as follows. On May 1,

2009, Appellant and a second man shot and killed two victims in the victims’

home in Pittsburgh. Appellant and the other man also held three witnesses—

Laron Thornton, Michael Morrison, and D’Andre1 Freeman—at gunpoint.

Although Appellant had attempted to conceal his identity by wearing a ski ____________________________________________

* Former Justice specially assigned to the Superior Court.

1 D’Andre Freeman is also referred to as Deandre Freeman throughout the record. J-S24013-21

mask, Freeman saw Appellant’s face when Appellant partially lifted up his ski

mask, and he recognized Appellant as someone he knew from the

neighborhood. At a formal interview conducted by police detectives a few

hours after the incident, Freeman identified Appellant in a photo array.2 Laron

Thornton also identified Appellant as one of the actors involved and picked

him out of a photo array later that day.

Police arrested Appellant and charged him with numerous offenses

arising from the murders. Prior to trial, Appellant filed a Motion to, inter alia,

suppress Thornton’s identification of Appellant, which the trial court denied.

At trial, Thornton could not identify Appellant. Over Appellant’s

objection, however, a detective testified to Thornton’s pre-trial identification

of Appellant. Freeman also testified at trial and identified Appellant as the

perpetrator. On July 2, 2010, a jury convicted Appellant of two counts of first-

degree Murder, Burglary, Possession of a Firearm Prohibited, five counts of

Unlawful Restraint, and Criminal Conspiracy to Commit Homicide. On

September 20, 2010, the court sentenced Appellant to two life sentences for

the murders and 20 to 40 years’ imprisonment on the remaining convictions.

Appellant filed a direct appeal to this Court challenging the trial court’s

denial of his Motion to Suppress Thornton’s pre-trial and in-court identification

of Appellant, the admission of the detective’s testimony that Thornton had

identified Appellant prior to trial, and the sufficiency of the evidence. On ____________________________________________

2 Pittsburgh Police placed Freeman in its witness protection program shortly

after the murders. N.T. Hr’g, 4/1/19, at 37.

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March 5, 2013, this Court affirmed Appellant’s Judgment of Sentence, and the

Pennsylvania Supreme Court denied further review. See Commonwealth v.

Parker, 2013 WL 11273762 (Pa. Super. March 5, 2013) (unpublished

memorandum); appeal denied, 72 A.3d 602 (Pa. 2013).

On March 17, 2014, Appellant filed a timely first PCRA Petition raising

numerous ineffective assistance of counsel claims. On April 22, 2015, the

PCRA court denied Appellant’s Petition. Appellant filed an appeal to this Court.

Prior to our disposition of Appellant’s appeal, Appellant filed a Petition

requesting that we remand for an evidentiary hearing based on after-

discovered evidence. In support of this request, he submitted an unsworn

February 23, 2016 affidavit obtained from trial witness D’Andre Freeman. In

the affidavit, Freeman stated that, despite his preliminary hearing and trial

testimony identifying Appellant as one of the perpetrators of the 2010

murders, he did not actually recognize either gunman. Affidavit, 2/23/16, at

¶ 4. He stated that he had been drinking and smoking marijuana on the

evening of the murders and was under the influence at both the time of the

murders and when the police took him to the police station to be interviewed.

Id. at ¶ 2. He stated that he felt pressured by the police to identify Appellant

and he felt like he could not disagree with them. Id. at ¶¶ 5-6. He stated

that Appellant’s trial counsel never contacted him prior to trial and that his

first discussion about the case with anyone other than the police took place in

April of 2015 when an investigator for Appellant contacted him. Id. at ¶ 7.

Freeman asserted that he was not ready to talk with anyone at that time, so

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he falsely told the investigator that his trial testimony was the truth. Id. He

stated that the first time he told anyone he identified “the wrong person” was

on February 11, 2016, when he met with Appellant’s PCRA counsel, Attorney

Emily McNally. Id. at ¶ 8. In his affidavit, Freeman stated he “do[es] not

believe” Appellant was one of the gunmen responsible for the Robinson

murders and he is willing to testify to that effect under oath. Id. at ¶ 9.

On August 10, 2016, this Court denied Appellant’s Petition for Remand

finding that Appellant had not asserted in it that he could not have obtained

Freeman’s recantation at or prior to the conclusion of trial through reasonable

diligence. This Court also noted Freeman was not the only witness to identify

Appellant and affirmed the Order dismissing Appellant’s first PCRA Petition.

See Commonwealth v. Parker, 153 A.3d 332 (Pa. Super. 2016)

(unpublished memorandum). The Pennsylvania Supreme Court denied further

review. See Commonwealth v. Parker, 156 A.3d 333 (Pa. 2017).

On March 21, 2017, Appellant filed a counselled second PCRA Petition,

raising again the after-discovered evidence claim outlined above and

requesting a new trial. The PCRA court dismissed this Petition, concluding

that Appellant had previously litigated this claim before the Superior Court.

On appeal, we vacated the PCRA court’s Order and remanded for an

evidentiary hearing on Appellant’s after-discovered evidence claim.3

____________________________________________

3 We found that Appellant’s second PCRA Petition overcame the PCRA’s one-

year jurisdictional time bar because Appellant filed it within 60 days of the

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The PCRA court held hearings on Appellant’s second PCRA Petition on

April 1, 2019, and April 23, 2019, at which Appellant presented the testimony

of D’Andre Freeman; Barry Fox, Appellant’s counsel’s private investigator;

Attorney McNally; and Detectives Martin Kail and Scott Evans.

Freeman testified that he was intoxicated on the night in question when

police interviewed him and that he did not recall picking Appellant out of a

photo array. N.T., 4/1/19, at 7-9 He conceded that he did testify at the

preliminary hearing and at trial that Appellant was one of the perpetrators.

Id. at 9. Freeman asserted that, after Appellant’s trial, an investigator went

to his house, but he refused to speak with the investigator. Id. at 11.

However, he eventually met with prior PCRA counsel and provided a signed

affidavit in February 2016, in which he stated that he had testified falsely at

trial when he identified Appellant as one of the perpetrators and that he did

not actually recognize either shooter. Id. at 10-12. Freeman confirmed,

however, that not once during his trial testimony did he indicate to the court

that he was unsure of his identification of Appellant. Id. at 34.

Pennsylvania Supreme Court’s February 22, 2017 denial of his Petition for Allowance of Appeal. Commonwealth v. Parker, 2018 WL 1939823 at *4 (Pa. Super. 2018) (citing 42 Pa.C.S. § 9545(b)(2)). We further found that the record did not support the PCRA court’s conclusion that Appellant had previously litigated his claim before this Court because we did not address the claim on its merits; instead, we concluded that Appellant failed to aver in his Petition for Remand that he “could not have obtained Freeman’s recantation at or prior to the conclusion of trial through reasonable diligence.” Id. at *4- 5 (citation omitted).

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On cross-examination, the Commonwealth attempted to demonstrate

that Freeman’s recantation was not truthful and that he was motivated solely

by fear. The Commonwealth elicited Freeman’s testimony that, when he

called 911 to report the shooting, he asked the operator not to send police

officers to his house so that no one would know that he called the police or

where he lived. Id. at 20-21, 37. Freeman also testified that prior to

testifying at trial, he asked that the police place him in its witness protection

program and that the police complied. Id. at 21, 37-38. He agreed that when

he testified at trial, he still felt scared. Id. at 28. He acknowledged omitting

from the 2016 affidavit that he had affirmatively identified Appellant as the

shooter during his police interview.4 Id.at 30-31. Freeman also testified that

about two months after the murders an unknown male approached him on the

street and informed him that he “got the wrong person” convicted and warned

Freeman to “be careful,” but claimed that he did not perceive this as a threat.

Id. at 23-25.

Pittsburgh Police Detective Martin Kail testified that he interviewed

Freeman in the fall of 2018, approximately two years after Freeman’s

recantation affidavit. Id. at 48. He testified that Freeman informed him

during that interview that Freeman felt pressured into giving prior PCRA

counsel the affidavit. Id. at 50. He also testified that he felt threatened by

an unknown male who had approached him on the street and referred to ____________________________________________

4 He also testified that he did not write or type the affidavit himself. N.T. Hr’g at 30.

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Appellant by name. Id. at 50-51. Detective Kail testified that Freeman

indicated to him that his prior trial testimony identifying Appellant as one of

the perpetrators was truthful. Id. at 51.

Following the hearings, the PCRA court issued a Pa.R.Crim.P. 907 Notice

to Dismiss explaining that it had found Freeman’s recantation testimony

incredible and concluding that Appellant had failed to establish that a new

trial, if granted, would likely result in a different verdict. Rule 907 Notice,

2/18/20, at 4.

On March 9, 2020, Appellant filed a Response to the court’s Rule 907

Notice. On June 10, 2020, the PCRA court dismissed Appellant’s Petition as

meritless. This timely appeal followed.5

Appellant raises the following issues on appeal:

1. Whether the PCRA[] court erred in finding that the eyewitness, in recanting his prior testimony, was not credible, when he has made any number of conflicting statements and thus the very inconsistency of his various statements adversely affects his credibility and mandates further review [?]

2. Whether the fact that the eyewitness has made a number of inconsistent statements, including a recantation of his eyewitness identification, dictates that a fact-finder must hear and evaluate his testimony at a new trial[?]

Appellant’s Brief at 5.

Both of Appellant’s issues challenge the PCRA court’s denial of

Appellant’s after-discovered evidence claim.

5 The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b) Statement.

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Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa. Super. 2014) (citation omitted). “The PCRA court’s

findings will not be disturbed unless there is no support for the findings in the

certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super.

2014) (citations omitted). “This Court grants great deference to the findings

of the PCRA court, and we will not disturb those findings merely because the

record could support a contrary holding.” Commonwealth v. Hickman, 799

A.2d 136, 140 (Pa. Super. 2002) (citation omitted). In contrast, we review

the PCRA court’s legal conclusions de novo. Commonwealth v. Henkel, 90

A.3d 16, 20 (Pa. Super. 2014) (en banc).

To receive a new trial based on after-discovered evidence, a petitioner

must satisfy a four-part test requiring

the petitioner to demonstrate the [after-discovered] 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. Small, 189 A.3d 961, 972 (Pa. 2018) (citing

Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008)). “The test is

conjunctive; the [petitioner] 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.” Commonwealth v. Padillas, 997 A.2d 356, 363 (Pa. Super.

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2010). In addition, the after-discovered evidence must be producible and

admissible. Small, 189 A.3d at 972.

The “salutary goal of the after-discovered evidence rule [is] to limit

continued litigation without being so rigid as to shut out [after-]discovered

evidence from a credible source which may lead to a true and proper

judgment.” Id. at 975 (citation omitted, emphasis added). A request for a

new trial based on recantation testimony hinges on the credibility of the

testimony. Id.

It is well-settled that “recantation is one of the least reliable forms of

proof, particularly when it constitutes an admission of perjury.”

Commonwealth v. McCracken, 659 A.2d 541, 545 (Pa. 1995). Thus, it is

within the province of the PCRA court to judge the credibility of the recantation

testimony. Small, 189 A.3d at 977. The court must deny a defendant’s

request for a new trial unless the court is satisfied that the recantation is true.

Id. “[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.” McCracken, 659 A.2d at

545 (citation omitted).

Appellant’s issues challenge: (1) the PCRA court’s finding that Freeman’s

recantation testimony was not credible; (2) the weight the PCRA court gave

to Freeman’s testimony; and (3) the court’s conclusion that Appellant had

failed to demonstrate by a preponderance of the evidence that a different

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verdict would result if the court granted him a new trial.6 Appellant’s Brief at

13-23. Conceding that Freeman offered numerous conflicting statements,

Appellant essentially argues that the PCRA court’s finding that Freeman’s

PCRA hearing testimony was not credible amounted to the court “[p]icking

and choosing, in an arbitrary manner” which of Freeman’s statements to

disbelieve. Id. at 21. In other words, Appellant claims that, precisely because

Freeman has offered inconsistent statements for more than a decade, the

PCRA court should not determine whether his current testimony is credible;

rather, he asserts that the PCRA court should order a new trial so that a jury

may weigh Freeman’s credibility and determine which of his inconsistent

statements to believe. Id.

Appellant’s argument flies in the face of our well-established case law

that it is, as a threshold matter, the job of the PCRA court to determine the

credibility of a recantation witness’s testimony. Moreover, Appellant’s

assertion that a jury should consider Freeman’s conflicting statements and

determine which to believe amounts to no more than unfounded speculation—

and not proof by a preponderance of the evidence—that a new jury would

reach a different verdict if presented with Freeman’s testimony.

Furthermore, the record reflects that, in accordance with its mandate,

the PCRA court weighed the testimony presented at the hearing, including that ____________________________________________

6 Appellant has neglected to divide the Argument section of his brief “into as

many parts as there are questions to be argued” as required by Rule of Appellate Procedure 2119(a). Pa.R.A.P. 2119(a).

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of Freeman and Detective Kail. The PCRA court found Freeman’s testimony

not credible, noting that Freeman had offered “multiple conflicting statements

throughout the course of this case.” Rule 907 Notice at 5. Conversely, the

court found credible Detective Kail’s testimony that Freeman informed him

that Freeman had told the truth at Appellant’s trial, that Freeman had felt

threatened after being approached by an unidentified man who invoked

Appellant’s name, and that he had felt pressured into providing the 2016

recantation affidavit. The record, thus, supports the trial court’s conclusion

that Appellant failed to demonstrate that a new trial would likely result in a

different verdict. Because Appellant did not satisfy this prong of the after-

discovered evidence test, the PCRA court properly found that his after-

discovered evidence claim lacked merit.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/20/2021

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