Com. v. Ogelsby, L.

C
J-S37007-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 LAMAR OGELSBY                            :
                                          :
                    Appellant             :   No. 248 EDA 2020

          Appeal from the PCRA Order Entered November 14, 2019
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0005339-2012


BEFORE: SHOGAN, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.:                        Filed: December 30, 2020

      Appellant, Lamar Ogelsby, appeals from the order denying his petition

for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. We affirm.

      A prior panel of this Court summarized the facts of this case, as follows:

             On December 24, 2006, at approximately 3:00 a.m., Officer
      Tyrone Harding of the Police Department of the University of
      Pennsylvania was patrolling his district when he heard gunshots,
      and then a woman screaming. He drove toward the sounds and
      found the woman on the 3900 block of Market Street. The woman,
      Tamia Hill, was standing next to a prone and unresponsive male
      named Robert Rose [(“The decedent”)], who was bleeding
      profusely from a wound in his chest. [The decedent] was lying in
      the bike lane on the south side of Market Street. [The decedent]
      subsequently died from his wounds. Philadelphia Police Officer
      Kenneth Bolton was called to secure the scene, where he found
      several shell casings in .45 and 9mm calibers. The casings were
      on the surface of Market Street. A total of eight .45 ACP fired
      cartridge casings were found at the scene of the shooting, along
      with thirteen 9mm Luger fired cartridge casings.
J-S37007-20


            Khalif Hill lived at 3962 Market Street and knew [the
     decedent] through his cousin, Tamia Hill. At the time of the
     shooting, Tamia Hill lived at 3950 Market Street, across the
     courtyard from Khalif Hill, and was dating [the decedent]. Khalif
     Hill knew [Appellant] as “Kool-Aid.”        Immediately after the
     shooting, he came out of his residence and saw Tamia Hill and his
     cousin Troy Hill standing over [the decedent]. He stayed outside
     for a few minutes, but left when the police and emergency vehicles
     began to arrive.

            Approximately one week later, Khalif Hill was questioned by
     members of the Homicide Division of the Philadelphia Police
     Department. He did not give a statement, but on September 30,
     2010, almost four years later, he was arrested in connection with
     narcotics, and was again taken to the Homicide Division, at which
     time he told the police that he had seen the shooting, and that he
     had seen the two men who shot [the decedent] fleeing the scene.
     At that time, he told police that two men he knew as Mike and
     Kool-Aid shot [the decedent], and that Mike held a black gun and
     Kool-Aid held a machine-gun style weapon with two hands. He
     identified Michael Gibbons and [Appellant] as the two shooters.
     He also said that Troy Hill told him that Mike and Kool-Aid had
     killed [the decedent]. He said that Troy also told him that [the
     decedent] had bought a car from Kool-Aid but the transmission
     failed, and that because Kool-Aid was unwilling to give [the
     decedent] his money back, he shot him instead. At trial, Khalif
     said that he had not actually witnessed the shooting or heard the
     shots and he did not see Mike and Kool-Aid leave the scene, but
     that otherwise his statement was truthful. He also said that he
     did not want to testify, and that he was nervous to do so because
     it could be dangerous.

           Khalif Hill was held as a material witness in this case, due
     to the fact that he had tried to avoid giving testimony at the
     preliminary hearing and had actively evaded Commonwealth
     attempts to secure his testimony during the weeks prior to trial.
     He testified that [Appellant’s] uncle and another man broke into
     his house with a gun in the months before trial, robbed him, and
     asked him why he took the stand. He also testified that Michael
     Gibbons had encountered him a week before trial in the basement
     of the Criminal Justice Center and had asked him to change his
     testimony.




                                   -2-
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           Tamia Hill was dating [the decedent] at the time of his
     death, and she was with him the day that he saw a Pontiac
     Bonneville for sale and asked [Appellant] about the car. [The
     decedent] decided to buy it, so they retrieved $3,500.00 in order
     to purchase it. Later, when she went with [the decedent] to
     transfer the title, she saw [Appellant’s] name on the old title.
     They transferred the title into her name.

           On the morning of December 23, 2006, Tamia Hill and [the
     decedent] had discussed the car and the issues that they were
     having with its performance. Later that evening, she heard [the
     decedent] preparing to leave the house, and [the decedent] asked
     her brother, Troy Hill, to walk out with him because the car was
     acting up. Shortly thereafter, she heard gunshots and went
     outside to find [the decedent] lying in the street.

           After the shooting, Tamia Hill accompanied detectives to the
     Homicide Division, where she gave a statement. She gave a
     second statement on February 25, 2007, in which she first
     mentioned the trouble with the Bonneville. She had never seen
     the car again after the shooting and she ... reported it stolen.

           Troy Hill, Tamia Hill’s brother, had sold drugs for [Appellant]
     in 2007 or 2008. He worked with a runner named Nate, who was
     responsible for taking daily proceeds to [Appellant] or Michael
     Gibbons. He saw [the decedent] outside in the street on the night
     of the shooting, calling [Appellant’s] name and complaining loudly
     about the Bonneville. He then saw [the decedent] approach local
     drug dealers who were, at that time, working with Nate; [the
     decedent] smacked them several times, reached into their
     pockets, and took money from them.

            Troy Hill knew that [the decedent] was high on ecstasy and
     tried to calm him down, but [the decedent] would not be deterred,
     and after robbing the drug dealers he came back inside the Hill
     residence and then left again in search of the Bonneville. Hill went
     with him, but as soon as they went outside he saw [Appellant]
     and Gibbons running toward [the decedent]. [Appellant] told
     Gibbons “hit that nigga,” and both of them fired on [the decedent].
     [The decedent] tried to run, but collapsed from his wounds[.]

           Troy Hill did not talk to authorities about what he had seen,
     because he did not want to endanger his mother, who lived in the
     housing development at the scene of the shooting. In May of

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     2009, while he was in federal custody pending trial in two
     robberies, he spoke with federal prosecutors and an FBI agent.
     During his proffer, he said he witnessed this murder. At that time,
     his family had moved and would presumably no longer be in
     danger were he to say what he had seen. In August of 2009, Hill
     entered into a plea agreement. He received a twenty-two year
     sentence[.]

                                    * * *

           Sean Harris lived at the housing development on the 3900
     block of Market Street for several months during 2006 and knew
     [the decedent] well enough to say hello to him.            He also
     recognized [Appellant], [whom] he knew as Kool-Aid. On the
     night of the shooting, he was driving his intoxicated friend home
     in his friend’s Dodge Caravan, and he parked it across Market
     Street from the housing development. As he was opening the
     door to get out of the Caravan, he heard gunshots.             He
     immediately got back in the Caravan. When he looked out the
     window, he saw [Appellant] shooting at least ten times at [the
     decedent] with a large black gun, held with both hands.

           Harris called 911 immediately. However, because he was
     scared, he stayed in the Caravan all night. It was cold, and he
     turned the vehicle on in order to keep warm. At a certain point,
     it ran out of gasoline, and his friend went to get more. At
     approximately 7:00 in the morning, he finally emerged from the
     vehicle.

            On December 27, 2006, [ ] Harris was approached by an
     officer from the University of Pennsylvania’s Police Department.
     The officer asked him if he was okay, and he said that he was not,
     and that he had not slept since he saw [the decedent’s] murder.
     When the officer entered Harris’ information, he told Harris that
     there was an outstanding warrant for his arrest, and took him into
     custody.     He was taken to the Homicide Division of the
     Philadelphia Police Department and interviewed by detectives
     about the murder.

            Initially, Harris told the detectives what happened but
     identified a different person as the shooter because he was afraid
     of reprisal if he identified [Appellant]. Later, he felt guilty about
     identifying the wrong person, and in January of 2012, while he
     was in custody on another matter, he was again taken to talk to

                                     -4-
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      detectives about this murder. He explained to them that he did
      not identify [Appellant] in 2006 because he was afraid for his own
      safety, but that in all other respects, his prior statement was
      correct. He confirmed that [Appellant] is the man he saw shoot
      [the decedent]. The Commonwealth did not offer him anything in
      consideration for his testimony, though he did testify that he had
      hoped that the detectives he spoke to would help him with his
      case.

Commonwealth v. Oglesby, 

198 A.3d 439

, 749 EDA 2017 (Pa. Super. filed

September 10, 2018) (Non-Precedential Decision).

      The procedural history of this case was summarized by the PCRA court

in its Pa.R.A.P. 1925(a) opinion, as follows:

            On April 12, 2012, [Appellant] was arrested and charged
      with Murder and related offenses. On June 11, 2013, [Appellant]
      appeared before this [c]ourt and elected to be tried by a jury. On
      June 18, 2013, the jury convicted [Appellant] of First-Degree
      Murder and Conspiracy to Commit Murder. On that same date,
      this [c]ourt imposed the mandatory minimum sentence of life
      imprisonment without parole for First-Degree Murder and a
      concurrent sentence of twenty to forty years of imprisonment for
      Conspiracy to Commit Murder, for a total sentence of life
      imprisonment without parole.

            [Appellant] appealed and on November 25, 2014, the
      Superior Court affirmed his judgment of sentence. On July 8,
      2015, the Supreme Court of Pennsylvania denied his Petition for
      Allowance of Appeal.

             On April 13, 2016, [Appellant] filed a timely Post-Conviction
      Relief Act (“PCRA”) petition, his first. On February 10, 2017, after
      an evidentiary hearing, this [c]ourt dismissed the petition.
      [Appellant] appealed and on September 10, 2018, the Superior
      Court affirmed this [c]ourt’s denial of relief. On June 10, 2019,
      the Supreme Court of Pennsylvania denied his Petition for
      Allowance of Appeal.

            On June 19, 2019, through PCRA counsel, [Appellant] filed
      the instant, subsequent PCRA petition. On August 12, 2019, this
      [c]ourt granted [Appellant’s] request for an extension to file an

                                     -5-
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     amended petition. On September 16, 2019, [Appellant] filed an
     amended petition, raising one new issue. On September 26,
     2019, the Commonwealth filed its response.1

           On October 16, 2019, this [c]ourt presided over an
     evidentiary hearing. On that same date, [Appellant] requested a
     continuance for further investigation. On November 14, 2019,
     after [Appellant] elected not to further amend his petition, this
     [c]ourt dismissed each of his claims. On December 16, 2019,
     [Appellant] filed a timely Notice of Appeal. On December 23,
     2019, this [c]ourt ordered [Appellant] to file a Statement of
     Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925(b).
     On January 13, 2020, [Appellant] filed a timely 1925(b)
     Statement.

           1 The Pennsylvania Office of the Attorney General
           represented the Commonwealth for the purposes of
           the instant PCRA. PCRA counsel Lloyd E. Long, III,
           Esq. is the former law partner of Philadelphia District
           Attorney Lawrence S. Krasner. The Office of the
           Attorney General has handled all matters relating to
           Mr. Krasner’s former criminal defense practice to
           avoid any conflicts of interest or appearance of
           impropriety.

PCRA Court Opinion, 1/28/20, at 1-2.

     The following facts were established at the PCRA hearing:

           In September 2013, after seeing then-Philadelphia Mayor
     Nutter describe the city’s Crime reward fund on a television news
     program, Harris contacted Detective Hagan to inquire request
     [sic] compensation from the fund, given his testimony in the
     instant matter. Approximately six weeks later, Detective Hagan
     informed Harris that he was eligible for recommendation for
     compensation from the fund. On December 5, 2013, Detective
     Hagan submitted a memorandum recommending that Harris be
     paid from the fund in exchange for his prior testimony. In March
     2014, Harris received a reward payment of $20,000.            This
     information was not shared with any other Commonwealth
     investigator or representative.

           On January 15, 2019 and March 20, 2019, Harris attended
     the funerals of his uncle Irvin Quinn and aunt Brenda Quinn, who

                                    -6-
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     died five weeks apart from each other. At each funeral, Harris
     encountered [Appellant’s] father, Leonard Oglesby. At the first
     funeral, Leonard Oglesby informed Harris that [Appellant]
     received a life sentence pursuant to the 2013 trial, whereupon
     Harris told Leonard Oglesby that he wasn’t sure whether
     [Appellant] was the shooter. Leonard Oglesby requested that
     Harris speak to his private investigator, but Harris ignored all
     attempts by Leonard Oglesby and the investigator to arrange a
     meeting. After unexpectedly encountering Leonard Oglesby again
     at the second funeral, Harris agreed to meet with investigator
     Thomas Bailey, and spoke to him on March 28, 2019. On April
     16, 2019, Harris provided Bailey a written statement recanting his
     in-court identification of [Appellant] as the shooter.

           In early August 2019, the Assistant Attorney General in the
     instant matter spoke with Detective Hagan in preparation for the
     October 16, 2019 evidentiary hearing. During their conversation
     about Harris’ recantation, Detective Hagan informed the
     prosecutor that he had previously recommended Harris for reward
     money after completing his testimony. Detective Hagan provided
     the prosecutor with the relevant paperwork, and on August 8,
     2019, the Office of the Attorney General disclosed the reward
     payment to PCRA counsel.

           On August 8, 2019, Agents Sean McGlinn and Timothy
     Barrar of the Pennsylvania Office of the Attorney General
     interviewed Harris, who informed them that he was “150 percent”
     sure that [Appellant] shot the decedent in the instant matter. On
     August 14, 2019, Harris again met with McGlinn and Barrar, and
     provided them with a written statement again identifying
     [Appellant] as the shooter. Within that statement, Harris claimed
     that he recanted his trial testimony because he feared reprisal
     against him orchestrated by Leonard Oglesby. Harris did not
     mention receiving award money to neither McGlinn nor Barrar at
     the August 8 and August 14, 2019 meetings.

           During the August 14, 2019 interview with Agents McGlinn
     and Barrar, Harris requested that he be placed in the witness
     relocation, which he entered on August 19, 2019. As a participant
     in the program, Harris received a total payment of $5,911.54 to
     cover rent and other living expenses in anticipation of the
     evidentiary hearing.

PCRA Court Opinion, 1/28/20, at 5-7.

                                   -7-
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       On appeal, Appellant presents the following issues for our review:

       I.     The PCRA court erred by determining that Sean Harris’[s]
              recantation did not entitle [Appellant] to relief where his
              testimony was the only evidence of guilt not tainted by
              Brady[1] violations.

       II.    The PCRA [c]ourt erred by determining that the
              circumstances surrounding a $20,000 reward to Sean Harris
              did not constitute a Brady violation.

Appellant’s Brief at 12, 19.

       When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”     Commonwealth v. Stultz, 

114 A.3d 865

, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 

90 A.3d 16

, 20 (Pa. Super. 2014)

(en banc)).     This Court is limited to determining whether the evidence of

record supports the conclusions of the PCRA court and whether the ruling is

free of legal error. Commonwealth v. Robinson, 

139 A.3d 178

, 185 (Pa.

2016). The PCRA court’s findings will not be disturbed unless there is no

support for them in the certified record. Commonwealth v. Lippert, 

85 A.3d 1095

, 1100 (Pa. Super. 2014).

       A PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final.            42 Pa.C.S. § 9545(b)(1). This time

requirement is mandatory and jurisdictional in nature, and the court may not

ignore it in order to reach the merits of the petition.       Commonwealth v.


____________________________________________


1   Brady v. Maryland, 

373 U.S. 83

(1963).

                                           -8-
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Hernandez, 

79 A.3d 649

, 651 (Pa. Super. 2013). A judgment of sentence

“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).

       However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and

(iii), is met.2 A petition invoking one of these exceptions must be filed within

one year of the date the claim could first have been presented.3 42 Pa.C.S.

§ 9545(b)(2).

____________________________________________


2   The exceptions to the timeliness requirement are:

       (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 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.

42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).
3  Until recently, a petition invoking an exception was required to be filed
within sixty days of the date the claim could have been presented. However,



                                           -9-
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       Our review of the record reflects that Appellant initially was sentenced

on June 18, 2013.          Appellant’s judgment of sentence was affirmed on

November 25, 2014, and on July 8, 2015, the Supreme Court of Pennsylvania

denied Appellant’s petition for allowance of appeal.      Commonwealth v.

Oglesby, 

113 A.3d 358

, 3048 EDA 2013 (Pa. Super. filed November 25, 2014)

(unpublished memorandum), appeal denied, 

117 A.3d 1281

, 85 EAL 2015 (Pa.

filed July 8, 2015).

       As such, Appellant’s judgment of sentence became final for PCRA

purposes on October 6, 2015, ninety days after the Pennsylvania Supreme

Court denied Appellant’s petition for allowance of appeal and time expired for

Appellant to file an appeal with the United States Supreme Court. 42 Pa.C.S.

§ 9545(b)(3); U.S. Sup. Ct. R. 13. Therefore, Appellant had to file the current

PCRA petition by October 6, 2016, in order for it to be timely. See 42 Pa.C.S.

§ 9545(b)(1) (a PCRA petition must be filed within one year of the date that

the judgment of sentence becomes final). Appellant did not file the instant

PCRA petition until June 19, 2019. Thus, Appellant’s instant PCRA petition is

patently untimely.


____________________________________________


Act 146 of 2018 amended 42 Pa.C.S. § 9545(b)(2), and Section 9545(b)(2)
now provides that a PCRA petition invoking a timeliness exception must be
filed within one year of the date the claim could have been presented. See
2018 Pa.Legis.Serv.Act 2018-146 (S.B. 915), effective December 24, 2018,
§ 2 and § 3 (“[T]he amendment ... shall apply to claims arising on Dec. 24,
2017 or thereafter.”). Although applicable to Appellant’s instant petition
because such petition was filed after December 24, 2018, the change in the
law from sixty days to one year does not alter our analysis.

                                          - 10 -
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      As previously stated, if a petitioner does not file a timely PCRA petition,

his petition may nevertheless be received under any of the three limited

exceptions to the timeliness requirements of the PCRA.              42 Pa.C.S.

§ 9545(b)(1). If a petitioner asserts one of these exceptions, he must file his

petition within one year of the date that the exception could be asserted. 42

Pa.C.S. § 9545(b)(2). It is the petitioner’s burden to allege and prove that

one of the exceptions exists. Commonwealth v. Whitehawk, 

146 A.3d 266

,

269–270 (Pa. Super. 2016).

      In both issues, Appellant asserts that he has met the criteria for the

newly discovered-facts exception to the PCRA time-bar and the elements

required for an underlying after-discovered evidence claim. Specifically, in his

first issue, Appellant maintains that Sean Harris’s April 16, 2019 recantation

of testimony constituted newly discovered evidence and entitled him to relief

on that basis.    Appellant’s Brief at 12-19.   In his second issue, Appellant

asserts that the newly discovered-facts exception applies because non-

disclosure of the payment of a $20,000.00 reward to Sean Harris was a Brady

violation, and such evidence entitled him to relief on that basis. Appellant’s

Brief at 19-23.

      “[A] facially untimely PCRA petitioner attempting to raise a substantive

after-discovered-evidence claim must first establish jurisdiction by pleading

and proving an exception to the PCRA time-bar.” Commonwealth v. Brown,

1111 A.3d 171

, 179 (Pa. Super. 2015). This Court further explained:


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            The timeliness exception set forth at Section 9545(b)(1)(ii)
     has often mistakenly been referred to as the “after-discovered
     evidence” exception. This shorthand reference was a misnomer,
     since the plain language of subsection (b)(1)(ii) does not require
     the petitioner to allege and prove a claim of ‘after-discovered
     evidence. Rather, as an initial jurisdictional threshold, Section
     9545(b)(1)(ii) requires a petitioner to allege and prove that there
     were facts unknown to him and that he exercised due diligence in
     discovering those facts. See 42 Pa.C.S.A. § 9545(b)(1)(ii). Once
     jurisdiction is established, a PCRA petitioner can present a
     substantive after-discovered-evidence claim. See 42 Pa.C.S.A.
     § 9543(a)(2)(vi) (explaining that to be eligible for relief under
     PCRA, petitioner must plead and prove by preponderance of
     evidence that conviction or sentence resulted from, inter alia,
     unavailability at time of trial of exculpatory evidence that has
     subsequently become available and would have changed outcome
     of trial if it had been introduced). In other words, the “new facts”
     exception at:

           Subsection (b)(1)(ii) has two components, which
           must be alleged and proved. Namely, the petitioner
           must establish that: 1) the facts upon which the claim
           was predicated were unknown and 2) could not have
           been ascertained by the exercise of due diligence. If
           the petitioner alleges and proves these two
           components, then the PCRA court has jurisdiction over
           the claim under this subsection.

     Thus, the “new facts” exception at Section 9545(b)(1)(ii) does not
     require any merits analysis of an underlying after-discovered-
     evidence claim.4

           4 To obtain relief on a substantive after-discovered-
           evidence claim under the PCRA, a petitioner must
           demonstrate: (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. The substantive merits-
           based analysis is more stringent than the analysis
           required by the “new facts” exception to establish
           jurisdiction.


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Brown, 111 A.3d at 176-177

(some internal citations and quotation marks

omitted).

      The PCRA court provided a thorough and detailed discussion, concluding

that although Appellant met the newly discovered-facts exception to the PCRA

time-bar, Appellant failed to establish that he was entitled to relief on his

claims of after-discovered evidence. The PCRA court provided the following

analysis:

             [Appellant] argues that jurisdiction is conferred to each of
      his claims based on the newly-discovered fact exception. On his
      first claim, [Appellant] contends that he discovered Sean Harris’
      recantation on January 15, 2019 at the earliest, when his father
      Leonard Oglesby encountered Harris at the funerals for Irwin and
      Brenda Quinn. [Appellant] submitted his subsequent petition on
      June 19, 2019, nine days after the Supreme Court of Pennsylvania
      affirmed the dismissal of his previous PCRA petition.

             This [c]ourt determines that [Appellant] has presented a
      sufficient factual basis to warrant application of the newly-
      discovered fact exception on this claim. [Appellant] had not been
      in contact with Sean Harris between the time of his trial and the
      March 20, 2019 encounter, and Harris’ recantation was not the
      type of evidence that would have been discovered through the
      exercise of due diligence. [Appellant] filed the instant petition
      nine days after the Supreme Court of Pennsylvania concluded its
      review. [Appellant] could not file a petition while review of his
      prior petition was still pending. Accordingly, this [c]ourt has
      jurisdiction to address the instant claim.

              [Appellant’s] remaining Brady claim similarly warrants
      review based on the newly-discovered fact exception. While it is
      clear that on December 5, 2013, Detective Hagan recommended
      Sean Harris for compensation in exchange for his testimony at
      trial, [Appellant’s] receipt of the reward money was not a matter
      of the public record that could be discovered through the exercise
      of due diligence. In fact, neither [Appellant] nor counsel for the
      Commonwealth was made aware of this award until August 2019,
      when Detective Hagan informed the prosecutor of the reward.

                                    - 13 -
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     This is sufficient to meet the threshold requirement for jurisdiction
     pursuant to the newly-discovered fact exception.

            While [Appellant] has established grounds for this [c]ourt to
     conduct merit-analysis in this matter, neither of [Appellant’s]
     averments are sufficient to warrant collateral relief. With respect
     to [Appellant’s] after-discovered recantation claim, in order to
     obtain relief based on after-discovered evidence, a petitioner must
     show that the evidence: (1) could not have been obtained prior
     to the conclusion of trial by the exercise of reasonable diligence;
     (2) is not merely corroborative or cumulative; (3) would 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. Williams, 

215 A.3d 1019

, 1024 (Pa. Super.
     2019) (citing Commonwealth v. Pagan, 

950 A.2d 270

, 292 (Pa.
     2008)).

           The Supreme Court of Pennsylvania has characterized
     recantation testimony as “extremely unreliable,” especially where
     the assertion involves an admission of perjury. Commonwealth v.
     Small, 

189 A.3d 961

, 978 (Pa. 2019) (citing Commonwealth
     Mosteller, 

284 A.2d 786

, 788 (Pa. 1971)). Accordingly, PCRA
     courts are directed to assess the credibility and significance of the
     recantation in light of the evidence as a whole.

Id. (citing Commonwealth v.

D’Amato, 

856 A.2d 806

, 825 (Pa. 2004)).

           Harris’ recantation of his trial testimony was too unreliable
     to warrant relief in this matter.        At the October 16, 2019
     evidentiary hearing, Harris recalled how he encountered Leonard
     Oglesby, [Appellant’s] father, at his uncle’s funeral. There, Harris
     informed Oglesby that he was willing to recant his testimony, but
     only did so to avoid a confrontation or any trouble between
     himself, Oglesby, and Oglesby’s associates.          Harris initially
     avoided any further entanglement with Leonard Oglesby, but
     agreed to meet with his private detective after a second,
     unexpected meeting during the funeral for his aunt. Harris
     eventually signed a statement on April 16, 2019.

           Harris further recalled speaking [with] investigators
     representing the Commonwealth on August 14, 2019, wherein he
     stated to those investigators that his April 16, 2019 recantation
     was false, that [Appellant] shot and killed the decedent in this
     case, and that he feared reprisal from Leonard Oglesby.2

Id. at 101-102.

When confronted by PCRA counsel at the evidentiary

                                    - 14 -
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     hearing, Harris thoroughly and unequivocally denied the veracity
     of his April 16, 2019 recantation, and stated that he correctly
     identified [Appellant] as the shooter after having seen his face on
     the night of the murder.

           2 On August 19, 2019, Harris entered the witness
           protection program.

            Because Harris forcefully, clearly, and unequivocally
     rejected his own April 16, 2019 recantation and characterized it
     as false, the recantation is unsupported by any credible testimony
     sufficient to warrant collateral relief. For that reason alone,
     [Appellant’s] claim fails. Based on the evidence presented at the
     evidentiary hearing, it appears that Harris provided [Appellant]
     with his recantation statement only after sustained pressure by
     [Appellant’s] family, causing Harris to fear for his life. In the
     weeks after Irvin Quinn’s funeral, Harris avoided and ignored
     Leonard Oglesby’s multiple attempts have Harris provide a written
     statement recanting [the] trial testimony. Despite his efforts to
     evade Leonard Oglesby and his investigator, Harris unexpectedly
     encountered him at Brenda Quinn’s funeral, whereupon he agreed
     to meet with the private detective. When given the opportunity
     to speak to investigators from the Office of the Attorney General,
     however, Harris immediately retracted his recantation and
     requested placement in a witness protection program.
     Accordingly, this [c]ourt cannot find Harris’ recantation sufficiently
     credible to support the instant claim for relief.

            [Appellant] next claims that the Commonwealth withheld
     evidence that Sean Harris received an award payment in exchange
     for his testimony, in violation of Brady v. Maryland, 

373 U.S. 83

     (1963). To succeed on a Brady claim, a petitioner must show
     that: (1) the evidence at issue was favorable to the accused,
     either because it is exculpatory or because it impeaches; (2) the
     evidence was suppressed by the prosecution, either willfully or
     inadvertently; and, (3) prejudice ensued. Commonwealth v.
     Sandusky, 

203 A.3d 1033

, 1061 (Pa. 2019) (citing
     Commonwealth v. Roney, 

79 A.3d 595

, 607 (Pa. 2013). The
     petitioner carries the burden of proving that the suppressed or
     withheld evidence was material, such that there is a reasonable
     probability that, had the evidence been disclosed, the result of the
     proceeding would have been different.

Id. at 1061-1062. – 15 –

J-S37007-20


           [Appellant] fails to establish the merits of any prong of his
     Brady claim. While it is undisputed that Harris received an award
     payment from the City of Philadelphia after he testified against
     [Appellant] in 2013, his testimony at the evidentiary hearing
     established that he was unaware that the Crime Reward Fund
     existed until September 2013, three months after he testified, and
     that he did not receive payment from the fund until March 2014,
     approximately nine months after he testified.           [Appellant]
     provided a statement incriminating [Appellant] to Detective Hagan
     on January 25, 2012, one day prior to then-Mayor Nutter
     announcing the establishment of the City’s Crime Reward Fund.
     Detective Hagan was not aware of the fund’s existence until Harris
     contacted him in September 2013, three months after the trial
     concluded.      [Appellant] cannot establish that Harris’ trial
     testimony was influenced by the promise of an award from the
     Crime Reward Fund.3

           3 Mayor Nutter established the Crime Reward Fund in
           January 2012.

           [Appellant] further fails to demonstrate that the
     Commonwealth willfully or inadvertently suppressed evidence that
     Harris received such an award. Detective Hagan recommended
     Harris for payment several months after the jury reached his
     verdict, and there is no indication on the record that Hagan
     informed the prosecution until August of 2019. Upon receiving
     information that Harris had received an award from the Crime
     Reward Fund, the Commonwealth immediately forwarded that
     information to PCRA counsel on August 8, 2019, permitting him to
     amend the June 19, 2019 petition to include the instant Brady
     claim. The prosecution cannot be deemed to have violated Brady
     based on this sequence of events. Accordingly, [Appellant] fails
     to carry his burden on each of his raised claims, and this [c]ourt
     acted properly in denying his request for relief.

PCRA Court Opinion, 1/28/20, at 9-13.

     We agree with the PCRA court’s thorough and well-reasoned analysis.

Although Appellant met the preliminary criteria for consideration under the

newly discovered-facts exception to the PCRA time-bar for his two claims, the




                                   - 16 -
J-S37007-20


underlying claims of after-discovered evidence lack merit, as explained by the

PCRA court. Thus, Appellant is entitled to no relief on his PCRA petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/30/20




                                    - 17 -

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