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[U] Commonwealth v. Cooper

Superior Court of Pennsylvania

February 4, 2014



Appeal from the PCRA Order of December 14, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0319052-1992




Darnell Cooper appeals the December 14, 2012 order denying his fifth petition for relief under the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-46. We adopt the well-reasoned opinion of the PCRA court, and we affirm.

In a prior memorandum, we set forth the initial procedural history of this case as follows:

Having been convicted by a jury for murder and other offenses in connection with a shooting, [Cooper] was sentenced in 1994.[1] On direct appeal, this Court affirmed his judgment of sentence in April 1995. Commonwealth v. Cooper, 663 A.2d 246 (Pa.Super. 1995) [(table)]. [Cooper] did not seek discretionary review in the Pennsylvania Supreme Court.
He filed his first PCRA petition in 1996, and counsel was appointed to represent him. The PCRA court denied relief and, on appeal, this Court affirmed the denial. Commonwealth v. Cooper, 747 A.2d 410 (Pa.Super. 1999) [(table)]. [Cooper] did not seek allowance of appeal in the Pennsylvania Supreme Court.
[Cooper] filed his second PCRA petition in 2004. The PCRA court denied the petition as being untimely in August 2005. [Cooper] appealed that denial. On or about March 16, 2007, while [Cooper's] second PCRA petition was on collateral appeal with this Court, he filed a third PCRA request. [Cooper's] third petition alleged the discovery of an eyewitness, Suliman Perkins, whose testimony would essentially indicate, inter alia, that [Cooper] was not present during the shooting in this case. The petition included an affidavit from Suliman as to testimony he would provide if called to testify. The PCRA court dismissed the petition because the collateral appeal of [Cooper's] second PCRA petition was pending. [Cooper] did not appeal the dismissal of his third PCRA petition.
In April 2007, we affirmed the PCRA court's denial of [Cooper's] second PCRA petition. Commonwealth v. Cooper, 928 A.2d 1120 (Pa.Super. 2007) [(table)]. The Pennsylvania Supreme Court denied [Cooper's] petition for allowance of appeal on November 15, 2007. Commonwealth v. Cooper, 936 A.2d 39 (Pa. 2007) [(per curiam)].
In January 2008, [Cooper] filed [his fourth PCRA petition], pro se. The clerk of courts received the petition on or about January 11, 2008. It is not apparent whether [Cooper] mailed his petition from prison and, if so, when he mailed it, or whether he had someone hand file the petition for him.
In his fourth PCRA petition, [Cooper] made largely the same claims he had made in his third. That is, he asserted he first learned on January 27, 2007, that Suliman had witnessed the shooting in question. [Cooper's] petition, along with a detailed affidavit from Suliman, indicated the latter would testify that he saw the crime in question and that [Cooper] was not one of the perpetrators. The affidavit also explained that, although Suliman had seen the shooting, he initially believed no one had been killed because the van at which one or more of the perpetrators shot had driven away. According to the affidavit, Suliman told no one other than his sister about what he saw because she told him to mind his own business. Also according to the affidavit and petition, it was not until January 27, 2007, that Suliman learned [Cooper] had been convicted in connection with the shooting, that Suliman approached [Cooper] in prison in order to relate his (Suliman's) information, and that Suliman revealed he had been a witness to the incident. In his PCRA petition, [Cooper] claimed the foregoing facts constituted after-discovered evidence entitling him to a new trial. He also claimed these facts entitled him to a time-bar exception under 42 Pa.C.S.A. § 9545(b)(1)(ii) (newly discovered facts).
Proceeding under Pa.R.Crim.P. 907, the PCRA court issued a notice of intent to dismiss [Cooper's] petition. The 907 notice indicated only one basis for the intended dismissal, specifically the petition was untimely. [Cooper's] appointed counsel filed a response to the 907 notice wherein counsel contended, inter alia, that the court should grant an evidentiary hearing on [Cooper's] petition. Thereafter, the court dismissed the petition.

Commonwealth v. Cooper, No. 1461 EDA 2009, slip op. at 1-4 (Pa.Super. May 13, 2010).

We reversed the PCRA court's finding that Cooper's fourth PCRA petition was untimely. Id. at 12. We held that the PCRA court improperly conflated the test for the substantive claim for a new trial based upon newly discovered evidence, see 42 Pa.C.S. § 9543(a)(2)(vi), which requires, inter alia, a determination of whether the trial would have resulted in a different outcome had the new information been presented to the jury, and the newly-discovered facts exception to the PCRA's time bar, see 42 Pa.C.S. § 9545(b)(1)(ii), which does not require such an determination. Id. at 8-9. Ultimately, we determined that Cooper sufficiently had pleaded enough information to meet all of the elements of the newly discovered facts exception to the PCRA's time-bar. Id. at 8 ("As a matter of pleading, [Cooper] satisfied 42 Pa.C.S.A. § 9545(b)(1)(ii)."). Consequently, we vacated the PCRA court's dismissal order, and we remanded for a hearing on the underlying substantive claim. Id. at 11-12.

On remand, Suliman Perkins refused to testify on Cooper's behalf. However, in the months leading up to that hearing, Cooper located two other witnesses who provided affidavits similar to that provided by Suliman Perkins: Lorenzo Mahoney and Fernando Hampton. Thus, on July 5, 2012, Cooper filed another pro se PCRA petition, his fifth. Mahoney, whose affidavit claimed that Cooper was with him on the night of the shooting, did not appear at the PCRA hearing, despite being subpoenaed to court. Hampton executed an affidavit substantially similar in facts and circumstances to those involving Suliman Perkins. Thus, the PCRA court, based upon the guidance set forth by this Court on appeal from Cooper's fourth PCRA petition, concluded that Cooper had established that his fifth PCRA petition met the newly-discovered facts exception to the PCRA's time bar.

The PCRA court held a hearing on November 30, 2012. On December 14, 2012, the PCRA court dismissed Cooper's petition by order and opinion. After setting forth a detailed recitation of the facts underlying Cooper's convictions, the court determined that Hampton's testimony: (1) was cumulative and corroborative of Cooper's trial testimony, (2) was not credible, and (3) would not have altered the outcome of the trial had that information been available and presented to the jury. PCRA Court Opinion ("P.C.O."), 12/14/2012, at 3-9, 12-13.

On January 11, 2013, Cooper filed a notice of appeal. The PCRA court did not order Cooper to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Accordingly, Cooper did not file a Rule 1925(b) statement.

Cooper raises the following issue for our review: "Whether the PCRA court committed substantial legal error at the evidentiary hearing when it found that the after-discovered evidence was merely corroborative and not credible, which unduly prejudiced [Cooper]?" Brief for Cooper at 4.

Our standard of review regarding a PCRA court's order is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa.Super. 2011) (citations omitted).

We have reviewed the briefs of the parties and the arguments contained therein. Moreover, we have reviewed the PCRA court's thorough December 14, 2012 opinion. Therein, the PCRA court provided a comprehensive summary of the factual history of this case, including the pertinent facts derived from Cooper's trial and from the PCRA hearing. The court also identified the proper legal standards and principles governing this case. Finally, the court applied those principles to the relevant facts of the case. After doing so, the court concluded that Cooper had not satisfied all four elements required to obtain substantive relief under the newly discovered evidence provision of the PCRA. See 42 Pa.C.S. § 9543(a)(2)(vi). The PCRA court concluded that Hampton's testimony was not credible, was merely corroborative of Cooper's trial testimony, and would not have altered the outcome of the trial had the information been available and presented to the jury. Having reviewed the PCRA court's thorough opinion, as well as the certified record and briefs, we conclude that the PCRA court's conclusions were supported by the record and are free of legal error. We adopt the PCRA court's cogent analysis as our own. A copy of the opinion is attached hereto for convenience.

Order affirmed.

Judgment Entered.

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