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[U] Commonwealth v. Frazier

Superior Court of Pennsylvania

February 28, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JASON MICHAEL FRAZIER, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order October 20, 2009 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CC200011969, CP-02-CR-0011969-2000

BEFORE: BOWES, ALLEN, and MUSMANNO, JJ.

MEMORANDUM

BOWES, J.

Jason Michael Frazier appeals from the October 20, 2009 order denying his second petition for collateral relief. We affirm.

On January 19, 2001, a jury convicted Appellant of first degree murder in connection with the July 4, 2000 shooting death of Sherdina Jones. The trial evidence was as follows. On July 3, 2000, the Pittsburgh Police Department received a report that a man changing a tire on Bennett Street had been shot. Responding officers located Appellant, who was the target of the shooting and was very upset. Appellant told them, "Somebody is going to pay for this. I know who is responsible for this." N.T., 1/12-16/01, at 93. Police asked Appellant if he knew his assailant, and Appellant responded, "Kelly Street is responsible for this and somebody is going to pay." Id. at 97. Early in the morning hours of the following day, July 4, 2000, Ms. Jones was shot with four bullets while she was standing on Kelly Street. Police discovered eight shell casings fired from a .22 caliber rifle at the scene of the crime. After receiving an anonymous tip, they recovered the murder weapon, which was a modified .22 caliber rifle, from a dumpster.

Appellant initially was questioned by police about the murder in early July, and he claimed that he was not in Pittsburgh at the time of the incident. On July 21, 2000, Appellant was arrested, charged with criminal homicide, and thereafter indicated that he wanted to speak with police in his cell. On July 25, 2000, Pittsburgh homicide detectives met with Appellant at the county jail and read him his Miranda rights. Appellant admitted that he purchased a .22 rifle and modified it by cutting off the stock. He additionally acknowledged that he was driving a vehicle on Kelly Street with a friend, Geoffrey Warren, at the time of the shooting. Appellant reported that, while he was driving on Kelly Street, he saw three men hiding in some weeds, told Warren to duck, and heard two shots. Appellant said that, at that point, Warren retrieved Appellant's .22 rifle, which contained eleven bullets, and shot at the men in the weeds eleven times.

Appellant then changed his version of events and confessed to detectives as follows. Appellant reported that, in actuality, he was the shooter. Id. at 206. He admitted that, as he and Warren came down Kelly Street, "he saw three people in the weeds, and he felt something was about to happen[.]" Id. Appellant continued that, at that point, he turned to Warren and told him "to duck, " that he then "reached into the back seat and got the rifle himself, and that he put the seat back and put the rifle on the sill of the car, and that he fired 11 times in the direction of where these people were." Id. Police taped Appellant's confession and took notes, which Appellant reviewed and signed in five places.

After litigating an unsuccessful motion to suppress his admission to the crime, Appellant proceeded to a jury trial, where he was convicted of first degree murder. Following imposition of a judgment of sentence of life imprisonment, we affirmed. Our Supreme Court denied review on July 24, 2003. Commonwealth v. Frazier, 821 A.2d 132 (Pa.Super. 2003), appeal denied, 829 A.2d 1156 (Pa. 2003).

Appellant thereafter filed a timely PCRA petition. Counsel was appointed and filed an amended petition. Relief was denied, and, on appeal, we affirmed. Commonwealth v. Frazier, 953 A.2d 597 (Pa.Super. 2008) (unpublished memorandum). We rejected three positions, the following of which is pertinent to the present appeal. Appellant contended that he should have been accorded an evidentiary hearing based on "exculpatory and newly-discovered eyewitness evidence establishing that [A]ppellant had fired in self-defense." Id. (unpublished memorandum at 5). In support of that request for post-conviction relief requesting a new trial based upon after-discovered evidence, [1] Appellant presented affidavits from numerous witnesses. Donta Wilson attested that he would have told the jury at Appellant's trial that Wilson was located on Kelly Street when Appellant arrived in his vehicle and that, when Appellant chanced upon the scene, one of Wilson's friends retrieved a revolver and fired three or four shots at Appellant's vehicle. Wilson continued that, after his companion shot at Appellant, Appellant returned fire. The other affidavits were executed by Geoffrey Warren, Appellant's passenger, and by three eyewitnesses, Brandon Duncan, Lawrence Jackson, and Isaiah Wilson. These four affiants set forth a version of events identical to that of Wilson.

In rejecting Appellant's claim that Donta Wilson's statements entitled him to a new trial based upon after-discovered evidence, we ruled that: 1) Appellant failed to establish why he could not have discovered Donta Wilson's proposed testimony prior to trial; 2) Donta Wilson's testimony would have been cumulative to other evidence presented at trial; and 3) Donta Wilson's proof would not have altered the outcome at trial since his version of events did not establish that Appellant was entitled to act in self- defense by blindly firing into a group of people eleven times. Id. (unpublished memorandum at 8-9). We similarly rejected the argument that the proposed testimony from Warren, Duncan, Jackson, and Wilson entitled Appellant to a new trial. We held specifically that their proof was cumulative of other evidence presented at trial and would not have changed its outcome since it did "not establish [A]ppellant had the right to use deadly force." Id. (unpublished memorandum at 12).

While the appeal from Appellant's first PCRA petition remained pending, Appellant filed a second PCRA petition on April 1, 2008. Appellant sought a new trial based upon another affidavit from Donta Wilson as well as one from Dion Tolliver-Hardman. Tolliver-Hardman's affidavit, which was dated March 17, 2008, proffered a version of the crime identical to that contained in the affidavits from the five witnesses examined in the appeal from the denial of Appellant's first PCRA petition. Tolliver-Hardman identified the man who purportedly shot at Appellant's vehicle as the by-then-deceased Paul Pierce. Tolliver-Hardman, whom Appellant met in prison, also attested that, "Pierce stated that he think he killed that 'Fiend Broad, '" which apparently was a reference to Ms. Jones. Affidavit of Dion Tolliver-Hardman, 3/17/08, at ¶ 4.

On May 9, 2008, while the appeal from the first PCRA petition remained pending, the PCRA court dismissed the April 1, 2008 PCRA petition. On appeal from that dismissal, the parties agreed that the court did not have jurisdiction to rule upon the second petition since the first PCRA petition had not been finally resolved when that action occurred. Hence, we reversed and remanded. Commonwealth v. Frazier, 974 A.2d 1180 (Pa.Super. 2009) (unpublished memorandum). Upon remand, the PCRA court concluded that the April 1, 2008 PCRA petition was untimely and that the issues raised therein were previously litigated during the appeal of Appellant's prior PCRA proceeding. This appeal followed. Appellant presents these issues for our review:

I. Whether Appellant is entitled to an evidentiary hearing on his exculpatory and newly-discovered eyewitness evidence, where his proffers demonstrate that the shooting was admittedly committed by another person, where the proffers create reasonable doubt as to guilt of murder in the first degree, ...

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