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[U] Commonwealth v. Frazier

Superior Court of Pennsylvania

February 28, 2014



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




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, and where the proffered evidence will likely result in a different verdict.
[II.] And whether the PCRA court erred in considering the evidence to be cumulative when it demonstrated actual innocence and/or created new reasonable doubts as to premeditation.

Appellant's brief at 5.

"On appeal from the denial of PCRA relief, our standard and scope of review is limited to determining whether the PCRA court's findings are supported by the record and without legal error. Our review of questions of law is de novo." Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citations omitted). As a preliminary matter, we must determine whether the petition at issue is timely since the timeliness of a petition implicates this Court's jurisdiction. Commonwealth v. Gandy, 38 A.3d 899, 902 (Pa.Super. 2012); see also Commonwealth v. Jones, 54 A.3d 14, 17 (Pa. 2012) ("The PCRA's timeliness requirements are jurisdictional; therefore, a court may not address the merits of the issues raised if the petition was not timely filed.").

All PCRA petitions must be filed within one year after a defendant's judgment of sentence becomes final. Our Supreme Court denied review of Appellant's judgment of sentence on July 24, 2003, and it became final ninety days thereafter, or on October 22, 2004. 42 Pa.C.S. § 9545 (b)(3) (For purposes of the PCRA, a judgment of sentence is considered final "at the conclusion of direct review . . . or at the expiration of time for seeking the review."). Appellant thus had until October 22, 2005, to file a timely PCRA petition. Appellant's present petition was filed on April 1, 2008; it is facially untimely.

"There are three exceptions to this [one-year] time requirement: (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); 42 Pa.C.S. § 9545(b)(1)(i-iii). Appellant's position implicates the second exception, § 9545(b)(1)(ii), which states that a PCRA petition will be considered timely if the PCRA petitioner pleads and proves that "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[.]" Thus, this exception has two distinct components that must be satisfied by the PCRA petitioner. The fact upon which a new trial is sought must have been unknown to the defendant, and the defendant must establish that the fact could not have been ascertained before trial through the application of due diligence. Edmiston, supra.

We have previously held specifically that Appellant should have known about Donta Wilson prior to trial, and his new affidavit similarly does not fall within this time-bar exception. Since Appellant's request for relief on the basis of any proposed testimony from Wilson does not meet the newly discovered facts exception to § 9545, this argument fails.

In connection with his recent discovery of Tolliver-Hardman as a witness, Appellant argues as follows:

Mr. Tolliver-Hardman's affidavit makes clear that this testimony was unavailable at the time of trial and that it could not have been discovered earlier through the exercise of due diligence because Tolliver-Hardman fled from the scene, was threatened to keep quiet, and did not know that anyone had been charged in connection with the shootings (Appendix A-64, A-65). It was only when he met Mr. Frazier in March of this year [while both were in state prison] that he learned that Frazier had been charged in the shooting (Id.). Under the circumstances, there is no basis to suggest that Mr. Frazier should have been charged with Tolliver-Hardman's knowledge at any earlier date.

Appellant's brief at 17.

Appellant's argument misses the point. The question is not whether Appellant should have been charged with knowledge of Tolliver-Hardman's evidence, the inquiry is whether Appellant has demonstrated that he was duly diligent in uncovering this proof. Seven years after trial, Appellant encountered Tolliver-Hardman in prison and Tolliver-Hardman told Appellant that Pierce shot first at Appellant and that Pierce, who conveniently was dead, said that he thought that he shot the victim. "Due diligence demands that the petitioner take reasonable steps to protect his own interests. A petitioner must explain why he could not have obtained the new fact(s) earlier with the exercise of due diligence. This rule is strictly enforced." Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.Super. 2010) (citations omitted).

Herein, Appellant knew the Kelly Street area, the people in that location, and who was targeting him. Appellant offers no explanation for failing to locate and interview this witness and, instead, waiting until he chanced upon fellow inmate Tolliver-Hardman, who implicated a dead man as the culprit in the shooting. Hence, Appellant has failed to demonstrate that he exercised due diligence in locating Tolliver-Hardman. Commonwealth v. Edmiston, supra (defendant claimed PCRA petition was timely due to new information gleaned from witnesses; Supreme Court held that defendant's neglect to explain why he did not interview and obtain newly discovered facts from witnesses sooner rendered his PCRA petition untimely); Commonwealth v. Priovolos, 746 A.2d 621, 626 (Pa.Super. 2000) (long after defendant's judgment of sentence was final, he used a private investigator to uncover purportedly exculpatory evidence; his attempt to come within the parameters of the newly-discovered-facts exception was rejected since the defendant made "no attempt to explain why the information contained in these statements could not, with the exercise of due diligence, have been obtained much earlier") (citation omitted); Monaco, supra (defendant failed to prove that he was diligent in uncovering his mental health diagnosis where he could have obtained a mental health examination when he was tried).

Additionally, Tolliver-Hardman's affidavit regarding Pierce was largely a re-hash of the affidavits that we previously rejected as grounds for awarding Appellant a new trial based upon after-discovered evidence. In this respect, the following language from our Supreme Court is instructive:

Exception (b)(1)(ii) "requires petitioner to allege and prove that there were 'facts' that were 'unknown' to him" and that he could not have ascertained those facts by the exercise of "due diligence." Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264, 1270–72 (2007) (emphasis added). The focus of the exception is "on the newly discovered facts, not on a newly discovered or newly willing source for previously known facts." Commonwealth v. Johnson, 580 Pa. 594, 863 A.2d 423, 427 (2004) (emphasis in original). In Johnson, this Court rejected the petitioner's argument that a witness's subsequent admission of alleged facts brought a claim within the scope of exception (b)(1)(ii) even though the facts had been available to the petitioner beforehand. Relying on Johnson, this Court more recently held that an affidavit alleging perjury did not bring a petitioner's claim of fabricated testimony within the scope of exception (b)(1)(ii) because the only "new" aspect of the claim was that a new witness had come forward to testify regarding the previously raised claim. [Commonwealth v. Abu–Jamal, 596 Pa. 219, 941 A.2d 1263, 1267 (2008)]. Specifically, we held that the fact that the petitioner "discovered yet another conduit for the same claim of perjury does not transform his latest source into evidence falling within the ambit of [Section] 9545(b)(1)(ii)." Id. at 1269.

Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008) (footnote omitted; emphases in original); see also Commonwealth v. Lambert, 57 A.3d 645 (Pa.Super. 2012) (defendant's attempt to invoke newly discovered facts exception failed where she merely presented a new affidavit in support of facts that were previously known to her and already litigated as grounds for a new trial).

Appellant's position that he acted in self-defense is not a newly-discovered fact; this is a fact that he has known for years. Tolliver-Hardman is merely another person willing to come forward and testify as to this state of affairs. Tolliver-Hardman's affidavit about Pierce firing at Appellant before Appellant decided to blindly shoot his rifle into the street eleven times does not present a new fact for purposes of § 9545(b)(1)(ii).

Tolliver-Hardman's report about Pierce's purported statement that Pierce believed that Pierce shot the victim is baseless supposition. Appellant's confession was both recorded and signed. Police recovered casings from the rifle on Kelly Street, where the victim was found, and the coroner established that the victim was killed with bullets from the rifle that Appellant admittedly owned. Additionally, Tolliver-Hardman could not testify at any new trial that Pierce told him that Pierce thought he shot Ms. Jones. Pierce's statement to Tolliver-Hardman would be inadmissible hearsay and not subject to the hearsay exception applicable to statements against interest. Pa.R.E. 804 outlines hearsay exceptions when the declarant, such as the deceased Pierce, is not available. It provides in pertinent part that one exception is a statement against interest, and it defines such a statement as one that

(A) a reasonable person in the declarant's position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant's proprietary or pecuniary interest or had so great a tendency to invalidate the declarant's claim against someone else or to expose the declarant to civil or criminal liability; and
(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

Pa.R.E. 804(b)(3) (emphasis added). Herein, there are no corroborating circumstances that clearly indicate that Pierce's supposition that he murdered Ms. Jones was trustworthy. To the contrary, the physical proof demonstrated otherwise.

In conclusion, Appellant's second petition does not fall within the newly discovered facts exception to the one-year time bar of § 9545 since Appellant was neither duly diligent in discovering the information in the two affidavits supporting the request for PCRA relief nor did those documents contain newly discovered facts. To the extent that Tolliver-Hardman's proposed testimony did present a new fact consisting of the hearsay statement of the deceased Pierce, a new trial would not be warranted. This result flows from the fact that Pierce's statement to Tolliver-Hardman would constitute inadmissible hearsay at a new trial. Commonwealth v. Lyons, 79 A.3d 1053, 1068 (Pa. 2013) (new trial based on after-discovered evidence can be granted only where "producible and admissible evidence" was discovered after trial and, inter alia, where that admissible evidence "is of such a nature that its use will likely result in a different verdict on retrial"). Hence, The PCRA court did not abuse its discretion in concluding that Appellant is not entitled to PCRA relief.

Order affirmed.

Judgment Entered.

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