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[U] Commonwealth v. Sidberry

Superior Court of Pennsylvania

March 3, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
COREY SIDBERRY, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order April 3, 2013 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0001362-2007.

Joseph D. Seletyn, Esq.

BEFORE: BOWES, ALLEN, and MUSMANNO, JJ.

MEMORANDUM

BOWES, J.

Corey Sidberry appeals from the April 3, 2013 order dismissing his second PCRA petition after an evidentiary hearing. We affirm.

On appeal from the denial of Appellant's first PCRA petition, this Court summarized the pertinent facts underlying Appellant's convictions:

William Love, Jr. ("William") . . . testified to being shot in the back by the person he identified as Appellant. William went to the C&M Bar in McKees Rocks with his brother, Aaron Love and another friend . . . At the bar, the men ran into several acquaintances, including Lloyd Sidberry, who is Appellant's brother, and Omar Harris ("Omar"), who was a codefendant in the initial trial. A fight broke out at the bar between Aaron Love and Lloyd Sidberry. William testified that shortly after the fight broke up, Lloyd and Omar left the bar first, and the others left shortly thereafter. William, Aaron, and their friend began walking home on Broadway Street. William stated that after passing two dark cars, he heard someone whose voice he recognized as Appellant's say "Yo, hand me that burner." Just before being shot in the back, William testified that he saw Omar in the vehicle and that Omar handed Appellant the gun. William was shot in the back. Aaron Love, who was present, refused to give a statement to the police. He testified that he could not see the face of the shooter, only the body.

Commonwealth v. Sidberry, 30 A.3d 552 (Pa.Super. 2011) (unpublished memorandum) (footnotes omitted).

The jury found Appellant guilty of attempted homicide, aggravated assault, criminal conspiracy, possession of a firearm without a license, and persons not to possess a firearm. He was subsequently sentenced to fifteen to thirty years imprisonment. After the denial of post-trial motions, Appellant appealed and this Court affirmed judgment of sentence. Commonwealth v. Sidberry, 986 A.2d 1265 (Pa.Super. 2008) (unpublished memorandum). On October 30, 2009, Appellant filed a timely pro se PCRA petition. The court appointed counsel who filed a no merit letter and a motion to withdraw as counsel. Permission to withdraw was granted, and Appellant was given twenty days to respond to the court's intention to dismiss his petition. On July 30, 2010, the petition was dismissed, an appeal followed, and this Court affirmed the denial of PCRA relief. Commonwealth v. Sidberry, 30 A.3d 552 (Pa.Super. 2011) (unpublished memorandum).

Appellant filed this second pro se PCRA petition on December 20, 2011. On its face, the petition was untimely, having been filed more than one year after the judgment of sentence became final. 42 Pa.C.S. § 9545(b). Appellant alleged, however, that his petition met the timeliness exception for newly-discovered facts that could not be ascertained with the exercise of due diligence, and that he asserted it within sixty days of acquiring the information. Specifically, he alleged that he recently discovered that Ms. Dawnae Jones witnessed the shooting, and that she would testify that the shooter was Appellant's brother, Lloyd Sidberry, and that Appellant was not present at the crime scene.

On December 29, 2011, the PCRA court issued Pa.R.Crim.P. 907 notice of its intent to dismiss the petition without a hearing as time-barred. Appellant filed objections to the notice, but the court dismissed the petition on that basis on January 27, 2012. Appellant filed a timely appeal to this Court. We held that Appellant's petition satisfied the newly-discovered facts exception to § 9545's one-year time bar. We additionally ruled that

Appellant has satisfied the first prong of the four-prong test [for after-discovered evidence]. In addition, the evidence is neither corroborative nor cumulative, because it offers a different account as to who committed the crime. Moreover, the evidence is not introduced solely for the purposes of impeaching the victim's testimony, but if accepted as credible, calls into question the identity of the perpetrator. Lastly, the evidence is of such a nature and character, that if accepted as true, could likely change the outcome ...

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