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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NON-PRECEDENTIAL DECISION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Commonwealth v. Sidberry, 30 A.3d 552 (Pa.Super. 2011) (unpublished memorandum) (footnotes omitted).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 Commonwealth v. Sidberry, 986 A.2d 1265 (Pa.Super. 2008) (unpublished memorandum).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 of the case. Therefore, an evidentiary hearing is necessary to allow the PCRA court to assess the credibility of Ms. Jones's testimony.

Commonwealth v. Sidberry, 60 A.3d 582 (Pa.Super. 2012) (unpublished memorandum at 6).

Upon remand, the PCRA court appointed counsel. An evidentiary hearing was held on September 19, 2012, where Dawnae Jones was the sole witness. Following the hearing, the parties submitted proposed findings of fact and conclusions of law. On March 14, 2013, the PCRA court issued Pa.R.Crim.P. 907 notice of intent to dismiss the PCRA petition, and subsequently dismissed it on April 3, 2013. Appellant timely appealed, complied with the court's order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and the court issued its Rule 1925(a) opinion. The sole issue Appellant presents on appeal is: "Did the PCRA Court err or abuse its discretion when it dismissed Appellant's PCRA Petition as patently frivolous, when an evidentiary hearing was held and an after-discovered witness, Dawnae Jones, provided credible testimony that is supported by evidence of record, is exculpatory in nature, would exonerate Corey Sidberry in the shooting of William Love, thereby creating an issue of material fact which warrants Appellant a new trial." Appellant's brief at 4.

In reviewing the denial of PCRA relief,

We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error. This Court may affirm a PCRA court's decision on any ground of the record supports it. Further, we grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Where the petitioner raises questions of law, our standard of review is de novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190 (Pa.Super. 2012) (citations omitted).

A prior panel of this Court found that Appellant had successfully pled and proved the applicability of the timeliness exception for newly-discovered facts, and remanded for an evidentiary hearing. While Appellant successfully surmounted the obstacle of the PCRA's time limitations, he still must meet the test for entitlement to a new trial based upon after-discovered evidence. Our Supreme Court noted in Commonwealth v. Lyons, 79 A.3d 1053, 1068 (Pa. 2013), that a court

should grant a motion for new trial on the ground of after-discovered evidence where producible and admissible evidence discovered after trial (1) could not have been obtained prior to the end of trial with the exercise of reasonable diligence; (2) is not merely corroborative or cumulative evidence; (3) is not merely impeachment evidence; and (4) is of such a nature that its use will likely result in a different verdict on retrial. Commonwealth v. Chamberlain, 612 Pa. 107, 163–64, 30 A.3d 381, 414 (2011).

Our previous ruling is law of the case as to whether the first three prongs were met. However, we ruled that the PCRA court still had to decide whether Ms. Dawnae Jones was credible. As our Supreme Court reaffirmed in Commonwealth v. Johnson, 966 A.2d 523, 539 (Pa. 2009), "Indeed, one of the primary reasons PCRA hearings are held in the first place is so that credibility determinations can be made; otherwise, issues of material fact could be decided on pleadings and affidavits alone." The Court added that the PCRA court's "credibility determinations should be provided great deference by reviewing courts." Id.; see, e.g., Commonwealth v. Abu-Jamal, 720 A.2d 79, 99 (Pa. 1998) ("Just as with any other credibility determination, where the record supports the PCRA court's credibility determinations, those determinations are binding on this [C]ourt.").

Herein, the PCRA court noted inconsistencies in Ms. Jones's testimony, implicitly finding her not credible. In addition, it determined that her testimony would not have altered the outcome of the case. According to the PCRA court, she claimed that Appellant was not present, yet she could not identify any individuals in the crowd near the car just prior to the shooting. PCRA Court Opinion, 8/2/13, at unnumbered 5. She admittedly did not witness the shooting of William Love. There were discrepancies in her testimony regarding the color of the gun. Finally, Ms. Jones "admitted to writing details at the behest of the private investigator." Id.

Our review of the record supports the PCRA court's determination. When Ms. Jones first encountered Lloyd Sidberry and Omar Harris on November 23, 2006, they were sitting in a parked car. She wished them a happy Thanksgiving and continued to walk for approximately one block. She heard a commotion behind her, turned around, and saw a crowd of people arguing. Id. at 26. Ms. Jones could not remember how many people were there and she could not identify them. Id. at 11. She testified that Lloyd Sidberry was sitting in the car with the door open, arguing with the crowd of people on the street. Only then did she see Lloyd Sidberry exit the driver's door with a gun. Id. at 10. She testified the gun was silver. She heard shots fired, but she did not see who fired them. She turned around and ran. Id. at 11. She did not actually see Lloyd Sidberry shoot anybody "because I was behind him" when shots were fired. Id. at 28. In response to the question whether she saw anyone get shot before she ran, she answered, "No." Id. at 12. She just heard gunshots. Id.

While Ms. Jones stated in her affidavit that Appellant was not present, she admittedly could not identify the individuals in the crowd near the car at the time of the shooting. When asked how she could state for certain that Appellant was not there, she responded that he was not in the car with Lloyd and Omar. Upon being confronted with the fact that Appellant could have been in the crowd of people, she stated, "I didn't see him there." Id. at 30. When asked whether she could state "for sure today that Corey Sidberry was not in that crowd of people that you're saying was causing the commotion[, ]" Ms. Jones responded in the negative. Id. Despite that admission, however, she insisted that she said he was not present in her affidavit, "Because I know he wasn't there." Id. When asked how she knew, she repeated, "Because I know he wasn't there." Id. at 31.

Upon further cross-examination about a handwritten statement that Ms. Jones gave to a private investigator, Ms. Jones admitted that it contained details suggested by Appellant's private investigator rather than from her own recollection.[1] On cross-examination, she conceded that she wrote what the private investigator told her to write, and she did so even if she did not know it to be true. Id. at 32.

We are bound by the PCRA court's credibility determinations where, as here, there is record support for those determinations. See Commonwealth v. Santiago, 855 A.2d 682, 694 (Pa. 2004) (Opinion Announcing the Judgment of the Court). Furthermore, we agree with the Commonwealth that, if believed, Ms. Jones's testimony merely establishes that she recognized Lloyd Sidberry and Omar Harris in a vehicle. There were numerous other people on the sidewalk near that vehicle when the shooting occurred and she could not identify anyone. Thus, her testimony was not outcome determinative.

Furthermore, we find ample support in the record for the PCRA court's conclusion that her testimony would not have changed the outcome of this case. The victim positively identified Appellant, whom he had known for eight years, as his shooter. He overheard Omar Harris on his cell phone telling Appellant that they had jumped his brother. N.T. Trial, 10/23-25/07, at 95. Harris enlisted Appellant's aid "to handle this." Id. The bartender, Vanessa Llewellyn, testified that the other individuals involved in the argument, not the victim and his brother, left the bar first. She heard one of them say that he was returning with a gun. That individual did return about one-half hour later; he was dressed in different clothes, and she ordered him to leave. Jon Donnelly, a patron of the bar during the altercation, stayed to help Ms. Llewellyn clean up. He confirmed that one of the men involved in the altercation, not the victim or his brother, stuck his head in the door and looked around, but left immediately after Ms. Llewellyn told him he was not permitted to enter. Mr. Donnelly confirmed that the man was wearing different clothing and testified that there was a bulge in one of his pockets. N.T. Trial, 10/24/07, at 199.

Ms. Jones's testimony, at most, placed Lloyd Sidberry at the scene with a gun; it did not rule out that Appellant was present and the shooter. Since Ms. Jones did not actually see the shooting and could not identify the shooter, we agree with the PCRA court that her testimony would not have altered the outcome of the trial.

Order affirmed.

Judgment Entered.


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