Com. v. Marks, W.

C
J-S54010-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WILLIAM HOWARD MARKS                       :
                                               :
                       Appellant               :   No. 163 MDA 2020

            Appeal from the PCRA Order Entered December 23, 2019
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0003554-1997

BEFORE: NICHOLS, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY NICHOLS, J.:                          FILED MARCH 8, 2021

        Appellant William Howard Marks appeals from the order denying his

second Post Conviction Relief Act1 (PCRA) petition. Appellant contends the

PCRA court erred by holding that his recantation witness was not credible

without an evidentiary hearing. We affirm.

        We state the facts as set forth by the trial court in its Pa.R.A.P. 1925(b)

opinion in response to Appellant’s direct appeal:

        In the early morning hours of June 14, 1996, police responded [to
        a particular address] in the City of Harrisburg. In the back seat
        area of a 1977 Pontiac Bonneville, they found the deceased body
        of Victor Del Rosario (a/k/a “Dominican Manny”), a reputed drug
        dealer.   Del Rosario’s body was duct-taped (wrists, mouth,
        thighs). He had been shot twice in the head and then set on fire
        with gasoline. Following a lengthy investigation, [Appellant, co-
        defendant Samuel E. Lester,] and a third party, Stephen
        Blackstone, were charged in the incident-largely as a result of a
____________________________________________


1   42 Pa.C.S. §§ 9541-9546.
J-S54010-20


     confession given by Blackstone. [Appellant], however, also made
     several statements, which taken together, were also
     incriminating.

                                 *    *    *

     On October 21, 1997, [Appellant] was lodged in Dauphin County
     Prison on unrelated charges (armed robbery). He made contact
     with Sergeant Corkle, a corrections officer[,] and told him, “I want
     to talk about a murder I committed.” Later that same day,
     [Appellant] was transported to the office of Deputy District
     Attorney Michael Rozman who had been assigned to the Del
     Rosario case. Prior to [Appellant’s] arrival, Rozman contacted
     [Appellant’s] counsel of record, Anser Ahmad, and asked him to
     come to the D.A.’s Office. No conversation with [Appellant]
     occurred until Attorney Ahmad entered the office. [Appellant] was
     then given his Miranda rights by Rozman . . . .

     After conferring with counsel, [Appellant] stated that he still
     wanted to speak with the district attorney. Deputy District
     Attorney Michael Rozman then stated, “I understand you want to
     talk about a murder. Which one do you want to talk about?”
     [Appellant] replied: “The one with Dominican Manny.” Rozman
     rejoined: “You mean the one where the guy was duct-taped, shot
     and set on fire?” [Appellant] responded: “Yes.” Rozman then
     asked [Appellant] what he had to say. [Appellant] explained that
     he was there for a deal and would plead to Third-Degree Murder.

Trial Ct. Op., 6/7/99, at 1-3.   The Commonwealth agreed to a plea with

Appellant for the unrelated armed robbery charges, rejected a plea offer for

the Del Rosario homicide, and charged Appellant with homicide.

Id. at 3.

     At Appellant’s trial, the Commonwealth’s “principal witness against

[Appellant] and Lester” was Blackstone.

Id. at 8.

Blackstone had earlier pled

guilty to third-degree murder and “testified to his involvement (lookout and




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driver of the getaway car) and the involvement of [Appellant] and Lester.” 2

Id. A jury convicted

Appellant of first degree murder, robbery, arson, and

related offenses, and acquitted Lester.

Id. at 1.

The trial court sentenced

Appellant to life imprisonment and a consecutive aggregate sentence of thirty-

five to seventy years’ imprisonment.

Id. Appellant appealed, this

Court affirmed on October 15, 1999, and our

Supreme Court denied Appellant’s petition for allowance of appeal on March

21, 2000. See Commonwealth v. Marks, 1467 MDA 2001, at 2 (Pa. Super.

filed Oct. 7, 2002) (unpublished mem.) (summarizing procedural history).

Appellant filed a timely first PCRA petition, which the PCRA court denied, and

this Court affirmed. See

id. On August 6,

2018, Appellant filed his second pro se PCRA petition.

Attached to the petition was Blackstone’s affidavit, dated July 20, 2018, which

recanted his trial testimony.          Ex. A. to Appellant’s PCRA Pet., 8/6/18.

Blackstone stated that he was sent to prison “around May, June or July of

1997” for unrelated robberies.

Id. at ¶¶ 3, 6.

  A “month or so later,”

Blackstone “called home and received some bad news from a relative that

[Appellant] harmed [Blackstone’s] sister and was sleeping with [Blackstone’s]



____________________________________________


2 The jury also heard from Sergeant Corkle about Appellant’s remark and
heard about Appellant’s discussion with Attorney Rozman, as summarized
above. Appellant requested, and the trial court gave, an accomplice corrupt
source instruction.


                                           -3-
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ex-girlfriend, and [Blackstone] had one of [his] relatives call [the police] to let

them know that [he] want[ed] to talk.”

Id. at ¶ 6.

Blackstone stated that he

spoke with the police and the district attorney, and the district attorney

“promised that if [Blackstone] told them the information they wanted, that

[Blackstone] would receive” a lesser sentence.

Id. at ¶ 7.

    Blackstone

asserted that he then lied to the district attorney by incriminating Appellant.

Id. at ¶ 8.3

Blackstone claimed he lied in order “to avoid doing a long time in

prison” and to get revenge against Appellant.

Id. Appellant’s privately-retained counsel

entered his appearance and filed

an amended PCRA petition on January 14, 2019.            On June 25, 2019, the

Commonwealth filed a response, highlighting contradictions in Blackstone’s

affidavit. For example, the Commonwealth attached to its response Dauphin

County prison records, which established that Appellant was in prison between

March and October 1997, when Appellant purportedly harmed Blackstone’s

sister. Commonwealth’s Resp. to Appellant’s PCRA Pet., 6/25/19, at ¶ 3 &

Exs.    The Commonwealth also attached the probable cause affidavit for

Appellant’s arrest, which stated that “on January 23, 1997,” Blackstone gave

a police statement incriminating Appellant, which contradicted Blackstone’s

contention that he incriminated Appellant in mid-1997.

Id. ____________________________________________ 3 Without

quoting the entire paragraph, Blackstone essentially recanted his
trial testimony inculpating Appellant.


                                           -4-
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        On November 26, 2019, the PCRA court issued a Pa.R.Crim.P. 907

notice, which concluded Blackstone’s affidavit was not credible due to the

above contradictions and questioned why Blackstone would implicate himself

in a murder in order to get revenge against Appellant.       Rule 907 Notice,

11/26/19, at 5-7 (unpaginated).4 Appellant filed a response to the Rule 907

Notice on December 17, 2019, which was one day past the twenty-day

deadline.    No party objected to Appellant’s late response, however.     On

December 23, 2019, the PCRA court formally dismissed Appellant’s PCRA

petition in an order that acknowledged Appellant’s Rule 907 response. Order,

12/23/19.

        Appellant timely appealed, and on January 31, 2020, the PCRA court

ordered Appellant to file a Pa.R.A.P. 1925(b) statement within twenty-one

days.    Appellant filed an untimely Rule 1925(b) statement on Monday,

February 24, 2020.5        The PCRA court filed a Rule 1925(a) opinion, which

incorporated by reference its Rule 907 Notice. PCRA Ct. Op., 3/24/20, at 3,

5.


____________________________________________


4The PCRA court held that the instant PCRA petition was timely. Rule 907
Notice at 3.
5 If a Rule 1925(b) statement in a criminal matter was untimely filed, “this
Court may decide the appeal on the merits if the [PCRA] court had adequate
opportunity to prepare an opinion addressing the issues being raised on
appeal.” Commonwealth v. Burton, 

973 A.2d 428

, 433 (Pa. Super. 2009).
Because the PCRA court filed a responsive Rule 1925(a) opinion, we decline
to remand. See id.; see also Pa.R.A.P. 1925(c)(3).


                                           -5-
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      Appellant raises one issue:

      Did the PCRA court, which did not preside at trial, err by
      dismissing Appellant’s timely claim of recantation by [Blackstone]
      without an evidentiary hearing and on credibility grounds?

Appellant’s Brief at 5.

      Appellant contends that the PCRA court erred by denying his petition

based on credibility without holding an evidentiary hearing.

Id. at 11.

He

claims that the PCRA court failed to identify the inconsistencies within

Blackstone’s affidavit.

Id. Appellant argues that

even if Blackstone’s

recantation was dubious, the PCRA court should still have held an evidentiary

hearing.

Id. at 12-13.

Appellant notes that the PCRA judge did not preside

over Appellant’s trial, and therefore the PCRA court abused its discretion by

dismissing his petition without a hearing.

Id. at 15.

      Our standard of review follows:

      [O]ur standard of review from the denial of a PCRA petition is
      limited to examining whether the PCRA court’s determination is
      supported by the evidence of record and whether it is free of legal
      error.    The PCRA court’s credibility determinations, when
      supported by the record, are binding on this Court; however, we
      apply a de novo standard of review to the PCRA court’s legal
      conclusions.

Commonwealth v. Sandusky, 

203 A.3d 1033

, 1043 (Pa. Super. 2019)

(citations omitted and formatting altered), appeal denied, 

216 A.3d 1029

(Pa.

2019).

      In Commonwealth v. Williams, 

732 A.2d 1167

(Pa. 1999), our

Supreme Court addressed whether the PCRA court erred by rejecting an


                                     -6-
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affidavit from a witness, Holly Boone, recanting her trial testimony. 

Williams, 732 A.2d at 1179

. In Williams, the PCRA court primarily rejected Boone’s

recantation testimony because of “the axiom that recantation testimony

inherently embodies a diminished degree of reliability.”

Id. at 1179-80.

The

PCRA court also reasoned that even if Boone’s testimony was false, the

Commonwealth’s case included two other eyewitnesses and corroborative

physical evidence.

Id. at 1180.

The Williams Court reasoned as follows:

      While this Court has often acknowledged the limitations inherent
      in recantation testimony, we have not foreclosed the possibility
      that, in some instances, such testimony may be believed by the
      factfinder and thus form a basis for relief. For this to occur,
      however, the testimony must be such that it could not have been
      obtained at the time of trial by reasonable diligence; must not be
      merely corroborative or cumulative; cannot be directed solely to
      impeachment; and must be such that it would likely compel a
      different outcome of the trial. In addition, an appellate court may
      not interfere with the denial or granting of a new trial where the
      sole ground is the alleged recantation of state witnesses unless
      there has been a clear abuse of discretion.

Id. (citations omitted and

formatting altered).

      The Williams Court held that it would not “preclude the possibility that

a credibility-based dismissal of a petitioner’s claims involving recantation

might be appropriate under some set of circumstances without the necessity

of an evidentiary hearing.”

Id. The Williams Court

, 
however, took issue with

the PCRA court’s adoption of the Commonwealth’s reasoning, which “recited

boilerplate principles concerning the inherent limitations of recantation

testimony—[the PCRA court’s decision] did not contain any particularized

finding [by the PCRA court] as to the actual credibility of Ms. Boone’s

                                     -7-
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prospective testimony as reflected in her declaration.”
     Id. The Williams

Court 
held there was nothing to suggest “that the PCRA court actually

considered Ms. Boone’s recantation in light of the trial record of her testimony

and her post-trial declaration” and therefore the PCRA court “abused its

discretion [by] not only . . . failing to make an independent credibility

determination, but also [by] . . . adopting reasons in support of its decision

that were insufficient on their face.”
 Id. at 1180-81.

      Subsequently, in Commonwealth v. Washington, 
927 A.2d 586 
(Pa.

2007), our Supreme Court affirmed the PCRA court’s denial of relief without

an evidentiary hearing. 
Washington, 927 A.2d at 591
. In Washington, the

petitioner and his co-defendant were convicted of murder, specifically

shooting one of the robbery victims.
 Id. at 592 
& 592 n.2. The co-defendant

gave a statement that although he carried a gun, it was not functional and,

therefore, he did not fire the fatal shot.
 Id. at 596. 
Several years later, the

co-defendant drafted a declaration confessing that “he, not [the petitioner],

fired the fatal shot; that he lied about [the petitioner] being the shooter to

avoid the death penalty . . . .”
     Id.   The PCRA court 
analyzed the co-

defendant’s confession and, among other items, held that it “was not

persuasive evidence of innocence, implicitly finding that [the co-defendant’s]

affidavit was not credible.”
 Id. at 597 
(footnote omitted). The Washington

Court affirmed, concluding that “the PCRA [court], as fact-finder, having

assessed the credibility of [the co-defendant’s] confession and its significance


                                     -8-
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in light of the trial record, properly denied” the petitioner relief.
      Id. Our

Supreme Court 
noted that the PCRA court properly assessed the credibility of

the declaration unlike the PCRA court in Williams, which had failed to make

an independent credibility determination.
 Id.

      After careful consideration 
of the record, the parties’ briefs, and the

PCRA court’s opinion, we agree with the PCRA court that an evidentiary

hearing was not required because of the contradictions in Blackstone’s

affidavit. See PCRA Ct. Op. at 3, 5 (incorporating by reference the reasoning

set forth in its Rule 907 Notice); Rule 907 Notice at 5-8. Like the PCRA court

in Washington, and unlike the PCRA court in Williams, the instant PCRA

court presented particularized, independent findings of Blackstone’s lack of

credibility   based   on   the    contradictions   in   his   affidavit.   Compare

Washington, 927 A.2d at 597
, with 
Williams, 732 A.2d at 1180
.                    For

example, prison records established Appellant was in prison when Blackstone

claimed he learned Appellant had harmed Blackstone’s sister and slept with

Blackstone’s ex-girlfriend.      See Rule 907 Notice at 6.        For these reasons,

Appellant failed to establish a clear abuse of discretion by the PCRA court.

See 
Washington, 927 A.2d at 591
; 
Sandusky, 203 A.3d at 1043
.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/08/2021




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