Com. v. Calloway, E.
Com. v. Calloway, E. No. 2895 EDA 2016
| Pa. Super. Ct. | Jun 1, 2017Background
- In 1995 Calloway brutally assaulted Victim 1 with a baseball bat and shot and killed Victim 2; a jury convicted him of first-degree murder and aggravated assault in 1996 and he received life without parole plus a consecutive term.
- Calloway filed multiple PCRA petitions. His first was dismissed in 2003 after counsel filed a Finley "no merit" letter; the dismissal was affirmed on appeal.
- A second pro se PCRA petition (2009) asserted after-discovered evidence: eyewitness Jacqueline Davis’s exculpatory statements; it was dismissed as untimely because it relied on inadmissible hearsay and the appeal was affirmed.
- A third PCRA petition (2013), supported by an affidavit and live testimony from Davis at a 2015 evidentiary hearing, again claimed Davis would exonerate Calloway as newly discovered evidence.
- The PCRA court found Calloway’s and Davis’s testimony not credible, concluded Calloway knew of Davis as a potential witness before trial and by 2003 (so he failed to exercise due diligence), and rejected the timeliness exception and merits; the Superior Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PCRA petition was timely via the "new facts" exception (§9545(b)(1)(ii)) | Calloway: Davis’s affidavit/testimony are newly discovered facts that could not have been obtained earlier and excuse the late filing | Commonwealth: Calloway knew of Davis before trial and by 2003, so he failed to exercise due diligence; prior hearsay attempts show no new facts | Held: Exception not met — petitioner failed to show facts were unknown or that he exercised due diligence; petition time-barred |
| Whether Davis’s testimony would likely change the verdict (after-discovered-evidence merits) | Calloway: Davis would provide exculpatory eyewitness account undermining the conviction | Commonwealth: Davis’s statements inconsistent and the record (including earlier statements to others and parole records) shows she previously identified Calloway as shooter or refused to cooperate | Held: Even if considered, PCRA court found Davis not credible and no reasonable probability of a different result |
Key Cases Cited
- Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007) (establishes two-part due-diligence/new-facts test for §9545(b)(1)(ii))
- Commonwealth v. Marshall, 947 A.2d 714 (Pa. 2008) (focus of §9545(b)(1)(ii) is newly discovered facts, not newly willing sources)
- Commonwealth v. Washington, 927 A.2d 586 (Pa. 2007) (elements required for substantive after-discovered-evidence relief)
- Commonwealth v. D’Amato, 856 A.2d 806 (Pa. 2004) (after-discovered-evidence standard and analysis)
- Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (procedures for counsel filing a no-merit/withdrawal on collateral review)