Com. v. Calloway, E., Com. v. Calloway, E. No. 2895 EDA 2016

Background

In 1996 Edmond J. Calloway was convicted of first-degree murder, aggravated assault, and PIC for an April 8, 1995 incident in which Victim 1 was beaten with a bat and Victim 2 was shot; Calloway received life without parole plus a consecutive 7–14 year term. Superior Court affirmed on direct appeal in 1998.
Calloway filed three PCRA petitions: first (1999) dismissed after Finley no-merit review (affirmed 2004); second (2009) dismissed as untimely because it relied on hearsay about a putative witness (affirmed 2012); third (2013) included an affidavit from Jacqueline Davis and alleged newly discovered evidence that someone nicknamed “Karate” — not Calloway — shot Victim 2.
The PCRA court held an evidentiary hearing at which Davis testified she saw “Karate” shoot the decedent from a street view behind a closed second-floor window; the Commonwealth presented the victim’s wife, Mary Ann Hill, who testified Davis earlier told her Calloway shot her husband, and a parole-agent record indicating Davis told the agent in 2000 she did not remember and did not want to talk to an investigator.
The PCRA court found Calloway knew of Davis as a potential witness before trial (and certainly by 2003 when PCRA counsel referenced Davis), failed to exercise reasonable diligence to obtain her testimony, and therefore failed to prove the Section 9545(b)(1)(ii) “new facts” timeliness exception. The court alternatively held Davis’s trial testimony would have been incredible and would not have produced a different verdict.
The Superior Court affirmed, deferring to the PCRA court’s credibility findings and concluding the petition was time-barred and without merit in any event.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness under 42 Pa.C.S. §9545(b)(1)(ii) (newly discovered facts/due diligence)	Calloway: Davis gave a statement on Aug 31, 2013; petition filed within 60 days, so this is a newly discovered fact excusing the PCRA time bar.	Commonwealth/PCRA court: Calloway knew of Davis earlier (at trial or by 2003); he did not exercise reasonable diligence to secure her testimony; prior hearsay filings show knowledge.	Held: Petition untimely; Calloway failed to prove the new-facts exception because he did not exercise due diligence.
Merits of after-discovered-evidence claim (would Davis’s testimony change result?)	Calloway: If Davis testified that “Karate” shot the victim, her eyewitness account would likely compel a different verdict.	Commonwealth/PCRA court: Davis’s hearing testimony was incredible and contradicted earlier statements (Hill’s testimony and parole records); her story appears fabricated and primarily impeaches earlier testimony.	Held: Even if timely, Davis’s testimony lacks credibility and would not likely have changed the outcome; claim fails on the merits.

Key Cases Cited

Finley v. Finley, 550 A.2d 213 (Pa. Super. 1988) (procedure for counsel to file no-merit/Finley letter in PCRA proceedings)
Gamboa-Taylor v. Commonwealth, 753 A.2d 780 (Pa. 2000) (PCRA court lacks jurisdiction over untimely petitions absent a statutory exception)
Bennett v. Commonwealth, 930 A.2d 1264 (Pa. 2007) (explains two-component test for §9545(b)(1)(ii): facts were unknown and could not have been ascertained with due diligence)
Marshall v. Commonwealth, 947 A.2d 714 (Pa. 2008) (focus of new-facts exception is on newly discovered facts, not newly willing sources)
Washington v. Commonwealth, 927 A.2d 586 (Pa. 2007) (elements for substantive after-discovered-evidence claim)
D'Amato v. Commonwealth, 856 A.2d 806 (Pa. 2004) (after-discovered-evidence standard and its stringency)
Lambert v. Commonwealth, 765 A.2d 306 (Pa. Super. 2000) (PCRA test for newly discovered evidence: diligence, noncumulative, not only impeachment, likely different result)
Breakiron v. Commonwealth, 781 A.2d 94 (Pa. 2001) (petitioner must explain why facts could not have been learned earlier with due diligence)
Monaco v. Commonwealth, 996 A.2d 1076 (Pa. Super. 2010) (due diligence requirement and strict enforcement)
Carr v. Commonwealth, 768 A.2d 1164 (Pa. Super. 2001) (due diligence means taking reasonable steps to protect one’s own interests)
Abu-Jamal v. Commonwealth, 720 A.2d 79 (Pa. 1998) (deference to trial court credibility findings)
Conway v. Commonwealth, 14 A.3d 101 (Pa. Super. 2011) (standard of review for PCRA denials)
Boyd v. Commonwealth, 923 A.2d 513 (Pa. Super. 2007) (appellate deference to PCRA court fact-findings)
Ford v. Commonwealth, 44 A.3d 1190 (Pa. Super. 2012) (appellate review: no deference to legal conclusions)