Com. v. Real, F.
Com. v. Real, F. No. 2514 EDA 2016
| Pa. Super. Ct. | Jul 7, 2017Background
- In 2002 Fernando Real was identified by multiple witnesses and later convicted (2005) of first-degree murder for fatally shooting Levon Wilson and sentenced to life.
- Key eyewitnesses: Ronald Milburn (testified at preliminary hearing but later suffered traumatic brain injury), Brian Heard (gave an inculpatory statement but was not located at trial), and others who identified Real to police.
- Appellant filed a second PCRA petition in 2015 asserting newly discovered evidence: two affidavits (one from “Margarita Debnam” relaying statements by Milburn’s mother about Milburn’s recantation theory, and one from Brian Heard recanting his identification and describing coordination with Milburn).
- The PCRA court held the petition untimely under 42 Pa.C.S. § 9545(b) and found Appellant failed to plead or prove an exception to the one‑year time bar; the court also found the affidavits were hearsay and insufficient.
- Appellant appealed pro se raising three claims: (1) Heard’s recantation is newly discovered and concealed; (2) § 9545(b)(1)(ii) does not require admissibility for the jurisdictional exception; and (3) evidence about the murder weapon from other trials constituted newly discovered evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Heard’s recantation qualifies as newly discovered evidence excusing untimeliness | Real: Heard’s affidavit recants prior identification and shows Commonwealth concealed exculpatory information | Commonwealth/PCRA court: Affidavits are hearsay, double hearsay, and inadmissible; petitioner failed to plead diligence or admissible facts | Denied — recantation affidavits were inadmissible hearsay and did not satisfy §9545(b)(1)(ii) exception |
| Whether §9545(b)(1)(ii) requires the newly discovered facts to be admissible | Real: Newly discovered facts exception does not demand admissibility per Brown | Commonwealth/PCRA court: Exception requires facts that would be of a type to satisfy relief; hearsay-only claims do not trigger the exception | Held that hearsay-only evidence fails the exception; petitioner still must allege unknown facts and due diligence; Brown does not excuse the diligence/admissibility requirements |
| Whether post-trial revelations about murder weapon (used in other murders) are newly discovered evidence | Real: Evidence about the weapon used in other killings suggests another perpetrator and is newly discovered | Commonwealth/PCRA court: Real was convicted of those other murders too; evidence does not help him and is not newly discovered to create jurisdiction | Rejected — claim lacks merit and does not satisfy the timeliness exception |
Key Cases Cited
- Commonwealth v. Watts, 23 A.3d 980 (Pa. 2011) (PCRA time‑bar jurisdiction and no equitable exceptions)
- Commonwealth v. Abu-Jamal, 941 A.2d 1263 (Pa. 2008) (claims based solely on inadmissible hearsay do not satisfy §9545(b)(1)(ii))
- Commonwealth v. Yarris, 731 A.2d 581 (Pa. 1999) (recantation and hearsay limitations for after‑discovered evidence claims)
- Commonwealth v. Brown, 111 A.3d 171 (Pa. Super. 2015) (discussion of newly discovered facts exception but requiring unknown facts and due diligence)
- Commonwealth v. Medina, 92 A.3d 1210 (Pa. Super. 2014) (deference to PCRA court on recantation testimony credibility and materiality)
- Commonwealth v. Fahy, 959 A.2d 312 (Pa. 2008) (standards for PCRA review and timeliness exceptions)