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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVID REDMOND
Appellant No. 2855 EDA 2013
Appeal from the PCRA Order September 30, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006047-2010
BEFORE: GANTMAN, P.J., JENKINS, J., and FITZGERALD, J.**
MEMORANDUM BY JENKINS, J.: FILED AUGUST 07, 2014
Appellant David Redmond appeals from the order of the Court of
Common Pleas of Philadelphia County dismissing his petition filed pursuant
to the Post Conviction Relief Act, 42 Pa.C.S. § 9541, et seq.,
affirm.
On November 21, 2009, Redmond and his co-defendant Dwayne
Robinson attacked a fellow inmate at Curran-Fromhold Corrections Facility in
Philadelphia, Pennsylvania.1 The victim did not permit Robinson to review
____________________________________________
**
Former Justice specially assigned to the Superior Court.
1
The original record does not contain the trial transcripts. The facts recited
herein are from the trial court opinion and from the opinion of this Court in
- Commonwealth v. Robinson,
2514 EDA 2011 (Pa.Super. filed Dec. 18, 2012).
J-S36024-14
. Robinson grabbed the paperwork and refused to
return it. An argument ensued.
and Robinson punched the victim. Robinson attempted to insert his penis
ond partially inserted his penis into the
After approximately 30 to 45 minutes, the corrections officers arrived.
Corrections Officer Michael Lee observed the victim crying, screaming, and
yelling. Corrections Officer Michael Cooper observed that the victim was
crying and had puffy eyes. The victim received medical treatment at the
prison and at a nearby hospital. He suffered scratches to his face and back
and a one-millimeter tear to his anus.
The victim received a letter from Redmond, offering the victim
$500.00 if he did not testify. The victim then wrote to Redmond, requesting
additional funds in exchange for a refusal to testify.
On January 14, 2011, the Honorable Earl W. Trent presided over a
joint non-jury trial. He found Redmond guilty of involuntary deviate sexual
intercourse,2 criminal conspiracy,3 and sexual assault.4
____________________________________________
2
18 Pa.C.S. § 3123(a).
3
18 Pa.C.S. § 903.
4
18 Pa.C.S. § 3124.1.
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Robinson filed a motion for extraordinary relief, which Redmond
joined. The court denied this motion.
On April 13, 2011, the court sentenced Redmond to an aggregate term
of seven-to-fourteen years of imprisonment. Redmond appealed, but this
Court dismissed the appeal for failure to file a brief.
On December 14, 2011 and January 11, 2012, Redmond filed pro se
PCRA petitions. The court appointed counsel, who filed an amended petition
on January 29, 2013. On August 16, 2013, the trial court issued its notice of
intent to dismiss the PCRA petition without an evidentiary hearing pursuant
to Pennsylvania Rule of Criminal Procedure 907. On September 30, 2013,
the court dismissed the petition. Redmond timely appealed.
Redmond raises the following issues on appeal:
1. Did the PCRA court err in dismissing
Petition without an evidentiary
hearing when there was newly-discovered evidence
that Complainant admitted that he committed
perjury and Appellant was not responsible for the
crimes for which he has been convicted?
2. Did the PCRA court err in dismissing
hearing when trial counsel failed to call a known
eyewitness who has subsequently provided an
Affidavit which, if accepted, would show that
Appellant is not guilty for the crimes for which he
has been convicted?
Our standard of review from the denial of post-
limited to examining whether the court's determination is supported by the
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Commonwealth v.
Ousley, 21 A.3d 1238 (Pa.Super.2011) (citing Commonwealth v.
Morales, 701 A.2d 516, 520 (Pa.1997)).
Redmond first claims the trial court should have held a hearing
because he presented after-acquired evidence, i.e., an affidavit from Kendall
Brinkley, claiming the victim requested that Brinkley inform Robinson he
the victim $5,000.00. PCRA Petition Requesting Vacation of Judgment of
5
Sentence, at Appendix A (hereinaf
To be eligible for PCRA relief based on after acquired evidence, the
unavailability at the time of trial of exculpatory evidence that has
subsequently become available and would have changed the outcome of the
could not have been obtained at or prior to trial through reasonable
diligence; (2) the evidence is not cumulative; (3) it is not being used solely
, 856 A.2d 802, 823 (Pa.2004) (quoting
____________________________________________
5
The affidavit also states Brinkley was a childhood friend of Robinson. See
Brinkley Affidavit.
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Commonwealth v. Abu-Jamal, 553 Pa. 485, 517, 720 A.2d 79, 94
(1998)).
The trial court noted the hearsay statements contained in the Brinkley
Affidavit were likely inadmissible. Trial Court 1925(a) Opinion, 11/21/2013
her noted that, even if
credibility. Id.
[victim] would arguably suggest that he intended to fabricate at least some
portion of a statement and/or testimony relating to [Redmond] following a
Id.
The court further found Redmond failed to establish the statement
would have compelled a different verdict. 1925(a) Opinion at 3. The court
ated the credibility of the [victim] under the backdrop of
evidence detailing his attempt to extract money from the co-defendant in
Id. The court noted the Brinkley Affidavit
inancial compensation and this
Id.
legal error. Redmond claims the statement would be a recantation, not
impeac
hearsay statement allegedly from the victim and constitutes impeachment
evidence. A recantation occurs where a witness testifies, or signs a sworn
affidavit, that he testified falsely at the prior trial. See, e.g.,
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Commonwealth v. Davis, 86 A.3d 883, 889 (Pa.Super.2014) (noting
witness signed affidavit noting his perjury at trial); Commonwealth v.
, 856 A.2d 806, 823 (Pa.2004) (noting a witness recanted his trial
testimony). A recantation does not occur merely because a separate
individual claims the witness said he testified falsely. See, e.g.,
Commonwealth v. Dennis, 715 A.2d 404, 416 (Pa.1998) (noting affidavit
from individual claiming witness told the individual that witness was not sure
the person she identified was the killer was impeachment evidence and
noting a separate witness recanted his trial testimony, claiming he lied on
the stand). Accordingly, as the trial court found, the Brinkley Affidavit would
merely constitute impeachment evidence and cannot constitute after-
acquired evidence sufficient to warrant PCRA relief. , 856
A.2d at 823.
Redmond next claims he was entitled to an evidentiary hearing on his
ineffectiveness of trial counsel claim. He claimed counsel was ineffective for
failing to interview, and call as a witness, the fourth individual present in the
prison cell at the time of the attack.
For ineffectiveness of counsel claims, the petitioner must establish:
(2) counsel had no reasonable
strategic basis for his or her action or inaction; and (3) but for the errors or
omissions of counsel, there is a reasonable probability that the outcome of
Ousley, 21 A.3d at 1244
(quoting Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.Super.2010)).
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ineffectiveness Id.
three [ineffectiveness] prongs re Id.
(quoting Rivera, 10 A.3d at 1279). When alleging ineffective assistance of
witness existed; (2) the witness was available to testify for the defense; (3)
counsel knew of, or should have known of, the existence of the witness; (4)
the witness was willing to testify for the defense; and (5) the absence of the
testimony of the witness was so prejudicial as to have denied the defendant
Commonwealth v. Matias, 63 A.3d 807, 810 (Pa.Super.2013)
(quoting Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (Pa.2012)).
The fourth cellmate, Karlesio Davenport, signed an affidavit stating the
assault did not occur and stating that, if subpoenaed, he would have testified
at trial. PCRA Petition Requesting Vacation of Judgment of Sentence, at
Redmond failed to demonstrate counsel lacked a reasonable basis for not
calling Davenport and found the failure to call Davenport was not prejudicial.
1925(a) Opinion, at 4. Because the trial court did not hold an evidentiary
hearing, we will not consider whether the attorney had a reasonable basis for
failing to call Davenport. Commonwealth v. duPont, 860 A.2d 525, 533
(Pa.Super.2004) (in PCRA appeal, reasonableness of attorney's strategic
decisionmaking is matter that this Court usually considers only where
evidence has been taken on that point).
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The court, however, acted within its discretion in finding the failure to
1925(a) Opinion, at 5.
internally
inconsistent, as it stated Davenport was asleep during a portion of the
encounter, but later stated he was awake the whole time. Id. His claim
that the assault did not occur also conflicts with his report to the
investigating officer after the
Id., at 4. In addition, the Commonwealth could have introduced crimen falsi
evidence of a burglary conviction to impeach Davenport. Id. Further, the
s revised version of
Id. at 5. The
victim testified Davenport inquired as to what was happening and one of the
Id. at 5
n.7.
Accordingly, the court acted within its discretion in dismissing
Order affirmed.
Justice Fitzgerald files concurring/dissenting statement.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/2014
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Com. v. Redmond, D.
Combined Opinion