J. S17042/19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                   v.

EDWARD LEONARD HUMPHREY,                            No. 1525 EDA 2018

                        Appellant


             Appeal from the PCRA Order Entered April 30, 2018,
            in the Court of Common Pleas of Northampton County
               Criminal Division at No. CP-48-CR-0002906-2013


BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED JULY 15, 2019

      Edward Leonard Humphrey appeals from the April 30, 2018 order
entered in the Court of Common Pleas of Northampton County denying his

petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

      The PCRA court set forth the following procedural history:

            [Appellant] was charged with Home Improvement
            Fraud,[Footnote 1] Theft by Deception,[Footnote 2]
            and Receiving Stolen Property[Footnote 3] based on
            allegations that through his company, Total
            Remodeling    of Northeast     Pennsylvania,  LLC,
            [appellant] failed to complete a renovation for the
            Victim, Leander Gray ("Gray"), and failed to refund
            money paid for the incomplete project. On January 7,
            2014, following a two-day jury trial, [appellant] was
            convicted of Home Improvement Fraud and Theft by
            Deception. However, the trial court dismissed the
            charge of Receiving Stolen Property following the
            conclusion of the Commonwealth's case.
J. S17042/19

                [Footnote 1] 73 P.S. § 517.8(a)(2)[.]

                [Footnote 2] 18 Pa.C.S.A. § 3922(a)(1)[.]

                [Footnote 3] 18 Pa.C.S.A. § 3925[.]

          On February 7, 2014, [appellant] was sentenced to an
          aggregate of thirty-two (32) to sixty-four (64)
          months['] incarceration followed by a period of four
          (4) years of probation. [Appellant] was further
          ordered to pay restitution in the amount of
          Twenty-five Thousand Seven Hundred Seven dollars
          and Sixty-two cents ($25,707.62). On February 12,
          2014, [appellant], through Attorney Yannuzzi, filed a
          Petition for Reconsideration of Sentence. The Court
          subsequently denied [appellant's] Petition and
          [appellant] appealed to the Superior Court of
          Pennsylvania. In a November 6, 2015 Memorandum
          Opinion issued by the Honorable Sallie Updyke Mundy,
          the Superior Court affirmed this Court's judgment of
          sentence.    [See Commonwealth v. Humphrey,
          No. 1661 EDA 2015, (unpublished memorandum)
          (Pa.Super. filed November 6, 2015).]

          [Appellant], through court -appointed counsel, filed a
          Post -Conviction Relief Act petition ("PCRA petition")
          on February 19, 2016. [Appellant] subsequently hired
          private counsel for his PCRA petition. Accordingly,
          [appellant's] counsel filed an Amended Petition
          Pursuant to the Post Conviction Relief Act on
          March 24, 2017 alleging ineffective assistance of
          counsel and after discovered evidence.              On
          September 26, 2017, the parties appeared before the
          Court for a PCRA Hearing. The parties were unable to
          complete the hearing on that date and, therefore,
          ordered to return on December 6, 2017 for additional
          testimony. Prior to the December 6, 2017 hearing
          date, [appellant] filed a Supplemental Amended PCRA
          Petition Pursuant to the Post Conviction Relief Act on
          December 4, 2017. The parties appeared before the
          Court on December 6, 2017. As the testimony did not
          conclude on that date, the parties were scheduled to
          appear for an additional hearing on February        1,
          201[8]. At the request of the Court, [appellant] filed

                                  -2
J. S17042/19

               a PCRA Hearing Memorandum prior to the February 1,
               201[8] hearing. On February 1, 201[8], the parties
               appeared before the Court and concluded the PCRA
               Hearing.

               On April 2, 2018, [appellant] filed a Post Hearing PCRA
               Memorandum. On April 10, 2018, the Commonwealth
               filed a Brief in Opposition of [appellant's] Petition for
               Post -Conviction Collateral Relief. [Appellant] then
               filed a Reply Memorandum in Further Support of His
               Request for PCRA Relief on April 19, 2018.

PCRA court opinion, 4/30/18 at 1-3 (footnote 4 omitted).

      The PCRA court denied the PCRA petition on April 30, 2018. Appellant

filed a timely notice of appeal.         The PCRA court ordered appellant to file a

concise      statement     of   errors    complained   of on   appeal    pursuant to

Pa.R.A.P. 1925(b). Appellant timely complied. On June 8, 2018, the PCRA

court subsequently filed a "statement pursuant to [Pa.R.A.P.] 1925(a)"

wherein it relied on the April 30, 2018 opinion as support for denying the PCRA

petition.'

      Appellant raises the following issues for our review:

               1.    Did    the    PCRA    court err when      it   denied
                     [appellant's] request for a new trial based on
                     ineffective assistance of counsel?

               2.    Did    the    PCRA    court err when      it   denied
                     [appellant's] request for a new trial based on
                     after discovered evidence?


' We note that the April 30, 2018 PCRA court opinion and order denying the
PCRA petition were issued by the Honorable Emil Giordano.            After
Judge Giordano's retirement, the case was reassigned, and the
Honorable Paula A. Roscioli issued the June 8, 2018 "statement pursuant to
[Pa.R.A.P.] 1925(a)."

                                            -3
J. S17042/19

Appellant's brief at 2.

      Proper appellate review of a PCRA court's dismissal of a PCRA petition

is limited to the examination of "whether the PCRA court's determination is

supported by the record and free of legal error." Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). We review the appeal

"in the light most favorable to the prevailing party at the PCRA level[,]" and

"[o]ur review is limited to the findings of the PCRA court and the evidence of

record."   Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014)
(citations omitted). "The PCRA court's findings will not be disturbed unless

there is no support for the findings in the certified record." Commonwealth

v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014) (citations omitted). "This [c]ourt

grants great deference to the findings of the PCRA court, and we will not
disturb those findings merely because the record could support a contrary

holding." Commonwealth v. Hickman, 799 A.2d 136, 140 (Pa.Super. 2002)

(citation omitted).

      In his first issue, appellant claims trial counsel was ineffective for failing

to call a potential witness and "for failing to introduce several pieces of
evidence that would have rebutted the Commonwealth's case and would have

supported the defense." (Appellant's brief at 10-20.)

            To be eligible for relief based on a claim of ineffective
            assistance of counsel, a PCRA petitioner must
            demonstrate, by a preponderance of the evidence,
            that (1) the underlying claim is of arguable merit;
             (2) no reasonable basis existed for counsel's action or
             omission; and (3) there is a reasonable probability

                                       -4
J. S17042/19

            that the result of the proceeding would have been
            different absent such error. Commonwealth v.
            Steele, 961 A.2d 786, 796 (Pa. 2008). With regard
            to the second, i.e., the "reasonable basis" prong, this
            Court will conclude that counsel's chosen strategy
            lacked a reasonable basis only if the appellant proves
            that "an alternative not chosen offered a potential for
            success substantially greater than the course actually
            pursued." Commonwealth v. Williams, 899 A.2d
            1060,    1064         2006) (citation omitted).
                               (Pa.                               To
            establish the third prong, i.e., prejudice, the appellant
            must show that there is a reasonable probability that
            the outcome of the proceedings would have been
            different,   but     for   counsel's   action   or   inaction.
            Commonwealth v. Dennis, 950 A.2d 945, 954 (Pa.
            2008).

Commonwealth v. Matias, 63 A.3d 807, 810 (Pa.Super. 2013), appeal
denied, 74 A.3d 1030 (Pa. 2013).

      "A failure to call a witness is not per se ineffective assistance of counsel

for such decision usually involves matters of trial strategy."               Id. at 811
(citation omitted). In order to establish ineffectiveness for failing to call a

potential witness to testify at trial, appellant must prove that:

            (1) the 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 a
            fair trial.

Id. at 810-811 (citations omitted). In order to establish prejudice, appellant

"must show how the [potential witness'] testimony would have been beneficial

under the circumstances of the case" and "helpful to the defense" such that

the absence of the testimony denied appellant a fair trial. Id. at 811 (citation


                                          -5
J. S17042/19

omitted); see also Commonwealth v. Chmiel, 889 A.2d 501, 546 (Pa.
2005) (citation omitted), cert. denied, 549 U.S. 848 (2006) (holding that
"[t]rial counsel's failure to call a [potential witness] does not constitute
ineffective assistance without some showing that the [potential] witness'
testimony would have been beneficial or helpful in establishing the asserted

defense.").

      Here, appellant claims that trial counsel was ineffective for failing to call

Christopher Bickham ("Bickham"), who was the lead carpenter for appellant's

company at the time of the theft and fraud, as a witness at trial. (Appellant's

brief at 10-13; see also notes of testimony, 2/1/18 at 5.) Appellant claims
that Bickham would have testified that appellant did not instruct Gray to give

Bickham a check for $9,842.93, which would have refuted Gray's trial
testimony. (Appellant's brief at 11.)

      The PCRA court found that although appellant proved that Bickham

existed, appellant failed to establish that Bickham was available to testify for

appellant at trial. (PCRA court opinion, 4/30/18 at 5.) The PCRA hearing

transcript reflects that Bickham testified that he was not aware that appellant

was charged with home improvement fraud. (Notes of testimony, 2/1/18 at

7-8.) Bickham also testified that after the company dissolved, he moved back




                                        -6
J. S17042/19

to New York State.2 (Id. at 8.) Bickham further testified that the first time

appellant contacted him was after appellant had been convicted of the
before -mentioned crimes, and the purpose of the contact was to ask if
Bickham would testify on behalf of appellant at the PCRA hearing. (Id. at

7-10.) Trial counsel testified that he had no recollection of discussing Bickham

with appellant.        (Id. at 70, 81-82.) The record supports the PCRA court's
determination that appellant failed to demonstrate that Bickham was available

to testify at trial.

       The PCRA court also determined that appellant failed to establish that

the absence of Bickham's testimony was so prejudicial as to have denied

appellant a fair trial.       (PCRA court opinion, 4/30/18 at 5.)          We agree.

Appellant's      argument      is   that    Bickham's      testimony    would    have

"directly refute[d]" Gray's testimony.          (Appellant's brief at 11.) Conflicting

testimony of Gray and Bickham as to whether appellant instructed Gray to

give the check to Bickham would have raised a credibility determination, but

appellant fails to demonstrate how the failure to call Bickham as a witness was

so prejudicial as to deny him a fair trial. Consequently, we discern no abuse

of discretion.




2 Bickham testified that he did not recall when the company was dissolved.
(Notes of testimony, 2/1/18 at 8.) Appellant, however, testified that the
company was dissolved on September 2, 2011. (Id. at 43, 46, 60; see also
PCRA Hearing Exhibit U - "Certificate of Amendment -Domestic," 9/2/11.)

                                           -7
J. S17042/19

     Appellant next claims that trial "[c]ounsel was ineffective for failing to

introduce   several       pieces     of   evidence that would         have   rebutted   the

Commonwealth's case and would have supported the defense." (Id. at 13.)

     At the PCRA hearing, the Commonwealth utilized the trial transcript to

question trial counsel concerning various documents that were admitted into

evidence    at   trial,    as      well   as   specific   testimony    of witnesses     on

cross-examination with respect to these pieces of evidence.                     (Notes of

testimony, 2/1/18 at 80-84.)

     As the PCRA court explained:

            With regard to the Wells Fargo bank statements, KNBT
             bank statements and account opening information,
            and PayPal records, all were admitted into evidence at
            trial by the Commonwealth. Further, the testimony of
            James Reilly ("Reilly") confirmed that he opened both
            the Wells Fargo and PayPal account under the
            direction of [appellant]. Contrary to [appellant's]
             argument, both the July and August 2011 Wells Fargo
             bank statements were admitted into evidence at trial
             by the Commonwealth. Additionally, Jennifer Tillema
             ("Tillema") testified to opening the National Penn bank
             account in her name pursuant to [appellant's]
             direction. As each of these documents had previously
             been admitted, there was no reasonable basis for
             [trial counsel] to separately present them at trial.
             Further, with regard to the American Express bank
             and credit card statements, the record establishes
            that both [appellant] and Reilly had American Express
             cards

PCRA court opinion, 4/30/18 at 4 (citation to notes of testimony omitted).

     The record supports the trial court's conclusion that appellant's

ineffectiveness claim for failure to introduce certain documents into evidence


                                               -8
J. S17042/19

lacked arguable merit and that appellant failed to establish prejudice.
Therefore, we discern no abuse of discretion.

      Appellant finally complains that the PCRA court erred in denying his

request for a new trial on the basis of after -discovered evidence. (Appellant's

brief at 20-31.)

      In order for appellant to         be granted        a   new   trial based upon

after -discovered evidence, he must show that the evidence:

            1)      has been discovered after the trial and could not
                    have been obtained at or prior to the conclusion
                    of the trial by the exercise of reasonable
                    diligence;

            2)      is not merely corroborative or cumulative;

            3)      will not be used solely to impeach the credibility
                    of a witness; and

            4)      is of such nature and character that a different
                    verdict will likely result if a new trial is granted.

Commonwealth v. Randolph, 873 A.2d 1277, 1283 (Pa. 2005) (citation
omitted), cert. denied, 547 U.S. 1058 (2006).

            The test is conjunctive; the [appellant] must show by
            a preponderance of the evidence that each of these
            factors has been met in order for a new trial to be
            warranted. Further, when reviewing the decision to
            grant    or   deny    a   new    trial   on   the   basis   of
            after -discovered evidence, an appellate court is to
            determine whether the PCRA court committed an
            abuse of discretion or error of law that controlled the
            outcome of the case.

Commonwealth v. Foreman, 55 A.3d 532, 537 (Pa.Super. 2012) (citations

omitted; brackets removed). "Discretion is abused when the course pursued

                                        -9
J. S17042/19

represents not merely an error of judgment, but where the judgment is
manifestly unreasonable or where the law is not applied or where the record

shows that the action is a result of partiality, prejudice, bias or          ill   will."

Commonwealth v. Padillas, 997 A.2d 356, 361 (Pa.Super. 2010) (citation

omitted). Appellant has the burden, at the evidentiary hearing, to establish

that the document satisfies the after -discovered evidence requirements to

warrant a new trial.    See Commonwealth v. Rivera, 939 A.2d 355, 359
(Pa.Super. 2007), appeal denied, 939 A.2d 355 (Pa. 2008).

      In his   brief, appellant baldly asserts that he "obtained several

documents after trial that satisfy [the after -discovered evidence] test" and

that he is, therefore, entitled to a new trial. (Appellant's brief at 20.)

      As the PCRA court explained:

            [appellant] argues that following trial, he discovered
            the original police reports had been altered.
            Specifically, [appellant] argues that a $15,000
            payment was altered to reflect a $5,000 payment and
            that the original contract price of $44,842.93 was
            adjusted to $34,842.93. However, the evidence
            presented    by [appellant]    in   this regard fails to
            sufficiently meet the standards necessary to warrant
            relief based on after -discovered evidence. Notably,
            [appellant] has failed to establish a purpose this
            evidence might serve aside from the impeachment of
            either or both Gray and/or Trooper Michael Hodgskin
            ("Trooper Hodgskin").      Moreover, [appellant] has
            further failed to establish that the nature and
            character of this evidence is such that it would likely
            alter the outcome of the trial.




                                      - 10 -
J. S17042/19

           [Appellant]   further argues the Commonwealth
           committed     a  Brady[3] violation.    Specifically,
           [appellant] contends the Commonwealth withheld
           exculpatory evidence in the form of KNBT bank
           statements showing that Tillema could have refunded
           Gray prior to dissolving the company. However, the
           record establishes that the aforementioned bank
           statements were admitted into evidence at trial by the
           Commonwealth. Accordingly, [appellant] cannot now
           claim he lacked access to these bank records prior to
           or at the time of trial. Therefore, [appellant's]
           after -discovered evidence claim in this regard must
          fail.

           [Appellant] next argues other individuals, not
           [appellant], owned and were in control of the
           company. In reaching this conclusion, [appellant]
          references documents he obtained after trial, upon
          subpoena of the Department of State, purporting to
          show that Reilly submitted a forged document listing
          [appellant] as the owner of the company. [Appellant]
          further references a Pennsylvania State Police
          Supplemental Investigation Report he asserts
          establishes that Reilly, not [appellant], removed
          himself from the company. However, [appellant] fails
          to  present sufficient evidence establishing the
           document was in fact forged or altered. Additionally,
          [appellant] incorrectly asserts that Reilly removed
          himself from the company. Rather, Reilly states that
          he did not want to be part of the business and that
          everything was shut down. Additionally, [appellant]
          fails to establish that these documents could not be
           obtained prior to the conclusion of trial.

           [Appellant] further argues that following trial he
           received documents showing that Reilly cancelled the
           company's insurance upon claiming he was the license
           holder in August 15, 2011 and that Tillema purchased
           insurance for the company on August 18, 2011.
           However, [appellant] has failed to establish that these
           documents constitute after -discovered evidence as
          the information contained therein was testified to at

3 Brady v. Maryland, 373 U.S. 83 (1963).
J. S17042/19

             trial. Notably, Tillema testified to this information at
             trial. Tillema specifically stated that she put the
             company in her name on August 10, 2011 by filing an
             amendment of ownership of the company.
             Additionally, she further testified to purchasing
             insurance as the company was not properly insured at
             the time. Accordingly, [appellant] has failed to
             establish that the documents could not have been
             obtained by reasonable diligence prior to the close of
             trial or that they amount to anything more than
             corroborative or cumulative evidence.

PCRA court opinion, 4/30/18 at 5-7 (footnote 5 and citations to notes of
testimony omitted).

       The record supports the PCRA court's conclusion that appellant failed to

demonstrate that the documents were not being used solely for impeachment,

that the documents could not have been obtained at or prior to the conclusion

of trial by reasonable diligence, that the documents were not merely

corroborative or cumulative, and that the documents would have resulted in

a different verdict. Therefore, we discern no abuse of discretion or error of

law.

       Order affirmed.

Judgment Entered.




J seph D. Seletyn,
Prothonotary


Date: 7/15/19



                                      - 12 -
