J-S25019-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

GABRIEL GREENIDGE

                            Appellant                No. 1410 WDA 2014


             Appeal from the PCRA Order entered August 11, 2014
              In the Court of Common Pleas of Clearfield County
               Criminal Division at No: CP-17-CR-0001082-2007


BEFORE: BENDER, P.J.E., STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                                 FILED MAY 20, 2015

        Gabriel Greenidge, Appellant, who is serving a sentence for his

conviction of drug offenses and related crimes, appeals from an order

denying relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-46. Appellant contends the PCRA court erred in denying relief on

his claims of after-discovered evidence and ineffective assistance of counsel.

We affirm.

        On October 18, 2008, the 25th Statewide Investigating Grand Jury

issued a presentment finding that Appellant, a New York City resident, was

the head of a drug distribution ring in Clearfield County from 2005 to 2007.

The grand jury found that Appellant transported large amounts of cocaine
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*
    Retired Senior Judge assigned to the Superior Court.
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and heroin from New York City for redistribution in Clearfield Borough and

other places.      The Office of Attorney General filed a 35-count criminal

complaint against Appellant alleging various felony violations of the Crimes

Code and the Controlled Substance, Drug Device and Cosmetic Act.1

Following trial, a petit jury convicted Appellant of 18 of 20 counts. Appellant

was sentenced to an aggregate of 10 to 20 years in prison and to pay a fine

of over $60,000.00.         Appellant filed post-sentence motions, which were

denied by operation of law.             Appellant then appealed to this Court,

challenging only the sufficiency of the evidence. We affirmed the judgment

of sentence, and the Supreme Court refused to hear Appellant’s appeal.

Commonwealth v. Greenidge,                     998   A.2d   1024   (Pa.    Super.   2010)

(unpublished memorandum), appeal denied, 17 A.3d 1251 (Pa. 2011).

       Appellant filed a timely first PCRA petition pro se.               The PCRA court

appointed counsel, but Appellant later retained private counsel, who filed an

amended PCRA petition.             Appellant raised 22 post-conviction claims,

including after-discovered evidence, ineffective assistance of counsel, and

the legality of his sentence. Following a hearing, the PCRA court issued an

opinion and order denying relief on August 11, 2014. This appeal followed.2

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1
  18 Pa.C.S.A. §§ 101 et seq., and Act of Apr. 14, 1972, P.L. 233, No. 64
§ 13, as amended, 35 P.S. §§ 780-101 – 780-144.
2
 Appellant’s privately retained counsel withdrew from representation, and
Appellant is again represented by court-appointed counsel on appeal.



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      Appellant raises only two issues on appeal:

      1. Whether the lower court erred in failing to grant PCRA relief
         on    grounds     of   after-discovered    evidence   where
         Commonwealth witness James McGuire recanted his trial
         testimony and that testimony provided evidence essential to
         support Appellant’s convictions.

      2. Whether the lower court erred in failing to grant PCRA relief
         on grounds of ineffective assistance of counsel where trial
         counsel failed to raise the issue of Commonwealth witness
         James McGuire’s recantation of his trial testimony and that
         testimony provided evidence essential to support Appellant’s
         convictions.

Appellant’s Brief at 4.

      In appeals under the PCRA, we apply the following standard and scope

of review:

      We consider the record in the light most favorable to the
      prevailing party at the PCRA level. This review is limited to the
      evidence of record and the factual findings of the PCRA court.
      We afford great deference to the factual findings of the PCRA
      court and will not disturb those findings unless they have no
      support in the record. Accordingly, as long as a PCRA court’s
      ruling is free of legal error and is supported by record evidence,
      we will not disturb its ruling. Nonetheless, where the issue
      pertains to a question of law, our standard of review is de novo
      and our scope of review is plenary.

Commonwealth v. Pander, 100 A.3d 626, 630 (Pa. Super. 2014) (en

banc) (quotation and internal quotation marks omitted).        “Moreover, in

general we may affirm the decision of the [PCRA] court if there is any basis

on the record to support the [PCRA] court’s action; this is so even if we rely

on a different basis in our decision to affirm.” Commonwealth v. Wiley,

966 A.2d 1153, 1157 (Pa. Super. 2009) (quotation omitted).



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       Before we turn to the legal standards governing each of Appellant’s

questions presented, we set forth the factual background.       James McGuire

sold heroin and cocaine for Appellant. On May 28, 2008, he testified that he

met Appellant in 2005, and sold drugs at least five times at Appellant’s

request.    McGuire was the Commonwealth’s final witness, and after his

testimony, the Commonwealth and Appellant rested their cases, Appellant

having presented no evidence. The trial court then called a recess so that

the assistant attorney general prosecuting the case could appear in another

courtroom for McGuire’s sentencing.

       At the time of his testimony, McGuire had already entered a guilty plea

to crimes related to his role in the drug distribution ring. His plea included a

sentencing recommendation of three to six years.        See N.T. Trial Day 2,

5/28/08, at 59. McGuire’s sentencing judge, however, imposed a sentence

of three to seven years plus two years of probation. See PCRA Defendant’s

[sic] Exhibits 10 and 12. According to a May 29, 2008 article in the DuBois

Courier Express, as McGuire was being led from the courtroom, he stated

that all of his testimony in Appellant’s case was “a lie.”3 See id.
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3
  Appellant did not call McGuire as a witness at the PCRA hearing, and
instead relied only on his own and trial counsel’s recollections and the
newspaper article reporting the recantation.     Indeed, when Appellant
attempted to introduce a letter purportedly from McGuire confirming his
recantation, the PCRA court sustained the Commonwealth’s hearsay
objection. See N.T., PCRA Hearing Day 1, 8/2/13, at 39-40. We recognize
that the Commonwealth attacks the evidentiary sufficiency of the recantation
evidence. See also Commonwealth v. Castro, 93 A.3d 818, 827 (Pa.
(Footnote Continued Next Page)


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      Appellant’s trial counsel did not raise the issue of McGuire’s recantation

before sentencing or on direct appeal.            At the PCRA hearing, trial counsel

explained his actions as follows:

      Q. [by the Commonwealth]: Now, sir, do you recall an issue with
      James McGuire during his sentencing? Apparently, he made an
      attempt to—an alleged attempt to recant his testimony. Do you
      recall that coming up?

      A. [by trial counsel]: I recall.

      Q.: And was that matter raised before the [c]ourt, do you
      remember?

      A.: Mr. McGuire was a witness for the [p]rosecution in this case.

      Q.: Yes. Do you recall the [c]ourt being made aware of Mr.
      McGuire’s alleged recantation, perhaps during sentencing?

      A.: I certainly can’t speak for the [c]ourt, but it became pretty
      well known as to what Mr. McGuire did after he left.

      Q.: Okay. And did you give any consideration to attempt to take
      any further actions on the basis of that supposed recantation?

      A.: I have become fully aware of the circumstances and the
      scenario in which McGuire recanted, and I found that to be
      something that wasn’t going to be of great benefit.

      And when I coupled that with the fact that there was another
      female witness, who was an associate of McGuire, who also
      testified in this case consistent to what McGuire testified to, I
      didn’t see that there was any reasonable opportunity for that to
      be of benefit to [Appellant].


                       _______________________
(Footnote Continued)

2014) (holding that a defendant moving for a new trial must rely on more
than a newspaper article to be entitled to a hearing on a claim of after-
discovered evidence). However, to resolve this appeal, we need not address
whether Appellant met his burden of proving McGuire’s recantation.



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      Q.: And was your understanding that Mr. McGuire was angry
      with the Commonwealth due to the sentence he received?

      A.: Well, I was not present when it occurred, so what I’m going
      to tell you is what someone else told me in that regard. But my
      understanding is that Mr. McGuire was sentenced subsequent to
      his testimony in a case. I’m not certain if it was related to this
      case or not.

      But the sentence imposed by the judge contained a maximum
      portion of his sentence that he wasn’t expecting; and when
      presented with the maximum part of his sentence, he became
      very angry and started to shout and scream that he lied in court.

N.T. PCRA Hearing Day 2, 12/11/13, at 29-30. On cross-examination, trial

counsel reiterated that he did not think that McGuire’s recantation was going

to “rise to the level of any assistance” for Appellant, and that “[t]he fact that

somebody recants after the fact doesn’t necessarily amount to newly

discovered evidence.”         Id. at 45.      For his part, Appellant claimed he

informed trial counsel of McGuire’s recantation as soon as he became aware

of it, and he later forwarded to trial counsel a letter purportedly from

McGuire again recanting his testimony.           See N.T. PCRA Hearing Day 1,

8/2/13, at 35-39; PCRA Defendant’s [sic] Exhibit 11.

      The PCRA allows relief if a petitioner shows by a preponderance of the

evidence, “[t]he unavailability at the time of trial of exculpatory evidence

that has subsequently become available and would have changed the

outcome    of   the   trial   if   it   had   been   introduced.”   42   Pa.C.S.A.

§ 9543(a)(2)(vi). An after-discovered evidence claim has four components:

the evidence (1) was discovered after trial and could not have been obtained

earlier through reasonable due diligence; (2) is not corroborative or



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cumulative; (3) will not be used solely to impeach a witness’s credibility; and

(4) will likely cause a different verdict at a retrial.    Commonwealth v.

Chamberlain, 30 A.3d 381, 414 (Pa. 2011). The test is conjunctive, i.e., a

PCRA petitioner must meet all elements, or the claim fails. Commonwealth

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

      The PCRA also requires a petitioner to prove that the claims are not

waived.   Id. § 9543(a)(3).    “[A]n issue is waived if the petitioner could

have raised it but failed to do so before trial, at trial, during unitary

review, on appeal or in a prior state postconviction proceeding.”          Id.

§ 9544(b) (emphasis added).

      A defendant who discovers exculpatory evidence after sentencing but

before filing an appeal (or before the deadline to file an appeal) must file a

written post-sentence motion.       Pa.R.Crim.P. 720(C).    A defendant who

discovers exculpatory evidence during direct appeal proceedings must

request a remand to the trial court for a hearing.         Commonwealth v.

Rivera, 939 A.2d 355, 358 (Pa. Super. 2007). Moreover, claims of after-

discovered evidence are not subject to the rule of Commonwealth v.

Grant, 813 A.2d 726 (Pa. 2002), which generally requires deferral to the

PCRA stage of claims of ineffective assistance of counsel. Rivera, 939 A.3d

at 358 (quoting Pa.R.Crim.P. 720 Comment). Therefore, a defendant waives

claims of after-discovered evidence if (1) he becomes aware of evidence

supporting the claim prior to or during direct review; and (2) fails to raise

the claim before the trial or appellate court.

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       Appellant’s after-discovered evidence claim is waived, because he

could have raised it in a post-sentence motion or before this Court on direct

appeal.4    McGuire’s recantation took place after the parties in Appellant’s

trial rested their cases, but well before sentencing. Trial counsel testified he

was aware of the recantation, but took no action. Therefore, Appellant may

raise McGuire’s recantation only insofar as trial counsel was ineffective for

failing to raise it.

       We evaluate claims of ineffective assistance of counsel under the

following familiar standard:

       [A] PCRA petitioner will be granted relief only when he proves,
       by a preponderance of the evidence, that his conviction or
       sentence resulted from the ineffective assistance of counsel
       which, in the circumstances of the particular case, so
       undermined the truth-determining process that no reliable
       adjudication of guilt or innocence could have taken place. 42
       Pa.C.S. § 9543(a)(2)(ii). Counsel is presumed effective, and to
       rebut that presumption, the PCRA petitioner must demonstrate
       that counsel’s performance was deficient and that such
       deficiency prejudiced him. . . . [T]o prove counsel ineffective,
       the petitioner must show that: (1) his underlying claim is of
       arguable merit; (2) counsel had no reasonable basis for his
       action or inaction; and (3) the petitioner suffered actual
       prejudice as a result.

Commonwealth v. Charleston, 94 A.3d 1012, 1019 (Pa. Super. 2014)

(quoting Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014)). “To
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4
  As the Commonwealth notes, Appellant also could have raised McGuire’s
recantation in an oral motion for extraordinary relief prior to sentencing,
although such a motion is insufficient to preserve an issue for appeal. See
Pa.R.Crim.P. 704(B).



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sustain a claim of ineffectiveness, [an a]ppellant must prove that the

strategy employed by trial counsel ‘was so unreasonable that no competent

lawyer would have chosen that course of conduct.’”         Commonwealth v.

Rega, 933 A.2d 997, 1018-19 (Pa. 2007) (quotation omitted).               Stated

another way, a finding of no reasonable basis for counsel’s actions is

unwarranted “unless it can be concluded that an alternative not chosen

offered a potential for success substantially greater than the course actually

pursued.”     Commonwealth v. Colavita, 993 A.2d 874, 887 (Pa. 2010)

(quotation omitted). Failure to establish any one of the above three prongs

is fatal to an appellant’s claim of ineffectiveness.       Commonwealth v.

Jones, 951 A.2d 294, 302 (Pa. 2008).

       The PCRA court did not err in rejecting Appellant’s claim.      Appellant

failed to prove that trial counsel’s actions in not raising McGuire’s recantation

were unreasonable.5        Rather, the record shows that trial counsel made a

tactical choice not to raise McGuire’s recantation. He believed that McGuire’s

recantation was of negligible value, because McGuire said it moments after

McGuire received a longer-than-expected prison sentence.         Moreover, trial

counsel noted that another witness, to some extent, corroborated McGuire’s

testimony. In sum, Appellant cannot show that trial counsel’s decision was
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5
  The PCRA court ruled that Appellant could not prove prejudice. See PCRA
Court Opinion, 8/11/14, at 11. As noted above, we may affirm on any basis
supported by the record. Wiley, supra.




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so unreasonable that no competent lawyer would have made the same

choice.   Because   Appellant   cannot   show   trial   counsel’s   actions   were

unreasonable, his claim of ineffective assistance of counsel fails.

      We reject both of Appellant’s assignments of error and, accordingly,

affirm the denial of PCRA relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/20/2015




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