J-S06028-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 CARLOS PEREZ                              :
                                           :
                    Appellant              :   No. 1704 EDA 2018

                  Appeal from the PCRA Order May 21, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0010665-2011

BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

CONCURRING AND DISSENTING MEMORANDUM BY BOWES, J.:

                                                FILED SEPTEMBER 12, 2019

      I agree with my learned colleagues that Appellant is not entitled to relief

on his ineffective assistance of counsel claims. However, I do not agree with

the majority’s conclusion that a remand is necessary because Appellant

established a genuine issue of fact relevant to his after-discovered evidence

claim, such that the PCRA court erred when it dismissed Appellant’s petition

without a hearing. I believe that the substance of Appellant’s claim does not

constitute after-discovered evidence, and even if it did, it would not be enough

to justify allowing Appellant to withdraw his guilty plea. Thus, I would affirm

the PCRA court’s order dismissing the PCRA petition without a hearing.

Accordingly, I respectfully dissent.

      At Appellant’s guilty plea hearing, Appellant acknowledged that his plea

was based upon the following facts:
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     On April 15th, 2011[,] the two defendants Angel Suarez, Jr. and
     [Appellant] went to the 3,000-block of Water Street here in
     Philadelphia in search for Angel Suarez [Vargas], Sr., the [co-]
     defendant’s father.

     ....

     When they arrived on the block, they did find Angel Suarez Vargas
     and engaged him in a physical altercation. During that altercation
     both defendants physically fought Angel Suarez Vargas. Another
     individual on the block by the name of Ian Wolbert saw the fight
     and jumped into the fight to help Angel Suarez Vargas.

     After the fight stopped, the two defendants left the same way they
     arrived, in a burgundy Honda Accord with a black primer door.
     About 10 minutes later the two defendants returned in the same
     burgundy Honda Accord. This time both had firearms. The two
     defendants saw both Ian Wolbert and Angel Suarez Vargas and
     chased them, and both fired their guns in the direction of Ian
     Wolbert and Angel Suarez Vargas. One of those bullets struck a
     46-year-old female by the name of Sandra Laboy in her back. Her
     body was transported to Temple Hospital where she was
     pronounced dead.       Her remains were taken to the medical
     examiner’s office where she was examined by Dr. Sam Gulino.
     The cause of death was a gunshot wound to her back, and he
     concluded to a reasonable degree of scientific certainty that the
     manner of death was homicide.

     ....

     Homicide investigators interviewed a number of witnesses in the
     neighborhood who described four individuals in a fight, described
     two Hispanic males leaving in a burgundy Honda Accord and
     describe[d] those same two individuals as coming back and firing
     guns on the block. Some of those witnesses were able to identify
     Ian Wolbert and Angel Suarez Vargas by photo spread but were
     unable to identify the two defendants seated at the bar of the
     court.

     Based on this information[,] on April 17th, 2011[,] members of the
     Homicide Unit interviewed Ian Wolbert who provided a statement
     identifying Angel Suarez Vargas as the person he helped, and also
     telling Homicide that when the defendants had left the scene


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      initially Angel Suarez Vargas told Ian Wolbert that one of those
      people was his son.

      On May 2nd, 2011 Angel Suarez Vargas was interviewed by
      Homicide, provided a statement detailing what I have just said,
      and identified both defendants as the defendants who were
      shooting guns on the 3,000-block of Water Street. Those two
      defendants were placed in photo spreads and on May 3rd, 2011
      both were identified by Wolbert.

      On May 11th, 2011[,] affidavits and arrest warrants were
      generated for both defendants. On May 23rd, 2011 Angel Suarez
      was arrested on the 2,000-block of North 7th Street and after
      being provided his [Miranda] warnings did provide a statement
      to Homicide admitting to his participation in the offense.

      On May 31st, 2011[,] at the intersection of Kensington and
      Allegheny[,] [Appellant] was arrested during a routine traffic stop.
      During that stop officers had recognized [Appellant] as wanted for
      murder. [Appellant] attempted to flee from the car but was
      apprehended a short distance away.

N.T. Guilty Plea, 7/1/13, at 60-63.

      At the conclusion of the summary, Appellant agreed that it was “a fair

account of what happened” and that he was pleading guilty because he was

guilty. Id. at 64-65. Following the plea, the trial court sentenced Appellant

to an aggregate sentence of twenty to forty years of imprisonment. Appellant

did not file a post-sentence motion or a direct appeal. On June 30, 2014,

Appellant filed the instant PCRA petition. In it he alleged the existence of

after-discovered evidence in the form of an unsworn June 26, 2014 statement

signed by his co-defendant, claiming that Appellant is innocent.

      Pursuant to the PCRA, to be entitled to relief upon a claim of after-

discovered evidence, the petitioner must plead and prove that his conviction

or sentence resulted from “[t]he unavailability at the time of trial of

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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. §

9543(a)(2)(vi). As our Supreme Court has held, § 9543(a)(2)(vi) is satisfied

where the PCRA petitioner establishes that:

      (1) the evidence has been discovered after trial and it 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 to impeach credibility; and (4) it would likely compel
      a different verdict.

Commonwealth v. Washington, 927 A.2d 586, 595 (Pa. 2007); see also

Commonwealth v. Abu–Jamal, 720 A.2d 79, 94 (Pa. 1998). Whether a

petitioner seeks the withdrawal of a guilty plea or a new trial, the burden of

proof is the same. Commonwealth v. Peoples, 319 A.2d 679 (Pa. 1974).

Therefore, any after-discovered evidence which would justify a new trial would

also entitle a defendant to withdraw his guilty plea. Id. at 681.

      When reviewing the decision to grant or deny a new trial on the basis of

after-discovered evidence, an appellate court determines 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). “Discretion is abused when the course pursued 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. Martinez, 917 A.2d 856, 859 (Pa.Super. 2007). “If a trial court erred in



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its application of the law, an appellate court will correct the error.”

Commonwealth v. Hernandez, 886 A.2d 231, 235 (Pa.Super. 2005).

       In the certification, Angel Suarez (“co-defendant”) avers that Appellant

is innocent because his friend Charlie was actually with him for the initial fight

and then his friend Pito engaged in the shooting alongside him. In his letter,

co-defendant alleges that he deliberately misled detectives during his

interview by giving them Appellant’s name, while confessing his own

involvement, because he was suffering withdrawal symptoms and in fear of

spending the rest of his life in prison.

       The PCRA court dismissed the petition without a hearing. It found that

the certification did not constitute after-discovered evidence because

Appellant could have obtained it earlier since he “would know, [and] must

have known whether or not he was at the crime scene.”                    N.T. Status

Conference, 4/27/18, at 7. I agree.

       First,   Appellant’s   co-defendant       was   a   known   witness   pre-plea.

Moreover, Appellant acknowledged on the record at the guilty plea that he had

engaged in the shooting incident that resulted in the victim’s death.

Therefore, as conceded by the majority,1 he cannot seek to withdraw his plea

by alleging that he lied at his plea hearing. See, e.g., Commonwealth v.

Pollard, 832 A.2d 517, 523 (Pa.Super. 2003) (reiterating the well-settled

____________________________________________


1 The majority relies on this principle in its analysis of Appellant’s first two
ineffectiveness claims, yet ignores it in its discussion of this issue. See
Majority Memorandum at 8.

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principle that a person who elects to plead guilty is bound by the statements

he makes in open court while under oath, and may not later assert grounds

for withdrawing the plea which contradict the statements he made at his plea

colloquy).

      The majority concludes that, based on co-defendant’s previous

statement to police that Appellant was one of the shooters, this letter amounts

to a recantation and that an evidentiary hearing is needed. However, the

majority is too quick to accept co-defendant’s statement at face value, since

nothing in the guilty plea factual summary indicates that the co-defendant

ever implicated Appellant pretrial. As such, I discern no abuse of discretion

in the PCRA court’s conclusion that the outcome would not have been different

even with the testimony of Appellant’s co-defendant.       Appellant and co-

defendant chose to discharge their firearms at someone while innocent

bystanders were in their immediate presence. Their intended target was co-

defendant’s father. Not surprisingly, Appellant was identified from a photo

array by multiple eyewitnesses, including one of his targets, Mr. Wolbert. The

eyewitness identifications, along with Appellant’s own admission of criminal

culpability, resulted in overwhelming evidence of Appellant’s guilt. Thus, an

isolated statement by Appellant’s co-defendant over a year after the guilty

plea was entered is not enough to overcome the substantial evidence of

Appellant’s guilt.

      For the above reasons, I would affirm the PCRA court’s order dismissing

Appellant’s PCRA petition without a hearing.

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