J-S20011-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RAMSEY WOOD

                            Appellant                 No. 662 WDA 2015


                   Appeal from the PCRA Order April 16, 2015
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0011834-2002
                                          CP-02-CR-0012068-2002


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                              FILED APRIL 26, 2016

        Appellant, Ramsey Wood, appeals from the order entered April 16,

2015, in the Court of Common Pleas of Allegheny County, which denied

Wood’s Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546,

petition. We affirm.

        A panel of this Court summarized the facts behind Wood’s convictions

as follows.

              On July 24, 2002 Wayne Staples, the victim, and Ramsey
        Wood were patrons of Reese’s Supper Club, located on Fifth
        Street near Viola in Duquesne, Pennsylvania. Locust Alley runs
        behind the club. According to witnesses an argument or
        disagreement broke out between the two. Staples and his
        cousin, James Butler, left the club. Wood exited the club shortly
        thereafter, complaining someone had called his girlfriend a bitch.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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      Butler saw Wood pull a silver automatic handgun from his
      waistband, aim it at Staples’ head and pull the trigger. This
      occurred on Locust Alley. This apparently triggered a gun battle,
      as the police recovered numerous shell casings and bullet
      fragments (from three separate 9 mm and one .45 caliber
      weapon).[FN1] Staples suffered a single, through and through
      gunshot wound to his head. The bullet entered in the area of his
      left temple and exited his body through [the] right side of his
      neck. The bullet fractured Staples’ top two cervical vertebrae
      before exiting. Staples died five days after being shot. The
      murder weapon was never located.

            In his defense, Wood presented several witnesses who
      claimed to have seen him at a convenience store in the
      Hazelwood section, some miles away from the murder scene, at
      the time of the shooting. These witnesses were members of a
      local church who testified they were bringing between 15-25
      children, ages 3 and up, who were members of the church drum
      corps, to the store for treats. They testified such trips were a
      regular occurrence. On the night in question, they testified they
      saw Wood at the convenience store at about 10:30 p.m. and
      Wood remained at the store for 15 to 20 minutes. On rebuttal,
      the Commonwealth presented the testimony of the store owner
      who stated she could remember no such regular visits by the
      witnesses and a large number of children.
           [FN1]
                   The other shooters were not identified.

Commonwealth v. Wood, 897 A.2d 524, at *2-3 (Pa. Super., filed Jan. 31,

2006) (unpublished mem.), appeal denied, 906 A.2d 1196 (Pa. 2006). A

jury convicted Wood of first degree murder and carrying a firearm without a

license.   On       February   18,   2004,    the   court   sentenced   Wood   to   life

imprisonment. This Court affirmed Wood’s judgment of sentence on appeal,

and the Pennsylvania Supreme Court denied allocatur. See Wood, supra.

      On October 13, 2006, Wood filed a pro se PCRA petition. Counsel was

appointed, and subsequently requested and was granted permission to

withdraw. New counsel was then appointed and an amended PCRA petition


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was filed on July 3, 2013. The PCRA court conducted an evidentiary hearing

on Wood’s amended petition on August 12 and 15, 2014. The PCRA court

ultimately denied Wood’s petition. This timely appeal followed.

      “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied,

Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013). “[Our] scope of review

is limited to the findings of the PCRA court and the evidence of record,

viewed in the light most favorable to the prevailing party at the PCRA court

level.” Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation

omitted). “[T]his Court applies a de novo standard of review to the PCRA

court’s legal conclusions.” Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa.

2011) (citation omitted).

      We proceed to address the merits of Wood’s claim that he is entitled to

a new trial based upon newly-discovered evidence. Wood claims that the

recently discovered testimony of eyewitnesses Antoine Strothers and Latel

Smith identifying Robert Felder as the individual who shot the victim

constitutes exculpatory evidence warranting a new trial. This newly

discovered testimony recants their testimony offered at trial.

      To obtain relief based upon newly-discovered evidence under the
      PCRA, a petitioner must establish that: (1) the evidence has
      been discovered after trial and it could not have been obtained


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      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. D’Amato, 856 A.2d 806, 823 (Pa. 2004) (citation

omitted). The     test is conjunctive;   the   defendant   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. See Commonwealth v. Pagan, 950

A.2d 270, 292 (Pa. 2008).

      “We acknowledge that, as a general matter, recantation evidence is

notoriously unreliable, particularly where the witness claims to have

committed perjury.” D’Amato, supra, at 825 (internal quotes and citation

omitted). See also Commonwealth v. McNeil, 487 A.2d 802, 807 n.4 (Pa.

1985) (opining that recantation evidence has often been recognized as one

of the least reliable forms of after-discovered evidence). “[A]n appellate

court may not interfere with the denial or granting of a new trial where the

sole ground is the alleged recantation of state witnesses unless there has

been a clear abuse of discretion.” Commonwealth v. Hammond, 953 A.2d

544, 561 (Pa. Super. 2008) (citation omitted).

      Wood attached to his amended PCRA petition affidavits of both Antoine

Strothers and Latel Smith, in which each attested that they observed Robert

Felder, now deceased, shoot the victim on the night of July 24, 2002. This

testimony differed markedly from that which the eyewitnesses offered at

trial for the defense.



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     At trial, Strothers testified that he was waiting in a car outside of the

nightclub on July 24, 2002 when he heard gunshots that hit his car window.

See N.T., Jury Trial, Nov. 19-25, 2003, at 568-75. Both Strothers and a

passenger were transported to the hospital, where Strothers informed the

police that he had not seen who fired the gun. See id. at 578. He further

stated that he had nothing to hide and that he was not afraid. See id. Smith

testified at trial that although he observed Wood at the nightclub on the

night of the shooting, he witnessed an unknown individual, not Wood, shoot

the victim. See id. at 658, 668-74.

     Both eyewitnesses effectively recanted their earlier trial testimony

several years after the event in question when they identified Robert Felder

as the shooter. A prerequisite to relief based upon a claim of recantation

evidence is that “the evidence upon which the relief is sought must be

credible to the trial court.” Commonwealth v. Loner, 836 A.2d 125, 135

(Pa. Super. 2003) (citation omitted). Here, the PCRA judge was the fact-

finder whose duty it was to determine the credibility of the victim's

recantation testimony. Not surprisingly, in its Rule 1925(a) opinion, the

PCRA court explicitly found Strothers’s and Smith’s recantation evidence to

be “inherently unreliable.” PCRA Court Opinion, 8/27/15 at 2. We find no

abuse of discretion. Consequently, we agree with the PCRA court that the

recantation testimony does not entitle Wood to a new trial.




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      Wood next asserts that trial counsel was ineffective by failing to call

his mother, Rhonda Wood, and grandmother, Dolores Powell, as witnesses in

support of his alibi defense. Wood claims that his mother and grandmother

would have placed him at home at the time the shooting occurred. Wood’s

claim does not warrant relief.

      “The law assumes that counsel was effective, and the burden is on

appellant to prove otherwise.” Commonwealth v. McSloy, 751 A.2d 666,

228 (Pa. Super. 2000). “To plead and prove ineffective assistance of counsel

a petitioner must establish: (1) that the underlying issue has arguable merit;

(2) counsel’s actions lacked an objective reasonable basis; and (3) actual

prejudice resulted from counsel’s act or failure to act.” Commonwealth v.

Stewart, 84 A.3d 701, 706 (Pa. Super. 2013) (en banc), appeal denied,

93 A.3d 463 (Pa. 2014) (citation omitted).

      “Generally, counsel’s assistance is deemed constitutionally effective if

he chose a particular course of conduct that had some reasonable basis

designed to effectuate his client's interests.” Commonwealth v. Spotz, 84

A.2d 294, 311 (Pa. 2014) (citation omitted). “Where matters of strategy and

tactics are concerned, [a] finding that a chosen strategy lacked a reasonable

basis is not warranted unless it can be concluded that an alternative not

chosen offered a potential for success substantially greater than the course

actually pursued.” Id. at 311-12 (citation and quotes omitted). A failure to




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satisfy any prong of the test will require rejection of the claim. See id. at

311.

       [I]n the particular context of the alleged failure to call witnesses,
       counsel will not be deemed ineffective unless the PCRA petitioner
       demonstrates: (1) the witness existed; (2) the witness was
       available; (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 was so
       prejudicial to petitioner to have denied him or her a fair trial.

Commonwealth v. Miner, 44 A.3d 684, 687 (Pa. Super. 2012) (citation

omitted).

       In rejecting Wood’s claim, the PCRA court determined that the

testimony of the proposed alibi witnesses was merely cumulative and would

only have corroborated the testimony of other witnesses already presented

at trial. See PCRA Court Opinion, 8/27/15 at 3. While we do not necessarily

agree with the court’s conclusion that the alibi testimony was merely

cumulative, as the testimony would have placed Wood at home closer to the

time of the shooting than the testimony offered by other alibi witnesses

called at trial, we agree that the absence of the testimony did not deny

Wood a fair trial.

       The Commonwealth established at trial that the shooting occurred at

approximately 11:45 p.m. See N.T., Jury Trial, Nov. 19-25, 2003, at 50,

200-01. As previously noted,         defense   witnesses placed Wood at a

convenience store for approximately twenty minutes that evening beginning

at approximately 10:20 p.m. At the PCRA evidentiary hearing, Wood’s



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mother testified that Wood left for the convenience store around 10-10:30

p.m., returned at approximately 11:00 p.m. and stayed home for the rest of

the   evening.   See   N.T.,   PCRA   Hearing,   8/12/14,   at   33-36.   Wood’s

grandmother testified similarly that Wood left for the convenience store

around 10:30 or 11 p.m., returned in approximately one half hour, and then

remained home. See id. at 47-50.

      Trial counsel admitted at the PCRA hearing that he was aware of this

testimony and that both witnesses were available, and indeed were

sequestered, for trial. See id. at 9-12. However, counsel explained that

there were other witnesses who testified that they had seen Wood at the

convenience store around the time of the shooting and that he believed that

testimony would have been sufficient to raise a doubt as to Wood’s presence

at the scene of the shooting. See id. at 15. Although counsel could not

specifically recall his thought process with respect to this case, he

additionally posited that he would not have called these particular witnesses

because, in his experience, jurors may see a bias when a mother and

grandmother or close family relations testify. See id. at 15-16.

      Counsel’s strategy, in declining to put forth the testimony of witnesses

whom the jury may perceive to be biased, is eminently reasonable. We are

further satisfied that counsel’s decision to not call Wood’s mother and

grandmother as alibi witnesses did not deny Wood a fair trial as other

witnesses who testified at trial placed Wood at the convenience store around


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the time of the murder.1 Accordingly, we do not find that counsel was

ineffective on this basis.

        Wood lastly claims that trial counsel was ineffective for providing

inaccurate       advice   regarding      a        plea   agreement     offered    by    the

Commonwealth. Wood contends that trial counsel erroneously advised him

that even if he rejected the plea agreement and was ultimately convicted at

trial, he would not receive any more time than contemplated in the plea

agreement to third degree murder. See Appellant’s Brief at 47.

        At the PCRA evidentiary hearing, trial counsel testified that although

he did not recall whether a plea offer had been made, he remembers that he

discussed with Wood the penalties he was facing, including that the penalty

for first degree murder was a life sentence. See N.T., PCRA Hearing,

8/12/14, at 102-03. The trial court explicitly credited counsel’s testimony.

PCRA     Court     Opinion,   8/27/15        at    3.    “The   PCRA   court’s   credibility

determinations are binding on this Court when they are supported by the

record.” Commonwealth v. Hutchinson, 25 A.3d 277, 284 (Pa. 2011)

(citation omitted). We therefore agree that Wood’s remaining ineffective

assistance of counsel claim is without merit.

        Based on the foregoing, we find no abuse of discretion in the PCRA

court’s order dismissing Wood’s PCRA petition.

____________________________________________


1
    Two eyewitnesses identified Wood as the shooter at trial.



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     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/26/2016




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