J-S19013-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

CHRISTIAN BUENO,

                          Appellant                No. 1685 EDA 2015


              Appeal from the PCRA Order Entered May 13, 2015
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0000791-2011


BEFORE: BENDER, P.J.E., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                       FILED APRIL 19, 2016

      Appellant, Christian Bueno, appeals from the May 13, 2015 order

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

§§ 9541-9546. After careful review, we affirm.

      The PCRA court set forth the underlying procedural history of this cas

as follows:
             On September 20, 2011, [Appellant] entered a plea of
      guilty to the charge of Criminal Homicide – Murder of the first
      degree (18 Pa.C.S.A. § 2501(a)). A Pre-Sentence Investigation
      report was waived and [Appellant] wished to immediately
      proceed to sentencing. On September 20, 2011, [Appellant] was
      sentenced to a term of life imprisonment in a state correctional
      institution. Thereafter, on September 30, 2011, [Appellant] filed
      a Post Sentence Motion in the form of a Motion to Withdraw
      Guilty Plea pursuant to Pennsylvania Rule of Criminal Procedure
      Rule 720. After [a] hearing, this motion was denied by this
      [c]ourt on October 10, 2011. [Appellant’s] appeal followed on
      November 8, 2011.        Thereafter, this [c]ourt’s judgment of
      sentence was affirmed by the Superior Court of Pennsylvania on
      August 7, 2012. [Commonwealth v. Bueno, 60 A.3d 560 (Pa.
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        Super. 2012) (unpublished memorandum).] On September 6,
        2012, [Appellant] filed a petition for allowance of appeal with the
        Supreme Court of Pennsylvania that was denied on January 9,
        2013. [Commonwealth v. Bueno, 62 A.3d 377 (Pa. 2013).]

PCRA Court Opinion (PCO), 5/13/15, at 1-2.

        Appellant filed a timely, pro se PCRA petition on January 9, 2014.

Counsel was appointed, but was subsequently granted leave to withdraw

after    filing   a   petition   and   ‘no    merit’    letter   in     accordance    with

Commonwealth            v.   Turner,     544     A.2d      927        (Pa.   1998),   and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).                         Appellant

retained private counsel who filed several amended petitions on his behalf

over the ensuing months. After multiple continuances, a PCRA hearing was

conducted on March 26, 2015.                 Based on the evidence presented at

Appellant’s trial, and at the PCRA evidentiary hearing, the court made the

following findings of fact, which Appellant does not dispute:

              Pursuant to the trial testimony, as well as the recitation of
        facts that were acknowledged at both the guilty plea of
        [Appellant] … and Co-Defendant Dennis Velez, the circumstances
        that give rise to the within matter occurred on September 8,
        2007. On that date, at approximately 1:00 A.M., [Appellant] …
        was with Co-Defendant Dennis Velez at the house of Reina
        Lopez, … Velez’[s] sister. … Velez requested that his girlfriend,
        Amarilys Soto, drive him and [Appellant] to Diamonz Night Club,
        an alternative lifestyle club, located at 1913 West Broad Street,
        Allentown, Lehigh County, Pennsylvania, for the purpose of
        robbing someone to acquire money.           Upon their arrival at
        Diamonz Night Club, they encountered Debra Robberson
        sleeping in her green minivan.1        [Appellant], armed with a
        handgun, approached Ms. Robberson’s vehicle and opened the
        vehicle door. A struggle ensued between [Appellant] and Ms.
        Robberson. At that time, … Velez advanced with his shotgun in
        hand, and hit Ms. Robberson in the face with it, causing her to



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     fall backwards. [Appellant] then shot Debra Robberson in the
     chest, killing her.
        1
          Ms. Robberson had consumed an excessive amount of
        alcohol that night while celebrating her birthday, and she
        fell asleep in her vehicle.

            On September 15, 2011, … Velez entered a guilty plea to
     Murder of the Third Degree and Conspiracy to Commit Robbery.
     The terms of the guilty plea were that the charges would run
     concurrently and that he would testify truthfully at [Appellant’s]
     trial. At that time, he acknowledged the facts as set forth by the
     Commonwealth, which were consistent with his trial testimony
     against [Appellant] (and as recited above) …. Specifically, …
     Velez acknowledged that [Appellant] shot and killed Debra
     Robberson.      Thereafter, on October 21, 2011, [Velez] was
     sentenced to a term of state imprisonment of not less than
     twenty (20) years nor more than forty (40) years. At the time of
     the sentencing, … Velez reiterated that he testified truthfully at
     [Appellant’s] trial, and that it was [Appellant] who had killed
     Robberson.

           Nevertheless, … Velez testified at the [PCRA] evidentiary
     hearing on March 26, 2015, that he had lied at the time of
     [Appellant’s] trial. He indicated that [Appellant] did not shoot
     Debra Robberson, but that he did. … Velez further testified that
     [Appellant] was drunk and asleep in the back seat of the car. In
     addition, … Velez testified that he instructed two (2) people to go
     to [Appellant’s] mother’s residence to threaten her and to advise
     her that her son should take the rap for the murder of Debra
     Robberson or there would be consequences. The [c]ourt did not
     find any of … Velez’s testimony to be credible. Of note, after …
     Velez testified [at the PCRA hearing] and was being led out of
     the courtroom, he said to [Appellant], “Call me.” This was
     audible to the [c]ourt and placed on the record at the time.

           Manuel Gonzalez, a prisoner at SCI-Fayette as a result of a
     conviction of a charge of Murder of the Third Degree in Lehigh
     County, testified at the time of the evidentiary hearing. He
     stated that when he was in the "hole” in Lehigh County Prison
     with … Velez in March of 2012, … Velez told him that “he killed a
     girl who was a dike in the parking lot of a club” and he told
     authorities that “Low Rider” did it so he would get less time.
     Manuel Gonzalez testified that he did not know the real identity
     of “Low Rider.” In fact, Manuel Gonzalez testified that it was not


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      until he spoke two (2) years later with a fellow inmate at SCI-
      Fayette, Hector Maldonado, that he learned that “Low Rider” was
      [Appellant].   Specifically, Manuel Gonzalez testified at the
      evidentiary hearing that during a conversation between him and
      Hector Maldonado about … Velez, the name “Low Rider” came up
      and Hector Maldonado told Manuel Gonzalez that this was
      [Appellant]. This conversation took place around September of
      2014. The [c]ourt did not find Manuel Gonzalez’s testimony to
      be credible.

            Hector Maldonado, a prisoner at SCI-Greene as a result of
      a conviction of a charge of Murder of the First Degree arising out
      of Philadelphia County, also testified at the time of the
      evidentiary hearing. Hector Maldonado testified that when he
      was at SCI-Fayette, he had a conversation with his cell mate,
      Manuel Gonzalez, about people who they knew from the
      Allentown area, as well as people who were serving a life
      sentence but were innocent. At this time, Manuel Gonzalez
      mentioned [Appellant] as falling into that category. Contrary
      and inconsistent with Manuel Gonzalez’s sworn testimony at the
      time of the hearing, Hector Maldonado testified that Manuel
      Gonzalez used [Appellant’s] name when referring to him. This
      [c]ourt did not find Hector Maldonado’s testimony to be credible.

             In addition, [Appellant’s] mother, Jackeline Moncayo,
      testified at the evidentiary hearing.        She indicated that
      approximately two (2) weeks before [Appellant’s] trial
      commenced, three (3) unidentified men came to her residence in
      Brooklyn, New York[,] to threaten her. Specifically, these men
      told her that her son better lose his trial or they would “take
      care” of them. Ms. Moncayo failed to mention this incident to
      anyone until September 20, 2011, the day that [Appellant]
      entered his guilty plea in the within matter after Attorney
      Matthew Potts advised him that the jury trial was going poorly
      for him. This [c]ourt did not find Jackeline Moncayo’s testimony
      to be credible.

PCO at 3-6 (citations to the record omitted).

      Based on these factual findings and credibility determinations, the

PCRA court denied Appellant’s petition.    Appellant filed a timely notice of

appeal, and also timely complied with the court’s order to file a Pa.R.A.P.



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1925(b) concise statement of errors complained of on appeal.        Herein, he

presents one issue for our review:

      The PCRA court erred because there was sufficient credible
      evidence in the record corroborating Dennis Velez’s PCRA
      testimony that he, in fact, shot Debra Robberson, not
      [Appellant]. This after-discovered evidence proves the factual
      basis of [Appellant’s] guilty plea is invalid and unconstitutional,
      that [Appellant] is legally innocent of first-degree murder, and
      that [Appellant] has satisfied the injustice standard to have his
      guilty plea withdrawn. U.S. Const. amends. V, VI, VII, XIV; Pa.
      Const. art. 1, §§ 1, 9.

Appellant’s Brief at 2.

      To begin, we note:

      We review an order denying [] collateral relief under the PCRA to
      determine whether evidence of record supports the findings of
      the PCRA court and whether its legal conclusions are free of
      error. Commonwealth v. Mitchell, ––– Pa. ––––, 105 A.3d
      1257, 1265 (2014). “The PCRA court's credibility determinations,
      when supported by the record, are binding on this Court;
      however, we apply a de novo standard of review to the PCRA
      court's legal conclusions.” Id. (quoting Commonwealth v.
      Roney, 622 Pa. 1, 79 A.3d 595, 603 (2013)).

Commonwealth v. Burton, 121 A.3d 1063, 1067 (Pa. Super. 2015) (en

banc).

      On appeal,     Appellant presents    a lengthy argument,      essentially

presenting two claims: (1) that his plea was unlawfully induced (and, thus,

the PCRA court should have allowed him to withdraw it) where it was

premised on facts proven to be untrue by Velez’s recantation; and (2) that

Velez’s recantation constitutes after-discovered evidence warranting the

withdrawal of his plea and a new trial. We will address each of these claims,

in turn.

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       First, Appellant correctly acknowledges that “[a]fter sentencing, a

defendant can move to withdraw his guilty plea, but only if he presents

evidence showing a ‘manifest injustice[.]’” Appellant’s Brief at 43 (quoting

Commonwealth v. Yeomans, 24 A.3d 1044, 1046 (Pa. Super. 2011)

(citation omitted).   Additionally, to be eligible for PCRA relief based on an

unlawful guilty plea, a petitioner must prove, by a preponderance of the

evidence, that his conviction resulted from “[a] guilty plea unlawfully

induced where the circumstances make it likely that the inducement caused

the petitioner to plead guilty and the petitioner is innocent.” 42 Pa.C.S. §

9543(a)(2)(iii).

       Here, we ascertain no ‘manifest injustice,’ or inducement underlying

Appellant’s plea, that would compel the PCRA court to allow him to withdraw

it.   The PCRA court found the testimony of Velez, and Appellant’s other

witnesses, to be not credible.     The record supports the court’s credibility

determinations.     Notably, Velez testified at Appellant’s trial that Appellant

shot the victim. Velez also stated this fact at his guilty plea proceeding, and

at the time of his sentencing.     Additionally, at Appellant’s own guilty plea

proceeding, he “admitted his role in the homicide and apologized to the

victim’s family.”     PCO at 8 n.3.     The PCRA court stressed that, after

apologizing to the victim’s family, Appellant stated, “And that comes from

the heart because if I knew it was a girl I would have never done it. So I

just want to say that to be clear about that.”     Id. at 8-9 n.3 (quoting N.T.

Plea/Sentencing, 9/20/11, at 18) (emphasis added).        The PCRA court also

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provided a detailed discussion pertaining to the voluntariness of Appellant’s

plea, and concluded that “[t]he record clearly indicates that [Appellant]

understood the consequences of his pleading guilty.” See PCO at 7-8. This

Court also reviewed the voluntariness of Appellant’s plea on direct appeal,

and concluded that it was valid and not unlawfully induced.                See

Commonwealth v. Bueno, No. 3039 EDA 2011, unpublished memorandum

at 4-7 (Pa. Super. filed August 7, 2012).

      In light of this record, we ascertain no abuse of discretion by the PCRA

court in denying Appellant’s claim that his guilty plea was unlawfully induced

or invalid based on Velez’s unreliable recantation. The PCRA court was free

to credit Velez’s earlier statements and testimony naming Appellant as the

shooter, and to reject his later version of events in his recantation.

Likewise, the PCRA court was permitted to disbelieve the testimony of the

other witnesses presented at the evidentiary hearing. Thus, Appellant’s first

argument is meritless.

      Second, Appellant contends that Velez’s recantation constitutes after-

discovered evidence warranting a new trial.

      In Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592
      (1973), the [S]upreme [C]ourt held that a court should allow the
      withdrawal of a guilty plea after sentencing to correct a manifest
      injustice to the defendant. Subsequently, the supreme court
      determined that any after-discovered evidence which would
      justify a new trial would also satisfy the requirements of Starr,
      supra. Commonwealth v. Peoples, 456 Pa. 274, 319 A.2d
      679 (1974). For a defendant to be entitled to a new trial where
      he has produced after-discovered evidence, “the evidence must
      have been discovered after the trial and must be such that it


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       could not have been obtained at the trial by reasonable
       diligence, must now be cumulative or merely impeach credibility,
       and must be such as would likely compel a different result.”
       Commonwealth v. Bulted, 443 Pa. 422, 279 A.2d 158 (1971).

Commonwealth v. Crawford, 427 A.2d 166, 175 (Pa. Super. 1981).

       Here, Appellant has not proven that a manifest injustice will result if

he is precluded from withdrawing his plea, or that Velez’s unreliable

recantation would likely compel a different result if Appellant were to

withdraw his plea and proceed to trial. Again, the PCRA court “found that

the witnesses who testified on [Appellant’s] behalf at the evidentiary hearing

were not credible and were completely and utterly unreliable.” PCO at 8-9

(emphasis in original). The PCRA court “wholly reject[ed] their testimony,”

including that of Velez.       Because the court’s credibility determinations are

supported by the record, as discussed supra, they are binding on this Court.

Burton, 121 A.3d at 1067 (citation omitted).             Accordingly, Appellant’s

argument that he is entitled to proceed to trial based on the after-discovered

evidence of Velez’s recantation is meritless.1
____________________________________________


1
  Appellant argues that the outcome of the proceedings would have been
different because, had he known that Velez would recant, he would not have
pled guilty. See Appellant’s Brief at 48 n. 136 (stating, “if a defendant
believes that, had the new facts been available to him before he chose to
plead guilty, he would not have pled guilty, relief must be granted by
withdrawing his guilty plea, assuming of course, the new facts prove a
manifest injustice”). Appellant seems to be utilizing the standard for proving
that prejudice resulted from ineffective assistance of counsel in the context
of a guilty plea. See Commonwealth v. Fears, 86 A.3d 795, 807 (Pa.
2014) (“To prove prejudice, appellant must prove ‘he would not have pled
guilty and would have achieved a better outcome at trial.’”) (citation
omitted). Even if this is the appropriate standard to apply herein, and we
(Footnote Continued Next Page)


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      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/19/2016




                       _______________________
(Footnote Continued)

accepted that Appellant would not have pled guilty knowing that Velez would
recant, he still cannot demonstrate a manifest injustice, or that he would
have achieved a better outcome at trial based on Velez’s incredible
testimony. See id.




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