J-A35003-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                         Appellee

                    v.

CORNELL POINTER,

                         Appellant                     No. 1918 WDA 2014


     Appeal from the Judgment of Sentence Entered October 28, 2014
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0004299-2011


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

MEMORANDUM BY BENDER, P.J.E.:                     FILED DECEMBER 29, 2015

      Appellant, Cornell Pointer, appeals from the judgment of sentence of

life imprisonment, without the possibility of parole, imposed after a jury

convicted him of second-degree murder, attempted murder, robbery, and

criminal conspiracy. After careful review, we affirm.

      The trial court set forth the facts of this case, as follows:
             On February 16, 2011[,] Waishard White wanted to
      purchase 1-2 pounds of marijuana, and to accomplish that he
      contacted Elisha Jackson that afternoon to put him in contact
      with a possible local source/seller of marijuana. Jackson was a
      woman with whom White had been intimately involved … in the
      past, and who had also provided him with sources of marijuana
      prior to that day.

            During the late morning and early afternoon, Jackson was
      with her then current boyfriend, [Appellant], and his close friend
      and associate, D’Andre Black, in the Everton area of the City of
      Pittsburgh. Everton was a small (two building) housing project
      that was relatively isolated and heavily wooded on all sides.
      During the early afternoon [Appellant] and Black drove her to a
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     bus stop so that she could get a bus to downtown Pittsburgh.
     That afternoon while downtown, Jackson received White’s call
     and she in turn contacted Black, who was still with Appellant,
     regarding White’s desire to purchase marijuana. Jackson made
     Black aware of White’s desire to buy 1-2 pounds of marijuana
     and asked Black if she could give White his phone number.
     Although Black did not have any marijuana to sell, he told
     Jackson that she could give White his number and he would
     handle it - that “they were going to get out on them[.”]

            White and a friend, Jemar Stenhouse, contacted Black, and
     following a series of phone conversations that late afternoon
     White and Stenhouse agreed to purchase two pounds of
     marijuana from Black in Everton for $2,500. Following the final
     conversation Black turned to [Appellant] and stated that, “I have
     a lick [robbery] set up for us[.”] [Appellant] replied, “Let’s do
     it[.”]

           Since neither [Appellant] [n]or Black had any marijuana,
     they decided to purchase an ounce of marijuana and arrange it
     in a bag to make it appear to be the two pounds sought by White
     and Stenhouse. [Appellant] and Black believed that such a
     measure was necessary to lure White and Stenhouse out of their
     car when they arrived in Everton. They undertook this artifice in
     the apartment of Jocelyn Simmons, who was a mutual friend of
     both [Appellant] and Black.        Part of their plan included
     [Appellant’s] arming himself with a firearm, and he left the
     apartment during this time and returned with an AK-47. Black’s
     role was to get White and Stenhouse out of their car and close to
     the entrance of the building once they arrived in the Everton
     complex; [Appellant] was then to come out of the building with
     the AK-47, order them to the ground and take their money.

           White and Stenhouse arrived in Everton in Stenhouse’s
     vehicle in the early evening and phoned Black, who came outside
     Simmons’ residence and spotted the vehicle. Black waved to
     White and Stenhouse and in response they parked the vehicle,
     got out, and approached Black.          Black recognized both
     Stenhouse and White as persons he knew from the Wilkinsburg
     area, a nearby community.         Although he now had some
     reservations about the robbery, Black nonetheless led them
     toward the entrance to Simmons’ building.

          As the three men approached the front door of the building
     [Appellant] burst out of the building brandishing the AK-47 and


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      ordered White and Stenhouse to the ground. White immediately
      turned and ran toward the parked vehicle but was pursued and
      shot one time by Appellant, causing him to fall to the ground.
      Stenhouse then fled in a different direction, only to be pursued
      and shot by Appellant. Stenhouse received a grazing wound to
      his left chest but managed to escape by diving over a hill and
      fleeing into the heavily wooded area behind the building.
      Stenhouse found his way to a nearby street where a woman on
      her porch allowed him to use her phone. Stenhouse contacted
      White’s brother, Meijour, and told him that Waishard had been
      shot in Everton. Meijour, along with Waishard’s father, drove to
      Stenhouse’s location, picked him up and drove to the Everton
      complex. However, upon their arrival less than an hour after the
      shooting, neither Waishard nor the vehicle were there.

            The vehicle was gone because Black drove the vehicle
      away immediately after the incident, leaving it in a shopping
      center in a neighboring community where it was recovered by
      Pittsburgh police several hours later. Pittsburgh police were
      contacted and began an investigation that included an
      unsuccessful search of the area for White. Two days later,
      February 18, 2011, two persons walking on a street below
      Everton observed what they believed to be a body in the woods.
      Police then discovered White’s body near a path that led through
      the heavily wooded area behind Everton to the street below.

            The autopsy indicated that White died of a single gunshot
      wound to the arm and trunk. The bullet transected many blood
      vessels including one major blood vessel, the subscapular artery,
      and caused contusions of upper and middle lobes of White’s
      lung.   The resultant internal bleeding caused cardiovascular
      collapse and a survivability period of only 10-15 minutes.

Trial Court Opinion (TCO I), 1/16/13, at 3-7 (citations to record omitted).

      On November 18, 2011, the jury convicted Appellant of second-degree

murder, robbery, and criminal conspiracy. On February 16, 2012, the trial

court sentenced Appellant to a period of life imprisonment, without the

possibility of parole, for his conviction of second-degree murder, and five to




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ten years’ incarceration on each of the other two convictions, to be served

consecutively.

       Shortly thereafter, Appellant filed a post-sentence motion. On April 2,

2012, he filed a supplemental post-sentence motion, which incorporated the

earlier motion and sought, among other things, an evidentiary hearing based

upon after-discovered evidence consisting of a letter from his co-conspirator,

Black, to Appellant’s counsel.          The letter included a recantation of the

testimony that Black gave at Appellant’s trial. The trial court did not hold a

hearing on Appellant’s motion, instead allowing it to be denied by operation

of law on June 26, 2012.

       Appellant filed a timely appeal, and in an unpublished memorandum

decision issued on December 9, 2013, this Court vacated his judgment of

sentence and remanded for the court to conduct a hearing on Appellant’s

motion    for   a   new     trial   based   on    after-discovered   evidence.   See

Commonwealth           v.    Pointer,       No.   1154   WDA     2012,    unpublished

memorandum (Pa. Super. filed Dec. 9, 2013).1                Prior to the trial court’s

holding the evidentiary hearing, Appellant filed a motion requesting the trial

judge to recuse, which the judge denied that same day.               On October 16 th


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1
  We also noted that Appellant’s sentence was illegal, as “the court imposed
a separate sentence for the crime of robbery, which merged with the crime
of second-degree murder for sentencing purposes.” Id. at 14 n.2. We
suggested that the trial court consider this error if it ultimately resentenced
Appellant on remand.



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and 28th of 2014, the court conducted the hearing on Appellant’s after-

discovered evidence claim. At the close thereof, the court denied Appellant’s

motion for a new trial and resentenced him to a term of life imprisonment,

without the possibility of parole, for his murder conviction, as well as a

concurrent term of five to ten years’ incarceration for his offense of

conspiracy.

     Appellant filed a timely notice of appeal, and presents the following

two issues for our review:

     I. Whether the trial court abused its discretion in not recusing
     itself from the evidentiary hearing ordered by this Honorable
     Court on remand when, based on the totality of the
     circumstances, there was an obvious appearance of prejudgment
     and prejudice on the part of the trial court regarding the merits
     of [Appellant’s] request for a new trial based on after-discovered
     evidence?

     II. Whether the trial court erred in not granting [Appellant] a
     new trial based on after-discovered evidence when Black was the
     only witness who directly implicated [Appellant] in the crimes,
     but the sum and substance of his testimony—both at
     [Appellant’s] trial and at the evidentiary hearing—was so
     unbelievable and incredible in its nature and character that a
     different verdict would likely result following a new trial?

Appellant’s Brief at 6 (emphasis omitted).

     Appellant first avers that the trial court erred by denying his motion to

recuse.
            Our standard of review of a trial court's determination not
     to recuse from hearing a case is exceptionally deferential. We
     recognize that our trial judges are honorable, fair and
     competent, and although we employ an abuse of discretion
     standard, we do so recognizing that the judge himself is best
     qualified to gauge his ability to preside impartially.


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         The party who asserts that a trial judge should recuse
         bears the burden of setting forth specific evidence of bias,
         prejudice, or unfairness. Furthermore, a decision by the
         trial court against whom the plea of prejudice is made will
         not be disturbed absent an abuse of discretion.

Commonwealth v. Harris, 979 A.2d 387, 391-92 (Pa. Super. 2009)

(citations and internal quotation marks omitted).    Our Supreme Court has

also directed:

      If a party questions the impartiality of a judge, the proper
      recourse is a motion for recusal, requesting that the judge make
      an independent, self-analysis of the ability to be impartial. If
      content with that inner examination, the judge must then decide
      whether his or her continued involvement in the case creates an
      appearance of impropriety and/or would tend to undermine
      public confidence in the judiciary. This assessment is a personal
      and unreviewable decision that only the jurist can make. Once
      the decision is made, it is final....

Commonwealth v. Druce, 848 A.2d 104, 108 (Pa. 2004) (citations and

internal quotation marks omitted).

      Here, Appellant contends that “there was an obvious appearance of

prejudgment and prejudice on the part of the trial court regarding

[Appellant’s] claim of after-discovered evidence.” Appellant’s Brief at 31. As

demonstrative of this ‘obvious’ appearance of prejudice, Appellant points to

language set forth by the trial court in the Pa.R.A.P. 1925(a) opinion it filed

in response to Appellant’s first appeal before this Court. Therein, the court

offered the following explanation for denying, without a hearing, Appellant’s

motion for a new trial based on the after-discovered evidence of Black’s

recantation:




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           [A]t the time of the purported recantation[,] Black had on
     three occasions, twice under oath and once in a recorded
     statement, given a detailed account of Appellant’s and his own
     actions. Consequently[,] Black’s post sentencing recantation
     was not a valid basis for granting Appellant a new trial or
     evidentiary hearing on the matter.

          The Pennsylvania Supreme Court has stated that,

          It is well settled that recanting testimony is exceedingly
          unreliable, and it is the duty of the court to deny a new
          trial where it is not satisfied that such testimony is true.
          There is no less reliable form of proof especially when it
          involves an admission of perjury.

     Commonwealth v. Gaddy, 424 A.2d 1268, 1269 (Pa. 1981)
     (citations and quotations omitted).

            Black’s attempt to exonerate his close friend after he had
     received the benefit of his bargain merited no further attention
     of this Court. See Commonwealth v. Parker, 431 A.2d 216,
     218 (Pa. 1981) (unless there has been a clear abuse of
     discretion a trial court’s denial of [a] motion for a new trial based
     on after-discovered evidence will not be disturbed).

TCO I at 18-19.

     Appellant maintains that the court’s opinion demonstrates that, “even

without the benefit of an evidentiary hearing to assess whether Black’s post-

sentencing claim (that [Appellant] was innocent and not involved in the

crimes)   was     truthful,   honest   and   sincere,   the   trial   court   simply

predetermined that Black was an inherently unreliable, incredible, and

unbelievable witness.” Appellant’s Brief at 31 (citation omitted). Appellant

asserts that the court’s opinion created an appearance of prejudice and

‘prejudgment’ that warranted the court’s recusal. Because the court denied

Appellant’s motion to recuse, Appellant maintains that he “must be afforded

a new evidentiary hearing before a different judge.” Id. at 32.


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      Initially, we acknowledge that the trial court improperly denied

Appellant’s after-discovered evidence motion without first conducting a

hearing to assess Black’s credibility.   See Pointer, No. 1154 WDA 2012,

unpublished memorandum at 11. However, in Appellant’s initial appeal, we

corrected that error by directing the trial court to conduct such a hearing.

Appellant cites no case law supporting the notion that the court’s error, in

and of itself, required the court to recuse on remand. Moreover, as the trial

court states in its most recent opinion, “[n]othing of record indicated that

the [t]rial [c]ourt would not be able to independently assess the credibility of

the after-discovered evidence at an evidentiary hearing.” Trial Court Opinion

(TCO II), 4/13/15, at 9. Our review of the record confirms the court’s claim.

      Additionally, the record also does not support Appellant’s assertion

that the court had an appearance of impropriety. However, even if we were

to accept that claim, we would decline to give Appellant the requested relief

of a new hearing, given Black’s testimony at the evidentiary hearing

conducted on October 16, 2014. There, Black stated:

      [The Commonwealth:] You wrote this letter to [Appellant’s]
      lawyer basically saying that what you testified to at trial was not
      true? Is that basically what this letter says?

      [Black:] Correct.

      [The Commonwealth:] Whose idea was it to have this letter
      written?

      [Black:] It was mine.

      [The Commonwealth:] Okay. Why did you have that idea?



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      [Black:] Because like I knew [Appellant] and I just felt bad, so to
      help him out to like not give him life [in prison] and to do what I
      can to give it back.

      [The Commonwealth:] Are the things you wrote in this letter
      true?

      [Black:] No.

      [The Commonwealth:] When you testified at [Appellant’s] trial in
      front of the jury, did you tell the truth?

      [Black:] Yes.

      [The Commonwealth:] And, Mr. Black, the person that acted
      with you in this botched robbery, the person that killed Waishard
      White, is that [Appellant]?

      [Black:] Correct.

N.T. Hearing, 10/16/14, at 8-9. In light of Black’s testimony, we fail to see

what purpose would be served by granting Appellant a new evidentiary

hearing before a different judge.      Thus, Appellant’s first issue is meritless

and warrants no relief.

      In Appellant’s second issue, he avers that the court abused its

discretion by denying his motion for a new trial based on the after-

discovered evidence of the letter containing Black’s recantation.

      When we examine the decision of a trial court to grant a new
      trial on the basis of after-discovered evidence, we ask only if the
      court committed an abuse of discretion or an error of law which
      controlled the outcome of the case. 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. If a trial court erred
      in its application of the law, an appellate court will correct the
      error.




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

(internal citations and quotation marks omitted).

      In rejecting Appellant’s after-discovered evidence claim, the trial court

began by discussing the following legal authority that guided its decision:

      In order to prevail on a motion for [a] new trial based on after-
      discovered evidence, the defendant must establish that the
      evidence:

         (1) could not have been obtained 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)
         would likely result in a different verdict if a new trial were
         granted.

      Padillas, 997 A.2d at 363. In evaluating the fourth prong of
      this test, the court must consider the integrity of the proffered
      after-discovered evidence, the motive of the individual offering
      the evidence, and the overall strength of the evidence
      supporting the original conviction. [Id.] at 365. With respect to
      recantation testimony offered as after-discovered evidence, the
      Pennsylvania Supreme Court has held:

         Recantation testimony is extremely unreliable. When the
         recantation involves an admission of perjury, it is the least
         reliable form of proof. The trial court has the responsibility
         of judging the credibility of the recantation. Unless the
         trial court is satisfied that the recantation is true, it should
         deny a new trial. An appellate court may not disturb the
         trial court’s determination absent a clear abuse of
         discretion.

      Commonwealth v. Henry, 706 A.2d 313, 321 (Pa. 1997)
      (citations omitted).

TCO II at 10.

      Under this legal framework, the trial court then stated:

           Following Appellant’s conviction, co-defendant D’Andre
      Black was housed at SCI Camp Hill at the same time as

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       Appellant. Black subsequently wrote a letter to Appellant’s
       counsel stating that Black’s testimony at Appellant’s trial, which
       implicated Appellant as the individual who shot and killed
       Waishard White, was false. Appellant filed a motion for [a] new
       trial based on this after-discovered evidence. At the evidentiary
       hearing, Black stated that the contents of the letter were false,
       that his testimony at trial was accurate, and that he only wrote
       the letter because he felt bad that Appellant had received a
       sentence of life imprisonment. The [t]rial [c]ourt found [Black’s]
       recantation to be false, and thus properly denied Appellant’s
       motion for a new trial. See Commonwealth v. Anderson, 353
       A.2d 384, 386 (Pa. 1976) (no abuse of discretion where trial
       court denied motion for [a] new trial based on after-discovered
       evidence    where     witness    recanted   the   after-discovered
       recantation testimony at an evidentiary hearing and stated that
       his testimony at trial implicating the defendant was the truth).

Id. at 11.

       Appellant does not explicitly challenge the trial court’s disbelief of

Black’s recantation, presumably because Black’s testimony at the evidentiary

hearing would make such an argument weak, at best.2 Instead, Appellant

first emphasizes that Black has changed his story several times throughout

the course of this case.       Appellant then contends that if a new jury were

presented with Black’s prior variations of the robbery and shooting, along

with his most recent recantation in the letter to Appellant’s counsel, and his

____________________________________________


2
  In any event, we note that we ascertain no abuse of discretion in the trial
court’s decision to disbelieve Black’s recantation, which he explained and
retracted at the evidentiary hearing. See Anderson, 353 A.2d at 386 (“The
court below, having conducted an evidentiary hearing concerning the
recantations with an opportunity to observe and judge the demeanor and
credibility of the witness…cannot be said to have abused its discretion in
denying appellant a new trial.”).




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recantation of that recantation in his testimony at the evidentiary hearing,

the jury would find Black “so unbelievable and incredible” that it would

acquit Appellant. Id. at 35.

      Appellant’s argument does not entitle him to the relief of a new trial

under the after-discovered evidence test set forth, supra.     See Padillas,

997 A.2d at 363. Appellant is requesting that this Court grant him a new

trial so he may use Black’s recantation, and his subsequent withdrawal of

that recantation, solely to impeach Black’s credibility.      In this regard,

Appellant fails to satisfy the third prong of the after-discovered evidence

test. Therefore, he is not entitled to a new trial based on this argument.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/29/2015




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