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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                     v.                  :
                                         :
JULIAN DAIN McDONALD,                    :         No. 1721 WDA 2013
                                         :
                          Appellant      :


               Appeal from the PCRA Order, September 25, 2013,
                in the Court of Common Pleas of Bedford County
                Criminal Division at No. CP-05-CR-0000328-2009


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND ALLEN, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED OCTOBER 14, 2014

        Julian Dain McDonald appeals from the order of September 25, 2013,

denying his PCRA1 petition. We affirm.

        On August 1, 2009, at approximately 8:47 a.m., Pennsylvania State

Police Trooper Steven Lucia stopped a silver Chrysler on the Pennsylvania

Turnpike for tailgating a mini-van.          Commonwealth v. McDonald,

Nos. 1765 & 1789 WDA 2010, unpublished memorandum at 2 (Pa.Super.

filed July 27, 2011).        Appellant was the passenger; his brother and

co-defendant, Michael McDonald, was the driver.      Id. at 3.   Trooper Lucia

testified that when appellant rolled down his window, he immediately

smelled an overwhelming odor of raw marijuana emanating from the vehicle.



1
    Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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Id. Neither appellant nor his brother could produce a valid driver’s license.

Id. at 3-4. The registration card identified the vehicle as an Alamo rental

vehicle. Id. at 4.

      Trooper Lucia testified that both men were extremely nervous.      Id.

Their hands were shaking uncontrollably; they were breathing heavily and

avoiding eye contact. Id. Appellant’s face was twitching, and the artery in

his neck was visibly pounding.   Id.   Trooper Lucia also observed in plain

view three cell phones, a GPS unit, a large amount of Red Bull energy

drinks, fast food wrappers, and a spray can of air freshener. Id. The rental

agreement provided to Trooper Lucia was expired; it indicated that the

vehicle had been rented in Philadelphia on July 20, 2009, and was to be

returned on July 28, 2009. Id. at 5. There was no indication that the terms

of the agreement had been extended. Id. Furthermore, the renter of the

vehicle was listed as Kelly Haranczak, who was not present.     Id.   Neither

appellant nor his brother was listed as an authorized driver of the Chrysler

vehicle. Id.

      When Trooper Lucia ran their driver’s licenses, he discovered that

appellant’s was suspended and Michael’s had expired.     Id.   Trooper Lucia

returned to the car and again smelled the “obvious overwhelming odor of

raw marijuana coming from the vehicle.” Id. at 6. Trooper Lucia informed

Michael that he was going to give him traffic warnings for following the

mini-van too closely and for driving with an expired license, but would not



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cite him. Id. Trooper Lucia asked Michael who had rented the Chrysler, and

he responded, “Kelly.” Id. at 7. Michael informed Trooper Lucia that Kelly

was his girlfriend. Id. Appellant also confirmed that Kelly had rented the

vehicle; however, he was unable to produce her last name.                  Id. at 8.

Trooper Lucia testified that both men appeared to be extremely nervous,

even though he had told them they would not be receiving a traffic citation.

Id. at 7-8.

       At this point, Trooper Lucia told appellant that he was smelling an odor

of marijuana coming from the vehicle, and asked if there was anything like

that in the vehicle; appellant replied, “No.” Id. at 8. Trooper Lucia asked

for consent to search the vehicle, which was denied.          Id.    Michael also

denied consent to search, indicating that he had “to be somewhere.” Id. at

9.    At that point, Trooper Lucia called for back-up and told appellant and

Michael that he intended to search the vehicle.          Id.        Trooper Lucia

discovered $1,080 in cash in a handbag in the back seat, and a large

cellophane wrapped bundle of suspected marijuana in the trunk. Id. at 10.

At the completion of the search, police recovered 177 pounds of marijuana.

Id.

       Appellant and Michael filed a joint motion to suppress physical

evidence      which   was   denied.   They   proceeded   to    a    jury    trial   as

co-defendants, and were found guilty of one count each of possession with

intent to deliver a controlled substance (“PWID”), possession of drug



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paraphernalia, and criminal conspiracy.    On October 18, 2010, they were

each sentenced to an aggregate of 6 to 11 years’ incarceration. 2 They filed

separate notices of appeal; however, the cases were consolidated on appeal.

In an unpublished memorandum filed July 27, 2011, this court affirmed the

judgments of sentence; and on February 23, 2012, our supreme court

denied allowance of appeal. Commonwealth v. McDonald, 433 WAL 2011

(Pa. filed February 23, 2012) (per curiam).

     On March 15, 2012, appellant filed a timely pro se PCRA petition.

Counsel was appointed, and filed amended petitions on appellant’s behalf.

Following an evidentiary hearing, at which appellant and his brother Michael

testified, appellant’s petition was denied.    This timely appeal followed.

Appellant has complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the

PCRA court has filed an opinion, relying on its prior memorandum of

September 25, 2013.

     Appellant has raised the following issues for this court’s review:

           1.    Whether the trial court erred in denying
                 appellant’s petition for [PCRA] relief where
                 newly discovered evidence unavailable at the
                 time of trial was exculpatory and would have
                 changed the outcome of the trial?

           2.    Whether the trial court erred in failing to find
                 trial counsel ineffective for failing to move to
                 sever appellant’s case from that of his
                 co-defendant prior to trial?


2
  The five-year mandatory minimum for the PWID conviction was also the
statutory maximum, resulting in a flat sentence.


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            3.     Whether the trial court erred in failing to find
                   trial counsel ineffective for failing to advise
                   appellant that a conviction for a felony drug
                   offense could result in his deportation from the
                   United States?

Appellant’s brief at 4.

      Initially, we recite our standard of review:

            This Court’s standard of review regarding an order
            denying a petition under the PCRA is whether the
            determination of the PCRA court is supported by the
            evidence of record and is free of legal error.
            Commonwealth v. Halley, 582 Pa. 164, 870 A.2d
            795, 799 n. 2 (2005). The PCRA court’s findings will
            not be disturbed unless there is no support for the
            findings in the certified record. Commonwealth v.
            Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).

Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),

appeal denied, 940 A.2d 365 (Pa. 2007).

      In his first issue on appeal, appellant claims he is entitled to a new

trial based on newly discovered evidence. Appellant presented an affidavit

from his brother and co-defendant, Michael, which states:

            I Michael D. Mcdonald swear that on August 1, 2009
            [I] acted alone in the criminal activity that i [sic] am
            now incarcerated for, furthermore it is my sworn
            statement that [appellant] had no knowledge of the
            events that took place on the above mentioned day.
            It is my sworn testimony that I Michael D. Mcdonald
            acted alone and in no way conspired with
            [appellant].

Petitioner’s Exhibit A; affidavit of Michael Dain McDonald, 3/11/13 at 1.

      At the PCRA hearing on June 27, 2013, Michael McDonald testified that

the drugs were his and that appellant had no idea they were there. (Notes


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of testimony, 6/27/13 at 14.) When asked why he waited until March 11,

2013, to say anything, Michael testified that he was scared.        (Id. at 15.)

According to Michael, he did not make this information available to appellant

until March 2013:

             My -- since I’ve been incarcerated, it’s been eating
             me alive. It’s just now, I really, really come to me to
             come out with the truth. Because it’s just been me
             holding that in. I couldn’t do it no [sic] more. I just,
             I just couldn’t because he didn’t have nothing [sic]
             to do with this and at that point, that’s the time I
             gave up and I just say, I’m just going to let it out. I
             don’t know, so.

Id. at 18-19.

        Appellant is proceeding under Section 9543(a)(2)(vi) of the PCRA

statute. According to that subsection, the petitioner must plead and prove

by a preponderance of the evidence that his conviction or sentence resulted

from:    “The 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).

             [Section] 9543(a)(2)(vi) provides for post-conviction
             relief where a petitioner could prove a claim of newly
             discovered exculpatory evidence.         In order to
             succeed on such a claim, the petitioner must
             establish by a preponderance of the evidence that:
             (1) the evidence has been discovered after the trial
             and it could not have been obtained at or prior to
             trial through reasonable diligence; (2) such evidence
             is not cumulative; (3) it is not being used solely to
             impeach credibility; and (4) such evidence would
             likely compel a different verdict.




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Commonwealth         v.   Fiore,   780    A.2d   704,   711   (Pa.Super.   2001),

appeal granted, 797 A.2d 910 (Pa. 2002), appeal dismissed, 817 A.2d

1080 (Pa. 2003), citing Commonwealth v. Abu-Jamal, 720 A.2d 79, 94

(Pa. 1998) (citations omitted).

      We agree with the PCRA court that Michael’s affidavit is not newly

discovered evidence in any traditional sense. (PCRA court opinion, 9/25/13

at 4.) Obviously, appellant knew from day one whether or not he was aware

of the marijuana in the trunk of the car. Commonwealth v. Washington,

927 A.2d 586 (Pa. 2007), is instructive.          In that case, the appellant’s

co-defendant, Derrick Teagle (“Teagle”), who did not testify, asserted that

he, not the appellant, fired the fatal shot and that he lied to police about the

appellant being the shooter to avoid the death penalty. Id. at 596. Teagle

claimed that the shooting was an accident. Id. The appellant filed a PCRA

petition asserting that Teagle’s declaration constituted newly discovered

evidence compelling a new trial. Id.

      Our supreme court noted that Teagle’s confession-declaration was not

technically a recantation because he did not testify against the appellant at

trial and his statement to police was only admitted as evidence against him,

not the appellant.    Id. at 597.   Therefore, his declaration was not a true

recantation.   Id.   Nevertheless, the Washington court analyzed Teagle’s

declaration consistently with prior jurisprudence pertinent to recantation

evidence; Teagle’s current assertion contradicted his pre-trial statement to



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police and was a confession to the crime for which the appellant was

convicted and sentenced. Id.

     The Washington court observed that the PCRA court implicitly found

Teagle’s affidavit not to be credible. Id. The PCRA court analyzed Teagle’s

confession and noted that he had nothing to lose in contradicting his

pre-trial statement. Id. The PCRA court concluded that the evidence was

not truly after-discovered and was not persuasive evidence of the appellant’s

innocence. Id.

     Similarly, here, the PCRA court listened to Michael McDonald’s

testimony and found him not to be credible. (PCRA court opinion, 9/25/13

at 4.) The PCRA court observed that, similar to Teagle in the Washington

case, Michael was already convicted and sentenced for the crime and “has

nothing to lose.” (Id.) It should also be noted that Michael and appellant

are brothers and so Michael has a motive to give false testimony.           In

addition, Michael’s affidavit should be viewed the same as recanting

testimony,   which   has   been   recognized   as   “exceedingly   unreliable.”

Commonwealth v. Loner, 836 A.2d 125, 135 (Pa.Super. 2003), appeal

denied, 852 A.2d 311 (Pa. 2004).

     In fact, at the arraignment, appellant took full responsibility for the

crime. Appellant stated that Michael “had no idea about anything,” that he

was “very sorry,” and he claimed the luggage in the vehicle as his alone.

(Notes of testimony, 6/27/13 at 50.) Appellant told the magisterial district



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judge who arraigned him on these charges that he had made a mistake and

was very disappointed in himself.    (Id.)   So, as the PCRA court observes,

either Michael or appellant is lying.   (PCRA court opinion, 9/25/13 at 4.)

Both of them have taken sole responsibility for the crime and claimed that

the other brother knew nothing.     (Id.)    The PCRA court’s conclusion that

Michael’s affidavit is simply not believable is fully supported by the record

and will not be disturbed on appeal. The PCRA court did not err in denying

appellant’s newly discovered evidence claim.

      Appellant’s final two issues relate to trial counsel ineffectiveness.

Appellant argues that trial counsel, Steven Passarello, Esq., was ineffective

for failing to move to sever his case from that of his co-defendant, and for

failing to advise him that a conviction for a felony drug offense could result

in deportation proceedings.

            “To    prevail on a claim alleging counsel’s
            ineffectiveness, Appellant must demonstrate (1) that
            the underlying claim is of arguable merit; (2) that
            counsel’s course of conduct was without a
            reasonable basis designed to effectuate his client’s
            interest; and (3) that he was prejudiced by counsel’s
            ineffectiveness.” Commonwealth v. Wallace, 555
            Pa. 397, 407, 724 A.2d 916, 921 (1999), citing
            Commonwealth v. Howard, 538 Pa. 86, 93, 645
            A.2d 1300, 1304 (1994) (other citation omitted). In
            order to meet the prejudice prong of the
            ineffectiveness standard, a defendant must show
            that there is a “‘reasonable probability that but for
            counsel’s unprofessional errors, the result of the
            proceeding     would     have     been     different.’”
            Commonwealth v. Kimball, 555 Pa. 299, 308, 724
            A.2d 326, 331 (1999), quoting Strickland v.
            Washington, 466 U.S. 668, 694, 104 S.Ct. 2052,


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            80 L.Ed.2d 674 (1984). A “‘[r]easonable probability’
            is defined as ‘a probability sufficient to undermine
            confidence in the outcome.’” Id. at 309, 724 A.2d at
            331, quoting Strickland, 466 U.S. at 694, 104 S.Ct.
            2052.

Commonwealth v. Jones, 811 A.2d 1057, 1060 (Pa.Super. 2002), appeal

denied, 832 A.2d 435 (Pa. 2003).       “We presume counsel is effective and

place upon Appellant the burden of proving otherwise. Counsel cannot be

found ineffective for failing to pursue a baseless or meritless claim.”

Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004)

(citations omitted).

            “The decision to sever co-defendants’ trials lies
            within the trial court’s discretion, and will not be
            disturbed     absent      an      abuse     thereof.”
            Commonwealth v. Birdsong, 611 Pa. 203, 232, 24
            A.3d 319, 336 (2011).

            Joint trials are favored when judicial economy will be
            served      by     avoiding  the     expensive    and
            time-consuming duplication of evidence, and where
            the defendants are charged with conspiracy.

            [T]he mere fact that there is hostility between
            defendants, or that one may try to save himself at
            the expense of another, is in itself not sufficient
            grounds to require separate trials. In fact, it has
            been asserted that the fact that defendants have
            conflicting versions of what took place, or the
            extents to which they participated in it, is a reason
            for rather than against a joint trial because the truth
            may be more easily determined if all are tried
            together.




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Commonwealth v. Akbar, 91 A.3d 227, 231-232 (Pa.Super. 2014),

quoting Birdsong, supra (internal citations and quotation marks omitted)

(emphasis deleted).

      At trial, the court ruled that appellant’s statement to police that

Michael’s girlfriend rented the vehicle was inadmissible because it could

implicate Michael and was a Bruton violation.3 (Notes of testimony, 9/9/10

at 14-16.) The jury could infer that perhaps Kelly put the marijuana in the

car or had some part in it, thereby also implicating Michael. (Id.) According

to appellant, trial counsel should have moved to sever the cases because at

a separate trial, this statement could have come in as evidence that Michael

and/or his girlfriend, and not appellant, put the marijuana in the trunk.

(Appellant’s brief at 16.)

      Appellant’s argument ignores the fact that, as stated above, Michael

also told Trooper Lucia that Kelly, his girlfriend, had rented the vehicle.

(Notes of testimony, suppression, 2/9/10 at 30-31.) This statement was not

suppressed. (Notes of testimony, 9/9/10 at 14.) Therefore, the jury heard

that Kelly was Michael’s girlfriend and the rental agreement was in her

name. Appellant cannot show how he was prejudiced by counsel’s failure to

file a severance motion.


3
  See Bruton v. U.S., 391 U.S. 123, 135-137 (1968) (admission of a
facially incriminating confession by a non-testifying co-defendant introduced
at the defendant and co-defendant’s joint trial, deprives a defendant of his
Sixth Amendment right to confrontation, even where the court instructs the
jury to consider the confession only against the co-defendant).


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      In addition, the PCRA court states that Michael did file a motion to

sever which was denied, and appellant’s would have been similarly denied.

(PCRA court opinion, 9/25/13 at 7.) There was no basis to sever the cases,

particularly where appellant and Michael were charged as co-conspirators.

This claim fails.

      Finally, appellant argues that trial counsel was ineffective for failing to

advise him of the immigration consequences of being found guilty of a felony

drug offense.       Apparently, appellant is a Jamaican national and faces

deportation proceedings as a result of his conviction.      Appellant relies on

Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473 (2010), in which the

United States Supreme Court held that counsel must inform his client

whether his plea carries a risk of deportation.

             Jose Padilla, a Honduran native who had lived in the
             United States for more than 40 years, pled guilty to
             transportation of a large amount of marijuana, a
             deportable       offense      under       8      U.S.C.
             § 1227(a)(2)(B)(i).    Padilla, 130 S.Ct. at 1477.
             Padilla claimed that counsel not only failed to advise
             him of the possibility of deportation prior to entering
             the plea, but also told him that he “did not have to
             worry about immigration status since he had been in
             the country so long.” Id. at 1478. Padilla relied on
             counsel’s erroneous advice when he pleaded guilty to
             the drug charges, and alleged in his post-conviction
             petition that he would have gone to trial had he not
             received incorrect advice from his attorney. Id.

                   Noting the “unique nature of deportation,” the
             Padilla Court decided that, “The weight of prevailing
             professional norms supports the view that counsel
             must advise her client regarding the risk of
             deportation.” Id. at 1481-1482. The Court found


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             that, although civil in nature, “deportation is
             nevertheless intimately related to the criminal
             process” (id. at 1481), and concluded that “The
             severity of deportation -- ‘the equivalent of
             banishment or exile,’ -- only underscores how critical
             it is for counsel to inform her noncitizen client that
             he faces a risk of deportation.” Id. at 1486, quoting
             Delgadillo v. Carmichael, 332 U.S. 388, 390-391
             (1947) (footnote omitted). Ultimately, the Court in
             Padilla remanded the matter for a determination as
             to whether Padilla could demonstrate that he was
             prejudiced by counsel’s incorrect advice.      Id. at
             1487.

Commonwealth v. Wah, 42 A.3d 335, 339-340 (Pa.Super. 2012).

        Instantly, appellant’s reliance on Padilla is misplaced where he did not

enter a guilty plea. Rather, appellant went to trial and was found guilty by a

jury.   Therefore, the Padilla line of cases is inapposite.    Appellant argues

that without knowing about the potential for deportation, appellant could not

make a knowing and voluntary decision whether to go to trial or try to

negotiate a plea. (Appellant’s brief at 17.) Appellant contends that if he had

known he could be deported for a felony drug conviction, he could have tried

to negotiate a plea to a lesser, non-deportable offense. (Id.)

        However, by taking a plea, Padilla was exposing himself to certain

deportation. By exercising his right to a jury trial, appellant did not face the

certainty of being deported.      He could conceivably have been found not

guilty. In addition, appellant has a constitutional right to a jury trial but not

to enter a plea. The Commonwealth can force a trial if it chooses. Appellant

has cited no case law for the proposition that the holding in Padilla extends



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to cases where the defendant is found guilty after a jury trial, and we are

aware of none. This claim also fails.

      Having determined, for the reasons discussed above, that the PCRA

court did not err in denying appellant’s petition, and that appellant is not

entitled to PCRA relief, we will affirm the order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/14/2014




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