J-S19010-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                           Appellee

                      v.

ANTHONY MCCLELLAN,

                           Appellant               No. 1672 EDA 2015


      Appeal from the Judgment of Sentence Entered October 22, 2013
           In the Court of Common Pleas of Philadelphia County
                         Criminal Division at No(s):
                         CP-51-CR-0001705-2010
                         CP-51-CR-0001706-2010


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

MEMORANDUM BY BENDER, P.J.E.:                      FILED MARCH 23, 2016

      Appellant, Anthony McClellan, appeals nunc pro tunc from the

judgment of sentence of 6 to 14 years’ incarceration, imposed after he was

convicted, following a non-jury trial, of two counts each of aggravated

assault (18 Pa.C.S. § 2702), simple assault (18 Pa.C.S. § 2701), recklessly

endangering another person (REAP) (18 Pa.C.S. § 2705), and resisting

arrest (18 Pa.C.S. § 5104). Appellant challenges the trial court’s denial of

his post-sentence motion for a new trial based on after-discovered evidence.

We affirm.

      The trial court summarized the evidence presented at Appellant’s non-

jury trial, as follows:

           Philadelphia Police Officer William Kozlowski testified that
      on October 16, 2009, he was in full uniform in a marked police
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      car, with his partner, Philadelphia Police Officer Deborah
      Jackson. He was conducting surveillance of the Top to Bottom
      Bar located at the 800 block of North 40th Street, after a recent
      string of bar robberies in West Philadelphia. At approximately
      8:30 p.m., Officer Kozlowski saw [Appellant] come out from
      behind the bar and walk down 40th Street towards a Chinese
      Food Store.      Because [Appellant] looked familiar, Officer
      Kozlowski approached [Appellant] believing he may have
      information about the robberies in the area.

            As he approached, Officer Kozlowski asked [Appellant],
      “Hey do you know what’s going on around here?” [Appellant
      then] swung at [the officer] with a closed fist and put both hands
      on Officer Kozlowski’s chest and pushed him backwards. Officer
      Kozlowski[] testified that a struggle ensued and [Appellant]
      punched him twelve more times, striking him in the face, chest,
      and body.

           Philadelphia Police Officer Deborah Jackson testified that
      on October 16, 2009, she and her partner, Officer Kozlowski,
      were conducting surveillance of the area surrounding the Top to
      Bottom Bar. She testified [that] at approximately 8:30 p.m., …
      she saw [Appellant] exit the Bar. She exited the vehicle and
      stood on the sidewalk with Officer Kozlowski, who then
      approached [Appellant] to ask him a question. [Appellant] then
      “swung at [the officer] with a closed fist in the face and
      connected.” Officer Jackson tried to intervene in the struggle
      and was kicked numerous times and knocked off balance.

             Two out-of-town firefighters, Mr. Robert Roberts and Mr.
      Patrick Ward testified that … they came across the struggle
      between Officer Kozlowski, Officer Jackson and [Appellant]. Mr.
      Roberts testified that he saw [Appellant] punch Officer Kozlowski
      in the face and the leg. Mr. Ward testified [that] he saw
      [Appellant] “striking the police.” Both men testified that they
      exited their vehicles and aided the police officers to hold
      [Appellant] down so the [o]fficers could place him in hand-cuffs
      [sic].

Trial Court Opinion (TCO), 8/24/15, at 3-4 (citations to the record omitted).




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      Based on this evidence, the court convicted Appellant of the above-

stated offenses. On October 22, 2013, he received an aggregate sentence

of 6 to 14 years’ incarceration.

            On November 21, 2013, [Appellant] filed an untimely,
      post-trial motion for “Extraordinary Relief,” seeking a new trial
      [on the basis of] the unavailability [at trial] of a favorable
      witness.    On March 20, 2014, the [trial] [c]ourt held an
      evidentiary hearing to consider [Appellant’s] motion. When the
      [c]ourt inquired at this hearing[] into the nature of [the] witness
      testimony, [Appellant’s] [c]ounsel stated [that] the witness was
      a family member [of Appellant] who, “Would testify that
      [Appellant] didn’t strike [the] officers….” (N.T., 3/20/2014 p.6).
      However, when the [c]ourt asked if the witness was present to
      offer that testimony, [c]ounsel responded that the witness was
      not present and that [counsel] “didn’t have a working [phone]
      number for him.” (N.T., 3/20/2014 p.6). The [c]ourt then
      asked [Appellant] if he could provide an affidavit to substantiate
      … what the witness would testify [to if called to the stand]….
      Counsel informed the [c]ourt that he did not have such an
      affidavit. (N.T., 3/20/2014 p.6). At the conclusion of the
      hearing, the [c]ourt denied [Appellant’s] motion and permitted
      counsel to withdraw. (N.T., 3/20/2014 p.7).

TCO at 6-7.

      Appellant did not file a timely notice of appeal from his judgment of

sentence. Instead, on September 2, 2014, he filed a pro se petition under

the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, seeking the

restoration of his direct appeal rights. Counsel was appointed and filed an

amended petition.    On June 8, 2015, the PCRA court granted Appellant’s

petition and reinstated his right to file a direct appeal nunc pro tunc. The

next day, Appellant filed a timely notice of appeal.           Appellant also

subsequently complied with the trial court’s order to file a Pa.R.A.P. 1925(b)



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concise statement of errors complained of on appeal. On August 24, 2015,

the trial court filed a Rule 1925(a) opinion.

      Herein, Appellant raises one issue for our review: “Did the trial court

abuse its discretion by failing to consider[,] or was trial counsel ineffective

for failing to present[,] the newly-discovered testimony of Walter Smith?”

Appellant’s Brief at 4. In support of this claim, Appellant contends that the

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

discovered evidence of the testimony of Walter Smith.                 According to

Appellant, Smith would have testified that he witnessed the interaction

between Appellant and the police officers, and that, during the encounter,

Appellant did not strike the officers. See Appellant’s Brief at 12.

      In reviewing Appellant’s claim, we apply the following standard:

             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.

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

      Additionally,
      [t]o be granted a new trial … on the basis of after-discovered
      evidence:

         [The defendant] must demonstrate 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

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          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.

       Commonwealth v. Pagan, 597 Pa. 69, 106, 950 A.2d 270, 292
       (2008), cert. denied, ––– U.S. ––––, 129 S.Ct. 1378, 173
       L.Ed.2d 633 (2009) (quoting Commonwealth v. Randolph,
       582 Pa. 576, 587, 873 A.2d 1277, 1283 (2005), cert. denied,
       547 U.S. 1058, 126 S.Ct. 1659, 164 L.Ed.2d 402 (2006)). 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 Pagan,
       supra; Commonwealth v. Rivera, 939 A.2d 355, 359 (Pa.
       Super. 2007), appeal denied, 598 Pa. 774, 958 A.2d 1047
       (2008).

Padillas, 997 A.2d at 363.

       Here, Appellant fails to prove that the trial court abused its discretion

by denying his motion for a new trial based on the ostensibly new evidence

of Smith’s testimony. First, Appellant did not present Smith as a witness at

the evidentiary hearing on March 20, 2014, nor did he produce an affidavit

from Smith to verify what his testimony would be. See TCO at 6.1 Instead,

at that hearing, defense counsel simply informed the court that Smith

“would … testify that [Appellant] didn’t strike the officers,” which counsel

conceded was “contrary to, I believe, six other witnesses.”        N.T. Hearing,
____________________________________________


1
  We note that Appellant has attached to his appellate brief an affidavit from
Smith. However, that affidavit is not contained in the certified record, and it
was not provided to the trial court. Accordingly, we cannot consider it. See
Bennyhoff v. Pappert, 790 A.2d 313, 318 (Pa. Super. 2001) (stating “[i]t
is black letter law in this jurisdiction that an appellate court cannot consider
anything which is not part of the record in [the] case”).




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3/20/14, at 6.     Based on defense counsel’s comments, the trial court

concluded that Smith’s testimony would “merely attempt[] to impeach the

testimony of six witnesses[,]” and that “there is little likelihood that the

testimony would have changed the outcome of the trial….” TCO at 7. We

ascertain no abuse of discretion in the court’s decision.

      In any event, we also note that Appellant does not specifically explain

why he could not have obtained Smith’s testimony prior to the conclusion of

trial, had he exercised due diligence. Indeed, Appellant acknowledges that

defense counsel knew about Smith’s existence during trial, and when the

court asked if counsel was prepared to call Smith as a witness, counsel

replied, “I haven’t spoken with him. So I have no idea what he’s going to

tell me. He just came to me at the break.” N.T. Trial, 3/28/13, at 68; see

also Appellant’s Brief at 13.      At that point, “[t]he [c]ourt granted a

continuance for more than ten days so [Appellant] would have sufficient

time to prepare his case and [the] witness before trial resumed.” TCO at 6.

      When trial resumed on May 9, 2013, after [Appellant’s] request
      for yet another continuance, [Appellant] presented his case,
      testifying on his own behalf, but presented no other witnesses.
      (N.T., 5/9/13 p. 9). Prior to [Appellant’s] resting, the [c]ourt
      inquired of [Appellant] if he ha[d] any other witness[,] to which
      [c]ounsel replied…[,] “No.” (N.T., 5/9/13 p.25).

Id.

      Appellant claims that “Smith was not presented on the second day of

trial on May 9, 2013 because, apparently, his wife was giving birth.”

Appellant’s Brief at 13. Appellant asserts that his trial counsel subsequently


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learned the full “content of [Smith’s] prospective testimony” and filed the

post-sentence motion seeking a new trial.     Id. at 12. However, Appellant

offers no explanation regarding why he, or his attorney, could not have

discovered the ‘full content’ of Smith’s testimony prior to the filing of his

post-sentence motion for a new trial. Accordingly, Appellant has not proven

the first prong of the after-discovered evidence test.

      Finally, we point out that Appellant devotes a large portion of his

argument to claiming that his trial counsel acted ineffectively by not calling

Smith to the stand at trial, or at the evidentiary hearing on Appellant’s post-

sentence motion.    Preliminarily, Appellant did not raise any claim of trial

counsel’s ineffectiveness in his Rule 1925(b) statement; thus, this argument

is waived.    See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the

Statement and/or not raised in accordance with the provisions of this

paragraph (b)(4) are waived.”).         In any event, even if Appellant’s

ineffectiveness claim were preserved, we would decline to review it on direct

appeal.   In Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our

Supreme Court reaffirmed its prior holding in Commonwealth v. Grant,

813 A.2d 726 (Pa. 2002), that, absent certain circumstances, claims of

ineffective assistance of counsel should be deferred until collateral review

under the PCRA.     Holmes, 79 A.3d at 576.        The specific circumstances

under which ineffectiveness claims may be addressed on direct appeal are

not present in the instant case.   See id. at 577-78 (holding that the trial

court may address claim(s) of ineffectiveness where they are “both

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meritorious and apparent from the record so that immediate consideration

and relief is warranted,” or where the appellant’s request for review of

“prolix” ineffectiveness claims is “accompanied by a knowing, voluntary, and

express waiver of PCRA review”).

       In sum, Appellant has not met the four-pronged test for demonstrating

that he is entitled to a new trial based on the after-discovered evidence of

Smith’s testimony. Accordingly, the trial court did not abuse its discretion in

denying his post-sentence motion for a new trial. We also decline to review,

in   this   direct   appeal,   Appellant’s   waived   claim   of   trial   counsel’s

ineffectiveness.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/2016




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