J-S36024-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

DAVID REDMOND

                            Appellant                  No. 2855 EDA 2013


                Appeal from the PCRA Order September 30, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0006047-2010


BEFORE: GANTMAN, P.J., JENKINS, J., and FITZGERALD, J.**

MEMORANDUM BY JENKINS, J.:                           FILED AUGUST 07, 2014

        Appellant David Redmond appeals from the order of the Court of

Common Pleas of Philadelphia County dismissing his petition filed pursuant

to the Post Conviction Relief Act, 42 Pa.C.S. § 9541, et seq.,

affirm.

        On November 21, 2009, Redmond and his co-defendant Dwayne

Robinson attacked a fellow inmate at Curran-Fromhold Corrections Facility in

Philadelphia, Pennsylvania.1       The victim did not permit Robinson to review


____________________________________________


**
     Former Justice specially assigned to the Superior Court.
1
 The original record does not contain the trial transcripts. The facts recited
herein are from the trial court opinion and from the opinion of this Court in
              -                             Commonwealth v. Robinson,
2514 EDA 2011 (Pa.Super. filed Dec. 18, 2012).
J-S36024-14



                            .   Robinson grabbed the paperwork and refused to

return it. An argument ensued.



and Robinson punched the victim.               Robinson attempted to insert his penis

                                        ond partially inserted his penis into the



        After approximately 30 to 45 minutes, the corrections officers arrived.

Corrections Officer Michael Lee observed the victim crying, screaming, and

yelling.   Corrections Officer Michael Cooper observed that the victim was

crying and had puffy eyes.         The victim received medical treatment at the

prison and at a nearby hospital. He suffered scratches to his face and back

and a one-millimeter tear to his anus.

        The victim received a letter from Redmond, offering the victim

$500.00 if he did not testify. The victim then wrote to Redmond, requesting

additional funds in exchange for a refusal to testify.

        On January 14, 2011, the Honorable Earl W. Trent presided over a

joint non-jury trial. He found Redmond guilty of involuntary deviate sexual

intercourse,2 criminal conspiracy,3 and sexual assault.4


____________________________________________


2
    18 Pa.C.S. § 3123(a).
3
    18 Pa.C.S. § 903.
4
    18 Pa.C.S. § 3124.1.



                                           -2-
J-S36024-14



      Robinson filed a motion for extraordinary relief, which Redmond

joined. The court denied this motion.

      On April 13, 2011, the court sentenced Redmond to an aggregate term

of seven-to-fourteen years of imprisonment.           Redmond appealed, but this

Court dismissed the appeal for failure to file a brief.

      On December 14, 2011 and January 11, 2012, Redmond filed pro se

PCRA petitions. The court appointed counsel, who filed an amended petition

on January 29, 2013. On August 16, 2013, the trial court issued its notice of

intent to dismiss the PCRA petition without an evidentiary hearing pursuant

to Pennsylvania Rule of Criminal Procedure 907. On September 30, 2013,

the court dismissed the petition. Redmond timely appealed.

      Redmond raises the following issues on appeal:

            1.     Did   the PCRA court err in dismissing
                               Petition without an evidentiary
            hearing when there was newly-discovered evidence
            that Complainant admitted that he committed
            perjury and Appellant was not responsible for the
            crimes for which he has been convicted?

            2.     Did   the   PCRA    court    err     in   dismissing

            hearing when trial counsel failed to call a known
            eyewitness who has subsequently provided an
            Affidavit which, if accepted, would show that
            Appellant is not guilty for the crimes for which he
            has been convicted?



      Our standard of review from the denial of post-

limited to examining whether the court's determination is supported by the


                                      -3-
J-S36024-14



                                                              Commonwealth v.

Ousley,     21   A.3d    1238     (Pa.Super.2011)   (citing   Commonwealth   v.

Morales, 701 A.2d 516, 520 (Pa.1997)).

       Redmond first claims the trial court should have held a hearing

because he presented after-acquired evidence, i.e., an affidavit from Kendall

Brinkley, claiming the victim requested that Brinkley inform Robinson he



the victim $5,000.00.         PCRA Petition Requesting Vacation of Judgment of
                                                               5
Sentence, at Appendix A (hereinaf

       To be eligible for PCRA relief based on after acquired evidence, the



unavailability at the time of trial of exculpatory evidence that has

subsequently become available and would have changed the outcome of the




could not have been obtained at or prior to trial through reasonable

diligence; (2) the evidence is not cumulative; (3) it is not being used solely



                                      , 856 A.2d 802, 823 (Pa.2004) (quoting



____________________________________________


5
  The affidavit also states Brinkley was a childhood friend of Robinson. See
Brinkley Affidavit.



                                           -4-
J-S36024-14



Commonwealth v. Abu-Jamal, 553 Pa. 485, 517, 720 A.2d 79, 94

(1998)).

      The trial court noted the hearsay statements contained in the Brinkley

Affidavit were likely inadmissible. Trial Court 1925(a) Opinion, 11/21/2013

                                                            her noted that, even if



credibility. Id.

[victim] would arguably suggest that he intended to fabricate at least some

portion of a statement and/or testimony relating to [Redmond] following a

                               Id.

      The court further found Redmond failed to establish the statement

would have compelled a different verdict. 1925(a) Opinion at 3. The court

                     ated the credibility of the [victim] under the backdrop of

evidence detailing his attempt to extract money from the co-defendant in

                                        Id. The court noted the Brinkley Affidavit

                                                    inancial compensation and this

                                                                                  Id.



legal error.    Redmond claims the statement would be a recantation, not

impeac

hearsay statement allegedly from the victim and constitutes impeachment

evidence. A recantation occurs where a witness testifies, or signs a sworn

affidavit,   that   he   testified   falsely   at   the   prior   trial.   See,   e.g.,

                                          -5-
J-S36024-14



Commonwealth v. Davis, 86 A.3d 883, 889 (Pa.Super.2014) (noting

witness signed affidavit noting his perjury at trial); Commonwealth v.

          , 856 A.2d 806, 823 (Pa.2004) (noting a witness recanted his trial

testimony).    A recantation does not occur merely because a separate

individual claims   the   witness said     he   testified falsely.   See, e.g.,

Commonwealth v. Dennis, 715 A.2d 404, 416 (Pa.1998) (noting affidavit

from individual claiming witness told the individual that witness was not sure

the person she identified was the killer was impeachment evidence and

noting a separate witness recanted his trial testimony, claiming he lied on

the stand). Accordingly, as the trial court found, the Brinkley Affidavit would

merely constitute impeachment evidence and cannot constitute after-

acquired evidence sufficient to warrant PCRA relief.                       , 856

A.2d at 823.

      Redmond next claims he was entitled to an evidentiary hearing on his

ineffectiveness of trial counsel claim. He claimed counsel was ineffective for

failing to interview, and call as a witness, the fourth individual present in the

prison cell at the time of the attack.

      For ineffectiveness of counsel claims, the petitioner must establish:

                                                (2) counsel had no reasonable

strategic basis for his or her action or inaction; and (3) but for the errors or

omissions of counsel, there is a reasonable probability that the outcome of

                                                     Ousley, 21 A.3d at 1244

(quoting Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.Super.2010)).

                                         -6-
J-S36024-14




ineffectiveness                     Id.

three [ineffectiveness] prongs re                                         Id.

(quoting Rivera, 10 A.3d at 1279). When alleging ineffective assistance of



witness existed; (2) the witness was available to testify for the defense; (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 of the witness was so prejudicial as to have denied the defendant

              Commonwealth v. Matias, 63 A.3d 807, 810 (Pa.Super.2013)

(quoting Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (Pa.2012)).

      The fourth cellmate, Karlesio Davenport, signed an affidavit stating the

assault did not occur and stating that, if subpoenaed, he would have testified

at trial.   PCRA Petition Requesting Vacation of Judgment of Sentence, at



Redmond failed to demonstrate counsel lacked a reasonable basis for not

calling Davenport and found the failure to call Davenport was not prejudicial.

1925(a) Opinion, at 4. Because the trial court did not hold an evidentiary

hearing, we will not consider whether the attorney had a reasonable basis for

failing to call Davenport. Commonwealth v. duPont, 860 A.2d 525, 533

(Pa.Super.2004) (in PCRA appeal, reasonableness of attorney's strategic

decisionmaking is matter that this Court usually considers only where

evidence has been taken on that point).

                                    -7-
J-S36024-14



       The court, however, acted within its discretion in finding the failure to



                                                        1925(a) Opinion, at 5.

                                                                         internally

inconsistent, as it stated Davenport was asleep during a portion of the

encounter, but later stated he was awake the whole time.           Id.   His claim

that the assault did not occur also conflicts with his report to the

investigating officer after the

Id., at 4. In addition, the Commonwealth could have introduced crimen falsi

evidence of a burglary conviction to impeach Davenport. Id. Further, the

                                                           s revised version of

                                                                   Id. at 5.   The

victim testified Davenport inquired as to what was happening and one of the

                                                                          Id. at 5

n.7.

       Accordingly, the court acted within its discretion in dismissing



       Order affirmed.

       Justice Fitzgerald files concurring/dissenting statement.




                                      -8-
J-S36024-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/2014




                          -9-
