J-S48036-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT
    PENNSYLVANIA,                              :      OF PENNSYLVANIA
                                               :
                            Appellee           :
                                               :
                       v.                      :
                                               :
    MALIK SAMUELS,                             :
                                               :
                            Appellant          :     No. 2674 EDA 2018


              Appeal from the PCRA Order Entered August 9, 2018
              in the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1301575-2006

BEFORE:      BOWES, J., SHOGAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                    FILED NOVEMBER 06, 2019

       Malik Samuels (Appellant) appeals from the August 9, 2018 order1

dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541-9546. Upon review, we affirm.

       A prior panel of this Court set forth the factual and procedural history.

              At 10:50 P.M. on November 30, 2005, Appellant shot and
       killed Abdul Colon [“Victim”] with a revolver in front of the Tender
       Line Bar in Philadelphia, Pennsylvania. Three Temple University
       students witnessed the shooting: Lindsey Bennett, Jessica Lique,
       and Beth Holland. Both Bennett and Lique testified that they had
____________________________________________
1 The order is not contained in the certified record, but is noted on the docket.
It appears that notice of the order was given to the assistant district attorney,
the defense attorney, the court reporter, and the clerk. See Docket Entry,
8/9/2018 (“Order Dismissing PCRA Petition. PCRA Petition is hereby dismissed
for lack of merit. Judge: Geroff[,] ADA: Blessington[,] Atty: Mosser[,] Steno:
Fazio[,] Court Clerk: Thomas[.]”). The parties do not challenge the order’s
filing, and thus, we rely on the docket.

* Retired Senior Judge assigned to the Superior Court.
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      known Appellant and Victim for a number of years. Additionally,
      Bennett and Holland testified that Appellant was wearing a
      distinctive yellow sweat suit when he shot Victim.

             Moments before the shooting, Lique and Holland entered the
      bar, passing Victim at the door, while Bennett remained outside
      to talk on her cell phone. As Lique and Holland passed Victim,
      Appellant asked Holland to move out of his way. Appellant then
      pulled out his gun and fired once at Victim from ten feet away.
      The shot struck Victim in his left shoulder. Victim attempted to
      flee into the bar, but Appellant followed him inside and fired three
      more shots toward him. One of the shots struck Victim in his
      lower back. Thereafter, Appellant left the bar and drove away.
      Victim was dead on arrival at 11:00 P.M., with two gunshot
      wounds, one to his shoulder and one to his lower back.

            Appellant fled to South Carolina for six months, but returned
      to Philadelphia sometime in early May 2006. On June 9, 2006,
      police arrested Appellant on the 2900 block of Memphis Street in
      Philadelphia.

             Following trial, the jury found Appellant guilty of first-degree
      murder and possessing an instrument of crime. On January 23,
      2008, the trial court sentenced Appellant to life imprisonment for
      first-degree murder and a concurrent term of fourteen to forty-
      eight months of imprisonment for possessing an instrument of a
      crime.     On February 4, 2008, Appellant filed post-sentence
      motions challenging, inter alia, the sufficiency of the evidence. On
      April 15, 2008, the trial court denied the motions. A timely appeal
      was filed, but ultimately was dismissed because Appellant’s
      counsel failed to file a brief. On April 24, 2009, Appellant filed a
      pro se petition under the [PCRA]. Counsel was appointed and an
      amended petition was filed on October 15, 2010. On April 15,
      2011, the PCRA court reinstated Appellant’s right to a direct
      appeal nunc pro tunc. On April 28, 2011, Appellant filed a notice
      of appeal.

Commonwealth v. Samuels, 55 A.3d 147 (Pa. Super. 2012) (unpublished

memorandum at 1-3) (citations to the record omitted; some brackets in

original).   On July 25, 2012, this Court affirmed Appellant’s judgment of

sentence, and our Supreme Court denied his petition for allowance of appeal

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on January 10, 2013. Id., appeal denied, 62 A.3d 379 (Pa. 2013). Appellant

did not seek a writ of certiorari in the United States Supreme Court.

       Appellant filed timely a pro se PCRA petition on October 25, 2013,

claiming he was entitled to relief based upon after-discovered evidence and

ineffectiveness of trial counsel, James Bruno, Esquire, for failing to object to

the admission of Appellant’s criminal convictions at trial, and for failing to

object to an alleged violation of Appellant’s right to a speedy trial. Specifically,

he attached an affidavit dated September 11, 2013, of Lawrence Peel, a fellow

inmate, which alleged that Peel removed a gun from Victim’s hand after

Appellant shot Victim. According to Appellant, this evidence would have aided

his self-defense claim at trial.

       The PCRA court appointed Todd Mosser, Esquire, as counsel on August

14, 2014, and Attorney Mosser filed an amended PCRA petition on August 12,

2016, similarly claiming relief based upon Peel’s affidavit, but no longer

claiming trial counsel was ineffective. Shortly thereafter, on August 23, 2016,

Appellant filed a pro se amended PCRA petition, claiming Attorney Mosser, in

the August 12, 2016 amended petition, failed to include issues that Appellant

wanted to be raised.2        On October 27, 2016, Appellant filed a motion for


____________________________________________
2 Hybrid representation is prohibited, and thus, because Appellant was
represented by counsel, Appellant’s pro se filing constituted a legal nullity.
Commonwealth v. Ali, 10 A.3d 282, 293 (Pa. 2010) (holding pro se filings
by a represented defendant constitute legal nullities).




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withdrawal of Attorney Mosser as counsel, and sought appointment of new

counsel.3 In response, on February 8, 2017, Attorney Mosser filed a second

amended PCRA petition, incorporating by reference Appellant’s August 12,

2016 amended petition, and claiming further after-discovered evidence of two

witnesses in addition to Peel.          Specifically, the second amended petition

claimed that an email sent by Taron Gorham to Appellant on August 28, 2013,

and a statement from Tariq Buckner, dated August 28, 2013, entitled

Appellant to relief based on after-discovered evidence pursuant to section

9543(a)(2)(vi) of the PCRA. Gorham’s email alleged that Gorham saw Peel

remove a gun from Victim after Appellant shot Victim, and Buckner’s

statement alleged Buckner saw Victim reaching for a gun before Appellant

fired his gun.4 On February 10, 2017, the Commonwealth filed a motion to

dismiss the petition, which the PCRA court denied.

        The PCRA court held an evidentiary hearing on August 17, 2017. Peel

was the sole witness, and he testified that he did not witness the shooting at

the bar because he was inside the bar. When the shooting happened, Peel

ducked down and ran to the back of the bar.            N.T., 8/17/2017, at 5, 36.

According to Peel, he then returned to the middle of the bar, picked up a gun

near Victim’s hand, went out of the bar, and ran. Id. at 5-6. Peel testified


____________________________________________
3   The PCRA court did not rule upon said motion.

4The email and statement were attached to Appellant’s August 23, 2016 pro
se amended petition.

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that he later sold the gun. Id. at 6. He further testified that while incarcerated

at the same facility as Appellant, the two discussed the instant case. Id. at

7-8. At the conclusion of the hearing, the PCRA court took the matter under

advisement.

      Meanwhile, on October 5, 2017, Attorney Mosser filed a supplemental

amended PCRA petition, incorporating Appellant’s prior claims and adding a

claim that Attorney Bruno was ineffective for failing to locate Buckner as a

witness at trial pursuant to section 9543(a)(2)(ii) of the PCRA. On October

10, 2017, the Commonwealth filed a supplemental motion to dismiss. The

Commonwealth argued that Buckner’s statement could not constitute after-

discovered evidence or proof of trial counsel’s ineffectiveness because Buckner

was known to Appellant at the time of trial.         The Commonwealth cited

numerous portions of the trial testimony, including Appellant’s own testimony,

where Buckner was repeatedly referenced as being present at the scene of

the crime. Supplemental Motion to Dismiss, 10/10/2017, at 4 (citing N.T.,

12/5/2007, at 64, 69, 83, 86; N.T., 12/6/2007, at 31-32, 39, 46, 53-56, 58,

68, 81, 100, 102, 106, 122-23, 127, 135; N.T., 12/7/2007, at 17, 20; N.T.,

12/20/2007, at 41, 58, 59, 63). Appellant filed a response thereto on January

23, 2018.

      On May 24, 2018, the PCRA court held a second evidentiary hearing.

Buckner, Attorney Bruno, and Appellant testified at the hearing.         Buckner

testified that he was present the night of the shooting, and that Victim had


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“swung on” Appellant.    N.T., 5/24/2018, at 4-6.    Buckner claimed that he

heard Victim say “chill,” saw Victim “reaching,” and heard multiple gunshots.

Id. at 9. Buckner recalled seeing Victim “on the ground” outside of the bar.

Id. at 9-10, 25. Buckner testified that he then fled the scene. Id. at 10.

According to Buckner, police interviewed him, but Buckner did not tell police

what he saw because he was “from the same neighborhood” and did not want

to “get involved.”   Id. at 10.   Similarly, he testified that he did not come

forward as a witness and did not recall trial counsel “reaching out” to him. Id.

at 12. Buckner claimed that at some point after trial, he talked to one of

Appellant’s family members and related what he had purportedly seen the

night of the shooting. Id. at 12-14.

      Attorney Bruno testified about his typical practice of reviewing discovery

materials and witnesses with clients. Id. at 49-52. He did not remember

Buckner or whether he had tried to locate him, but acknowledged that Buckner

was mentioned in discovery materials and that he would have discussed with

Appellant any decision about whether to call that person as a witness. Id. at

50-51, 54, 60-61, 64.

      Appellant testified that he talked to Attorney Bruno about locating

Buckner as a witness. Id. at 70. Appellant also testified that he had been

incarcerated in the same facility as Peel for about 17 months before he

communicated with him about his case. Id. at 88-89. According to Appellant,




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he learned of Peel only after he received an email from Gorham on August 28,

2013. Id. at 71-73, 85-86.

       On August 9, 2018, the PCRA court dismissed Appellant’s PCRA petition

for lack of merit. This timely-filed appeal followed. Both Appellant and the

trial court complied with Pa.R.A.P. 1925.

       On appeal, Appellant contends the PCRA court “abused its discretion in

denying [Appellant’s PCRA] petition on the grounds that [Appellant] and his

proffered witness [sic] were incredible.”5 Appellant’s Brief at 6. He claims the

PCRA court erred “because the credible testimony established that [Appellant]

met his burden of pleading and proving a newly[-]discovered evidence claim”

because Peel and Buckner “testified that [Victim] was the first aggressor and

that [Appellant] acted in self-defense.”         Concise Statement, 9/19/2018, at

¶ 1.

       We begin with our standard of review. “On review of orders denying

PCRA relief, our standard is to determine whether the PCRA court’s ruling is

free of legal error and supported by the record.” Commonwealth v. Miller,

212 A.3d 1114, 1123 (Pa. Super. 2019) (citation omitted). “The PCRA court’s

credibility determinations, when supported by the record, are binding on this




____________________________________________
5 We note that while the PCRA court did not explicitly address Appellant’s
ineffective assistance of counsel claims, Appellant has abandoned them on
appeal, and thus, they are waived. See Pa.R.A.P. 2119; Commonwealth v.
Vance, 2019 WL 4131349 at *2 (Pa. Super. 2019); see also Pa.R.A.P.
126(b).

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Court; however, we apply a de novo standard of review to the PCRA court’s

legal conclusions.” Id. (citation and internal quotation marks omitted).

      Pursuant to the PCRA, Appellant may be eligible for relief based upon

after-discovered evidence only if he pleads and proves by a preponderance of

the evidence that his conviction or sentence resulted from “[t]he 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. § 9543(a)(2)(vi). To warrant such relief, a petitioner

must prove

      four distinct requirements, each of which, if unproven by the
      petitioner, is fatal to the request for a new trial. As stated, this
      four-part test requires the petitioner to demonstrate the new
      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.

Commonwealth v. Small, 189 A.3d 961, 972 (Pa. 2018) (citation omitted).

“This test   applies   with   full   force   to   claims arising   under   [s]ection

9543(a)(2)(vi) of the PCRA.” Id.

      With respect to Appellant’s after-discovered evidence claim, the PCRA

court “found that the testimony of Peel and Buckner lacked credibility.

Therefore, [the PCRA] court dismissed the PCRA petition for lack of merit.”

PCRA Court Opinion, 10/2/2018, at 4.

      Initially, we point out that Buckner’s testimony cannot constitute after-

discovered evidence regardless of the PCRA court’s determination that he

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lacked credibility.    It is undisputed that Buckner was known as a possible

witness at the time of trial. See Appellant’s Brief at 7. Thus, with respect to

Buckner’s testimony, Appellant failed to satisfy the first prong of after-

discovered evidence test because he failed to prove that Buckner’s testimony

“could not have been obtained prior to the conclusion of the trial by the

exercise of reasonable diligence.”6 See Small, supra; Commonwealth v.

Benner, 147 A.3d 915, 919 (Pa. Super. 2016) (“[W]e may affirm a PCRA

court’s decision on any grounds if the record supports it.”) (citation and

internal quotation marks omitted).

       We now turn to the PCRA court’s finding that Peel’s testimony lacked

credibility.   As noted supra, we are bound by the PCRA court’s credibility

determinations when they are supported by the record. Miller, supra; see

also Commonwealth v. Beatty, 207 A.3d 957, 961 (Pa. Super. 2019)

(“[C]redibility issues are resolved by the trier of fact who had the opportunity

to observe the witnesses’ demeanor.              A PCRA court passes on witness

credibility at PCRA hearings, and its credibility determinations should be




____________________________________________
6 Further, we agree with the Commonwealth that Appellant also failed to prove
the second prong of the after-discovered evidence test. Buckner’s testimony,
if believed, was “merely corroborative or cumulative” of Appellant’s testimony
at trial. See Small, supra; Commonwealth’s Brief at 12-14, comparing
N.T., 5/24/2018, at 9 (Buckner testifying at PCRA hearing that he saw Victim
reaching for something before Appellant fired the first gunshot) with N.T.,
12/10/2007, at 66-68 (Appellant testifying at trial that he fired a gunshot after
he saw Victim reaching for the handle of a gun).

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provided great deference by reviewing courts.”) (citations and internal

quotation marks omitted).

       Instantly, although the PCRA court did not explain its credibility

determination as to Peel, it is amply supported in the record. First, Peel’s

testimony lacked any corroboration that he was present the night of the

shooting to indicate its trustworthiness.            At trial, Appellant’s testimony

identified several individuals who were at the bar that night, but he never

mentioned Peel’s presence. When questioned about who was present that

night, Peel was unable to recall the individuals Appellant had mentioned during

his trial testimony.     Compare N.T., 8/17/2017, at 28-29 (Peel’s testifying

before the PCRA court that he did not recall L.A., Old Head Black, or Buffy’s

presence at the bar that night); with N.T., 12/10/2007, at 58-59 (Appellant’s

testifying at trial that L.A., Old Head Black, Buffy, and Hoagie7 were present

at the bar that night). In addition, Peel incorrectly testified that when the

Victim was shot, he fell in the middle of the bar, but on cross-examination,

the Commonwealth confronted Peel with a photograph which showed Victim

fell in the back of the bar close to the men’s bathroom. N.T., 8/17/2017, at

5, 13-14, 30, 42, 47-48.

       Next, Peel’s testimony was subject to careful scrutiny due to his status

as a fellow inmate, who was incarcerated in the same facility as Appellant

____________________________________________
7 Buckner’s nickname is Hoagie.                See Pro se Amended PCRA Petition,
8/23/2016, at ¶ 3.


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when Peel came forward. See N.T., 8/17/2017, at 8. Commonwealth v.

Robinson, 780 A.2d 675, 677 (Pa. Super. 2011) (finding status as a fellow

inmate was a factor which undermined credibility of affidavit prepared by and

testimony of inmate to assist Robinson in his after-discovered evidence PCRA

claim). In addition, at the time Peel testified before the PCRA court, he was

serving a term of 35½ to 71 years of incarceration,8 effectively rendering

insignificant any possible criminal charges stemming from his testimony. See

N.T., 8/17/2017, at 15-16, 23. When the Commonwealth questioned Peel as

to whether he had ever shot a gun, Peel claimed he had not. Id. at 15. The

Commonwealth then elicited testimony wherein Peel admitted he had pleaded

guilty to a charge of “shooting a cop.” Id. at 15-16. Peel then changed his

testimony, admitting he had fired a gun before. Id. Moreover, Peel’s delay

in telling Appellant his version of events undermined Peel’s credibility. Peel

and Appellant were housed at the same prison for 17 months before they

supposedly had their first conversation about the incident in question. See

id. at 54-56.

       Finally, the inconsistencies between Peel’s testimony before the PCRA

court and Appellant’s testimony at trial further diminished Peel’s credibility.

Peel testified that, after Victim had fallen, he took a gun that was near Victim’s

____________________________________________
8 Peel’s judgment of sentence became final on October 17, 2013, nearly four
years before Peel testified at Appellant’s PCRA hearing on August 17, 2017.
See Commonwealth v. Peel, 2019 WL 2745593 at *1 (Pa. Super. 2019)
(unpublished memorandum at 2) (citing Commonwealth v. Peel, 87 A.3d
384 (Pa. 2017) (unpublished memorandum)); Pa.R.A.P. 126(b).

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hand. N.T., 8/17/2017, at 5-6, 45. At trial, Appellant testified that Victim

never even had a chance to pull out a gun. N.T., 12/10/2007, at 67. Further,

although Peel claimed he had been in the bar before the shooting, he did not

remember any kind of incident between Appellant and Victim before the

shooting. N.T., 8/17/2017, at 32-33, 35. In contrast, Appellant testified at

trial that he and Victim had a confrontation in the bar where Victim kicked a

chair out from underneath Appellant after Victim returned from the bathroom

and saw Appellant sitting in the chair Victim had been using, Victim threw a

punch at Appellant but missed when a woman stepped between them, and

Victim hit Appellant in the shoulder. N.T., 12/10/2007, at 43.

      Based on the foregoing, the record supports the PCRA court’s

determination that Peel’s testimony lacked credibility and thus, we are bound

by its finding. Miller, supra. Accordingly, Appellant has failed to satisfy the

four-part test for his after-discovered evidence claim arising under section

9543(a)(2)(vi) of the PCRA, and his claim fails. Small, supra.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/19



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