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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                  :
                                       :
EARL CALVIN HANDFIELD, II,             :         No. 2582 EDA 2015
                                       :
                        Appellant      :


                  Appeal from the PCRA Order, July 28, 2015,
               in the Court of Common Pleas of Chester County
               Criminal Division at No. CP-15-CR-0004908-2007


BEFORE: FORD ELLIOTT, P.J.E., OLSON AND JENKINS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED JULY 20, 2016

     Earl Calvin Handfield, II, appeals from the July 28, 2015 order of the

Chester County Court of Common Pleas denying his first petition under the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

     The PCRA court provided the following facts and procedural history:

                 The Commonwealth’s theory of the case, as
           evidenced from the testimony provided at trial, is
           that [appellant] murdered Corey Jennings on
           October 19, 2005 in retaliation for Mr. Jennings’
           having earlier that summer stolen a gold chain from
           around [appellant’s] neck in an altercation between
           [appellant,] Duron Peoples, Francis Washington, and
           Mr. Jennings.     As part of its case-in-chief, the
           Commonwealth relied on the testimony of the
           aforementioned David Christopher Johnson, a/k/a
           “Science,” who testified, as part of a plea agreement
           with the Commonwealth, that he was with
           [appellant] at the time of the murder and that
           [appellant] confessed to him that he killed Corey
           Jennings and on the testimony of [appellant’s]
J. S38010/16


          former girlfriend, Adrienne Beckett, to whom
          [appellant] also confessed and who helped him
          dispose of the murder weapon in Rising Sun,
          Maryland, and who was caught in a wiretapped
          conversation admitting to perjury before the
          Grand Jury and attempting to suborn it from another
          Grand Jury witness, Mr. Johnson’s girlfriend, Ataya
          Shabazz.     At trial, the Commonwealth presented
          witnesses who testified that Mr. Peoples placed
          [appellant’s] stolen chain inside Corey Jennings’
          casket at the funeral.

                 [Appellant’s] trial counsel, Joseph P. Green,
          Jr., Esquire, represented both Duron Peoples and
          [appellant] during the Grand Jury investigation into
          Mr. Jennings’ death and [appellant’s] subsequent
          criminal trial. Duron Peoples did not testify either
          before the Grand Jury or at [appellant’s] trial. The
          Commonwealth had, during the Grand Jury
          proceedings, expressed an interest in calling
          Mr. Peoples as a witness, and had filed a motion to
          disqualify Mr. Green from representing both
          Mr. Peoples and [appellant] before that body.
          Mr. Green, for his part, filed a motion to quash the
          subpoena directed towards Mr. Peoples.           The
          Commonwealth, Mr. Green and Mr. Peoples appeared
          before the Supervising Grand Jury Judge to litigate
          these Motions. Mr. Peoples testified at this hearing
          that he wished to [retain] Mr. Green as his counsel.
          Mr. Green then advised the Supervising Grand Jury
          Judge that if Mr. Peoples were called as a witness,
          Mr. Peoples would invoke his Fifth Amendment
          privilege against self-incrimination. The Supervising
          Grand Jury Judge took the parties’ motions under
          advisement. However, subsequent to this meeting,
          the Commonwealth re-evaluated its position and
          decided not to call Mr. Peoples as a witness. Both
          the present attorney for the Commonwealth and
          present PCRA counsel have represented to the Court
          that, due to the Commonwealth’s final decision not
          to call Mr. Peoples[] as a witness, the litigation
          concerning the Commonwealth’s motion to disqualify
          Mr. Green as counsel became moot and no Order



                                  -2-
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              was ever entered with respect thereto by the
              Supervising Grand Jury Judge.

                    A few months after [appellant’s] conviction and
              sentencing, [appellant] met Mr. Peoples at a state
              prison. After their meeting, [appellant] obtained
              from Mr. Peoples two signed Affidavits stating that
              the altercation at the Turkey Hill[1] in the summer of
              2005 was solely between [appellant] and Mr. Peoples
              and that Corey Jennings had nothing to do with it.
              In these Affidavits, among other things, Mr. Peoples
              states that it was he who stole [appellant’s] chain,
              not Mr. Jennings, and asserts that the chain he
              placed into Mr. Jennings’ casket was not the same
              one that had belonged to [appellant.]           In other
              words, he is attempting to undermine the
              Commonwealth’s proof of motive and their theory of
              the case. In these affidavits, Mr. Peoples claims that
              he would have been willing and able to testify at
              [appellant’s] trial, but states that trial counsel Green
              informed him that [appellant] did not wish to utilize
              him as a witness.

                     Again following his conviction and sentence,
              [appellant] obtained from David Christopher Johnson
              a signed Affidavit claiming that his trial testimony
              was a lie. In this Affidavit, Mr. Johnson denied
              having been with [appellant] at the time of
              Mr. Jennings’ murder and states that he lied at trial
              in order to procure an advantageous plea deal with
              the Commonwealth. However, after Mr. Johnson’s
              Affidavit surfaced, the Commonwealth initiated an
              investigation    into  the  allegations    made   by
              Mr. Johnson. Chester County Detective Thomas J.
              Goggin interviewed Mr. Johnson.         According to
              Detective Goggin’s subsequent report, Mr. Johnson
              disclaimed the statements made in his December 4,
              2014 Affidavit, stating that he was forced to sign
              that instrument at knife point by two fellow inmates
              he stated he believed were acting at [appellant’s]
              behest.


1
    Turkey Hill is a convenience store.


                                          -3-
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PCRA court opinion, 7/28/15 at 4-8.

      The PCRA court also provided the following additional procedural

history as it relates to the appeal before us:

                   On September 9, 2013, [appellant] filed a
            pro se first timely PCRA petition. By Order dated
            September 12, 2013, [the PCRA court] appointed
            PCRA counsel to represent [appellant] in connection
            with his first timely PCRA petition. After several
            changes in PCRA counsel and continuances to
            accommodate them, present counsel filed an
            Amended PCRA petition on [appellant’s] behalf on
            August 7, 2014. The Commonwealth filed its Answer
            to [appellant’s] Amended PCRA petition on
            September 26, 2014.        [Appellant] replied to the
            Commonwealth’s Answer on December 17, 2014.
            On January 6, 2015, [appellant] moved to
            supplement his PCRA petition.        By Order dated
            February 10, 2015, [the PCRA court] granted
            [appellant] leave of court to amend his PCRA petition
            with the supplemental petition he filed on January 6,
            2015.     The Commonwealth filed an Answer to
            [appellant’s]   Supplemental     PCRA    Petition  on
            January 27, 2015.       [Appellant] replied to the
            Commonwealth’s Answer on March 20, 2015. On
            April 2, 2015, [appellant] again moved to
            supplement his PCRA petition.        By Order dated
            April 13, 2015, [the PCRA court] granted [appellant]
            leave of court to amend his PCRA petition in
            accordance with the motion he filed on April 2, 2015.

                  During the course of these filings, on
            March 10, 2015 the Commonwealth filed a Motion
            in Limine seeking to admit prior immunized
            testimony of [appellant] given before the Chester
            County    Thirteenth  Investigating  Grand     Jury.
            [Appellant] responded to this Motion on March 26,
            2015. On March 24, 2015, the Commonwealth filed
            a Memorandum of Law wherein the Commonwealth
            made a motion in limine to exclude from
            consideration the December 4, 2014 Affidavit of one
            David Christopher Johnson attached to [appellant’s]


                                      -4-
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              January 6, 2015 Motion for Leave to Amend [PCRA]
              Petition as Exhibit A.

                     On March 27, 2015 and April 6, 2015, [the
              PCRA court] held an evidentiary hearing on
              [appellant’s] PCRA Petition, as amended and
              supplemented by counsel as discussed above. At the
              first of these two PCRA hearings, [the PCRA court]
              granted the Commonwealth’s motion in limine to
              exclude Mr. Johnson’s December 4, 2014 Affidavit
              from consideration.    At the second hearing, the
              Commonwealth withdrew its Motion in limine
              seeking to admit portions of earlier immunized
              testimony given by [appellant] before the Grand
              Jury. At the conclusion of the April 6, 2015 hearing,
              [the PCRA court] took [appellant’s] first PCRA
              petition as amended and supplemented under
              advisement.

PCRA court opinion, 7/28/15 at 1-2.

        On July 28, 2015, the PCRA court dismissed appellant’s PCRA petition.

Appellant filed a timely notice of appeal on August 24, 2015. On August 28,

2015, the PCRA court ordered appellant to produce a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).           Appellant

filed his concise statement on October 12, 2015, and the PCRA court filed an

opinion pursuant to Pa.R.A.P. 1925(a) on October 21, 2015.

        Appellant raises the following five issues for our review:

              I.    Did the lower court err in denying appellant’s
                    claim that he should receive a new trial based
                    on the Commonwealth, in violation of Brady v.
                    Maryland,[2] failing to provide to the defense
                    a video interview of a critical potential defense
                    witness whose testimony offered compelling
                    substantive and impeachment evidence and

2
    Brady v. Maryland, 373 U.S. 83 (1963).


                                       -5-
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                   despite counsel specifically requesting       the
                   evidence in question prior to trial?

            II.    Did the lower court err in denying appellant’s
                   claim that his conviction resulted from the
                   ineffective assistance of his trial counsel due to
                   counsel failing to investigate a witness whose
                   testimony would have served to substantially
                   undermine the Commonwealth’s case?

            III.   Did the lower court err in denying appellant’s
                   claim that his trial counsel was ineffective due
                   to a conflict of interest that existed between
                   counsel, appellant, and another of counsel’s
                   clients, Duron Peoples; a potential fact witness
                   who      possessed      important,     first-hand
                   knowledge     about     the   facts   underlying
                   appellant’s case?

            IV.    Did the lower court err in denying appellant’s
                   claim that his trial counsel was ineffective for
                   failing to investigate his own client, Duron
                   Peoples, with respect to one of the central
                   evidentiary issues in appellant’s case?

            V.     Did the lower court err in denying appellant’s
                   claim that his discovery following his conviction
                   that an item of evidence presented by the
                   Commonwealth at trial -- specifically, a
                   necklace exhumed from the casket of the
                   deceased, which the Commonwealth claimed
                   was the proceeds of an earlier robbery of
                   appellant and provided the motive for the
                   murder in his case -- was not the necklace the
                   Commonwealth claimed it to be?

Appellant’s brief at 4 (capitalization omitted).3


3
  At the outset, we note that the Pennsylvania Rules of Appellate Procedure
limit a principal brief to 14,000 words, unless the brief does not exceed
30 pages. Pa.R.A.P. 2135(a)(1). Where the brief exceeds 30 pages, a
certificate of compliance with the 14,000 word-count limit must be filed. Id.
Here, appellant’s principal brief is 80 pages in length--nearly three times the


                                      -6-
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     PCRA petitions are subject to the following standard of review:

           “[A]s a general proposition, we review a denial of
           PCRA relief to determine whether the findings of the
           PCRA court are supported by the record and free of
           legal error.” Commonwealth v. Dennis, 609 Pa.
           442, 17 A.3d 297, 301 (Pa. 2011) (citation omitted).
           A PCRA court’s credibility findings are to be accorded
           great deference, and where supported by the record,
           such determinations are binding on a reviewing
           court. Id. at 305 (citations omitted). To obtain
           PCRA relief, appellant must plead and prove by a
           preponderance of the evidence: (1) his conviction or
           sentence resulted from one or more of the errors
           enumerated in 42 Pa.C.S. § 9543(a)(2); (2) his
           claims have not been previously litigated or waived,
           id. § 9543(a)(3); and (3) “the failure to litigate the
           issue prior to or during trial . . . or on direct appeal
           could not have been the result of any rational,
           strategic or tactical decision by counsel[.]”            id.
           § 9543(a)(4). An issue is previously litigated if “the
           highest appellate court in which [appellant] could
           have had review as a matter of right has ruled on
           the merits of the issue[.]” Id. § 9544(a)(2). “[A]n
           issue is waived if [appellant] could have raised it but
           failed to so before trial, at trial, . . . on appeal or in a
           prior state postconviction proceeding.”                  Id.
           § 9544(b).

Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015).

     Under the PCRA, an individual is eligible for post-conviction relief if the

conviction was the result of “[a] violation of the Constitution of this




maximum page length prescribed by Rule 2135(a)(1). Counsel, however,
filed a petition pursuant to Rule 2135(a)(1) requesting permission to exceed
the brief’s maximum word count and page limit. See DeMasi v. DeMasi,
530 A.2d 871, 874 n.1 (Pa.Super. 1987), appeal denied, 539 A.2d 811 (Pa.
1988). We will grant appellant’s petition and consider all issues on their
merits.


                                      -7-
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Commonwealth or the Constitution or laws of the United States which, in the

circumstances of the particular case, so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken

place.” 42 Pa.C.S.A. § 9543(a)(2)(i).

      The PCRA also permits relief when a conviction is the result of

“ineffective assistance of counsel which, in the circumstances of the

particular case, so undermined the truth-determining process, that no

reliable adjudication of guilt or innocence could have taken place.”   Id. at

§ 9543(a)(2)(ii).

                                        I.

      In his first issue on appeal, appellant avers that the Commonwealth

failed to provide a video interview of Willie Suber, which appellant alleges,

contains exculpatory information and was otherwise valuable to appellant.

(Appellant’s brief at 29.)

            In interpreting [] federal precedent [], this Court has
            explained that, in order to establish a Brady
            violation, a defendant must show that: (1) evidence
            was suppressed by the state, either willfully or
            inadvertently; (2) the evidence was favorable to the
            defendant, either because it was exculpatory or
            because it could have been used for impeachment;
            and (3) the evidence was material, in that its
            omission resulted in prejudice to the defendant. See
            Commonwealth v. Lambert, 584 Pa. 461, 471,
            884 A.2d 848, 854 (2005); Commonwealth v.
            Collins, 585 Pa. 45, 68, 888 A.2d 564, 577-78
            (2005). However, “[t]he mere possibility that an
            item of undisclosed information might have helped
            the defense, or might have affected the outcome of
            the trial, does not establish materiality in the


                                     -8-
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           constitutional    sense.”        Commonwealth       v.
           Chambers, 570 Pa. 3, 29, 807 A.2d 872, 887
           (2002) (citation omitted and emphasis added).
           Rather, evidence is material “only if there is a
           reasonable probability that, had the evidence been
           disclosed to the defense, the result of the proceeding
           would have been different. A reasonable probability
           is a probability sufficient to undermine confidence in
           the outcome.”      Id. at 29, 807 A.2d at 887-88
           (quoting [United States v. Bagley, 473 U.S. 667,
           682 (1985)]).

Commonwealth v. Willis, 46 A.3d 648, 656 (Pa. 2012) (plurality). “When

conducting this analysis in the PCRA context, a defendant must establish

that the alleged Brady violation ‘so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken

place.’” Commonwealth v. Haskins, 60 A.3d 538, 547 (Pa.Super. 2012),

appeal   denied,    78   A.3d   1090   (Pa.   2013),   citing   42   Pa.C.S.A.

§ 9543(a)(2)(i); Commonwealth v. Copenhefer, 719 A.2d 242, 259 (Pa.

1998), cert. denied, 528 U.S. 830 (1999).      Our supreme court has also

held that, “no Brady violation occurs where the parties had equal access to

the information or if the defendant knew or could have uncovered such

evidence with reasonable diligence.” Commonwealth v. Morris, 822

A.2d 684, 696 (Pa. 2003), citing Commonwealth v. Paddy, 800 A.2d 294,

305 (Pa. 2002) (emphasis added).

     The record reflects that appellant’s trial counsel was first made aware

that Suber’s interview with the police was videotaped when he received,

prior to trial, the police’s typed interview summary, which alluded to the



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existence of a tape of the interview. (Notes of testimony, 3/27/15 at 132.)

Because trial counsel became aware of the tape prior to trial, in order to

preserve a Brady claim for the purposes of PCRA review, the claim would

have had to have been raised either before or during trial, during unitary

review,   direct   appeal,   or     a   prior    state   post-conviction   proceeding.

42 Pa.C.S.A. § 9544(b).      Failure to do so would result in waiver for the

purposes of PCRA review.          Id.   A PCRA petitioner may circumvent waiver

only by demonstrating an ineffectiveness of counsel in waiving the issue.

Commonwealth v. Albrecht, 720 A.2d 693, 700 (Pa. 1998).

      After a careful review of the record, at no point prior to his PCRA

petition does appellant raise a Brady claim before the court either before or

during trial, during unitary review, or on direct appeal. Contrary to the next

three issues before us on appeal, appellant did not raise the Brady claim as

a layered ineffective assistance of counsel claim. Accordingly, the issue is

waived and appellant is not entitled to relief.

                                           II.

      In his next three issues for our review, appellant avers that his trial

counsel, Joseph Green, Esq., provided ineffective assistance of counsel. For

his second issue, appellant specifically avers that Attorney Green provided

ineffective assistance due to his alleged failure to investigate Suber as a

potential defense witness. (Appellant’s brief at 44.)




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     When considering whether counsel was ineffective, we are governed

by the following standard:

                        [C]ounsel is presumed effective,
                 and to rebut that presumption, the PCRA
                 petitioner    must    demonstrate      that
                 counsel’s performance was deficient and
                 that such deficiency prejudiced him.
                 Strickland v. Washington, 466 U.S.
                 668 (1984). This Court has described
                 the Strickland standard as tripartite by
                 dividing the performance element into
                 two          distinct         components.
                 Commonwealth v. Pierce, 527 A.2d
                 973, 975 (Pa. 1987). Accordingly, to
                 prove counsel ineffective, the petitioner
                 must     demonstrate     that   (1)     the
                 underlying legal issue has arguable
                 merit; (2) counsel’s actions lacked an
                 objective reasonable basis; and (3) the
                 petitioner was prejudiced by counsel’s
                 act or omission.       Id.    A claim of
                 ineffectiveness will be denied if the
                 petitioner’s evidence fails to satisfy any
                 one of these prongs.

           Commonwealth v. Busanet, 54 A.3d 34, 45 (Pa.
           2012) (citations formatted).      Furthermore, “[i]n
           accord with these well-established criteria for review,
           [an appellant] must set forth and individually discuss
           substantively each prong of the Pierce test.”
           Commonwealth v. Fitzgerald, 979 A.2d 908, 910
           (Pa.Super. 2009).

Commonwealth v. Perzel, 116 A.3d 670, 671-672 (Pa.Super. 2015).

     When evaluating whether counsel was ineffective for failing to

investigate a potential witness, we are bound by the following standard:

           The duty to investigate, of course, may include a
           duty to interview certain potential witnesses; and a
           prejudicial failure to fulfill this duty, unless pursuant


                                    - 11 -
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          to a reasonable strategic decision, may lead to a
          finding  of   ineffective assistance.     Recently
          summarizing cases in Commonwealth v. Dennis,
          597 Pa. 159, 950 A.2d 945 (2008), this Court stated
          that:

                These cases . . . arguably stand for the
                proposition that, at least where there is a
                limited amount of evidence of guilt, it is
                per se unreasonable not to attempt to
                investigate    and     interview    known
                eyewitnesses in connection with defenses
                that hinge on the credibility of other
                witnesses. They do not stand, however,
                for the proposition that such an omission
                is per se prejudicial.

          Id. at 960 (citing Perry, supra; Commonwealth v.
          Weiss, 530 Pa. 1, 606 A.2d 439, 442-43 (1992);
          Commonwealth v. (Harold) Jones, 496 Pa. 448,
          437 A.2d 958 (1981); Commonwealth v. Mabie,
          467 Pa. 464, 359 A.2d 369 (1976)) (emphasis
          omitted).    Indeed, such a per se failing as to
          performance, of course, does not make out a case of
          prejudice, or overall entitlement to Strickland relief.

          When raising a failure to call a potential witness
          claim, the PCRA petitioner satisfies the performance
          and prejudice requirements of the Strickland test
          by establishing that:

                (1) the 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 a fair trial.

          Commonwealth v. Washington, 592 Pa. 698, 927
          A.2d 586, 599 (2007). To demonstrate Strickland
          prejudice, the PCRA petitioner “must show how the


                                  - 12 -
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              uncalled witnesses’ testimony would have been
              beneficial under the circumstances of the case.”
              Commonwealth v. Gibson, 597 Pa. 402, 951 A.2d
              1110, 1134 (2008); see also Commonwealth v.
              Chmiel, 585 Pa. 547, 889 A.2d 501, 546 (2005)
              (“Trial counsel’s failure to call a particular witness
              does not constitute ineffective assistance without
              some showing that the absent witness’ testimony
              would have been beneficial or helpful in establishing
              the asserted defense.”).

Commonwealth v. Johnson, 966 A.2d 523, 535-536 (Pa. 2009).

        We agree with the PCRA court’s finding that appellant’s claim is

without merit. Specifically, the PCRA court reached the following conclusion

that Suber’s testimony would not have been helpful to the defense at trial:

                     The Commonwealth’s probe of Willie Suber’s
              testimony     at   the    PCRA    hearing   obliterates
              [appellant’s] claim that Mr. Suber’s testimony would
              have been helpful to him.               . . . [O]n
              cross-examination Mr. Suber admitted that he was
              not at his mother’s apartment for the entirety of the
              evening on which Mr. Jennings was shot.[4] Thus,
              he would not have known if someone came to or left
              the apartment during the time that he was absent.
              Willie Suber’s testimony would not have helped
              [appellant] because his assertion that no one came
              to or left Ms. Beckett’s apartment on the night of the
              Jennings homicide would have been easily
              discredited on cross-examination.          [Appellant]
              himself, when he identified Mr. Suber to trial counsel
              Green, added the caveat that “I don’t know if he’s
              useful.” [Appellant] cannot, on this record, claim
              prejudice by counsel’s failure to find the fault with
              Willie Suber’s testimony earlier.

PCRA court opinion, 7/28/15 at 33-34 (citations omitted).



4
    Suber’s mother is Adrienne Beckett. (Notes of testimony, 3/27/15 at 207.)


                                      - 13 -
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      Because there is support in the record for the PCRA court’s

determination     of   fact,    we   are    bound        to   the   lower   court’s   factual

determination. See Treiber, 121 A.3d at 444. Based on the PCRA court’s

factual determinations, we find that appellant has not met his burden in

proving that had Suber been investigated and called as a witness at trial, his

testimony would have been helpful in establishing appellant’s defense.

Accordingly, appellant’s claim is without arguable merit.

                                            III.

      For his third issue on appeal, appellant avers that Attorney Green

provided ineffective assistance of counsel because of an alleged conflict of

interest   that   existed      as   the   result    of    Attorney    Green’s   concurrent

representation of appellant and Duron Peoples. (Appellant’s brief at 57.)

      When considering whether counsel rendered ineffective assistance as a

result of dual representation, we are held to the following standard:

             As our Court recently explained, a petitioner “cannot
             prevail on a conflict of interest claim absent a
             showing of actual prejudice.” Commonwealth v.
             Weiss, [81 A.3d 767 (Pa. 2013)]; see also
             Commonwealth v. Hawkins, 567 Pa. 310, 787
             A.2d 292, 297 (2001) (offering that petitioner must
             demonstrate that counsel’s prior representation of
             Commonwealth witness adversely affected counsel’s
             representation of petitioner under PCRA).         We
             further explained that, although prejudice is
             presumed when there exists an actual conflict of
             interest, this presumption is only applicable when
             counsel actively represented conflicting interests.
             Weiss, [81 A.3d at 794 n. 16]. Where counsel does
             not actively represent conflicting interests, a claim



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               based upon the appearance of a conflict of interest
               lacks merit. Id.

Commonwealth v. Reid, 99 A.3d 427, 442-443 (Pa. 2014) (citations

omitted).      “To establish an actual conflict of interest hampered counsel,

[a petitioner] must show counsel actively represented conflicting interests

and    the       conflict   adversely         affected   counsel’s      performance.”

Commonwealth v. Solano, 129 A.3d 1156, 1168 (Pa. 2015), citing

Commonwealth v. Padilla, 80 A.3d 1238, 1248 (Pa. 2013) (citations

omitted), cert. denied,          U.S.        , 134 S.Ct. 2725 (2014).

      In    an   attempt    to   establish    that   Attorney   Green   was   actively

representing conflicting interests to the point that his performance was

adversely affected, appellant avers that Attorney Green’s dual representation

of appellant and Peoples prevented Attorney Green from calling Peoples as a

witness for the defense at trial.               (See appellant’s brief at 71-72.)

Specifically, appellant alleges that Attorney Green was prevented from

calling Peoples as a witness because doing so would place Peoples in

jeopardy of facing potential criminal charges for his role in the incident at

Turkey Hill.

      The record belies appellant’s averments.            As noted in more detail

infra, Peoples had invoked his Fifth Amendment right to not incriminate

himself, and was accordingly unavailable to testify. As noted by the PCRA

court, Attorney Green’s “performance was not adversely affected by his dual

representation of [appellant] and Mr. Peoples.           [Appellant] could not have


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obtained a different result even if Mr. Peoples[] had been represented by

other counsel or had represented himself.” (PCRA court opinion, 7/28/15 at

45-46.) Because Peoples would have been unavailable to testify, regardless

of who was representing him based on his decision to exercise his Fifth

Amendment rights, appellant is unable to demonstrate an actual prejudice

as a result of Attorney Green’s dual representation of both appellant and

Peoples. Accordingly, we find appellant’s claim to be without merit.

                                     IV.

      In his fourth issue on appeal, appellant avers that Attorney Green

provided ineffective assistance for failing to investigate Duron Peoples as a

witness.   (Appellant’s brief at 72.)      Specifically, appellant alleges that

Attorney Green should have investigated Peoples regarding the necklace that

Peoples placed in Jennings’ casket and whether that necklace was the same

necklace that was stolen from appellant during the incident at Turkey Hill in

the summer of 2005. Appellant’s claim is without merit.

      At the PCRA hearing, Attorney Green testified that Peoples told him

that Jennings had taken the chain from appellant.        (Notes of testimony,

3/27/15 at 179-180.) Peoples’ account to Attorney Green corroborated the

theory that the Commonwealth presented at trial that appellant killed

Jennings as revenge for stealing his chain during the incident at Turkey Hill.

(See notes of testimony, 6/8/12 at 132.) When Peoples was subpoenaed to

appear before the grand jury investigating Jennings’ death, Attorney Green



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testified that he advised Peoples to invoke his Fifth Amendment right against

self-incrimination by refusing to answer any questions about the case unless

the Commonwealth granted him immunity.5 (Notes of testimony, 3/27/15 at

180.) In his testimony at the PCRA hearing, Attorney Green discussed his

appearance with Peoples before the grand jury’s supervising judge, during

which Attorney Green recalled disclosing the following to the supervising

judge:   “At sometime [sic] before the killing of Mr. Jennings there was a

meeting at the Turkey Hill located near 340 and 82.          At that meeting

Mr. Jennings had taken from Mr. Handfield a chain that Mr. Handfield was

wearing.” (Id. at 178.) According to Attorney Green’s testimony, Peoples

never told him that the account he provided to the supervising judge was

inaccurate, and that Peoples had “communicated to [him] that Jennings had

taken the chain and it was not his, Peoples’ idea.” (Id. at 179.)

      The PCRA court made the following finding of fact and credibility

determination:

            As an after-the-fact recantation of [Peoples’]
            previous position, the veracity of his testimony and
            these Affidavits is inherently suspect.[Footnote 6]
            Indeed, Mr. Peoples[] admitted at the PCRA hearing
            that, at the time of the Grand Jury investigation into
            Corey Jennings’ homicide, he refused to testify,
            despite suggestions by county detectives that he
            could help himself in other legal matters with which
            he was involved.       Mr. Peoples testified he told
            detectives, “I don’t want to help nobody.” [(Notes of

5
  Attorney Green advised Peoples to invoke his Fifth Amendment rights
because Peoples’ testimony regarding the incident at Turkey Hill may have
incriminated himself for robbery. (Id. at 116.)


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           testimony, 4/6/15 at 259-260.)]         In his own
           testimony at the PCRA hearing, Mr. Peoples
           contradicted himself about his supposed willingness
           to aid the defense at the time he was given the
           opportunity to testify about his knowledge of the
           Jennings homicide prior to charges being filed
           against [appellant.] (Id.) Consequently, [the PCRA
           court found] his post-trial narrative of the events
           surrounding the Jennings homicide and his
           assertions that he would have testified had he been
           asked to be dubious at best and not worthy of
           credence.

                 [Footnote 6:] Trial counsel testified that
                 the information [appellant] provided him
                 during the course of his representation of
                 [appellant] in connection with the
                 above-captioned matter corroborated
                 Mr. Peoples’ account that Corey Jennings
                 took the chain from [appellant], not
                 Mr. Peoples.     ([Notes of testimony,
                 3/27/15 at 187-188.)       Appellant] and
                 Mr. Peoples,   whose      statements    to
                 counsel prior to and during the trial of
                 this matter, by counsel’s account,
                 coincided on all material points and
                 reflected Mr. Jennings’ responsibility for
                 the physical theft of [appellant’s] chain
                 cannot now be countenanced to profit
                 from manipulating the system by
                 coordinating       their       testimonies
                 post-conviction to assert a contrary
                 position.[6]

6
  Indeed, Peoples’ recorded prison conversations, as read into the record at
the PCRA hearing, reflect a desire to “profit from manipulating the system”
by asserting a contrary position post-conviction. Peoples admitted to saying
the following in a recorded conversation with his girlfriend at the Chester
County Prison:

           Because they are trying, the whole thing is, they’re
           trying to say that boy Peen [Jennings] took [] Earl’s
           necklace. . . . And I told them that. I said I told my
           lawyer, like I want to tell them that I did that. . . .


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J. S38010/16



            Because the [PCRA court credits] the testimony of
            Mr. Green over that of Mr. Peoples, [the PCRA court
            finds] that there was no conflict between [appellant]
            and Mr. Peoples prior to or during [appellant’s] trial,
            such that there was no reason to call Mr. Peoples as
            a witness in [appellant’s] trial because he could not
            provide any testimony that would have been helpful
            to the defense.

PCRA court opinion, 7/28/15 at 42-43 (citations omitted); see also id. at 48

(“[W]e do not credit Mr. Peoples’ PCRA testimony or Affidavits stating that

he would have been available and willing to testify on [appellant’s] behalf at

[appellant’s] 2009 trial, nor do we credit his testimony and Affidavits

concerning the substance of what he allegedly would have testified to . . .”).

      As noted supra, we are bound by the PCRA court’s determination of

facts and credibility, so long as support for the PCRA court’s conclusions can

be found in the record. See Treiber, 121 A.3d at 444. Because there is

ample support in the record for the PCRA court’s factual findings and

credibility determinations, we are, therefore, bound to them.     Accordingly,

we find that appellant’s claim that Attorney Green was ineffective for failing




            He [Jennings] didn’t have nothing to do with this.
            He didn’t do nothing about this s***. . . . He didn’t
            know nothing about none of this. He was there,
            yeah, but he had nothing to do with this s***. . . .
            So that this time, so by me saying that, . . . [i]s
            f***ing up their [the Commonwealth’s] whole
            situation and by me telling them that the lawyer
            knew that, because we both had the same lawyer.

Notes of testimony, 4/6/15 at 289-290.


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to investigate Peoples as a potential witness is without merit.         The record

indicates that Attorney Green did discuss the incident at Turkey Hill with

Peoples, and that Peoples’ account of the incident corroborated the

Commonwealth’s theory of the case.

                                          V.

         For his fifth and final issue for our review, appellant avers that Peoples’

later testimony regarding the necklace placed in the victim’s casket and

whether that particular necklace was the same one stolen from appellant

constitutes after-discovered evidence, which would warrant a new trial.

(Appellant’s brief at 76.) Because we determined that Attorney Green was

not ineffective for failing to investigate and call Peoples as a witness, we

must      now    consider   whether   Peoples’   changed   statement    constitutes

after-discovered evidence, which would warrant granting appellant a new

trial.

                We have explained that when a petitioner is seeking
                a new trial based on alleged after-discovered
                evidence in the form of recantation testimony, the
                petitioner must establish that: (1) the evidence has
                been discovered after trial and it 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 to impeach credibility; and
                (4) it would likely compel a different verdict.
                Commonwealth v. Johnson, 600 Pa. 329, 966
                A.2d 523, 541 (2009); Commonwealth v.
                Washington, 592 Pa. 698, 927 A.2d 586, 595-96
                (2007); Commonwealth v. D’Amato, 579 Pa. 490,
                856 A.2d 806, 823 (2004); Commonwealth v.
                Wilson, 538 Pa. 485, 649 A.2d 435 (1994).
                Further, the proposed new evidence must be


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            producible and admissible.    [Commonwealth v.
            Scott, 470 A.2d 91, 93 (Pa. 1983)].

Commonwealth v. Smith, 17 A.3d 873, 887 (Pa. 2011), cert. denied,

U.S.     , 133 S.Ct. 24 (2012).

       In regards to recantation testimony, our supreme court has instructed

the following:

            Recantation testimony is extremely unreliable.
            Commonwealth v. McCracken, 540 Pa. 541, 659
            A.2d 541 (1995); Commonwealth v. Nelson, 484
            Pa. 11, 398 A.2d 636 (1979); Commonwealth v.
            Coleman, 438 Pa. 373, 264 A.2d 649 (1970). When
            the recantation involves an admission of perjury, it is
            the least reliable form of proof. Coleman. The trial
            court has the responsibility of judging the credibility
            of the recantation. Nelson. Unless the trial court is
            satisfied that the recantation is true, it should deny a
            new trial. Nelson; Coleman. An appellate court
            may not disturb the trial court’s determination
            absent a clear abuse of discretion. Nelson.

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

       Here, appellant’s affidavits are synonymous with recantation testimony

because they equate to a change in testimony. The PCRA court, as noted

above, judged the credibility of Peoples’ recantation, and in so doing,

determined that Peoples’ recantation was not credible.         Specifically, the

PCRA court found neither Peoples’ affidavits7 nor his testimony during the

PCRA hearing to be credible. As we noted above, the record provides ample


7
  Peoples executed two affidavits in which he indicated that he was willing to
testify at appellant’s trial regarding the incident at Turkey Hill, and that the
incident at Turkey Hill was only between Peoples and appellant, and that
Jennings was not involved. (Notes of testimony, 4/6/15 at 268-269.)


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support for the PCRA court’s determination of credibility. Accordingly, there

is no clear abuse of discretion; therefore, we cannot disturb the PCRA court’s

determination.   As a result, appellant’s after-discovered evidence claim is

without merit.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/20/2016




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