J-S14040-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    NUTTA VERDIER                              :
                                               :
                       Appellant               :   No. 1440 EDA 2018

                   Appeal from the PCRA Order April 19, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0008626-2010


BEFORE:      LAZARUS, J., NICHOLS, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                             FILED APRIL 1, 2019

        Nutta Verdier (Verdier) appeals from the order entered by the Court of

Common Pleas of Philadelphia County (PCRA court) dismissing his petition filed

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

We affirm.

        We take the following relevant facts and procedural history from the

PCRA court’s April 19, 2018 opinion and our independent review of the record.

On October 12, 2012, a jury convicted Verdier of Third-Degree Murder,

Attempted Murder, Conspiracy, Aggravated Assault, Firearms Not to be

Carried Without a License, and Possession of an Instrument of a Crime.1

Verdier’s conviction stems from his role in a shoot-out involving three co-

conspirators on a Philadelphia street, during which a bystander was shot and
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1   18 Pa.C.S. §§ 2502(c), 901(a), 903, 2702(a), 6106, and 907, respectively.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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killed and another injured. The trial court sentenced Verdier to an aggregate

term of not less than nineteen and one-half nor more than sixty years of

imprisonment. Following reinstatement of his direct appeal rights nunc pro

tunc,2 we affirmed the judgment of sentence on September 11, 2017. Verdier

did not seek further review in our Supreme Court.

       Verdier, acting pro se, filed the instant, timely PCRA petition on

November 8, 2017, and appointed counsel subsequently filed an amended

petition. Verdier claimed a right to relief based on after-discovered evidence

in the form of affidavits prepared by his co-conspirator turned Commonwealth

witness Jacque Warren and his brother, Sharif Warren. At trial, Jacque Warren

testified that Verdier, along with his co-conspirators, shot at a rival and the

bystander was killed in the crossfire. However, in his affidavit, dated May 27,

2015, Jacque Warren recants this testimony and avers that Verdier was not

present when the shooting took place. (See J. Warren Affidavit, 5/27/15).

Sharif Warren’s statement similarly avers that when he visited his brother in

prison in 2011, Jacque conceded that Verdier was innocent and was not

present at the scene of the shooting. (See S. Warren Statement, 8/05/13).

Sharif’s statement is dated August 5, 2013.




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2 Verdier’s initial direct appeal in 2013 was dismissed when his counsel failed
to file a brief in the matter.




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        After issuing notice of its intent to do so3, the PCRA court entered an

order and opinion dismissing Verdier’s petition.4      He then filed this appeal

arguing that the PCRA court erred in denying relief on his claim of after-

discovered evidence based on Jacque Warren’s recantation statements and

that the PCRA Court improperly denied his PCRA counsel’s request for a

continuance.5

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3   See Pa.R.Crim.P. 907(1).

4   In denying the PCRA Petition the trial court stated:

        In light of the evidence as a whole, it is clear that Warren’s
        recantation is unreliable. At trial, Cobb unequivocally testified
        that the Petitioner stepped out from the minivan and immediately
        started shooting at him, and that he returned fire. N.T. 10/9/2012
        at 21—22. In an interview with police, Cobb identified the
        Petitioner, Cooper, and Warren as participants, which was
        corroborated by Warren’s own statement to police and his
        testimony. Warren’s recantation is further contradicted by the
        ballistics evidence recovered from the crime scene, which
        indicated that the perpetrators used three different firearms to
        shoot at Cobb and strike the decedent. N.T. 10/3/2012 at 237—
        252. Although Warren attempts to claim that he and his brother
        acted alone, his contention is belied by the Philadelphia Police
        Department’s recovery of the getaway vehicle—which was
        registered to Cooper’s grandmother Joyce Chavis—across a
        shared driveway from Cooper’s home at 5410 Belmar Terrace.
        Because every element of Warren’s account is directly
        contradicted by the physical evidence and eyewitness accounts,
        his recantation is incredible.

        Trial Court Opinion pp. 12-13.

5 “On appeal from the denial of PCRA relief, our standard of review calls for us
to determine whether the ruling of the PCRA court is supported by the record
and free of legal error.” Commonwealth v. Williams, 196 A.3d 1021, 1027



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       We begin by addressing Verdier’s claim that the PCRA court erred in

denying relief on his claim of after-discovered evidence based on Jacque

Warren’s recantation statements.           The PCRA makes clear that that to be

eligible for relief, a petitioner must plead and prove that “the allegation of

error has not been previously litigated or waived.” 42 Pa.C.S. § 9543(a)(3).

“[A]n issue is waived if the petitioner could have raised it but failed to do so

before trial, at trial, during unitary review, on appeal or in a prior state

postconviction proceeding.”        42 Pa.C.S. § 9544(b).   With respect to after-

discovered evidence, Pennsylvania Rule of Criminal Procedure 720 provides:

“A post-sentence motion for a new trial on the ground of after-discovered

evidence must be filed in writing promptly after such discovery.” Pa.R.Crim.P.

720(C). Accordingly, “after-discovered evidence discovered during the direct

appeal process must be raised promptly during the direct appeal process, and

should include a request for a remand to the trial judge[.]” Id., Comment.

       Here, the affidavits from Jacque Warren and Sharif Warren, which form

the basis for Verdier’s after-discovered evidence claim, are dated May 27,

2015, and August 5, 2013, respectively. During that timeframe, Verdier had

been convicted and sentenced and was pursuing a direct appeal. Because he

failed to raise the claim of after-discovered evidence on direct appeal as

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(Pa. 2018) (citation omitted). “The PCRA court’s credibility determinations,
when supported by the record, are binding on this Court; however, we apply
a de novo standard of review to the PCRA court’s legal conclusions.” Id.
(citation omitted).


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required under Rule 720(C), Verdier has waived it on collateral review. See

Pa.R.Crim.P. 720(C); Commonwealth v. Ford, 809 A.2d 325, 329 (Pa.

2002), cert denied, 540 U.S. 1150 (2004) (claims that could have been raised

on direct appeal but were not are waived under PCRA and cannot offer basis

for relief). He is, therefore, not eligible for relief on this basis. See 42 Pa.C.S.

§ 9543(a)(3).6

       Verdier also challenges the PCRA court’s denial of his counsel’s request

for a continuance, which he claims was necessary to review trial counsel’s file

to investigate a potential ineffectiveness claim. (See Verdier’s Brief, at 21-

24).

       Appellate review of a PCRA court’s continuance decision is deferential.

See Commonwealth v. Brooks, 104 A.3d 466, 469 (Pa. 2014).                      “The

decision to grant a continuance is within the sound discretion of the trial court,



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6 Though not raised in this appeal, Verdier argued before the trial court that
his appellate counsel was ineffective for failing to raise the issue of Warren’s
recantation on direct appeal. The trial court found that:

       Petitioner presents no evidence to support his argument that
       appellate counsel was aware or should have been aware of
       Warren’s recantation at the time of direct appeal. Based on the
       Petitioner’s own averments, it appears that even he was unaware
       of Warren’s alleged recantation until May 27, 2015, when he
       obtained Warren’s signed affidavit. The Petitioner further fails to
       present any evidence that he informed appellate counsel of
       Warren’s recantation and requested that he raise the issue on
       appeal. The instant claim has no merit.

Trial Court’s Opinion p. 14.

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and   we   will   reverse   only   if   the   court   has   abused   its   discretion.”

Commonwealth v. Paddy, 15 A.3d 431, 470 (Pa. 2011) (citation omitted).

“[A]n abuse of discretion is not merely an error of judgment.                  Rather,

discretion is abused when the law is overridden or misapplied, or the judgment

exercised is manifestly unreasonable, or the result of partiality, prejudice,

bias, or ill-will, as shown by the evidence or the record. . . .” Brooks, supra

at 469 (citation omitted).

      Here, the record reflects that the PCRA court had already granted

counsel for Verdier a continuance of over a month when counsel made another

request for a continuance. The court denied the request because “counsel has

failed to show why a continuance was necessary, or that he took reasonable

efforts to secure the information that he alleges is required.” (PCRA Court

Opinion, 4/19/18, at 16). After review of the record, we discern no abuse of

discretion in the PCRA court’s denial of Verdier’s request for a second

continuance. See Paddy, supra at 470.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/1/19




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