J-A10027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

RAYMOND ROBERT DAVIS

                          Appellant                    No. 1238 MDA 2014


                Appeal from the Order Entered May 1, 2014
             In the Court of Common Pleas of Luzerne County
            Criminal Division at No(s): CP-40-CR-0002292-2010


BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.:                               FILED APRIL 24, 2015

      Appellant, Raymond Robert Davis, appeals from the May 1, 2014

order, denying his first petition for relief filed pursuant to the Post Conviction

Relief Act, 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

      The PCRA court summarized the relevant factual and procedural

history of this case as follows.

            [T]he Commonwealth alleged in general that a
            confidential informant … contacted [Appellant], also
            known as “G” or “Gutter”, and arranged for … a
            controlled purchase of heroin, which did occur at an
            apartment located at 58 North Hancock Street,
            Wilkes-Barre, Pennsylvania on April 7, 2010. At
            approximately the same time that [the C.I.] entered
            the North Hancock Street residence, surveillance
            being conducted in the area by Pennsylvania State
            Troopers observed [Appellant] leave a nearby
            apartment located at 27 Dougher Lane, Wilkes-Barre
            and enter the North Hancock Street residence. [The
            C.I.] informed the Troopers that he observed
J-A10027-15


              [Appellant] enter the North Hancock Street residence
              and provide the heroin for the sale. Similar contacts
              and/or sales were made on April 15, 2010 and April
              22, 2010.

                    On April 28, 2010, search warrants were
              executed at 58 North Hancock Street, Wilkes-Barre
              and 27 Dougher Lane, Wilkes-Barre simultaneously.
              A large amount of [c]rack [c]ocaine, [p]owder
              [c]ocaine, and [h]eroin were seized along with
              packaging materials, cutting agents, and scales and
              a surveillance system with cameras pointing both
              North and South along Dougher Lane. Also located
              was a large amount of U.S. [c]urrency in various
              denominations. The Commonwealth alleged that the
              Dougher Lane [r]esidence was a “stash house” (a
              place where drugs were stored) and that the North
              Hancock residence was the place where sales
              occurred.     The Commonwealth contended that
              [Appellant] was the director of drug operations at
              [the] Dougher Lane and North Hancock Street
              residences as part of a heroin, cocaine, and crack
              cocaine sales conspiracy.

                   Commencing      on   November    14,  2011,
              [Appellant] was tried before a jury of his peers,
              found guilty and convicted of [three counts of
              possession with intent to deliver (PWID) and two
              counts of criminal conspiracy1] on November 18,
              20[11.]

                                               …

                     On January 18, 2012, [Appellant] was
              sentenced by [the trial court] to an aggregate
              sentence of 6 ½ to 13 years[’ imprisonment.
              Specifically, the trial court imposed a sentence of 18
              months’ to three years for each conspiracy count,
              five to ten years’ for one PWID charge, three to six
              years for the second PWID count, and no further
____________________________________________
1
    35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 903(a), respectively.



                                           -2-
J-A10027-15


              penalty on the third PWID charge. The conspiracy
              sentences were to run concurrently to each other
              and the PWID sentences were to run concurrently to
              each other. However, the conspiracy sentences were
              to run consecutively to the PWID sentences.]

                                               …

              On April 5, 2012, [Appellant] filed a [n]un[c] [p]ro
              [t]unc [n]otice of [a]ppeal. On [March 12], 2013,
              [this Court] affirmed the [j]udgment of [s]entence in
              this case. [Commonwealth v. Davis, 69 A.3d 1289
              (Pa. Super. 2013), appeal denied, 74 A.3d 1029 (Pa.
              2013).] On [September 17], 2013, the Pennsylvania
              Supreme Court denied [Appellant]’s [p]etition for an
              [a]llowance of [a]ppeal. [Id.]

PCRA Court Opinion, 8/15/14, at 1-3.

       On January 16, 2014, Appellant filed a timely counseled PCRA petition,

requesting a new trial on the basis of after-discovered evidence.2 The PCRA

court conducted an evidentiary hearing on May 1, 2014. At the conclusion of



____________________________________________
2
  Neither Appellant, the Commonwealth, nor the PCRA court characterize the
petition as a PCRA petition. However, we note that Appellant did not file the
instant petition until after the conclusion of his direct appeal. This Court has
consistently held that any filing by a defendant after his or her direct appeal
has concluded is to be construed as a PCRA petition. Commonwealth v.
Taylor, 65 A.3d 462, 466 (Pa. Super. 2013); see also Pa.R.Crim.P. 720
cmt. (stating, “after-discovered evidence discovered after completion of the
direct appeal process should be raised in the context of the PCRA[]”). A
claim of after-discovered evidence is explicitly cognizable under the PCRA.
42 Pa.C.S.A. § 9543(a)(2)(vi). As a result, Appellant’s January 16, 2014
petition seeking a new trial on the basis of after-discovered evidence was his
first PCRA petition. Additionally, we note that a prisoner is entitled to
counsel on his first PCRA petition. See generally Pa.R.Crim.P. 904(C).
Appellant’s instant petition was counseled; accordingly there is no
representation issue in this case.



                                           -3-
J-A10027-15


said hearing, the PCRA court denied Appellant’s petition. On May 28, 2014,

Appellant filed a timely notice of appeal.3

       On appeal, Appellant raises one issue for our review.

               Did the [PCRA] court err in not granting a new trial?

Appellant’s Brief at 5.

       We begin by noting our well-settled standard of review. “In reviewing

the   denial    of   PCRA    relief,   we      examine   whether   the   PCRA   court’s

determination is supported by the record and free of legal error.”

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation

marks and citation omitted). “The scope of review is limited to the findings

of the PCRA court and the evidence of record, viewed in the light most

favorable to the prevailing party at the trial level.”             Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).               “It is well-settled

that a PCRA court’s credibility determinations are binding upon an appellate

court so long as they are supported by the record.”                Commonwealth v.

Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this

Court reviews the PCRA court’s legal conclusions de novo. Commonwealth

v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).

Furthermore, we note that our Supreme Court has consistently articulated



____________________________________________
3
  Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



                                            -4-
J-A10027-15


the following four-part test to determine whether a defendant is entitled to a

new trial on the basis of after-discovered evidence.

            The evidence: (1) could not have been obtained prior
            to trial by exercising reasonable diligence; (2) is not
            merely corroborative or cumulative; (3) will not be
            used solely to impeach a witness’s credibility; and
            (4) would likely result in a different verdict.

Commonwealth v. Castro, 93 A.3d 818, 821 n.7 (Pa. 2014).

      The alleged after-discovered evidence in this case is in the form of an

affidavit from Bryan Pearl. Appellant argues that he should receive a new

trial on the basis of Pearl’s affidavit, in which Pearl claims full responsibility

for all of the drugs found and “reliev[es] [Appellant] from responsibility

claiming [Appellant] was innocent of any wrongdoing and of the charges

filed against him.” Appellant’s Brief at 9. The Commonwealth counters that

“Appellant erroneously argues that the [sic] Bryan Pearl’s testimony was

unavailable at the time of his trial and could not have been obtained prior to

the conclusion of trial; thereby satisfying the first prong of the four-prong

standard in this regard.” Commonwealth’s Brief at 5.

      In the context of after-discovered evidence claims, this Court has

defined the “reasonable diligence” duty of a defendant in the following

manner.

                  To obtain a new trial based on after-discovered
            evidence, the petitioner must explain why he could
            not have produced the evidence in question at or
            before trial by the exercise of reasonable diligence. A
            defendant may unearth information that the party
            with the burden of proof is not required to uncover,

                                      -5-
J-A10027-15


           so long as such diligence in investigation does not
           exceed what is reasonably expected.           Thus, a
           defendant has a duty to bring forth any relevant
           evidence in his behalf. A defendant cannot claim he
           has discovered new evidence simply because he had
           not been expressly told of that evidence. Likewise, a
           defendant who fails to question or investigate an
           obvious, available source of information, cannot later
           claim evidence from that source constitutes newly
           discovered evidence.       The concept of reasonable
           diligence is particularly relevant where the defendant
           fails to investigate or question a potential witness
           with whom he has a close, amicable relationship.

Commonwealth v. Padillas, 997 A.2d 356, 363-364 (Pa. Super. 2010)

(internal citations omitted), appeal denied, 14 A.3d 286 (Pa. 2010).

     In this case, Appellant and Pearl were originally supposed to be co-

defendant’s in the same trial. On the day of trial, all parties informed the

trial court that the Commonwealth had offered plea bargains.            N.T.,

11/14/11, at 6, 8. Appellant rejected the Commonwealth’s offer. Id. at 9.

The Commonwealth informed the trial court that part of its plea deal with

Pearl was that he not testify for either the Commonwealth or Appellant at

Appellant’s trial. Id. at 13. The trial court informed the Commonwealth that

it would not likely accept such a plea agreement.          Id. at 14.    The

Commonwealth then twice rescinded its offer to Pearl on the record. Id. at




                                    -6-
J-A10027-15


15, 16.    After further discussion on the record, the transcript notes that

Pearl did plead guilty and Appellant went to trial.4 Id. at 18.

       At the close of the Commonwealth’s case, Appellant informed the trial

court that it had subpoenaed Pearl to testify in Appellant’s defense. Id. at

318.    Pearl was present with his attorney in the courtroom during this

discussion. Id. at 319. Despite being under subpoena, Pearl informed the

trial court “that he does not wish to testify … because he[ was] concerned

for his girlfriend[.]” Id. at 318. Specifically, Pearl was allegedly “informed

by someone from the [Commonwealth] … that his girlfriend will not get the

… sentence she was promised” if Pearl testified at Appellant’s trial.       Id. at

319. Appellant acquiesced in Pearl’s non-willingness to testify, did not put

him on the stand, and allowed him to leave the courtroom.5 Id. at 321.

       The Commonwealth and the PCRA court argue that Appellant did not

satisfy the first prong of the after-discovered evidence framework, relying on

this Court’s decision in Padillas.             In Padillas, the defendant’s after-

discovered evidence was his brother, who testified at an evidentiary hearing,
____________________________________________
4
  As we noted on direct appeal, the record does not reveal the terms of the
final plea agreement between Pearl and the Commonwealth, though based
on the events that did occur, we presume this did not include the condition
that Pearl not testify on Appellant’s behalf. Davis, supra at 14.
5
  On direct appeal, Appellant argued that his rights under the Compulsory
Process Clause of the Sixth Amendment were violated by the Commonwealth
“intimidating” Pearl into not testifying. Davis, supra at 13. This Court
concluded that Appellant had waived this argument by failing to raise an
objection in the trial court. Id. at 15-16.



                                           -7-
J-A10027-15


similar to the instant case, that the drug transactions involved in the case

were conducted by him and his friends, not by the defendant. Id. at 361.

The Commonwealth argued that Padillas’ brother’s statement about his own

involvement was available to him and could have been uncovered with the

exercise of reasonable diligence. Id. at 362. The trial court had declared

the brother as “unavailable” due to a presumed invocation of his privilege

under the Self-Incrimination Clause of the Fifth Amendment.       Id. at 361.

This Court concluded the trial court “erred as a matter of law when it simply

inferred the unavailability of Daniel’s confession, given the absence of

questions about potentially incriminating topics, simply because Daniel

could have invoked his rights if asked incriminating questions.” Id. at 366-

367 (emphasis in original).     This Court further concluded that Padillas’

brother was “available” for the purposes of trial. Id. at 367.

      In this case, after Pearl pled guilty, Appellant subpoenaed him to

testify in his defense. However, despite being under a subpoena to testify,

Pearl stated that he was not willing to testify. Instead of taking any steps to

compel Pearl to testify, Appellant instead acquiesced in Pearl’s unwillingness.

In our view, Pearl was available to testify, and reasonable diligence required

Appellant to take some steps to compel his testimony, such as putting him

on the witness stand. If he still refused to answer any questions, Appellant

could have asked the trial court for a finding of unavailability, or to take

other remedial steps to compel Pearl’s testimony, such as a direction to


                                     -8-
J-A10027-15


answer, or a finding of contempt.              Although the Fifth Amendment is not

specifically at issue here, similar to Padillas, just because Pearl might not

wish to answer Appellant’s questions on the witness stand did not render

him unavailable, nor did it absolve Appellant of taking reasonable steps to

secure the same.6 It is undisputed here that Pearl was present and available

to testify to the information Appellant now avers is after-discovered

evidence. As a result, we conclude Appellant is not entitled to a new trial on

the basis of after-discovered evidence.             See Castro, supra; Padillas,

supra.

       Based on the foregoing, we conclude the PCRA court properly denied

Appellant’s PCRA petition on the basis of after-discovered evidence.          See

Fears, supra. Accordingly, the PCRA court’s May 1, 2014 order is affirmed.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/24/2015



____________________________________________
6
  Because we conclude Appellant has failed to satisfy the first-prong of the
after-discovered evidence test, we need not discuss the remaining three
prongs. See Castro, supra.



                                           -9-
