Com. v. McClellan, A. ( 2016 )

J-S19010-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTHONY MCCLELLAN,
Appellant No. 1672 EDA 2015
Appeal from the Judgment of Sentence Entered October 22, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s):
CP-51-CR-0001705-2010
CP-51-CR-0001706-2010
BEFORE: BENDER, P.J.E., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 23, 2016
Appellant, Anthony McClellan, appeals nunc pro tunc from the
judgment of sentence of 6 to 14 years’ incarceration, imposed after he was
convicted, following a non-jury trial, of two counts each of aggravated
assault (18 Pa.C.S. § 2702), simple assault (18 Pa.C.S. § 2701), recklessly
endangering another person (REAP) (18 Pa.C.S. § 2705), and resisting
arrest (18 Pa.C.S. § 5104). Appellant challenges the trial court’s denial of
his post-sentence motion for a new trial based on after-discovered evidence.
We affirm.
The trial court summarized the evidence presented at Appellant’s non-
jury trial, as follows:
Philadelphia Police Officer William Kozlowski testified that
on October 16, 2009, he was in full uniform in a marked police
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car, with his partner, Philadelphia Police Officer Deborah
Jackson. He was conducting surveillance of the Top to Bottom
Bar located at the 800 block of North 40th Street, after a recent
string of bar robberies in West Philadelphia. At approximately
8:30 p.m., Officer Kozlowski saw [Appellant] come out from
behind the bar and walk down 40th Street towards a Chinese
Food Store. Because [Appellant] looked familiar, Officer
Kozlowski approached [Appellant] believing he may have
information about the robberies in the area.
As he approached, Officer Kozlowski asked [Appellant],
“Hey do you know what’s going on around here?” [Appellant
then] swung at [the officer] with a closed fist and put both hands
on Officer Kozlowski’s chest and pushed him backwards. Officer
Kozlowski[] testified that a struggle ensued and [Appellant]
punched him twelve more times, striking him in the face, chest,
and body.
Philadelphia Police Officer Deborah Jackson testified that
on October 16, 2009, she and her partner, Officer Kozlowski,
were conducting surveillance of the area surrounding the Top to
Bottom Bar. She testified [that] at approximately 8:30 p.m., …
she saw [Appellant] exit the Bar. She exited the vehicle and
stood on the sidewalk with Officer Kozlowski, who then
approached [Appellant] to ask him a question. [Appellant] then
“swung at [the officer] with a closed fist in the face and
connected.” Officer Jackson tried to intervene in the struggle
and was kicked numerous times and knocked off balance.
Two out-of-town firefighters, Mr. Robert Roberts and Mr.
Patrick Ward testified that … they came across the struggle
between Officer Kozlowski, Officer Jackson and [Appellant]. Mr.
Roberts testified that he saw [Appellant] punch Officer Kozlowski
in the face and the leg. Mr. Ward testified [that] he saw
[Appellant] “striking the police.” Both men testified that they
exited their vehicles and aided the police officers to hold
[Appellant] down so the [o]fficers could place him in hand-cuffs
[sic].
Trial Court Opinion (TCO), 8/24/15, at 3-4 (citations to the record omitted).
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Based on this evidence, the court convicted Appellant of the above-
stated offenses. On October 22, 2013, he received an aggregate sentence
of 6 to 14 years’ incarceration.
On November 21, 2013, [Appellant] filed an untimely,
post-trial motion for “Extraordinary Relief,” seeking a new trial
[on the basis of] the unavailability [at trial] of a favorable
witness. On March 20, 2014, the [trial] [c]ourt held an
evidentiary hearing to consider [Appellant’s] motion. When the
[c]ourt inquired at this hearing[] into the nature of [the] witness
testimony, [Appellant’s] [c]ounsel stated [that] the witness was
a family member [of Appellant] who, “Would testify that
[Appellant] didn’t strike [the] officers….” (N.T., 3/20/2014 p.6).
However, when the [c]ourt asked if the witness was present to
offer that testimony, [c]ounsel responded that the witness was
not present and that [counsel] “didn’t have a working [phone]
number for him.” (N.T., 3/20/2014 p.6). The [c]ourt then
asked [Appellant] if he could provide an affidavit to substantiate
… what the witness would testify [to if called to the stand]….
Counsel informed the [c]ourt that he did not have such an
affidavit. (N.T., 3/20/2014 p.6). At the conclusion of the
hearing, the [c]ourt denied [Appellant’s] motion and permitted
counsel to withdraw. (N.T., 3/20/2014 p.7).
TCO at 6-7.
Appellant did not file a timely notice of appeal from his judgment of
sentence. Instead, on September 2, 2014, he filed a pro se petition under
the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, seeking the
restoration of his direct appeal rights. Counsel was appointed and filed an
amended petition. On June 8, 2015, the PCRA court granted Appellant’s
petition and reinstated his right to file a direct appeal nunc pro tunc. The
next day, Appellant filed a timely notice of appeal. Appellant also
subsequently complied with the trial court’s order to file a Pa.R.A.P. 1925(b)
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concise statement of errors complained of on appeal. On August 24, 2015,
the trial court filed a Rule 1925(a) opinion.
Herein, Appellant raises one issue for our review: “Did the trial court
abuse its discretion by failing to consider[,] or was trial counsel ineffective
for failing to present[,] the newly-discovered testimony of Walter Smith?”
Appellant’s Brief at 4. In support of this claim, Appellant contends that the
trial court erred by denying his motion for a new trial based on the after-
discovered evidence of the testimony of Walter Smith. According to
Appellant, Smith would have testified that he witnessed the interaction
between Appellant and the police officers, and that, during the encounter,
Appellant did not strike the officers. See Appellant’s Brief at 12.
In reviewing Appellant’s claim, we apply the following standard:
When we examine the decision of a trial court to grant a
new trial on the basis of after-discovered evidence, we ask only
if the court committed an abuse of discretion or an error of law
which controlled the outcome of the case. Discretion is abused
when the course pursued represents not merely an error of
judgment, but where the judgment is manifestly unreasonable or
where the law is not applied or where the record shows that the
action is a result of partiality, prejudice, bias or ill will. If a trial
court erred in its application of the law, an appellate court will
correct the error.
Commonwealth v. Padillas, 997 A.2d 356, 361 (Pa. Super. 2010).
Additionally,
[t]o be granted a new trial … on the basis of after-discovered
evidence:
[The defendant] must demonstrate that the evidence: (1)
could not have been obtained prior to the conclusion of the
trial by the exercise of reasonable diligence; (2) is not
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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. Pagan, 597 Pa. 69, 106, 950 A.2d 270, 292
(2008), cert. denied, ––– U.S. ––––, 129 S.Ct. 1378, 173
L.Ed.2d 633 (2009) (quoting Commonwealth v. Randolph,
582 Pa. 576, 587, 873 A.2d 1277, 1283 (2005), cert. denied,
547 U.S. 1058, 126 S.Ct. 1659, 164 L.Ed.2d 402 (2006)). The
test is conjunctive; the defendant must show by a
preponderance of the evidence that each of these factors has
been met in order for a new trial to be warranted. See Pagan,
supra; Commonwealth v. Rivera, 939 A.2d 355, 359 (Pa.
Super. 2007), appeal denied, 598 Pa. 774, 958 A.2d 1047(2008).
Padillas, 997 A.2d at 363.
Here, Appellant fails to prove that the trial court abused its discretion
by denying his motion for a new trial based on the ostensibly new evidence
of Smith’s testimony. First, Appellant did not present Smith as a witness at
the evidentiary hearing on March 20, 2014, nor did he produce an affidavit
from Smith to verify what his testimony would be. See TCO at 6.1 Instead,
at that hearing, defense counsel simply informed the court that Smith
“would … testify that [Appellant] didn’t strike the officers,” which counsel
conceded was “contrary to, I believe, six other witnesses.” N.T. Hearing,
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1
We note that Appellant has attached to his appellate brief an affidavit from
Smith. However, that affidavit is not contained in the certified record, and it
was not provided to the trial court. Accordingly, we cannot consider it. See
Bennyhoff v. Pappert, 790 A.2d 313, 318 (Pa. Super. 2001) (stating “[i]t
is black letter law in this jurisdiction that an appellate court cannot consider
anything which is not part of the record in [the] case”).
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3/20/14, at 6. Based on defense counsel’s comments, the trial court
concluded that Smith’s testimony would “merely attempt[] to impeach the
testimony of six witnesses[,]” and that “there is little likelihood that the
testimony would have changed the outcome of the trial….” TCO at 7. We
ascertain no abuse of discretion in the court’s decision.
In any event, we also note that Appellant does not specifically explain
why he could not have obtained Smith’s testimony prior to the conclusion of
trial, had he exercised due diligence. Indeed, Appellant acknowledges that
defense counsel knew about Smith’s existence during trial, and when the
court asked if counsel was prepared to call Smith as a witness, counsel
replied, “I haven’t spoken with him. So I have no idea what he’s going to
tell me. He just came to me at the break.” N.T. Trial, 3/28/13, at 68; see
also Appellant’s Brief at 13. At that point, “[t]he [c]ourt granted a
continuance for more than ten days so [Appellant] would have sufficient
time to prepare his case and [the] witness before trial resumed.” TCO at 6.
When trial resumed on May 9, 2013, after [Appellant’s] request
for yet another continuance, [Appellant] presented his case,
testifying on his own behalf, but presented no other witnesses.
(N.T., 5/9/13 p. 9). Prior to [Appellant’s] resting, the [c]ourt
inquired of [Appellant] if he ha[d] any other witness[,] to which
[c]ounsel replied…[,] “No.” (N.T., 5/9/13 p.25).
Id.Appellant claims that “Smith was not presented on the second day of
trial on May 9, 2013 because, apparently, his wife was giving birth.”
Appellant’s Brief at 13. Appellant asserts that his trial counsel subsequently
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learned the full “content of [Smith’s] prospective testimony” and filed the
post-sentence motion seeking a new trial. Id. at 12. However, Appellant
offers no explanation regarding why he, or his attorney, could not have
discovered the ‘full content’ of Smith’s testimony prior to the filing of his
post-sentence motion for a new trial. Accordingly, Appellant has not proven
the first prong of the after-discovered evidence test.
Finally, we point out that Appellant devotes a large portion of his
argument to claiming that his trial counsel acted ineffectively by not calling
Smith to the stand at trial, or at the evidentiary hearing on Appellant’s post-
sentence motion. Preliminarily, Appellant did not raise any claim of trial
counsel’s ineffectiveness in his Rule 1925(b) statement; thus, this argument
is waived. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the
Statement and/or not raised in accordance with the provisions of this
paragraph (b)(4) are waived.”). In any event, even if Appellant’s
ineffectiveness claim were preserved, we would decline to review it on direct
appeal. In Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our
Supreme Court reaffirmed its prior holding in Commonwealth v. Grant,
813 A.2d 726 (Pa. 2002), that, absent certain circumstances, claims of
ineffective assistance of counsel should be deferred until collateral review
under the PCRA. Holmes, 79 A.3d at 576. The specific circumstances
under which ineffectiveness claims may be addressed on direct appeal are
not present in the instant case. See id. at 577-78 (holding that the trial
court may address claim(s) of ineffectiveness where they are “both
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meritorious and apparent from the record so that immediate consideration
and relief is warranted,” or where the appellant’s request for review of
“prolix” ineffectiveness claims is “accompanied by a knowing, voluntary, and
express waiver of PCRA review”).
In sum, Appellant has not met the four-pronged test for demonstrating
that he is entitled to a new trial based on the after-discovered evidence of
Smith’s testimony. Accordingly, the trial court did not abuse its discretion in
denying his post-sentence motion for a new trial. We also decline to review,
in this direct appeal, Appellant’s waived claim of trial counsel’s
ineffectiveness.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/23/2016
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