Com. v. Perez, C. ( 2023 )

J-S36044-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CARLOS PEREZ :
:
Appellant : No. 2237 EDA 2022
Appeal from the PCRA Order Entered August 19, 2022
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010665-2011
BEFORE: BOWES, J., NICHOLS, J., and KING, J.
MEMORANDUM BY KING, J.: FILED OCTOBER 26, 2023
Appellant, Carlos Perez, appeals from the order entered in the
Philadelphia County Court of Common Pleas, which denied his first petition
filed pursuant to the Post Conviction Relief Act (“PCRA”), upon remand from
this Court.1 We affirm.
The relevant facts and procedural history of this case are as follows. On
July 11, 2013, Appellant entered a negotiated guilty plea to third-degree
murder, conspiracy, and possessing instruments of crime. In exchange for
the plea, the Commonwealth recommended a sentence of 20 to 40 years of
incarceration and agreed to nolle prosse the remaining charges.
At Appellant’s guilty plea hearing, Appellant acknowledged that his plea
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1 42 Pa.C.S.A. §§ 9541-9546.
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was based upon the following facts:
On April 15th, 2011[,] the two defendants Angel Suarez, Jr.
and [Appellant] went to the 3000-block of Water Street here
in Philadelphia in search for Angel Suarez [Vargas], Sr., the
[co-]defendant’s father.
* * *
When they arrived on the block, they did find Angel Suarez
Vargas and engaged him in a physical altercation. During
that altercation both defendants physically fought Angel
Suarez Vargas. Another individual on the block by the name
of Ian Wolbert saw the fight and jumped into the fight to
help Angel Suarez Vargas.
After the fight stopped, the two defendants left the same
way they arrived, in a burgundy Honda Accord with a black
primer door. About 10 minutes later the two defendants
returned in the same burgundy Honda Accord. This time
both had firearms. The two defendants saw both Ian
Wolbert and Angel Suarez Vargas and chased them, and
both fired their guns in the direction of Ian Wolbert and
Angel Suarez Vargas. One of those bullets struck a 46-year-
old female by the name of Sandra Laboy in her back. Her
body was transported to Temple Hospital where she was
pronounced dead. Her remains were taken to the medical
examiner’s office where she was examined by Dr. Sam
Gulino. The cause of death was a gunshot wound to her
back, and he concluded to a reasonable degree of scientific
certainty that the manner of death was homicide.
* * *
Homicide investigators interviewed a number of witnesses
in the neighborhood who described four individuals in a
fight, described two Hispanic males leaving in a burgundy
Honda Accord and describe[d] those same two individuals
as coming back and firing guns on the block. Some of those
witnesses were able to identify Ian Wolbert and Angel
Suarez Vargas by photo spread but were unable to identify
the two defendants seated at the bar of the court.
Based on this information[,] on April 17th, 2011[,] members
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of the Homicide Unit interviewed Ian Wolbert who provided
a statement identifying Angel Suarez Vargas as the person
he helped, and also telling Homicide that when the
defendants had left the scene initially Angel Suarez Vargas
told Ian Wolbert that one of those people was his son.
On May 2nd, 2011[,] Angel Suarez Vargas was interviewed
by Homicide, provided a statement detailing what [he had]
just said, and identified both defendants as the defendants
who were shooting guns on the 3000-block of Water Street.
Those two defendants were placed in photo spreads and on
May 3rd, 2011[,] both were identified by Ian Wolbert.
On May 11th, 2011[,] affidavits and arrest warrants were
generated for both defendants. On May 23rd, 2011[,] Angel
Suarez was arrested on the 2000-block of North 7th Street
and after being provided his Miranda[2] warnings did
provide a statement to Homicide admitting to his
participation in the offense.
On May 31st, 2011[,] at the intersection of Kensington and
Allegheny[,] [Appellant] was arrested during a routine
traffic stop. During that stop officers had recognized
[Appellant] as wanted for murder. [Appellant] attempted to
flee from the car but was apprehended a short distance
away.
(N.T. Guilty Plea Hearing, 7/1/13, at 60-63). At the conclusion of the
summary, Appellant agreed that it was “a fair account of what happened” and
that he was pleading guilty because he was guilty. (Id. at 64-65). Following
the plea, the trial court sentenced Appellant to an aggregate sentence of 20
to 40 years of imprisonment. Appellant did not file a direct appeal.
On June 30, 2014, Appellant timely filed a pro se PCRA petition,
asserting ineffective assistance of counsel and after-discovered evidence.
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2 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
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Appellant attached to the petition an affidavit from co-defendant Suarez in
which he attests that he “had done wrong by putting someone in this position
that is innocent,” and that a friend known to him as “Pito” participated in the
shooting. (Pro Se PCRA Petition, 6/30/14, Exhibit 2 at 2 (English Translation
of co-defendant Suarez’s Affidavit)). Thereafter, the court appointed counsel,
who filed an amended PCRA petition on May 30, 2017, reasserting these
claims. The PCRA court dismissed the petition without a hearing on May 21,
2018. Appellant timely appealed.
On appeal, a panel of this Court concluded that the PCRA court erred in
denying Appellant’s after-discovered evidence claim without first conducting
an evidentiary hearing. This Court concluded that all of Appellant’s other
claims were meritless. Therefore, this Court vacated the PCRA court’s order
in part and remanded for an evidentiary hearing limited to the issue of the
after-discovered evidence claim. See Commonwealth v. Perez, 221 A.3d
1250 (Pa.Super. 2019) (unpublished memorandum).
The PCRA court detailed the subsequent procedural history as follows:
On September 17, 2021, an evidentiary hearing was held
with Appellant where Appellant and Co-Defendant [Suarez]
testified. Appellant’s witness…, Co-Defendant Angel Suarez,
Jr., testified that an individual named “Pito”, real name Alvin
Ortiz Del Ollo, Co-Defendant [Suarez’s] brother-in-law, was
the actual second shooter instead of Appellant. At the time
of Co-Defendant [Suarez] testifying at the evidentiary
hearing, Pito was dead, having allegedly been murdered in
Puerto Rico two years earlier. (N.T. Hearing, 9/17/21, at
49). On May 12, 2022, Appellant testified at a follow-up
evidentiary hearing, stating that he pled guilty because he
was scared that everyone was going to continue lying as
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they did in their statements and at the preliminary hearing
and that he did not know that Co-Defendant [Suarez] was
going to come forward and say that Appellant did not
commit the shooting in question.
(PCRA Court Opinion, filed 11/10/22, at 3) (citation formatting provided;
footnote omitted).
On August 19, 2022, the PCRA court denied relief. Appellant filed a
timely notice of appeal on August 29, 2022. The PCRA court subsequently
ordered Appellant to file a concise statement of errors complained of on appeal
per Pa.R.A.P. 1925(b), and Appellant filed his concise statement on September
27, 2022.
Appellant presents one issue for our review:
Did the PCRA court err by denying [Appellant’s] request for
PCRA relief in the form of a new trial by concluding that the
after-discovered evidence would not have compelled a
different outcome at the stage of the plea negotiations?
(Appellant’s Brief at 5).
We review a PCRA court’s order denying relief to determine whether the
court’s findings of fact are supported by the record, and whether its legal
conclusions are free from error. Commonwealth v. Conway, 14 A.3d 101108 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795 (2011). This
Court grants great deference to the findings of the PCRA court if the record
contains any support for those findings. Commonwealth v. Boyd, 923 A.2d
513, 515 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007).
Further, a PCRA court’s credibility determinations should be given great
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deference; we are bound by the credibility determinations of the PCRA court
if those determinations are supported by the record. Commonwealth v.
Johnson, 600 Pa. 329, 345, 966 A.2d 523, 532 (2009).
Appellant argues that if he had known that co-defendant Suarez would
have testified the other shooter was not Appellant, he would not have pled
guilty. Appellant insists that the fact that he would not have pled guilty in
light of co-defendant Suarez’s new testimony is sufficient to satisfy the
requirements of an after-discovered evidence claim. Appellant concludes the
PCRA court erred by denying his claim of after-discovered evidence, and this
Court must grant relief. We disagree.
A petitioner asserting an after-discovered evidence claim under the
PCRA must plead and prove 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. Cox, 636 Pa. 603, 614, 146 A.3d 221, 228 (2016)
(quoting Commonwealth v. D’Amato, 579 Pa. 490, 519, 856 A.2d 806, 823
(2004)).3 “At an evidentiary hearing, an appellant must show by a
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3 Although Appellant’s conviction resulted from a guilty plea, rather than a
trial, the analysis of his claim remains the same. Our Supreme Court has held
that “any after-discovered evidence which would justify a new trial would also
entitle a defendant to withdraw his guilty plea.” Commonwealth v. Peoples,
456 Pa. 274, 275, 319 A.2d 679, 681 (1974).
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preponderance of the evidence that each of these factors has been met in
order for a new trial to be warranted.” Commonwealth v. Rivera, 939 A.2d
355, 359 (Pa.Super. 2007), appeal denied, 598 Pa. 774, 958 A.2d 1047(2008) (internal citations omitted).
In making the determination of whether after-discovered evidence
would likely compel a different verdict, “a court should consider the integrity
of the alleged after-discovered evidence, the motive of those offering the
evidence, and the overall strength of the evidence supporting the conviction.”
Commonwealth v. Padillas, 997 A.2d 356, 365 (Pa.Super. 2010). Where
the alleged after-discovered evidence is recantation testimony, “the PCRA
court must, in the first instance, assess the credibility and significance of the
recantation in light of the evidence as a whole.” Commonwealth v. Small,
647 Pa. 423, 450–51, 189 A.3d 961, 977 (2018) (quoting D’Amato, supra
at 523, 856 A.2d at 825). “Unless the [PCRA] court is satisfied that the
recantation is true, it should deny a new trial.” Commonwealth v. Henry,
550 Pa. 346, 363, 706 A.2d 313, 321 (1997) (citations omitted).
Further,
an appellate court may not interfere with the [PCRA court’s
decision regarding] a new trial where the sole ground is the
alleged recantation of state witnesses unless there has been
a clear abuse of discretion. Additionally, the deference
normally due to the findings of the PCRA court is
accentuated where what is involved is recantation
testimony. As such, it was within the exclusive province of
the PCRA court to determine the credibility of [the witness’s]
recantation. Finding no clear abuse of discretion on the part
of the PCRA court in making its credibility determination,
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this Court is bound to accept it.
Commonwealth v. Medina, 92 A.3d 1210, 1219 (Pa.Super. 2014), appeal
dismissed as improvidently granted, 636 Pa. 77, 140 A.3d 675 (2016)
(citations, internal quotation marks, and original brackets omitted).
Instantly, in denying Appellant’s claim of after-discovered evidence, the
PCRA court found that co-defendant Suarez’s testimony lacked the indicia of
reliability. The court explained that the statement and testimony at the PCRA
hearing, “by nature of being recantation, were incredibly unreliable and were
also riddled with inconsistencies refuted by the available record.” (PCRA Court
Opinion at 7). The PCRA court noted that both defendants pled guilty after
hearing the factual basis for their plea. The court explained that co-defendant
Suarez’s explanation as to why he originally said that Appellant was involved
in the shooting was “incredibly weak.” (Id. at 11). Specifically:
Co-Defendant Angel Suarez Jr. alleged in his affidavit that
he went along with a story concocted by his father to blame
Appellant as a way of helping himself out of the trouble he
was in for shooting at his father. However, Co-Defendant
Angel Suarez Jr. blaming Appellant for the shooting does not
explain why Co-Defendant Angel Suarez Jr. would then still
plead guilty. …[T]his shows that Co-Defendant Angel
Suarez Jr.’s justifications for lying were incredibly weak and
this…new ‘truth’ had no indicia of reliability.
(Id.) Moreover, the court then explained that co-defendant Suarez’s
statement was contradicted by the available record, stating:
Both Co-Defendant Angel Suarez Jr.’s father and Ian
Wolbert identified Co-Defendant Angel Suarez Jr. and
Appellant as the shooters, undercutting the new allegation
that “Pito” was the second shooter. Contrary to what Co-
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Defendant Angel Suarez Jr. stated, neighbors who
witnessed the shooting only saw two individuals, not three.
Those same neighbors also saw the shooters running toward
Co-Defendant Angel Suarez Jr.’s father and Ian Wolbert
while firing their weapons, not away from the victims as Co-
Defendant Angel Suarez Jr. alleged in his affidavit.
(Id.)
Upon our review of the record, we see no clear abuse of discretion by
the PCRA court in rejecting co-defendant Suarez’s statement as incredible.
See Medina, supra. As the PCRA court noted, the evidence of Appellant’s
guilt included the testimony of two eyewitnesses who identified Appellant as
the shooter soon after the shooting. Assessing this evidence against co-
defendant Suarez’s incredible conflicting account, the record supports the
court’s decision to deny relief. See Small, supra; Henry, supra.Accordingly, we affirm.
Order affirmed.
Date: 10/26/2023
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