Com. v. Corbett, T. ( 2021 )

J-S35041-19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TYREEK CORBETT, :
:
Appellant : No. 2040 EDA 2017
Appeal from the PCRA Order June 2, 2017
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1007721-1997
BEFORE: OLSON, J., STABILE, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED: JANUARY 8, 2021
Tyreek Corbett (Appellant) appeals from the June 2, 2017 order
dismissing his petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. On September 10, 2019, we remanded
the case for the PCRA court to determine whether Appellant is entitled to
appointed counsel for this appeal. The court has appointed counsel, and
Appellant’s case is now ready for disposition. Upon review, we affirm.
By way of background, in our September 10, 2019 memorandum, we
detailed the underlying facts and procedural history of this case.
On November 17, 1996, Appellant and Anthony Baker fired
numerous shots at James Ward, Cleveland Scott, Eric Woodson,
and Leroy DeShield. Ward died as a result of the gunshot
wounds. Scott identified Appellant as one of the shooters, and
another eyewitness identified Appellant as being at the scene,
standing over Ward’s body after the shooting.
*Retired Senior Judge assigned to the Superior Court.
J-S35041-19
Following a jury trial, Appellant was convicted of first-
degree murder, possessing an instrument of crime, and criminal
conspiracy. Appellant was sentenced to life imprisonment for the
murder conviction, followed by an aggregate term of
incarceration of 8 to 16 years on the remaining convictions. On
appeal, this Court affirmed Appellant’s judgment of sentence,
and our Supreme Court denied his petition for allowance of
appeal on November 1, 2000. Commonwealth v. Corbett, 761
A.2d 1231 (Pa. Super. 2000) (unpublished memorandum),
appeal denied, 764 A.2d 1064 (Pa. 2000).
Appellant, through counsel, timely filed his first PCRA
petition on October 24, 2001, and a supplemental amended
petition on April 15, 2003. The PCRA court dismissed the petition
without a hearing. On appeal, this Court affirmed that order, and
our Supreme Court denied his petition for allowance of appeal.
Commonwealth v. Corbett, 888 A.2d 3 (Pa. Super. 2005)
(unpublished memorandum), appeal denied, 895 A.2d 1259 (Pa.
2006).
On July 25, 2014, Appellant, through privately-retained
counsel, Alan Tauber, Esquire, filed the instant PCRA petition,
claiming that his petition was timely filed pursuant to the newly-
discovered facts exception to the PCRA’s time-bar. Specifically,
Appellant claimed that he filed his petition within 60 days of
learning of an alleged eyewitness, Vernon Oliver, who would
testify that Appellant was not one of the shooters. Additionally,
Appellant argued that he was entitled to relief based on this
after-discovered evidence. PCRA Petition, 7/25/2014, at 2-4.
Appellant subsequently filed an amended PCRA petition, adding
another newly-discovered fact and after-discovered evidence
claim regarding another eyewitness, Eric Butler. Amended PCRA
Petition, 9/18/2014, at 3-5.
The PCRA court held an evidentiary hearing on Appellant’s
after-discovered evidence claims on March 9, 2017. Oliver and
Butler testified at the hearing. On June 2, 2017, the PCRA court
dismissed Appellant’s PCRA petition. This timely-filed pro se
appeal followed.
Although Appellant pro se filed a notice of appeal, the
record indicated that Appellant was still represented by Attorney
Tauber. Therefore, on August 11, 2017, this Court issued an
order directing Attorney Tauber to show cause why he was not
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counsel of record. Per Curiam Order, 8/11/2017. Attorney
Tauber responded, notifying this Court that he advised Appellant
of his appellate rights following the PCRA court’s dismissal of his
PCRA petition. Additionally, Attorney Tauber advised Appellant
that pursuant to their engagement agreement, he had been
retained solely for purposes of litigating the PCRA petition. As
such, relying on the terms of the engagement agreement,
Appellant pro se filed the instant notice of appeal, and Attorney
Tauber did not seek formally to withdraw as counsel before the
PCRA court. Response, 8/28/2017. On October 2, 2017, Attorney
Tauber filed a request for leave to withdraw as counsel with this
Court, which this Court granted. Per Curiam Order, 10/23/2017.
Commonwealth v. Corbett, 221 A.3d 1241 (Pa. Super. 2019)
(unpublished memorandum at 1-3) (footnote omitted).
Prior to reaching the merits of Appellant’s appeal, we considered
whether Appellant was properly proceeding pro se.
Although this was Appellant’s second PCRA petition, he may
have had a rule-based right to counsel, as the PCRA court
determined that an evidentiary hearing was required. However,
because Appellant retained private counsel prior to filing his
petition, the PCRA court did not determine whether Appellant
was unable to afford or otherwise procure counsel, which would
have entitled him to appointed counsel pursuant to Pa.R.Crim.P.
904(D).
Ordinarily, and despite any purported engagement
agreement, once privately-retained counsel enters an
appearance, counsel is obligated to continue representation
through direct appeal or until granted permission to withdraw.
Pa.R.Crim.P. 120(A)(4), (B)(1). Attorney Tauber did not seek to
withdraw until after Appellant pro se filed the instant notice of
appeal and this Court directed Attorney Tauber to show cause as
to why he was not counsel of record. Although this Court granted
Attorney Tauber’s petition to withdraw, if Appellant is unable to
afford or otherwise procure counsel, his rule-based right to
counsel for his second PCRA petition remains in effect on appeal.
See Pa.R.Crim.P. 904(D) and (F)(2).
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Id. (unpublished memorandum at 4-5). Accordingly, this Court remanded to
the PCRA court to determine whether Appellant was entitled to counsel for
this appeal and to file a supplemental opinion. The PCRA court appointed
counsel, and both Appellant and the PCRA court complied with Pa.R.A.P.
1925. Thus, we may now reach the merits of Appellant’s appeal.
On appeal, Appellant argues that the PCRA court erred in failing to
conduct a proper assessment of the credibility of Oliver and Butler, and that
PCRA counsel rendered ineffective assistance by failing to request a proper
credibility assessment be conducted by the PCRA court. Appellant’s Brief at
10-11.1 We review this claim mindful of the following.
Our review of a PCRA court’s decision is limited to examining
whether the PCRA court’s findings of fact are supported by the
record, and whether its conclusions of law are free from legal
error. Our 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 PCRA court level. The
PCRA court’s credibility determinations, when supported by the
record, are binding on this Court. However, this Court applies
a de novo standard of review to the PCRA court’s legal
conclusions.
Commonwealth v. Johnson, 51 A.3d 237, 242-43 (Pa. Super. 2012) (en
banc) (citations, quotation marks, and brackets omitted).
1 Appellant also argues that trial counsel was ineffective for failing to request
the PCRA court conduct a proper credibility assessment. Appellant’s Brief at
10-11. Because the alleged deficiencies occurred during Appellant’s PCRA
proceedings, it defies logic for Appellant to argue that trial counsel rendered
ineffective assistance of counsel in this regard. Accordingly, we need not
consider this argument further.
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In reviewing ineffective assistance of counsel claims, we
presume counsel is effective. To overcome this presumption,
a PCRA petitioner must show the underlying claim has arguable
merit, counsel’s actions lacked any reasonable basis, and
counsel’s actions prejudiced the petitioner. Prejudice means that,
absent counsel’s conduct, there is a reasonable probability the
outcome of the proceedings would have been different. A claim
will be denied if the petitioner fails to meet any one of these
prongs.
Commonwealth v. Brown, 235 A.3d 387, 391 (Pa. Super. 2020)
(quotation marks, citations, and brackets omitted). Finally,
[t]o warrant relief, after-discovered evidence must meet a four-
prong test: (1) the evidence could not have been obtained
before the conclusion of the trial by reasonable diligence; (2) the
evidence is not merely corroborative or cumulative; (3) the
evidence will not be used solely for purposes of impeachment;
and (4) the evidence is of such a nature and character that a
different outcome is likely. At an evidentiary hearing, an
appellant 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.
Commonwealth v. Rivera, 939 A.2d 355, 359 (Pa. Super. 2007) (citation
omitted).
On appeal, Appellant argues that Oliver and Butler testified credibly,
and that “the PCRA court should have done a witness credibility assessment
of [Butler] and believed his testimony.” Appellant’s Brief at 11. In support
thereof, Appellant relies on Commonwealth v. Johnson, 966 A.2d 523(Pa. 2009). Id. at 10. In Johnson, after reviewing an after-discovered
evidence claim based upon recantation testimony, our Supreme Court
remanded to the PCRA court and held that
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the question for the PCRA court is not whether the jury in fact
would have credited [Johnson’s] new evidence and his recast
alibi evidence. Instead, the question is whether the nature and
quality of the evidence is such that there is a reasonable
probability that the jury would have credited it and rendered a
more favorable verdict. That assessment must include a
recognition of the impeachability of the witnesses, and not
merely a viewing of their testimony in a most favorable light.
Some witnesses may display a demeanor, or be subject to such
strong impeachment … that the court is convinced that no
reasonable jury would believe them. On the other hand, some
witnesses may conduct themselves, or be of such repute, that
the PCRA judge has substantial confidence that a jury would
credit them.
966 A.2d at 542.
Upon review, it is evident that the PCRA court conducted an
appropriate credibility assessment for both witnesses, and that its
determinations were supported by the record. Johnson, 51 A.3d at 242-43(citation and quotation marks omitted) (“The PCRA court’s credibility
determinations, when supported by the record, are binding on this Court.”).
Following an evidentiary hearing, the PCRA court found that Oliver and
Butler were not credible. PCRA Supplemental Opinion, 12/13/2019, at 6. In
its supplemental opinion, the PCRA court detailed specifically why it found
their testimony incredible. See id. at 7-9. Because the PCRA court’s
determination that Oliver and Butler lacked credibility is supported by the
record, the PCRA court did not err in determining that Appellant’s proposed
after-discovered evidence, if presented to a jury, was not of such a nature
and quality “that there is a reasonable probability that the jury would have
credited it and rendered a more favorable verdict.” Johnson, 966 A.2d at
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542. As such, counsel cannot be deemed ineffective for failing to request a
credibility assessment. Accordingly, Appellant is not entitled to relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/8/21
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