Com. v. Claiborne, A. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALLEN THEODORE CLAIBORNE :
:
Appellant : No. 113 MDA 2020
Appeal from the PCRA Order Entered November 12, 2019
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0003742-2016
BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY BOWES, J.: FILED AUGUST 07, 2020
Allen Theodore Claiborne appeals from the order that dismissed his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”). Also before
us is Kristopher G. Accardi, Esquire’s petition to withdraw as counsel pursuant
to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). We
grant counsel’s petition and affirm.
Succinctly, the facts underlying Appellant’s conviction are as follows.
Teonna Neely, Shane Bennett, and Appellant participated in a robbery
conspiracy. The scheme was to post online advertisements for the sale of
electronic items, and then rob the potential buyers at gunpoint when they met
to consummate the sale. Neely, who had reached a plea agreement with the
Commonwealth, testified against Appellant at trial, detailing the planning and
execution of multiple robberies. Upon Neely’s testimony and other evidence,
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including the testimony of two of the alleged victims, a jury convicted
Appellant of conspiracy and one count of theft.1 Appellant was sentenced to
an aggregate term of five to twelve years of imprisonment, and his direct
appeal from that judgment of sentence resulted in no relief. See
Commonwealth v. Claiborne, 190 A.3d 704 (Pa.Super. 2018) (unpublished
memorandum).
Appellant filed a timely pro se PCRA petition. Appointed counsel filed an
amended petition raising an after-discovered-evidence claim. Specifically, the
amended petition alleged that, on May 18, 2019, Neely executed an affidavit
indicating that it was another man, not Appellant, who was the third member
of the conspiracy, and that she fabricated her trial testimony because she was
pressured by her attorney and wished to obtain a better plea deal.2 See
Amended PCRA Petition, 5/21/19, at 3-4, Exhibit A.
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1While the jury acquitted or failed to reach a verdict on some of the counts of
conspiracy and theft, it found Appellant guilty of counts four and eight, which
were associated with the robbery of Austin Lee Colon and Jennifer Rivera-
Chavez, the victims who identified Appellant and testified against him at trial.
2 Appellant later supplemented his petition with a witness statement from his
mother, Misty Lewis-Hall. Therein, Ms. Lewis-Hall indicated that Appellant and
Neeley had “on numerous occasions, talked about [Neely] writing the letter,”
that the hand-written document was delivered to Ms. Lewis-Hall’s residence
by “an unknown party,” and that Neely subsequently met Ms. Lewis-Hall at a
notary’s office, where Neeley “read the entire letter in the parking lot, [and]
agreed to everything it said, so we went in [and] had it notarized.”
Supplemental PCRA Petition, 9/9/19, at Exhibit A.
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After continuances and other pre-hearing matters, the PCRA court held
an evidentiary hearing on Appellant’s petition on November 12, 2019. Neely
unwillingly appeared at the hearing pursuant to a subpoena, but indicated that
she consulted her attorney and did not “feel comfortable testifying right now
or saying anything else at this moment.” N.T. PCRA Hearing, 11/12/19, at 4.
Neely confirmed that Appellant was her co-defendant, that she offered
evidence against him at trial, and that she recalled giving statements at some
point that differed from her trial testimony. Id. at 6-7. However, when asked
if she recalled writing the exculpatory letter attached to Appellant’s amended
PCRA petition, if that letter was in her handwriting, and if she stood by her
trial testimony, Neely responded “I have nothing to say.” Id. at 5-7.
Appellant presented no other evidence. At the conclusion of the hearing, the
Commonwealth moved to dismiss Appellant’s PCRA petition, and the PCRA
court granted the motion. Appellant filed a timely notice of appeal, and both
Appellant and the PCRA court complied with Pa.R.A.P. 1925.
In this Court, in lieu of an advocate’s brief, counsel filed a petition to
withdraw and no-merit letter pursuant to Turner and Finley. Before we
consider the merits of the issues raised on appeal, we must determine whether
counsel followed the required procedure, which we have summarized as
follows:
When presented with a brief pursuant to Turner/Finley, we
first determine whether the brief meets the procedural
requirements of Turner/Finley. A Turner/Finley brief must: (1)
detail the nature and extent of counsel’s review of the case; (2)
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list each issue the petitioner wishes to have reviewed; and (3)
explain counsel’s reasoning for concluding that the petitioner’s
issues are meritless. Counsel must also send a copy of the brief
to the petitioner, along with a copy of the petition to withdraw,
and inform the petitioner of the right to proceed pro se or to retain
new counsel. If the brief meets these requirements, we then
conduct an independent review of the petitioner’s issues
Commonwealth v. Knecht, 219 A.3d 689, 691 (Pa.Super. 2019) (internal
citations omitted).
We are satisfied from the review of counsel’s petition and no-merit letter
that counsel has substantially complied with the technical requirements of
Turner and Finley. Counsel has detailed his review of the case and the issue
Appellant wishes to raise and explained why that issue lacks merit. Counsel
also sent a copy to Appellant and advised him of his immediate right to
proceed pro se or with hired counsel. Accordingly, we proceed to consider the
substance of the appeal.
In his Turner/Finley letter, counsel addresses one issue, phrased as
follows in Appellant’s Pa.R.A.P. 1925(b) statement: “Whether the [PCRA]
court’s dismissal of [Appellant’]’s PCRA petition was an abuse of discretion
where [Appellant]’s witness offered recantation testimony but refused to
testify at the evidentiary hearing?” Concise Statement, 1/14/20, at 1. See
also Turner/Finley letter at 5-6.
We begin our independent evaluation of the merits of this issue with a
review of the applicable law. “This Court’s standard of review regarding an
order denying a petition under the PCRA is whether the determination of the
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PCRA court is supported by the evidence of record and is free of legal error.”
Commonwealth v. Rizvi, 166 A.3d 344, 347 (Pa.Super. 2017).
As to the substance of Appellant’s claim, our Supreme Court has
explained as follows:
When seeking a new trial based on alleged after-discovered
evidence in the form of recantation testimony, the petitioner must
establish 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. Johnson, 966 A.2d 523, 541 (Pa. 2009). “The test is
conjunctive; the 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. Foreman, 55 A.3d 532, 537 (Pa.Super. 2012) (cleaned
up).
Our High Court has further expounded:
this Court has repeatedly acknowledged the limitations inherent
in recantation testimony, which has been characterized as
extremely unreliable. In fact, we have remarked that there is no
less reliable form of proof, especially where it involves an
admission of perjury. For that reason, we have emphasized that,
when addressing an after-discovered evidence claim premised on
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. Unless the PCRA court is satisfied that
the recantation is true, it should deny a new trial.
Commonwealth v. Small, 189 A.3d 961, 977 (Pa. 2018) (cleaned up).
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With these principles in mind, we turn to the PCRA court’s determination
that Appellant’s claim did not warrant relief. The PCRA court explained its
reasoning as follows:
First, despite the characterization utilized by [Appellant],
this court did not receive “recantation testimony” by Teonna
Neely. Neely refused to offer recantation testimony at the
evidentiary hearing held solely for that purpose. What the court
did receive, via the clerk of courts file, was an affidavit,
purportedly created by Neely, attached to the amended PCRA
petition. While that affidavit indicated [Appellant] had not been
involved in the robbery scheme or incident, at the evidentiary
hearing Neely refused to authenticate or acknowledge the
affidavit. No other witness authenticated the affidavit or testified
that it had been adopted by Neely. Thus, the evidentiary record
on which the Court based its dismissal contained no recantation
of Neely’s prior trial testimony.
Even if we were to consider the “recantation” present in the
affidavit attributed to Neely by [Appellant], we would not find the
affidavit to be reliable or persuasive, such that it would compel a
different verdict and therefore justify a new trial. . . .
In the instant case, the specific circumstances surrounding
the preparation of Neely’s affidavit were not ordinary, and they
certainly do nothing to dispel the presumptive skepticism
regarding its veracity. Even the most generous version of events
described by [Appellant]’s various submissions to the court
suggests that Neely did not actually write the affidavit. According
to the proposed witness statement of [Appellant]’s mother
attached to the supplemental petition, an “unknown party”
brought the prepared affidavit to the mother’s home. The mother
then met Neely in the parking lot of a notary public, where Neely
reportedly read the affidavit and ultimately signed it. We recall
Neely’s trial testimony in 2016 clearly implicating [Appellant]; the
unusual circumstances surrounding the preparation and
presentation of the affidavit recanting that testimony in 2019 do
not persuade us of the veracity of that unauthenticated document.
Finally, we note that Neely’s testimony at [Appellant]’s 2016
trial was not the only evidence incriminating [Appellant] and
supporting his conviction. Both victims of the incident—Austin
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Colon and Jennifer Rivera-Chavez—appeared at trial and offered
testimony against [Appellant]. In a photo lineup several days
after the incident and at trial several months later, they identified
[Appellant] as one of the perpetrators. Given this additional,
significant evidence against [Appellant], we are unable to say that
an unauthenticated affidavit purporting to recant the trial
testimony of a coconspirator, who was at least at one time
romantically involved with [Appellant], would compel a different
verdict and justify our granting of a new trial in this matter.
PCRA Court Opinion, 1/30/20, at 8-10 (footnotes, citations, and unnecessary
capitalization omitted).
Our review of the record in light of the applicable law reveals no abuse
of discretion or error of law on the part of the PCRA court in rejecting
Appellant’s after-discovered evidence claim. For the reasons detailed in its
opinion, the PCRA court properly concluded that Appellant failed to satisfy his
burden to prove each element of his claim.3 Accordingly, we find no reason
to disturb the PCRA court’s order dismissing Appellant’s petition. Therefore,
we affirm the PCRA court’s order and grant counsel’s petition to withdraw.
See, e.g., Commonwealth v. Doty, 48 A.3d 451, 454 (Pa.Super. 2012) (“If
the court agrees with counsel that the claims are without merit, the court will
permit counsel to withdraw and deny relief.” (internal quotation marks
omitted)).
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3 Indeed, the fact that the jury found Appellant guilty of the counts associated
with the robbery of Mr. Colon and Ms. Rivera-Chavez, who testified against
Appellant at trial, but acquitted or failed to reach a verdict as to other counts
for which Neely’s testimony implicated him, solidly supports the PCRA court’s
determination that recantation testimony from Neely was unlikely to compel
a different result.
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Kristopher G. Accardi, Esquire’s petition to withdraw as counsel granted.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/07/2020
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